Federal Election Commission Main Page
May 31, 1984
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1984-15
E. Mark Braden
Republican National Committee
Dwight D. Eisenhower Republican Center
310 First Street, S.E.
Washington, D.C. 20003
Dear Mr. Braden:
This responds to your letter of April 2, 1984, requesting an
advisory opinion concerning application of the Federal Election
Campaign Act of 1971, as amended ("the Act"), and Commission
regulations to disbursements by the Republican National Committee
for a proposed national television advertising program.
You state that the Republican National Committee 1/ intends
to undertake a national television advertising program. In your
request you included two proposed scripts for the television
advertisements. In a script on the subject of the Federal budget
deficit, the video opens with the U.S. Capitol and fades to an
image of one of the current Democratic presidential candidates.
The audio portion begins with the candidate's comments about the
deficit. An announcer then interjects: "That's what you said.
But look what you've done ... ."An animated graph then depicts
a rise in deficits during the candidate's tenure in Congress.
The advertisement concludes with the statement: "Act today to
preserve tomorrow. Vote Republican."
1/ The Republican National Committee ("RNC") is a qualified,
multi-candidate political committee and the national committee of
the Republican Party. See 2 U.S.C. SS 431(4), SS 431(14), and
SS 441a(a)(4).
In the second script, the video opens with a portrait of a
current candidate for the Democratic presidential nomination with
the camera slowly zooming in on the portrait and then holding the
image. The audio portion identifies the candidate by name and
states that he "said he'd bring new ideas and morality to
government. But look at the list of the new ideas." The audio
continues with a "long list of inconsistencies of the candidate"
and sums up with these questions: "This is moral leadership?
These are new ideas?" Both the video and the audio conclude with
the statement: "Vote Republican."
You state that the Republican National Committee intends to
produce and air this advertising program prior to and after the
nomination of a Democratic candidate for President. You request
an opinion concerning the treatment of the disbursements by the
Republican National Committee for the production and placement of
general electronic media advertisements using these or similar
scripts. Your request specifically raises five questions:
(1) how should disbursements by the Republican
National Committee for its proposed national television
program be reported to the Commission?
(2) would these disbursements count against the
expenditure limitations of 2 U.S.C. SS 441a(d)?
(3) is the characterization of these disbursements
affected by the timing of the broadcast of these
advertisements either before or after the Democratic
presidential nomination?
(4) would the characterization of these disbursements
be affected by an express statement of the purpose of the
advertisements as letting a particular Democratic
candidate's own words be used against him?
(5) would the characterization of these disbursements
be affected by a statement of the advertisement's
purpose as the defeat of the Democratic Party's candidates
generally without identifying as a purpose the defeat of any
specific candidate?
To facilitate a proper analysis, these questions are answered in
a slightly altered sequence.
Because these contemplated expenditures would relate to an
election for Federal office, they would be governed by the Act,
and thus reportable. Under the Act, a national party committee
may report disbursements in one of eight categories. See 2
U.S.C. SS 434(b)(4); 11 CFR 104.3(b)(1), and FEC Form 3X.2/ Four
reporting categories --transfers to affiliated committees, loans,
loan repayments, offsets -- are clearly not applicable to your
request. The "operating expenditures" category includes
disbursements for such expenses as polling, travel, phone banks,
catering, media, rent, personnel, overhead, fund-raising,
training seminars, registration and get-out-the-vote drives, and
other day-to-day costs that are not made on behalf of a clearly
identified candidate and cannot be directly attributable to that
candidate. See 11 CFR 104.3(b)(3)(i), 106.1(c), and 110.8(e).
The amount of these expenditures is not subject to any
limitations. See Advisory Opinion 1975-87. The Commission
concludes, however, that expenditures for the television
advertisements proposed in this request are not, with one
possible exception, the type of expenditures that are properly
reportable as "operating expenditures."
The remaining reporting categories are contributions to
political committees, coordinated party expenditures, and other
disbursements. The reporting category for contributions to
political committees includes disbursements to a candidate and
his or her authorized campaign committees. See 11 CFR
104.3(b)(3)(v). This category also covers in-kind contributions.
