Federal Election Commission Main Page
August 28, 2000
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2000-16
B. Holly Schadler
Brian G. Svoboda
Perkins Coie LLP
607 14th Street, N.W.
Suite 800
Washington, D.C. 20005-2011
Dear Ms. Schadler:
This responds to your letters dated June 8, July 5,
July 14 and August 4, 2000, on behalf of Third Millennium:
Advocates for the Future, Inc. ("Third Millennium"),
requesting an advisory opinion concerning the application of
the Federal Election Campaign Act of 1971, as amended ("the
Act"), and Commission regulations to a project examining
young voter disengagement from the political process.
Third Millennium is a nonprofit corporation organized
in 1993 under the laws of
New York and exempt from tax under 26 U.S.C. 501(c)(3).
You state that Third
Millennium is "[n]onpartisan in both its structure and
activities" and note that, under
section 501(c)(3), it is prohibited from participating or
intervening in any political
campaign on behalf of or in opposition to any candidate for
public office. You explain
that Third Millennium's purpose is, among other things, to
encourage participation in the electoral and legislative
processes by younger Americans.1 The organization is now
engaged in a project called "Neglection 2000," in which it
seeks to examine and address
the problem of young voter disengagement from the political
process and the threat this disengagement poses to democracy
at large.2
Third Millennium tracked the problem of young voter
apathy during the 2000 Presidential primaries. It recently
issued a report entitled, "Don't Ask, Don't Vote,"
which is briefly described in footnote 4 below. Third
Millennium believes that the
problem reflects a downward spiral of mutual neglect: young
people vote in low numbers because campaigns do not target
them, and campaigns do not target them because they
vote in low numbers. Having assessed the causes and extent
of young voter apathy, Third Millennium now seeks to measure
whether repeated exposure to positive Internet
advertisements from presidential candidates affects voter
participation among young
adults.3 Third Millennium also believes that the Internet,
with its disproportionately
younger audience and relatively lower cost of communication,
offers the opportunity to
correct the imbalance wherein campaigns focus
disproportionately on older voters.4
Toward this end, Third Millennium proposes to retain
the services of Juno, an established Internet service
provider that requires subscribers, as a condition of
receiving
Juno's free Internet access service, to provide extensive
demographic information and to
review paid advertising.5 In late August, Third Millennium
will send a survey
questionnaire to a random universe of 250,000 subscribers,
aged 18 years old or over, to
see whether they intend to vote, for whom they would vote,
and the political party, if any,
to which they belong. Those subscribers will be informed
that they will be part of a
research project about viewing political advertisements on
the Internet and the Internet's influence on political
participation.6
Third Millennium anticipates that approximately 40,000
subscribers will respond
to the survey. This group of individuals will be the
subjects for the second stage of the
project (described below); the other 210,000 will not be
contacted again and will not participate further in Third
Millennium's project. This pool of 40,000 enables Third
Millennium to identify statistically significant
relationships among specific sub-groups.
For example, this research design allows for comparisons
across gender, region and
income. Responses to the survey will have no effect on
which ads are viewed by those
who participate in the study. For example, a Juno
subscriber who indicates that he is "somewhat likely" to
vote, and is inclined to vote for Candidate A, has an equal
chance
of seeing an ad for Candidate A as he does for any other
candidate. Thus, in the aggregate, no candidate will enjoy
a competitive advantage.
The second stage of the project involves randomly
dividing the pool of 40,000
into equal subgroups of 4,000 each. Nine of these ten
groups will view Internet
advertisements for Presidential candidates on space
purchased for a fee by Third
Millennium from Juno. One group will view no Internet
political advertising at all
throughout the campaign season that commences on Labor Day
and ends on Election
Day; this group will be the control group. A second group
(n= 4,000) will view
advertisements only for Democratic presidential nominee Vice
President Al Gore. A third group (n=4,000) will view
Internet advertisements only for Governor George W.
Bush. Other groups of 4,000 will see ads for specific
ballot-qualified third-party
candidates.7 The last group (n=4,000) will view a random
mix of an equal number of ads
from all the ballot-qualified candidates. There will be
only one ad text for each
candidate, and exposure to advertisements will be identical
across each group. Each
group of 4,000 will view the same number of advertisements,
and each individual in a
group will view the same ads as others in the group. During
the period between Labor
Day and Election Day 2000, each participant in the study
(excluding the control group) will be exposed to a total of
15 to 20 advertisements.
The Internet advertisements will be of the "pop-up"
variety, meaning that in order
to receive or send e-mail through Juno, one must view a full-
screen ad and then actively
(using a mouse) click the advertisement off one's screen in
order to continue using Juno.
Users of this service are aware that pop-up ads are part of
the environment and accept
these ads as a condition for receiving Juno's free services.
You also state that there
would be links to the candidate's web sites in
advertisements viewed by a subset of the participants, e.g.,
50 percent of a candidate's advertisements would have such a
link.
