Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
November 20, 1998
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1998-22
Leo Smith
1060 Mapleton Avenue
Suffield, CT 06078
Dear Mr. Smith:
This refers to your letters dated September 18,
September 23, and October 2, 1998, which request advice
concerning the application of the Federal Election Campaign
Act of 1971, as amended ("the Act"), and Commission
regulations to the creation of a web site which supports the
election of a Federal candidate.
FACTUAL BACKGROUND
You state that you are registered as an independent
voter in Suffield, Connecticut.
You are also the sole owner of Capital Ventures Group, LLC
("CVG") and have been involved in creating web sites for
different clients as well as one for your own enterprises.1
You also indicate that, in order to protest House Republican
efforts against President Clinton, you have created an
Internet web site advocating the defeat of the Republican
candidate, Representative Nancy Johnson, in the Sixth
Congressional District of Connecticut. The site also
advocates the election of her opponent, Democratic candidate
Charlotte Koskoff.2 You state that the web site is
currently active and has been up since September 17, 1998.
You assert that no funds were received or expended to
create the Web site. The site is administered and
maintained by you personally from your computer.3 You also
state that, as a result of a prior business transaction, you
pay no cost for your Internet connection.4 The domain name
web site is E-SOURCE.COM and is registered with InterNIC in
1996 for a fee of $100 for the first two years. You state
that the fees are now $35 per year.5
You have provided documentation depicting the content
of the web site. As you originally constructed it, the site
urged viewers to "defeat Nancy Johnson" and "Work to elect
Koskoff for Congress." The site also offered the choice to
contribute money or volunteer time to the Koskoff campaign
by choosing options on the screen. The option to contribute
would lead to an additional screen with the address of the
Koskoff campaign to which contributions would be sent. An
additional screen also included a form that would allow the
viewer to state the amount of the contribution he or she
would like to make, as well the type of volunteer work the
viewer could choose. When filled out, the form could be
sent directly from your web site to the official Koskoff
campaign.6 Your site also contained the statement: "This
web site is posted by a registered Independent voter in the
Sixth District. This site is not affiliated with or
supported by the official Koskoff for Congress campaign."
The web site also has a link to the electronic mail ("e-
mail") address of Friends of Charlotte Koskoff ("the Koskoff
Committee"), the principal campaign committee of Ms.
Koskoff.
Your request includes documents indicating some
communication between you and the Koskoff Committee
regarding its apparent request that you remove the web site.
You deny that such a request was made. You do, however,
state that Koskoff campaign personnel asked you to correct
the spelling of the candidate's name and to remove
references to the use of credit cards for making
contributions to the Koskoff campaign. You state that you
complied with these requests.
Given the above factual background, you ask whether the
Act and Commission regulations require that you include a
statement on your web site that identifies you as the
sponsor of the web site or the payor of costs related to the
site. You also seek advice as to any other reporting
obligations that apply to your activity.
ACT AND COMMISSION REGULATIONS
The definition of "expenditure" in 2 U.S.C. 431(9)
includes "any purchase, payment, distribution, loan,
advance, deposit, or gift of money or anything of value,
made by any person for the purpose of influencing any
election for" Federal office. See also 11 CFR 100.8(a)(1).
Whenever any person makes an expenditure to finance
communications expressly advocating the election or defeat
of a clearly identified candidate or soliciting any
contribution, and does so through various types of mass
media (e.g., a broadcasting station) or via "any other type
of general public political advertising," the communication
is required to include a statement of sponsorship or
disclaimer. 2 U.S.C 441d, 11 CFR 110.11. The disclaimer
must clearly state if the communication has been paid for
and authorized by a candidate, or the candidate's authorized
political committee. If the communication is paid for by
other persons but authorized by a candidate (including an
authorized political committee of a candidate or its
agents), the disclaimer shall clearly state that the
communication is paid for by those other persons and
authorized by such authorized political committee. On the
other hand, if the communication is not authorized by a
candidate (including an authorized political committee of a
candidate or its agents), the disclaimer shall clearly state
the name of the person who paid for the communication and
state that it is not authorized by any candidate or the
candidate's committee. 2 U.S.C 441d; see 11 CFR 109.3,
110.11(a)(1) and 110.11(a)(5).
APPLICATION TO WEB SITE
Disclaimer requirements
Because of the general availability of access to the
Internet, the Commission has concluded that communication
via a web site would be considered a form of communication
to the general public. See Advisory Opinions 1997-16, 1996-
16, 1995-35, 1995-33 and 1995-9. In the past, the
Commission has issued advisory opinions requests which
entailed the use of the Internet for the endorsement of
candidates (Advisory Opinion 1997-16) and the solicitation
of political contributions (Advisory Opinions 1995-35 and
1995-9).
The web site would be viewed as something of value
under the Act because it expressly advocates the election of
a Federal candidate, and the defeat of another Federal
candidate.7 Therefore, it meets the requirements of 2
U.S.C. 431(9) and 11 CFR 100.8(a)(1). The Commission
concludes that the costs associated with the creation and
maintaining of the web site, as described in your request,
would be considered an expenditure under the Act and
Commission regulations.
