Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
May 31, 2000
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2000-07
Jonathan B. Newton
Baker & McKenzie
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Dear Mr. Newton:
This responds to your letter dated April 12, 2000, on
behalf of Alcatel USA, Inc. ("Alcatel USA" or "the
company"), requesting an advisory opinion concerning the
application of the Federal Election Campaign Act of 1971, as
amended ("the Act") and Commission regulations to messages
to employees with respect to the company's separate
segregated fund ("SSF").
Alcatel USA is a Delaware corporation and its principal
place of business is in the United States. The company has
an SSF, Alcatel USA, Inc. PAC ("Alcatel PAC" or "the PAC"),
which filed its statement of organization with the
Commission in 1987 and is qualified as a multicandidate
committee.1 You state that the PAC is funded entirely by
contributions from stockholders, Alcatel USA's executive and
administrative personnel, and the families of such persons.
Your request asks about the permissibility of an intranet
vehicle for information about Alcatel PAC that would entail
messages to employees beyond the restricted class. You also
ask about the permissibility of the use of an electronic
mail mailing list for messages to the restricted class.
Proposed activity
Alcatel USA has developed a new intranet web site
called the AUSA Government Relations Web Site ("the
government relations site") which is available only to the
employees of Alcatel USA. On this site, the company will
post information regarding: (1) the status of regulatory and
legislative activities of interest to the company and its
employees; (2) contact information for the elected
representatives in both the House and the Senate for locales
where the company has a presence; (3) information on the
activities of the company's government relations office; and
(4) general information on Washington D.C. and Federal
agencies. Alcatel USA will also post the following message
on the site:
Alcatel USA, Inc. supports the operation of
the Alcatel USA, Inc. Political Action Committee
("the Alcatel PAC") as authorized by, and in
accordance with, federal law. Under applicable
law, participation in the Alcatel PAC is limited
to only those Alcatel USA employees who hold high-
level administrative, executive or managerial
responsibilities in the U.S.2 The Alcatel PAC
funds are used to make contributions to candidates
for federal office. Under applicable law, the
amounts that may be contributed to and by a PAC
are limited, and steps must be taken to ensure
that employee contributions to the PAC are
strictly voluntary and without coercion. The
Executive Committee of the Alcatel PAC decides
what federal candidates merit consideration for
contributions. Employees desiring additional
information on their eligibility or about the
activities of the Alcatel PAC may contact Alcatel
USA Political Action Committee, 1000 Coit Road,
Plano, TX 75075, Attention: [name, phone number
and e-mail address of Alcatel PAC official].
In addition to the above paragraph, the government
relations site will provide a link to a separate web site
specifically for Alcatel PAC (the "PAC site"). The link
will take readers to a web page that requests a password
before access will be granted to the PAC site. This page
will contain the following messages, set off in contrasting
type and within a border:
Federal law prohibits the Alcatel USA
Political Action Committee from soliciting
donations from other than stockholders, executive
and administrative personnel and the families of
such individuals. Any contribution received from
any other person will be returned to the donor.
Employees desiring additional information on
their eligibility to participate or about the
activities of the Alcatel PAC may contact Alcatel
USA Political Action Committee, 1000 Coit Road,
Plano, TX 75075, Attention: [name, phone number
and e-mail address of Alcatel PAC official].
When an employee contacts the Alcatel PAC for
additional information, the individual's eligibility will be
determined before any additional information is provided.
If, in response to a request for information, an individual
is determined to be outside of the restricted class, such
person will be referred to the Federal Election Commission
for any information on file and publicly available. A
member of Alcatel USA's restricted class will be provided
with further information, including access to the PAC site.
A separate and unique password will be provided to the
member of the restricted class in order to access the PAC
site. The PAC site will contain information about the
activities of Alcatel PAC, including discussion of the aims
and philosophy of the PAC, the candidates it endorses, and
the legislation it supports.
