Federal Election Commission Main Page
February 14, 1990
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1989-28
James Bopp, Jr.
Brames, McCormick, Bopp & Abel
The Tudor House
191 Harding Avenue
P.O. Box 410
Terre Haute, Indiana 47808-0410
Dear Mr. Bopp:
This responds to your two letters dated October 24
and May 15, 1989, which request an advisory opinion on behalf
of the Maine Right to Life Committee, Inc.("MRLC"),
concerning application of the Federal Election Campaign Act
of 1971, as amended ("the Act"), to the financing of MRLC
newsletters that contain candidate surveys.
Your letters, and the documents submitted with them,
indicate that MRLC has previously published several
newsletters for public distribution that present the views of
Federal candidates, including their responses to MRLC
surveys, on policy issues such as abortion. MRLC proposes to
issue similar newsletters in the future; in particular, in
May 1990 before the June 12 primary election in Maine. Your
May 15 letter sets forth several "issues" on which you
request an advisory opinion from the Commission. These
questions, in essence, present the more basic issue as to
whether MRLC may use its general corporate treasury funds to
finance the pre-election newsletters.
The factual basis of the request is presented in your
letters and in other materials submitted by you. You explain
that MRLC is a statewide, nonprofit, section 501(c)(4)
membership organization incorporated in 1974 in the State of
Maine. It was formed "to promote the sanctity of all human
life, including unborn children, and to educate the public on
issues relating to abortion, infanticide, and euthanasia."
MRLC itself is "not associated with any political candidate,
campaign committee, or political party," but in 1981 it
established a separate segregated fund, the Maine State Right
to Life Political Action Committee (MRLCPAC). This political
committee makes contributions to candidates for Federal and
State elective offices who "take a prolife stand on the
issues of abortion, infanticide, and euthanasia."
MRLC prepares and distributes a bimonthly newsletter,
Life for ME, "containing educational articles and news of
local chapter activities." Prior to elections, the
newsletter includes the results of a survey of candidates for
Federal and State office. The survey is taken by means of an
MRLC questionnaire, and candidate responses to the survey
indicate their positions on "prolife issues." Your May 15
letter states that funding for the newsletter comes from the
general treasury of MRLC, and not from the treasury of
MRLCPAC. MRLC's treasury includes corporate contributions.
Your request indicates that MRLC solicits donations
from business entities and corporations, and it allows them
to become "members." Donations are also regularly received
by MRLC from businesses and corporations.1/ In addition,
during 1989, MRLC began soliciting business advertising from
"pro-life businesses" to defray the costs of printing and
mailing Life for ME.2/ These solicitations have been mailed
to businesses who "have been...supporter[s] of MRLC in the
past... ." MRLC has also invited inquiries from business
entities that would be interested in larger ads.
With respect to the newsletter issues which carry
candidate survey responses and other candidate viewpoints on
MRLC policy positions, your request included copies of MRLC
newsletters from May 1984 and November 1988. These issues
include candidate responses to numerous MRLC questions
concerning possible amendments to the U.S. Constitution such
as the "Human Life Amendment," overturning the Supreme Court
decision in Roe v. Wade, and an "abortion-neutralization"
amendment to the Equal Rights Amendment. In addition, the
surveys sought Federal candidates' responses that would
indicate their support or opposition to federal legislation
such as "human life bills," as well as "pro-life amendments"
to appropriation bills prohibiting federal funding for
abortions and the funding of organizations which make
referrals for abortions. The 1988 candidate survey also
presented other legislative proposals such as barring the
denial of "beneficial medical treatment" for newborn infants
and for handicapped, chronically ill, and elderly persons.
Each of these questions was posed in a manner whereby a "yes"
reply by the candidate would be readily recognized as the
"pro-life response" favored by MRLC.
