Federal Election Commission Main Page
May 18, 1983
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1983-11
J. Curtis Herge, Esq.
Sedam & Herge
8300 Greensboro Drive
McLean, Virginia 22102
Dear Mr. Herge:
This responds to your letter dated March 17, 1983,
requesting an advisory opinion concerning application of 26
U.S.C. SS 9012(f) to your client, Fund For A Conservative Majority
("FCM"), a multicandidate political committee.
Your letter sets forth the following factual situation. FCM
expects that President Reagan will be nominated in 1984 by the
Republican Party for re-election to the office of President and
has publicly announced its intention to make expenditures on
behalf of President Reagan's re-election. For purposes of this
request, FCM assumes that President Reagan will be certified by
the Commission as eligible to receive, and will in fact receive,
Federal funds in 1984 under the Presidential Election Campaign
Fund Act ("the Fund Act"). FCM will not at any time be an
authorized committee with respect to President Reagan.
According to the request, FCM proposes to make expenditures
to further Mr. Reagan's re-election; such expenditures would be
of the kind which, if made by President Reagan's authorized
campaign committee, would constitute qualified campaign expenses
of such committee. FCM proposes to make these expenditures in
amounts exceeding $1,000 and throughout the United States,
including the District of Columbia. In view of the foregoing
factual representations, the Commission assumes that FCM's
expenditures are proposed to be made at a date after
President Reagan receives Federal funds in 1984 pursuant to
the Fund Act. FCM also asks the Commission to assume that its
expenditures on behalf of President Reagan's re-election would
constitute "independent expenditures" as defined in 2 U.S.C.
SS 431(17) and Commission regulations at 11 CFR 109.1.
The specific issue raised by your request is whether FCM's
proposed expenditures, under the circumstances and assumptions
set forth, are limited by 26 U.S.C. SS 9012(f)(1) to an aggregate
amount not exceeding $1,000. The Commission concludes that the
proposed expenditures are so limited by 26 U.S.C SS 9012(f)(1).
The cited SS 9012(f)(1) provides, in pertinent part:
it shall be unlawful for any political committee which
is not an authorized committee with respect to the
eligible candidates of a political party for President
and Vice President in a presidential election knowingly
and willfully to incur expenditures to further the
election of such candidates, which would constitute
qualified campaign expenses if incurred by an
authorized committee of such candidates, in an
aggregate amount exceeding $1,000.
By its terms, the quoted provision limits FCM to $1,000 of
expenditures that further the election of President Reagan,
assuming he is an "eligible candidate" under the Fund Act when
any such expenditure is incurred, and assuming further that the
expenditure is of the kind that would constitute a "qualified
campaign expense" if made by an authorized campaign committee of
President Reagan. See, Federal Election Commission v. Americans
For Change, 512 F.Supp. 489 (D.D.C. 1980), (three judge court),
and the following discussion in this advisory opinion.
The terms "eligible candidate" and "qualified campaign
expense" delineate the applicability of SS 9012(f)(1) in several
respects. As defined in 26 U.S.C. SS 9002(4), an "eligible
candidate" means the candidate of a political party for President
(or Vice President) who has met all applicable conditions for
eligibility to receive payments under the Fund Act. These
conditions are specified in 26 U.S.C. SS 9003. With respect to a
candidate nominated by a major political party, one of the
significant eligibility conditions in SS 9003 is the occurrence of
that candidate's nomination. See 26 U.S.C. SS 9003(b) and
SS 9002(2)(A). The term "qualified campaign expense" is also used
in SS 9012(f)(1) thereby indicating that to be the equivalent of a
"qualified campaign expense" incurred by the authorized committee
of an eligible presidential candidate, a SS 9012(f)(1) expenditure
must be incurred within the expenditure report period.1/ It may,
however, be made before that period if incurred for property,
services, or facilities to be used during such period. 26 U.S.C.
SS 9002(11)(B); see generally 26 U.S.C. SS 9002(11) which sets forth
other requirements of a qualified campaign expense.
Accordingly, the question of whether FCM's proposed expenditures
are subject to the SS 9012(f) limit would be determined with
reference to the above cited provisions of the Fund Act.
By reference to the decision Federal Election Commission v.
Americans for Change, 512 F.Supp. 489 (D.D.C. 1980), (three-judge
court), aff'd by an equally divided Court, 455 U.S. 129 (1982),
this advisory opinion request appears to suggest that the
district court's decision vitiates the continuing "applicability
and effect of 26 U.S.C. SS 9012(f)(1) to the factual situation"
presented in the request. The cited district court decision
found that SS 9012(f) prohibited certain expenditures made by
various unauthorized political committees in 1980 on behalf of
the election of then presidential candidate Ronald Reagan; the
court then held, however, that SS 9012(f) was unconstitutional. On
January 19, 1982, the Supreme Court affirmed the judgment of the
district court by an equally divided Court, Justice O'Connor not
participating.
While the Court's decision effectively concludes the civil
litigation in FEC v. AFC, supra, the equally divided nature of
the Court's affirmance leaves the issue of the constitutionality
of SS 9012(f) still unresolved. Moreover, since the Court's
affirmance of the decision below was by an equally divided Court,
it has no precedential effect. The operative principle is that
"nothing is settled" by such a 4-4 split, Ohio ex rel. Eaton v.
1/ The expenditure report period for a major party candidate
begins on the date of the candidate's nomination by a major party
if that date is before September 1 of the presidential election
year. The period ends 30 days after the November general
election. See 26 U.S.C. SS 9002(12)(A).
Price, 364 U.S. 263, 264 (1960).2/ Such an affirmance does not
indicate any approval of the reasoning of the court below, nor
does it even stand for the proposition that the result reached
below was correct. See, Trans World Airlines v. Hardison, 432
U.S. 63, 73 n.8 (1977); Neil V. Biggers, 409 U.S.188 (1972). The
Court has long held that "the principle of law involved not
having been agreed upon by a majority of the court sitting
prevents the case from becoming an authority for the
determination of other cases, either in this or in inferior
courts." Hertz v. Woodman, 218 U.S. 205, 213-14 (1910).
Given the law regarding the nature of equally divided
Supreme Court affirmances and the foregoing statutory analysis,
the Commission concludes that FCM's proposed expenditures would
be subject to the $1,000 limitation of 26 U.S.C. SS 9012(f)(1).
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.
2/ Id. at 263-64, where Justice Brennan wrote: "The judgment of
the Ohio Supreme Court in this case is being affirmed ex
necessitate, by an equally divided Court. Four of the Justices
participating are of opinion that the judgment should be
affirmed, while we four think it should be reversed.
Accordingly, the judgment is without force as precedent." See
also United States v. Pink, 315 U.S. 203, 216 (1942).
Note: Commissioner Aikens voted against approval of this opinion
and has indicated that she will file a dissenting opinion
at a later date. Commissioner Elliott voted to approve
this opinion but has indicated that she will file a
separate concurring opinion at a later date. Both of these
individual opinions will be forwarded to you when they are
submitted.