Federal Election Commission Main Page
April 6, 1987
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1987-7
Frank M. Northam
Webster, Chamberlain, Bean & McKevitt
1747 Pennsylvania Ave., N.W.
Washington, D.C. 20006
Dear Mr. Northam:
This responds to your letters of January 22 and February 6,
1987, 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 those activities proposed in
Advisory Opinion Request 1983-43, as supplemented by the
Stipulation and Exhibits filed in United States Defense Committee
v. Federal Election Commission, Civ. Action No. 84-CV-450
(N.D.N.Y.).
The above-referenced documents indicate that USDC is a non-profit,
non-stock membership corporation which accepts funding
from other corporations and is exempt from Federal income
taxation under SS 501(c)(4) of the Internal Revenue Code. You
state that USDC is not associated with any political party,
committee, or candidate for elective office. Further, your
Articles of Incorporation state that USDC's purpose is to help
make the public aware of the "defense posture" of the nation as
well as to educate the public on defense and national security
issues. You also state that USDC has engaged and continues to
engage in legislative activity to promote a strong national
defense and a strong foreign policy.
The materials you have submitted for consideration indicate
that USDC will collect information as regards the positions held
on defense and national security issues by candidates for Federal
office. It will develop this information from voting records of
incumbent Members of Congress, from public statements of Federal
candidates, and from responses to USDC questionnaires which USDC
intends to send to all candidates for Federal office. The
questionnaires, which will contain advocacy-type questions, will
seek yes or no, or no response, answers to questions concerning
the candidate's positions on issues of interest to USDC. You say
that the purpose of the questionnaires is to ascertain the
candidate's position on these defense related issues before the
election so that they can be held accountable for these positions
after the election. To encourage candidates to respond, USDC
will inform members of the public believed to agree with its
positions about the questionnaires, and will encourage them to
urge the candidates to respond or conform to USDC's views.
You state that USDC will compile and publish the responses
(or lack thereof) 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.
Dissemination of the candidates' responses will take place some
time prior to the primary or general election in which the
candidates surveyed are running. This publication may contain
the candidate's party affiliation and may indicate the
percentage, number of times, or specific respects in which a
candidate's responses comport with USDC's views. You indicate
that you may run newspaper advertisements and other print media
focusing on the responses of a particular candidate which urge
the public to contact the candidate so that he or she will
publicly take a position on the issues. You do not include an
example of this type of advertising either in your prior requests
or as an exhibit to the pending litigation.1/ You state that
your intent as to all of these communications is to avoid use of
any message expressly advocating the election or defeat of any
candidate, pursuant to Buckley v. Valeo, 424 U.S. 1 (1976).
USDC also intends to disseminate to the public information
concerning the voting records of Members of Congress on selected
legislative proposals of interest to USDC, including an
evaluation of those votes. You state that this information will
be distributed periodically and not necessarily at or around the
dates for election. Again, you say that USDC may characterize
certain votes or voting records as being in accord with or
against the position of USDC, and that the incumbent's party
affiliation may be given for identification purposes. As with
publication of the candidates' responses to the questionnaire,
you state that your intent is that these voting records will not
expressly advocate the election or defeat of any candidate.
1/ This opinion does not reach any issues concerning application
of the Act or regulations as to such advertising activity because
copies of such proposed newspaper or other print media
advertisements were not included in the USDC materials, and
because no publication schedule or other specific factual
description of this activity was provided. See 2 U.S.C.
SS 437f(a)(1), 11 CFR 112.1(b), (c).
Finally, these communications will be financed from USDC's
general treasury, which includes both voluntary dues from members
and contributions, and also contains corporate monies. In light
of these facts, you ask whether the Act and Commission
regulations prohibit expenditures from USDC's general treasury
for the proposed communications.
The Act prohibits corporations from making expenditures in
connection with a Federal election. 2 U.S.C. SS 441b. You have
asked the Commission to consider the application of this
prohibition to USDC's communications in light of the Supreme
Court's decision in Federal Election Commission v. Massachusetts
Citizens for Life, Inc., ("MCFL") 107 S. Ct. 616 (1986). The
Court's opinion contains its most recent analysis with respect to
the scope of 2 U.S.C. SS 441b. In MCFL, the Court carved out a
limited exception to section 441b's application to "any
corporation whatever" concluding that MCFL is not bound by
section "441b's restriction on independent spending." The Court
qualified its exemption for MCFL by setting out "three features
essential to" its holding. One feature was the fact that MCFL's
policy is not to accept contributions from business corporations
or labor unions.
You have stated, however, that your membership does include
corporations and that you accept corporate contributions as
permitted by your bylaws. Paragraph 9 of Stipulation and Exhibit
Eight of litigation file (USDC answer to Commission
interrogatories dated May 23, 1985). You have not indicated that
your acceptance of corporate contributions (or payments) to USDC
excludes business corporations; therefore, the Commission assumes
that USDC's treasury includes monies from business corporations.
As a result, USDC clearly fails to satisfy the MCFL standard for
exemption from the expenditure prohibition of section 441b and is
still subject to that provision.
