Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
April 21, 2006
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2006-7
The Hon. J.D. Hayworth
Member of Congress
J. D. Hayworth for Congress
14300 N. Northsight Blvd., Suite 105
Scottsdale, Arizona 85260
Dear Congressman Hayworth:
We are responding to your advisory opinion request on
behalf of J.D. Hayworth for Congress (the "Committee"),
concerning the application of the Federal Election Campaign Act
of 1971, as amended (the "Act"), and Commission regulations to
placing material promoting sales of a book you wrote entitled
Whatever It Takes on the Committee's website. The Commission
concludes that the Committee may place the promotional material
on its website because the de minimis cost of adding this
material to the Committee's website does not constitute a
prohibited personal use of contributions accepted by a candidate
under 2 U.S.C. 439a(b).
Background
The facts presented in this advisory opinion are based on
your letter received February 9, 2006, as supplemented by an e-
mail dated February 17, 2006.
The Committee is your principal campaign committee in your
candidacy for reelection to the House of Representatives. You
wrote a book entitled Whatever It Takes that was recently
published by Regnery Publishing, Inc. The Committee has a
website, www.jdhayworth.com, that includes a substantial amount
of campaign material, including a brief biography of the
candidate, discussion of various issues, endorsements, news
archives, schedules of upcoming campaign events, and similar
material. The Committee proposes to offer on its campaign
website information along the lines of the following:
Also, please keep an eye on this space for
upcoming information on book signings (if you don't
want to make a contribution, books are available at
most bookstores and at Amazon.com and other online
bookstores).
The Committee also proposes the following as a possible
alternative:
Order your autographed copy of J.D.'s newest book
Whatever It Takes for a donation of $50. Or, click
here to order your copy direct from Amazon.com.
You would receive royalties on any resulting book sales (other
than books the Committee purchases to offer to those who
contribute $50). You also confirmed that the costs of adding
the proposed material to the existing Committee website are de
minimis.
Questions Presented
May the Committee's website inform its viewers that they
may purchase a copy of Whatever It Takes "at most bookstores and
at Amazon.com and other online bookstores" when the candidate
would earn royalties from sales through those retailers?
Alternatively, may the Committee's website include a link to
Amazon.com that would enable viewers to purchase the book?
Legal Analysis and Conclusions
Yes, the Committee may do so because the de minimis cost of
adding promotional material to the Committee's website does not
constitute a prohibited personal use of campaign funds.
Under the Act and Commission regulations, a candidate and
the candidate's authorized committee have wide discretion in
making expenditures to influence the candidate's election.
2 U.S.C. 439a(a); 11 CFR 113.2. However, neither the candidate
nor the candidate's authorized committee may convert
contributions accepted by the candidate to the personal use of
the candidate or any other person. 2 U.S.C. 439a(b);
11 CFR 113.1(g) and 113.2(e)(5). The Act specifies that
conversion to personal use occurs when a "contribution or amount
is used to fulfill any commitment, obligation, or expense of a
person that would exist irrespective of the candidate's election
campaign or individual's duties as a holder of Federal office."
2 U.S.C. 439a(b)(2). The Act and Commission regulations provide
a non-exhaustive list of items that would constitute personal
use per se. See 2 U.S.C. 439a(b)(2); 11 CFR 113.1(g)(1)(i).
For items not on this list, the Commission makes a
determination, on a case-by-case basis, whether an expense would
fall within the definition of "personal use."
11 CFR 113.1(g)(1)(ii).
The expenses associated with marketing a book that a
commercial publisher has published and for which it pays
royalties to the author are expenses that exist irrespective of
the candidate's election campaign or duties as a holder of
Federal office. Therefore, under 2 U.S.C. 439a(b)(2) and
11 CFR 113.2(e)(5), contributions accepted by a candidate may
not be used to fulfill these expenses. Thus, use of a Committee
asset, like the Committee's website, to promote your book would
ordinarily constitute a prohibited personal use of the
contributions that paid for the asset. However, the proposed
use of the Committee's website is limited to the addition of a
de minimis amount of material to an otherwise substantial
website. Cf. 11 CFR 113.1(g)(1)(ii)(D) (permiting de minimis
vehicle expenses for personal activities). In light of the de
minimis use of the Committee's asset, the Commission determines
that your proposed additions to the Committee's website do not
constitute a prohibited personal use of campaign funds.
The Commission expresses no opinion regarding the
application of any rules of the U.S. House of Representatives or
any tax ramifications of the proposed activity, 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)
Robert D. Lenhard
Vice Chairman