Federal Election Commission Main Page
July 2, 1990
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1989-32
Lance H. Olson, Esquire
Olson, Connelly, Hagel & Fong
300 Capitol Mall
Suite 350
Sacramento, CA 95814
Dear Mr. Olson:
This responds to your letter dated December 22, 1989, as
supplemented by your letters dated January 18, and May 1,
1990, requesting an advisory opinion on behalf of
Californians for Safe Streets ("CSS") concerning application
of the Federal Election Campaign Act of 1971, as amended
("the Act"), and Commission regulations to the receipt by CSS
of a contribution from a foreign national.
You state that CSS is a non-profit committee formed to
qualify and pass a state ballot measure in California known
as the Safe Streets Initiative ("SSI"). This initiative
would increase sentences for major offenders and would create
a $1.6 billion fund for various anti-drug and crime
prevention activities. You state that CSS is in the process
of collecting the 372,175 signatures necessary to qualify for
the November, 1990, ballot.
You state that the initiative is sponsored and promoted
by Lieutenant Governor Leo McCarthy who is running for
re-election as Lieutenant Governor in 1990. He will be on the
ballot this November since he won his party's primary on June
5, 1990. Mr. McCarthy also helped to draft the initiative
and organized CSS. Under California law, the full name of
the committee is Californians for Safe Streets Organized by
Lt. Governor Leo McCarthy.
You state that, under California law, CSS is a
"controlled committee" because the candidate has significant
influence on the committee's actions. A controlled committee
is defined as:
AO 1989-32
Page 2
a committee which is controlled
directly or indirectly by a candidate or
state measure proponent or which acts
jointly with a candidate, controlled
committee or state measure proponent in
connection with the making of
expenditures. A candidate or state
measure proponent controls a committee if
he, his agent or any other committee he
controls has a significant influence on
the actions or decisions of the
committee.
CGC Sc82016. You state, however, that none of CSS's resource
will be used "to support the candidate," and that all
resources will be used to qualify the initiative for the
ballot and pass it in November.
California law requires that the name of the controlling
candidate appear in the name of the committee. CGC Sc84106.
The full name of the committee must appear on the committee's
Statement of Organization; on reports filed with the
Secretary of State; and on the outside envelope and at least
one insert, in six-point type, of any mass mailing of 200 or
more identical pieces of mail. CGC ScSc84102(a) and (e),
84211(o), and 84305(a). You enclose correspondence between
the California Fair Political Practices Commission ("FPPC")
and you with respect to a committee controlled by a candidate
for State Controller. According to the correspondence, the
FPPC does not consider contributions to a controlled ballot
measure committee to be contributions to the controlling
candidate. You also note that California law prohibits the
transfer of money from CSS to the candidate's election
committee.
You have submitted responses and other materials
pertaining to the relationship between CSS and Mr. McCarthy's
re-election committee, Friends of Leo McCarthy ("Friends").
Although communications from CSS will not refer to Mr.
McCarthy's past or present candidacies, Mr. McCarthy will be
involved in communications from CSS, including personalized
letters to potential donors and press statements from Mr.
McCarthy on behalf of CSS. There are no plans to send mass
mailings or large scale direct mail pieces, but CSS has sent
approximately three to four hundred similar letters for which
Friends is paying half "in order to comply with FPPC
regulations," and CSS will make reference to Mr. McCarthy "in
normal communications it may have."
You state that Friends will make reference to the
activities of Leo McCarthy, including the pursuit of
environmental legislation and SSI. Friends' literature "will
not make reference to [CSS] in any substantial way, although
it is possible (but has not been determined at this point)
AO 1989-32
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that [Friends] will refer to his legislative accomplishments
and include reference to [SSI]." You state that there will
likely be activities wherein Mr. McCarthy links his candidacy
to SSI, e.g., as a spokesman in paid media for CSS. You
state that, in accordance with FPPC rulings, Friends would
pay for those ads or, if a proposed FPPC regulation is
adopted, one-half each would be paid by CSS and Friends.
Other than producing and mailing letters for CSS signed by
Mr. McCarthy, there are no planned joint purchases or
financial transactions between CSS and Friends.
You describe a "substantial overlap" in personnel
between the two committees. The committees have the same
campaign manager, controller, scheduler, attorneys, media
consultants, pollsters, and Los Angeles receptionist.
Campaign messages are prepared by the same person. In
addition, the committees share office space in Los Angeles,
paid for entirely by Friends. The committees also have a Los
Angeles based fundraiser in common.
You state that a foreign national wishes to make a
contribution to support the Safe Streets Initiative. You ask
whether CSS may accept such a contribution. You also ask
whether the answer to the question would differ if CSS placed
the contribution in a separate account used only to pay
administrative expenses and ballot measure qualification
expenses, "none of which is used to pay expenses associated
with promotional materials where the candidate's name
appears."
