Federal Election Commission Main Page
February 26, 1988
CERTIFIED MAlL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1988-2
Terry Claassen
Peper, Martin, Jensen, Maichel and Hetlage
Suite 400
1730 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-4706
Dear Mr. Claassen:
This responds to your January 20, 1988, letter requesting an
advisory opinion on behalf of the Chicago Board Options Exchange,
Inc., concerning application of the Federal Election Campaign Act
of 1971, as amended ("the Act"), and Commission regulations to
the bulletin board posting of receipt and disbursement reports
filed with the Commission.
The Chicago Board Options Exchange, Inc. ("CBOE"),
incorporated under Delaware law, operates as a securities
exchange and sponsors the separate segregated fund, Chicago Board
Options Exchange Political Action Committee ("CBOEPAC"). You
indicate that CBOE officials have received numerous inquiries
from CBOE members1/ and CBOE executive or administrative
personnel concerning the nature and amounts of both receipts and
disbursements of CBOEPAC, as well as those of separate segregated
funds of other exchanges. CBOE proposes to respond to these
inquiries by posting receipt and disbursement reports filed with
the Commission by CBOEPAC and other separate segregated funds.
The reports on FEC Form 3-X would be displayed on bulletin boards
located in an access-restricted area used by CBOE to post
miscellaneous notices to its members. You also indicate that
1/ In Advisory Opinion 1987-31 the Commission reviewed the status
of several groups of CBOE personnel and concluded that some
groups qualified as members for purposes of the Act, but that
other groups did not.
CBOE proposes to post these reports without comment or
embellishment unless the Commission requires a notice warning the
reader that information contained in the reports cannot be used
for commercial purposes.
You ask whether the Act and regulations permit CBOE to
display the FEC reports in the described manner and location.
The principal issue raised by your question is whether the
statutory prohibition on sale or use of information copied from
reports filed with the Commission applies to the restricted
display by CBOE of copies of reports filed by CBOEPAC and by
other political committees. The Act provides that the Commission
shall make reports and statements filed with it available to the
public for inspection and copying within 48 hours after receipt.
2 U.S.C. SS 438(a)(4). No person, however, may use or sell
information copied from reports for soliciting contributions or
for other commercial purposes. 2 U.S.C. SS 438(a)(4), 11 CFR
104.15(a); see Advisory Opinions 1986-25, 1985-16, 1984-2, 1981-38,
and 1981-5.
The Commission has declared that the purpose of this
restriction is to protect individuals who make contributions to
campaigns from being victimized by list-brokering. Advisory
Opinions 1984-2, 1981-38, 1981-5, 1980-78, and opinions cited
therein. The Commission has held that where a publisher proposed
to use data from FEC disclosure documents in a newsletter
regarding campaign practices, but did not seek to use the names
of contributors, this use was permissible. Advisory Opinion
1981-38. Where a candidate proposed to obtain expenditure data
submitted by his opponents, to be included in the candidate's
solicitation letters, this use was permissible provided the
letter did not contain information on the identity of individual
contributors. Advisory Opinion 1980-78.
By contrast, the Commission has permitted the use of
individual contributor information only in narrow circumstances
not related to solicitation or commercial purposes. A candidate
who proposed to use reports filed with the Commission to contact
contributors to an unauthorized campaign committee to tell those
contributors that the committee was unauthorized was permitted to
do so, but was not permitted to solicit contributions to the
authorized committee. Advisory Opinion 1984-2. And, where a
candidate proposed to send a letter to contributors to his
opponent's campaign to correct allegedly defamatory statements
made by the opponent, this use was permissible provided there was
no solicitation or commercial purpose. Advisory Opinion 1981-5.
Accordingly, the Commission concludes that CBOE's posting of
receipt and disbursement reports of CBOEPAC, or of other separate
segregated funds, would not be a prohibited use of contributor
information under 2 U.S.C. SS 438(a)(4) or Commission regulations
at 11 CFR 104.15. Moreover, the Commission concludes that
although the Act and regulations do not require CBOE to attach a
notice to the posted reports warning that information in the
reports cannot be used for commercial purposes, such a warning is
suggested because it informs readers of the restrictions on the
use of certain information contained in FEC reports.2/
In addition to the question you asked in your letter, your
request also raises the issue whether CBOE's posting of receipt
and disbursement reports filed with the Commission constitutes a
prohibited contribution solicitation under the Act and
regulations.
The Act allows a corporation, or a separate segregated fund
established by a corporation, to solicit generally the
corporation's stockholders and executive or administrative
personnel and to make two written solicitations per year to
nonexecutive employees. 2 U.S.C. SS 441b(b)(4). An incorporated
membership organization is also allowed to solicit contributions
from its individual members. 2 U.S.C. SS 441b(b)(4)(C), 11 CFR
114.7(a). The Commission has previously concluded that a
communication regarding a separate segregated fund's activity is
not a solicitation under section 441b where the information
provided would neither encourage readers to support a separate
segregated fund's activities nor facilitate making contributions
to it. Advisory Opinions 1983-38, 1982-65, 1980-65, and 1979-66.
CBOE's proposed posting of reports filed with the Commission
is only informational. By displaying a copy of the FEC reports
on its bulletin board, CBOE is a passive conduit of information.
The reports, therefore, merely inform the reader and in no way
encourage support of CBOEPAC or facilitate contributions to it.
Accordingly, the Commission concludes that CBOE's posting of
receipt and disbursement reports filed with the Commission would
not constitute a solicitation under 2 U.S.C. SS 441b(b)(4).
Because the report posting is not a contribution solicitation, it
is immaterial that persons outside the solicitable class of CBOE
may read the posted FEC reports.
2/ Those restrictions apply regardless of where the FEC report
is displayed.
This response constitutes an advisory opinion concerning
application of the Act, and regulations prescribed by the
Commission, to the specific transaction or activity set forth in
your request. See 2 U.S.C. SS 437f.