The candidates would be treated equally in this regard.
This approach is intended to provide data regarding the
effect of access to additional information on the
participant's
engagement in the political process.
You indicate that Third Millennium will treat each
candidate equally as it obtains
or develops the ads, giving none a qualitative or
quantitative advantage. The ads will be
created in one of two ways. Option One is to have each
respective presidential campaign provide content and design
that may be used for the experiment. If this option were
chosen, letters to each campaign will be sent on August
11th, in the hopes of receiving a response by August 21st.
Third Millennium will reserve the right to reject a campaign-
generated ad that does not meet the criteria of the project.
Specifically, no ad for a
particular candidate will mention or allude to his/her
opponents. Instead, each
candidate's ad must put forth a positive message about that
particular candidate. Option
Two entails having Third Millennium create ads for the
project based upon publicly
available information from the candidates (such as from
their websites). Whichever
option is used, the campaigns will not be paid or
compensated in any manner by Juno or
Third Millennium.
After the election, Third Millennium proposes to survey
the 40,000 respondents
and ask for whom, if anyone, they voted. The survey data
will then be sorted, and Third Millennium will attempt to
address the three key hypotheses set forth above. If those
subscribers who view Internet ads voted at statistically
significantly higher rates than the
control group that was not exposed to Internet advertising,
then one can conclude that:
(a) there is a strong correlation between viewing these ads
and voting behavior, and (b) perhaps, ceteris paribus, the
advertising caused the increase in turnout. More
importantly, if the study demonstrates that young adults are
receptive to advertising
through this medium, Third Millennium believes it will have
discovered a cost-effective outlet for reaching this
demographic in subsequent elections. The results will be
presented to professionals of all ideologies at a major
conference to be hosted by Third Millennium in December
2000.8
You ask whether the Act and Commission regulations
permit the implementation
of Third Millennium's proposal. The Commission unanimously
concludes that the
activity described would be permissible under the Act and
Commission regulations.
The conclusion in this response constitutes an advisory
opinion concerning the application of the Act and Commission
regulations to the specific transaction or activity
set forth in your request. See 2 U.S.C. 437f. Individual
Commissioners have explained their reasons for voting to
approve this opinion in separate concurring statements that
accompany this opinion.
Sincerely,
(signed)
Darryl R. Wold
Chairman
Enclosures (Concurring Opinions)
ADVISORY OPINION 2000-16
THIRD MILLENIUM
CONCURRENCE OF
CHAIRMAN WOLD AND COMMISSIONERS MASON AND SMITH
We write to express our reasons for finding that the
activities contemplated by Third Millennium, as stated in
the Commission's Advisory Opinion 2000-16, do not violate
the Federal Election Campaign Act.
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 core
issue presented in the request is whether the proposed
activity by Third Millennium would constitute a contribution
or expenditure as defined by the Act and Commission
regulations. The term "contribution" is defined as 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, and the term
"expenditure" is defined as 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. 2 U.S.C.
431(8)(A)(i) and 431(9)(A)(i); 11 CFR 100.7(a)(1) and
100.8(a)(1); see also 2 U.S.C. 441b(b)(2) and 11 CFR
114.1(a)(1) which provide a similar definition for
"contribution" and "expenditure" with respect to corporate
activity. According to Commission regulations, 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). Further,
Commission Regulations require that corporate registration
and get-out-the-vote communications to the general public
are allowed "provided that the communications do not
expressly advocate the election or defeat of any clearly
identified candidate(s) . . .." 11 CFR 114.4(c)(2).
Third Millennium's proposal entails the display of
candidate advertisements on a continuous basis to a selected
audience of Internet subscribers. Third Millennium will pay
the ISP for space to display these advertisements. It is
assumed, as part of the study, that these advertisements may
very well have an influence on the voting behavior of the
viewers, including influence as to whom viewers will support
or vote for. On its face, then, Third Millennium's activity
would seem to be prohibited corporate contributions or
expenditures. Further, because the communications would
expressly advocate the election or defeat of clearly
identified candidates, they would not qualify as non-
partisan get-out-the-vote activities under 11 CFR
114.4(c)(2). However, we do not believe that the analysis
stops here.
