phil vassor

Transcription

phil vassor

BEFORE THE FEDERAL ELECTION COMMISSION
)
In the Matter of
) MUR 6289 and MUR 6362
Jeff Denham; Denham for Congress and
David Bauer, in his official capacity as
treasurer; Pi~ R.anaheria of the
Chukchansi Indians/Chukchaasi Tribal
Government; Remembering tim Brave
Foundation; Cllibr.ians for Fiscally
Conservative Leadership; Gillard,
Blanning & Associates, Inc. (Dave
Gillard & Carlos Rodriguez); Jeff
.Denham for State Senate and David
Bauer, in his official capacity as treasurer
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CERTIFICATION
I, Shelley E. Garr, recording secretary of the Federal Hlection Commission executive
session, do hereby certify that on August 02, 2011, the Commission took the following actions in
the abo~oned matten:
l. Decided by a "Vote of6-0 to:
a.
Merge MUR 6289 into MUR 6362.
b.
Find· no reason to believe that Remembering the Bmve Foundation made
prohibited in-kind corporate contributions resulting from coordinated
communications in violation of2 U.S.C. § 441b(a).
c.
Find no reason to believe that Representative Jeff Denham accepted and
xeceived prohibited in-kind oontributiom resulting from coordinated
commUDicatioDJ in violatblo of2 U.S.C. § 44lb(a).
Federal Election Commission
Certification for MURs 6289 and 6362
August 2, 2011
d.
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Find no reason to believe that Denham for Congress and David Bauer, in his
officw capacity aa 1reastuel', acceptGd and received pmhibited ~kind
contribulilllS aultiJ11g
coolllinatod cammunicotions in violatioo of
2 U.S.C. § 44lb(a).
man
e.
Find no reason to believe that Denham for Congress and David Bauer, in his
official capacity as treasurer, failed to report in-kind contributions resulting ftom
coordinated communications in violation of2 U.S.C. § 434(b). ·
f.
Find :aO reasun to btilieve that the Picayune Raacheria of the Chukchansi
Indjans/Chnkclumsi Tribal Government, Californians for Fiscally Conservative
Leadarship, GillhmiJ Blanniug 4 Associutes, Ino., David Gilliald, aad Carlos
Rodrigaa violated any paovisions of tim Act or regulations iD coanection with the
allegations in these matters.
g.
Approve the Factual and Legal Analyses as recommended in the First General
Counsel's_Report dated Aprill3, 2011, as they apply to the above actions.
h.
Approve the appropriate letters.
Commissioners Bauerly, Hunter, McGahn II, Petersen, Walther, and Weintraub voted
affirmatively for the decision.
2. Failed on a vote of 3-3 to:
a.
Find reason to believe that Remembering the Brave Foundation failed to report
electioneering communications in violation of2 U.S.C. § 434(f).
b.
Find reason to believe that Remembering the Brave Foundation violated
2 U.S.C. § 44ld by failisg to include proper disclaimers on its mdio and
teleuinion advertittenmnts.
c.
Find rcascm to believe tl'aa.t J~ffDenhBm, Jeff Denham for State Scr.\ate and Ilayid
Bauer, in his official capacity as treasmer, &Q.d Denham for Congress and Dawd
Bauer, in his official capacity as treasurer, violated 2 U.S.C. § 44li(eXl)(A) and
J1 C.F.R. § 110.3(d).
d
Authorize tbe use of compulsory process as to all Respondents and witnesses in
this matter, including the i&nJance of appropriate intmrogatories, document
subpoenas, and deposition subpoenas, as necessary.
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Federal Election Commission
Certification for MURs 6289 and 6362
August 2, 20 II
e.
Approve the Factual and Legal Analyses as recommended in the First General
Counsel's Raport dabl Aplil13, 2011, as dley apply to the above aetions.
f.
Approve the appropriate letters.
Commissioners Bauerly, Walther, and Weintraub voted affirmatively for the motion.
Commissioners Hunter, McGahn ll, and Petersen dissented.
3. Dtcided by a vote of 6-0 to:
a.
Close die file.
Commissioners Bauerly, Hunter, McGaha II, Petersen, Walther, and Weintraub voted
affirmatively for the decision.
Attest:
Deputy Secretary of the Commission
FEDERAL ELECTION COMMISSION
WASHINGTON, D.C. 20463
AUG 10 2011
BY E-MAIL <Paul@.SullivanLaw.coml and FIRST CLASS MAIL
Paul E. Sullivan, Esq.
Paul E. Sullivan & Associates, PLLC
60 l Pennsylvania Ave. NW
Suite 900, South Building
Washingten, DC 200.04
RE:
MURs 6289, 6362
Representative Jeff Denham
Denham for Congress
and David Bauer,
in his official capacity as treasurer
Jeff Denham for Stslt1 Sennte
and David Baaer,
in his official capacity as treanurer
Dear Mr. Sullivan:
On May 17, 2010, the Federal Election Commission notified your clients,
Representative Jeff Denham and Denham for Congress and David Bauer, in his official
capacity as treasurer, ("Denham Federal Committee") of a complaint designated as MUR
6289, alleging violations of certain sections of the Federal Election Campaign Act of
1971, as amended ("the Act"). On Septomber 1, 2010, the Commission notified yoor
clients, Repmsentative DeniDm, the Denhmn Federal Contmittee, and Jeff Denham for
State Senate end David Bauer, in his offioiol capacity u treasurer, ("Denham State
Committee'') of a second complaint des~gnated as MUll 6362, all~ging vi1•lations of
certain sections ofthe Act. On August 2, 2011, the Commission merged MUR 6289 into
MURJ)362 and found, on the basis oftbe information in the complaints, and information
provided by you, that there is no reason to believe Representative Denham violated
2 U.S.C. § 441b(a} and no reaso~ to believe the Denham Federal Committee violated
2 U.S.C. §§ 434(b) and 44lb(a). The Commission also considered other allegations, bat
was eqaally divided on whether to find reason to believe that Representative Donham and
the Denham Fedtral and State Committees vi0luted 2 U.S.C.§44li(e)(1)(A) and
ll C.F.R. § l10.3(d). Aeconiin&ly, me Commission oiosed its file in this ntatlen
Documents related to the case will be phreed on the public reeord within 30 days.
See Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files,
MURs 6289/6362
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68 Fed. Reg. 70,426 (Dec. 18, 2003) and Statement of Policy Regarding Placing First
General Counsel's Reports on the Public Recom,.74 Fed. Reg. 66132 (Dec. 14, 2009).
The Faotual and Legal Analysis, which explains the Commission's no reason to believe
findings, is enclosed for your infom1ation. One or more Statements uf Reasons further
explaining the basis for tho. Commissien's decisions regarding the other allegations will
follow.
If you have any questions, please contact Dominique Dillenseger, the attorney
assigned to this matter, at (202) 694-1650.
Sincerely,
~.ctJt(){__
Peter G. Blumberg
Assistant General Counsel
Enclosures
Factual and Legal Analysis
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FACfUAL AND LEGAL ANALYSIS
RESPONDENTS:
JeffDenham
MUR: 6362
Denham for Congress
and David Bauer, in his official capacity as treasurer
I.
INTRODUCTION
This matter was gaaerated by two complaints filed with the Federal Election Commission
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(''the Commission''), one by Sean Fox and another by Tal Cloud and Mike Der Man~uel, Jr.,
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which were designated as MURs 6289 and 6362, respectively. See 2 U.S.C. § 437(g)(a)(l). The
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complaints concern ads broadcast by Remembering the Brave Foundation ("RB"), a section
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501(c)(3) charitable organization, to promote a May 28,2010, benefit concert in support of a
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program in California to create specialized license plates for families of military personnel killed
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on active duty. The ads featured Jeff Denham, a California State Senator and a candidate in the
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primary election for the 19th Congressional District in California, and were disseminated within
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30 days of the California Congressional primary election on June 8, 2010. The concert was held
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at the Chukchansi Gold Resort & Casino.
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The complaints in these two mattcm in1Volve a:lleptions th:rt the radio and television
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advertisements promoting the concert ware electioneering communications that were coordinated
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with Denham. for Congress and David Bauer, in his official capacity as treasurer (''Federal
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Committee') and were not disclosed to the Federal Election Commission (''the Commission''), in
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violation of the Federal Election Campaign Act of 1971, as amended (the "Act"). Complainants
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in MUR 6362 also alleged that the advertisements were financed from funds Denham transferred
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from Jeff Denham for State Senate (''State Committee'') to RB.
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MUR 6362 (Denham for Congress et al.)
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no violations of the Act occurred because the advertisements do not contain express advocacy or
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its functional equivalent.
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Respondents stated that RB, not the Tribe, paid for the advertisements and asserted that
It appears that the radio and television ads at issue meet the definition of "coordinated
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communications," but qualify for the safe harbor for candidate charitable solicitations under
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11 C.P.R. § 109.21 (g) because: (1) the ads do not promote, support, attack, or oppose ("PASO")
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Denham or any other Federal candidatc(s); (2) RB, the organization for which the funds were
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solicited, is a S01(cX3) tax-exempt organizatio.n as described at 11 C.F.R. § 300.65; and (.3) the
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funds appeared to have been raised solely for charitable .Purposes, i.e., donations to RB, a
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S01(c)(3) organization. to benefit the Gold Star Project. Accordingly, the Commission found no
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reason to believe that Jeff Denham and Denham for Congress and David Bauer, in his official
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capacity as treasurer, accepted and received prohibited in-kind corporate contributions resulting
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from coordinated communications in violation of2 U.S.C. § 441b(a); and no reason to believe
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that Denham for Congress and David Bauer, in his official capacity as treasurer, failed to report
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such contributions in violation of2 U.S.C. § 434(b).
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The Commission considaed the allegations that the advenisements wure financed from
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funds Denham transfar.red from his State Committee to RB, but was equally divided on whether
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to find reason to believe that Jeff Denham and Denham fur Congress and Devid Bauer, iD h\s
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official capacity as Treasurer, violated 2 U.S.C. § 441i(eX1)(A) and 11 C.F.R. § 110.3(d) in
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connection with the transfer of non-federal funds to finance electioneering communications.
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The Commission will issue one or more Statements of Reasons setting forth the basis for the
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decision as to these allegations.
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D.
FACTUAL AND LEGAL ANALYSIS
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In 2010, Jeff Denham was both a California State Senator, representing the 121h District,
Factual Background
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and a candidate for the U.S. House of Representatives for California's 19th Congressional
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District. Denham did not run for re-election to the State Senate. Denham won the June 8, 2010,
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Republicatt primary and the November 2, 2010, general election.
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In the two months before the June 8 primary, Denhem' s State Committee made transfers
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totaling $225,000 to RB, an entity organized under Section 50l(c)(3) of the Internal Revenue
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Code (26 U.S.C. § 501(c)(3)). RB hon.ors veterans killed in action, and it organizes ceremonies
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and events to honor deceased servicemembers and their families. See
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http://www.rememberingthebrave.org. The transfers included a $25,000 donation made on April
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12,2010, and three loans, which the Committee forgave: a $100,000 loan made on April19,
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2010, a $50,000 loan made on May 12,2010, and a $50,000 loan on May 25,2010. 1
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Eleven days before the June 8 primary, a benefit concert was held at the Chukchansi Gold
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Resort & Casino, in Coarsegold, California, which is in the 19th Congressional District. The
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concert, sponsored by RB 1and featuring country and western: music performer Phil Vasaar, was
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advortised on radio, tetftwision, and the internet as a benefit concert to raise donations for Project
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Gold Star-a program administered by the California Deparbnent of Veteran Affairs to raise
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private donations to pay the costs of a specialized license plate program for the families of U.S.
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military personnel killed while serving on active duty. Several of the advertisements promoting
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the concert featured Denham. RB asked Denham to act as spokesperson and to appear in the ads
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See http;l/cal-access.sos.ca.&ov/PDFOenlpdfgen.pm?mingid== 1521 S03&amendid=O 1111d htm:l/calaccess.sos.ca.gov/PDFGen[pdfgen.prg?filingid= 15680SO&:amendid=O •
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because of his "long-standing association with veterans' issues and the Gold Star Project
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legislation." Denham Response at 2. Denham, an Air Force veteran, was Chairman of the
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Veterans' Affairs Committee while he was a California State Senator and was a coauthor of
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Senate Billl455, the California Gold Star Family License Plate bill. Project Gold Star was
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signed into law in September 2008.
