Federal Election Commission Main Page
October 29, 1999
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1999-25
Trevor Potter
Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, D.C. 20006
Dear Mr. Potter:
This responds to your letter dated September 1, 1999,
on behalf of Democracy Network ("DNet"), as supplemented by
your letters dated September 14, October 20, and October 26,
requesting an advisory opinion concerning the application of
the Federal Election Campaign Act of 1971, as amended ("the
Act"), and Commission regulations to the operation of a
website that provides information with respect to Federal
candidates.
DNet is an online project of the League of Women Voters
Education Fund ("the League") and the Center for
Governmental Studies ("CGS"), "designed to improve the
quality and quantity of voter information and to create a
more educated and involved electorate." The League is an
independent incorporated entity, tax exempt under
26 U.S.C. 501(c)(3), that encourages active and informed
participation of citizens in government. It acts in
coordination with the League of Women Voters of the United
States which is a leading nonpartisan voter information and
participation organization. CGS, formed in 1983, is a
501(c)(3) incorporated entity which uses communications
technologies to provide information about government and
elections on a nonpartisan basis. You state that it has a
history of creating innovative public interest projects
including the nation's largest nonprofit television channel,
the "California Channel," focusing on State government.
You summarize the proposed activities of DNet's website
during the current election cycle, stating that they would
entail the provision of Federal candidate-related
information on a nonpartisan basis, including voting and
voter registration information, substantive discussions and
online debates in which candidates directly participate,
biographical and other information about the candidates, and
electronic links to websites of candidates or their
committees. You state that the League and CGS seek
confirmation that DNet's proposed activities are exempt from
the definition of "contribution" or "expenditure."1 The
Commission's response requires an overview of DNet's
background and objectives, as well as a somewhat detailed
description of the proposed activities.
DNet's Background
DNet was launched during the 1996 presidential
elections and since then has provided voter information on
hundreds of elections, including Federal and non-Federal
campaigns and ballot measure elections. It has received its
funding from a number of prominent foundations and
charitable institutions. You describe its goals as: (1)
increasing voter understanding of public policy problems;
(2) fostering greater civic participation and interaction
between voters and candidates; (3) providing day-to-day
information concerning local, State, and Federal government;
and (4) creating new online communities. You state that
DNet gained considerable attention during the month
preceding the 1998 general elections when it covered all 50
states "with nine full feature debate sites and 41 basic
voter information sites," including candidate links and
coverage of ballot referenda. You characterize DNet as
"part of a larger effort on the Web to create non-profit,
non-partisan, interactive tools for local, state, and
national political participation," noting that America
Online is cross-linking to DNet in cities where Digital City
is operational, and that DNet will be included in AOL's
coverage of the 2000 election.
Proposed Activities
A number of the interactive features entail
participation by candidates. All ballot qualified
candidates running in elections covered by DNet are invited
to participate.2 After the filing deadline has passed, DNet
obtains lists of all the properly registered candidates from
the appropriate election officials. DNet then contacts all
those candidates and provides them with an ID and password
so they can prepare their online biographies and submit
their contacts and endorsers' statements. They may then
begin submitting policy positions and replying to questions
and statements from other candidates and the public. To
assist in initiating the process, DNet will suggest a few
issue areas to the candidates.
The major feature of DNet is "a database of textual,
audio, and visual statements, which candidates can directly
and remotely update, and which voters can access according
to their interests." Using her ID and password, a candidate
can enter the website and write on any issue she chooses, or
respond to questions from other candidates or from members
of the public. The League will moderate the questions from
the public in the manner of a radio talk show host,
screening them in a non-public portion of the website to
ensure that they are understandable and not redundant or
obscene before posting the questions on the website for
responses by the candidates. A candidate's position on an
issue is automatically entered in a "Candidate Grid," which
indicates that she has stated a position with a red check
mark and states "no comment" opposite the opponents' names.
The position is then e-mailed to the opponents who are
thereby encouraged to submit statements, which are entered
in the Grid.3 A candidate may continually edit or update
her position statement, as well as comment on the positions
of the other candidates.4 To see a candidate's position on
an issue and responses to viewers' questions, the viewer
clicks on the check mark on the Grid.5 In addition to the
posting of the issue positions and responses on the Grid,
candidate rebuttals to other candidates on each issue will
appear in a separate "digital debate" section. All
individual statements (e.g., position statements, replies,
rebuttals) will be limited to 1,000 words each; DNet will
cut off a statement after 1,000 words and screen for such
aspects as obscenity, but will not substantively edit a
statement. Viewers will also be able to compare any two
candidates side by side on the same screen on a particular
issue; the screen will display their photographs, their self-
edited position statements, and their additional comments
(i.e., the rebuttals) on the issue. You assert that this
entire process has the effect of "creating thousands of
simultaneous online debates in hundreds of races," and that
this process encourages candidates to address a greater
range of issues and in greater depth than they typically do
on television or paid advertising.
