Federal Election Commission Main Page
June 25, 2004
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2004-15
Mr. David T. Hardy
Bill of Rights Educational Foundation
PMB 265
Tucson, AZ 85749
Dear Mr. Hardy:
This responds to your letters dated March 15, and April
21, 2004, and your subsequent electronic mail message of May
3, 2004 requesting an advisory opinion concerning the
application of the Federal Election Campaign Act of 1971, as
amended ("the Act"), and Commission regulations to
advertising you and the Bill of Rights Educational
Foundation ("the Foundation") plan to undertake.
BACKGROUND
You state you are the president of the Foundation,
which is an Arizona corporation. You have stated that your
organization qualifies as a nonprofit corporation organized
under Section 501(c)(4) of the Internal Revenue Code, 26
U.S.C. 501(c)(4). This Advisory Opinion is contingent on
these facts as you have presented them.
You explain that you are producing a documentary film,
entitled "The Rights of the People," to focus on Bill of
Rights issues. You state that you have completed
approximately half of the filming. For the remaining half,
you state you will include footage of some Congressional
officeholders, some of whom are candidates for re-election
in 2004. You state that the film may also make reference
to "members of the current Administration" including
President Bush. You explain that while you are personally
producing the documentary, both you and the Foundation would
pay for the marketing and would be involved in the
distribution of the documentary. You plan to distribute the
documentary in non-broadcast form, but would use radio and
perhaps television commercials to promote its distribution.
You ask whether these commercials would constitute
electioneering communications if they refer to a candidate
for Federal office and if they air within 60 days before a
general election or 30 days before a primary election. You
indicate that if the commercials clearly identify a U.S.
Congressional candidate, you do not intend to "run" the
commercials in that candidate's district. 1 However,
certain commercials could clearly identify at least one
candidate for U.S. President and would be received by 50,000
or more people within 30 days of a presidential primary, a
national nominating convention, and, in all likelihood, the
general election. You ask whether these proposed
commercials would be electioneering communications.
Question Presented
Would the proposed commercials that reference a clearly
identified Presidential candidate be electioneering
communications within the meaning of the Act and Commission
regulations?
Legal Analysis and Conclusions
Yes, the proposed commercials would be electioneering
communications. Subject to certain exceptions, an
electioneering communication is any broadcast, cable or
satellite communication that refers to a clearly identified
candidate for Federal office, and is publicly distributed
for a fee within 60 days of a general, special or runoff
election for the
office sought by the candidate, or within 30 days of a
primary or preference election for the office sought by the
candidate. 2 U.S.C. 434(f)(3) and 11 CFR 100.29; see also
Advisory Opinion 2003-12. Elements of the definition turn
on the type of Federal candidate identified. For
presidential and vice presidential candidates, "publicly
distribu
ted" means that the electioneering communication can be
received: (1) by 50,000 or more people in a State where a
primary election or caucus is being held within 30 days; or
(2) by 50,000 or more people anywhere in the United States
from 30 days prior to the convention to the end of the
convention; or (3) anywhere in the United States within 60
days prior to the general election. 2 U.S.C.
434(f)(3)(A)(i); 11 CFR 100.29(b)(3)(ii); see also 2 U.S.C.
434(f)(3)(C).
The radio and television commercials that you describe
in your request would be electioneering communications
because they meet all the elements of 2 U.S.C. 434(f)(3) and
11 CFR 100.29. The proposed commercials would refer to at
least one presidential candidate who is a clearly identified
candidate for Federal office. See 11 CFR 100.29(a)(1).
They would also be publicly distributed because you intend
to pay a radio station and perhaps a television station to
air or broadcast your commercials. See 11 CFR 100.29(a)(2)
and (b)(3)(i). Finally, they would reach 50,000 or more
people within 60 days of a national nominating convention
and/ or 60 days of the general election.2
Furthermore, none of the statutory or regulatory
exemptions for electioneering communications appears to
apply to the proposed commercials. See 2 U.S.C.
434(f)(3)(B)(i) through (iv), and 11 CFR 100.29(c)(1)
through (6). The proposed commercials would not be
disseminated through means other than broadcast, cable or
satellite communication.3 They would not constitute a
reportable expenditure or independent expenditure.4 They
would not constitute a candidate debate or forum or
promotion of such an event. They are not communications by
local or State candidates. Moreover, these communications
would not be made by entities organized under 26 U.S.C.
501(c)(3).