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a link to the tDlevision ad as posted on the inteinet at h!tJl://www.rememberthebrave.com/, a
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transcript of the radio ad, and a list of seven TV and radio stations that aired the ads.· The ads
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aired in May 201 0, up to the date of the event.
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TRANSCRIPT OF RADIO AD:
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ANNOUNCER: Join country superstar Phil Vassar for a one-night Remember
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the Brave benefit concert, Friday May 28th Memorial weekend at Chukchansi
Gold Resort and Casino. Veteran Affairs Committee Chainnan Senator Jeff
Denham.
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Comptainant in MUR 6289 provided a "Transcript of Coordinated Ads," which contains
JEFF DENHAM: As a veteran, I know the sacrifices of our servicemen and
women, and the sacrifice shared by their loved ones who pray for their safe return.
But some of them don't make it, their families then become Gold Star families.
This event will raise funds for Gold Star families and the Oold Star project as
recognition for their ultimate sacrifice. Please join us at onr benefit concert on
May 281h Memorial weekend. Ifyou can't make it, go to Remember the Brave
dot com to loa:at mo1~e and to make y(•ur bac-d.eductib}e donations. R:emamber,
every dollar cC)unts.
I'm Senator Jeff De11.ham.
ANNOUNCER: Join Phil Vassar and Jeff Denham at the Remember the Brave
benefit concert. For tickets go to Chukchansi Gold Resort and Casino or visit
Ticketmaster dot com.
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TRANSCRIPT OF TELEVISION AD las posted on the internet) :
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http://www.rememberthebrave.cornl
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PAGE 1: At top of page is the logo of Remembering the Brave, followed by
Benefit Concert. Undm~.eath it is "Phil Vassar" followed by the date (May 28th)
and location of the event (Chukchansi Gold Resort & Casino), a photo of a
sample specialized license plate next to a statement: "Proceeds benefit the
California Department of Veteran Affairs Project Gold Star, a link to the
California Department of Veteran Affairs website,. and two buttons: .&'Buy
Tickets" and "Donate."
PAGE 2: (Video)(30 aeoonds):
• First clip: Phil Vassar live concert and a voiceover "Join country
superstar PbH: Vassar fur a one night benefit concert" while the following
words flash on the screen "Remember the Brave" "Ciwkchan.si Gold
Resort and Casino" and "May 28th".
• Second clip: Denham with 3 other individuals, two of whom appear to be
veterans. Denham is standing in the middle of the group while the words
"Senator Jeff Denham, Chairman, Veterans Affairs" flash on the screen.
Denham then says "As a veteran., I know the sacrifices of our service men
and women. A saorifice shared by their lov.ed ones who pray for their safe
return. Brit some don't make it. Their families than becom~o Gold Star
Families." ·
• Third ulip: Phil Vassar concert ond a voiceovu "Joiu Phil Vassor at the
Remember the Brave benefit concett. Visit Ticketmaster dot cem for your
tickets today" while the words "May 28111" "Chukchansi Gold Resort and
Casino" and "Ticketmaster.com" flash on the screen.
• Fourth clip: same shot of Denham with the veterans and Denham saying
"If you can't make it, go to Rememberthebrave.com to learn more~ while
the words "Rememberthebrave.com"' flash on the screen.
TRANSCRIPT OF INTERNET AD:
• Left side af soreen: Pbato of Denham and tim words "State Senator Jeff Denham,
Vet~erans' Affairs Committee" under tho photo.
• Right Side of screen: Message "As a veteran, I know the sacrifices of our
service men and women. A sacrifice shared by their loved ones who pray for
their safe return. But some don't make it. Their families then become Gold Star
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Families. We're raising ftmds to make available commemorative license plates
for these families as recogr1ition for their sacrifice. Please join us at our benefit
concert on May 28th. If you can't attcmd, I urge you to learn n1ore [link] about
these familicta and make a tmr-deductible contribution [linJc]. Remvmber, ·every
dollat 1:omtt.s. Learn More: Caiiii:>mia Deportnmnt of Vetemn Affaits -- Pr11ject
Gold Star [Hnk].
Bot,fom of onreen: ll'amombertba.b:r.ave.cmu is a pmject of Rellllembering The
Brave Fmmdntion, a 50l(c)(3) not-for-profit organization. For more infnrmation,
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please visit www.RememberingTheBrave.org. Contributions and donations are
tax deduodble and directly benefit the Ramembering the Bra\e FoundatiuA.
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RB sponsored the benefit concert, the proceeds of which were donated to Project Gold
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Star. Denham Response at 2. It also appears that RB, not the Tribe, produced, aired, and paid
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for the radio, television, and internet ads. ld. Documentation submitted with the complaint in
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MUR 6362 indicates that Gilliard, BlaMing & Associates ("GBA") and Alamance Advisors
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handled the media buy for the conc~cr.t on behalf ef its clio:nt, RB. See Emails between Gcmet
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Slagle (media buyer with GBA) to Matt Rosenfeld (Presidellt/General Manager for KSEE-
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NBC24, KSEE Weather Plus, and LA1V Ia alternativo), dated .t\pril29, 2010, regarding Gold
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Star Families Proposal. It also appears that GBA and Alamance Advisors handled the media
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buys for the Denham for Congress campaign in 2010. 2 See Emails from Genet Slagle to Donald
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Osika, dated January 29, 2010. The Denham response did not specify how much was spent on
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the ads, but does not dispute the $100,000-$200,000 amount mentioned in the complaint. It
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appears that RB raised a total of$105,440.24, about a third of the total amount raised ($300,000)
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for Project Gold Star.3
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The response indicates that the ads aired during May 2010, up until the May 28th date of
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the benefit cc:mcert, which was within thirty (30) days of the California Congressional primary
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election in which Denham appeared as a candiaale. /d. at 4. However, the response argued the
z The Denham Federal Committee's 2010 April Quarterly Report reflects disbursements to GBA and to Alamance
for broadcast ldvertislng.
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The California Department of Veteran Affairs announced that Project Gold Star had met its fundraising goal.
See http://www.cdva.ca.gov/newhome.aspx. RB posted a letter from the Department of Veteran Affairs thanking it
for its $105,440.24 donation in support of Project Gold Star. See htto://www.rememberingthebrave.org/newsl. On
the lette11 is a handwritten note, lndicatiq that this was the single largest donation reeeivcd. /d. In a cews release
announc.tiq that tJ:a:: Gold Star Project had raised $300,000 and that the Gold Star plate initiative had passed, RB
acknowledges that it '"together with Senator Denham, his supporters, and other conCributors ... raised approximately
one-third oft.'m funals neoded to get the licecsa plate iaitiative passed." It/.
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concert was scheduled for May 28lh because it was close to Memorial Day, an appropriate date
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on which to hold an event related to veteran/military issues and causes, and not because May 28
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was close to the primary. /d. at 6. The response also stated that the ads aired over a geographic
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area around the Casino where the concert was held and included Denham's State Senate district,
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the 19lh Congressional District, and areas beyond. ld. at 4. Finally, the response acknowledged
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that the ads could be received by more than 50,000 people within the 19"' Congressional District.
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B.
Coordinated Communications
The Act subjects contributions and expenditures to certain restrictions, limitations, and
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reporting requirements. See generally 2 U.S.C. §§ 441a, 434b. Contributions can be monetary
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or "in-kind." In-kind contributions include an expenditure made by any person "in cooperation,
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consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized
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political committees, or their agents," and are subject to the same restrictions and reporting
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requirements as other contributions. 2 U.S.C. § 44la(a)(7)(A) and (B)(i); 11 C.F.R.
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§§ 100.52(d)0), 109.21(b). The Commission's regulations at 11 C.P.R.§ 109.21 provide that
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coordinated conunualc<Dtions constitute in-kind contributions from the party payia.g for such
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communications ta the caadidate, the candidate's authorized committee, or the political party
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comm.itt&e which coordinates the communir.aticm. A oorporation is prohibited from making any
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contribution in connection with a Federal election. 2 U.S.C. § 441 b(a).
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A communication is coordinated if it is paid for by someone other than the candidate or
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the candidate's authorized committee (or the political party committee, where applicable); it
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satisfies one or more content standards; and it satisfies one or more conduct standards. AU three
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prongs must be met for a communication to be considered coordinated. 11 C.F.R. § 109.21. The
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Commission's regulations exempt from the definition of"coordinated communication" a public
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communication in which a Federal candidate solicits funds for organizations as permitted by
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11 C.F .R. § 300.65, provided that the public communication does not PASO the soliciting
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candidate or that candidate's opponent(s) in the election. See 11 C.F.R § 109.2l(gX2). Federal
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candidates and officeholders may solicit fimds for tax-exempt organizations as described in
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26 U.S.C. § 501(c). 11 C.F.R. § 300.65.
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The radio, and television ads a1 issue meet all three prongs of the coordination test. The
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payment prong is sa.tisfied because. there is information that thn ads were paid for by RB,
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someone other than the candidate. his authorized committee, or po.litical party committee.
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11 C.F.R. § 109.2l{aX1). The content prong is satisfied because the communications qualify as
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public communications which ''refer[ ] to a clearly identified House or Senate candidate that
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[are] publicly distributed or otherwise publicly disseminated in the clearly identified candidate's
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jurisdiction 90 days or fewer before the ... primary or preference election.4 11 C.F.R.
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§ 109.21(c)(4)(i). The content prong is also satisfied because the ads meet the definition of
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electioneering communications. 11 C.F.R. § 109.21{c)(l). The ads are electioneering
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communications because they were publicly distributed on radio and television, refer to a clearly
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identified amdidate for Federal office, were publicly distributed within 30 days before the
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primary election, end were targeted to the relevant electorate (the ads could be received by
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A public communication includes broadcast communications. 2 U.S.C. § 431(22). It does not include internet
communications, except for communications placed for a fee on another's Web site. 11 C.F.R. § 100.26. "Clearly
identified" means the candidate's name or photograph appears, or •'the identity of the candidate is otherwise
apparent through an unambiguous reference." 2 U.S.C. § 431(18); 11 C.F.R. § 100.17.
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50,000 or more persons in the district that Denham sought to represent (19dl Congressional
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District}). s 11 C.F.R. § 100.29.
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The conduct prong is satisfied if a candidate or candidate's committee assents to a request
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or suggestion that the public communication be created, produced, or distributed, and that
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request or suggestiott came from the person paying for the communication. 11 C.F .R.
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§ 109.2l(dXIXii). The response aclmowledgcd that RB requ~sted that Denham act as the
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spokesperson and to appear in the ads, which he did. Denham Response at 2. Because Denbam
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is an agent of his Committee, his actioas are also imputed tr1 his Committee. 11 C.P.R.
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§§ 109.3(b){1), (2); 109.21(a}, (d)(1)(ii) .
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Though the television and radio ads meet the definition of "coordinated
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communications," they qualify for the safe harbor for candidate charitable solicitations in
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11 C.F.R. § 109.21(g)(2). This provision exempts from the defmition of"coordinated
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communications" public communications in which a Federal candidate solicits funds for certain
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tax-exempt organizations as pennitted by 11 C.F.R. § 300.65, provided that the public
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communications do not PASO the soliciting candidate or tlurt candidate's opponents in that
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eleotion. In this matter, Denham, a Federal candidate, appeared and/or spoke in broadcast radio
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and televisio.o. ads to :mlicit funds for RB, a 501(c)(3) orgar~ization, in suppmt of Project Gold
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Star. The availa.'Jle information indicates that RB is an organization described in 11 C.F.R. ·
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§ 300.65, and the solicitations for donations to RB complied with the requirements of 11 C.F.R.
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§ 300.65 because they appeared to have been for the purpose of raising funds for RB in support
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of Project Gold Star. Thus, it appears that these communications are exempt from the definition
' RB's internet ad is not included in this analysis because it is exempt from the defmition of electioneering
communications. 11 C.F.R- § 100.29(c){1).
Page9ofll
of "coordinated communications" if they did not promote or support Denham and did not attack
2
3
or oppose his opponent.