11 CFR 100.7(a)(1)(iii). For a multi-candidate political
committee, a $5,000 limitation applies to contributions to a
candidate and his or her authorized campaign committees with
respect to any election for Federal office. 2 U.S.C.
SS 441a(a)(2); 11 CFR 110.2(a)(1). Coordinated party expenditures
are expenditures by the national committee of a political party
in connection with the general election campaign of any candidate
for President of the United States who is affiliated with that
party. 2 U.S.C. SS 441a(d)(2). The amount of these expenditures
is subject to a specific dollar limitation. Id. The "other
disbursements" category covers disbursements not otherwise
reportable under the other categories. 11 CFR 104.3(b)(3)(ix).
No dollar limitation applies to these disbursement.3/
The threshold question concerns whether the timing of the
broadcast of the RNC's proposed television advertisements, either
before or after the Democratic presidential nomination, would
affect the characterization of RNC expenditures for these
advertisements: either as contributions to a candidate or as
coordinated party expenditures. Although timing is relevant, the
Commission does not view the timing of the broadcasts as
controlling how expenditures for the advertisements should be
treated for limitation and reporting purposes. First, with
regard to viewing the expenditures as contributions to a
2/ Also, a national party committee is incapable of making
independent expenditures. See Advisory Opinion 1980-119.
3/ To the extent that disbursements for the proposed television
advertisement relate to any election for Federal office, they
cannot be made with funds from prohibited sources. See Advisory
Opinions 1978-46 and 1978-10. See also Advisory Opinion 1982-5.
candidate, Commission regulations contemplate that contributions
may be received with respect to the general election before the
date of the primary election or nomination. See 11 CFR 102.9(e).
Second, the Commission notes that nothing in the Act, its
legislative history, Commission regulations, or court decisions
indicates that coordinated party expenditures must be restricted
to the time period between nomination and the general election.
The Act refers to expenditures "in connection with the
general election campaign... ." Where a candidate appears
assured of a party's presidential nomination, the general
election campaign, at least from the political party's
perspective, may begin prior to the formal nomination. Thus,
national party expenditures in connection with that campaign are
possible. Furthermore, because the national party committee
rather than the candidate or his principal campaign committee
makes these expenditures, whether a specific nominee has been
chosen, or a candidate assured of nomination, at the time the
expenditures are made, is immaterial.4/ Although consultation
or coordination with the candidate is permissible, it is not
required. See Advisory Opinion 1975-120. The Act gives a
national party committee only one coordinated party expenditure
limit with respect to the presidential general election
campaign.5/ To permit expenditures made prior to nomination but
with the purpose and effect of influencing the outcome of the
presidential general election to escape this limitation would be
inconsistent with the purpose and intent of 2 U.S.C. SS 441a(d).
See generally Advisory Opinion 1975-72. Therefore, the proper
analytical focus is whether the expenditures for the television
advertisements proposed in this request are made for the purpose
4/ Significantly, SS 441a(d) does not by its terms refer to
candidates for Federal office as the party's nominees; it refers
to such candidates only as those who are "affiliated with" the
political party. By contrast, in other contexts where Congress
was concerned with the status of Federal office candidates as
regards political party activity, it has explicitly referred to
"nominees of" the political party. See 2 U.S.C.
SS SS 431(8)(B)(x), (8)(B)(xii), (9)(B)(viii) and (9)(B)(ix), which
exempt certain State and local committee activities "on behalf of
nominees of" the party from limitation as a contribution or party
expenditure. Also, see 2 U.S.C. SS 432(e)(3)(A) which refers to
the presidential candidate "nominated" by a political party, and
2 U.S.C. SS 441a(a)(7), SS 441a(b)(2) which both refer to the
candidate of a political party "for election" to the office of
President.
5/ This provision sets a single limitation for coordinated party
expenditures for President at the national level. Therefore, if
disbursements for these proposed advertisements were made by the
national senatorial or congressional campaign committees, such
disbursements would be allocable to the single expenditure
limitation of 2 U.S.C. SS 441a(d)(2). See generally Advisory
Opinions 1980-119 and 1976-108.
of influencing the outcome of the general election for President
of the United States. See 2 U.S.C. SS 431(8)(A)(i), SS 431(9)(A)(i),
and SS 441a(d)(2). There is no question that expenditures for
these advertisements after the nominating conventions would be
expenditures in connection with the presidential general election
campaign.6/ This responds to question three.