In Buckley v. Valeo, the Supreme Court held that the
statute's limitations on "expenditures relative to a clearly
identified candidate" could withstand a constitutional
challenge for vagueness only by interpreting the phrase
"relative to" to apply solely to communications "that
include explicit words of advocacy of election or defeat of
a candidate" and to "expenditures for communications that in
express terms advocate the election or defeat of a clearly
identified candidate for federal office." 424 U.S. 1, 43-44
(1976). In discussing disclosure requirements under the
Act, the Court reiterated this point and expressed concern
with the overbreadth of the phrase "for the purpose of
influencing," holding that reporting requirements could
apply only to groups making "contributions earmarked for
political purposes or authorized or requested by a candidate
or his agent," or "mak[ing] expenditures for communications
that expressly advocate the election or defeat of a clearly
identified candidate." 424 U.S. at 80. See also Federal
Election Commission v. Massachusetts Citizens for Life Inc.,
479 U.S. 238, 248 (1986). The Buckley Court held that this
was necessary to avoid a chilling effect on speech about
political issues, noting that a less bright line "offers no
security for free discussion." 424 U.S. at 43 (quoting
Thomas v. Collins, 323 U.S. 516, 535 (1945)). While the
holdings in Buckley and Massachusetts Citizens For Life
preclude the application of the Act to uncoordinated
communications which do not contain "express advocacy,"9
and thereby establish a constitutionally mandated safe
harbor for much political speech, they do not hold that all
communications including express advocacy are automatically
subject to regulation under the FECA. Though the Act's
limitations on uncoordinated expenditures are
constitutionally constrained to apply only to communications
including express advocacy,10 the Constitution does not
conversely mandate that all communications containing
express advocacy must be covered by the Act. In fact, the
Act, by its express terms, applies only to those
contributions and expenditures "made . . . for the purpose
of influencing any election for Federal office." 2 U.S.C.
431 (8)(A)(i) and 2 U.S.C. 431 (9)(A)(i). Thus, the
statute does not necessarily prohibit the corporate
expenditures at issue here, and Commission regulations which
purport to limit all express advocacy communications,
including those not made "for the purpose of influencing any
election for Federal office," are invalid, as they exceed
the statutory mandate. FEC v. Democratic Senatorial
Campaign Committee, 454 U.S. 27, 32 (1984); Fireman v.
United States, 44 Fed. Cl. 528, 538 (1999).
Given this, the regulations at 11 CFR 114.4(c)(2),
prohibiting all corporate expenditures for get-out-the-vote
activities aimed at the general public and including express
advocacy, must be interpreted as a safe harbor for
corporations wishing to engage in registration and get-out-
the-vote communications. That is to say, the activities
described in 11 CFR 114.4(c)(2) are clearly protected
communications because they do not include express advocacy.
However, other corporate communications which include
express advocacy, such as those proposed by Third
Millennium, might also be exempt from regulation, if they
are not made "for the purpose of influencing any election
for federal office." Such a construction is consistent with
the Commission's recent Advisory Opinions 1999-25 and 1999-
24, which allowed a 501(c)(3) organization, and a limited
liability company (LLC), respectively, to engage in web-
based activities that involved the transmittal of
communications including express advocacy.
In determining whether or not corporate communications
are prohibited by the Act, we are required to engage in a
two-step analysis. The first step is to determine whether
or not the communications contain "explicit words of
advocacy of the election or defeat of a clearly identified
candidate." Only after determining that express advocacy is
involved is it necessary to examine whether or not the
communications are for the purpose of "influencing an
election."
This approach recognizes that investigation,
intimidation, and uncertainty can have the effect of
"chilling" speech. However, by providing speakers with a
safe-harbor, this approach overcomes the vagueness problems
and the potential for a "chilling effect" on speech that led
to the Court's decision in Buckley. Groups and individuals
engaging in non-coordinated political speech can rest
assured that their speech is protected so long as they
refrain from engaging in express advocacy.
Therefore, in analyzing the described activities
proposed by Third Millennium, we begin by considering
whether or not express advocacy is involved in the
communications. As the project is described, Third
Millennium's communications will contain such express
advocacy. Next, we consider whether or not the activities
are for the purpose of influencing an election.
Based on the facts outlined in the opinion of the
Commission, we believe that Third Millennium's proposed
activities are not for the purpose of influencing an
election. While Third Millennium's express intent and its
status as a 501(c)(3) organization may be helpful in
assessing the purpose of the proposed activity, the
objective design of Third Millennium's proposal is essential
to our conclusion that the activity is not for the purpose
of influencing the presidential election. First,
advertisements will not be targeted demographically or
geographically. Instead, participants will be solicited
randomly from a relatively diverse groups of Juno users, and
will be divided into subgroups on a random basis. Second,
candidates included in the study will be treated equally in
regard to the number of advertisements shown and the
selection of viewers. Third, the anticipated number and
dispersion of participants is such that the study is not at
all likely to affect the outcome of the Presidential race
nationally or in any single state, in part because Third
Millennium will not be targeting, and as the project is
designed, will not be able to target, participants in a
particular geographic region or state.
We also note that communications with the campaigns, if
any, will be kept to the minimum necessary to obtain
advertisements for display, and the choice of ads and how
they will be distributed will be under Third Millennium's
sole control, rather than any candidate or committee. This
is consistent with the concept of the study as research for
nonpartisan purposes, rather than an opportunity for the
candidates to refine, target, or otherwise convey their
messages to the electorate.
Based on the facts as described in the Commission's
opinion, and for the reasons outlined above, we conclude
that the proposal does not entail activity for the purpose
of influencing an election, and thus the proposal would not
result in prohibited contributions or expenditures by Third
Millennium.