It does not appear that the ads at issue promote or support Denham or attack or oppose
4
any of his opponents. Although the Commission has not defined the term ''promote, support,
5
attack, or oppose," it has provided some guidance in advisory opinions as to what might
6
constitute PASO of a candidate. See AO 2009-26 (Coulson) (concluding that a state officeholder
7
couid ase non-federal funds to pay for cammunicatibn that did not PASO a candidate fer Faderal
8
office because the cmnmunication wa4S solely part of the State offu:eholder's dnties, did not
to
9
solicit donations, nor did it expressly advocate the candidate's election or the defeat of her
"""
'""'
10
opponents); see also AOs 2007-34 (Jackson), 2007-21 (Holt), 2006-10 (Echostar) and 2003-25
11
(Weinzapfel) (holding that the mere identification of an individual who is a Federal candidate
12
does not, in itself, promote, support, attack or oppose that candidate).
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The only clearly identified candidate in the ads is Denham, who is identified as a veteran,
14
a State Senator, and as Chainnan of the Veterans' Affairs Committee, not as a candidate for
15
Federal office. The ads do not coiltain express advocacy or its i\mctio11al equivalent, and do not
16
contain refen."11oes to any election or political party. Given the above, it does not appear that the
17
.ads PASO'd Denham ar any of his opponentc;.
18
Neither the timing of the benefit concert nor the involvement of the Dellham campaign
19
consultants/media buyer/supporters in the planning of the benefit concert and ads would appear
20
to prevent the application of the safe harbor for charitable solicitations. See Explanation and
21
Justification for Final Rules for Safe Harbor for Endorsements and Solicitations by Federal
22
Candidates (11 C.F.R. § 109.21(g)) 71 Fed. Reg. 33201-33202 (Jun. 8, 2006) (stating that the
23
"safe harbor applies regardless of the timing and proximity to an election ... of the solicitation
Page 10 ef 11
1
and [w]hen the safe harbor is applicable, the ... soliciting candidate (and the candidate's agents)
2
may be involved in the development of the communication, in determining the content of the
3
communication, as well as determining the means or mode and timing or frequency of the
4
communication.''); See also, AO 2006-10 (Echostar).
5
..,.
Based on the above, the ads at issue were not coordinated communications. Accordingly,
6
the Commission found no reason to believe that Jeff Denham and Donham for Congress and
7
David Ba\ler, in his official capaoity as treasurer, accepted; and reeehted prohibited in-kind
8
corporate contributions resulting from coordinated communications in violation of2 U.S.C.
(;,;)
9
§ 441 b(a); and no reason to believe that Denham for Congress and David Bauer, in his official
......
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capacity as treasurer, failed to report such contributions in violation of2 U.S.C. § 434(b).
Page 11 of 11
BY FAX GOl-639-82391 and FIRST CLASS MAIL
8102011
Paul E. Sullivan & Associates, PLLC
601 Pennsylvania Ave. NW
Suite 900, South Building
Washlngtnn, DC 20.004
RE:
MURs 6289, 6362
Remembering the Brave Foundation
Dear Mr. Sullivan:
On August 18,2010, and September 1, 2010, the Federal Election Commission
notified your client, Remembering the Brave Foundation, of two complaints alleging
violations of certain sections of the Federal Election Campaign Act of 1971, as amended
("the Act''). On August 2, 2011, the Commission merged MUR 6289 inte MUR 6J62
and fouaul, on the basis of the infonnation in the complaints, and information provided by
you, drat there is oo reason to. believe your client violated 2 U.S.C. § 44lb(a). The
Commission also considered other allegations, but was equally divided on whether to
find reason to believe that your client violated 2 U.S.C. §§ 434(f) and 44ld..
Accordingly, the Commission closed its file in this matter.
Docurnents related to Ute case will be placed on the public recurd within 30 days.
See Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files,
General Counsel's Reports on the Public Record, 74 Fed. Reg. 66132 (Dec. 14, 2009).
The Factual and Legai An1slysis, l't'hich explains the Ccmunission's no reason to believe
finding, is enclosed for your information. One Ol more Statements of Reuons providina
a basis for the Commission's decision regarding the other allegations will follow.
Paul Sullivan, Esq.
MURs 6289/6362
Page2
If you have any questions, please contact Dominique Dillenseger, the attorney
assigned to this matter, at (202) 694-1650.
Sincerely,
S?~~
Peter G. Blumberg
Enclosure
1
2
3
4
s
RESPONDENT:
6
7
I.
8
MUR: 6362
INTRODUCTION
This matter was generated by two complaints filed with the Federal Election
Commissioft ('~ Commission"), one by Sean Fox and another by Tal Cloud and Mike
(1)
Q)
9
N
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Der MamJteei., Jr., which were designated as MURs 6289 and 6362, !Especflvely. See
""'H'lQ
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2 U.S.C; § 437(g)(a)(l). The complaints concern ads broadcast by Remembering the
12
Brave Foundation ("RB"), a section 50l{c)(3) charitable organization, to promote a May
13
28, 201 o,· benefit concert in support of a program in California to create specialized
14
license plates for families of military personnel killed on active duty. The ads featured
15
Jeff Denham, a California State Senator and a candidate in the primary election for the
16
19th Congressional District in California, and were disseminated within 30 days of the
17
California Congressional primary election on June 8, 2010. The concert was held at the
J8
Chukchansi Gold Resort & Casino.
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TI1e complaints in these two matters involve allegations that the radio and
20
television advettisements promoting the concert were electioneering communications that
21
were coordinated with Denham for Congress and David Bauer, .in his official capacity as
22
treasurer, :("Federal Committee'') and were not disclosed to the Federal Election
23
Commissi.on ("the Commission''), in violation of the Federal Election Campaign Act of
24
1971, as amended (the "Act''). Complainants in MUR 6362 also alleged that the
2s
advertisements were financed from funds Denham transferred from Jeff Denham for
26
State Senate ("State Committee") to RB.
.
Page 1 ofll
MUR 6362 (Remembering the Brave)
RB acknowledged that it paid for the advertisements and asserted that no
2
violations of the Act occurred because the advertisements do not contain express
3
advocacy or its functional equivalent.
4
c:J
CP
""'
It appears that the radio and television ads at issue meet the defmition of
s
"coordinated communications," but qualify for the safe harbor for candidate charitable
6
solicitations under II C.P'.R. § 109.21(g) because: (1) the ads do not promote, support,
7
attack, or oppose ("PASO'') Denham or any other Fedeml candidate(s); (2) RB, the
8
organization fur which the funds were solicited, is a 501(c)(3) tax-exempt organization as
9
described at 11 C.F.R. § 300.65; and (3) the fuods appeared to have been raised solely for
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10
charitable purposes, i.e., donations to RB, a S01(c)(3) organization to benefit the Gold
11
Star Project. Accordingly, the Commission found no reason to believe that Remembering
12
the Brave Foundation made a prohibited in-kind corporate contribution resulting from
13
coordinated communications in violation of2 U.S.C. § 441b(a).
14
With regard to the allegations that the advertisements were electioneering
15
communications, the Commission was equally divided on whether to find reason to
16
believe that Remembering the Brave l'oundation violated 2 U.S.C. §§ 434(f) and 441d,
17
by failing ta file disoloswe reperts for these comanmications aad failing to includo
18
proper disclaimers on the commnttir.ations. The Commission will issue one or more
19
Statements of Reasons setting forth the basis for its decision regarding these allegations.
20
Page 2ofll
II.
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2
A.
Factual Background
3
In 20 I 0, Jeff Denham was both a California State Senator, representing the 12th
4
District, and a candidate for the U.S. House of Representatives for California's 19th
s
Congressional District Denham did not run for re-election to the State Senate. Denham
6
won the Jmte 8, 2010, Republican prinuu·y and the November 2, 2010, general election.
7
In the two months before the Juoe 8 prilnary, Dt1nham' s State Committee mado
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transfers totaling $225,000 to RB, an entity organized under Section 50l(c)(3) of the
9
Internal Revenue Code (26 U.S.C. § SOJ(c)(3)). RB honors veterans killed in action, and
10
it organizes ceremonies and events to honor deceased servicemembers and their families.
11
See http://www.rememberingthebrave.org/. The transfers included a $25,000 donation
12
made on Aprill2, 2010, and three loans, which the Committee forgave: a $100,000 loan
13
made on Aprill9, 2010, a $50,000 loan made on May 12, 2010, and a $50,000 loan on
14
May 25,2010. 1
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Eleven days before the June 8 primary, a benefit concert was held at the
16
Chukchansi Gold Resort & Casino, in Coarsegold, California, which is in the 19th
11
Congressional Distri~st. Tiae C0.ncm1, sponsored by R.B und foaturing country snd western
18
music performer Phil Vassar, was advertised on radio, tolevisio:cL, aad the im.emct as a
19
benefit concert to rmse donations for Project Gold Star-a program administered by the
20
California Department of Veteran Affairs to raise private donations to pay the costs of a
21
specialized license plate program for the families of U.S. military personnel killed while
22
serving on active duty. Several of the advertisements promoting the concert featured
1
1
See http://cal-access.sos.ca.gov/PDFGen/OOfgen.prg?filingid= I521503&amendid=O and http://cal·
acceg.SQB.ca.MviPDFGCI!Lpdfgen.tg?filingidFI5680S0&1iJWdid=O .
Page 3 ofll
Denham. RB asked Denham to act as spokesperson and to appear in the ads because of
2
his "long-standing association with veterans' issues and the Gold Star Project
3
legislation." Response at 2. Denham, an Air Force veteran, was Chairman of the
4
Veterans' Affairs Committee while he was a California State Senator and was a coauthor
s
of Senate Bill 1455, the California Gold Star Family License Plate bill. Project Gold Star
6
was signed into law in September 2008.
Complainant in MUR 6289 provided a "Transcript of Coordinated Ads," which
7
8
contains a link to the television ad as posted on the internet at
9
htto://www.rememberthebrave.aOJ.-w'_, a transcript of the radio ad, and a list of seven TV
10
and radio stations that aired the ads. The ads aired in May 2010, up to the date of the
11
event.
12
13
ANNOUNCER: Join country superstar Phil Vassar for a one-night
Remember the Brave benefit concert, Friday May 28th Memorial weekend
at Chukchansi Gold Resort and Casino. Veteran Affairs Committee
Chairman Senator Jeff Denham.
14
IS
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26
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28
29
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JEFF DENHAM: As a veteran, I know the sacrifices of our servicemen
and women, and the sacrifice shared by their loved ones who pray for their
safe ret11rn. But some of t.'ltem don't make it, their families then become
Gold Star families. This event will raise funds for Gold Star families and
the Gold Star project as reoognition for their ultimate sacrifice. Please
join us at our benefit concert on May 28th Memorial weekend. If you can't
make it, go to Remember the Brave dot com to learn more and te m.ake
your tax-deductible donations. Remember, every dollar counts.
I'm Senator Jeff Denham.
ANNOUNCER: Join Phil Vassar and Jetl-Denham at the Remember the
Brave benefit concellt. For tickets go to Chttlcchansi Gold Resott and
Casino or visit Ticketmaster dot com.
32
Page4ofll
I
TRANSCRIPT OF TELEVISION AD Cas posted on the internet) :
2
3
4
http://www.rememberthebrave.com/
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I'll
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PAGE 1: At top of page is the logo of Remembering the Brave, followed
by Benefit Concert. Underneath it is "Phil Vassar" followed by the date
(May 281h) and location of the event (Chulo;b8Jl!)i Gold Resort & Casino),
a photo of a sample specialized license plate next to a statement:
"Proceeds benefit the California Department of Veteran Affairs Project
Gold Star, a link to the California Department of Veteran Affairs website,
and two buttons: "Buy T'ickets" and "Donate."
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23
24
25
26
27
28
29
30
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PAGE 2: (Vidco)(30 seconds):
• First elip: Phil Vassar live concert and a voiceover "Join country
superstar Phil Vassar for a one night benefit concert" while the
following w11rds flash on the screen "Remember the Bl·ave"
"Chukchansi Gold Resort and Casino" and "May 28th"..
• Seeond elip: Denham with 3 other individuals, two of wbom
appear to be veterans. Denham is standing in the middle of the
group while the words "Senator Jeff Denham, Chainnan, Veterans
Affai~' flash on the screen. Denham then says "As a veteran, I
know the sacrifices of our service men and wmnen. A sacrifice
shared by their loved ones who pray for tlieir safe return. But
some don't make it. Their fiunili~s theu become Gobi SIB.r
Families."
