Federal Election Commission Main Page
November 10, 1999
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1999-17
Benjamin L. Ginsberg
Patton Boggs LLP
2550 M Street, NW
Washington, DC 20037-1350
Dear Mr. Ginsberg:
This refers to your letters dated September 23, July 8
and June 7, 1999, which request an advisory opinion on
behalf of Governor George W. Bush for President Exploratory
Committee, Inc. ("the Committee") concerning the application
of the Federal Election Campaign Act of 1971, as amended
("the Act"), and Commission regulations to various issues,
including fundraising and polling, relating to Internet use
by the Committee.
FACTUAL BACKGROUND
The Committee requests clarification concerning a
number of issues that, you state, have arisen regarding the
possible uses of the Internet by the Committee in the 2000
election cycle. They relate to several areas.
Valuation of web site and volunteer activities:
You note that the Commission's past opinions and
enforcement actions regarding Internet activity indicate
that a web site and links from one Internet site to another
may be something of value to a campaign.1 You ask whether
a campaign must assess value for having its name mentioned
by a web site that it does not control (and may not even
know about). You ask how a campaign should treat a web
site supportive of Mr. Bush that is established by either
Committee volunteers or by individuals unconnected with the
campaign, but about which the campaign may know nothing.
You inquire as to the basis for determining the fair market
value of a web site.
You state your request is concerned with web sites
featuring Mr. Bush's presidential candidacy created by
individuals who are both "volunteers" under 2 U.S.C.
431(8)(B)(i), and who wish to conduct their own Internet
activities using Mr. Bush's name. You state that, in some
instances, the individuals may have considered themselves
volunteers and described themselves to the campaign as
volunteers, but may have expended money on their Internet
projects before contacting the campaign. Some had a
relationship with the campaign prior to the preparation of
their web sites (without the Committee's knowledge or
approval). Others volunteered, and then sought to establish
sites. Of these, some wished to amplify their volunteer
efforts. Others, you state, wished to talk about the
Governor's positions on various campaign issues outside of
their volunteer activities. Others had been attempting to
line up political support, and then wished to raise funds
for Bush through their own web sites. You affirm that the
campaign was aware of some of these sites and individuals
but not others. You state that the Committee has also faced
the situation of individuals who have first set up sites,
and then contacted the campaign personnel afterwards to
inform them of their activity. Some of the people involved
in the above situations were also contributors to the
campaign.2
The request materials also include several web
addresses to sites that served as examples of individuals
who have created web sites supporting Mr. Bush. You know
that the campaign search on the Internet indicated the
existence of hundreds of sites incorporating the name of Mr.
Bush and that the new sites are added and old sites are
deleted on a daily basis.
You further ask how the situations should be handled
where the web site changes messages on a regular basis,
without the knowledge of the campaign.
You also ask how the Committee should assess the value
of a link between itself and another web site. You describe
several different types of web sites where such links to the
Committee web site could exist. These are sites operated by
volunteers with the campaign, media outlets, commercial
enterprises both related and unrelated to the campaign, and
corporate sites discussing the Presidential race or
candidates for a variety of reasons.
You state that, because the Committee is uncertain as
to the Commission's position on these issues, it has been
forced to discourage Internet activity on the part of
individuals supporting the campaign where its opinion has
been sought or such activity was brought to the attention of
the Committee by those conducting the activity. Where such
sites had already been established, prior to informing the
Committee, the Committee has told the individuals informing
the campaign of their actions that they must act
independently without campaign or committee support.
Regarding links to the Bush campaign's official web
site by corporate owned web sites, pending the outcome of
this request, the Committee had asked that these corporate
entities (of which it was aware) to remove the links. Since
this was done, the Committee is not aware of any current
links to the campaign's official web site by corporate
entities.
Vendor issues:
You note the increasing phenomenon of Internet commerce-
- the selling of various products over the World Wide Web.
