Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
April 25, 2006
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2006-11
Marc E. Elias, Esquire
Caroline P. Goodson, Esquire
Perkins Coie
607 14th Street, N.W.
Washington, D.C. 20005-2011
Dear Mr. Elias and Ms. Goodson:
We are responding to your advisory opinion request on behalf
of the Washington Democratic State Central Committee (the "State
Party Committee"), concerning the application of the Federal
Election Campaign Act of 1971, as amended (the "Act"), and
Commission regulations to the allocation of payments for mass
mailings that expressly advocate the election of one clearly
identified Federal candidate, as well as the elections of other
candidates of the Democratic party who are referred to only
generically.1 You ask whether, under the Act and Commission
regulations, a permissible attribution of the costs of the mass
mailing would entail payment of 50 percent by the State Party
Committee and 50 percent by the clearly identified Federal
candidate's principal campaign committee ("PCC").
The Commission concludes that at least 50 percent of the
cost of the mailing must be attributed to the clearly identified
Federal candidate. However, if the space of the mailing devoted
to the clearly identified Federal candidate exceeds the space
devoted to the generically referenced candidates of the State
Party Committee, then the costs attributed to the clearly
identified candidate must exceed 50 percent and reflect at least
the relative proportion of the space devoted to that candidate.
Background
The facts presented in this advisory opinion are based on
your letter received on
February 27, 2006.
The State Party Committee is the State committee of the
Democratic Party of Washington and is registered as a political
committee with the Commission. In connection with the 2006
general election, the State Party Committee proposes to prepare
and distribute one or more mass mailings, each of which will
refer to only one clearly identified Federal candidate and will
also generically refer to other candidates of the party who are
not clearly identified. The State Party Committee will
coordinate each mailing with the clearly identified Federal
candidate. Each mailing will expressly advocate the election of
both the clearly identified Federal candidate and the other
generically referenced candidates of the State Party Committee.
None of the mailings will contain any solicitations for a
contribution or donation to the State Party Committee, to any
candidate, or to any other person. You stipulate that only
Federal funds will be used to pay for each mailing.2
Question Presented
With respect to a mass mailing that refers to only one
clearly identified Federal candidate and refers generically to
other candidates of the party who are not clearly identified, and
that expressly advocates the election of the clearly identified
candidate and the generically referenced candidates, but does not
solicit funds, may the State Party Committee pay 50 percent of
the cost of the mass mailing, and may the PCC of the clearly
identified Federal candidate pay the remaining 50 percent?
Legal Analysis and Conclusion
Yes, the State Party Committee and the PCC of the clearly
identified Federal candidate - whether a House, Senate, or
presidential candidate - may each pay 50 percent of the cost of
the mailing so long as the space devoted to the candidate in the
mailing does not exceed the space in the mailing devoted to the
generically referenced candidates of the State Party Committee.
If the
space of the mailing devoted to the clearly identified Federal
candidate exceeds the space devoted to the generically referenced
candidates of the State Party Committee, then the costs
attributed to
the clearly identified candidate must exceed 50 percent and
reflect at least the relative proportion of the space devoted to
that candidate. For example, if the space devoted to the clearly
identified Federal candidate is twice that devoted to the
generically referenced candidates of the State Party Committee,
then the costs attributed to the clearly identified Federal
candidate is two-thirds of the total cost, and the PCC must pay
at least that amount in order to avoid a contribution by the
State Party Committee to the candidate or a coordinated
expenditure by the State Party Committee on behalf of the
candidate. See 2 U.S.C. 441a(a)(2)(A) and 441a(d)(3).
Neither the Act nor Commission regulations definitively
address the appropriate allocation of payments for the type of
mass mailings described in your request. Commission regulations
at 11 CFR part 106 include both general allocation rules and
rules for allocating specific types of expenses in particular
circumstances. Section 106.1(a) provides the general rule that
expenditures made on behalf of more than one clearly identified
candidate "shall be attributed to each such candidate according
to the benefit reasonably expected to be derived." For
"publications" (which includes mass mailings), the attribution is
determined by "the proportion of space or time devoted to each
candidate as compared to the total space or time devoted to all
candidates." 11 CFR 106.1(a). This regulation only addresses
communications involving more than one clearly identified
candidate, and does not directly address how attribution applies
to a communication involving only one clearly identified
candidate in combination with a generic reference to other
candidates of a political party.
Commission regulations at 11 CFR 106.8 (which apply only to
phone banks conducted by a party committee) do address the
attribution required for a communication that possesses the same
attributes as the mass mailings described in your request (i.e.,
reference to only one clearly identified Federal candidate along
with a generic reference to other party candidates; and no
solicitation of funds). See 11 CFR 106.8(a). Under 11 CFR
106.8, a flat 50 percent of the costs of a phone bank
communication must be attributed to the clearly identified
candidate, and the other 50 percent must be attributed to the
party committee, regardless of the amount of time devoted to
each. 11 CFR 106.8(b). However, the Commission's Explanation
and Justification of this regulation specifically noted that the
Commission had considered whether to include other forms of
communications, such as mailings, within the regulation's
coverage but "decided to limit the scope of new section 106.8 to
phone banks . . . because each type of communication presents
different issues that need to be considered in further detail
before establishing new rules." Party Committee Telephone Banks,
Final Rules, 68 FR 64517, 64518 (November 14, 2003).
