Federal Election Commission Main Page
July 9, 1980
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1980-64
Mr. Robert H. Chanin
General Counsel
National Education Association
1201 16th Street, N.W.
Washington, D.C. 20036
Dear Mr. Chanin:
This responds to your letter of May 22, 1980, requesting
an advisory opinion concerning application of the Federal
Election Campaign Act of 1971, as amended ("the Act") and
Commission regulations to the proposed payment by the National
Education Association ("NEA") from its general treasury funds
to NEA members who have been selected to serve as delegates
to the 1980 Democratic and Republican national nominating
conventions for their travel and subsistence expenses incurred
in attending the conventions.
According to your letter, NEA is a labor organization, comprised
essentially of professional employees of public school
districts. You explain that several NEA members who have been
elected to serve as delegates to the 1980 Democratic and Republican
national nominating conventions have indicated that the
travel and subsistence expenses involved in attending the conventions
will place a significant strain on their personal resources.
In order to relieve the strain, NEA proposes to use its general
treasury funds to pay the travel and subsistence expenses of
its members who are delegates. Thus, the question raised by
your request is whether NEA way use its general treasury funds
to pay the delegate travel and subsistence expenses of the NEA
members who have been selected to serve as delegates to the
1980 Democratic and Republican national nominating conventions?
The Commission concludes that NEA may not pay for the
travel and subsistence expenses of its members who are delegates
to the Democratic and Republican national nominating conventions.
Section 110.14(f) of the Commission's proposed regulations*/
which addresses delegate selection, see 45 Fed. Reg. 34865 (1980),
specifically states that "all contributions to and expenditures
by any delegate ... are subject to the prohibitions of 11 CFR
110.4(a), Part 114 and 2 U.S.C. SS SS 441b and 441e." Section 441b
contains a general prohibition against corporate and labor organization
contributions and expenditures made in connection with
a federal election. Section 110.14(d) of those same proposed
regulations states that expenditures by a delegate to defray costs
incurred for his/her selection are not subject to 11 CFR Part 110
and 2 U.S.C. SS 441a. It further explains that such costs include
the costs of travel and subsistence during the delegate selection
process, including the national nominating convention. Nothing in
the explanation and justification of the regulations concerning
contributions to and expenditures by delegates to national nominating
conventions, nor the proposed regulations themselves
indicates that payments by a corporation or labor organization
to defray delegate expenses was intended to be permissible.
Thus, payment for the travel and subsistence expenses of NEA
members who are delegates to the national nominating conventions,
as well as other expenses of such delegates, are subject to
the prohibitions of SS 441b and SS 441e.
NEA in its request suggests that payments for travel and
subsistence to their members who are delegates is permissible
under the statutory exception for "nonpartisan ... get-out-the-vote
campaigns by a labor organization aimed at its members ...."
2 U.S.C. SS 441b(b)(2)(B). The Commission disagrees with this
interpretation. Although 2 U.S.C. SS 441b(b)(2)(B) provides that
general treasury funds of a labor organization may be used for non-partisan
registration and get-out-the-vote campaigns aimed at its
members and their families, that is not the situation presented
by NEA's request.
*/ The Commission transmitted these proposed regulations to
Congress on May 14, 1980. If neither House of Congress
disapproves the regulation within 30 legislative days after
its transmittal, the Commission way prescribe these regulations.
2 U.S.C. SS 438(d).
"Registration" and "get-out-the-vote drive" are terms of
art used in campaign or election parlance. Those terms generally
connote efforts to increase the number of persons who
register to vote and once registered, to maximize the number
of eligible voters who go to the polls. The legislative
history of the Hansen amendment, see 117 Cong. Rec. 43379
(1971), presently 2 U.S.C. SS 441b(b)(2), talks in those terms
and discusses various types of registration and get-out-the-vote
activity. Nowhere in that discussion is there any mention
of encouraging or facilitating attendance of delegates at
a nominating convention. Polling places are mentioned in
terms of where the public votes, but certainly not as the convention
floor. Moreover, Commission regulation SS 114.3(c)(3) which
elaborates on permissible get-out-the-vote activity by a labor
organization directed toward its membership, does so in terms
of both registration and get-out-the-vote drives. It is obvious
from such joint treatment that the permissibility of get-out-the-vote
activity by either a labor organization or a corporation
was not meant to reach attendance of delegates at a national
nominating convention.
This response constitutes an advisory opinion concerning
application of the Act, or regulations prescribed by the
Commission, to the specific transaction or activity set forth
in your request. See 2 U.S.C. SS 437f.