• Third elip: Phil Var.ser cuncert and a voiceove.r "Join Phil Vassar
at the Remmnber the Br1.ve b'ncfit ccncert. Visit Ticketmasten dot
com for your tickets today" while the words "May 28th"
"Chukchansi Gold Resort and Casino" and "Ticketmaster.com"
flash on the screen.
• Fourth etlp: same shot of Denham with the veterans and Denham
saying "If you can't make it, go to Rememberthebrave.com to
learn more" whilu the words "Re~uemberth.ebrave.com" flash on
the screen.
33
34
35
36
37
TRANSCRIPT OF INTKRNET AD:
•
38
39
40
41
42
43
44
45
46
•
Left side of sereen: Photo of Denham and the words "State Senator Jeff
Denham, Veterans' Affairs Committee" under the photo.
Right Si~e of screen: Message "As a veteran, I know the sacrifices of our
service men and women. A sacrifice shared by their loved ones who pray
for their safe return. But some don't make it. Their families then become
Gold Star Families. We're raising funds te make available
commemorative Ucense plates for these families as reeu~iiion for their
sacrifice. Please join us ai. our benefit concort on M:[ly 28111 • If you eau't
attend, I ·urge ycu to learn mare [link} about these fnmiliea and make a taxdeductible contribution [link]. Remember, every dollar ccmnts. Learn
PageS ofll
MUR 6362 (Remembering the Bnve)
More: California Department of Veteran Affairs- Project Gold Star
[link].
2
•
3
4
s
6
Bottom of screen: rememberthebrave.com is a project of Remembering
The Brave Foundation, a SOI(cX3) not-for-profd .organization. Fo~ mon:
information, please visit www.RememberingTheBrave.om. Contributions
and donations are tax deductible and directly benefit the Remembering the
Brave Foundation.
7
B
9
RB sponsored the benefit concert, the proceeds of which were donated to Project
10
Gold Star. Response at 2. RB also stated that it, not the Tribe, produced, aired, and paid
til
11
for thu mdio, television, and internet ads. Id. Documentation submitted witit the
~
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12
complaint in MUR 6362 Indicates thnt GBA and Alamance Adviso.cs h'lDdled the media
13
buy for the concert on behalf of its client, RB. See Emails between Genet Slagle (media
14
buyer with GBA) to Matt Rosenfeld (President/General Manager for KSEE-NBC24,
IS
KSEE Weather Plus, and LATVIa alternativo}, dated April29, 2010, regarding Gold
16
Star Families Proposal. It also appears that GBA and Alamance Advisors handled the
17
media buys for the Denham for Congress campaign in 20 l 0. 2 See Emails from Genet
18
Slagle to Donald Osika, dated January 29,2010. The response did not specify how much
19
was spent on the ads, but does not dispute the S100,000-$200,000 amount mentioned in
20
the complaint. It appears that RB raised a total of$105,440.24, about a thL.Id of the total
21
amount raised ($300,000) for Project Gold S1Br.3
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2
The Denham Fedenl Committee's 2010 April Quarterly Report reflects disbursements to GBA and to
Alamance for broadcast advertising.
3
The California Department of Veteran Af&irs announced that Project Gold Star had met its fundraising
goal. See http:Uwww.cdva.ca.gov/newhome.aspx. RB posted a letter from the Department of Veteran
Affairs thanking it for its $105,440.24 donation in support of Project Gold Star. See
httc://www.rememberiHathebnve.org/pews/. On the letter is a Umdwritten note, ihdiclting tblit this wu
the siagle largest donation received. /d. In a news release announcing that the Gold Star Project had raised
$300,000 and that the Gold Star plate initiative had passed, RB acknowledges that it "together with Senator
Denham, his supporters, and othftl' conlribu~ars ... raised approximately one-third of the fiends :aeeiled to
get the license plate initiative passed." /d.
Page6 of'11
Factual and Lega1 Analysis
RB acknowledged that the ads aired during May 2010, up until the May 28th date
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of the benefit concert, which was within thirty (30) days of the California Congressional
3
primary election in which Denham appeared as a candidate. ld. at 4. However, the
4
response argued the concert was scheduled for May 28th because it was close to
s
Memorial Day, an appropriate date on which to hold an event related to veteran/military
6
issues artd causes, and net because May 28 was close tO the primary. Id. at ts. The
7
res.p!HIIe aiao stated that the ads aired uver a geograpbi,:: area arouo:d. the Casino wh(ue
8
the concert was heJd and im:lucmd Denham's State Senate distriot, the 19th Congressior...1l
9
District, and areas beyond. ld. at 4. Fioally, the response aoknowledged that the ads
0
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could be received by more than 50,000 people within the 19th Congressional District Id.
II
B.
12
13
The Act subjects contributions and expenditures to certain restrictions,
14
limitations, and reporting requirements. See generally 2 U.S.C. §§ 441a, 434b.
IS
Contributions can be monetary or "in-kind." In-kind contributions include an
16
expenditure made by any person "in cooperation, consultation, or concert, with, or at the
17
request or suggestion of, a candidate, his authorized political committees, or tbeir
18
agents," and are subject to the S81n1ct restrictions and reportblJ 111qDireltlents as otiu:r
19
contribut.ieas. 2 U.S.C. § 44la(a)(7)(A) aad (B)(i); 11 C.F.R. §§ 100.52(d)(l), 109.21(b).
20
The Commission's regulatio.us at 11 C.F.R. § 109.21 provide that coordinated
21
communications constitute in-kind contributions from the party paying for such
22
communications to the candidate, the candidate's authorized committee, or the political
23
party committee which coordinates the communication. A corporation is prohibited :from
24
making any contribution in connection with a Federal election. 2 U.S.C. § 441b(a).
Page 7 ofll
A communication is coordinated if it is paid for by someone other than the
2
candidate or the candidate's authorized committee (or the political party committee,
3
where applicable); it satisfies one .or more content standards; and it satisfies one or more
4
conduct standards. All.three prongs must be met for a communication to be considered
s
coordinated. 11 C.F.R. § 109.21. The Commission's regulations exempt from the
6
defiuition. of"coordinated communication" a public communication in which a Federal
7
caadidatc solicits ftmds for orguizations u puanitted by 11 C.F.R. § 360.65, provided
st(l
8
that the public conmwnication doea not PASO the solicitii1g candidate or that candidate's
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opponent(s) in the election. See 11 C.F.R § 109.2l(g)(2). Federal candidates and
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officeholders may solicit funds for tax-exempt organizations as described in 26 U.S.C.
11
§ 501(c). 11 C.F.R. § 300.65.
Pl'lll
The radio and television ads at issue meet all three prongs of the coordination test.
12
13
The payment prong is satisfied because there is infonnation that the ads were paid for by
14
RB, someone other thaii the candidate, his authorized committee, or political party
IS
committee. 11 C.F.R. § 109.21(a)(l). The content prong is satisfied because the
16
communicatio11s qualify as public communications which "refer[ ] to a clearly identified
17
House or Senate candidate that [are] publicly distributed Oil otherwise publicly
18
disseminated in the clearly identified candidate's jurisdiction 90 days or fewcrr. before the
19
... primary or preference election.4 11 C.P.R.§ 109.21(c)(4)(i). The content prong is also
20
satisfied because the ads meet the definition of electioneering communications. 11 C.F .R.
21
§ 109.21(c)(l). The ads are electioneering communications because they were publicly
4
A poblic communication includes broadcast commua.ications. 2 U.S.C. § 431 (22). It does not include
internet communications, except for communications placed for a fee on another's Web site. 11 C.P.R.
§ 100.26. "Clearly identified" means the candidate's name or photograph appears, or "the identity of the
candidate is otherwise appanmt tlw,,l&h an Llll:llmbiLID.IliUS refamce." 2 U.S.C. § 431(11); lit C.F.R.
§ 100.17.
Page 8 oftl
distributed on radio and television, refer to a clearly identified candidate for Federal
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2
office, were publicly distributed within 30 days before the primary election, and were
3
targeted to the relevant electorate (the ads could be received by 50,000 or more persons in
4
the district that Denham sought to represent (19th Congressional District)). 5 11 C.F.R.
s
§ 100.29.
The conduct prong is satisfied if a candidate or candidate's committee assents to a
6
7
request or suggestion th1:1lt the public communication be created, produued, or distributed,
8
and that request or suggestion came from the persQD paying for the communication.
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9
11 C.P.R.§ 109.21(d)(1)(ii). The response acknowledged that RB requested that
'""'
10
Denham act as the spokesperson and to appear in the ads, which he did. Response at 2.
11
Because Denham is an agent of his Committee, his actions are also imputed to his
12
Committee. 11 C.F.R. §§ 109.3{b)(1) and (2); 109.2l(a), (d)(1)(ii).
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14
IS
11 C.F.R. § 109.21(g){2). This provision exempts from the definition of"coordinated
16
communications" public communications in which a Federal candidate solicits funds for
17
certain tax-exempt organizations as permitted by II C.F.R. § 300.65, provided that the
18
public communications do not PASO the soliciting candidate or that candidate's
19
opponents in that election. In this matter, Denham, a Federal candidate, appeared and/or
20
spoke in broadcast radio and television ads to solicit funds for RB, a 501(c)(3)
21
organization, in support of Project Gold Star. The available infonnation indicates that
22
RB is an organization described in 11 C.F.R. § 300.65, and the solicitations for donations
5
RB's intemet ads are not included in this analysis because they are exempt from the defmition of
electioneering communications. II C.F.R. § 100.29(cXI).
Page9ofll
Factual and Legal Analysis .
to RB complied with the requirements of 11 C.F.R. § 300.65 because they appeared to
2
have been for the purpose of raising funds for RB in support of Project Gold Star. Thus,
3
it appears that these communications are exempt from the definition of "coordinated
4
communications" if they did not promote or support Denham and did not attack or
s
oppose his opponent.
It does not appear that the ads at issue promote or support Denham or attack or
6
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,.,.,
7
oppose any of his oppon1ents. Alibough ·~ Commission has not define1i the tenn
'a)""'
8
''promote, support, attack, or oppose," it has provided some guidance in advisory
9
opinions as to what might constitute PASO of a oandidate. See AO 2009-26 (Coulson)
til
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10
(concluding that a state ~fticeholder could use non-federal funds to pay for
""'
ll
communication that did not PASO a candidate for Federal office because the
12
communication was solely part of the State officeholder's duties, did not solicit
13
donations, nor did it expressly advocate the candidate's election or the defeat of her
14
opponents); see also AOs 2007-34 (Jackson), 2007-21 (Holt), 2006-10 {Echostar) and
15
2003-25 (Weinzapfel) (hoiding that the mere identification of an individual who is a
16
Federal candidate does not, in itself, promote, support, attack or oppose that candidate).
The only cleuly idenliiied carJdidate in the ads is Denham, who is idmrtified bS a
17
18
veteran, a Stare S4mator, and as Chabman of the Veterans' Affairs Committee, not as a
19
candidate for Federal office. The ads do not contain express advocacy or its functional
20
equivalent, and do not contain references to any election or political party. Given the
21
abov~,
22
23
it does not appear that the ads PASO'd Denham or any of his opponents.
Neither the timing of the benefit concert nor the involvement of the Denham
campaign consultants/media buyer/supporters in the planning of the benefit concert and
Page lOofll
ads would appear to prevent the application of the safe harbor for charitable solicitations.
2
See Explanation and Justification for Final Rules for Safe Harbor for Endorsements and
3
Solicitations by Federal Candidates (II C.F.R. § 109.21(g)) 71 Fed. Reg. 33201-33202
4
(Jun. 8, 2006) (stating that the "safe harbor applies regardless of the timing and proximity
s
to an election ... of the solicitation and [w]hen the safe harbor is applicable, the ...
6
soliciting ccndidate (and the candidate's agents) may be involved in the development of
7
the communication, in determining the content af the communication, as well as
8
determining the means or .mode and tit:ning or frequency of the communication."'); See
9
also, AO 2006-10 (Echostar).
10
Based on the above, the ads at issue were not coordinated communications.
11
Accordingly, the Commission found no reason to believe that Remembering the Brave
12
Foundation made a prohibited in-kind corporate contribution resulting from coordinated
13
communications in violation of2 U.S.C. § 44lb(a).