Under the Act and Commission regulations, foreign
nationals are prohibited from making contributions, directly
or through any other person, in connection with an election
to any political office or in connection with any primary
election, convention or caucus held to select candidates for
any political office. In addition, it is unlawful for any
person to solicit, accept, or receive any such contribution
from a foreign national. 2 U.S.C. Sc441e(a); 11 CFR
110.4(a)(1) and (2).1/ The Act defines the term "person" to
include a committee. 2 U.S.C. Sc431(11). Unlike most of the
other provisions of the Act, Sc441e applies to elections for
any political office, including state and local as well as
Federal elections.
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1/ According to 2 U.S.C. Sc441e(b), the term "foreign
national" includes an individual who is not a U.S. citizen or
lawfully admitted for permanent residence under 8 U.S.C.
Sc1101(a)(20); the term also includes a "foreign principal" a
defined in 22 U.S.C. Sc611(b), as long as that foreign
principal is not a U.S. citizen. Although you have not
identified the prospective contributor, the Commission
assumes, for purposes of the opinion, that such contributor
is a foreign national.
AO 1989-32
Page 4
The Commission has previously recognized the distinction
between a candidate-related "election to any political
office," as used in 2 U.S.C. Sc441e and other provisions of
the Act, and issue-related ballot initiatives. The
Commission has stated that contributions or expenditures
relating only or exclusively to ballot referenda issues, and
not to elections to any political office, do not fall within
the purview of the Act. Advisory Opinions 1984-62, fn.2, and
1980-95. See also Advisory Opinion 1982-10.
For example, in Advisory Opinion 1980-95, a national
bank requested an opinion as to whether it could make a
contribution to a fund that was promoting adoption of
amendments to the Florida state constitution in an upcoming
election. The fund had been established at the request of
the Governor of Florida who set a goal of raising $500,000
for media advertising to promote adoption of the amendments.
The ratification was to coincide with a primary run-off
election to nominate various Federal, state, and local
candidates, but not for the office of Governor. None of the
funds to be raised would be applied to those election
campaigns. The Commission observed that the bank "[was]
being asked to contribute money to a fund whose express
purpose is to promote or influence the adoption of amendments
to the Florida Constitution, as opposed to a contribution to
a fund in connection with the election of candidates to any
political office." The Commission concluded, therefore, that
the contribution did not fall within the purview of the Act
as it "relate[d] only to ballot referenda issues and not to
elections to any political office." Advisory Opinion
1980-95.
Your request includes a number of additional facts not
presented in Advisory Opinion 1980-95. First, the law of the
State of California imposes certain requirements upon the
ballot measure committee including the requirement that the
name of the individual who controls a ballot measure
committee must appear with committee mailings of even a
minimal amount. Second, the activities of CSS entail the
sponsorship and participation of a candidate seeking election
to public office concurrently with the ballot referendum
effort.
The Commission considered the issue of the association
of a Federal candidate's name with a committee in Advisory
Opinion 1985-38. That opinion presented a situation in which
a Congressman who was a Federal candidate proposed the
establishment of a committee to support only state
candidates. In response to a proposal to include the
Congressman's name in the committee name, the Commission
stated that "a reference to [the Congressman] in the name of
the state committee would not in itself result in a
contribution to his re-election campaign." The Commission
AO 1989-32
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also stated, however, that references to the Congressman in
connection with the state committee's "fundraising efforts,
general public advertising, or charitable donations, may or
may not result in a contribution to his Federal campaign,
depending upon all the facts and circumstances in a given
situation."
With respect to the second issue, the Commission has, in
past opinions, considered whether the activities of a
particular organizational entity which involves the
participation of a Federal candidate, or communications
referring to a Federal candidate, result in a contribution or
expenditure, i.e., something of value for the purpose of
influencing a Federal election. See 2 U.S.C. Sc431(8)(A)(i).
Such activities have involved candidate appearances at
charitable functions, testimonial dinners, and issue forums;
candidate appearances in advertisements endorsing other
candidates; a candidate as a host of a radio program; and
candidates holding chairmanships of political or advocacy
organizations. Although the Commission's consideration of
the issue has involved the participation of Federal, as
opposed to state or local, candidates, the standards
pertaining to the issue of candidate support are applicable
in this request because the relevant issue was the
relationship to a candidacy.
The Commission has taken the position that financing the
foregoing activities will result in a contribution to or an
expenditure on behalf of a candidate if the activities
involve (i) the solicitation, making, or acceptance of
contributions to the candidate's campaign, or (ii)
communications expressly advocating the nomination, election,
or defeat of any candidate. Advisory Opinions 1988-27,
1986-37, 1986-26, 1982-56, 1981-37, 1980-22, 1978-56,
1978-15, 1977-54, and 1977-42. The Commission has also
indicated that the absence of solicitations or express
advocacy will not preclude a determination that an activity
is campaign-related. Advisory Opinions 1990-5, 1988-27,
1986-37, 1986-26, 1984-13, and 1983-12.
