Federal Election Commission Main Page
February 13, 1984
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1984-2
The Honorable Phil Gramm
Drawer AO
College Station, TX 77840
Dear Representative Gramm:
This responds to your letter of January 6, 1984, requesting
an advisory opinion concerning application of the Federal
Election Campaign Act of 1971, as amended ("the Act") and
Commission regulations to a letter you propose to send to
individual contributors listed on reports filed with the
Commission by "Americans for Phil Gramm in '84" (hereinafter
referred to as "Americans").
According to your request, "Americans" has been soliciting
contributions without your authorization. You believe that
persons have been misled into contributing to that organization
because the contributors assumed that "Americans" was your
authorized campaign committee. You anticipate that the
organization will file reports with the Commission disclosing the
identities of contributors. You propose to write a letter to
these contributors in which you will inform them (1) that
"Americans for Phil Gramm in '84" is not authorized by you as
your campaign committee and (2) that "Friends of Phil Gramm
(hereinafter "Friends") is your only authorized campaign
committee and will advise contributors (3) that they may ask for
a refund of their contributions to "Americans", and (4) that they
may instead make a contribution to "Friends."
Although the Act generally allows for inspection and copying
of reports and statements filed with the Commission, it prohibits
the use or sale of such information for the "purpose of
soliciting contributions or for commercial purposes ... ."
2 U.S.C. SS 438(a)(4); 11 CFR 104.15(a). "Soliciting
contributions" includes soliciting any type of contribution or
donation, such as political or charitable contributions. 11 CFR
104.15(b). An exception to this restriction allows for the use
of information copied or otherwise obtained from records filed
with the Commission in newspapers, magazines, books, or similar
communications, but only if the principal purpose of these
communications is not to communicate any contributor information
for the purpose of soliciting contributions or for other
commercial purposes. 11 CFR 104.15(c).
The proponents of 2 U.S.C. SS 438(a)(4) focused on protecting
the privacy of the "very public spirited citizens" who make
contributions to campaigns. Thus, the purpose of this section
was to protect contributor information and lists from being used
for contribution solicitation or for commercial purposes. 117
Conq. Rec. 30057-58 (1971) (remarks of Senator Bellmon, amendment
sponsor). Subsequent legislative history further reinforces this
view. Specifically, the history of the 1979 Amendments to the
Act indicates that a commercial vendor may compile information
from FEC reports for the purpose of selling that information, but
that the prohibition on copying and use of names and addresses of
individual contributors is crucial and so was maintained. H.R.
Rep. No. 422, 96th Cong., 1st Sess. 23 (1979). The purpose of
2 U.S.C. SS 438(a)(4) is the prevention of list brokering, not the
suppression of financial information. See Advisory Opinions
1983-44, 1981-38, and 1980-78. The prohibition is intended to
prevent the use of contribution information taken from disclosure
documents filed under the Act to make solicitations. It is not
intended to foreclose the use of this information for other,
albeit political, purposes, such as correcting contributor
misperceptions. See Advisory Opinion 1981-5.
Accordingly, the Commission concludes that informing
contributors to "Americans" for Phil Gramm in '84" that it is not
your authorized campaign committee and identifying "Friends of
Phil Gramm" as the name of your authorized campaign committee for
the purposes of setting the record straight would not be a
prohibited use of contributor information under 2 U.S.C. SS 438
(a)(4) or Commission regulations at 11 CFR 104.15. In addition,
your mailing could also include a suggestion that the contributor
ask for a refund from "Americans," although neither the Act nor
Commission regulations accord contributors any right to refunds
in this situation. Requesting or suggesting that contributions
be made to your authorized campaign committee, however, would
involve use of contributor information in a manner that is
prohibited by 2 U.S.C SS 438(a)(4) and 11 CFR 104.15. The
Commission also notes that because contributions to "Americans"
are seemingly made with the knowledge that they would be expended
on behalf of Phil Gramm, the amount of any contribution would be
attributable to a contributor's maximum allowable contribution to
Phil Gramm. See 11 CFR 110.1(h).
Of course, this response does not express any opinion on the
specific language of any letter actually sent to contributors to
"Americans for Phil Gramm in '84." Furthermore, any
disbursements made by your campaign committee in preparing and
sending such a letter would be subject to the reporting
requirements of the Act and regulations. 2 U.S.C. SS 434(b) and
11 CFR 104.3(b).
This response constitutes an advisory opinion concerning
application of the Act, or regulations prescribed by the
Commission, to the specific transaction or activities set forth
in your request. See 2 U.S.C. SS 437f.