Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
October 20. 2005
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2005-13
Robert F. Bauer, Esq.
Judith L. Corley, Esq.
Perkins Coie
607 Fourteenth Street, N.W.
Washington, D.C. 20005-2011
Dear Mr. Bauer and Ms. Corley:
We are responding to your advisory opinion request on
behalf of EMILY's List, concerning the application of the
Federal Election Campaign Act of 1971, as amended (the "Act"),
and Commission regulations to the treatment of proceeds
generated by various fundraising communications, the type of
funds that may be used to pay the costs of those communications,
and the allocation of administrative and generic voter drive
expenses.
The Commission concludes that EMILY's List, a nonconnected
Federal political committee, must pay for communications that
refer to a clearly identified Federal candidate with 100 percent
Federal funds. 11 CFR 106.6. EMILY's List must pay for
communications that refer to a political party, as well as
administrative and generic voter drive expenses, with a minimum
of 50 percent Federal funds. Id. Finally, EMILY's List must
treat as contributions the proceeds of any communication that
indicates a portion of the proceeds will be used to support the
election of a clearly identified Federal candidate.
11 CFR 100.57.
Background
The facts of this request are presented in your letter
received August 18, 2005, and in your e-mails received August 26
and September 7, 2005.
EMILY's List is a nonconnected political committee active
in both Federal and nonfederal elections. For the period from
now up to the November 2006 Federal elections, EMILY's List is
considering devoting 65% of its "candidate budget" to spending
on behalf of non-Federal candidates. EMILY's List anticipates
that this portion of its budget will be used to make donations,
including in-kind donations, to non-Federal candidates, and to
make disbursements for activities such as research, polling, get-
out-the-vote programs, fundraising, staffing, mailing, phone
messaging and broadcast communications.
EMILY's List also contemplates making two types of public
communications. One public communication, in support of EMILY's
List's efforts on behalf of state legislative candidates, will
refer to Senator Debbie Stabenow, who represents Michigan in the
United States Senate. Senator Stabenow is also a candidate for
re-election in 2006 and a holder of Federal office under the Act
and Commission regulations. See 2 U.S.C. 431(2) and (3); 11 CFR
100.3, 100.4, and 300.2(o). EMILY's List's other type of public
communication, which supports state legislative initiatives and
referenda, will refer to "Democrats." This second type of
communication will not refer to any Federal or non-Federal
candidates. None of the public communications will be broadcast
on television or radio.
Questions Presented
1. Must EMILY's List pay at least half of its administrative
expenses and generic voter drive expenses with Federal funds?
2. Must EMILY's List pay the costs of a public communication
that refers to a clearly identified Federal candidate with
entirely Federal funds?
3. Must EMILY's List pay at least half of the costs of public
communications that refer to "Democrats" with Federal funds?
4. Do three specific public communications indicate that the
funds received in response will be used to support the election
of a clearly identified Federal candidate?
Legal Analysis and Conclusions
1. Must EMILY's List pay at least half of its administrative
expenses and generic voter drive expenses with Federal funds?
Yes, because EMILY's List is a nonconnected Federal
political committee, it must pay its administrative and generic
voter drive expenses with a minimum of 50 percent Federal funds
in accordance with 11 CFR 106.6(b)(1)(i), (b)(1)(iii), and (c).1
The Commission's regulations require a minimum allocation of 50
percent Federal funds without regard to how much a Federal
political committee may choose to spend on non-Federal
elections.2 As the Commission noted in the Explanation and
Justification for the new allocation rules at 11 CFR 106.6:
Neither FECA nor any court decision dictates how the
Commission should determine appropriate allocation ratios.
In fact, at least one court has recognized that the
Commission has the discretion to establish the Federal
funds percentage it deems best for administrative and
generic voter drive expenses. See Common Cause v. FEC, 692
F. Supp. 1391, 1396 (D.D.C. 1987).
A flat 50% allocation minimum recognizes that SSFs and
nonconnected committees can be "dual purpose" in that they
engage in both Federal and non-Federal election activities.
These committees have registered as Federal political
committees with the FEC; consistent with that status,
political committees should not be permitted to pay for
administrative expenses, generic voter drives and public
communications that refer to a political party with a
greater amount of non-Federal funds than Federal funds.
Political Committee Status, Definition of Contribution, and
Allocation for Separate Segregated Funds and Nonconnected
Committees, Final Rules, 69 Fed. Reg. 68056, 68062 (Nov. 23,
2004)
("Final Rules"). Thus, as a political committee that makes
expenditures and disbursements in connection with both Federal
and non-Federal elections, the particular budget that EMILY's
List adopts for expenses focusing on specific Federal and non-
Federal candidates does not affect the required minimum Federal
allocation it must use for administrative and generic voter
drive expenses.
2. Must EMILY's List pay the costs of a public communication
that refers to a clearly identified Federal candidate with
entirely Federal funds?