In addition, as indicated above, each candidate
provides her biography, information on how to contact the
campaign, and individual and organizational endorsements,
including head and shoulder shots of persons making
statements in a video form. DNet also provides a national
"issue of the day" feature on its home page which refers
viewers to an issue exchange between candidates within the
site.
DNet also provides an e-mail form and the candidates'
addresses for viewers to communicate directly with
campaigns. In addition, campaigns may post hyperlinks to
their websites on DNet.6 Links are also provided to sites
with reports of official campaign contribution data for
candidates (such as governmental websites and websites that
summarize information filed with governmental entities) and
ballot measures. DNet also furnishes official ballot and
local voting information (including registration deadlines,
absentee balloting information, and links to polling place
information). Finally, DNet will provide links to
editorials, news (including links to various news services),
and updated listings of debates and political events. You
state that, to the extent that DNet links to any editorial
endorsements of candidates, it will "make every effort, on a
nonpartisan basis," to list a representative assemblage of
local newspapers that have made endorsements in the relevant
race, or, in the case of national candidates, to list a
representative assemblage of large papers across the nation.7
Legal Analysis
The sponsors of DNet are incorporated entities. The
Act prohibits a corporation from making any "contribution or
expenditure" in connection with a Federal election.
2 U.S.C. 441b(a); 11 CFR 114.2(b). The term "contribution
or expenditure" 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, political party or committee,
organization, or any other person" in connection with any
Federal election. 11 CFR 114.1(a)(1); see also 2 U.S.C.
441b(b)(2). 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). In past advisory opinions, the
Commission has concluded that the costs associated with
creating and maintaining a website could be considered an
expenditure (or in-kind contribution), depending upon the
content of the site and whether exceptions are applicable.
See Advisory Opinions
1999-7, 1998-22, and 1997-16.
The application of the Act to the proposed activity
depends upon the nature of DNet and its sponsors, and the
described functions of the website. The Act provides that
the term "expenditure" does not apply to "nonpartisan
activity designed to encourage individuals to vote or to
register to vote." 2 U.S.C. 431(9)(B)(ii). Thus, even if
the statements of the candidates and their endorsers or the
contents of the candidate websites to which DNet has
hyperlinks would be in connection with a Federal election,
the DNet website may be permissible under this exception.
DNet is a project of two corporations that have
qualified as tax exempt organizations under 26 U.S.C.
501(c)(3). As such, they may not participate or intervene
in any political campaign on behalf of or in opposition to
any candidate. Moreover, the League and CGS were created
and operate for the purposes of providing information about
elections, the electoral process, and government on a
nonpartisan basis. As indicated, DNet was established for
the purposes of increasing voter understanding of public
policy issues and government, and increasing civic
participation and voter interaction with candidates on a
nonpartisan basis. The website is a new type of
multifaceted vehicle that exhibits a broad range of features
and capabilities, owing in large part to the technology
involved, and which provides comprehensive, continuous
coverage of Federal elections and of Federal candidates on a
large scale.
In addition to DNet's composition and the purposes of
the website, there are several aspects of DNet's activity
that should be examined to determine whether it comes within
the nonpartisan exception to the definition of expenditure.
These aspects are: the standards for inviting candidates and
degree of participation by each candidate; the audience
targeted; the selection of materials that come from sources
other than the campaigns, such as media entities; the degree
of coordination between DNet and the campaigns; and the
communications of DNet itself.
The standards proposed by DNet as to which candidates
will be invited to post statements, responses, hyperlinks to
their campaign websites, and other information provide for
the invitation of each ballot-qualified candidate in an
election other than a presidential general election. This
is the same standard approved in Advisory Opinion 1999-7
when the State of Minnesota proposed an informational
website that would provide campaign mailing addresses, phone
numbers, and hyperlinks to candidate websites. Your
limitation with respect to presidential candidates in the
general election conforms to standards set out in another
context where Commission regulations seek to ensure that
corporate contributions or expenditures would not result.
See the voter guide regulations at 11 CFR 114.4(c)(5)(ii).
Similarly, the space allocations and the positioning of
candidates on the Grid are based upon objective criteria.
DNet's website will be available for viewing and
interaction by the general public.8 No effort will be made
to determine the political party or candidate preference of
the viewers. See 11 CFR 100.8(b)(3). As such, the website
will not be targeted toward encouraging participation or
voting by a selected group of persons of a particular party
or other group.
You have referred to information from, and links on the
website to, neutral sources such as official ballot and
local voting information, reports of official campaign
contribution data, and local, State, and national news
services. There will also be links, however, to editorial
endorsements. You have stated that DNet will make every
effort on a nonpartisan basis to link to a representative
sample of newspapers that have made endorsements in a
relevant race, and the Commission assumes that there will be
no attempt to skew a selection so as to emphasize support of
a candidate or a party. If this occurs, the editorials may
be construed as express advocacy by DNet and not merely the
republication of news media editorials. This caution,
however, does not mean that DNet would engage in express
advocacy merely because links to editorials show a
preponderance of support of one candidate over others. The
Commission understands that a representative sample may, in
some cases, show a preponderance of support for one
candidate.