This development has implications for the Committee
regarding the marketing of items (pins, bumper stickers, tee
shirts, hats, etc.) which advocate the election of a
candidate. You ask whether the campaign may provide a link
on its web site to that of a vendor selling items about Mr.
Bush's candidacy and how it would value that link. You also
ask about the reporting obligations in this situation. You
ask whether a vendor selling a candidate's campaign
materials may provide a link to the candidate's web site and
what obligations exist for the Committee in this situation.
You further ask if the Committee may pay a vendor for a link
to the campaign's web site. In this situation, you ask how
the Committee should value the link and what, if any,
disclaimers are required.
As an example of the situations the Committee has
encountered, you explain that a merchandise vendor was using
the Governor's name to sell various goods (shirts, bumper
stickers, etc.). The vendor also wished to collect
supporters' names and forward them to the campaign, as well
as to provide a link to the campaign's web site. You affirm
that the Committee asked that the effort cease. You,
however, wish to know if the vendor's activities were
permitted under the Act and regulations.3
You also state that the Committee's search of the
Internet revealed a number of sites with a political
message, but whose prime motivation seems commercial. None
of these sites have any relationship with the Committee as
best as you can establish. However, all of them carry a pro-
Bush message. Again, you wish to know if their activity has
any implications for the Bush campaign.
Internet polls:
You note the increasing frequency of polls concerning
possible Presidential candidates and the appearance of these
polls on the Internet. You ask whether these polls fall
under the news media exception, regardless of the sponsor or
source of the poll. Further, does the dissemination of the
results of a poll become a reportable event under the Act?
Again, if so, you ask what is the valuation and description
for the related disbursement. You ask what are the
applications of the Act if the Committee, through the
Internet, urges its supporters to participate in the
polling.
As an example of the Internet polling, you site an on-
line straw poll conducted by the Indiana Republican Party.
You also cite the straw polls conducted by an Internet
shopping web site (Shabang) and straw polls found on various
web sites by news organizations such as www.Austin360.com.
E-Mail:
You ask how the campaign should determine the fair
market value of the use of e-mail where a Committee
volunteer uses it to solicit friends and associates to
contribute to the campaign. You ask whether the campaign is
required to report such activity and how it should be
valued. You also ask whether it must be counted against the
volunteer's contribution limit.
Solicitation of contributions through the Internet:
Several issues have emerged regarding the Committee's
fundraising efforts through the Internet.4 One on which you
ask guidance is whether a campaign can use e-mail to fulfill
the Committee's best efforts obligation, whether or not the
original contribution was solicited over the Internet. 5
Republication of candidate materials:
You state that a group of individuals was planning to
establish a web site to post materials advocating the
Governor's election and to use this web site to bolster
their volunteer fundraising for the Committee. The
Committee informed these individuals that they should not
establish the web site. However, you state that an informal
inquiry of others in the regulated community revealed
confusion over whether the Commission considers this
proposed reproduction of materials from the Committee's
official web site a contribution. You ask whether such a
reproduction on the Internet would be considered "unique,"
or if, instead, the provisions of 11 CFR 109.1(d)(1) would
apply.
ACT AND COMMISSION REGULATIONS
The Act requires the Commission to respond to a
"complete request concerning the application of this Act . .
. or a rule or regulation prescribed by the Commission, with
respect to a specific transaction or activity by the person.
. ." 2 U.S.C. 437f(a)(1).
The Act prohibits contributions and expenditures by a
corporation in connection with a Federal election. 2 U.S.C.
441b(a); 11 CFR 114.2(b). The term "contribution" is
defined to include "any direct or indirect payment,
distribution, loan, advance, deposit, or gift of money, or
any services, or anything of value ... to any candidate,
campaign committee, or political party or organization," in
connection with any Federal election.