Page 11 of 11
AUG 10 2011
CERTIFIED MAIL
RE'IURN RECEIPf REQUESTED
Sean Fox
Falls .Church, VA 22042
RE:
MURs 6289, 6362
Dear Mr. Fox:
The Federal Election Commission has considered the allegations contained in the
complaint, designated as MUR 6289, you submitted on May 12, 2010. The Commission
merged MUR 6289 into MUR 6362.
The Commlssi11Jn foWld, on the basis 10f tho information provided in the complnint
and infotml8.tion provided by respondents, that there is: no reason to believe Jeff Denham
violated 2 U.S.C. § 441 b(a); no reason to believe Denham for Congress and David Bauer,
in his official capacity as tm&lurer. violated 2 U.S.C. §§ 434(b) and 441b(a); no n-.ason to
believe Remembering the Brave Foundation violated 2 U.S.C. § 441 b(a); and no reason
to believe that the ·PicaYlJlle Rancheria of the Chukchansi Indians/ChukChansi Tribal
Government violated any provisions of the Federal Election Campaign Act of 1971, as
amended, ("the Act'') or Commission regulations in connection with the allegations in
this matte:·. The Conunission considered other allegations contained in the complaint, but
was equally divided on whether to fmd reason to bcdie"e that Remembering tke Bruve
Foundation violated 2 U.S.C. §§ 434(f) and 441d. Accordingly, on August 2, 2011, tho
Cmlllllission closed the file in this mattm
Documents trelated to the case will be placed on the pnblic record wit.'Un 30 days.
See Statement of PoJ.icy Regarding Disclosure of Closed Enforcement and Related Files,
General Counsel's Reports on the Public Record, 74 Fed. Reg. 66132 (Dec. 14, 2009).
The Factual and Legal Analyses, which explain the Commission's no reason to believe
fmdings, are enclosed for your information. Otte or more Staterncnts of Reasons
providing a basis for the Commission's decision regarding the other allegations will
follow.
Sean Fox
MURs 6289, 6362
Page2
The Act allows a complainant to seek judicial review of the Commission's
dismissal ofthis action. See 2 U.S.C. § 437g(a)(8). If you have any questions, please
contact Dominique Dillenseger, the attorney assigned to this matter at (202) 694-1650.
Sincerely,
<t))d;G))-Peter G. Blumberg
Enclosures
Factual and Legal Analyses
1
2
3
4
5
tf1
6
7
8
9
10
RESPONDENTS:
Jeff Denham
MUR:6362
Denham for Congress
and David Bauer, in his official capacity as treasurer
I.
INTRODUCTION
11"'"'11
~
11
This matter was gaaerated by two complaints filed with the Federal Election Commission
M
CP
12
("the Comminsion''), one by Sean Fox and another by Tal Cloud and Mike Der Maoouel, Jr.,
q'
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13
which were designated as MURs 6289 and 6362, respectively. See 2 U.S.C.
14
complaints concern ads broadcast by Remembering the Brave Foundation ("RB''), a section
15
50l(c)(3) charitable organization, to promote a May 28,2010, benefit concert in support of a
16
program in California to create specialized license plates for families of military personnel killed
17
on active duty. The ads featured Jeff Denham, a California State Senator and a candidate in the
18
primary election for the 19~ Congressional Disttict in California, and were disseminated within
19
30 days of the California Congressional primary election on June 8, 2010. The concert was held
20
at the Chukchansi Gold Resort & Casino.
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i 437(g)(a)(l). The
The complaints in tb:~se two mattcm a1volve allegations that the tndio and television
22
advertisements promoting the concert were electioneering communications that were coordinated
23
with Denham for Congress and David Bauer. in his official capacity as treasuNr ("Federal
24
Committee') and were not disclosed to the Federal Election Commission ("the Commission"), in
25
violation of the Federal Election Campaign Act of 1971, as amended (the "Act''). Complainants
26
in MUR 6362 also alleged that the advertisements were financed from funds Denham transferred
27
from Jeff Denham for State Senate ("State Committee") to RB.
Page 1 ofll
1
Respondents stated that RB, not the Tribe, paid for the advertisements and asserted that
'2
no violations of the Act occurred because the advertisements do not contain express advocacy or
3
its functional equivalent.
4
It appears that the radio and television ads at issue meet the definition of "coordinated
5
communications," but qualify for the safe harbor for candidate charitable solicitations under
6
11 C.RR. § 109.21(g) because: (1) the ads do not pr01note, support, attack, or oppose \PASO")
7
Denham or any other Federal candidatc(s); (2) RB, the organization for whK:h the funds were
8
solicited, is a501(c)(3) tax-exc.Yilpt organization as described at 1I C.F.R. § 300.65; and (3) the
Q
9
funds appeared to have been raised solely for charitable purposes, i.e., donations to RB, a
"""
10
50l(c)(3) organization, to benefit the Gold Star Project. Accordingly, the Commission found no
11
reason to believe that Jeff Denham and Denham for Congress and David Bauer, in his official
12
capacity as treasurer, accepted and received prohibited in-kind corporate contributions resulting
13
from coordinated communications in violation of2 U.S.C. § 44lb(a); and no reason to believe
14
that Denham for Congress and David Bauer, in his official capacity as treasurer, failed to report
15
such contributions in violation of2 U.S.C. § 434(b).
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The Commissio11 considerod the allegations that ~e advertisements wure financed from
17
funds Denham transferred from his State Committee to RB, but was equally divided on whether
18
to find reason to believe that Jeff Denham and Denham for Congre&t~ and David Bauer, in his
19
official capacity as Treasurer, violated 2 U.S.C. § 44li(e)(l){A) and II C.F.R. § 110.3{d) in
20
connection with the transfer of non-federal funds to fmance electioneering communications.
21
The Commission will issue one or more Statements of Reasons setting forth the basis for the
22
decision as to these allegations.
23
Page 2 of 11
FactuaJ and Legal Analysis
1
II.
2
3
A.
Faetual Baekground
4
5
In 2010, Jeff Denham was both a California State Senator, representing the 121h District,
6
and a candidate for the U.S. House ofRepresentatives for California's 19'h Congressional
7
District. Denham did not run for re-election to the State Senate. Denham won the June 8, 2010,
.....
8
Republicmt pninary and the November 2, 2010, general election.
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In the two months before the JWie 8 primary, Denham's fdate Committee made transfers
10
totaling $225,000 to RB, an entity organized under Section 501(c)(3) of the Internal Revenue
11
Code (26 U.S.C. § 501(c)(3)). RB honors veterans killed in action, and it organizes ceremonies
12
and events to honor deceased servicemembers and their families. See
13
http://www.rememberingthebrave.org. The transfers included a $25,000 donation made on April
14
12,2010, and three loans, which the Committee forgave: a $100,000 loan made on Aprill9,
15
2010, a $50,000 loan made on May 12, 2010, and a $50,000 loan on May 25, 20 I 0. 1
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17
Resort & Casino, in Coarsegold, California, which is in the 191h Congressional District. The
18
concert, sponsored by RB and featuring country and western music performer PHil Vassar, was
19
advertised on radio, television, and the internet as a benefit ccrw.ort to raise donations for Project
20
Gold Star-a program administered by the California Department of Veteran Affairs to raise
21
private donations to pay the costs of a specialized license plate program for the families of U.S.
22
military personnel killed while serving on active duty. Several of the advertisements promoting
23
the concert featured Denham. RB asked Denham to act as spokesperson and to appear in the ads
1
See htto:l/cal-access.ms.ca.&ov/PDFGenlpdfgeo,prg?tilingid=-1521 583&811lel'tdfd=O tmd htto://calaccess.sgs.ca.gov/PDFGenlpdfszen.pm?fiHngid= l56805o&amendid=O .
Page 3 ofll
factual and Legal Analysis
tD
11""'1
1
because of his "long-standing association with veterans' issues and the Gold Star Project
2
legislation." Denham Response at 2. Denham, an Air Force veteran, was Chairman of the
3
Veterans' Affairs Committee while he was a California State Senator and was a coauthor of
4
Senate Bill 1455, the California Gold Star Family License Plate bill. Project Gold Star was
5
signed into law in September 2008.
6
Complainant in MUR 6289 provided a "Transcript of Coordinated Ads," which contains
tfl
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7
a link to the television ad as posted on the internet at http://www.rememberthebrave.com/, a
8
transcript of tile radio ad, and a list of seven TV and radio stations that aired the ads. The ads
~
9
aired in May 2010, up to the date of the event.
P'l'l
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11
12
13
14
15
16
17
18
19
20
21
22
ANNOUNCER: Join country superstar Phil Vassar for a one-night Remember
the Brave benefit concert, Friday May 28111 Memorial weekend at Chukchansi
Gold Resort and Casino. Veteran Affairs Committee Chainnan Senator Jeff
Denham.
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JEFF DENHAM: As a veteran, I know the sacrifices of our servicemen and
women. and the sacrifice shared by their loved ones who pray for their safe return.
But some of them don't make it, their families then become Gold Star families.
This event will raise funds for Gold Star families and the Gold Star project as
recognition for their ultimate sacrifice. Please join us at our benefit concert on
May 28111 Memorial weekend. If you can't 1nake it, go to Remember the Brave
dot com to loatt1 more and to make yc~ur boc-deductible donations. Rem.dmber,
every dollar counts.
24
25
26
I'm Senator Jeff DeDham.
27
28
29
30
ANNOUNCER: Join Phil Vassar and Jeff Denham at the Remember the Brave
benefit concert. For tickets go to Chuk.chansi Gold Resort and Casino or visit
Ticketmaster dot com.
Page 4 ofll
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4
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6
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8
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10
http://www.rem1mberthebrave.com/
PAGE 1: At top of page is the logo of Remembering the Brave, followed by
Benefit Concert. Underneath it is "Phil Vasser" followed by the date (May 28th)
and location of the event (Chukchansi Gold ~sort & Casino), a photo of a
sample specialized license plate next to a statement: "Proceeds benefit the
California Department of Veteran Affairs Project Gold Star, a link to the
California Department of Veteran Affairs website, and two buttons: "1Juy
Tickets" and "Donate.''
11
12
13
14
IS
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21
22
23
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27
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29
30
31
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34
35
36
37
38
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40
41
42
43
44
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PAGE 2: (Video)(30 seoomls):
• First elip: Phil Vassar live concert and a voiceover "Join country
superstar Phil Vassar for a nne night benefit concert" while the following
words flash on the ac~een "Remember the Brave" "Ch.ukchansi Gold
Resort and Casino" and "May 28th".
• Seeond elip: Denham with 3 other individuals, two of whom appear to be
veterans. Denham is standing in the middle of the group while the words
"Senator Jeff Denham, Chairman, Veterans Affairs" flash on the screen.
Denhmn then says "As a veteraft, I know the sacrifices of our service men
and women. A sacrifice shared by their loved ones who pray for their slfe
return. But somr: don't mnke it. Their flmiliea tlmn become Gobi Star
Families."
• Third clip: Phil Vassar concert and a :voiceov.er "Join Phil Vassar at the
Remember the Brave benefit concert. Visit Ticketmaster &>t com for your
tickets today" while the words ''May 281h" "Chukchansi Gold Resort and
Casino" and "Ticketmaster.com" flash on the screen.
• Fourth elip: same shot of Denham with the veterans and Denham saying
"If you can't make it, go to Rememberthebrave.com to learn more" while
the words "Rememberthebrave.com" flash on the screen.
TRANSCRIPT OF INTERNET AD:
•
Left •Ide of 80necen: Phok1 of Denham aud the words "State Sennttlr Jeff Denham,
V etemns' Affairs Committee" Wlder the photo.
• Right Side of sereen: Message "As a veteran, I know the sacrifices of our
service men and women. A sacrifice shared by their loved ones who pray for
their safe return. BUt some don't make it. Their ~ilies then become Gold Star
Families. We're raising funds to make available commemorative license plates
for these families as recognition for their sacrifice. Please join us at our benefit
concert on May 28th. If you can't attend, I urge you to learn more [Unk] about
these families and make a tax-deductible contribution [link]. Remumber, every
dollm oom1ts. Learn More: Califbmia Deportmunt of Veteran Affairs- Projut.t
Gold Star [llak].