The 1984 survey questions and results were published
in the May/June 1984 issue of the MRLC newsletter and
included the names of seven Federal candidates. Each of them
was recorded as making no response to the survey. The 1988
survey questions, along with the results, were published in
the November 1988 newsletter and identified six Federal
candidates. Four of them were recorded as making no response
to the survey. One gave "yes" answers to all ten questions,
and the sixth candidate gave "no" answers to two questions
but did not respond to the others. An introduction to the
published survey responses in both 1984 and 1988 briefly
notes the forthcoming elections and states that the survey
report "does not represent an endorsement" of any candidate
by MRLC. The reader was advised to contact candidates who
had not responded at all; the 1988 issue emphasized that it
"is vital that your local candidate hear from you on this
issue."
In addition to the survey results for Congressional
----------
1/ MRLC records do not differentiate between corporate
donations and those from other business entities. In 1985
and 1986, MRLC received respectively $87 and $175 from
corporations or other businesses. These donations
represented less than .5% of its total donations in 1985 and
approximately 1% in 1986. In 1984, business donations to
MRLC represented slightly over 5% of total donations.
2/ The cost for an ad of business card size is $25 per issue,
or $100 to run the same ad for a year.
candidates, the November 1988 newsletter includes a front
page feature, with headlines and photos, covering the two
major party presidential candidates in the 1988 general
election and their vice-presidential running mates. The top
headline in bold, large type states: NOVEMBER ELECTION ISSUE
1988! A lower headline in smaller bold type says: Take-along
Issue For Election Day!
This front page feature has separate photos of George
Bush and Michael Dukakis who are also identified by political
party affiliation. In contrast to the Congressional
candidates identified in the reported survey results, the
presidential candidates did not receive an MRLC survey.
Their views on abortion issues are reported with references
to their past official records and publicly stated positions.
In addition, their positions are conveyed by means of four
brief quotations about them which are attributed to the
National Right to Life Committee("NRLC") and the National
Abortion Rights Action League("NARAL"). With respect to
Mr. Bush, the opinion from NRLC is that he "has been a
consistent supporter of pro-life efforts," while the NARAL
view is that he "is anti-choice and supports President
Reagan's opposition to abortion." For Mr. Dukakis, the NRLC
assessment is: "This is the most pro-abortion presidential
ticket in history." The NARAL opinion indicates that Mr.
Dukakis "has been a consistent and strong supporter of
reproductive rights for women."
Your request includes the above-described 1984 and
1988 MRLC newsletters and various other documents pertaining
to the activities of MRLC including its sources of funding
and its fundraising solicitations. You indicate that MRLC
proposes to continue publishing similar newsletters with
costs paid from its general treasury funds, not by MRLCPAC.
You explicitly state that MRLC expects to publish a voter
guide survey issue in May 1990, just before the June primary
election in Maine. You request an advisory opinion as to
whether the Act and Commission regulations prohibit or permit
this proposed activity.
The Act generally prohibits any corporation from
using its corporate treasury funds to make "a contribution or
expenditure in connection with any [Federal] election."
2 U.S.C. Sc441b(a). However, the Act does permit a
corporation to use its corporate treasury funds to administer
a separate segregated fund that will be used for political
purposes. 2 U.S.C. Sc441b(b)(2)(C). Such a fund is a
political committee and, like other political committees, is
subject to the Act's recordkeeping and reporting
requirements. 2 U.S.C. Sc431(4)(B); see generally 2 U.S.C.
ScSc432-434.
In a 1986 decision, the United States Supreme Court
held that the First Amendment precluded application of 2
U.S.C. Sc441b to require a small, informally organized,
incorporated advocacy group to finance its independent
expenditures from a separate segregated fund. FEC v.
Massachusetts Citizens for Life ("MCFL"), 479 U.S. 238(1986).
The holding in MCFL was explicitly limited to incorporated
advocacy groups that satisfy a three part test, including the
requirement that the corporation was not established by a
business corporation and had a firm policy against accepting
funds from business corporations. Id. at 263-264.
Furthermore, in MCFL, the Court concluded that the
administrative and financial burdens of establishing a
separate segregated fund for election expenditures would
impermissibly discourage some small, informal corporations
from engaging in any political speech.