In your request, you state that the proposed television
advertisements will show the image or portrait of one of the
current Democratic presidential candidates. They will quote
statements by that candidate about the budget deficit or
government morality and depict his record relating to those
statements. Each advertisement concludes with a visual and audio
appeal to "Vote Republican." These advertisements will be
broadcast to the general public. The proposed advertisements
will prominently display visual images of a current candidate for
the Democratic Party's presidential nomination and will emphasize
verbal statements by or about such candidate. The advertisements
will question or challenge the candidate's statements, position,
or record. They will conclude with a partisan statement to "Vote
Republican." The clear import and purpose of these proposed
advertisements is to diminish support for any Democratic Party
presidential nominee and to garner support for whoever may be the
eventual Republican Party nominee. These advertisements relate
primarily, if not solely, to the office of President of the
United States and seek to influence a voter's choice between the
Republican Party presidential candidate and any Democratic Party
nominee in such a way as to favor the choice of the Republican
candidate. The only election which will pose such a choice is
the presidential general election. These advertisements
effectively advocate the defeat of a clearly identified candidate
in connection with that election and thus have the purpose of
influencing the outcome of the general election for President of
the United States. See generally Advisory Opinion 1978-46.
Therefore, expenditures for these advertisements benefit the
eventual Republican presidential candidate and are made with
respect to the presidential general election and in connection
with the presidential general election campaign.7/
As such, these expenditures are only reportable either as
contributions or as coordinated party expenditures. Thus, the
Republican National Committee could report expenditures for these
6/ Although not explicitly stated in your request, the Commission
assumes that such advertisements would feature the Presidential
nominee of the Democratic Party.
7/ The addition of a statement of purpose as described in
question four reinforces the characterization of these
advertisements as relating to the presidential general election.
This footnote responds to question four.
advertisements, up to a maximum of $5,000, as an in-kind
contribution to the Republican presidential candidate with
respect to the 1984 general election. However, if the Republican
presidential candidate in the 1984 general election chooses to
accept public funding pursuant to 26 U.S.C. SS 9001 et seq., he may
not accept contributions, except for certain limited exceptions
that are not applicable here. See 26 U.S.C. SS 9003(b)(2); 11 CFR
9003.2(a)(2). Accordingly, in such circumstances the Republican
National Committee could not report expenditures for these
advertisements as an in-kind contribution to the Republican
presidential candidate. Instead, it could then only report these
expenditures as coordinated party expenditures pursuant to
2 U.S.C. SS 441a(d)(2) on Schedule F of FEC Form 3X. See generally
Advisory Opinions 1978-89 and 1978-46. This responds to
questions one and two.
Your fifth question does not state whether the proposed
advertisement would refer to all Democratic presidential
candidates without identifying any specific candidate or to all
Democratic candidates for all Federal offices without identifying
any specific candidate or office. If the reference is to all
Democratic presidential candidates generally, the
characterization of the advertisements and the reporting
requirements for the disbursements would remain unchanged from
that set forth above. If, however, the reference is to all
Democratic candidates generally without identifying (by visual
image or audio content) any specific candidate or office, the
disbursements would not then be attributable to any candidate or
to any campaign for any particular Federal office. Instead, they
would be characterized as advertisements promoting the Republican
Party over the Democratic Party and to encourage voters to
support the Republican Party generally. As such, the
disbursements for such advertising would not be reportable as
contributions to any specific candidate or as coordinated party
expenditures in connection with any specific general election
campaign for President, Senator, or Representative. See Advisory
Opinions 1978-46 and 1975-87. Such disbursements would be
reportable as operating expenditures of the Republican National
Committee that are generally related to Federal elections
although not on behalf of any clearly identified candidate for
Federal office, nor directly attributable to such a candidate.
See 11 CFR 104.3(b)(3)(i) and 106.1(c).
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.
P.S. Commissioners Aikens and Elliott voted against approval of this opinion
and will file dissenting opinions at a later date.