__/sig/________________________
Date: August 24, 2000 Daryl R. Wold
Chairman
___/sig/_______________________
Date: August 24, 2000 David M. Mason
Commissioner
___/sig/_______________________
Date: August 24, 2000 Bradley A. Smith
Commissioner
STATEMENT FOR THE RECORD
VICE CHAIRMAN DANNY LEE McDONALD
COMMISSIONER SCOTT E. THOMAS
ADVISORY OPINION 2000-16
In Advisory Opinion 2000-16, the Federal Election
Commission considered whether a 501(c)(3) corporation could
place on the Internet candidate ads of all presidential
candidates who appear on enough state ballots to
theoretically win an Electoral College majority. These ads
would be shown to research survey respondents on the
Internet as part of a project analyzing political
participation of young voters. Results of the survey, it is
thought, will help measure the effectiveness of the Internet
as a means to increase young voter participation. The
sponsor of the project, Third Millennium, seeks to "promote
the civic involvement of young people" and "does not endorse
or oppose any candidate for public office or otherwise
engage in partisan activity."
The Commission unanimously agreed Third Millennium's
proposed activity is permissible under the Federal Election
Campaign Act ("the Act") and Commission regulations. The
Commission could not reach agreement, however, on the
rationale for its conclusion. In order to issue an opinion,
the Commission decided to excise the analysis portion of the
opinion and simply state the result upon which all agreed.
Moreover, Commissioners were invited to explain their
reasons for voting to approve Advisory Opinion 2000-16 in
separate concurring opinions.
With respect to the underlying rationale, several
Commissioners believe Third Millennium's proposed activity
is permissible because it is not for the purpose of
influencing a Federal election and, thus, the corporation's
disbursements would not constitute a prohibited contribution
or expenditure. See 2 U.S.C. 441b. We do not agree with
this approach. It seems fairly apparent the activity at
issue here is election-related and meant to influence
elections. After all, the ultimate purpose of the project
is to encourage more people to vote for candidates in
federal elections. Accordingly, we cannot agree with the
conclusion of several of our colleagues that the proposed
activity is not for the purpose of influencing federal
elections.
We believe the better approach is to conclude the
proposed activity fits within the Act's exception for
nonpartisan activity designed to encourage individuals to
vote or register to vote. 2 U.S.C. 431(9)(B)(ii). Our
reasoning is based, in large part, on the analysis provided
by the Office of General Counsel in Agenda Document
No. 00-71-C (August 9, 2000) at 5-9.
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 core
issue presented in this Advisory Opinion is whether the
proposed activity by Third Millennium would constitute a
contribution or expenditure as defined by the Act and
Commission regulations. The term "contribution" is defined
as any gift subscription, loan, advance, or deposit of money
or anything of value made by an person for the purpose of
influencing any election for Federal office, and the term
"expenditure" is defined as 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. 2 U.S.C.
431(8)(A)(i) and 431(9)(A)(i); 11 CFR 100.7(a)(1) and
100.8(a)(1); see also 2 U.S.C. 441b(b)(2) and 11 CFR
114.1(a)(1) which provide a similar definition for
"contribution" and "expenditure" with respect to corporate
activity. According to Commission regulations, 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).
Third Millennium's proposal entails the display of
campaign advertisements on a continuous basis to a selected
audience of Internet subscribers. Third Millennium will pay
the ISP for space to display these advertisements. The
study assumes these advertisements very well may influence
the voting behavior of the viewer, including influence as to
whom viewers will vote for or support. Despite the content
of the ads themselves and the contemplated effect on some
viewers, the nature of Third Millennium and of the project
itself calls for an analysis that does not rely simply on
those two circumstances to determine whether Third
Millennium's disbursements for the project will be
contributions or expenditures under the Act.
The Commission recently has examined a number of
activities by entities producing web sites where the viewer
had access to messages supporting candidates for Federal
offices. See Advisory Opinions 1999-25, 1999-24, and 1999-7
at Fed. Elec. Camp Fin Guide (CCH) 6303, 6306 and 6287,
respectively. The web sites were established for the purpose
of promoting voter participation on a nonpartisan basis.
These activities entailed partisan statements from the
candidates about themselves and campaign issues and links
from the web site to the candidates' web sites. In each
situation, the Commission concluded that, even if specific
content on these web sites was for the purpose of
influencing, or in connection with, a Federal election, the
activities fell within an exception in the Act to the
definition of "expenditure," and, therefore, were
permissible under the Act. This provision exempts
"nonpartisan activity designed to encourage individuals to
vote or to register to vote." 2 U.S.C. 431(9)(B)(ii).
