Federal Election Commission Main Page
December 21, 1979
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1979-71
Henry L. Smith, Jr.
El Paso Company
2727 Allen Parkway
P.O. Box 2185
Houston, Texas 77001
Dear Mr. Smith:
This responds to your letter of November 27, 1979,
which requests an advisory opinion on behalf of PASPAC,
a political action committee sponsored by the El Paso
Company, concerning the reporting obligations of PASPAC
pursuant to the Federal Election Campaign Act of 1971,
as amended ("the Act"), and Commission regulations.
Your letter explains that in February and April
(1979) PASPAC made contributions to a 1980 presidential
candidate. PASPAC does not presently contemplate making
additional contributions to this candidate. You understand
that Commission regulations at 11 CFR 104.4(b)(5)
(iii) require PASPAC to file pre-election and post-election
reports "only for the first election involving the [presidential]
candidate, i.e. not for all of the primaries or
caucuses."
You ask whether a state caucus involving the presidential
candidate who received the 1979 PASPAC contributions
is the only "election" for which PASPAC must file
pre-election and post-election reports as regards that
candidate, assuming it does not make any additional
contributions to that candidate. In posing this question,
you indicate uncertainty as to whether PASPAC would have
reporting obligations in connection with the January
1980 presidential caucuses in Iowa. The issue thus
posed by your request is narrowly limited to the dates
on which PASPAC must file reports pursuant to the
Act and regulations.
In response to your question, the Commission concludes
that PASPAC would not have any further reporting obligations
with respect to these February and April (1979) contributions
since they have already been reported.1/ Generally,
PASPAC is required to file reports with respect to a
State caucus involving any presidential candidate to
whom it made contributions only if the State caucus
was an "election" as defined in the Act and Commission
regulations.2/ If the caucus is an "election," the
pre-primary and post-primary reporting obligation would
only exist with respect to the State caucus that was
the primary election next occurring after the date of
the PASPAC contributions. 11 CFR 104.4(b)(5). Even then,
a report would not be necessary if the contribution
had been disclosed in a report previously filed by PASPAC.
Of course, PASPAC must file the year end report by January
31, 1980, quarterly reports (April 10, July 10, and
October 10), as well as pre- and post-general election
reports. 2 U.S.C. SS 434(a), 11 CFR 104.4.
The foregoing conclusion is based upon the definition
of "election" in the Act and regulations since PASPAC's
obligation to file reports 10 days before and 30 days
after an election depends upon whether an "election"
occurs. The Act defines "election" to mean:
(1) a general, special, primary, or
runoff election;
(2) a convention or caucus of a political
party which has authority to
nominate a candidate;
1/By Commission decision of July 26, 1979, Agenda Document
#79-208, political committees that are not candidate authorized
committees do not have to file 10 day pre-election reports
if their contributions to a candidate who is seeking nomination
(or election) in the subject election were included in a report
previously filed for an earlier reporting period.
2/PASPAC could request monthly filing status and thereby
avoid filing any pre-primary and post-primary reports. 2
U.S.C. SS 434(a)(3), 11 CFR 104.4(f).
(3) a primary election held for the
selection of delegates to a national
nominating convention of a political
party; and
(4) a primary election held for the expression
of a preference for the nomination of
persons for election to the office of
President. 2 U.S.C. SS 431(a)
Commission regulations explain that a primary election
is one of the specific types of elections which is included
within the definition. 11 CFR 100.6(b). A caucus or convention
of a political party is an election only if it "has
authority to select a nominee". 11 CFR 100.6(d); also
see Advisory Opinions 1978-30 and 1978-25, copies enclosed.
A local precinct, county or state caucus whose authority
is limited to selecting delegates to a national nominating
convention of a political party would not be an election
since only the national convention has the authority to
select a presidential nominee.