Alcatel PAC also proposes to institute an electronic
mail mailing list (the "ListServe") to which only members
of the restricted class will belong. After an employee
contacts Alcatel PAC for additional information, and her
eligibility is confirmed, she will be invited to participate
in the ListServe. The employee will be free to decline such
participation. The ListServe will consist of the e-mail
addresses of solicitable members only. The PAC will use the
ListServe to send e-mail messages to those persons
containing solicitations for contributions to Alcatel PAC
and information about the PAC's activities, including
discussion of the aims and philosophy of the PAC, the
candidates it endorses, and the legislation it supports.
Since the government relations site is accessible to
all of the employees of Alcatel USA, the quoted messages
will be available to more than just a de minimis number of
persons outside the restricted class. You therefore ask
whether the messages that can be viewed prior to a request
by an employee for further information constitute a
solicitation. You also ask whether the PAC may institute
the List Serve proposal.
Legal Analysis
As an exception to the general prohibition on corporate
contributions and expenditures, the Act and Commission
regulations permit a corporation, or its separate segregated
fund, to solicit voluntary contributions to such a fund at
any time from its "restricted class." The restricted class
consists of the corporation's executive and administrative
personnel, its stockholders, and the families of such
persons. 2 U.S.C. 441b(b)(4)(A)(i), 11 CFR 114.1(c) and
114.5(g)(1);3 see also 2 U.S.C. 441b(b)(4)(B), 11 CFR 114.6
(prescribing conditions under which other employees may be
solicited twice yearly in writing). In order for Alcatel
USA to implement the proposed activities, they must be
permissible under 2 U.S.C. 441b(b)(4)(A)(i).4
The issue of whether a corporate communication
constitutes a solicitation for contributions to the
corporation's SSF is not specifically addressed in the Act
or Commission regulations. The Commission has addressed the
issue in specific advisory opinions where it has reviewed
the particular language of a communication and analyzed
whether the language does, in fact, solicit participation.
Specifically, the Commission has determined whether the
language or information provided would either encourage
readers to support an SSF's activities or facilitate making
contributions to the SSF. See, e.g., Advisory Opinions 1999-
6, 1991-3, 1988-2, 1983-38, 1982-65, 1980-65, 1979-66, and
1979-13.
One of these opinions addressed communications with
features similar to the company's message on the government
relations site. Advisory Opinion 1983-38 considered an
article in a corporation's monthly newsletter announcing the
formation of an SSF and stating that it would solicit funds
only from high-level corporate employees, that the funds
would be used to make contributions to Federal candidates,
that amounts contributed to and by the SSF would be limited
under Federal law, that steps must be taken to ensure that
employee contributions are strictly voluntary and without
coercion, and that a committee of corporate employees would
decide which candidates the SSF would support. The
Commission noted that, while the proposed article "may
engender some inquiries" about the SSF from readers who are
not solicitable, it did nothing to encourage or facilitate
participation, did not praise employees for contributing,
and did not inform the reader that unsolicited contributions
from employees outside the restricted class would be
accepted. Advisory Opinion 1983-38.
Other opinions have examined situations where certain
information about the PAC was made available in newsletters
or by other means, such as totals of contributions made and
received in the past, the number of past recipient
candidates, and the identification of such candidates. See
Advisory Opinions 1988-2, 1982-65, 1979-66, and 1979-13.
The mere statement of such information without further
language of encouragement has not been construed to be a
solicitation. However, the Commission concluded that
solicitation would occur where a newsletter stated the
amounts raised and spent by the SSF, the methods used by the
SSF to determine its contribution recipients, and the number
of employees participating in the past year, and contained a
quotation from the fund's chairman commending the enthusiasm
of those employees. Advisory Opinion 1979-13.
The paragraph that appears on the government relations
site refers to the fact that Alcatel USA supports Alcatel
PAC, and it describes generally the functions of any
corporate SSF and the laws applicable to its operations. It
is similar to the language addressed in Advisory Opinion
1983-38 and determined not to be a solicitation. Although
the paragraph also states that employees desiring additional
information on their eligibility or about the PAC's
activities may contact the PAC (and this is repeated on the
web page introducing the PAC site), such a statement merely
conveys information that might engender inquiry; it is not
an encouragement to contribute. In addition, the web page
introducing the PAC site discourages attempts to contribute
by stating that contributions received from persons outside
the restricted class will be returned.