In applying the nonpartisan activity exception in such
instances, the Commission focused on both the nature of the
producing entity and the nature of the activity. The
entities included: non-profit corporations that were both
tax exempt under 26 U.S.C. 501(c)(3) and created for
providing information about government and the electoral
process on a nonpartisan basis; a for-profit limited
liability company formed to expand democracy by serving as a
channel between voters and candidates on a nonpartisan basis
which neither was affiliated with, nor accepted advertising
or other sponsoring support from, any candidates, party,
PAC, or advocacy group; and, the Minnesota Secretary of
State. Advisory Opinions 1999-25, 1999-24, and 1999-7,
supra. Although the web sites included such features as
issue statements by candidates, candidate responses to
questions from the public and opposing candidates,
biographies and endorsements provided by the candidates, and
links to candidate web sites, they displayed this
information on a nonpartisan basis.11 For example, all
ballot qualified candidates in a non-presidential race were
invited to participate and equal space and time were made
available to each participating candidate.
We acknowledge the viewers of the ads posted in
connection with Third Millennium's project will not see the
ads in a format indicating they are viewing a web site
designed to present campaign material on a nonpartisan
basis; instead, they will see ads in a manner similar to any
other ads (whether political or not) viewed prior to
accessing their e-mail services. Third Millennium, however,
is prohibited by the Federal tax code from participation or
intervention in political campaigns. Moreover, the purposes
and activities of the organization are not aimed at
influencing the election to political office of any specific
candidates or the candidates of any one political party.
Its general purpose, instead, is to enhance the civic
involvement of young adults, including increased voter
participation, and to focus the nation's attention on issues
affecting young adults.
In addition, the purpose of the Neglection 2000 project
itself is to research the extent of, and reasons for, young
adult apathy toward the political process and to test a
method for reducing this apathy and increasing young voter
participation, regardless of party or ideology. This is
being done on an objective, social science basis. Factual
circumstances surrounding the conduct of the project support
this assessment of the purpose and the methods used to
achieve this purpose. The examination of young adult voting
participation in the primaries was a research study not
aimed at, or conducted for, the promotion of any candidacy
either in the survey questions asked or, as reflected in the
report already issued ("Don't Ask, Don't Vote"), in the
resulting analysis. With respect to the proposed activity,
the effect of the ads on the viewers will not be known until
after the second survey of the viewers is taken, so no
information on the effect of the display of the ads will be
available to the public (including the candidates) until
after the election. Moreover, the facts indicate the
individuals surveyed would be a random universe of
subscribers, they would be divided randomly, and each
individual within a group would see the same ads as the
others of that group. Thus, it appears Third Millennium
will not target the distribution of the ads so as to
increase or diminish support for any particular candidate.
Communications with the campaigns, if any, will be kept to
the minimum necessary to obtain advertisements for display,12
Third Millennium will have the final control over the choice
of the ads, and Third Millennium, not the campaigns, will
have discretion as to how the ads will be distributed. This
is consistent with the concept of the study as research for
nonpartisan purposes.
Finally, it is significant that the proposed project
will include a range of candidates beyond the major party
candidates and will treat all the candidates equally in
obtaining the ads and in their exposure to viewers. In the
cited opinions concerning nonpartisan web sites, viewers
would have the opportunity to see materials from candidates
for a particular Federal office in addition to the two major
party candidates (assuming those candidates chose to
participate). In the case of non-presidential candidates,
all ballot-qualified candidates were invited, and in the
case of presidential candidates, two of the advisory
opinions indicated the web site would include all general
election candidates who were on the ballot in enough states
to win a majority in the Electoral College. Advisory
Opinions 1999-25 and 1999-24, supra. As noted with approval
in those two opinions, this standard for presidential
candidates was consistent with the range prescribed in the
voter guide regulations where there is some minimal contact
between the guide issuer and the candidate. 11 CFR
114.4(c)(5)(ii)(B)(2). Moreover, as noted above, candidates
were provided with equal space availability and time access.
We assume the range of candidates for whom ads will be shown
will include all the general election presidential
candidates who appear on enough state ballots to win an
Electoral College majority.
Based on the foregoing discussion, we concluded Third
Millennium's proposed activity would fall within the
exemption to the definition of expenditure at 2 U.S.C. 431
(B)(9)(ii) and, therefore, would be permissible under the
Act.
_______/sig/_________________
Date: August 25, 2000
Danny Lee McDonald
Vice Chairman
_______/sig/__________________
Date: August 25, 2000
Scott E. Thomas
Commissioner
ADVISORY OPINION 2000-16
THIRD MILLENIUM
CONCURRENCE OF COMMISSIONER SANDSTROM
As a preliminary matter, I have strong concerns about
using an advisory opinion as a forum for interpreting areas
of law that do not relate to the facts presented by the
requester. In doing so, the Commission arguably strays
outside the boundaries Congress established for advisory
opinions.13 Here, where it is undisputed that the proposed
activity will contain express advocacy, I am troubled that
the concurrence of Chairman Wold and Commissioners Mason and
Smith (hereafter, the "Wold concurrence") includes
statements such as "[t]he Act's limitations on uncoordinated
expenditures are constitutionally constrained to apply only
to communications including express advocacy." Although I
feel obligated to point out for the record that the Act also
regulates uncoordinated expenditures that do not include
express advocacy, as in the case of the expenditures of a
political committee (discussed further below), I
respectfully question why we are addressing this issue here,
since the requester has stipulated that its communications
will contain express advocacy. In the future, I would hope
that we could keep such debates to a more appropriate forum,
such as the Commission's rulemaking proceedings, and
constrain our advisory opinions to the interpretation of how
the Act and Commission regulations apply to the specific
transaction or activity at hand, as 2 U.S.C. 437f requires.
