Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
November 21, 2006
Benjamin L. Ginsberg, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037-1350
Dear Mr. Ginsberg:
Please be advised that the Commission has dismissed
your request for an advisory opinion (AOR 2006-32) on behalf
of Progress for America Voter Fund ("PFA Voter Fund") and
Progress for America ("PFA") because the request appears to
concern past action, rather than present or intended
activity, and other portions of the request are incomplete.
Thus the request does not satisfy the requirements of
section 437f(a)(1) of the Federal Election Campaign Act (the
"Act") and Commission rules at 11 CFR 112.1(b) and (c)
regarding advisory opinions.
The Act authorizes the Commission to issue an advisory
opinion in response to a complete written request from any
person with respect to a specific transaction or activity by
the requesting person. 2 U.S.C. 437f(a)(1). Commission
regulations state that the request must concern a specific
transaction or activity that "the requesting person plans to
undertake or is presently undertaking and intends to
undertake in the future." 11 CFR 112.1(b). Thus, requests
concerning predominantly or exclusively past action do not
qualify for advisory opinions. The regulations also state
that a request posing a hypothetical situation does not
qualify as an advisory opinion request. Id. The
regulations require that the requestor provide "a complete
description of all facts relevant to the specific
transaction or activity with respect to which the request is
made." 11 CFR 112.1(c).
PFA Voter Fund and PFA asked whether disbursements for
two advertisements planned for broadcast and dissemination
through other media will be "expenditures" under the Act,
whether other proposed communications will solicit
"contributions" under the Act, and whether certain spending
projections and other activities will satisfy the major
purpose test, which operates as a constitutional limit in
determining whether an organization must register and report
as a political committee. In September 2006, the two
organizations represented that the proffered advertisements
would be aired before November 4, 2006, and that the same
ads would be broadcast and distributed through other means
in 2007 and through the general election in 2008.
Additionally, PFA Voter Fund represented that by November 4,
2006, it intended to spend the bulk of its annual budget on
these two advertisements.
Based on the Commission's review of publicly available
information, including reports filed with the Commission and
the Internal Revenue Service, it appears that the two
advertisements identified in the advisory opinion request
were not aired through broadcast media prior to the November
7, 2006 election. Consequently, the spending projections
for 2006 that hinged on devoting the bulk of this year's
budget to these advertisements also did not materialize.
The Commission notes that virtually identical advertisements
were aired during the 2004 election season. Therefore, the
request appears to concern predominantly past plans rather
than present or future activity, and, as to past activities,
is not appropriately addressed in an advisory opinion. 11
CFR 112.1(b). Additionally, the fact that plans projected
for 2006 did not, in fact, occur, renders as remote and
hypothetical projections that those same plans will continue
through the 2008 election and beyond. Finally, the
information presented in the request concerning the spending
plans of PFA is insufficient for the Commission to draw a
conclusion with respect to whether or not PFA would satisfy
the major purpose test in the future. See 11 CFR 112.1(c).
For these reasons, the Commission has dismissed the
request from PFA Voter Fund and PFA. If you have any
questions, please contact Duane Pugh, Acting Assistant
General Counsel, at 202-694-1650.
Sincerely,
(signed)
Lawrence H. Norton
General Counsel