Nonetheless, 11 CFR 114.4(b)(4) and (b)(5) permit the
distribution of voting records and voter guides in certain
circumstances. This opinion will examine whether the specific
materials you have presented for review meet the criteria
prescribed in Commission regulations which would permit USDC, a
corporation, to make expenditures for such activities.
Publication of Incumbents' Voting Records
The Commission considered a proposed opinion with respect to
USDC publication of information concerning the voting records of
Members of Congress on selected legislative measures. The
Commission did not, however, approve an advisory opinion on these
materials by the required affirmative vote of four members.
2 U.S.C. SS 437c(c).
Survey of Candidate Issue Positions
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 regulations set 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 publication
describing candidates and their positions on campaign issues need
not comply with these guidelines if the materials: (1) are
"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) if the publication does "not favor one candidate or
political party over another." 11 CFR 114.4(b)(5)(ii). As
stated in Advisory Opinion 1984-14, USDC comes within 11 CFR
114.4(b)(5)(ii) and may distribute candidate survey materials
that do not comply with the factors enumerated in
SS 114.4(b)(5)(i), given your representation that USDC is a
nonprofit, tax exempt organization which does not support,
endorse or oppose candidates or parties. See also Advisory
Opinion 1984-17.
The Commission concludes herein that certain specified
materials you have submitted in the past Advisory Opinion
Requests, taken together with the facts as developed in the
ongoing litigation, comply with the requirements set forth at
11 CFR 114.4(b)(5)(ii). Other materials do not comply.
Accordingly, USDC expenditures for these communications are
prohibited by 2 U.S.C. SS 441b. If USDC deletes from the materials
reviewed here those items not permitted under Commission
regulations, its expenditures for the remaining materials would
not be prohibited by 2 U.S.C. SS 441b.
The candidate survey materials included in your request
contain a packet of various letters to be sent to Federal
candidates and the general public both before and after the
initial results of the questionnaire have been obtained; the
materials also include a draft roster of survey results. The
materials sent prior to the compilation of the survey results
restate the questions asked each candidate in all congressional
districts of a particular state, as well as report their
responses or non-responses to the questions. You have
specifically stated that only the candidates' yes or no, or no
response, answers will be reported. In addition, the letters you
send to both the candidates and general public prior to the
compilation of these records have the sole purpose of encouraging
candidates to respond to the questionnaire so that USDC can
publish the results.
Given that the purpose of these specific communications is
to influence candidates to agree with USDC's positions on the
issues it selects, and to enlist the assistance of the public in
this endeavor, the Commission believes that these specific
materials, including the actual roster of results, as presented,
reflect primarily a "grass roots" lobbying or issue advocacy
effort.2/
USDC has also included two letters in its packet of
materials which it intends to send to the general public after it
has compiled the initial results of the candidate questionnaire.
Both of these letters (Items VII and IX of Exh. 1) are sent
to members of the general public, and later to members of a
specific congressional district less than four weeks before the
state primary election. The first of these letters characterizes
the candidate's responses as right or wrong answers and suggests
that the recipient of the letter contact a candidate whose
answers differ from USDC's position so as to persuade the
candidate to change his or her mind before the election. The
letter also continues its attempt to have the public encourage
those people who have not responded to do so, and asks the public
to thank those who agree with USDC's position.
The follow up letter is even more candidate and election
specific since time is clearly identified as a factor due to the
proximity to the election. Moreover, instead of allowing the
recipient of the letter to ascertain who gave right and wrong
answers, this second letter focuses on the candidates in a
specific congressional district and is targeted at the
constituents of that district. Indeed, while the incumbent (who
is also a candidate) has not responded to the questionnaire, you
discuss his voting record and label him unfavorably to USDC
supporters. You now want the recipient to contact this incumbent
as well as nonresponsive candidates so as to persuade the
candidates to show that they represent their constituents. You
also advise the recipient that an officeholder is "easier to
convince...when he's looking for votes than...after he's safely
in office."
As a result of the context and content of these letters
given that a compilation of results was contemporaneously issued,
as well as their proximity to the election, they no longer
represent primarily "grass roots" lobbying or issue advocacy.
Rather, your prior issue advocacy approach is now overshadowed by
the election messages within these letters and their advocacy
concerning specific candidates in the imminent election. These
2/ The Commission reserves any questions as to whether your
communications would remain lobbying activities if there is a
change in language or other circumstances. See 2 U.S.C.
SS 437f(c), 11 CFR 112.5.
letters have the effect of converting otherwise nonpartisan
materials into materials that do favor one candidate or political
party over another. These materials are not exempt under 11 CFR
114.4(b)(5) and therefore are prohibited under 2 U.S.C. SS 441b.
To the extent that Advisory Opinions 1984-14 and 1983-43 are
inconsistent with this opinion they are hereby superseded.
The Commission does not purport to express any opinion with
respect to the USDC's qualifications for tax-exempt status under
26 U.S.C. SS 501(c)(4) or any other tax ramifications, since such
issues are outside its jurisdiction.
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.
P.S. Commissioner Elliott voted against approval of this opinion
and will file a dissenting opinion at a later date.