The Commission has required political advertisements
located on a web site to have the proper disclaimer as
required by the Act and Commission regulations. See
Advisory Opinions 1995-35 and 1995-9. Your web site both
expressly advocates the candidacy of Ms. Koskoff and
solicits contributions on her behalf. Therefore, it is
required to have a disclaimer that meets the requirements of
2 U.S.C 441d and 11 CFR 110.11. As part of this disclaimer
your statement must indicate your full name. Your statement
on the web site that identifies that you as an "independent
voter" is insufficient and must be modified to include your
full name. It must also include a truthful statement as to
whether or not your communication via the web site is
authorized by any candidate.
Constitutional considerations
You cite the United States Supreme Court decision in
McIntyre v. Ohio Elections Commission, 515 U.S. 334 (1995)
which, you state, "offered no support for any FEC
requirement that disallows anonymous political
publications." Generally, Federal administrative agencies
are without power or expertise to pass upon the
constitutionality of legislative action. Advisory Opinions
1998-20 and 1992-35 (citing court decisions). Further, the
Commission notes the subject of McIntyre was an Ohio
statute. The Court's opinion did not reach any issues
concerning the constitutionality of 2 U.S.C. 441d.
Accordingly, the Commission need not further address that
issue in this advisory opinion.
Possible reporting obligations
Given the conclusion that your web site is an
expenditure and requires a disclaimer, the issue is also
raised whether the Act or Commission regulations impose any
reporting obligations as a consequence of your expenditure.
You assert that the creation of the web site is without cost
to you. The Commission, however, cannot agree with this
characterization.8 The Commission notes that there are
minimal costs associated with creating the web site. Some
portion of the previous expenses described in your request
could be apportioned to each and every web site that you
construct as part of your business. These overhead costs
would include, for example, the fee to secure the
registration of domain name, the amounts you invested in
your hardware, and the utility costs to create the site.9
In the circumstances presented, the Commission advises
that any reporting requirements would be determined by the
valuation of the expenditures. In addition, they would also
be determined by whether your website activity was
completely independent of the Koskoff campaign, or whether
it was done in cooperation, consultation or concert with
that campaign. Should the activity qualify as an
independent expenditure, you would be required to file
reports with the Commission if the total value of your
expenditures exceeds $250 during 1998. 2 U.S.C. 431(17),
434(c), 441a(a)(7)(B); 11 CFR 109.1, 109.2. In contrast,
if your activity were not conducted completely independent
of the Koskoff campaign, your expenditures would be
reportable by the Koskoff Committee as an in-kind
contribution from you. 2 U.S.C. 431(8)(A)(i),
434(b)(2)(A), 434(b)(3)(A); 11 CFR 104.3(a)(3)(i),
104.3(a)(4)(i), 104.13. 10
This response constitutes an advisory opinion
concerning the 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. 437f.
Sincerely,
(signed)
Scott E. Thomas
Acting Chairman
Enclosures (AOs 1997-16, 1996-16, 1995-35, 1995-33, and 1995-
9)
_______________________________
1 You have in the past created web sites for such
organizations as the Connecticut State Dental Association
and the Connecticut Dental Hygienist Association.
2 The web site address is http://www.e-source.com/koskoff.
3 You state that you and CVG, the business entity through
which you conduct various enterprises, jointly own the
computer hardware used to create the site. All of the
necessary coding was done by you directly using software
that was included with the general "Windows" software
package.
4 In exchange for promoting the services of JavaNet, as
the officially recommended Internet service of the
Connecticut State Dental Association and the Connecticut
Chiropractic Association, you were provided a free Internet
hook-up.
5 You explain that E-SOURCE.COM was originally established
in 1996 as a web site address for overseeing the web sites
constructed by you for several trade associations within
Connecticut. Later, each association purchased their own
URL. Currently the E-SOURCE is used by CVG to display
information regarding its services. The $35 fee to InterNIC
for 1998 was paid by CVG. You state that there is no cost
or charge for any additional sublistings off the E-
SOURCE.COM URL.
6 Since your first submission, the form regarding the
level of monetary or voluntary support has been removed.
7 While 2 U.S.C. 431(9) is not restricted to express
advocacy in every circumstance, communications which do
include express advocacy clearly fall with the definition of
"expenditure."
8 The Commission notes that a claim that political
advertisement directed to the general public entails no cost
to the maker would seem to run counter to the perception of
the Supreme Court in Buckley at 635. The Court observed:
virtually every means of communicating ideas in today's
mass society requires
the expenditure of money. The distribution of the
humblest handbill or leaflet entails
printing, paper, and circulation costs. Speeches and
rallies generally necessitate
hiring a hall and publicizing the event. The
electorate's increasing dependence on
television, radio, and other mass media for news and
information has made these
expensive modes of communication indispensable
instruments of effective political speech.
9 Looking at this from a slightly different perspective,
the Commission notes that you have created web sites for
various non-profit organizations as part of your business.
Presumably, part of the fee you would charge your clients
would consist of costs incurred in the preparation of these
websites. This valuation would be relevant to a
determination of the amount of the expenditure for your
Koskoff website. Of course, you may exclude from the
valuation, the amount representing only your personal
services since you could volunteer your uncompensated
services to a campaign without any contribution resulting.
See
2 U.S.C. 431(8)(B)(ii).
10 Your request concerns whether your circumstances require
the placement of a disclaimer in your web site. You have
not asked whether the expenditures that are the subject of
your request would be considered independent or coordinated
expenditures given the contacts between you and the Koskoff
Committee. Therefore, this opinion will make no
determination whether the expenditures to create and
maintain the web site are independent or coordinated
expenditures.