Your request indicates that MRLC has accepted funds
from business corporations in the past. It also has a
current policy of actively soliciting and accepting such
funds whether in the form of donations or the purchase of
advertising space in its bi-monthly newsletter. For these
reasons MRLC does not qualify for the limited exception from
2 U.S.C. Sc441b carved out in the cited MCFL opinion. See
Advisory Opinions 1988-22 and 1987-7. Accordingly, MRLC is
subject to the prohibitions of 2 U.S.C. Sc441b.3/
Section 441b prohibits both contributions and
expenditures in connection with any Federal election.
2 U.S.C. Sc441b(a),(b)(2) and 11 CFR 114.2(b). Commission
regulations provide, however, that expenditures by
corporations for certain specific nonpartisan activities
conducted in connection with Federal elections are not
prohibited by the Act. 11 CFR 114.4(b), see 2 U.S.C.
Sc431(9)(B)(ii).
Given the factual context you present, the
regulations most relevant here 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 for
deciding whether a voter guide is nonpartisan. 11 CFR
114.4(b)(5)(i)(A) through (F).
Corporations that qualify as tax exempt organizations
under Sc501(c)(3) or (c)(4) of the Internal Revenue Code, and
that do not support, endorse or oppose candidates or
political parties, need not comply with these factors in
preparing and distributing their voter guide materials, but
such materials may not favor one candidate or political party
over another. 11 CFR 114.4(b)(5)(ii). The Commission has
previously held that a tax exempt corporation becomes an
organization that supports, endorses, or opposes candidates
if it establishes a separate segregated fund. Such a
corporation must therefore comply with the cited guidelines
if it prepares voter guide materials. Advisory Opinion
1984-17. Because MRLC has established MRLCPAC as a separate
segregated fund that contributes to candidates for Federal
office, MRLC must follow the nonpartisan voter guide
requirements.
----------
3/ The United States Supreme Court heard oral argument on
October 31, 1989, in an appeal from the United States Court
of Appeals decision in Michigan State Chamber of Commerce v.
Austin, 856 F.2d 783(6th Cir. 1988), appeal pending, sub nom.
No. 88-1569. The Sixth Circuit had decided that, based on
MCFL, it was unconstitutional for a Michigan statute to
prohibit the Michigan Chamber from using its general funds to
buy a newspaper advertisement supporting a state candidate,
even though more than 75% of the Chamber's treasury consisted
of funds received from business corporation members. The
Supreme Court's decision on this appeal could affect the
conclusions of this advisory opinion. That effect, if any,
may be determined through the submission by MRLC of a new
advisory opinion request after the Court's opinion is
rendered.
The regulations set forth several factors that the
Commission may consider in determining whether a voter guide
is nonpartisan. 11 CFR 114.4(b)(5)(i)(A), (i)(B), (i)(C),
(i)(D), (i)(E), and (i)(F). Factor (C) states, in pertinent
part, that the wording of the questions does not suggest or
favor any position on the issues covered. Factor (D)
provides that the guide expresses no editorial opinion
concerning the issues presented, nor indicates any support or
opposition to any candidate. The 1984 MRLC voter guide
conforms with these nonpartisan factors, but the 1988 voter
guide does not.
The 1984 candidate survey questions were limited only
to abortion and "right to life" issues. Two questions asked
the respondent candidates whether, if elected, they would
vote for ratification of two specific constitutional
amendments the texts of which were set forth in the
questions. Two additional questions asked whether the
candidates would vote in favor of legislation "to restore
protection for the lives of unborn children" and to impose
"restrictions on the use of public funds for abortion."
