Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
CERTIFIED MAIL April 22, 2005
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2005-03
Michael J. Kurman, Esq.
Arent Fox, PLLC
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5339
Dear Mr. Kurman:
We are responding to your advisory opinion request on
behalf of the American College of Obstetricians and
Gynecologists ("ACOG") regarding whether, under the Federal
Election Campaign Act of 1971, as amended (the "Act"), ACOG
and Ob-Gyns for Women's Health ("OGWH") are affiliated. If
ACOG and OGWH are affiliated, you ask whether OGWH or its
separate segregated fund ("SSF"), Ob-Gyn PAC, may solicit
ACOG's members for contributions to Ob-Gyn PAC; and if such
solicitations are permissible, whether, specifically, ACOG's
Fellows and Junior Fellows qualify as solicitable members of
ACOG.1
The Commission concludes that ACOG and OGWH are
affiliated membership organizations. As such, OGWH or Ob-
Gyn PAC may solicit ACOG's members for contributions to Ob-
Gyn PAC. The Commission also concludes that both Fellows
and Junior Fellows qualify as solicitable ACOG members.
Background
The facts of this request are presented in your letter
of February 17, 2005, as supplemented by your letter of
March 2, 2005.
1. ACOG
ACOG is a private, voluntary membership group
incorporated without capital stock. It operates as a
nonprofit, tax-exempt educational and charitable
organization under the Internal Revenue Code section
501(c)(3), and is dedicated to the advancement of women's
health. You indicate that ACOG's membership consists of
over 46,000 individuals spread across several membership
categories. Your request, however, is limited to two of
ACOG's "membership categories" - Fellows and Junior Fellows.
2. OGWH
OGWH is a private, voluntary membership group,
established in 2000 by a vote of ACOG's Executive Board and
incorporated without capital stock. OGWH operates as a
nonprofit, tax-exempt social welfare organization under the
Internal Revenue Code section 501(c)(4), advocating laws and
public policies that support the field of obstetrics and
gynecology, and quality healthcare for women, generally.
OGWH works to increase awareness among its members and the
public of the changing public policies and legislation
related to women's health care.
In January 2001, OGWH created an SSF called Ob-Gyn PAC.
Ob-Gyn PAC currently only solicits contributions from OGWH
members. ACOG intends to sell its member list to OGWH or Ob-
GYN PAC for fair market value in order for OGWH or Ob-GYN
PAC to solicit ACOG Fellows and Junior Fellows for
contributions to Ob-Gyn PAC.
Questions Presented
Are ACOG and OGWH affiliated? If so, may OGWH or Ob-
Gyn PAC solicit ACOG's members for contributions to Ob-Gyn
PAC? If such solicitations are permissible, do ACOG Fellows
and Junior Fellows qualify as solicitable ACOG members?
Legal Analysis and Conclusions
Question 1. Are ACOG and OGWH affiliated?
The Commission concludes that both ACOG and OGWH are
membership organizations under the Act and Commission
regulations, and because ACOG established OGWH, they qualify
as affiliated membership organizations under 11 CFR
100.5(g)(4).2 See also 114.5(g)(1) and 11 CFR 114.7(g).
ACOG satisfies the Commission's requirements for
membership organization status. ACOG Fellows have the right
to select ACOG's governing Executive Board and to vote on
other matters. ACOG Bylaws, Articles IV and XI; see 11 CFR
114.1(e)(1)(i). ACOG's Bylaws set forth specific
professional requirements that applicants must meet to be
accepted as members. ACOG Bylaws, Articles III-VIII; see 11
CFR 114.1(e)(1)(ii). ACOG's formal organizational
documents are available to members upon request, and on
ACOG's website.3 See 11 CFR 114.1(e)(1)(iii). ACOG
actively solicits members through its website and at ACOG-
sponsored meetings, and acknowledges the applicants'
acceptance of the invitation to membership with a
Certificate for Fellows and a Letter of Election for Junior
Fellows. See 11 CFR 114.1(e)(1)(iv)-(v). Finally, ACOG is
dedicated to the advancement of women's health, and is not
organized primarily for the purpose of influencing Federal
elections. ACOG Bylaws, Article II; see 11 CFR
114.1(e)(1)(vi).