• Bottom of aoreen: r·omo.mbertheluave.cem. is a proj•ct of Remornberiag The
Brave Fowtdation, a 501(c)(3) not-for-profit organization. For mnre information,
PageS of 11
l
2
3
4
RB sponsored the benefit concert, the proceeds of which were donated to Project Gold
5
Star. Denham Response at 2. It also appears that RB, not the Tribe, produced, aired, and paid
6
for the radio, television, and internet ads. ld. Documentation submitted with the compiaint in
7
MUR 6362 indicates that Gilliard, Blanning & Associates ("GBA"} and Alamance Advisors
8
handled the media buy for tha concert on behalf of its clicat, RB. See Emails between Genet
9
Slagle (media buyer with GBA) to Matt Rosenfeld (Presideut/Gensral Manager for KSEE-
please visit www.RememberingTheBrave.org. Contributions and donations are
tax deductible and directly benefit tho Remembering the Brave Foundatiaa.
00
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NBC24, KSEE Weather Plus, and LATVIa altemativo), dated April29, 2010, regarding Gold
11
Star Families Proposal. It also appears that GBA and Alamance Advisors handled the media
12
buys for the Denham for Congress campaign in 2010.2 See Emails from Genet Slagle to Donald
13
Osika, dated January 29, 2010. The Denham response did not specify how much was spent on
14
the ads, but does not dispute the $100,000-$200,000 amount mentioned in the complaint. It
15
appears that RB raised a total of$105,440.24, about a third of the total amount raised ($300,000)
16
for Project Gold Star.:J
.-1
17
The response indicates that the ads aired during May 2010, up WJ.til the May 28th date of
18
the benefit concert, which was within thirty (30) days of the California Congressional primary
19
election in which Denham appearod as a candidate. /d. at 4. However, the response argued the
2
The Denham Federal Committee's 2010 April Quarterly Report reflects disbursements to GBA and to Alamance
for broadcast edvertislng.
3
The California Department of Veteran Affairs announced that Project Gold Star had met its fundraising goal.
See htm://www.cdva.ca.gov/newhome.aspx. RB posted a letter from the Department of Veteran Affairs thanking it
for its $105,440.24 donation in support of Project Gold Star. See htm://www.rememberingthebrave.org/newl/. On
the letter is a handwritten note, indicating tbat this was the singk largest daation IIIE:eivcd. Id. h1 a aews rele•'
arumnnoi111 dua die Goltl StJr Project had raised $300,000 and that the Gold Star plate initiative had passed, RB
acknowledges that it ''together with Senator Denham, his supporters, and other contributors ..• raised approximately
one-third of the mnds needed to get l:ba licease plate initiative passed." ld.
Page 6 ofll
1
concert was scheduled for May 281h because it was close to Memorial Day, an appropriate date
2
on which to hold an event related to veteran/military issues and causes, and not because May 28
3
was close to the primary. /d. at 6. The response also stated that the ads aired over a geographic
4
area around the Casino where the concert was held and included Denham's State Senate district,
5
the 191h Congressional District, and areas beyond. ld. at 4. Finally, the response acknowledged
6
that the ads could bo 1~eived by moro than 50,000 peeple within the 19'-' Congressional District.
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/d.
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10
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reporting requirements. See generally 2 U.S.C. §§ 44la, 434b. Contributions can be monetary
12
or "in-kind." In-kind contributions include an expenditure made by any person "in cooperation,
13
consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized
14
political committees, or their agents," and are subject to the same restrictions and reporting
15
16
§§ 100.52(d)(l), 109.2l(b). The Commission's regulations at 11 C.F.R. § 109.21 provide that
17
coordinated comrnaRlcations constitute in-kind contributions from the party payiag for such
18
communicationa to the candidate, the caadidate's authorized committee, or the political party
19
committee which coordinstes the comm.unir.ation. A corporation is prohibited from making any
20
contribution in connection with a Federal election. 2 U.S. C.§ 441b(a).
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B.
The Act subjects contributions and expendittttes to certain restrictions, limitations, and
A communication is coordinated if it is paid for by someone other than the candidate or
22
23
satisfies one or more content standards; and it satisfies one or more conduct standards. All three
24
prongs must be met for a communication to be considered coordinated. 11 C.F.R. § 109.21. The
· Page 7 ofll
0
1
Commission's regulations exempt from the definition of"coordinated communication" a public
2
communication in which a Federal candidate solicits funds for organizations as permitted by
3
11 C.F.R. § 300.65, provided that the public communication does not PASO the soliciting
4
candidate or that candidate's opponent(s) in the election. See 11 C.F.R § 109.21(8)(2). Federal
5
candidates and officeholders may solicit funds for tax-exempt organizations as described in
6
26 U.S.C. § SOI{c). 11 C.F.R. § 300.65.
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The radio and television ads at issue meet all three prongs of the coordination test. The
7
8
payment pnmg is satisfied because there is information that the ads were paid for by RB,
9
someone other than the candidate, his authorized committee,~ or political party committee.
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11 C.F .R. § 109.21(a)(l ). The content prong is satisfied because the communications qualify as
11
public communications which "refer[ ] to a clearly identified House or Senate candidate that
12
[are] publicly distributed or otherwise publicly disseminated in the clearly identified candidate's
13
jurisdiction 90 days or fewer before the ... primary or preference election. 4 11 C.F.R.
14
§ l 09.21 (c)(4)(i). The content prong is also satisfied because the ads meet the defmition of
15
electioneering communications. 11 C.F.R. § 109.21(c)(l). The ads are electioneering
16
communications because they were publicly distributed on radie and television, refer to a clearly
17
idantified candidatn for Fedeml office, were publicly distributed within 30 days before the
18
primary election, and were targeted to the relevant electorate (the ads could be received by
4
A public communication includes broadcast communications. 2 U.S.C. § 431(22). It does not include internet
communications, except for communications placed for a fee on another's Web site. 11 C.F.R. § 100.26. ''Clearly
identified" means the candidate's name or photograph appears, or ccth.e identity of the candidate is otherwise
apparent through an unambiguous reference." 2 U.S.C. § 431{18); 11 C.F.R. § 100.17.
Page 8 ofll
50,000 or more persons in the district that Denham sought to represent (19th Congressional
2
District)). 5 11 C.F.R. § 100.29.
3
The conduct prong is satisfied if a candidate or candidate's committee assents to a .request
4
or suggestion that the public communication be created, produced, or distributed, and that
5
request or suggestion came from the person paying for the communication. 11 C.F.R.
6
§ 109.21{d)(l)(ii). The response acknowledged that RB requested that Denham act as the
7
spokesperson and tn appear in the ads, which he ~did. Denham Response at 2. Because Denham
"'
8
is an agent of his Committee, his actions are alsol imputed to his Committee. 11 C_F.R.
(!)
9
§§ 109.3{b){1), (2); 109.21{a), {d)(l){ii).
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11
12
11 C.F.R. § 109.21{gX2). This provision exempts from the definition of"coordinated
13
communications" public communications in which a Federal candidate solicits funds for certain
14
tax-exempt organizations as permitted by 11 C.F.R. § 300.65, provided that the public
15
communications do not PASO the soHciting candidate or that candidate's opponents in that
16
electioa.. In this matter, Denlumt, a Fedezal candidate, appeared and/or spoke lD broadcast radio
17
and television ada to mlicit funds for RB, 1& 501 {c){3) orgardzation, in support o£ Project Gold
18
Star. The available infQliiDation indicates that RB is an organization described in 11 C.P.R.
19
§ 300.65, and the solicitations for donations to RB complied with the requirements of 11 C.F .R.
20
§ 300.65 because they appeared to have been for the purpose of raising funds for RB in support
21
of Project Gold Star. Thus, it appears that these communications are exempt from the definition
5
RB's internet ad is not included in this analysis because it is exempt from the defmition of electioneering
11 C.F.R. § 100.29(c)(l).
~ommuni~atioi!S.
Page9ofll
1
of"coordinated communications" if they did not promote or support Denham and did not attack
2
or oppose his opponent.
3
It does not appear that the ads at issue promote or support Denham or attack or oppose
4
any of his opponents. Although the Commission has not defined the tenn "promote, support,
s
attack, or oppose," it has pr~vided some guidance in advisory opinions as to what might
N
N
6
constitute PASO of a candidate. See 1\.0 2009-26 (Coulson) (conclUding that a state officeholder
"-1
7
could use non-federal fuwis ta1 pay for communication that did not PASO a caadida1c for Fodcml
8
office becau.•e the co:mmunication was solely part offhe State officeholder's duties, did not~
9
solicit donations, nor did it expressly advocate the candidate's election or the defeet of her
rn
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opponents); see also AOs 2007-34 (Jackson), 2007-21 (Holt), 2006-10 (Echostar) and 2003-25
11
(Weinzapfel) (holding that the mere identification of an individual who is a Federal candidate
12
does not, in itself, promote, support, attack or oppose that candidate).
13
The only clearly identified candidate in the ads is Denham, who is identified as a veteran,
14
a State Senator, and as Chairman of the Veterans' Affairs Committee, not as a candidate for
15
Federal office. The ads do not contain express advocacy or its functional equivalent, and do not
16
contain referonces to any election or political party. Given the above, it does not appoar that the
17
ads PASO'd Denham or any of his ctpponents.
18
Neither the timing ofth.e benefit concert nar the involvement of the Denham campaign
19
consultants/media buyer/supporters in the planning of the benefit concert and ads would appear
20
to prevent the application of the safe harbor for charitable solicitations. See Explanation and
21
Justification for Final Rules for Safe Harbor for Endorsements and Solicitations by Federal
22
Candidates (11 C.F.R. § 109.2l(g)) 71 Fed. Reg. 33201-33202 (Jun. 8, 2006) (stating that the
23
"safe harbor applies regardless of the timing and proximity to an election ... of the solicitation
Page 10 of11
and [w]hen the safe harbor is applicable, the ... soliciting candidate (and the candidate's agents)
2
may be involved in the development of the communication, in determining the content of the
3
communication, as well as determining the means or mode and timing or frequency of the
4
communication.''); See also, AO 2006-1 0 (Echostar).
s
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Based on the above, the ads at issue were not coordinated communications. Accordingly,
6
the Commission found no reasen to believe that Jeff Denham and Dcmham for Congress and
.....
7
David Bauer, in his official capacity as treasurer, accepted and received po>hibi'cd in-kind
tr1
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corporare contributions resulting from coordinated communicatiaos in violation nf2 U.S.C.
9
§ 441 b(a); and no reason to believe. that Denham for Congress and David Bauer, in his official
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capacity as treasurer, failed to report such contributions in violation of2 U.S.C. § 434(b).
Page 11 ofll
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3
4
s
RESPONDENT:
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7
I.
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MUR: 6362
INTRODUCTION
Commission (''the Commission''), one by Sean Fox and &!"'lother by Tal Cloud and Mike
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Der MBDDuel,. Jr., which wan: designated as MURs 6289 and 6362, respectively. See
(!)
11
2 U.S.C. § 437(g)(a)(l). The complaints concern ads broadcast by Remembering the
12
Brave Foundation ("RB''), a section SOI(cX3) charitable organization, tD ~mote a ~y
'!l"i
13
28, 2010, benefit concert in support of a program in California to create specialized
"""'
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license plates for families of military personnel killed on active duty. The ads featured
IS
Jeff Denham, a California State Senator and a candidate in the primary election for the
16
19th Congressional District in California, and were disseminated within 30 days of the
17
California Congressional primary election on June 8, 2010. The concert was held at the
18
Chukchansi Gold Resort & Casino.
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c.)
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The complaints in the!Se two matters involve allegations that the radio and
20
television adveatisements promoting the concert were electioneering communications that
21
were coordinated with Denham for Congress and David Bauer, in his official capacity as
22
treasurer, ("Federal Committee'') and were not disclosed to the Federal Election
23
Commission (''the Commission"), in violation of the Federal Election Campaign Act of
24
1971, as amended (the "Act"). Complainants in MUR 6362 also alleged that the
25
advertisements were financed from funds Denham transferred from Jeff Denham for
26
State Senate ("State Committee'') to RB.
Page 1 ofll
RB acknowledged that it paid for the advertisements and asserted that no
2
violations of the Act occurred because the advertisements do not contain express
3
advocacy or its functional equivalent
4
It appears that the radio and television ads at issue meet the definition of
s
"coordinated communications," but qualify for the safe harbor for candidate charitable
6
solicitations under 11 C.F.R. § 109.2l(g) because: (1) the ads do not promote, support,
....