2 U.S.C. 441b(b)(2); 11 CFR 114.1(a)(1). See 2 U.S.C.
431(8)(A)(i) and (9)(A)(i);
11 CFR 100.7(a)(1) and 100.8(a)(1). The phrase "anything of
value" includes goods or services provided without charge,
or at less than the usual and normal charge. 11 CFR
100.7(a)(1)(iii)(A) and 100.8(a)(1)(iv)(A). However, the
term "contribution" under the Act does not include, among
other categories, the value of services provided without
compensation by any individual who volunteers on behalf of a
candidate or political committee. 2 U.S.C. 431(8)(B)(i).
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 Act, 2 U.S.C. 431(9)(B)(i), specifically exempts
from the definition of "expenditure":
ny news story, commentary, or editorial distributed
through
the facilities of any broadcasting station, newspaper,
magazine,
or other periodical publication, unless such facilities
are owned or controlled by any political party,
political committee, or candidate.
Commission regulations similarly exclude from the
definitions of contribution and expenditure "[a]ny cost
incurred in covering or carrying" a news story, commentary,
or editorial by any broadcasting station, newspaper,
magazine, or other periodical
publication. 11 CFR 100.7(b)(2) and 100.8(b)(2). According
to the legislative
history of this "press exemption," Congress intended to
preserve the traditional role of the press with respect to
campaigns:
[I]t is not the intent of the Congress in the present
legislation to limit or burden in any way the First
Amendment freedoms of the press and of association.
Thus, [the exemption] assures the unfettered right of
the newspapers, TV networks, and other media to cover
and comment on political campaigns.
H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. at 4 (1974).
The financing by any person of the dissemination,
distribution, or republication, in whole or in part, of any
broadcast or any written, graphic, or other form of campaign
materials prepared by the candidate, his campaign
committees, or their authorized agents shall be considered
an expenditure. 2 U.S.C 441a(a)(7)(B)(ii). This
expenditure shall be considered to be a contribution for the
purpose of contribution limitations and reporting
responsibilities by the person making the expenditure, but
shall not be considered an expenditure by the candidate or
his authorized committees unless made with the cooperation
or with the prior consent of, or in consultation with, or at
the request or suggestion of, a candidate or any authorized
agent or committee thereof. 11 CFR 109.1(d)(1).
DISPOSITION OF QUESTIONS
Valuation issues
Web sites established by volunteers
Commission regulations offer relevant guidance in two
areas: volunteer activity by an individual conducted at home
and at corporate facilities. Both these situations
(depending on the circumstances) could result in no
reporting obligations by the Committee because it would not
have received a contribution.
In the first situation, Commission regulations provide
under 11 CFR 100.7(b)(4) that no contribution results where
an individual, in the course of volunteering personal
services on his or her residential premises to any
candidate, provides the use of his or her real or personal
property to such candidate for candidate-related activity.
Therefore, if a volunteer for the campaign chooses to
prepare a web site supporting the campaign using his or her
personal property at home, i.e., a home computer, that
action would not be a contribution. Further, the ongoing
related costs (such as maintaining Internet service with a
provider) that are part of the upkeep of a home-run web
site would also fall into this exception. The Commission
notes that the cost to register the domain name for a web
site established by a volunteer to support Mr. Bush's
candidacy would also be covered by this exception. In
short, there would also be no reporting obligation that
would attach to the activity. Neither the Act or Commission
regulations limit the type of volunteer activity which may
receive the benefit of the exception. Therefore, the
Commission notes that the exception would apply to
individuals known to the campaign who, with the campaign's
permission (at some level) engage in volunteer activity that
consists of the Internet activity described above, i.e.,
establishing a web site supportive of Mr. Bush.
The Commission notes that there may be individuals who
engage in Internet activity supportive of the campaign and
who do not have any prior volunteer experience with the
campaign and, further, do not contact the campaign to gain
its assent for their activities. In these situations, the
Committee is completely unaware of the activity involved, or
if it discovers the activity at all it is by a search of the
web. Further, the Committee has no control over the
activities of these individuals.