Although neither 11 CFR 106.1 nor 106.8 is directly
applicable for reasons discussed above, the Commission concludes
that there is nonetheless an appropriate method for allocating
the costs of the mailings described in your request. A mass
mailing that expressly advocates the election of only one clearly
identified Federal candidate, as well as the election of
generically referenced, but not clearly identified, candidates,
serves in large measure the purpose of influencing the election
of the clearly identified Federal candidate, no matter how much
of the space in the mailing is devoted to that candidate. See 2
U.S.C. 431(8)(A)(i) and (9)(A)(i);
11 CFR 100.52(a) and 100.111(a). Advocacy related to the
election of the clearly identified candidate is the most salient
feature of such a communication, as compared to the generic
reference to the party's candidates, which does not single out
any particular candidate to the reader. Cf. 11 CFR 106.6(f).3
Although the Commission recognizes that such a communication also
encourages support for all of the party's other candidates, and
hence the State Party Committee itself derives some benefit from
the mailing,4 "the benefit reasonably expected to be derived" by
the clearly identified candidate from the mass mailing is
sufficient to require no less than a 50 percent attribution of
costs to him, even if the space attributable to him is less than
that attributable to the generically referenced candidates. See
11 CFR 106.1(a).
Where the space in the mailing devoted to the clearly
identified Federal candidate exceeds the space devoted to the
generically referenced party candidates, the Commission concludes
that it is appropriate to apply analogous "space or time"
principles set out in 11 CFR 106.1(a). In this situation, "the
benefit reasonably expected to be derived" by the clearly
identified candidate should be measured by determining the amount
of space devoted to the clearly identified candidate as compared
to the amount of space devoted to the generically referenced
party candidates. Because no part of the cost of the mass
mailing may be left unattributed to either the clearly identified
Federal candidate or the State Party Committee, the percentage of
the cost of the mailing to be attributed to the clearly
identified candidate is equal to the amount of space devoted to
the candidate as compared to the total space devoted to both that
candidate and the generically referenced party candidates. No
contribution or coordinated expenditure would be made by the
State Party Committee so long as the PCC pays at least its
proportionate share of the cost of the mass mailing.5 The
portion of a mass mailing that is attributable to the clearly
identified Federal candidate can be: (1) an in-kind contribution,
subject to the limitations set forth in 11 CFR 110.2; (2) a
coordinated expenditure, subject to the limitations,
restrictions, and requirements of 11 CFR 109.32 and 109.33; or
(3) reimbursed by the clearly identified Federal candidate or his
authorized committee. See 11 CFR 106.8(b)(2).
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)
Michael E. Toner
Chairman
_______________________________
1 One example of such a message would be: "Vote for John Doe and
our great Democratic team."
2 Under the Act and Commission regulations, a "mass mailing" is
a form of "public communication." 2 U.S.C. 431(22) and (23); 11
CFR 100.26 and 100.27. When a State party committee makes a
public communication that promotes, supports, attacks, or opposes
a clearly identified Federal candidate, the communication is
"Federal election activity" (regardless of whether it expressly
advocates the candidate's election or defeat or refers also to
non-Federal candidates) and must be paid for only with Federal
funds. 2 U.S.C. 431(20)(A)(iii), 441i(b)(1) and (2); 11 CFR
100.24(b)(3), 300.32(a)(2) and (b)(2). Similarly, a Federal
candidate, his agents, or entities directly or indirectly
established, financed, maintained or controlled by him may spend
only Federal funds in connection with an election for Federal
office, including funds for any Federal election activity. 2
U.S.C. 441i(e)(1)(A); 11 CFR 300.61. "Federal funds" are funds
that comply with the limitations, prohibitions, and reporting
requirements of the Act. 11 CFR 300.2(g).
3 In a recent revision to the allocation rules for separate
segregated funds and nonconnected committees at 11 CFR 106.6(f),
the Commission viewed voter drives and public communications
"that refer to a political party and either Federal or non-
Federal candidates, but not both, as `candidate-driven.'" See
Political Committee Status, Definition of Contribution, and
Allocation for Separate Segregated Funds and Nonconnected
Committees, Final Rules, 69 FR 68,056, 68,063 (November 23,
2004).
4 Cf. 11 CFR 106.8.
5 The Commission emphasizes that this advisory opinion is
limited to mass mailings containing a reference to a clearly
identified Federal candidate along with a generic reference to
other candidates of the same party. This opinion does not
address the rules that govern mass mailings containing references
to one or more non-Federal candidates.