Federal Election Commission Main Page
June 29, 1984
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1984-17
Mr. James Bopp, Jr.
Brames, Bopp, Haynes & Abel
P.O. Box 1583
Terra Haute, IN 47808
Dear Mr. Bopp:
This responds to your letter of April 12, 1984, as
supplemented by your letter of May 15, 1984, on behalf of your
clients, requesting an advisory opinion concerning application of
the Federal Election Campaign Act of 1971, as amended ("the
Act"), and Commission regulations to the distribution of voting
records by the National Right to Life Committee, Inc., ("NRLC")
and to the distribution of a voter guide by Right to Life of
Greater Cincinnati, Inc.
Although these requests are treated separately, both arise
under the same statutory provisions. The Act makes it unlawful
for a corporation to make a contribution or expenditure in
connection with a Federal election. 2 U.S.C. SS 441b. It defines
"contribution" or "expenditure" to include "any direct or
indirect payment, distribution, loan, advance, deposit, or gift
of money, or any services, or anything of value... to any
candidate, campaign committee, or political party or
organization, in connection with..." any Federal election.
2 U.S.C. SS 441b(b)(2).
Voting Records
You state that the National Right to Life Committee is a
nonprofit corporation with tax exempt status pursuant to
26 U.S.C. SS 501(c)(4). You add that NRLC engages in educational
and lobbying activities relating to the issues of abortion,
infanticide, and euthanasia and takes public positions on many
bills and amendments to bills on which Congress votes. It has
established a separate segregated fund, National Right to Life
Political Action Committee. You state that at the end of each
legislative session of Congress, NRLC prepares and distributes a
compilation of congressional voting records on abortion. NRLC
distributes these voting records as an insert in the National
Right to Life News, a publication of NRLC which is distributed to
100,000 subscribers every two weeks. NRLC also makes copies of
these voting records available for bulk purchases by other right-
to-life groups for distribution to their members and the general
public.
In this regard, you have submitted two sample voting records
as representative examples of those you plan to prepare and
distribute in the future. One voting record is dated September
1982 and the other January 1984. Each describes in detail the
substance and procedural aspects of various votes in the U.S.
Senate, U.S. House, or Senate committees relating to the issue of
abortion and sets forth NRLC's assessment and position regarding
each vote. It includes all senators, representatives, or
committee members, depending on the vote in question, and
indicates their party affiliation, state, and (where appropriate)
district.1/ Each also indicates how a senator or representative
voted, or whether he or she was absent or not a member of
Congress at the time of the vote. In some cases, each
characterizes a vote as either "prolife" or "pro-abortion" and
other times as a vote for a measure or a vote against it.
You ask whether the NRLC may continue to prepare and
distribute to the general public voting records, in a format
similar to the examples you provided, in compliance with the Act
and regulations.
Revised Commission regulations, prescribed on March 5, 1984,
at 49 Fed. Reg. 7981(1984), provide that a "corporation...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).2/
The Commission notes that the voting records described in
your request and represented by the submitted examples are
issue-oriented and not election-oriented or candidate-oriented.
No senator or representative is referred to as a candidate in any
Federal election. Aside from the reference in the September 1982
voting record to the possibility that some district numbers may
1/ The September 1982 voting record notes that representatives
are listing according to their district number in 1980, which may
have changed for the 1982 elections.
2/ Incorporated membership organizations, such as NRLC, are
treated as corporations for the purpose of this section. See
11 CFR 114.4(a)(1)(ii).
have changed for the 1982 elections, the examples do not provide
any information regarding elections. They do not suggest or urge
that anyone vote in any election or consult or use the voting
record in making his or her decision regarding any election.
They do not explicitly suggest or urge support for any senator or
representative based on that person's vote on any issue. They
also do not suggest that an officeholder is "easier to convince"
of a position on an issue while he or she is a candidate in a
forthcoming election, than after the officeholder is "safely" in
office. See Advisory Opinion 1984-14. In this respect the
voting records you describe are distinguishable from those at
issue in Advisory Opinion 1984-14. You further represent that
NRLC plans to distribute these voting records at the end of a
legislative session.3/ Therefore, the Commission concludes that
NRLC's preparation and distribution of this type of voting record
would not be for the purpose of influencing a Federal election
and, thus, would be permissible under the Act. If NRLC
distributes this type of voting record as part of its newspaper
or with other information, it must insure that the information
accompanying the voting record does not give its preparation and
distribution the purpose of influencing a Federal election.4/
Voter Guides
You state that Right to Life of Greater Cincinnati is a
nonprofit corporation with tax exempt status pursuant to
26 U.S.C. SS 501(c)(4). It also engages in educational and
lobbying activities relating to abortion, infanticide, and
euthanasia. At this time, it has not established a separate
segregated fund. It regularly prepares and distributes a voter
guide based upon questionnaires, sent to candidates for Federal
3/ The Commission notes, however, that the September 1982 voting
record was distributed prior to the 1982 general election and
prior to the adjournment of the second session of the 97th
Congress on December 21, 1982. The Commission understands from
your request that future distribution of NRLC's voting records
will coincide with the end of a legislative session.
