Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
June 23, 2006
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2006-18
Jan Witold Baran, Esq.
Wiley Rein & Fielding LLP
1776 K Street, N.W.
Washington, D.C. 20006
Dear Mr. Baran:
We are responding to your advisory opinion request on
behalf of Representative Kay Granger and the Kay Granger
Campaign Fund (the "Committee"), concerning the application of
the Federal Election Campaign Act of 1971, as amended (the
"Act"), and Commission regulations to promoting sales of a
children's book Representative Granger wrote. The Committee
would like to use paid Committee personnel, the Committee's
website, and the Committee's mailing list of email addresses to
promote sales of the book and book-related events. Because all
royalties Representative Granger earns from book sales will be
donated to charitable organizations, using Committee resources
for these purposes does not constitute prohibited personal use
of contributions. Therefore, the Commission concludes that the
Committee may promote Representative Granger's book and book-
related events in the manner proposed.
Background
The facts presented in this advisory opinion are based on
your letter received May 3, 2006, as supplemented by e-mails
dated May 15 and June 9, 2006.
The Committee is Representative Granger's principal
campaign committee in her candidacy for reelection to the House
of Representatives. She wrote a children's book entitled What's
Right About America: Celebrating Our Nation's Values that will
be published in July by World Ahead Publishing, Inc.
The Committee has a website, www.kaygranger.com, that
includes a substantial amount of campaign material, including a
brief biography of the candidate, news articles, press releases,
policy position summaries, material seeking contributions and
volunteers, and similar material. The Committee proposes to add
the following to its campaign website about upcoming book-
related events:
On July 4, 2006, Congresswoman Kay Granger's
first book will be published. `What's Right About
America: Celebrating Our Nation's Values' is a short
history of the universal values that make America
great. Join Kay at ____ on July ____ for a reading
and book signings.
The Committee anticipates numerous book events, both within and
outside Representative Granger's Congressional District. In
addition to providing information about book-related events, the
Committee would also like to provide information on the website
about how to order a copy of the book.
The Committee also proposes to e-mail individuals on the
Committee's mailing list to publicize the book and provide them
with information on how to purchase a copy of the book,
including a link to Amazon.com or a similar website. The e-
mails would also provide information about upcoming book-related
events.
In supplementing your advisory opinion request, you
explained that paid Committee personnel will be involved in
garnering information about the events, posting and updating
website information, drafting and sending e-mails, and handling
any resulting public and press inquiries. Committee staff would
also like to organize and attend book-signing events, if
permissible under the Act. You also explained that the costs
associated with the promotional materials on the website would
be more than a de minimis amount. Additionally, the costs
associated with the use of the Committee's mailing list to send
promotional materials would be more than a de minimis amount.
Neither Representative Granger nor the Committee would
receive any royalties on any book sales. Instead, the contract
between the publisher and Representative Granger specifies that
all royalties from the sale of the book will be paid as
designated by Representative Granger to two charitable
organizations that are exempt from taxation under 26 U.S.C.
501(c)(3). Representative Granger intends to declare the
royalties as income for income tax purposes to the extent
required by tax law. She also intends to deduct the royalties
as charitable contributions to the extent permitted by tax law,
which would either entirely or partially offset the declared
income.
Questions Presented
May the Committee use paid Committee staff, the Committee's
website, and the Committee's mailing list of e-mail address to
promote Representative Granger's book and book- related events?
May Committee staff also organize and attend book-related
events?
Legal Analysis and Conclusions
Yes, the Committee and Committee personnel may do so
because Representative Granger has arranged to donate all
royalties to charity, so the cost of promoting the book and the
book-related events do not constitute a prohibited personal use
of campaign funds.
Under the Act and Commission regulations, a candidate and
his or her 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) (emphasis added). Here, Representative
Granger's expenses as an author in marketing the book exist
irrespective of her campaign.
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 Commission recently considered a similar situation in
Advisory Opinion 2006-7 (Hayworth). In that Advisory Opinion,
the Commission concluded that the expenses associated with
marketing a book that a commercial publisher had published and
for which it paid royalties to the candidate were expenses that
existed irrespective of the candidate's election campaign or
duties as a holder of Federal office. Therefore, use of an
authorized committee asset, like the committee's website, to
promote a book would have ordinarily constituted a prohibited
personal use of the contributions that paid for the asset.
However, in Advisory Opinion 2006-7 (Hayworth), the Commission
determined that because the cost of adding this material to an
otherwise substantial website was de minimis, the proposed
website additions did not constitute a prohibited personal use
of campaign funds. The Committee here anticipates that expenses
related to promote the book and book-related events would be
more than de minimis.
The Committee's proposal differs from the proposal
considered in Advisory Opinion 2006-7 (Hayworth) in another
respect. In Advisory Opinion 2006-7 (Hayworth), Representative
Hayworth chose to receive royalties on his book. In contrast,
Representative Granger's contract with her publisher requires
the publisher to donate any royalties she earns to two
charitable organizations. Because Representative Granger's
royalties will be donated to charitable organizations, she will
not personally gain from the use of Committee funds or assets
for the contemplated activities. All of the examples of
prohibited personal use specified in the Act involve personal
benefits or obligations of a candidate, a candidate's family, or
another person. See 2 U.S.C. 439a(b)(2)(A) through (I).
Therefore, in light of the absence of any such
personal benefit from the proposed activities, the Commission
determines that the proposed activities do not constitute a
prohibited personal use of campaign funds.1 This conclusion is
consistent with the treatment of charitable donations in the
Commission's regulations at 11 CFR 113.1(g)(2). That regulation
provides that the donation of campaign funds to a charitable
organization is not a personal use. Cf. 2 U.S.C. 439a(a)(3).
The Committee may use its website, mailing list, and paid
personnel to promote sales of Representative Granger's book and
to organize, attend, and promote book-related events.
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)
Michael E. Toner
Chairman
Enclosure (Advisory Opinion 2006-7)
_______________________________
1 This determination is premised on the understanding that any
tax deduction that Representative Granger takes with respect to
the royalties will merely offset the royalty income she declares
from this book and will not result in her realizing any net
economic benefit.