The Commission concludes that where the Bush Committee
has not coordinated a particular Internet activity with
individuals who are not volunteers, and where nothing of
value is provided to the Committee, there is no reporting
obligation incurred by the Committee. The Commission also
agrees with the Committee that, given the constantly
changing nature of this activity, it does not have an
obligation to search the web to discover the existence of
pro-Bush activity.
Further, the Commission notes if the campaign has no
control over and has not coordinated the activities of these
individuals, then these activities would constitute actions
by third parties, rather than proposed activity by the
Committee. As stated above, the Act requires the Commission
to respond to "a complete written [advisory opinion] request
concerning the application of this Act . . . or a rule or
regulation prescribed by the Commission with respect to a
specific transaction or activity by the person." 2 U.S.C.
437f(a)(1). For this reason, any further comment on the
activity of these individuals would not be an appropriate
subject for an advisory opinion. See footnote 3.
Links between web sites
Providing a link to web sites operated by the Committee
would be considered a service and something of value to the
campaign and could, under certain circumstances, meet the
definition of "contribution" under the Act and Commission
regulations. See Conciliation Agreement in MUR 4340. The
Commission notes that any service provided without charge,
or at less than the usual and normal charge, would
constitute a contribution. 11 CFR 100.7(a)(1)(iii)(A) and
100.8(a)(1)(iv)(A).6
Providing a specific link to the Committee web site may
not in and of itself necessarily constitute a contribution
to the Bush campaign. The issue would turn on whether or
not the owner of the web page providing the link would
normally charge for the providing of such a link. You
suggest that "accepted industry practice" should determine
the valuation of such links. You also assert that industry
practice is to provide such links without cost.
The Commission questions whether, with numerous types
of web sites and site owners in existence, there is one
uniform practice that governs the entire Internet
"industry." For example, while it may be common practice
for one type of web site owner to charge little or nothing
for a link (i.e., those established by certain smaller, non-
profit organizations or sites established by individuals),
certain other categories of site owners (such as commercial
vendors, Internet service providers or larger non-profits)
may, in fact, charge a large amount for including a link to
another entity's web site.
If an owner of a web site would normally charge for a
link to another site and chooses not to charge the
Committee, or charges the Committee less than a similarly
situated nonpolitical organization or entity, the provision
of a link would be treated as a contribution to the
campaign.7
The amount of the contribution would be the difference
between what the Committee is normally charged and the
amount it paid, if anything, for the link. Additionally, if
the owner of the web site is a corporation, then the
contribution would be prohibited by section 441b.
You have identified various web sites established by
individuals who may or may not be volunteers to the campaign
that have established links to the campaign without the
Committee's prior consent. You also state that it is
impossible for the Committee to "police the Internet." In
these circumstances, as previously noted, where there is no
coordination (and something of value is not being given to
the Committee), the Commission concludes that the links
provided from individuals' web sites to the Campaign's web
site would not be reportable in-kind contributions to the
Committee.
You have indicated that the various corporate entities
which established links to the Bush campaign, which you were
aware of, have removed these links at your request. If the
links are not established or maintained at the request or
suggestion of, or in cooperation, consultation or concert
with the Bush campaign, then the Bush campaign has no
obligation to request removal of the links and no reporting
obligations in regard to them. You provide several examples
of various corporate entities that still maintain links to
the Bush campaign. However, as you do not suggest that
these links are maintained at the request or suggestion of,
or in cooperation, consultation or concert with the Bush
campaign, they do not appear to constitute activity by the
campaign. Therefore, any comment on the status or
consequences of such links for entities other than the Bush
campaign is beyond the scope of this advisory opinion.
Committee and vendor Internet activity
The discussion above applies to your questions
regarding the Committee's obligations where a vendor that
sells campaign materials provides a link to the Committee's
web site. Providing the link is permissible. However, if
it would be normal industry practice to charge for the link,
then the Committee would have to pay the usual and normal
charge to avoid the making of a contribution by the vendor.