That being said, the core issue presented in the
request is whether the activities proposed by Third
Millennium, a 501(c)(3) corporation, would constitute a
contribution or expenditure as defined by the Act and
Commission regulations.14 I write to express agreement with
Chairman Wold and Commissioners Mason and Smith that Third
Millenium's proposed activities are not for the purpose of
influencing an election and therefore do not constitute a
contribution or expenditure under the Act. Although Vice
Chairman McDonald and Commissioner Thomas stated in their
concurrence (hereafter, the "McDonald concurrence") that
they do not agree with this approach and that "the better
approach is to conclude the proposed activity fits within
the Act's exception for nonpartisan activity designed to
encourage individuals to vote or register to vote," see 2
U.S.C. 431(9)(B)(ii), I do not regard these approaches as
mutually exclusive. Some of the items listed as exceptions
to the definition of expenditure, such as the campaign
materials described in section 431(9)(B)(viii), would fall
within the definition of expenditure if they were not
explicitly exempted from it; some exceptions to the
definition of expenditure, however, are merely examples of
activities that fall outside the Act. Non-partisan activity
designed to influence the level of participation in an
election, rather than its outcome is listed as an exception
to the definition of expenditure precisely because it is not
"for the purpose of influencing any election for Federal
office." 2 U.S.C. 431(9)(A)(i). Since I believe that non-
partisan activity would fall outside the definition of
expenditure whether or not it was listed as an exception to
the definition of expenditure, concluding that the proposed
study is permissible either because it falls outside the
definition of expenditure under 2 U.S.C. 431(9)(A)(i) or
because it fits within the exception for non-partisan
activity under section 431(9)(B)(ii) is acceptable to me.15
In concluding that Third Millenium's proposed
activities are not "for the purpose of influencing any
election for Federal office," I agree with the Wold
concurrence that the following aspects of the study's design
were essential to reaching this conclusion:
ú Advertisements will not be targeted demographically or
geographically.
ú Candidates included in the study will be treated
equally in regard to the number of advertisements shown and
the selection of viewers.
ú The anticipated number and dispersion of participants
is such that the study is not at all likely to affect the
outcome of the Presidential race nationally or in any single
state.
In addition to the factors listed above, I consider
several other factors important here. First, as the McDonald
concurrence noted, it is important that no information on
the effect of the display of the ads will be available to
the public until after the election. Second, although I
place much greater weight on the non-partisan structure of
the proposed study than the nature of the entity conducting
the study, I do consider it helpful to the analysis that the
entity conducting the study is a 501(c)(3) corporation that
is conducting this study as part of its ongoing efforts to
research the extent of, and reasons for, young adult apathy
toward the political process and to test a method for
reducing this apathy and increasing young voter
participation. Based on these factors and those listed
above, I conclude that Third Millenium's proposed activities
do not violate the Act.
Although I believe it is unnecessary to address the
issues raised in Buckley in order to evaluate the
applicability of the Act and its regulations to Third
Millenium's proposed activities, I will take this
opportunity to explain why I disagree with the analysis of
Buckley in the Wold concurrence.
As noted in the Wold concurrence, the Buckley Court
imposed an express advocacy requirement on two sections of
the Act that were otherwise unconstitutionally vague or
overbroad.16 However, the Wold concurrence fails to note that
each of these sections applied only to individuals or groups
that were not candidates or political committees. In its
discussion of the express advocacy requirement that arises
from these passages, the Wold concurrence ignores the
distinction in both Buckley and the Act between the
requirements for candidates and political committees, on the
one hand, and all other individuals and groups, on the
other. The reporting and disclosure requirements for
candidates and political committees are primarily entity-
based, whereas the reporting and disclosure requirements for
other individuals and groups are transaction-based. The
Buckley Court's approach to the constitutional concerns
raised by the definition of expenditure tracks this
analytical distinction.
The Buckley Court addressed the constitutional concerns
that arose from the definition of expenditure in the context
of a political committee differently than it did in the
context of independent reporting requirements. Buckley did
not impose an express advocacy requirement on the Act's
applicability to an expenditure of a political committee.