The Commission concludes, therefore, that the messages
on the government relations site and the web page
introducing the PAC site do not, either separately or taken
together, constitute a solicitation. Alcatel USA may post those messages on the
described web site locations for viewing by employees in or outside the
restricted class.
Your brief description of the content of the messages
on the PAC site after the introductory web page indicates
that viewers who qualify for access to the PAC site will
likely receive PAC contribution solicitations once they
enter the site. By providing a separate and unique password
only to persons in the restricted class and by limiting
access to those password holders only, Alcatel USA would
ensure that solicitations for contributions to the PAC would
comply with the restrictions of 2 U.S.C. 441b(b)(4)(A)(i)
and 11 CFR 114.5(g). The Commission concludes that Alcatel
USA's proposal for posting messages on its intranet web
sites is permissible under the Act.
As indicated above, those employees who have contacted
the PAC for additional information and are determined to be
part of the restricted class will be invited to participate
in ListServe, which will be used to send SSF solicitations
and other communications to those employees. As already
explained, solicitations for contributions to the PAC may be
sent at any time to persons within the restricted class.
Moreover, the Act and Commission regulations exempt from the
definition of "contribution or expenditure" any
communication by a corporation to its restricted class. 2
U.S.C. 441b(b)(2)(A); 11 CFR 114.3(a). The use of
electronic mail for SSF solicitations and other
communications to the restricted class is permissible under
the Act. See Advisory Opinion 1995-33.
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.
Sincerely,
(signed)
Darryl R. Wold
Chairman
Enclosures (AOs 1999-28, 1999-6, 1995-33, 1995-15, 1991-3,
1988-2, 1983-38, 1982-65,
1982-34, 1980-65, 1979-66, and 1979-13)
_______________________________
1 The PAC originally filed under the name DSC
Communications Corporation PAC, reflecting the name of
Alcatel USA's predecessor. In 1998, an amended statement of
organization was filed to report the change to the present
name.
2 The Commission notes that the PAC may also solicit
contributions from the families of executive and
administrative personnel of Alcatel USA, and may solicit
contributions from the individual stockholders of Alcatel
USA, and the families of such stockholders. The PAC may
not, however, solicit contributions from any foreign
national. See footnote 4 and citations therein.
3 The Commission has, under limited circumstances, applied
the Act to permit the distribution of solicitation messages
in journals, magazines, or newsletters outside the
restricted class. The message must include an explicit
caveat stating that contributions will be screened and those
from persons who are not solicitable will be returned; the
declared return or refund policy must be implemented by the
SSF; and both the actual number and the percentage of
unsolicitable persons must be incidental or de minimis, as
compared to the entire circulation of the publication. See
Advisory Opinion 1999-6 and opinions cited therein. The
Commission considers a corporate intranet web site as very
similar to a newsletter that a corporation would send to its
employees. As already indicated, the quoted messages will
be available to more than a de minimis number of employees
outside the restricted class.
4 The Commission notes that Alcatel USA is a subsidiary of
Alcatel, a French company. Under 2 U.S.C. 441e and 11 CFR
110.4(a), it is unlawful for a foreign national to make a
contribution in connection with any Federal or non-Federal
election. Moreover, foreign nationals may not be solicited
for contributions. Thus, Alcatel USA's restricted class may
not include the foreign national employees or foreign
national stockholders of Alcatel USA or of any of its
affiliated companies. See 11 CFR 110.4(a)(2); see also
Advisory Opinions 1999-28 and 1982-34. The Commission also
notes that Alcatel USA is required to administer Alcatel PAC
in accordance with the requirements of 11 CFR 110.4(a)(3),
which prohibits foreign national participation. See, e.g.,
Advisory Opinion 1995-15.