The Committee would also be obligated to report the
disbursement as an operating expenditure in its report
filings. See 2 U.S.C. 434(b)(4) and 11 CFR 104.3(b)(2).
If the Committee pays a web site owner for a link to the
Committee's web site, this would be considered an operating
expenditure.
You describe the situation in which a merchandise
vendor, using Mr. Bush's name to sell various goods, wishes
to forward to the Committee the names of supporters and also
provide a link to the Bush campaign from the vendor's site.
The Commission concludes that this would be permissible as
long as the campaign paid the usual and normal charge for
the list of supporters and for the link (if it would be
standard business practice to be charged for the link). 8
Your request includes an example of one vendor who has
no connection to the campaign but who is selling items
bearing the name of the candidate (www.bushwear.com). The
vendor's site also has no link to the official web site of
the Committee. As with the web sites established by
individuals with no attachment to the Bush campaign, the
Commission notes that the activities of vendors who have no
contact with the campaign, and no Internet link to the
campaign's web site, are third party activities, and are
beyond the scope of this opinion.9 However, the Commission
notes that the activities of this vendor do not produce a
reporting obligation for the Committee. See discussion
above.
You also ask whether disclaimers must accompany the
possible links. However, you give no indication of the
content of the text accompanying any specific link.
Generally, the Commission has concluded that, unless an
exemption or exception applies, disclaimers are required on
web sites that expressly advocate the election or defeat of
a Federal candidate, as well as on those that solicit
contributions. See 2 U.S.C. 441d;
11 CFR 110.11(a)(1). This would apply to any web site that
contained any express advocacy similar to that found in
Advisory Opinion 1998-22. Again, without additional factual
information regarding the link's accompanying text, the
Commission can offer no further guidance on this matter.
Internet polling
Your next questions concern the source and transmission
of Internet polling information. You ask whether all
Internet polls fall under the news media exemption
regardless of the source. You also ask whether the
dissemination of poll results causes a reportable event
under the Act. The Commission generally notes that only the
web sites operated by entities whose activities fulfill the
requirements of the "press exemption" could receive the
benefit of 2 U.S.C. 431(9)(B)(i). Because the Bush
campaign is not eligible for the news media exemption, any
observations about the application of that exemption are
beyond the scope of this advisory opinion. The Commission
further notes that since this opinion is limited to actions
taken by the requester and not third parties, it may not
determine in this opinion whether the various web sites
hosted by other entities would meet the requirements of the
news media exemption.
With regard to the Committee's use of its web site or
its e-mail functions to support Mr. Bush via Internet
polling, the Commission concludes that the Act and
regulations permit such activity. Any costs associated with
this activity would be operating expenditures. The related
costs for this and any other Internet activity (as discussed
above and in Advisory Opinion 1998-22) would include
expenses to operate an e-mail account, maintain a web site,
purchase hardware, etc. Many of these costs, such as the
purchase of computer software and hardware, payment of
electric power and overhead costs, the Committee would have
been required to report in any event. No additional
reporting would be required for each new or other Internet
use, unless it entails a separate purchase or fee.
You ask regarding the use of e-mail by volunteer
supporters of the campaign to urge support for Mr. Bush's
candidacy. The Committee's questions regarding the use of e-
mail by Committee volunteers are covered in the Commission's
previous discussion regarding the value of a web site.
Under section 11 CFR 100.7(b)(4), the use of e-mail by a
campaign volunteer using his home equipment would not result
in a contribution to the campaign. The ongoing costs for
home e-mail activity are likely to be small and in any case
would also be covered by section 11 CFR 100.7(b)(4). The
contribution limit of the volunteer would not be affected by
this activity.
