Federal Election Commission Main Page
May 25, 1979
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1979-13
Mr. A. Pearce Godley
Chairman
RAYPAC
2801 South Post Oak Road
Houston, Texas 77066
Dear Mr. Godley:
This is in response to your letters of March 26 and
April 5, 1979, requesting an advisory opinion concerning
application of the Federal Election Campaign Act of 1971, as
amended ("the Act"), to publicizing the existence of the
Raymond International Inc. Employees' Political Action
Committee ("RAYPAC").
Your letter states that RAYPAC is a separate segregated
fund established by Raymond International Inc. ("the Corporation")
and empowered by the corporation to only solicit
executive and administrative personnel, stockholders, and
their spouses. You add that the Corporation publishes a
newsletter, entitled the "Raymond Record," six times a year
for the information of employees and retirees of the Raymond
Group of Companies. It is distributed to all of the Corporation's
permanent employees and retirees, as well as stockholders
and certain other interested parties on request. Attached
with your letter in an article which you are considering for
inclusion in the "Record." The article states the amount of
money raised and spent by RAYPAC and the methods used by
RAYPAC in determining to whom it should contribute. The
article further points out the number of corporate employees
who "participated in" RAYPAC's activities in 1978 and includes
a quotation from you as RAYPAC chairman:
"I was glad to see that Raymond has so many
employees who realize that the welfare of us
all is tied very closely to government policies
and attitudes toward business. RAYPAC is
one way we can make the voice of business
people and our industry heard in this county.
I hope we continued [sic] to have such an
enthusiastic group."
You ask whether, under these circumstances, inclusion
of the article in the "Record" would be permissible under
the Act. If not, you ask whether such article would be
permissible without the sentence: "However, the PAC's by-laws
state that RAYPAC may accept voluntary contributions
from any lawful contributor."
Under the Act, a corporation or a separate segregated
fund established by a corporation may make two written
solicitations for contributions during the calendar year
from any stockholder, executive or administrative personnel,
or employee of a corporation or the families of such persons.
2 U.S.C. SS 441b(b)(4)(B). Section 114.6 of the Commission's
regulations provides that such solicitations may be made
only by mail addressed to stockholders, executive and administrative
personnel, or employees at their residences, and
must inform the recipient of the requirements of this section.
For purposes of this section the term "employees" does not
include retired employees who are not stockholders. 11 CFR
114.6(a).
Since the "Record" reaches a group of persons which
RAYPAC may not generally solicit for contributions except as
provided under SS 114.6, the issue presented is whether the
proposed article is a solicitation for contributions to
RAYPAC and thus prohibited from being included in the "Record."
The legislative history of the Act indicates that
informing persons of a fundraising activity is considered a
solicitation. See Advisory Opinions 1976-27, 1976-96, and
1978-17, copies enclosed. See particularly AO 1976-27 which
includes quotes from Senators Allen, Cannon, and Packwood
during Senate floor debates on the 1976 Amendments to the
Act. Also, Representative Hays of Ohio, in explaining the
corporate and union solicitation provisions of the 1976
Amendments (2 U.S.C. SS 441b), stated:
[We] determined that any action [that] could
fairly be considered a request for a contribution
should be treated as a solicitation. 122
Cong. Rec. 43779 (daily ed. May 3, 1976)).
The Commission is, accordingly, of the view that the proposed
article would be a solicitation within the meaning of the
Act since it describes RAYPAC's activities and encourages
employee participation in RAYPAC by commanding the enthusiasm
of employees whose participation in RAYPAC has indicated
awareness of the connection between their welfare and government
policies toward business. Therefore the article may
not be included in the "Record" or any other publication of
the Corporation which is distributed to persons that RAYPAC
is otherwise prohibited from soliciting for contributions.
Additionally, your letter asks whether the article
would be acceptable for inclusion in the "Record" by removing
the sentence which states: "However, the PAC's bylaws state
that RAYPAC may accept voluntary contributions from any
lawful contributor." The Commission answers this question
in the negative. The elements of the article as discussed
above that make it a contribution solicitation would still
be present in the proposed article even with the deletion of
that particular sentence.
Your letter makes reference to Advisory Opinion 1978-97
wherein the Commission concluded that a contribution solicitation
could be included in a membership publication because
the organization involved took certain precautionary steps to
instruct its personnel that contributions to the PAC must be
checked and returned if made by a nonmember of the organization,
and because the solicitation was primarily directed only at
its members (with an incidental circulation beyond its
membership). In your case, however, neither the Corporation
nor RAYPAC propose to take precautionary measures like those
described in AO 1978-97. Moreover, the medium for the
solicitation (i.e. the "Record") is not directed only to the
executive and administrative personnel of the Corporation,
but rather to a larger group of persons that RAYPAC is
either prohibited from soliciting altogether or must solicit
under the conditions of 11 CFR 114.6. If the Corporation or
RAYPAC take precautionary measures as described in AO 1978-97
and if the "Record" has only an incidental circulation to
persons that RAYPAC is either prohibited from soliciting
altogether or must solicit under the conditions of 11 CFR
114.6, the proposed article would not then be viewed as an
improper contribution solicitation under the Act and regulations.
This response constitutes an advisory opinion concerning
the application of a general rule of law stated in
the Act or prescribed as a Commission regulation, to the
specific factual situation set forth in your request. See 2
U.S.C. SS 437f.