4/ The Commission notes that the voting record examples contain a
price list for the purchase of the record, either singly or in
multiple quantities. This practice raises additional
considerations. Sales (or donations) of copies of the voting
record at less than these published prices could result in NRLC's
making a prohibited in-kind contribution, if purchased or
received by a candidate or political committee and used as part
of a campaign. See Advisory Opinion 1978-18. The Commission
also notes that the manner in which a bulk purchaser distributes
the voting record could also make such distribution for the
purpose of influencing a Federal election. Whether distribution
by a bulk purchaser would be attributable to NRLC would depend on
the facts in a specific situation.
and state offices, related to the legislative initiatives with
which the organization lobbies. The guide is published as part
of the organization's newsletter, which is distributed to its
members and to the general public. You have provided a sample
voter guide published in October 1982. The three-page voter
guide itself stated the questions posed to the candidates,
addressed these questions to all candidates for a particular
office or offices, reported their response to each question, and
included comments from the candidates or noted that the candidate
had declined to respond to the questionnaire. This guide was
published as part of the organization's newsletter, which also
contained a report of candidate endorsements made by an
affiliated organization's separate segregated fund. The endorsed
candidates were also included in the guide.
The revised Commission regulations permit a corporation to
"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." 11 CFR 114.4(b)(5)(i). The regulation sets
out several factors that the Commission may consider in
determining if a voter guide is nonpartisan. See 11 CFR
114.4(b)(5)(i)(A) to (F). The regulations, however, also provide
that a voter guide need not comply with these guidelines if (1)
the guide is "obtained from a nonprofit organization which is
exempt from Federal taxation under 26 U.S.C. SS 501(c)(3) or (4)
and which does not support, endorse or oppose candidates or
political parties"; and (2) the guide does "not favor one
candidate or political party over another." 11 CFR
114.4(b)(5)(ii).
In this regard, you pose three questions: (1) may a
qualified nonprofit organization, i.e. as described in 11 CFR
114.4(b)(5)(ii), distribute a voter guide that it has itself
prepared; (2) would the establishment of a separate segregated
fund by a nonprofit organization make it one that supports,
endorses, or opposes candidates or political parties; and (3)
does the sample voter guide meet the requirement that it does not
favor one candidate or political party over another?
The revised regulation states that "a corporation...may
distribute voter guides...obtained from a nonprofit
organization... ." You state that Right to Life of Greater
Cincinnati, Inc., itself prepares and distributes its voter guide
and does not obtain it from another qualified nonprofit
organization. The Commission concludes that the regulations
permit a qualified nonprofit organization to distribute a voter
guide that it has itself prepared and need not obtain the guide
from another qualified nonprofit organization or obtain a
corporate sponsor to distribute it. See Advisory Opinions
1984-14 and 1983-43.
With regard to your second question, you state that Right to
Life of Greater Cincinnati does not support, endorse, or oppose
candidates or political parties.5/ But you add that it is
contemplating the establishment of a separate segregated fund,
which will support and endorse Federal candidates. Commission
regulations permit a corporation to control its separate
segregated fund. See 11 CFR 114.5(d). This control includes
determining the disposition of the monies contributed to the
fund. Pipefitters v. U.S., 407 U.S. 385, 426 (1972). Therefore,
the Commission concludes that the establishment of a separate
segregated fund by an organization, tax exempt pursuant to
26 U.S.C. SS 501(c)(3) or (4), would make it an organization that
supports, endorses, or opposes candidates or political parties.
Consequently, if such an organization prepares a voter guide, the
guide must comply with the guidelines of 11 CFR 114.4(b)(5)(i)(A)
to (F).
With regard to your third question, the Commission notes
that Right to Life Greater Cincinnati is a nonprofit organization
tax exempt under 26 U.S.C. SS 501(c)(4) and presently does not
support, endorse, or oppose candidates or political parties.
Thus, it may prepare and distribute voter guides without
complying with the guidelines of 11 CFR 114.4(b)(5)(i)(A) to (F)
as long as the guide does not favor one candidate or political
party over another. The Commission concludes that the three-page
sample voter guide that you have provided meets this requirement.
Thus, preparation and distribution by Right to Life of Greater
Cincinnati of the sample voter guide would be permissible under
the Act and Commission regulations. The Commission also notes
that neither the Act nor the regulations prohibit the
distribution of a voter guide with other information as long as
this additional material does not have the effect of converting
an otherwise nonpartisan voter guide into one that does favor one
candidate or political party over another. For instance, a
nonpartisan voter guide may not characterize candidate responses
as right or wrong or suggest that a person contact a candidate
whose answers differ from the sponsoring organization's position.
See and compare Advisory Opinion 1984-14. Moreover, in this
regard, the Commission notes that the 1982 sample voter guide was
distributed as part of a newsletter that carried a report of
endorsements by another organization of candidates included in
5/ The Commission views this representation as relating to future
voter guides. It notes, however, that the sample 1982 voter
guide you provided was part of a newsletter carrying a report of
candidate endorsements by a separate, but affiliated,
organization. Nevertheless, the Commission does not view this
instance as transforming Right to Life of Greater Cincinnati into
an organization that supports, endorses, or opposes candidates or
political parties and thus disqualifying it from the safe harbor
provision of 11 CFR 114.4(b)(5)(ii).
the guide and also urged readers to favor those candidates when
voting in the November election. By doing so, the distribution
of such a guide had the effect of favoring one candidate over
another and, thus, would not be permissible under 11 CFR
114.4(b)(5)(ii).
The Commission expresses no opinion as to whether the
described activities would have any effect on the tax exempt
status of NRLC and the Cincinnati group since those issues are
not within the Commission's jurisdiction.
This response constitutes an advisory opinion concerning
application of the Act, or regulations prescribed by the
Commission, to the specific transactions or activities set forth
in your request. See 2 U.S.C. SS 437f.