7
attack, OI oppoae ("PASO'') Denham or any other Federal candidate(s); (2) RB, the
"'
8
organization fer which the funds were solicited, is a 561(c)(3) tax-exempt organization as
9
described at 11 C.F.R. § 300.6S; and (3) the funds appeared to have been raised solely for
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charitable purposes, i.e., donations to RB, a 501(c)(3) organization to benefit the Gold
11
Star Project. Accordingly, the Commission found no reason to believe that Remembering
12
the Brave Foundation made a prohibited in-kind corporate contribution resulting from
13
coordinated communications in violation of2 U.S.C. § 44lb(a).
......
14
With regard to the allegations that the advertisements were electioneerin$
IS
communications, the Commission was equally divided on whether to find reason to
16
believe that Remembering tlle Brave FoundatiOft violated 2 U.S.C. §§ 434(f) and 441d,
17
by failing to file disclosure reports for these communications and failing to includo
18
proper diselaimers .on the communications. The Conrmissinn will issue one at more
19
Statements of Reasons setting forth the basis for its decision regarding these allegations.
20
Page2 of 11
II.
f..O
(\,1
2
A.
Factual Background
3
_In 2010, Jeff Denham was both a California State Senator, representing the 12th
4
District, and a candidate for the U.S. House of Representatives for California's 19th
s
Congressional District. Denham did not run for re-election to the State Senate. Denham
6
won the June 8, 2010, Republican primary and the November 2, 2010, general election.
7
In ·the two months befnre the Juae 8 primary, Denham's State Cmrunittee IIHtllo
til
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8
transfers totaling $225,000 to RB, an entity organized under Sectian 50l(c)(3) of the
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Internal Revenue Code (26 U.S.C. § 501(c)(3)). RB honors vetel'allS killed inaction, and
0
10
"
it orpnizes ceremonies and events to honor deceased servicemembers and their families.
11
See http://www.rememberingtbebrave.org/. The transfers included a $25,000 donation
12
made on April 12, 2010, and three loans, which the Committee forgave: a $100,000 loan
13
made on April19, 2010, a $50,000 loan made on May 12, 2010, and a $50,000 loan on
14
May 25,2010. 1
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Eleven days before the June 8 primary, a benefit concert was held at the
IS
16
Chukchansi Gold Resort & Casino, in Coarsegold, California, which is in the 19th
17
Congressional District. The concert, spo:osored by RB and featuring country and western
18
music perfonner Phil Vassar, was advertised on radio, tolevision, and the i:nten1~:t as a
19
benefit concert to raise donations for Project Gold Star-a program administered by the
20
California Department of Veteran Affairs to raise private donations to pay the costs of a
21
specialized license plate program for the families of U.S. military personnel killed while
22
serving on active duty. Several of the advertisements promoting the concert featured
1
See hqp://cal--access.sos.ca.gov/PDFGenlpdfgen.prg?filingid= 1S21503&amendid=O and http:l/calacccss.sos.ca.pDviPDFGenlpdfimn.DI2'lfilimJdd=lSCS805D&mneraJid=O.
Pagel of II
Denham. RB asked Denham to act as spokesperson and to appear in the ads because of
"
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2
his "long-standing association with veterans' issues and the Gold Star Project
3
legislation." Response at 2. Denham, an Air Force veteran, was Chainnan of the
4
Veterans' Affairs Committee while he was a California State Senator and was a coauthor
s
of Senate Bill14SS, the California Gold Star Family License Plate bifi. Project Gold Star
6
was sigfted into law in September 2008.
Complafnant in MUR 6289 provided a "Transcript of Coordinated Ads," which
7
8
contains a link to the television ad as pasted on the internet at
9
http:/lwww.rememberthebr&Y,c.com/, a transcript of the radio ad, and a list of seven TV
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and radio stations that aired the ads. The ads aired in May 2010, up to the date of the
11
event.
......
12
13
14
1
16
ANNOUNCER: Join country superstar Phil Vassar for a one-night
s
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24
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Remember the Brave benefit concert, Friday May 28th Memorial weekend
at Chukchansi Gold Resort and Casino. Veteran Affairs Committee
Chainnan Senator Jeff Denham.
JEFF DENHAM: As a veteran, I know the sacrifices of our servicemen
and women, and the sacrifice shared by their loved ones who pray for their
safe retum. But some of them don't make it, their families then become
Gold Star families. This event will raise funds for Gold Star families and
the Gold Star project as recognitien for their ultin1ate sacrifice. Please
join us at our benefit cancert on May 28th Memorial weekend. If you can't
make it, go to Remember the Brave dot com to learn more and to make
your tax-deductible donations. Remember, every dollar counts.
26
27
I'm Senator Jeff Denham.
28
29
30
3J
ANNOUNCER: Join Phil Vassar and Jeff Denham at the Remember the
Brave benefit concert. For tickets go to ChukcharuJi Gold Resort and
Casino or visit Ticketmaster dot com.
32
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10
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http://www.rememberthebrave.com/
PAGE 1: At top of page is the logo of Remembering the Brave, followed
by Benefit Concert. Underneath it is "Phil Vassar" fnllowed·by the date
(May 28th) ~nd location of the event (Chukchansi Gold Resort & Casino),
a photo of a sample specialized license plate next to a statement:
"Proceeds benefit the California Department of Veteran Affairs Project
Gold Star, a link to the California Department df Veteran Affairs website,
and two buttons: "Buy Tickets'" and "Donate."
II
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IS
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20
21
22
23
24
25
26
27
28
29
30
31
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PAGE 2: (Video)(30 seconds):
• Fint clip: Phil Vassar live concert and a voiceover "Join country
superstar Phil Vassm· for a one night benefit concert" while the
following wr1rds flash on the screen "Remember the Brnve"
"Chukch..fl!lli Gold Resort and Casino" and "May 28th".
• Second dip: Denham with 3 other individuals, two of whom
appear to be veterans. Denham is standing in the middle of the
group while the words "Senator Jeff Denham, Chainnan, Veterans
Affairs" Hash on the screen. Denham ilien says "As a veteran, I
know the sacrifices of our service men and women. A sacrifice
shared by their loved ones vtho pray for their safe return. But
some don't make it. TIR:ir families then become Gold Siar
Families."
• Third clip: Phil Vansar concert and a voiceover "Jeln Phil Vassar
at the Remem.ber the Bruve benofit conc,r.rt. Visit Ticketmaster dot
com for your tickets today" while the words "May 28th"
"Chukchansi Gold ~sort and Casino" and ''Ticketmaster.com"
flash on the screen.
• Fourth elip: same shot of Denham witli tti.e veterans and Denham
saying "If you can't make it, go to Remtmberthebrave.com to
learn more" while the words "Rememberthebrave.com" flash on
the sco,en.
34
3S
36
37
38
39
40
41
42
43
44
45
46
TRANSCRlPT OF INTERNET AD:
•
•
Left aide of screen: Photo of Denham and the words "State Senator Jeff
Denh~, Veterans' Affairs Committee" under the photo.
Right Side of screea: Message "As a veteran, I know the sacrifices of our
service men and women. A sacrifice shared by their loved ones who pray
for their safe return. But some don't make it. Their families then become
Gold Star Fandlies. We're raising funds· to make available
commemorative liceme plates for these families as reJ:~J·gnitioa for their
sacrifice. Ple~e;e join us at our bel!lefit eoncert on Moy 28th. If yo11 can't
attend, I nrge yo.u to learn more [link} nbout thes.e fan:tilieu ami make a taxdeductible. contribution [link]. Remember, every dollar coWits. Learn
PageS ofll
]
2
•
3
4
s
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7
More: California Department of Veteran Affairs - Project Gold Star
[link].
Bottom of screen: rememberthebrave.com is a project of Remembering
The Brave Foundation, a 50l(c)(3) not-fur-profit organization. For mom
infom:tr..tion, please visit www.RememberlngTheBrave.org. Conuibutio:rlS
and danatioas are tax deductible and directly bonefit the Remembering the
Brave Faundation.
8
9
RB sponsored the benefit concert, the proceeds of which were donated to Project
10
Gold Star. Response at 2. RB also stated that it, not the Tribe, produced, aired, and paid
N
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for the mdia, television, and internet ads. /d. Doaumentatian submittfld with the
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12
complailtt in MUR. 6362 indioates that GBA and Alamance Advisors handled the media
13
buy for the concert on behalf of its client, RB. See Emails between Genet Slagle (media
14
buyer with GBA) to Matt Rosenfeld (President/General Manager for KSEE-NBC24,
1~
KSEE Weather Plus, and LATVIa altemativo), dated Apri129, 2010, regarding Gold
16
Star Families Proposal. It also appears that GBA and Alamance Advisors handled the
17
media buys for the Denham for Congress campaign in 2010.2 See Emails from Genet
18
Slagle to Donald Osika, dated January 29, ~01 0. The response did not specify how much
19
was spent on the ads, but does not dispute the S100,000-$200,000 amount mentioned in
20
the con1plaint. It appears that RB raised a total of$105,440.24, about a third of the total
21
amount raised ($300,000) for ProjeG:t Gold Star.3
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The Denham Federal Committee's 2010 April Quarterly Report reflects disbursements to GBA and to
Alamance for broadcast advertising.
3
The California Department of Veteran Affairs announced that Project Gold Star had met its fundraising
goal. See http://www.cdva.ca.gov/newhome.aspx. RB posted a letter from the Department of Veteran
Affairs thanking it for its $105,440.24 donation in support ofProject Gold Star. See
btm://www.remelnberinglilebrave.orslnews/. On the le1m" is alutndwrbton note, indicating th11t this w11s
the single largest donatiatr received. ld. In a news release announcing that the Gold Star Project bad raised
$300,000 and that the Gold Star plate initiative bad passed, RB acknowledges that it "together with Senator
Denham, his supporters, and ather contributon ... raised appmximately one-thud of the funds needbd to
get the license pl.Dte initimive passed." ld.
Page6 ofll
RB acknowledged that the ads aired during May 2010, up until the May 281h date
2
of the benefit concert, which was within thirty (30) days of the California Congressional
3
primary election in which Denham appeared as a candidate. /d. at 4. However, the
4
response argued the concert was scheduled for May 28th because it was close to
s
Memorial Day, an appropriate date on which to hold an event related to veteran/military
6
issues and causes, and not because May 28 was close to the primary. /d. at 6. The
7
respoDSe also stated that the ads aired over a geographic area around the Casino where
0
....,
8
the concert was held end included Denham's State Senate1district, the 19th Congncssior.Al
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District, and areas beyond. IJJ. at 4. Finally, the response aoknowledged that the ads
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could be received by more than 50,000 people within the 19th Congressional District. /d.
11
B.
12
13
The Act subjects contributions and expenditures to certain restrictions,
14
limitations, and reporting requirements. See generally2 U.S.C. §§ 441a, 434b.
15
Contributions can be monetarY or "in-kind." In-kind contributions include an
16
expenditure made by any person "in cooperation, consultation, or concert, with, or at the
17
request or suggestion of, a candidate, his authorized political committees, or their
18
agents," and are subject to file same restriotitms and reporting requirements as other
19
contributions. 2 U.S.C. § 44la(a)(7)(A) and (B)(i); 11 C.F.R. §§ lOO.. S2(d)(l), 109.21(b).
20
The Commission's regulations at 11 C.F.R. § 109.21 provide that coordinated
21
communications constitute in-kind contributions from the party paying for such
22
communications to the candidate, the candidate's authorized committee, or the political
23
party committee which coordinates the communication. A corporation is prohibited from
24
making any contribution in connection with a Federal election. 2 U.S.C. § 441 b(a).
Page7 of 11
· A communication is coordinated if it is paid for by someone other than the
2
candidate or the candidate's authorized committee (or the political party committee,
3
where applicable); it satisfies one or more content standards; and it satisfies one or more
4
conduct standards. All three prongs must be met for a communication to be considered
5
coordinated. II C.F .R. § 109.2 i. The Commission's regulations exempt from the
6
definition of "coordinated communication" a public cornmunicatiOft in which a Federal
7
candidate solicits funds for organizations as pwrmitted by 11 C.F.R. § 300.65, provided.
8
that the public communication does not PASO the soliciting candidate or that candidate's
9
opponent(s) in the election. See 11 C.F.R § 109.21(g)(2). Federal candidates and
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officeholders may solicit funds for tax-exempt organizations as described in 26 U.S.C.