A Presidential primary election would be an "election"
for purposes of 2 U.S.C. SS 431(a) and Commission regulations
at 11 CFR 100.6(b) if, pursuant to State law, it is a
primary election for the expression of a preference by
official ballot for a Presidential candidate. Similarly,
such a primary would be an "election" if, pursuant to State
law, the primary requires a popular vote using an official
ballot which lists the names of persons seeking selection as
delegates to a national nominating convention of a
political party. See Advisory Opinion 1979-43, copy
enclosed. This view is implied by 11 CFR 104.4(b)(5)(iii)
which refers to the listing of a presidential candidate,
or a slate of authorized delegates, on an election
ballot for a primary election.3/
3/The requirement of a popular vote via an official ballot is
also apparent from 11 CFR 9033.4(b) regarding the matching
fund ineligibility of presidential candidates who receive
less than 10 percent of the popular votes cast by primary
election ballots. 44 Fed. Reg. 20343.
With specific reference to whether PASPAC has a
reporting obligation for the January 1980 Iowa caucuses,
the foregoing analysis together with an examination of Iowa
statutes indicates that 10 day pre-primary and 30 day post-primary
reports are not required with regard to those caucuses
since they are not an "election" under the Act or Commission
regulations.
Under Iowa law, the precinct caucuses in January 1980
are held to select delegates to the county conventions of
the political parties. The county conventions elect
delegates to the State conventions of the political parties
which, in turn, transact business as required or permitted
by the State parties' constitutions.4/ Article IX (11,
12) of the Constitution of the Republican Party of Iowa
provides that the purpose of the State Convention of
the Party (held in a presidential election year) is to
"elect those delegates allotted Iowa to the Republican
National Convention."5/ In addition, Iowa statutes require
that a primary election be held in June of even-numbered
years but also indicate that the precinct caucuses,
county conventions, and State conventions are separate
events from that primary election.6/ The official ballot
for the June primary in Iowa does not include Presidential
candidates seeking the nomination of a political party,
nor does it include any listing of candidates for delegate
to the national nominating convention of a political
party.7/ In summary, the January 1980 Iowa caucuses
are not an election under the Act; nor, for that matter,
are the subsequent State party conventions, since they
are separate and distinct from the official primary
election under Iowa law and do not have authority to
select a Presidential nominee.
The fact that the Iowa caucuses and conventions are not
elections under the Act does not mean that contributions
or expenditures made by PASPAC are outside the purview
of the definitions in 2 U.S.C. SS 431(e) or (f). The
"purpose of influencing" test in those definitions is
clearly satisfied where, as here, the contributions were
made in the general context of the presidential nomination
process.
4/Iowa Code SS 43.4, SS 43.90, SS 43.97, SS 43.107, and SS 43.111
5/The contributions by PASPAC were made to a presidential
candidate of the Republican party.
6/Iowa Code SS 43.7, also see SS 39.3-4, SS 43.1, SS 43.3, and SS 43.4
7/Id. SS 43.11, SS 43.26; also see SS 43.3
In addition, the conclusion that the Iowa caucuses
and conventions are not elections as defined in the
Act has no effect on the application of the contribution
limits of the Act. See 2 U.S.C. SS 441a(a)(6). Nor does
this conclusion change the application of the expenditure
limits to Presidential candidates eligible for matching
Federal payments. The national limit applies to expenditures
in a "campaign for nomination for election to"
the office of President. The State limits, in turn,
apply to the "aggregate of [nomination campaign] expenditures...
in any one State". 2 U.S.C. SS 441a(b)(1)(A).
Commission regulations provide that expenditures made
in a State after, but "relating to the primary election,
convention, or caucus count toward that State's expenditure
limitation." 11 CFR 110.8(c); also see 11 CFR 100.7(13).
By referring specifically to a convention or caucus
in a State, the cited regulation means that the State
expenditure limits apply whether or not the convention
or caucus is an "election" within the definitions of
2 U.S.C. SS 431(a) and 11 CFR 100.6(b).
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.