Although MRLC's favored policy positions on these issues are
apparent from its name, the title of its newsletter, and from
other articles in the newsletter containing the voter guide,
the survey questions in context with the rest of the
newsletter are not so explicitly partisan as to convert an
otherwise nonpartisan voter guide into one that improperly
conveys election messages and candidate advocacy. Compare
Advisory Opinion 1984-17 where the newsletter, in addition to
a voter guide, also included a report of specific candidate
endorsements made by another organization and urged readers
to favor those candidates when voting in the forthcoming
election. See also Advisory 1987-7. In the situation
presented here, however, neither the other parts of the
newsletter, the introduction to the survey results, nor the
results themselves, instruct the reader as to what the
MRLC-preferred candidate response should be. The report
identifies seven Federal candidates by name and political
party affiliation, but each name is followed with the letters
NR. These letters are defined to mean "No response:
candidate did not respond to survey questionnaire." On the
page next preceding the candidate survey results, the
newsletter includes the general suggestion that "if a
candidate in your area is listed as 'no response,' you may
want to contact him or her personally."
The foregoing pertinent characteristics of the 1984
MRLC voter guide indicate that it satisfies the nonpartisan
factors set forth in Commission regulations at
11 CFR 114.4(b)(5)(i). As a result, MRLC expenditures for
that guide, or for a 1990 MRLC voter guide which is
materially indistinguishable from the 1984 voter guide, would
not be prohibited corporate expenditures under 2 U.S.C.
Sc441b. See 2 U.S.C. Sc437f(c)(1), see also Advisory Opinion
1984-17. By contrast and for the reasons discussed below,
the 1988 general election voter guide submitted with your
request does not satisfy the nonpartisan factors in
Commission regulations, and expenditures by MRLC for that
guide are prohibited by 2 U.S.C. Sc441b.
The November 1988 "Election Issue" of the MRLC
newsletter has a lower front page headline stating that
Federal candidate surveys are enclosed. The front page also
displays photos of both the Republican and Democrat
presidential candidates along with several editorial opinions
about their views on abortion. One opinion characterizes
George Bush as "a consistent supporter of pro-life efforts,"
and another describes Michael Dukakis as a candidate on "the
most pro-abortion presidential ticket in history." These
presidential candidates were not, however, included in the
candidate survey; they received no questions and provided no
responses. See factors (A) and (B) in 11 CFR 114.4(b)(5)(i).
The candidate survey portion of the 1988 newsletter
includes 10 questions prepared by the National Right to Life
Committee only for Congressional candidates.4/ Four of these
questions are posed in language explicitly indicating the
favored "pro-life" response to the question. All questions
are framed so that only a "yes" or "no" answer is expected.
A bold-type message emphasizes: "PLEASE NOTE: A 'yes'
response indicates agreement with the National Right to Life
position on each question."5/ Six Federal candidates are
listed, and four of them are designated as making no response
to all ten survey questions. One candidate is designated as
giving "yes" answers to all questions; another is shown as
giving "no" answers to the first two questions and not
answering the others.
The foregoing aspects of the 1988 voter guide are not
in compliance with the nonpartisan factors set forth in
Commission regulations at 11 CFR 114.4(b)(5)(i). As
discussed with respect to the 1984 voter guide, factors (C)
and (D) provide that, to assure a voter guide's nonpartisan
character, the questions should not be worded in a manner
that favors any position on the issue presented. In
addition, no editorial opinions concerning the issues, or in
support or opposition to any candidate, should be included.
The 1988 voter guide includes several questions that
are posed with explicit unambiguous references to MRLC's
positions on "pro-life" or "right to life" issues. Other
references in the guide make clear that "yes" responses
conform to the "right to life" position, and the survey
response format does not allow for a responding candidate to
explain a disfavored "no" response, or a non-response to one
or more of the questions. The presidential candidate
features on the front page of the 1988 voter guide are
replete with partisan editorial references to the candidates'
positions on abortion, reproductive choice, Federal funding
of abortions, and a "Human Life Amendment" to the
Constitution. The report of the 1988 Congressional candidate
survey results identifies one candidate who responded in full
agreement with the "right to life" position and one who
responded contrary to that position; four other named
candidates made no responses to the survey questions.
Accordingly, if the 1990 MRLC voter guide contains
partisan election messages similar to those discussed above
with regard to the 1988 voter guide issue, it may not be
----------
4/ The newsletter also included five separate questions that
were sent to candidates for the Maine legislature as well as
the responses(or non-responses) of those candidates. This
portion of the voter guide does not present any issues with
respect to application of 2 U.S.C. Sc441b and Commission
regulations at 11 CFR Part 114.
