Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
June 23, 2005
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2005-6
Orville F. Petersen, C.P.A.
Treasurer
Friends of McInnis Canyons NCA
225 North Fifth Street, Suite 401
Grand Junction, CO 81501
Dear Mr. Petersen:
We are responding to your inquiry on behalf of Friends
of McInnis Canyons National Conservation Area ("Friends of
McInnis Canyons NCA"), and on behalf of former
Representative Scott McInnis and Friends of Scott McInnis,
Inc. ("the Committee"), concerning the application of the
Federal Election Campaign Act of 1971, as amended ("the
Act"), and Commission regulations to a donation that the
Committee is planning to make to Friends of McInnis Canyons
NCA. Because Friends of McInnis Canyons NCA is in the
process of applying for tax exempt status under section
501(c)(3) of the Internal Revenue Code ("IRC") and will
neither employ nor otherwise compensate former
Representative McInnis or any member of his family, the
Committee may make a donation to Friends of McInnis Canyons
NCA.
Background
The facts of this request are presented in your letters
received on April 5 and 29, 2005.
Friends of McInnis Canyons NCA is a not-for-profit
organization that is named after former Representative Scott
McInnis and is incorporated in Colorado. This organization
is in the process of completing its application to qualify
under 26 U.S.C. 501(c)(3), which will be filed with the
United States Internal Revenue Service. Friends of McInnis
Canyons NCA's mission is to support the McInnis Canyons
National Conservation Area by providing funds and volunteers
to do such things as trail maintenance, habitat improvement,
and educational activities. None of the organization's
funds will be used to influence any Federal election.
Former Representative McInnis wishes to donate campaign
funds from the Committee to Friends of McInnis Canyons NCA.
Former Representative McInnis neither serves on Friends of
McInnis Canyons NCA's board of directors nor does he have
any control over, or financial interest in, the
organization. Neither former Representative McInnis nor any
member of his family will receive any income from the
organization.
Question Presented
May the Committee donate campaign funds to Friends of
McInnis Canyons NCA?
Legal Analysis and Conclusions
Yes, the Committee may donate campaign funds to Friends
of McInnis Canyons NCA.
The Act provides that campaign funds may be donated to
any organization described in 26 U.S.C. 170(c), but may not
be "converted by any person to any personal use." 2 U.S.C.
439a(a)(3) and (b)(1); 11 CFR 113.2(b) and 113.1(g)(2). The
regulations provide that donations from campaign funds to
section 170(c) organizations are not personal use, unless
the candidate (former or current) receives compensation from
the donee organization before that organization has
expended, for purposes unrelated to the candidate's personal
benefit, the entire amount donated to it. 11 CFR
113.1(g)(2).
Previous advisory opinions have considered the
application of the Act and Commission regulations to factual
situations somewhat similar to your circumstances. For
example, in Advisory Opinion 1997-1, a former Representative
proposed to donate the remaining cash balance of his former
principal campaign committee to create a charitable
foundation which would make grants solely to various
educational, charitable, literary, scientific, and religious
organizations. Similarly, in Advisory Opinion 1996-40, a
retiring Member of Congress proposed to donate the balance
of his campaign funds to an organization that qualified as
an educational foundation under section 501(c)(3) of the
IRC. In both situations, the Commission determined that the
proposed donations were permissible under the Act and
Commission regulations.
The Commission considers a number of factors in
determining whether a proposed donation of campaign funds is
permissible. As a threshold matter, the Commission
considers whether the donee organization had obtained or is
planning to apply for status as an entity described in
section 170(c) of the IRC.1 See Advisory Opinions 1997-1
and 1996-40. As you indicated in your request, Friends of
McInnis Canyons NCA is in the process of applying for tax
exempt status under section 501(c)(3) of the IRC. The
Commission cautions you that the conclusion in this advisory
opinion is predicated on Friends of McInnis Canyons NCA's
successful application for tax exempt status as a 501(c)(3)
organization with the Internal Revenue Service. Friends of
McInnis Canyons NCA may not rely on this advisory opinion
should it fail to obtain or maintain such status.
The Commission also considers whether the current or
former Member of Congress or any member of his or her family
will receive any compensation from the donee organization.
See Advisory Opinions 1997-1 and 1996-40. According to your
request, Friends of McInnis Canyons NCA will not employ or
otherwise compensate former Representative McInnis or any
member of his family. In addition, the proposed donation of
funds to Friends of McInnis Canyons NCA will not benefit
former Representative McInnis in any apparent financial
respect. Under these circumstances, the Commission
concludes that Friends of McInnis Canyons NCA may accept the
planned donation of campaign funds from the Committee.
The Committee is required to report all disbursements
of its campaign funds. 2 U.S.C. 434(b)(4), (b)(5); 11 CFR
104.3(b). Its donation to Friends of McInnis Canyons NCA
would be reportable as other disbursements. 2 U.S.C.
434(b)(4)(G), 434(b)(6)(A); 11 CFR 104.3(b)(2)(vi) and
104.3(b)(4)(vi).
The Commission expresses no opinion regarding any tax
ramifications of the proposed activities because those
issues are not within its 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
Enclosures (AOs 1997-1 and 1996-40)
_______________________________
1 Charities that qualify for tax exempt status under section
501(c)(3) of the IRC are described in section 170(c) of the
IRC.