Federal Election Commission Main Page
June 9, 1982
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1982-41
H. Lee Halterman
District Counsel
The Committee for Congressman
Ronald V. Dellums
3126 Shattuck Avenue
Berkeley, California 94705
Dear Mr. Halterman:
This responds to your letter of May 24, 1982, concerning
application of the Federal Election Campaign Act of 1971, as
amended ("the Act"), to the exchange of mailing lists with other
organizations.
Your letter states that the Committee for Congressman
Ron Dellums ("the Committee") uses the services of Richard Parker
& Associates ("Parker") for the purpose of pursuing its direct
mail fundraising efforts. Parker has proposed to the Committee
that it allow an organization called Jubilee Housing ("Jubilee")
to use 5,000 names from the Committee's mailing list. You state
that rather than a direct bilateral exchange of names with
Jubilee, Jubilee would arrange for the Committee to use 5,000
names from a mailing list of "civil rights backers" or of the
group: A More Perfect Union. These organizations would, in turn,
use 5,000 names from the Jubilee mailing list.
The Committee has received assurances from Parker that such
a three way or multi-party exchange of lists is a routine and
usual method of arranging for such exchanges. You assert that
the consideration for which each party bargains is the use of a
list that is of value to them. You ask whether the described
exchange of lists, or any similar arrangement within the general
practice of the trade, is an acceptable means of "paying" for the
use of a mailing list, or whether the exchange would result in a
contribution to the Committee that would be limited or prohibited
under the Act. See 2 U.S.C. SS 441a, 441b.
The Commission concludes that the exchange of lists between
the Committee, Jubilee, the "civil rights backers," and A More
Perfect Union is permissible under the Act and does not result in
a contribution being made by any of these groups to the
Committee.
As you know, the regulations provide that "the provision of
any goods or services without charge or at a charge which is less
than the usual and normal charge for such goods or services is a
contribution." 11 CFR 100.7(a)(1)(iii)(A). A mailing list or a
contributor list would fall within that provision. The
regulations provide further that the " 'usual and normal charge'
for goods means the price of those goods in the market from which
they ordinarily would have been purchased at the time of the
contribution..." 11 CFR 100.7(a)(1)(iii)(B). The Commission has
recognized that if an exchange of names on a contributor list is
an exchange of names of equal "value," as determined by industry
practice, the exchange would be considered full consideration for
services rendered. Thus, no contribution or expenditure would
result and the transaction would not be reportable under the Act.
Advisory Opinion 1981-46, copy enclosed.
You have indicated in your request that multi-party
exchanges of mailing lists are "a routine and usual method of
arranging" such transactions. The Committee understands that it
will obtain use of a list of names of equal "value" from "Civil
rights backers," or from A More Perfect Union, as part of an
exchange whereby the Committee's list would be used by Jubilee
who, in turn, would provide the use of its list to one of the
other two groups mentioned. Under these circumstances, and
assuming such multi-party exchanges are routine and usual in the
list brokering industry, the Commission concludes that this
exchange would not result in a contribution, but is instead a
bargained-for exchange of consideration in a commercial
transaction. Accordingly, nothing in the Act or Commission
regulations would prohibit the Committee from undertaking the
described exchange; nor is the transaction reportable under the
Act.
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.