OGWH also satisfies the Commission's requirements for
membership organization status. OGWH's Board of Directors,
which is made up entirely of OGWH members in good standing,
exercises exclusive policy-making and governance authority
of OGWH. OGWH Bylaws, Articles II and III; see 11 CFR
114.1(e)(1)(i). OGWH's Bylaws state that membership in OGWH
is open to anyone who pays the required dues. OGWH Bylaws,
Article III; see 11 CFR 114.1(e)(1)(ii). OGWH's formal
organizational documents are available to members upon
request. See 11 CFR 114.1(e)(1)(iii). OGWH actively
solicits members. OGWH Bylaws, Article III; see 11 CFR
114.1(e)(1)(iv). OGWH acknowledges acceptance of membership
with a membership card or by adding the member's name to a
newsletter list. OGWH Bylaws, Article III; see 11 CFR
114.1(e)(1)(iv). Finally, OGWH's purpose is advocating laws
and public policies supporting quality healthcare for women,
and the field of obstetrics and gynecology, and is not
organized primarily for the purpose of influencing Federal
elections. OGWH Bylaws, Articles I and V; see 11 CFR
114.1(e)(1)(vi).
The Act and Commission regulations provide that a
membership organization may solicit contributions for a
separate segregated fund from it members. 2 U.S.C.
441b(b)(4)(C); 11 CFR 114.7(a). The Commission's
regulations at 11 CFR 114.7(g) further provide that an
incorporated membership organization is subject to the rules
at
11 CFR 114.5, which, in turn, provides that for purposes of
determining affiliation, the rules at 11 CFR 100.5(g)(4)
apply. 11 CFR 114.5(g)(1). Accordingly, in this instance,
factors such as whether an organization had a significant
role in the formation of another organization become
determinative. See 11 CFR 100.5(g)(4)(ii)(I).
Accordingly, the Commission finds that because ACOG
established OGWH, and because you have presented no other
facts regarding the relationship between ACOG and OGWH that
would lead to a contrary conclusion, ACOG and OGWH are
affiliated.
Question 2. May OGWH or Ob-Gyn PAC solicit ACOG's members
for contributions to Ob-Gyn PAC?
The Act permits an incorporated membership
organization, or its SSF, to solicit its noncorporate
members and executive and administrative personnel, and
their families, for contributions to the SSF. See 2 U.S.C.
441b(b)(4)(A) and (4)(C); see also 11 CFR 114.7(a).
Additionally, a membership organization or its SSF may
solicit the executive and administrative personnel, and
their families, of the membership organization's affiliates.
See 11 CFR 114.5(g)(1). The Commission has extended this
allowance to the solicitation of members. See Advisory
Opinion 2003-29.
Therefore, because ACOG and OGWH are affiliated
membership organizations, OGWH or Ob-Gyn PAC may solicit
ACOG's noncorporate members and executive and administrative
personnel, and their families, for contributions to Ob-Gyn
PAC.
Question 3. Do ACOG Fellows and Junior Fellows qualify as
solicitable ACOG members?
Commission regulations define "members" of a membership
organization as including all persons who are currently
satisfying the requirements for membership, affirmatively
accept the membership organization's invitation to become a
member and, either have a significant financial attachment
to the organization, pay annual dues set by the
organization, or have significant organizational ties to the
membership organization. 11 CFR 114.1(e)(2). Both Fellows
and Junior Fellows must satisfy the requirements for
membership stated in ACOG's Bylaws. ACOG Bylaws, Articles
IV and V. Fellows and Junior Fellows must accept the
invitation to become members, and must pay annual dues. Id.
Therefore, both Fellows and Junior Fellows are members of
ACOG under the Commission's regulations and, as such, may be
solicited by OGWH or Ob-Gyn PAC for contributions to Ob-Gyn
PAC.
The Commission expresses no opinion regarding the
applicability of the Internal Revenue Code, or of
regulations promulgated by the Internal Revenue Service, to
the status of ACOG or OGWH and the transactions contemplated
in this request 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)
Scott E. Thomas
Chairman
Enclosure (AO 2003-29)
_______________________________
1 OGWH has represented to ACOG that it fully joins in ACOG's
request for an advisory opinion and has reaffirmed its
stated intent to solicit ACOG members - via the potential
sale by ACOG, and purchase by OGWH or Ob-Gyn PAC, of ACOG's
membership lists - if the Commission advises that such
solicitation is legally permissible.
2 Commission regulations provide for a case-by-case
examination of ten circumstantial factors found at
11 CFR 100.5(g)(4)(ii)(A) - (J) to determine whether two
entities are affiliated.
3 www.acog.org.