5/ In addition, a note or "Key" explaining how to interpret
the symbols used to present the response of each named
candidate states that the letter "Y" signifies a "Yes
response to question, pro-life response".
lawfully financed with the general treasury funds of MRLC or
any other corporation. Such expenditures could, however, be
made by a separate segregated fund established by MRLC,
pursuant to 2 U.S.C. Sc441b(b)(2)(C) and (b)(4)(C), provided
the fund is comprised of voluntary contributions lawfully
solicited and accepted in accordance with the Act and
Commission regulations. Because you proposed that MRLC use
its general treasury funds for the 1990 voter guide, and not
contributions made to a separate segregated fund, this
opinion does not express or imply any conclusions as to
whether or not MRLCPAC satisfies the requirements of the Act
and Commission regulations for the lawful solicitation of
contributions to a separate segregated fund.
One of your questions asks whether the so-called
"press exemption" in the Act would apply to MRLC and permit
it to make payments from general treasury funds for public
distribution of its voter guide newsletters without regard to
the prohibitions of 2 U.S.C. Sc441b. The Commission answers
this question in the negative. The Commission has previously
concluded that the news media exception, 2 U.S.C.
Sc431(9)(B)(i), applies to a press entity engaged in the
normal press-business of covering and commenting on political
campaigns and requires that the press entity derive revenues
from the sale of subscriptions (or single issues) and
advertising. Advisory Opinion 1980-109; see also Advisory
Opinions 1987-8, 1982-58, and 1980-90. MRLC prints 10,000
copies of each newsletter issue, and approximately 4,700 of
these are mailed. The rest are hand distributed. Its public
distribution of the newsletter is without charge. In
addition, while MRLC's specific corporate purposes include
publication and distribution of articles on particular
subjects from a "prolife" viewpoint, MRLC is essentially a
nonprofit, tax exempt corporation with charitable, social,
benevolent, and educational purposes. It is not engaged in
the news media business, and is not the type of entity
contemplated by Congress when it adopted the cited press
exemption in 1974. See Advisory Opinion 1980-109; also see
MCFL, 479 U.S. 238, at 250, 251.
Finally, the Commission recognizes that "issues"
numbered I, II, and III in your May 15, 1989 letter pose
questions that are predicated on whether or not the MRLC
voter guides "constitute express advocacy." This advisory
opinion explains the extent to which your proposed activity
is permitted or prohibited by the Act and regulations. It
addresses only the issues necessarily raised by 2 U.S.C.
Sc441b and relevant Commission regulations at 11 CFR
114.4(b)(5).6/ The Commission has not interpreted the Court's
----------
6/ Your letter of May 15, 1989, sets forth five specific
"issues" on which you ask the Commission to issue an advisory
opinion based on the facts presented. The Commission notes
that its advisory opinions are rendered with respect to
application of the Act and Commission regulations to a
specific and prospective activity or transaction proposed by
the requesting person. 2 U.S.C. Sc437f(a)(1), 11 CFR 112.1(a
and 112.1(b). The Commission has the discretion to identify
for itself those legal issues which are raised by a given
factual situation presented in an advisory opinion request,
and it decides whether and how those issues should be
addressed in the advisory opinion. While the Commission's
formulation of the legal issues presented may frequently
correspond with those expressly posed by a requester, that is
neither required, nor always the case.
decision in MCFL as requiring the Commission in all
circumstances to determine whether a given election message
constitutes "express advocacy" in applying 2 U.S.C. Sc441b to
corporate expenditures made in connection with Federal
elections.
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. Sc437f.
Sincerely,
(signed)
Lee Ann Elliott
Chairman for the
Federal Election Commission
Enclosures (AOs 1988-22, 1987-8, 1987-7, 1984-17, 1982-58,
1980-109, and 1980-90)
P.S. Chairman Elliott and Commissioner Aikens voted to
approve this opinion and will file concurring opinions at a
later date.