Federal Election Commission Main Page
May 30, 1985
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1985-14
Robert F. Bauer, Esq.
Perkins, Coie, Stone, Olsen & Williams
1110 Vermont Avenue, N.W.
Washington, D.C. 20005
Dear Mr. Bauer:
This responds to your letters of March 18 and April 9, 1985,
requesting an advisory opinion on behalf of the Democratic
Congressional Campaign Committee ("DCCC"), concerning application
of the Federal Election Campaign Act of 1971, as amended ("the
Act"), and Commission regulations to the allocation and reporting
of expenditures for certain political advertisements.
DCCC is registered with the Commission as a party-related,
multicandidate political committee. You state that DCCC is
"[o]rganized and operated by Democratic members of the House of
Representatives" and "functions broadly as a national party
organization in support of Democratic candidates to the House, as
well as other public offices around the country." You state that
DCCC plans to initiate a program involving criticism of the
records of individual Republican members of the House of
Representatives and of the activities of Republican Members of
Congress as a class. Some of these Republican members may not be
announced candidates for the 1986 elections, while some will have
qualified as candidates pursuant to the Act. See 2 U.S.C.
SS 431(2).
You state that DCCC plans to focus its program in 20-100
selected congressional districts but may expand it to include all
districts represented by Republicans. You add that DCCC's
program will have "the clear purpose of influencing voter
perceptions of these candidates with a view toward weakening
their positions as candidates for re-election in 1986." You
state that some of the proposed communications will refer to the
next or the last election, while other communications will
criticize a congressman's record without any reference to any
election or without any express advocacy language. These
communications will include television and radio broadcasts,
newspaper and other print advertising, and direct mail brochures.
You propose to produce and disseminate these communications
currently and in September 1985.1/
In this context, you have provided the scripts for radio and
television broadcasts and the text for a direct mail brochure:
1/ Your request indicates a schedule of April and September
1985, but you also note that this proposed schedule as to April
will be adjusted depending on the timing of the Commission's
response to your request.
"PLIERS AND TOILET SEATS"(Radio/TV)
Democratic Congressional
Campaign Committee
Background: Loud laughter and applause
Voice No. 1: What's going on? What's so funny?
Voice No. 2: (laughing intermittently): Oh, that's the
President getting a good laugh from the crowd in Washington, the
Republicans in Congress. He says we should take care of the farm
crisis by keeping the grain (begins to burst into uncontrolled
laughter)-- and exporting the farmers!!!
Voice No. 1: (with anger): That's not funny at all; this
farm crisis is real and endangering the very existence of family
farms. People are really suffering.
Voice No. 1: Who cares? The Republicans sure don't. So
just join the crowd and have a good laugh.
Announcer: But it is not a laughing matter. The President
and his Republican supporters in Congress are enjoying this joke
at the expense of the American farmer--but the last laugh is on
you and on your children. And while the Republicans are breaking
every election-year promise they ever made to the American
farmer, they just look on and smile when multi-billion dollar
defense contractors charge you--the taxpayer--$_________for a pair
of pliers and $____________for a toilet seat. That's the real
joke.
(Pause)
Announcer: Let your Republican Congressman know that you
don't think this is funny.
(Or, in some ads: Let the Republicans in Congress know what
you think about their sense of humor.)
[In some scripts, the text closes with "Vote Democratic"]
"Crumbling Foundation" (Radio/TV)
Democratic Congressional
Campaign Committee
Sound: A crumbling, cracking sound of something "giving away."
Announcer (with sound in background): You read the
newspaper nowadays and what do you find: stories about
collapsing banks, people in a panic over the loss of their
savings, federal and state government coming up with rescue plans
and bailouts.
(Sound in background get louder)
Announcer: It all sounds too familiar, like 1932, but it's
not then. It's now. And it's real.
(Sound in background increases in volume)
Announcer: The President and his Republican allies in
Congress are all smiles, they tell us not to worry. But under
their leadership, the budget deficit grows to monstrous
proportions, Wall Street is nervous, the dollar begins to show
signs of weakness.