Yes, because EMILY's List is a nonconnected Federal
political committee, it must pay the costs of a public
communication that refers to a clearly identified Federal
candidate, but does not refer to any clearly identified non-
Federal candidates, with 100 percent Federal funds, regardless
of whether the communication refers to a political party, in
accordance with 11 CFR 106.6(b)(2)(iii) and (f)(1)(i).
Your advisory opinion request describes a public
communication in support of efforts on behalf of state
legislative candidates that will refer to United States Senator
Debbie Stabenow, but will not refer to any clearly identified
non-Federal candidates. Reflecting EMILY's List's purpose of
stressing the importance of successes for women in State
elective office, the communication will feature a discussion of
Senator Stabenow's experiences, earlier in her career, as a
candidate for State office. The communication will not be
distributed in the Senator's home state of Michigan, will not
reference the Senator's candidacy for re-election, and will not
solicit funds for her campaign. Regardless of its context, the
reference to Senator Stabenow in EMILY's List's public
communication is a reference to a clearly identified Federal
candidate in a Federal political committee's public
communication.3 Section 106.6(b)(2)(iii) and (f)(1)(i) apply to
nonconnected Federal political committee's public communications
that refer to a clearly identified Federal candidate, and
require the Federal political committee to pay the costs of such
communication with 100 percent Federal funds. Therefore,
EMILY's List must pay for the public communication that clearly
identifies Senator Stabenow with 100 percent Federal funds.
This analysis does not change if a candidate for election
in a year other than 2006 were to be substituted for Senator
Stabenow in EMILY's List's public communication, as your request
asks. Under the Act, the term "candidate" means an individual
who seeks nomination for election, or election, to Federal
office. 2 U.S.C. 431(2). An individual is deemed to seek
nomination for election, or election, if he or she has received
contributions aggregating in excess of $5,000 or has made
expenditures aggregating in excess of $5,000.
2 U.S.C. 431(2)(A); 11 CFR 100.3(a)(1). Neither the Act nor
Commission regulations distinguish between candidates based on
election date.
3. Must EMILY's List pay at least half of the costs of public
communications that refer to "Democrats" with Federal funds?
Yes, EMILY's List must pay the costs of public
communications that refer to "Democrats," but do not refer to
any clearly identified Federal or non-Federal candidates, with
at least 50 percent Federal funds under 11 CFR 106.6(b)(1)(iv)
and (c). EMILY's List asks about public communications in
support of its efforts related to state legislative initiatives
and referenda. These communications will not refer to any
Federal or non-Federal candidates, but will refer to
"Democrats," which constitutes a reference to a political party
in a Federal political committee's public communication.
Section 106.6(b)(1)(iv) and (c) apply to nonconnected Federal
political committee's public communications that refer to a
political party, but do not refer to any candidates, and require
Federal political committees to pay the costs of such
communications with at least 50 percent Federal funds. As the
Commission noted in the Explanation and Justification for these
regulations:
Like the administrative expenses and generic voter drives
(which may refer to a political
party), which are also allocated under section 106.6(c),
these references solely to a
political party inherently influence both Federal and non-
Federal elections. Therefore,
the 50% Federal funds requirement reflects the dual nature
of the communication.
Final Rules, 69 Fed. Reg. at 68062. A discussion of a State
legislative initiative or referendum does not alter the
application of these rules. Thus, EMILY's List must pay for
these public communications with at least 50 percent Federal
funds. The Commission notes that if the references to
"Democrats" were to be removed from the public communications,
EMILY's List would be permitted to pay for the revised
communications with 100 percent non-Federal funds, because they
would not refer to any clearly identified Federal candidates or
political parties.
Your request also asks if the answer depends on whether
EMILY's List otherwise supports only non-Federal candidates in
that State during the current election cycle. The analysis that
EMILY's List must pay the costs of public communications that
refer to a political party with at least 50 percent Federal
funds does not change based on the activities of EMILY's List in
the particular State. Commission regulations at
11 CFR 106.6(b)(1)(iv) and (c) apply to public communications
based on the content of the communications, without regard to
other activities of the person making the communications.
4. Do three specific public communications indicate that the
funds received in response will be used to support the election
of a clearly identified Federal candidate?
A gift of money made by any person for the purpose of
influencing any election for Federal office is a "contribution"
under the Act. 2 U.S.C. 431(8)(A)(i). Commission regulations
specify one way in which the definition of "contribution" is
met. 11 CFR 100.57. This regulation provides that a gift of
money made by any person in response to any communication is a
contribution to the person making the communication if the
communication indicates that any portion of the funds received
will be used to support or oppose the election of a clearly
identified Federal candidate. 11 CFR 100.57(a)(1). Thus, in
these circumstances, whether EMILY's List must treat receipts in
response to a communication as Federal contributions depends on
whether its communication indicates that any of the funds
received in response will be used to support or oppose the
election of a clearly identified Federal candidate.4
Your advisory opinion request sets out three examples of
portions of letters in which a Federal candidate, Senator
Stabenow, would raise funds for EMILY's List. The Commission
notes that a draft of the entire communication is not yet
prepared, so the conclusions in this Advisory Opinion about the
application of 11 CFR 100.57 are limited to the text of the
following three examples. The Commission emphasizes that any
additional content in the communication could affect the
analysis of whether the communication indicates that any of the
funds received in response will be used to support or oppose the
election of a clearly identified Federal candidate.