You also pose the question of corporate employees using
corporate equipment to perform their volunteer services for
Mr. Bush's campaign, such as preparing and sending e-mail in
support of the Bush campaign. Under 11 CFR 114.9(a),
stockholders and employees of a corporation may, subject to
the rules and practices of the corporation, make occasional,
isolated, or incidental use of the facilities of a
corporation for individual volunteer activity in connection
with a Federal election. Reimbursement of the corporation
is only required to the extent that the overhead or
operating costs of the corporation are increased.10 If the
volunteer were to send e-mails on behalf of the Committee or
to prepare Internet related material, such as a web site,
using corporate owned equipment or facilities and such use
went beyond occasional, isolated, or incidental use, the
campaign would incur an obligation to reimburse the
corporation within a commercially reasonable time for the
normal and usual rental charge, as defined in section
100.7(a)(1)(iii). Without such reimbursement, a prohibited
corporate contribution would result.11 The Commission notes
that such use could be considered occasional, isolated or
incidental use if it meets all the other requirements of
114.9(a). See footnote ten.
Solicitation of contributions through Internet
Your last series of questions relate to Internet
fundraising activities. Although your request originally
phrased these questions with reference to the Committee's
possible application for matching funds, the issues raised
are applicable to all fundraising efforts, whether or not
the resulting contributions are matched.
You ask whether e-mail communications may be used to
fulfill the Committee's "best efforts" obligations, whether
or not the original contribution was solicited over the
Internet. The Commission notes that a political committee
is required to use "best efforts" to obtain, for each
contribution aggregating in excess of $200 per calendar
year, any required contribution information which was not
provided by the contributor.
11 CFR 104.7(b)(2).12
Such follow-up efforts (after the initial solicitation
is sent) require either a written request sent to the
contributor, or an oral request to the contributor
documented in writing. Furthermore, the Explanation and
Justification for the Commission's regulations on the
matching of credit card contributions noted the special
circumstances of contributions raised through the Internet.
The Commission, citing Advisory Opinion 1995-9, noted that
"in the unique case of a contribution received over the
Internet, the [follow-up] request could consist of an
electronic message sent to the contributor's e-mail
address." See 64 Fed.Reg. 32397 (June 17, 1999) and
Advisory Opinion 1995-9. It is logical to assume that a
contributor would respond best to the medium which was first
used to make the contribution.13 Therefore, the Commission
concludes that the Committee may substitute e-mail
communications for written or oral communications as a means
of exerting best efforts to obtain missing contributor
information where the original contribution was received
through the Internet, or where the Committee has otherwise
obtained reliable information as to a donor's e-mail address
(through, for example, prior up-to-date e-mail
communications with the contributor).
Republication of candidate materials
You state that a group of individuals was planning use
campaign materials advocating Mr. Bush's election in their
volunteer Internet fundraising efforts for the Committee.
The Commission notes that activities undertaken by
volunteers for the Bush campaign would receive the benefit
of the volunteer exception at 2 U.S.C. 431(8)(B)(i) and
section 100.7(b)(4) of Commission regulations. Therefore,
whatever the application of section 100.7(b)(4) with regard
to down-loaded Committee materials, the redistribution or
other use of downloaded material by volunteers, when using
their home computers for e-mail campaign solicitations, or
to create pro-Bush web sites, would not be considered a
contribution to the Bush campaign. To the extent your
request inquires as to the action of other persons who are
not volunteers of the Committee, this would concern the
activities of third parties and is thus beyond the scope of
this opinion.
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
Chairman
Enclosures (AOs 1999-25, 1999-22, 1999-7, 1998-22, 1997-16,
1997-7, 1996-2, 1995-46,
1995-24, 1995-9, 1994-30, 1992-24, 1990-19, 1989-21,
1988-25, 1988-12 and 1982-44)
_______________________________
1 The request cites to Advisory Opinions 1995-9, 1995-35,
1997-16 and 1998-22, as well as Matters Under Review 4340
and 3980.
2 You state that it is your belief that none of the
individuals involved with these sites have official
administrative duties with the Committee or have a paid
position with the Committee.
3 Your request also included questions relating to the
Internet practices of the Gore campaign. An advisory
opinion request must concern a specific transaction or
activity the requester is planning to undertake. See 11 CFR
112.1(b) and (c). The activities of third parties cannot be
included in a request. Therefore, your questions concerning
the activities of the Gore campaign are not addressed in
this opinion.