The court did note that "[t]he general requirement that
`political committee' and candidates disclose their
expenditures could raise similar vagueness problems, for
`political committee' is defined only in terms of amount of
annual `contributions' and `expenditures' . . . and could be
interpreted to reach groups engaged purely in issue
discussion." 424 U.S. at 79. However, the court did not
choose to protect such groups by imposing an express
advocacy requirement. Instead, the court stated in dicta
that the definition of political committee "need only
encompass organizations that are under the control of a
candidate or the major purpose of which is the nomination or
election of a candidate." 424 U.S. at 79.17 The court went on
to state, "Expenditures of candidates and of `political
committees' so construed can be assumed to fall within the
core area sought to be addressed by Congress. They are, by
definition, campaign related." 424 U.S. at 79 (emphasis
added). If there were an express advocacy requirement, then
there would not be a need to "assume" anything. Thus here,
unlike in the independent reporting context, once the entity
satisfies the definition of "political committee," its
expenditures become subject to the Act, whether or not
express advocacy is present.
Moreover, I would note that the Buckley Court
explicitly excluded candidates and political committees from
its holding regarding express advocacy:
In summary, 434(e), as construed, imposes independent
reporting requirements on individuals and groups that
are not candidates or political committees only in the
following circumstances: (1) when they make
contributions earmarked for political purposes or
authorized or requested by a candidate or his agent, to
some person other than a candidate or political
committee, and (2) when they make expenditures for
communications that expressly advocate the election or
defeat of a clearly identified candidate.
424 U.S. at 80 (emphasis added). While the Wold concurrence
rightly notes that this express advocacy requirement has
been followed by a number of courts, no court has made
express advocacy a prerequisite to the regulation of
expenditures by political committees under the Act. How
broadly or narrowly "political committee" should be defined
under the Act remains a question long overdue for
clarification, but that is a separate issue from whether or
not each expenditure by a political committee must contain
express advocacy in order to be regulated. For these
reasons, I respectfully disagree in part with the Wold
concurrence.
____(signed)____________________12/15/00
Karl J. Sandstrom Date
Commissioner
_______________________________
1 The request materials indicate that Third Millennium is
"a Generation X organization that undertakes research and
analysis to promote the civic involvement of young people
and to redirect the country's attention from the next
election cycle to the next generational cycle." They
further state that "Third Millennium does not endorse or
oppose any candidate for public office or otherwise engage
in partisan activity."
2 You note that, in an era of steady decline in voter
turnout, the voting rate for young adults is the lowest of
all adult age groups, with only 32% of 18-to-24-year-olds
having voted in the 1996 general election.
3 Third Millennium poses three hypotheses for its research
objective: (1) Among adults surveyed around Labor Day 2000
who indicate they are "not likely" or only "somewhat likely"
to vote, those individuals who subsequently view repeated
presidential candidate Internet ads will end up voting in
higher numbers than those who do not see any ads at all; (2)
Adults ages 18-34 comprise the age cohort most likely to be
persuaded to vote after viewing repeated presidential
candidate Internet ads; (3) While exposure to presidential
candidate Internet advertisements will increase turnout,
this will not be dependent upon whether a viewer sees ads
from one candidate or multiple candidates.
4 The request includes a copy of the report, a USA Today
article on the project by the president of Third Millennium
and a brief article in The New York Times on the report.
The report contains: (1) an analysis of advertising in the
2000 presidential primaries in terms of age group targeting;
(2) a discussion of young primary voter turnout percentages
as compared to turnout by other age groups; (3) an analysis
of data from a survey of potential voters to discern
generational attitudes toward voting and campaigns and use
of the Internet; (4) anecdotal impressions of young adults'
attitudes toward the campaign process; (5) ten categories of
recommendations on how campaigns may more effectively convey
their messages to young adults, including use of the
Internet for advertising; (6) short essays on how best to
encourage young adult voting authored by the advisory board
of Neglection 2000, which consists of persons from other
organizations that analyze the electoral process, media
consultants, pollsters, and academicians; and (7) an
appendix containing data that serves as a basis for the
report.
5 Juno's demographic information from its subscribers
enables Third Millennium to create a detailed aggregate
portrait of the subscribers' interests and behavior.
However, Third Millennium has no access to and no interest
in specific subscribers' demographic and psychographic
information. Additionally, although Juno has access to the
subscribers' phone numbers and home addresses, Third
Millennium will not conduct a telephone or U.S. mail survey
of these subscribers. Rather, demographic and geographic
information will be used generically (i.e., suburban
subscribers voted more than urban voters), not "Jane Doe
from 123 Main Street in Anytown, USA" voted, and Harry Jones
did not.