"
11
§ SOl(c). II C.F.R. § 300.65.
The radio and television ads at issue meet all three prongs of the coordi~tion test.
12
13
The payment prong is satisfied because there is information that the ads were paid for by
14
RB, someone other than the candidate, his authorized committee, or political party
IS
committee. 11 C.F.R. § 109.2l(a)(l). The content prong is satisfied because the
16
communications qualify as public communications which "refer[ ] to a clearly ideu.tified
17
Hmllle or Senate candidate that [are] publicly dismbuted o.: otherwise publicly
18
disseminated in the clearly identified candidate's j'urisdiction 90 days or fewer before the
19
... primary or preference election. 4 11 C.F.R.§ 109.2l(c)(4)(i). The content prong is also
20
satisfied because the ads meet the definition of electioneering camtnunications. 11 C.F.R.
21
§ 109.21 (c)( 1). The ads are electioneering communications because they were publicly
4
A pablic communicatiOill includes broadr.ast communications. 2 U.S.C. § 4.31(22). It does not include
internet communications, except for communications placed for a fee on another's Web site. 11 C.F.R.
§ 100.26. "Clearly identified" means the candidate's name or photograph appears, or "the identity of the
c:andittalt is otherwise appuent through aa aaambigu1us reference." 2 U.S.C. § 431(18); 11 C.F.B..
§ 100.17.
Page 8 ofll
distributed on radio and television, refer to a clearly identified candidate for Fed~ral
2
office, were publicly distributed within 30 days before the primary election, and were
3
targeted to the relevant electorate (the ads could be received by 50,000 or more persons in
4
the district that Denham sought to represent (19th Congressional District)). 5 II C.F.R.
s
§ 100.29.
The conduct prong is satisfied if a candidate or candidate's committee assents to a
6
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request or suggestion that the public comrnunicntion be crsnted, produced, or disbibutad,
s
8
and that request or muggestion csm2 from the person paying for the ao.mmunication.
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11 C.F.R. § 109.2l(d)(l)(ii). The response acknowledged that RB requested that
to
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Denham act as the spokesperson and to appear in the ads, which he did. Response at 2.
11
Because Denham is an agent of his Committee, his actions are also imputed to his
12
Committee. II C.F.R. §§ 109.3(b)(l) and (2); 109.2l(a), (d)(l)(ii).
.....
13
14
15
11 C.F .R. § 109.21 (g)(2). This provision exempts from the definition of "coordinated
16
communications" public comm\Dllcations in which a Federal candidate solicits funds !br
17
certain tax-exempt organizations aa pennittadl by 11 C.F.R. § 300.65, JDOvided that the
18
public communications do aot PASO tha: solicitint& candidate or thnt candidate's
19
opponents in that election. In this matter~ Denham, a Federal candidate, appeared andfor
20
spoke in broadcast radio and television ads to solicit funds for RB, a 501(c)(3)
21
organization, in support of Project Gold Star. The available information indicates that
22
RB is an organization described in 11 C.F .R. § 300.65, and the solicitations for donations
5
RB's internet ada are DOt included in this analysis bacauee they ue exempt from the dafillirion of
electioneering communications. 11 C.F.R. § 100.29(c)(l).
Page 9ofll
to RB complied with the requirements of 11 C.F.R. § 300.65 because they appeared to
2
have been for the purpose of raising funds for RB in support of Project Gold Star. Thus,
3
it appears that these communications are exempt from the definition of "coordinated
4
communications" if they did not promote or support Denham and did not attack or
5
oppose his opponent.
6
It does not appear that the ads at issue promote or support Denham or attack or
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to
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(;)
7
oppose any of his opponents. Altbough th.e Cummission has ROt defi:ecd the term
8
"promote, support, attack, or oppose," it has provided some guidam:e ia advisory
9
opinions as to what might constitute PASO of a candidate. See AO 2009-26 (Coulson)
to
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(concluding that a state officeholder could use non-federal funds to pay for
11
communication that did not PASO a candidate for Federal office because the
12
communication was solely part of the State officeholder's duties, did not solicit
13
donations, nor did it expressly advocate the candidate's election or the defeat of her
14
opponents); see also AOs 2007-34 (Jackson), 2007-21 (Holt), 2006-10 (Echostar) and
15
2003-25 (Weinzapfel) (hoiding that the mere identification of an individual who is a
16
Federal candidate does not, in itself, promote, support, attack or oppose that candidate).
17
The only clearly identified candidate in the ads is Denham, who is identified as a
18
veteran, a State S8nator, and aa Chairman of the Veterans' Affairs Committee, nnt as a:
19
candidate for Federal office. The ads do not contain express advocacy or its functional
20
equivalent, and do not contain references to any election or political party. Given the
21
above, it does not appear that the ads PASO'd Denham or any of his opponents.
22
23
Neither the timing of the benefit concert nor the involvement of the Denham
campaign consultants/media buyer/supporters in the planning of the benefit concert and
Page 10 of 11
ads would appear to prevent the application of the safe harbor for charitable solicitations.
2
See Explanation and Justification for Final Rules for Safe Harbor for Endorsements and
3
Solicitations by Federal Candidates (11 C.F.R. § 109.21(g)) 71 Fed. Reg. 33201-33202
4
(Jun. 8, 2006) (stating that the "safe harbor applies regardless of the timing and proximity
~
to an election ... of the solicitation and [w]hen the safe harbor is applicable, the ...
6
soliciting candidate (and the candidate's agents) may be involved in the development of
7
the commc:ilication, in. detorminidg me content elf the communication, as well as
8
determining the means or mode and. timing or frequency of the oom.munication."); See
9
also, AO 2006-10 (Echostar).
1o
Based on the above, the ads at issue were not coordinated communications.
II
Accordingly, the Commission found no reason to believe that Remembering the Brave
12
Foundation made a prohibited in-kind corporate contribution resulting from coordinated
13
communications in violation of2 U.S.C. § 44lb(a).
Page 11 ofll
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5
6
7
8
9
Ill
RESPONDENT: Picayune Rancheria of the Chukchansi Indians/
MUR: 6362
Chukchansi Tribal Government
I.
INTRODUCTION
10
~ornmission,
""'(p
II
respectively, which were designated as MURs 6289 and 6362 See 2 U.S.C. § 437g(a)(l).
tn
12
The complaints alleged that radio and television advertisements for a May 28, 20 I 0,
13
benefit concert for the Remembering the Brave Foundation ("RB") featured Jeff Denham, a
14
California State Senator and a candidate in the primary election for the 19Ut Congressional
IS
District in California, and were disseminated within 30 days of the California Congressional
16
primary election on June 8, 2010. These ads were allegedly financed from funds Denham
17
transferred from Jeff Denham for State Senate ("State Committee") to RB. The concert was held
18
at the Chukchansi Gold Resort & Casino, which is owned and operated by the Picayune
19
Rancheria of the Chukchansi Indians/the Chukchansi Tribal Govemment)("Tribe'').
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one by Sean Fox, and another by Tal Cloud and Mike Der Mmtouel, Jr.,
In MUR 6289, the complaint alleged that the advertisemonts promoting the benefit
21
concert were oeordinated electioneering conmmnicatio111, which were paid for by the Tribe,
22
resulting in undisclosed contributions from t.hc Tribe to Denhmn for Congress ("Federal
23
Committee''). In MUR 6362, the complaint alleged that the same commwtications were
24
coordinated with the Denham campaign and involved the Tribe and others. This complaint also
25
alleged that the Tribe failed to disclose coordinated communications and independent
26
expenditures made in connection with the benefit concert and/or Denham's Federal Committee,
27
and may have done so to hide the true source of the funding. The Tribe filed a response to the
Page 1 of4
MUR 6362 (Chukchansi Tribe)
complaint in MUR 6362, stating that there is no basis for finding that it made coordinated
2
communications or otherwise violated the provisions of the Federal Election Campaign Act of
3
1971, as amended ("the Act").
4
.....
0
As explained below, the Commission found no reason to believe that the Picayune
S
Rancheria of the Chukchansi Indians violated any provisions of the Act or Commission
6
regulations in connection with tlte allegations in this matter.
7
II•
8
A. Factual Background
q"
9
In 2010, Jeff Denham was both a California State Senator, representing the 12th District,
"'
10
and a candidate for the U.S. House of Representatives for California's 19rh Congressional
11
District Denham did not run for re-election to the State Senate. Denham won the June 8, 2010,
12
Republican primary and the November 2, 2010, general election.
to
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Resort & Casino, in Coarsegold, California, which is in the 19th Congressional District. The
lS
concert, sponsored by Remembering the Brave Foundation and featuring country and western
16
music performer Phil Vassar, was advertised on radio, television, L"ld the internet as a benefit
17
concert to raise donations for Project Gold Star-a program administered by me Califmnia
18
Department of Veteran Affairs to raise private dgnations to pay the coats of a specialized license
19
plate program for the families of U.S. military personnel killed while serving on active duty.
20
Several of the advertisements promoting the concert featured Denham.
21
In its response, the Tribe acknowledged that it provided the venue for and distributed
22
promotional materials about the concert, but stated that none of its promotional materials referred
23
to Denham or to any candidate. The Tribe further stated that it made the following in-kind
Page 2 of4
donations to RB in support of the benefit concert: the use of its casino as the venue for the
.......
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concert, a newspaper strip ad with the Fresno Bee, rack cards for distribution, postcards for
3
distribution to Chukchansi guests, automated phone calls to Chukchansi guests, food vouchers
4
with the purchase of two tickets to the event, rooms and meals for perfonners, an email blast,
5
posters, and casino overhead announcements. See Tribe 's response at 4-6. In addition, the Tribe
6
noted that several tr;levision and radio stations ran publie service announcements promoting the
7
conm:rt, which were providod withuut oost to the· Tribe. Id. Firmlly, the Tribe nsserted that it did
8
not pay for or distribute any prumotiotllal materials that referred to Denham or to any clenrly
9
identified candidate, did not disseminate campaign materials prepared by the candidate, and did
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not expressly advocate the election or defeat of a clearly identified candidate. ld. at 5. The Tribe
II
provided copies of its promotional materials, and none of the ads provided refer to Denham or to
12
any other clearly identified candidate.
~
"
13
14
15
B. Coordinated Communications/Independent Expenditures
The Act subjects contributions and expenditures to certain restrictions, limitations, and
16
reporting requirements. See generally 2 U.S.C. §§ 44Ia, 434b. Contributions can be monetary
17
or "in-kind." In-kind contributions include an expendituf'.e made by any pe1-son "in cooperation,
18
constdtatinn, or coneert, with, or at the request or suggestion of, a aandidate, his authorized
19
politictJl committees, or their agents," and are subject to the Slnne restrilt1tions and reporting
20
21
§§ 100.52(d)(l), 109.21(b). The Commission's regulations at 11 C.P.R.§ 109.21 provide that
22
coordinated communications constitute in-kind contributions from the party paying for such
23
communications to the candidate, the candidate's authorized committee, or the political party
Page 3 of4
1
committee which coordinates the communication. A corporation is prohibited from making any
2
contribution in connection with a Federal election. 2 U.S.C. § 441 b(a).
3
A .communication is coordinated if it is paid for by someone other than the candidate or
4
s
satisfies one or more content standards; and it satisfies one or more conduct standards. All three
6
prongs must be met for a cxnnmnnication to be considered coordinared. 11 C.P.R.§ 109.21.
tfl
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7
An independent expenditure is aa expenditure for a coJmnunieatid.n whioh expressly
a)
8
advocates the electioo or defat of a clearly identified candidate and which is not made in
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cooperation, consultation or concert with, or at the request or suggestion of, any candidate,
.....
10
(10
......
"1
co
candidate's committee, party committee or their agents. II C.F.R. § 100.16.
ll"i
11
Based on the Tribe's response and other available infonnation, it does not appear that the
12
Tribe paid for ads featuring Denham, or that it made undisclosed coordinated communications
13
and/or independent expenditures in connection with the benefit concert and/or the Denham
14
campaign, as alleged in the complaints.
15
C. Conclusion
16
Accordingly, the Commission found no reason to believe that the Picayune Rancheria of
17
Chukchansi lndians/Chukchansi Tribal Government violated any provisions of the Act or
18
Commission regulations in connection with the allegations in this .nuttter.
Page 4 of4

phil vassor

Transcription

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