State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

AO 09-03-CD

Number: AO 09-03-CD
Requested by: Kay Brown, Communications Director
Alaska Democratic Party
Prepared by: Jerry D. Anderson
Date Issued: April 8, 2009
Subject: Request for an Advisory Opinion on whether a mass mailing by a political party in a runoff municipal election would fall under the provisions of AS 15.13.400(4)(B)(iii).
Decision: On April 24, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request by a vote of 4 to 0, with minor editorial changes that did not affect the result.

QUESTION PRESENTED:

1)  For purposes of AS 15.13.400(4)(B)(iii), which excludes from the definition of a contribution “two or fewer mass mailings before each election by each political party …” (emphasis added) are the Anchorage mayoral election and a potential runoff election considered separate elections?

SHORT ANSWER:

Yes.  For purposes of AS 15.13.400(4) the initial round of balloting in the Anchorage mayoral election, and a potential runoff election are considered separate elections.

FACTS

The Alaska Democratic Party has requested an Advisory Opinion as to whether it is permissible to make a mass mailing under AS 15.13.400(4)(B)(iii) prior to the upcoming Anchorage mayoral election, and an additional mass mailing in the event that there is a subsequent runoff election. The Anchorage Municipal Charter provides that in the event no candidate receives more than 45% of the vote in the general election, a runoff election will be held between the two candidates receiving the highest number of votes. See Article XI, § 11.02 of the Anchorage Municipal Charter. Alaska Public Office Commission records reflect that fourteen candidates have filed for the office of Mayor of Anchorage for the April 7, 2009 Election, indicating that a runoff election is well within the realm of possibility.

ANALYSIS

In general, a “contribution” which is subject to the laws regarding campaign finance includes any money, goods, or services made for influencing the nomination or election of a candidate.  AS 15.13.400(4).  Specifically excluded from this definition, however are “two or fewer mass mailings before each election by each political party describing the party’s slate of candidates for election, which may include photographs, biographies, and information about the party’s candidates.”  AS 15.13.400(4)(B)(iii).  

The statute does not, by its terms, limit the mailing exclusion to a primary election, general election, runoff election or other type of election.  The use of the term “election” rather than a phrase like “election cycle” leads us to believe that the exclusion applies to both a primary election and general election, or in this case, a general election and a subsequent runoff.   This is consistent with APOC’s interpretation of other statutes.  For example with regard to AS 15.13.110—which requires reports from candidates 30 days before an election and one week before an election—APOC considers the regular election and runoff election as separate elections, requiring separate reports. 

CONCLUSION

The upcoming Anchorage mayoral election, and a potential subsequent runoff election are two separate elections for purposes of AS 15.13.400(4)(B)(iii).  Consistent with that statute, the Alaska Democratic Party may make two mass mailings before the mayoral election, and two mass mailings before runoff election, and these mailings will not be considered to be contributions.

COMMISSION DECISION

On April 24, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request by a vote of 4 to 0, with minor editorial changes that did not affect the result.

APPLICABLE LAW:

Sec. 15.13.400. Definitions.

 

(1) "candidate"

(A) means an individual who files for election to the state legislature, for governor, for lieutenant governor, for municipal office, for retention in judicial office, or for constitutional convention delegate, or who campaigns as a write-in candidate for any of these offices; and

(B) when used in a provision of this chapter that limits or prohibits the donation, solicitation, or acceptance of campaign contributions, or limits or prohibits an expenditure, includes

(i) a candidate's campaign treasurer and a deputy campaign treasurer;

(ii) a member of the candidate's immediate family;

(iii) a person acting as agent for the candidate;

(iv) the candidate's campaign committee; and

(v) a group that makes expenditures or receives contributions with the authorization or consent, express or implied, or under the control, direct or indirect, of the candidate;

(2) "commission" means the Alaska Public Offices Commission;

(3) "communication" means an announcement or advertisement disseminated through print or broadcast media, including radio, television, cable, and satellite, the Internet, or through a mass mailing, excluding those placed by an individual or nongroup entity and costing $500 or less and those that do not directly or indirectly identify a candidate or proposition, as that term is defined in AS 15.13.065(c);

(4) "contribution"

(A) means a purchase, payment, promise or obligation to pay, loan or loan guarantee, deposit or gift of money, goods, or services for which charge is ordinarily made and that is made for the purpose of influencing the nomination or election of a candidate, and in AS 15.13.010(b) for the purpose of influencing a ballot proposition or question, including the payment by a person other than a candidate or political party, or compensation for the personal services of another person, that are rendered to the candidate or political party;

(B) does not include

(i) services provided without compensation by individuals volunteering a portion or all of their time on behalf of a political party, candidate, or ballot proposition or question;

(ii) ordinary hospitality in a home;

(iii) two or fewer mass mailings before each election by each political party describing the party's slate of candidates for election, which may include photographs, biographies, and information about the party's candidates;

(iv) the results of a poll limited to issues and not mentioning any candidate, unless the poll was requested by or designed primarily to benefit the candidate;

(v) any communication in the form of a newsletter from a legislator to the legislator's constituents, except a communication expressly advocating the election or defeat of a candidate or a newsletter or material in a newsletter that is clearly only for the private benefit of a legislator or a legislative employee; or

(vi) a fundraising list provided without compensation by one candidate or political party to a candidate or political party;

Sec. 15.13.374. Advisory opinion.

(a) Any person may request an advisory opinion from the commission concerning this chapter, AS 24.45, AS 24.60.200 - 24.60.260, or AS 39.50.

(b) A request for an advisory opinion

(1) must be in writing or contained in a message submitted by electronic mail;

(2) must describe a specific transaction or activity that the requesting person is presently engaged in or intends to undertake in the future;

(3) must include a description of all relevant facts, including the identity of the person requesting the advisory opinion; and

(4) may not concern a hypothetical situation or the activity of a third party.

(c) Within seven days after receiving a request satisfying the requirements of (b) of this section, the executive director of the commission shall recommend a draft advisory opinion for the commission to consider at its next meeting.

(d) The approval of a draft advisory opinion requires the affirmative vote of four members of the commission. A draft advisory opinion failing to receive four affirmative votes of the members of the commission is disapproved.

(e) A complaint under AS 15.13.380 may not be considered about a person involved in a transaction or activity that

(1) was described in an advisory opinion approved under (d) of this section;

(2) is indistinguishable from the description of an activity that was approved in an advisory opinion approved under (d) of this section; or

(3) was undertaken after the executive director of the commission recommended a draft advisory opinion under (c) of this section and before the commission acted on the draft advisory opinion under (d) of this section, if

(A) the draft advisory opinion would have approved the transaction or activity described; and

(B) the commission disapproved the draft advisory opinion.

(f) Advisory opinion requests and advisory opinions are public records subject to inspection and copying under AS 40.25.

COMMISSION DECISION

On April 24, 2009, the Alaska Public Offices Commission heard and approved this advisory opinion request by a vote of 4 to 0, with minor editorial changes that did not affect the result.