AO 2012-11: Two of nonprofit's ads expressly advocate

Two of 11 advertisements proposed by the nonprofit Free Speech expressly advocate the election or defeat of a federal candidate. Another four of the group’s proposed ads are not express advocacy under the same standards. The Commission also agreed that two of the group’s four proposed donation requests would not be solicitations.

However, the Commission could not approve a response by the required four affirmative votes determining if Free Speech’s five remaining proposed advertisements expressly advocate and whether its two other donation requests constitute solicitations under campaign finance law. Nor could it approve a response determining whether Free Speech would have to register and report as a political committee.

Background

Free Speech is an unincorporated nonprofit association that consists of three individual members. Its stated purpose is to promote and protect “free speech, limited government, and constitutional accountability." The Wyoming-based group is registered as a "political organization" under 26 U.S.C. § 527 of the Internal Revenue Code and plans to finance advertisements from individual donations, although it would not accept donations from individuals who are foreign nationals or Federal contractors.

Free Speech stated it will not contribute to federal candidates, political parties or political committees, and will not coordinate expenditures for its $10,000 in planned ads. These expenditures consist of a combined $1,000 on Internet and newspaper ads that will run during April and May respectively and another $9,000 on local TV and radio ads that will run starting in April and ending a few days before Election Day.

The group asked the Commission whether its planned advertisements would be considered express advocacy under the Federal Election Campaign Act (the Act). It also questioned whether four of its proposed donation requests would be considered solicitations under the Act. Finally, the nonprofit asked whether it is required to register and report as a political committee to the Commission.

Analysis

Under FEC regulations, a communication expressly advocates the election or defeat of a clearly identified Federal candidate if it uses phrases such as “vote for the President,” “re-elect your Congressman,” “support the Democratic nominee,” or uses campaign slogans or individual words that, “in context, have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidate(s).” 11 CFR 100.22(a). Under Commission regulations, a communication also constitutes express advocacy if "[w]hen taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s)." 11 CFR 100.22(b).

The Commission concluded that Free Speech's two "Financial Reform" advertisements are express advocacy because they identify a candidate with a position on an issue and instruct viewers to vote against those who take that position on the issue. 11 CFR 100.22(a). This conclusion is supported by the Supreme Court's decision in FEC v. Massachusetts Citizens For Life, 479 U.S. 238 (1986). By contrast, the Commission determined that Free Speech's two "Health Care Crisis" advertisements, the "Gun Control" Facebook advertisement, and the "Ethics" advertisement are not express advocacy because none of the four ads make federal electoral references.

The Commission also concluded that two of Free Speech's proposed donation requests – entitled "Strategic Speech" and "Checking Boxes" – are not solicitations under the Act. The Act defines the term "contribution" to include "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for federal office." 2 U.S.C. § 431(8)(A)(i); see also 11 CFR 100.52(a). The Act requires “any person” who “solicits any contribution through any broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any other type of general public political advertising” to include a specified disclaimer in the solicitation. 2 U.S.C. § 441d(a); see also 11 CFR 110.11(a)(3). Requests for funds that "clearly indicate that the contributions will be targeted to the election or defeat of a clearly identified candidate for federal office" are solicitations under the Act. FEC v. Survival Education Fund, 65 F.3d 285, 295 (2d Cir. 1995) (analyzing communications for purposes of 2 U.S.C. § 441d(a)).

Although the "Strategic Speech" donation request identifies a Senator as supporting a particular issue, references his re-election and says he has not "gotten the message" that he should retire, it lacks language "clearly indicating that the contributions will be targeted to the election or defeat of a clearly identified candidate for federal office." Survival Education Fund, 65 F.3d at 295. Accordingly, this donation request is not a solicitation under the Act. Survival Education Fund, 65 F.3d at 294-95.

The "Checking Boxes" donation request clearly indicates how the funds requested will be spent: "making the message of Free Speech heard" by "inform[ing] real American leadership." Although the request clearly identifies President Obama and refers to the November ballot, it lacks language "clearly indicating that the contributions will be targeted to the election or defeat of a clearly identified candidate for federal office." Survival Education Fund, 65 F.3d at 294-95. Accordingly, this donation request is not a solicitation under the Act.  

The Commission could not approve a response by the required four affirmative votes determining whether Free Speech is required to register and report to the agency as a political committee. See 2 U.S.C. § 437c(c); 11 CFR 112.4(a).

Date issued: May 8, 2012; Length: 11 pages.

Resources:

• Advisory opinion 2012-11 [PDF; 11 pages]
• Commission discussion of AO 2012-11