Federal Election Commission Main Page
May 25, 1984
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1984-14
Frank M. Northam
Webster, Chamberlain & Bean
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Dear Mr. Northam:
This responds to your letter of March 29, 1984, requesting
an advisory opinion on behalf of the United States Defense
Committee ("USDC") concerning application of the Federal Election
Campaign Act of 1971, as amended ("the Act") and Commission
regulations, to the activities proposed in Advisory Opinion
Request 1983-43.
In your March 29 letter, you incorporate by reference the
information provided in your earlier advisory opinion request -- AOR
1983-43. The Commission assumes, therefore, that USDC
remains a non-profit, nonstock membership corporation which is
exempt from Federal income taxation under SS 501(c)(4) of the
Internal Revenue Code. The Commission further assumes that USDC
seeks to educate the public on defense and national security
issues and to become involved in the legislative process by
engaging in the activities described in AOR 1983-43. In
addition, as was stated in AOR 1983-43, the Commission notes your
representation that USDC is not associated with any political
party, committee, or candidate for elective office.
As summarized in Advisory Opinion 1983-43, issued on
January 26, 1984, those activities are set forth:
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.
The Commission's analysis and conclusions in Advisory
Opinion 1983-43 were as follows:
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)
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. 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
(footnotes omitted).
In this request you ask the Commission whether the foregoing
activities are lawful under recently prescribed revisions to
Commission regulations at 11 CFR 114.4(b). The revised
regulations, prescribed on March 5, 1984, at 49 Fed. Reg. 7981
(1984), provide in pertinent part:
Voting Records. A corporation or labor organization
may prepare and distribute to the general public the
voting records of Members of Congress as long as the
preparation and distribution is not for the purpose of
influencing a Federal election. 11 CFR 114.4(b)(4).
Voter Guides.
(i) A corporation or labor organization
may prepare and distribute to the general
public nonpartisan voter guides consisting
of questions posed to candidates concerning
their positions on campaign issues and the
candidates' responses to those questions. The
following are factors that the Commission may
consider in determining whether a voter guide
is nonpartisan:
(A) The questions are directed to
all of the candidates for a particular
seat or office, giving the candidates
equal time to respond...
(B) The voter guide reprints verbatim
the responses of each candidate to whom
questions were sent, without any additional
comment, editing, or emphasis...
(C) The wording of the questions presented
does not suggest or favor any position
on the issues covered;
(D) The voter guide expresses no editorial
opinion concerning the issues presented nor does
it indicate any support for or opposition to any
candidate or political party;
(E) The sponsor may ask each candidate to
provide biographical information...
(F) The voter guide is made available to
the general public in the geographic area in which
the sponsoring organization normally operates.
(ii) A corporation or labor organization may
distribute voter guides or other types of brochures
describing the candidates or their positions which
are obtained from a nonprofit organization which is
exempt from Federal taxation under 26 U.S.C.
501(c)(3) or (4) and which does not support,
endorse or oppose candidates or political
parties. Publications obtained from such
nonprofit organizations need not comply with
the guidelines set forth at 11 CFR SS 114.4(b)(5)(i),
but they may not favor one candidate or political
party over another. 11 CFR 114.4(b)(5).
Given your representation of USDC as a nonprofit, tax exempt
organization which does not support, endorse or oppose candidates
or parties, USDC may distribute voter guides that do not comply
with the factors enumerated in 114.4(b)(5)(i). Although these
factors do not apply in this instance, the voter guides may not
favor one candidate or political party over another. In Advisory
Opinion 1983-43, the Commission examined USDC's proposed voter
guide materials and concluded that:
Some...seem to favor particular
candidates by referring to "right"
and "wrong" answers to survey question
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 some of the materials submitted by USDC favor certain
candidates over others by asking USDC supporters to contact
candidates to advocate USDC policy positions, the Commission
concludes that the materials do not comply with the requirements
set forth at 11 CFR 114.4(b)(5)(ii). Accordingly, expenditures
for such activities are prohibited by 2 U.S.C. SS 441b.
Subsection 114.4(b)(4) of Commission regulations permits
organizations such as USDC to prepare and distribute voting
records of Members of Congress to the general public "as long as
the preparation and distribution is not for the purpose of
influencing a Federal election." The Commission reviewed the
material submitted by USDC in Advisory Opinion 1983-43 and
concluded that some of the materials had an election-influencing
purpose. The Commission is of the opinion, therefore, that
USDC's voting record materials, as submitted, fail to comply with
the regulatory requirement that preparation and distribution may
not be made for the purpose of influencing a Federal election.
Accordingly, USDC expenditures for the voting records are
prohibited by 2 U.S.C. SS 441b.
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.