(a) "We are asking for your support, so that EMILY's List
can support candidates,
who, like me, could never succeed as women in politics
without the combined
commitment of all [of] us."
(b) "EMILY's List's support over the years for candidates
like me has made an
enormous difference to the progress of women toward
equality in the pursuit of
political office. But we have a long way to go.
That's why I need your help."
(c) "EMILY's List has always supported me [Senator
Stabenow] when I
most needed it. And that is why I am asking you to
support EMILY's
List today, so that it can continue the work on behalf
of women who, by
seeking state office today, will be ready to claim
national leadership
tomorrow."
All three communications indicate that the funds EMILY's List
receives in response will be used to support candidates and
implicitly to support their election to office. The only
question is whether these communications indicate that Senator
Stabenow is among those candidates.
Example (a) states that EMILY's List will use funds
received in response to the communications to "support
candidates who, like me, could never succeed as women in
politics." Senator Stabenow is a candidate for re-election to
Federal office, and this statement indicates that she is among
the candidates EMILY's List will support. In this way, the
communication in example (a) indicates that a portion of the
funds received in response would be used to support Senator
Stabenow's re-election, which satisfies 11 CFR 100.57(a)(1).5
Consequently, all of the funds received in response to the
communication would be contributions under 11 CFR 100.57. These
funds must comply with the amount limitations, source
prohibitions, and reporting requirements of the Act. See
11 CFR 103.3.
Like example (a), example (b) also emphasizes "EMILY's
List's support over the years for candidates like me."
Additionally, with the language, "I [Senator Stabenow] need your
help," Senator Stabenow is also appealing on her own behalf.
With these words, example (b) indicates that some of the funds
raised will be used to support Senator Stabenow's re-election,
which satisfies 11 CFR 100.57(a)(1). As with example (a), all
of the funds received in response to the communication would be
contributions that must comply with the Act, as described above.
In contrast, example (c) also features a clearly identified
Federal candidate raising funds for EMILY's List, but it
indicates those funds will be used on behalf of women seeking
State office. Example (c) makes this clear when Senator
Stabenow states that she seeks funds for EMILY's List to use to
"continue the work on behalf of women who, by seeking state
office today, will be ready to claim national leadership
tomorrow" (emphasis added). Even though Senator Stabenow is a
clearly identified Federal candidate, the communication does not
indicate that any portion of the funds received will be used to
support her re-election. Therefore, example (c) does not
trigger section 100.57, and EMILY's List may consider any funds
received in response to be donations to its non-Federal account.6
The Commission emphasizes that this conclusion is limited to the
text of example (c). Any additional text in the
communication, including particularly any references to a
clearly identified Federal candidate, could affect the analysis
of whether section 100.57 is satisfied if the communication,
considered as a whole, indicates that any of the funds received
in response will be used to support or oppose the election of a
clearly identified Federal candidate.
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
_______________________________
1 Generic voter drives include voter identification, voter
registration, and get-out-the-vote drives or any other
activities that urge the general public to register, vote or
support candidates of a particular party or associated with a
particular issue, without mentioning a specific candidate.
11 CFR 106.6(b)(1)(iii). Administrative expenses are also
defined in 11 CFR 106.6(b)(1)(i).
2 "Federal funds" are funds subject to the limitations,
prohibitions, and reporting requirements of the Act. See 11 CFR
300.2(g). "Non-Federal funds" are funds not subject to the
limitations and prohibitions of the Act. See 11 CFR 300.2(k).
3 Communications that expressly advocate the election or
defeat of a clearly identified Federal candidate have long been
considered for the purpose of influencing Federal elections,
without regard to any targeting requirement. See, e.g., Buckley
v. Valeo, 424 U.S. 1, 79-80 (1976).
4 If the communication satisfies section 100.57, a disclaimer
that Federal contributions are not being solicited would not
negate the application of section 100.57. See Final Rules, 69
Fed. Reg. at 68057; see also FEC v. Massachusetts Citizens for
Life, Inc., 479 U.S. 238, 249 (1986).
5 Because the communications will not refer to any non-
Federal candidates, they will not satisfy 11 CFR 100.57(b)(2),
which would have permitted EMILY's List to consider up to 50
percent of the proceeds to be donations to its non-Federal
account.
6 As a Federal candidate and officeholder, Senator Stabenow
is subject to 2 U.S.C. 441i(e). Accordingly, she may not
solicit funds in connection with an election other than an
election for Federal office, unless the funds do not exceed the
amounts permitted with respect to contributions to candidates
and political committees under 2 U.S.C. 441a(a)(1), (2), and
(3), and do not come from sources prohibited under the Act. See
2 U.S.C. 441i(e)(1)(B); 11 CFR 300.62.