(Sound comes to fore, very loud and then replaced by a moment of
silence)
Announcer: We've seen all this before: let's make sure it
doesn't happen again. Let your Republican Congressman (or in
some ads, the Republicans in Congress) know that their
irresponsible management of the nation's economy must end--before
it's too late.
[In some scripts, the text closes with "Vote Democratic"]
SAMPLE MAILER
17 x 22/One Fold
Front Face
8 1/2 x 11
Bulk mail
Wave of the future?
[dye-cut; beautiful sunset;
couple walking in ocean
surf/beach]
Inside Fold
17 x 22
The wave of the future [Picture of
could be an oil spill giant oil-derrick
if Cong. X has his way!in ocean ruins
the lovely
picture]
Text
List of X's
contributions from oil
industry
[Same couple
on beach]
Back Cover
8 1/2 x 11
Don't be fooled by Republican
rhetoric. Save our coastal
environment.
Let Congressman X know how you
feel.
[In some scripts, the text closes
with "Vote Democratic".]
You seek to determine whether DCCC's expenditures for these
planned communications must be considered attributable
contributions or expenditures under 11 CFR 106.1 and Advisory
Opinion 1984-15. You have presented several specific questions:
1. Would broadcast advertisements and other general public
communications (e.g. direct mail, leaflets, etc.) that
specifically identify Republican congressmen and criticize their
records, require allocation under 11 CFR 106.1(a) and AO 1984-15?
Does the answer depend on whether the communications contain
reference to "elections" or any "express advocacy" language?
2. Would broadcast advertisements and other general public
communications that criticize the activities and record of
Republican congressmen as a class require allocation under 11 CFR
106.1(a) and AO 1984-15 to the individual Democratic candidates,
when ultimately nominated by the Democratic Party?
3. Does the answer to question 2 differ if DCCC directs
these "generic" critiques to selected congressional districts?
DCCC's payments for these communications are reportable
expenditures for the purpose of influencing Federal elections,
and the sources of the funds used by DCCC to make these
expenditures are subject to the limitations and prohibitions of
the Act. See 2 U.S.C. SS 434, SS 441a, SS 441b, SS 441c, SS 441e, and
SS 441f. Your questions relate to whether these expenditures are
attributable to a specific candidate or candidates and, thus,
subject to the Act's limitations on those contributions or
expenditures made by DCCC.
You state that there may be no Democratic candidate, either
announced or qualified under the Act, in the congressional
districts selected to receive DCCC's proposed communications.
Thus, the Commission assumes that DCCC's expenditures for these
communications will not be made in cooperation or consultation
with any candidate.2/ Instead, the Commission views your request
as limited to the situation where expenditures for these
communications are made without any consultation or cooperation,
or any request or suggestion of, candidates seeking election to
the House of Representatives in the selected districts.
In this context, the Act's limitations at 2 U.S.C.
SS 441a(d) become relevant since the Commission has stated that
expenditures pursuant to 2 U.S.C. SS 441a(d) may be made without
consultation or coordination with any candidate and may be made
before the party's general election candidates are nominated.
2/ See 2 U.S.C. SS 441a(a)(7)(B)(i); 11 CFR 104.3(b) and
104.13(a).
See Advisory Opinion 1984-15.3/ This section permits "the
national committee of a political party" to make additional
expenditures, subject to certain specific dollar limitations, "in
connection with the general election campaign of a candidate for"
the House of Representatives "who is affiliated with such party."
2 U.S.C. SS 441a(d)(3).4/ A national committee of a political
party, as defined at 2 U.S.C. SS 431(14), may designate the party's
congressional campaign committee as its agent for purposes of
making these expenditures, if such designation occurs before the
designee committee makes the expenditures. See 11 CFR
110.7(a)(4); FEC v. Democratic Senatorial Campaign Committee, 454
U.S. 27, 28-29 (1981); First General Counsel's Report, MUR
1460.5/
In Advisory Opinion 1984-15, the Commission considered the
application of the limitations of 2 U.S.C. SS 441a(d) to
expenditures for political advertising similar to DCCC's proposed
communications. There, the Commission concluded that the
limitations of SS 441a(d) would apply where the communication both
(1) depicted a clearly identified candidate and (2) conveyed an
electioneering message. See also Advisory Opinion 1978-46.
