Federal Election Commission Main Page
January 26, 1984
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1983-43
Frank M. Northam
Webster, Chamberlain & Bean
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Dear Mr. Northam:
This is in response to your letter of October 13, 1983, as
supplemented by your letter of November 30, 1983, requesting an
advisory opinion on behalf of the United States Defense Committee
("USDC") and Patrick Reilly, concerning application of the
Federal Election Campaign Act of 1971, as amended ("the Act"),
and Commission regulations to a proposal to collect, and then
distribute to the public, information relating to the positions
of candidates for Federal office on several national defense and
foreign policy issues that concern USDC.
According to your request, USDC is a non-profit, nonstock
membership corporation and is exempt from Federal income taxation
under Section 501(c)(4) of the Internal Revenue Code. You state
that it is not associated with any political party, committee, or
candidate, and that its purposes are to educate the public on
defense and national security issues and to engage in legislative
activity designed to promote a strong national defense and a
strong foreign policy.
In furtherance of these purposes, USDC plans to collect
information on the positions of candidates for public office by
examining voting records of incumbents, public statements, and
responses to USDC questionnaires. The questionnaires will be
sent to all candidates for Federal offices, and will seek
yes/no/no response answers to questions concerning the
candidates' positions on issues of interest to USDC. To
encourage candidates to respond to these questionnaires, USDC
will contact members of the public believed to agree with its
position on defense issues and will encourage them to urge the
candidates to respond.
You state that USDC plans to compile and publish responses
(or non-responses) to its questionnaires, and that publication
will take the form of print media advertising, press releases,
pamphlets and fliers, as well as mailings to the general public.
You also state that such publications will contain information
about USDC and its positions on national security and foreign
policy issues. You add that publication of candidate responses
will be done at some time before the primary or general election
in which the candidates surveyed are running, may contain the
candidates' party affiliations, and may indicate the percentage,
number of times, or specific respects in which a candidate's
responses comport with USDC's views. You note that the
publications will use no words expressly advocating the election
or defeat of any candidate.
In addition to publishing the results of its questionnaires,
USDC intends to disseminate to the public information concerning
the voting records of incumbent Federal officeholders on specific
pieces of legislation of interest to USDC. You state that the
dissemination of this information may occur at or around the date
for elections, and that USDC may characterize certain votes or
voting records as being in accord with or against the position of
USDC. The incumbents' party affiliations may be given for
identification purposes. You state that, as with the publication
of questionnaire results, no words expressly advocating the
election or defeat of any incumbent will be used.
Finally, you note that all of the proposed activities will
be financed from USDC's general treasury, which is composed of
both voluntary dues payments from members and contributions. In
light of the facts presented in your request, you ask whether the
Act and regulations prohibit expenditures from USDC's general
treasury for the proposed programs.
Under 2 U.S.C. SS 441b, it is unlawful for any corporation
whatever to make an expenditure in connection with a Federal
election. Commission regulations, however, permit a corporation
to distribute voter guides or other types of brochures describing
candidates and their positions provided that the materials do not
favor one candidate or political party over another and provided
that the materials are obtained from a civic or other non-profit
organization which does not endorse or support or is not
affiliated with any candidate or political party. 11 CFR
114.4(c)(3)1/
1/ A non-profit organization itself is permitted to distribute
such voter guides without first finding a corporate sponsor. Cf.
Advisory Opinion 1980-45 (a non-profit, non-partisan organization
may conduct a voter registration drive by itself without a
corporate sponsor).
With respect to that part of your request that concerns
voter guides, it appears that most of the proposed materials,
while designed to advocate issue positions, do not favor one
candidate or political party over another. To the extent this is
so, such activities would not be for the purpose of influencing a
Federal election, and expenditures to support these activities
would not be prohibited by 2 U.S.C. SS 441b. Some of the materials
submitted with your request, however, seem to favor particular
candidates by referring to "right" and "wrong" answers to survey
questions and by asking USDC supporters to contact candidates in
an impending election who answered "wrong" and to urge them to
support the USDC position. Because favoring one candidate over
another in the context of an election indicates an election-influencing
purpose, inclusion of these and other similar
references would take the materials outside the regulations at 11
CFR 114.4(c)(3).
With respect to USDC's proposal to compile and disseminate
to the general public information concerning the voting records
of incumbent Federal officeholders on specific legislation, the
Commission notes that as a membership corporation, USDC is
permitted to make partisan communications with its members.2/
Accordingly, any such information about voting records, even if
for the purpose of influencing an election, may be communicated
to USDC members. With respect to the general public, however,
USDC may not distribute voting records for the purpose of
influencing a Federal election. Some of the language in the
draft letters suggests such a purpose. For example, Item IX of
the attachments to your November 30 letter refers to a
congressman's "weak voting record" and advises the recipient that
an officeholder is "easier to convince . . . when he's looking
for votes than . . . after he's safely in office." Because such
language evinces an election-influencing purpose, the Commission
concludes that expenditures for such activities are not
permissible under 2 U.S.C. SS 441b.
The Commission notes that proposed amendments to 11 CFR
SS SS 114.3 and 114.4 were submitted to Congress on October 27, 1983.
These proposed rules may be prescribed in the near future. When
prescribed, the proposed rules may apply to the actvities
described in your request. If you wish, you may request another
advisory opinion on this matter after these proposed regulations
are prescribed.
2/ The Commission expresses no opinion as to whether those whom
USDC claims as "members" are in fact "members" under 11 CFR
114.1(e). See generally, Federal Election Commission v. National
Right to Work Committee, 103 S.Ct. 552 (1982).
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.