The activity presented contrasts with other situations
in which a candidate or the candidate's name was to appear in
a political context during the candidacy. In Advisory
Opinion 1977-54, the Commission determined that donations to
a statewide petition drive against the Panama Canal Treaties
chaired by a House candidate in Georgia would not be
contributions to his candidacy where the candidate's name
appeared in the drive's mailings and advertisements. Unlike
the present situation, however, the petition drive was not
limited to the candidate's electorate. (See facts and
assumptions in Advisory Opinion 1977-54.)
Similarly, in Advisory Opinion 1982-56, the Commission
concluded that, when a Congressman running for re-election
AO 1989-32
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appeared in television advertisements advocating the election
of a candidate for County Prosecutor in his Congressional
district, the Prosecutor candidate's campaign, in paying for
the advertisements, did not also make an in-kind contribution
to the Congressional candidate. The advertisement ran 30
seconds with a seven second appearance by the Congressman
complimenting the Prosecutor candidate. In discussing the
basis for this conclusion, the Commission stated that the
purpose of the advertisement, as well as of the Congressman's
appearance, was the endorsement of the county candidate, and
the content of the advertisement did not reflect an intent to
influence the Congressman's reelection, as it only identified
the Congressman and contained no mention of his candidacy.
See Advisory Opinion 1980-28. Absent from this situation is
the control of the Prosecutor campaign by the Congressional
candidate himself, the constant presence of the Congressional
candidate's name in either the advertisement or the campaign
of the candidate for prosecutor, and a substantial overlap of
committee personnel.
The Commission concluded in Advisory Opinion 1984-13
that contributions to candidates would result if
Congressional candidates of one party were invited to speak
at a trade association's conference. The Commission noted
the requestor's assertions that all candidates would be asked
to refrain from soliciting contributions or other aid to
their campaigns and to limit their remarks to a discussion of
the issues. The requestor also would advise attendees that
the appearance of any candidate was not to be construed as an
endorsement by the requestor. The event was to be held
simultaneously with the party's national convention occurring
in the same city, and shortly before a number of primary
dates and a few weeks prior to the general election. The
Commission also noted that the association planned to seek
the assistance of party committees in obtaining the
candidates' attendance and, possibly, providing a meeting
location, and the candidates were to be invited as
candidates, not on the basis of any other criteria. The
Commission, observing that the event would be linked by
timing and purpose to Congressional elections and would
"carr[y] partisan overtones," concluded that the candidate
appearances would "inevitably be campaign-related." The
Commission stated that this characterization would be
reinforced if any portion of the audience consisted of part
of any candidate's electorate. Advisory Opinion 1984-13.
Finally, in Advisory Opinion 1990-5, the Commission
concluded that a newsletter discussing public policy issues
that is originated, implemented, and funded by a candidate
could be campaign-related. The Commission reviewed the
circumstances surrounding the newsletter, including the
candidate's control, the fact that the newsletter was
inspired by her previous experiences as a candidate, the
targeted audience, the fact that some persons were involved
AO 1989-32
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in both the campaign and the newsletter, and the public
policy content of the newsletter. The Commission stated that
"any reference to or discussion of your candidacy or campaign
in the newsletter, or presentation of policy issues or
opinions closely associated with you or your campaign, would
be inevitably perceived by readers as promoting your
candidacy, and viewed by the Commission as election-related
and subject to the Act." The Commission concluded that,
although the content of the newsletters suggests other
significant purposes of informing the public about current
issues of public interest and encouraging discussion of such
issues, continued publication during the candidacy would be
viewed as campaign-related if any one of certain conditions
existed. One of these conditions was the publication of
articles or editorials referring to the candidate's views on
public policy issues, or those of her opponent, or referring
to issues in the campaign, whether written by the candidate
or anyone else.
In this case, although CSS will not expressly advocate
the election of Mr. McCarthy or solicit funds or other
support for his campaign and although you note the statutory
prohibitions on transfers to a candidate's election
committee, Mr. McCarthy has organized CSS with the knowledge
that his name will be inextricably linked with the committee
before the same electorate voting on his reelection and at
the same time as the campaign and voting for such reelection
take place. Through communications with the electorate, CSS
and he have actively linked their names; CSS, going even
beyond the statutory requirement, has sent out personalized
letters from Mr. McCarthy soliciting donations and press
releases quoting Mr. McCarthy. Finally, CSS is coordinating
its efforts with Mr. McCarthy's reelection committee to such
an extent that the two committees appear to be functioning as
one, including a substantial overlap of key personnel for all
major facets of the campaigns.
Based on the foregoing, the activities of CSS should be
viewed as campaign-related. Therefore, the Commission
concludes that the CSS may not accept contributions from a
foreign national. This conclusion would not differ if CSS
placed the foreign national contribution in a separate
account that would not be used to pay expenses associated
with materials that include the candidate's name.
The Commission expresses no opinion as to issues
involving the application of State law to the situation
presented.
AO 1989-32
Page 8
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 1990-5, 1988-27, 1986-37, 1986-26, 1985-38,
1984-62, 1984-13, 1983-12, 1982-56, 1982-10,
1981-37, 1980-95, 1980-28, 1980-22, 1978-56,
1978-15, 1977-54, and 1977-42)