Under the Act and regulations, a candidate is clearly identified
if his or her name or likeness appears or if his or her identity
is apparent by unambiguous reference. 2 U.S.C. SS 431(18); 11 CFR
106.1(d). Electioneering messages include statements "designed
to urge the public to elect a certain candidate or party."
United States v. United Auto Workers, 352 U.S. 567, 587 (1957);
see Advisory Opinion 1984-62.
3/ This interpretation is consistent with the reporting
requirements.Expenditures made under SS 441a(d) and 11 CFR 110.7
are reported as expenditures by the committee making them.
11 CFR 104.3(b)(3)(viii). The candidate on whose behalf such
expenditures are made, however, does not report these
expenditures as contributions. 11 CFR 104.3(a)(3)(iii).
4/ Party political committees are incapable of making
independent expenditures. 11 CFR 110.7(a)(5) and (b)(4);
Advisory Opinions 1984-15 and 1980-119; General Counsel's Report,
MUR 273.
5/ For purposes of this advisory opinion, the Commission assumes
that DCCC is or will be the designated agent of the national
committee of the Democratic Party for the purpose of making
expenditures pursuant to 2 U.S.C. SS 441a(d)(3). This expenditure
limitation is in addition to the limitation on contributions by
DCCC pursuant to 2 U.S.C. SS 441a(a)(2)(A). See 11 CFR
110.7(b)(3); H.R. Rep. No. 1057, 94th Cong., 2d Sess. 59 (1976),
reprinted in Legislative History of the Federal Election Campaign
Act Amendments of 1976, 1053 (GPO 1977).
Both the "Pliers and Toilet Seats" and the "Crumbling
Foundation" scripts offer two alternative taglines: one
referring to "your Republican Congressman" and one referring to
"the Republicans in Congress." You further state that some
scripts will also close with a "Vote Democratic" statement. The
Commission concludes that DCCC's expenditures for its proposed
radio and television advertisements (with scripts as set forth in
this opinion) that use the tagline, "the Republicans in
Congress," either with or without the "Vote Democratic" statement
(or other electioneering message), will not be subject to the
Act's limitations. In addition, the Commission concludes that
DCCC's expenditures for its proposed advertisements that use the
tagline, "your Republican Congressman," without the "Vote
Democratic" statement, will also not be subject to the Act's
limitations. Instead DCCC may report these expenditures as
operating expenditures. See 11 CFR 104.3(b). These conclusions
also apply where the advertisements are directed to only selected
congressional districts.
With respect to DCCC expenditures for the proposed radio and
television advertisements that use the tagline, "your Republican
Congressman," together with the "Vote Democratic" statement, the
Commission considered alternative responses but on a tie vote was
unable to agree whether such expenditures would or would not be
subject to the Act's limitations and attributable pursuant to
11 CFR 106.1. See 11 CFR 112.4(a).
With regard to DCCC's proposed sample mailer, the Commission
assumes that its references to "Cong. X" indicate that a specific
congressman will be identified by name. The Commission also
assumes that the mailer's dissemination may include part or all
of the district represented by the identified congressman. The
Commission concludes that DCCC's expenditures for producing and
disseminating the mailer either with or without the "Vote
Democratic" statement will be subject to the Act's limitations
and attributable pursuant to 11 CFR 106.1.
You have indicated that DCCC's proposed program is for the
purpose of influencing the 1986 election process and that these
activities will be scheduled for approximately the next month and
for September 1985. The Commission emphasizes that this opinion
is limited to the timetable you have specified and does not
address the implementation of the same or a similar program at
some later date.
The Commission notes the foregoing discussion responds to
the three questions you presented in your letter dated March 18,
1985.
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.