DNet will communicate with the candidates (or their
campaigns) in order to invite their participation, to inform
them of the positions of other candidates and questions and
comments, to remind them to respond, to edit for length of
statements (cutting a statement after 1,000 words) or
obscenity, and to provide technological advice as to the use
of the website, such as how candidates may remotely update
their statements. DNet's communications with the
candidates, however, will not pertain to the substance of
the statements or information posted by the candidates
(e.g., issue positions). In engaging in the above
communications, which are necessary for the effective
operation of the website, DNet will not be discussing the
candidate's plans, projects, or needs. With respect to the
information provided by the candidates, DNet will merely
serve a passive function to provide complete information
about elections and will communicate with candidates to
fulfill that function. In view of these circumstances,
DNet's communication with a campaign would not constitute
acting in cooperation or with the prior consent of, or in
consultation with, or at the request or suggestion of, a
candidate, her committee, or her agent. See 2 U.S.C.
431(17) and 441a(a)(7)(B)(i);
11 CFR 100.16, 109.1(a) and (b)(4)(i)(A). As such, DNet's
efforts to provide candidates with an opportunity to
participate in the website would not constitute an in-kind
contribution by DNet to those candidates.
Finally, the information presented indicates that DNet
itself will not score or rate the candidates or make any
statements expressly advocating the election or defeat of
any clearly identified candidate, or of the candidates of
any political party. As indicated and subject to the
discussion above, DNet will function in such a way that none
of the statements made by candidates or persons supporting
the candidates can be imputed to DNet.
Based on the foregoing discussion of the nature of
DNet, its sponsoring organizations, and the website itself,
the Commission concludes that DNet's proposed activity is
exempt from the definition of "expenditure" at 2 U.S.C.
431(9)(B)(ii), and is therefore permissible under the Act.
As indicated above, the Commission observes that the DNet
website is very comprehensive in its efforts to present
information to voters. In order to satisfy the requirements
of the Act, however, a website need not be identical to the
DNet site, either as to the kinds of information presented
or as to the technology used on the website. In addition,
the Commission notes that it has examined a number of
factors in reaching its conclusion. Although all of these
factors are relevant, different facts with respect to a
particular factor may or may not lead to a conclusion that a
website's activities are permissible.
This response constitutes an advisory opinion
concerning application of the Act and Commission regulations
to the specific transaction or activity set forth in your
request. 2 U.S.C. 437f.
Sincerely,
(signed)
Scott E. Thomas
Chairman
Enclosures (AOs 1999-7, 1998-22, 1997-16, and 1995-9)
_______________________________
1 You have analyzed your proposal under specific exceptions
to the definition of "contribution" and "expenditure" found
in the Act and Commission regulations and recommend the
application of one or more of these exceptions. These
include the exceptions for (1) nonpartisan activity to
encourage voting or registering to vote, (2) staging of
candidate debates by nonprofit organizations or news media
entities, (3) news stories, commentary, or editorials
distributed by news media entities, (4) preparation and
distribution of voter guides consisting of candidates' issue
positions, and (5) candidate appearances on the premises of
nonprofit educational institutions.
2 You state that this criterion may prove impractical in a
general election for president where candidates may qualify
for the ballot only in some States. In that event, DNet
will use other objective criteria. At a minimum, it will
include all candidates who are on the ballot in enough
States to win a majority in the Electoral College.
3 For security purposes, the statement is returned to the
submitting candidate to confirm the entry.
4 DNet will contact candidates "on a periodic, but more or
less frequent, basis" to inform them of positions entered by
other candidates and to remind them to respond to the
positions, as well as other comments and questions entered
at the site.
5 You state that viewers will be asked to vote as to which
issues are most important to them. Viewers and candidates
can then see the issues on the Grid ranked in accordance
with the results of the vote tally. You also note that the
name of whichever candidate was the most recent to edit or
update a position statement on any issue would move to the
top of the Grid.
6 A viewer may fill out the form on-line and then click to
have it sent to the candidate's committee. DNet will
forward the viewer's form to the campaign committee. DNet,
however, has no control over the content or result of the
contact. Other than the provision of this vehicle and the
hyperlinks to campaign websites, DNet has no involvement or
role in viewer's direct communications with, contributions
to, or volunteering for campaigns.
7 You also enclose a copy of "DNetizen," an online news
magazine that is accessible from the website and is
published by DNet. It provides news and commentary on
Internet-related matters, such as electronic voting
proposals, online disclosure of campaign finance
information, the public's perception of "Spam," and the
effectiveness of e-mail petitions.
8 Because of the general availability of access to the
Internet, the Commission has concluded that communication
via a website would be considered a form of communication to
the general public. See Advisory Opinions 1998-22, 1997-16,
and 1995-9.