Your request did not assert that your organization was
entitled to a media exemption under 2 U.S.C.
434(f)(3)(B)(i). Nor did you provide any information that
would allow the Commission to determine whether or not any
proposed advertisement is entitled to this exemption from
the electioneering communications provision for a
communication that is a "news story, commentary, or
editorial . . . ." 11 CFR 100.29(c)(2). Thus the
Commission makes no finding with respect to the application
of the media exemption in this case.
Because your radio and television commercials would be
electioneering communications, the statutory and regulatory
requirements governing electioneering communications apply.
See generally 2 U.S.C. 434(f) and 441b(b), and 11 CFR 104.20
and 114.14(b). However, these legal requirements differ
depending on whether you or the Foundation pays for these
commercials. If you, as an individual, pay for these
commercials, you must comply with the funding and reporting
requirements described in
2 U.S.C. 434(f), 441b(b)(2) and 11 CFR 104.20 and 114.14(b).
Corporations and labor organizations are prohibited from
making or financing electioneering communications. 2 U.S.C.
441b(b)(2) and 11 CFR 114.2(b)(2)(iii); see also 11 CFR
114.14(a) and (b). Qualified nonprofit corporations as
described in 11 CFR 114.10, however, are exempt from this
prohibition.5 See 11 CFR 114.2(b)(2). The Foundation does
not meet the requirements of section 114.10,6 and therefore,
may not pay for the proposed commercials or provide you with
the funds to pay for them.7
The Commission expresses no opinion regarding
qualification for tax treatment under 26 U.S.C. 501(c)(3) or
(4) or any other ramifications of the proposed activities
under the Internal Revenue Code because those questions are
outside the Commission's jurisdiction.
This response constitutes an advisory opinion
concerning the application of the Act and Commission
regulations to the specific transaction or activity set
forth in your request. See 2 U.S.C. 437f. The Commission
emphasizes that if there is a change in any of the facts or
assumptions presented, and such facts or assumptions are
material to a conclusion presented in this advisory opinion,
then the requestor may not rely on that conclusion as
support for its proposed activity.
Sincerely,
(signed)
Ellen L. Weintraub
Vice-Chair
Enclosures (AOs 2004-07 and 2003-12)
_______________________________
1 The Commission assumes from your statement that the
commercials would not run in the Congressional districts of
the Congressional candidates means that they would not be
received in the Congressional districts. See 11 CFR
100.29(b)(6)(i) and (ii), and 11 CFR 100.29(b)(7).
Therefore, this advisory opinion addresses only commercials
that refer to a Presidential candidate.
2 Your request does not specify if 50,000 or more people who
would be able to receive the proposed commercials during a
presidential primary are located in the particular State
where a presidential primary is held. Thus, it is unclear
whether the proposed commercials broadcast during the
presidential primary would be considered electioneering
communications.
3 For example, commercials for the documentary using print
media (including newspaper or magazines or mailings), or
commercials over the Internet (including emails) would not
be electioneering communications. See 11 CFR 100.29(c)(1);
see also Advisory Opinion 2004-07.
4 The Commission assumes that the proposed commercials do
not expressly advocate the election or defeat of any
candidate for Federal office.
5 Nonprofit organizations organized under 26 U.S.C.
501(c)(3) may also pay for electioneering communications
pursuant to the exemption in 11 CFR 100.29(c)(6). The
Commission expresses no opinion regarding the qualifications
for tax treatment under 26 U.S.C. 501(c)(3).
6 There are several requirements for Qualified Nonprofit
Corporation status under 11 CFR 114.10, including that the
entity be described in 26 U.S.C. 501(c)(4). See 11 CFR
114.10(c)(5). Although you represent that the Foundation is
organized as a (c)(4) corporation, your request does not
indicate that the Foundation has met any of the other
requirements of 11 CFR 114.10. See 11 CFR 114.10(c)(1)
through (4). Nor have you provided any information
indicating that a court has determined that the Foundation
is otherwise entitled to qualified nonprofit status. See 11
CFR 114.10(e)(1)(i)(B).
7 However, should the Foundation subsequently meet the
requirements of section 114.10(c), it would be able to pay
for the commercials subject to the restrictions in 11 CFR
114.14 and the reporting requirements in 11 CFR 104.20.
With its first report, it would also be obligated to file
certification of its status as a qualified nonprofit
corporation. 11 CFR 114.10(e)(1)(ii).