4 In your original submission, you indicated that the
Committee was considering whether to accept Federal matching
funds. On July 15, 1999, the Committee announced that it
would not seek matching funds. Therefore, the draft will
only address those fundraising issues which relate to the
Act and not those which concern obligations under the
Presidential Primary Matching Payment Account Act at 26
U.S.C. 9031-9042.
5 In your original submission you included a request that
the Commission examine whether the Committee using the
services of a vendor to conduct its Internet fundraising
activities was required to have the vendor provide the
Committee with a separate and unique Merchant ID number.
You have subsequently withdrawn this question from your
advisory opinion request. The Commission has, however,
recently examined this issue in Advisory Opinion 1999-22.
6 The Commission has also examined whether on the basis of
its content a web site or a link could be construed as a
contribution to a candidate. See Advisory Opinions 1999-7
and 1998-22. Recently, in Advisory Opinion 1999-7, the
Commission noted that whatever the content of a web site or
the providing of a web link, the exception in the Act at
section 431(9)(B)(ii) for nonpartisan activity to encourage
voting could apply to remove the activity from being
considered an expenditure or contribution. See also
Advisory Opinion 1999-25.
7 The Commission notes that there is an exception to
following standard business practice. The Commission has
determined that services offered free of charge by
corporations in the ordinary course of business for
promotional or good will purposes (if these services might
otherwise have required consideration) are prohibited by 2
U.S.C. 441b. See Advisory Opinions 1996-2, 1988-25, 1988-
12. With regard to Internet activity, in Advisory Opinion
1996-2 the Commission determined that CompuServe's proposal
to extend to Federal candidates its program of promotional
free Internet accounts would result in a prohibited
corporate contribution under section 441b.
8 The Commission notes that you have not provided facts
indicating that the merchandise vendor would also forward
any profits from the merchandise sales to the Committee or
otherwise use the merchandise to engage in fundraising
activity for the Committee. See Advisory Opinions 1989-21,
1990-19, 1992-24, 1995-24 and 1995-46 for guidance on these
issues.
9 The Commission notes that in Advisory Opinion 1994-30,
it examined the situation of a vendor with no connection to
any candidate or campaign, who proposed to sell candidate-
related merchandise.
10 Section 114.9(a) further defines "incidental use" to
mean "(a) when used by employees during working hours, an
amount of activity during any particular work period which
does not prevent the employee from completing the normal
amount of work which that employee usually carries out
during such work period; or (b) when used by stockholders
other than employees during the working period, such use
does not interfere with the corporation in carrying out its
normal activities." The regulation also notes that any such
activity which does not exceed one hour per week or four
hours per month, regardless of whether the activity is
undertaken during or after normal working hours, shall be
considered as occasional, isolated, or incidental use of the
corporate facilities.
11 Please take note of the difference between the Act's and
the regulation's treatment of volunteers' incidental use of
corporate facilities as described here, versus the
limitations on corporate communications that endorse
candidates. See 2 U.S.C. 441b(b)(2)(A) and 11 CFR
114.3(c)(2) and 114.4(c)(6); see also Advisory Opinion 1997-
16.
12 A political committee is required to use its best
efforts to obtain information as to a contributor's full
name, mailing address, occupation, and the name of the
contributor's employer, where the contributions exceed $200
in a calendar year. 11 CFR 104.7(b)(1).
13 The Commission notes that while both e-mail and postal
addresses are subject to change, e-mail addresses may change
with greater rapidity since no change of residence is
necessary for an old e-mail address to be rendered
inoperative, only a change of job or e-mail provider.
Moreover, forwarding service for e-mail is less prevalent
than for postal address changes. However, this concern is
lessened if the campaign solicited and received the
contribution by Internet communication (with an Internet
address provided), since that would indicate the existence
of a viable e-mail address used for transactions.