Federal Election Commission Main Page
May 20, 1988
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1988-18
James I. Singer
Schuchat, Cook & Werner
The Shell Building, Suite 250
1221 Locust Street
St. Louis, Missouri 63103-2321
Dear Mr. Singer:
This responds to your letter of April 4, 1988, requesting an
advisory opinion on behalf of Local 36, Sheet Metal Workers
International Association, AFL-CIO, concerning the application of
the Federal Election Campaign Act of 1971, as amended ("the
Act"), and Commission regulations to the unlawful use of funds
contributed by Local 36 to aid State and local candidates.
Your letter explains that Local 36 may contribute funds from
its regular accounts, which contain dues monies, to State and
local candidates and to local party organizations. The union
intends that the donees use the funds for State and local
election purposes only, because the Act and Commission
regulations prohibit Local 36 as a labor organization, and any of
its officers, from making or consenting to any contribution from
union treasury funds, including dues monies, in connection with
Federal elections. 2 U.S.C. SS 441b(a), (b)(2); 11 CFR 100.5(b),
114.2(b) and (c), 114.5(b). The Act also forbids a candidate or
political party knowingly to accept or receive any prohibited
contribution. 2 U.S.C. SS 441b(a). See 11 CFR 114.2. Missouri
law, in contrast, permits a labor organization to make political
contributions from its own funds, including dues monies. See,
e.g., Campaign Finance Disclosure Law, MO. REV. STAT. SS 130.029
(1986).
You ask the Commission, in responding to your query, to make
three assumptions.
1. Local 36 has complied with and will
continue to comply with all relevant
Missouri laws, including those laws
governing the use of union dues to make
political contributions.
2. Local 36 will communicate to its donees
its intention to contribute money for
State and local political matters only,
that is, the union will earmark or
designate its contributions.
3. Local 36's intended donees must comply
with 11 CFR 102.5, which describes
accounting practices for organizations
that contribute both to non-Federal and
to Federal elections.*
Although no prior advisory opinion is directly on point,
several offer guidance here. All concern responsibilities
imposed by the Act and Commission regulations on persons who
receive contributions that were made by others in violation of
the Act.
Advisory Opinion 1978-53 indicates that candidates who, when
they received labor organization PAC contributions, had no
knowledge of the illegal procedure used to collect the
contributions need not return the money, provided that the
contributions were otherwise lawful. By contrast, in Advisory
Opinion 1984-52, a congressional candidate was required to refund
contributions, ostensibly from corporate employees, once he
learned that the corporation itself had used illegal employee
bonuses to provide the funds. The Commission emphasized that the
Act and the regulations together create a mandatory and detailed
scheme of obligations for recipients. Among these obligations is
the duty to scrutinize the source and legality of contributions
received. See 11 CFR 103.3(b).
Advisory Opinion 1982-38 rests heavily on the Act's
imposition of affirmative obligations. A principal campaign
committee inquired whether it might accept contributions from
various county Democratic committees in a state whose laws
permitted corporations to make political contributions from their
corporate treasuries. The Commission concluded that the Act
barred the committee from accepting contributions from those
* Organizations that qualify as political committees under the
Act and that finance political activity in connection with both
Federal and non-Federal elections must choose one of two
accounting plans outlined in subsection (a) of 11 CFR 102.5.
Organizations that do not qualify as political committees but
that also contribute both to Federal and to non-Federal elections
must choose one of two accounting plans described in subsection
(b) of 11 CFR 102.5.
county committees that had failed to comply with the accounting
procedures specified in 11 CFR 102.5(b)(1)(ii). The county
committees' lack of actual knowledge that their treasuries had
insufficient appropriate funds would not make their accounting
practices acceptable. "Application of an 'actual knowledge'
standard falls short of fulfilling the affirmative obligation
imposed on both the contributor/non-political committee and the
recipient/political committee to ascertain whether the
contributor had received sufficient funds when the contribution
was made."
These Advisory Opinions suggest the answer to your question
whether Local 36 would be found in violation of the Act,
particularly 2 U.S.C. SS 441b, if, without Local 36's prior
knowledge, the union treasury funds it contributed to aid State
and local candidates were instead used by the donees to influence
the election of Federal candidates. To avert its own possible
violations of the Act in the circumstances presented, Local 36
should continue its prudent policy and procedure of making
written designations with its contributions to State and local
candidates and to local political party organizations. These
designations should clearly convey Local 36's directions that the
funds contributed are restricted to influencing the elections of
State and local candidates only. If the union, as your letter
indicates, intends to support a particular State or local
candidate or is interested in a particular State or local
election, the union may provide more detailed instructions. For
example, the union may write the name of the specific candidate
or specific election on its check (or other written instrument)
or it may achieve the same end by attaching a signed statement to
its check with the information.
The Commission expresses no opinion concerning the
application of any Missouri statute or regulations that may
govern the union's State and local political activity.
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.