AO 2012-27: Some of group’s communications ruled not express advocacy or solicitations

Three of the seven advertisements proposed by the National Defense Committee (NDC) do not expressly advocate the election or defeat of a clearly identified federal candidate under the Federal Election Campaign Act (the Act) and Commission regulations. Additionally, two of the group’s four proposed donation requests would not be considered solicitations under the Act.

The Commission could not determine by the required four affirmative votes whether NDC‘s four remaining proposed ads contain express advocacy or whether its two other donation requests constitute solicitations. The Commission also could not approve a response as to whether NDC’s questions concerning political committee status and the application and enforcement of the express advocacy definition at 11 CFR 100.22(b) qualify as appropriate advisory opinion requests. See 2 U.S.C. § 437c(c); 11 CFR 112.4(a).

Background

NDC is a Virginia-based nonprofit that focuses on issues that affect “war veterans, veterans’ affairs, national defense, homeland security, and national security.” The group says it will not contribute to any federal candidates, political parties or political committees, will not make any coordinated expenditures and will not accept any contributions from foreign nationals or federal contractors.

NDC plans to spend slightly more than $3,000 to run seven advertisements through online and social media platforms, including paid video placements with a commercial vendor. NDC has a larger budget to fund activities that are “dissimilar” to those described in its advisory opinion request, but was “unable to provide any details” regarding its overall budget or other activities.

The group asked the Commission whether its planned advertisements would be considered express advocacy and whether its proposed donation requests would be considered solicitations under the Act. NDC also asked whether the Commission would apply both parts of its regulatory definition of express advocacy. Finally, the nonprofit asked whether its activities would require it to register and report as a political committee.

Analysis

The Commission concluded that NDC’s “Ethically Challenged,” “Stop the Liberal Agenda,” and “Don’t Trust Harry Reid” advertisements would not expressly advocate the election or defeat of a clearly identified federal candidate under the regulatory definition at 11 CFR 100.22. The Commission could not approve a response regarding the remaining advertisements by the required four affirmative votes.

Two of NDC’s proposed donation requests – entitled “Strategic Stupidity” and “Fighting Back” – will not constitute “solicitations,” but the Commission could not approve a response regarding the remaining proposed donation requests.

Date issued: August 24, 2012; Length: 7 pages.

Resources:

• Advisory opinion 2012-27 [PDF; 7 pages]
• Commission discussion of AO 2012-27