[EL] Outlawing #McConnelling

Tue Jul 29 14:27:01 PDT 2014

San Diego's Ethics Commission recently proposed a similar amendment to its campaign finance ordinance, although the amendment (1) does not require that the candidate's materials be reproduced with the candidate's consent, and (2) the expenditure is considered to be an in-kind contribution from the committee reproducing the materials to the candidate, but not a contribution received by the candidate.  I have my doubts regarding the constitutionality of the proposed amendment.

www.sandiego.gov/ethics/pdf/eccoamendments_140702.pdf

PROPOSED AMENDMENTS

July 2, 2014

27.2947 Duplication of a Candidate's Campaign Materials

(a) Any committee that makes a payment for distributing or disseminating an advertisement that duplicates, reproduces, or republishes a candidate's campaign materials, in whole or in part, has made a contribution to the candidate for purposes of the contribution limits and source prohibitions set forth in sections 27.2934, 27.2935, 27.2950, and 27.2951.

(b) The "making" of a contribution to a candidate under subsection (a) does not mean that the candidate has "accepted" or "received" a contribution for purposes of contribution limits or source prohibitions. Accordingly, nothing in this section imposes any liability on a candidate whose campaign materials were duplicated, reproduced, or republished.

(c) The provisions of this section apply to a committee's advertisement in support of a candidate that uses materials created, prepared, or obtained by the candidate or the candidate's controlled committee for campaign purposes, including, but not limited to, mailers; flyers; pamphlets; door hangers; walking cards; posters; yard signs; billboards; banners and large signs; business cards; campaign buttons; bumper stickers; newspaper, magazine, television, radio, and Internet advertisements; photographs; audio recordings; and videos, regardless of whether such materials were accessible to members of the public on the Internet or through other means not requiring coordination with the candidate or the candidate's controlled committee.

(d) The provisions of this section do not apply to:

(1) any written statements contained in a candidate's campaign materials;

(2) any statements made by a candidate while delivering a speech or speaking at a debate, forum, or similar public event in an advertisement that does not use an audio or video recording made by the candidate or the candidate's controlled committee;

(3) the duplication of a single photograph of the candidate;

(4) member communications; or, Page 2 of 2

(5) instances in which a payment was "made at the behest" of a candidate, as that term is defined in title 2, section 18225.7 of the California Code of Regulations. Such a payment is a contribution regardless of whether any campaign materials were duplicated, reproduced, or republished.

Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Adam Bonin
Sent: Tuesday, July 29, 2014 5:34 AM
To: law-election at uci.edu
Subject: [EL] Outlawing #McConnelling

Among the proposed amendments to Philadelphia's local campaign finance ordinance is the following. Curious on folks' thoughts about its constitutionality/potential effectiveness:

http://www.phila.gov/ethicsboard/PDF/BOERegNo1_CampaignFinance_ProposedAmendmentPostedRecordsDept_7.17.14.pdf

1.40 Republication of campaign communications or materials. An expenditure made to reproduce, republish, or disseminate a campaign communication (including audio recordings or video footage) or campaign material (such as photographs, flyers, signs, or brochures) prepared by a candidate's campaign:

a. Shall be considered an in-kind contribution for the purposes of the contribution limits that apply to the person making the expenditure.

b. Shall be considered an in-kind contribution for the purposes of the contribution limits that apply to the candidate if the person making the expenditure obtains the communication or materials directly from the candidate's campaign or from another source with the consent of the candidate's campaign.

A campaign communication or campaign material is obtained with the candidate's consent if the candidate provides it to a third party so that another person is able to obtain the communication or material from that third party.

c. Shall not be considered an in-kind contribution for the purposes of the contribution limits if:
i. The communication or material is incorporated into a communication that advocates the defeat of the candidate that prepared the material; or
ii. The news media reproduces, republishes, or disseminates the communication or material.

Example: Three weeks before election day, candidate A's campaign uploads 5 minutes of b-roll video footage to her YouTube channel. The political committee Pennsylvanians for a Better Pennsylvania downloads the video and uses the footage to create a television advertisement. The committee spends $100,000 to run the advertisement on three television stations during the week before election day.

Pennsylvanians for a Better Pennsylvania obtained a campaign communication created by candidate A's campaign with the consent of the candidate's campaign. As such, the committee's expenditure of $100,000 was coordinated with candidate A's campaign and is an in-kind contribution from the committee to candidate in excess of the contribution limits.

Adam C. Bonin
The Law Office of Adam C. Bonin
1900 Market Street, 4th Floor
Philadelphia, PA 19103
(215) 864-8002 (w)
(215) 701-2321 (f)
(267) 242-5014 (c)
adam at boninlaw.com<mailto:adam at boninlaw.com>
http://www.boninlaw.com<http://www.boninlaw.com/>

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