6 The questionnaire [actual wording not yet finalized] will
ask the following questions:
1. If the election were held today, how likely are you to
vote in the 2000 presidential campaign? [Rotate answers]
a) Not likely
b) Somewhat likely
c) Most likely
2. If you are somewhat likely or very likely to vote, for
whom do you plan to vote? [Rotate answers]
Governor George W. Bush
Vice President Gore
Ralph Nader
Patrick Buchanan
Harry Browne
Other
3. Did you vote in the 1996 presidential campaign?
Yes No
4. How would you describe your party affiliation?
Strong Democrat
Weak Democrat
Independent
Weak Republican
Strong Republican
Other
7 The range of candidates for whom ads will be shown will
include all the general election presidential candidates who
appear on enough State ballots to win an Electoral College
majority.
8 You You also describe the extensive academic scrutiny
already given to Neglection 2000 and the peer review of
project design, methodology, and accuracy that will occur at
the completion of the project.
9 Lower federal courts and state courts have also
consistently struck down efforts to regulate speech that do
not include explicit words of advocacy of the election or
defeat of clearly identified candidates. See e.g. Vermont
Right to Life v. Sorrell, 216 F.3d 264 (2d Cir. 2000);
Clifton v. Federal Election Comm'n, 927 F. Supp. 493 (D. Me.
1996), aff'd on other grounds 114 F.3d 1309 (1st Cir. 1997);
Maine Right to Life Comm. v. Federal Election Comm'n, 98
F.3d 1 (1st Cir. 1996), cert. denied 118 S. Ct. 52 (1997);
Federal Election Comm'n v. Christian Action Network, Inc.,
92 F.3d 1178 (4th Cir. 1996); Faucher v. Federal Election
Comm'n, 928 F.2d 468 (1st Cir. 1991), aff'd 453 U.S. 182
(1991); Federal Election Comm'n v. Central Long Island Tax
Reform Immediately Comm., 616 F.2d 45 (2d Cir. 1980);
Federal Election Comm'n v. Survival Education Fund Inc.,
1994 WL 9658 (S.D.N.Y. Jan. 12, 1994), aff'd in part and
rev'd in part on other grounds, 65 F.3d 285 (2d Cir. 1995);
Federal Election Comm'n v. GOPAC, Inc. 917 F. Supp. 851
(D.D.C. 1996); Federal Election Comm'n v. Colorado
Republican Fed. Campaign Comm., 839 F. Supp. 1448 (D. Colo.
1993), rev'd on other grounds, 59 F. 3d 1015 (10th Cir.
1995), and vacated on other grounds, 116 S. Ct. 2309 (1996);
Federal Election Comm'n v. National Org. For Women, 713 F.
Supp. 428 (D.D.C. 1989); Federal Election Comm'n v. American
Fed'n of State, County & Mun. Employees, 471 F. Supp. 315
(D.D.C. 1979); Washington State Republican Party v. State
Public Disclosure Comm'n, No. 67442-6 (Wash., July 27,
2000); Elections Bd. of Wisconsin v. Wisconsin Mfrs. &
Commerce, 227 Wis. 2d 650 (1999), cert. denied 120 S. Ct.
408 (1999).
10 We do not address the possible application of the Act to
coordinated expenditures that do not include explicit words
of advocacy of the election or defeat of a clearly
identified candidate.
11 This is a brief summary of the features referred to in
the three opinions. The web sites varied in the quantity and
details of the features they provided. Interestingly, these
web sites also contained express advocacy. Even though the
Commission's regulations on non-partisan activity indicate
public communications must avoid express advocacy, see 11
CFR 114.4(c)(2), the Commission in those three prior
advisory opinions involving the Internet approved the
proposed activity. In those opinions, the Commission looked
to the statutory provision which does not contain a ban on
express advocacy and essentially found that express advocacy
could be allowed where there was a balanced, politically
neutral presentation of the material. See 2 U.S.C.
431(9)(B)(ii). Similarly, the presence of express advocacy
material in Advisory Opinion 2000-16 does not eliminate the
use of the non-partisan exemption. This approach recognizes
the proposed activity is designed to influence elections as
well as the politically neutral manner in which it is being
conducted. In our view, the non-partisan activity allowance
is preferable to a conclusion that get-out- the-vote
activity somehow is not election-related and intended to
influence elections.
12 The degree of cooperation with candidates noted in the
request might become legally significant in other
circumstances. As a general rule, an expenditure made at
the request or suggestion of a candidate or in coordination
or cooperation with a candidate must be treated as an in-
kind contribution to such candidate. 2 U.S.C.
441a(a)(7)(B)(i); 11 CFR 109.1(a) and (c). Where, as here,
the activity so clearly fits within the intended scope of
the non-partisan allowance at 2 U.S.C. 431(9)(B)(ii)), the
cooperation contemplated in the request does not pose a
problem. See, by analogy, the Commission's regulations
allowing minimal cooperation with a candidate where other
safeguards showing political neutrality are evident: 11 CFR
114.4(b) (candidate appearance before all employees where
similar opportunity offered to other candidates and no
discussion of candidate's plans, projects, or needs relating
to the campaign); 11 CFR 114.4(c)(5)(ii)(A) (distribution of
voter guides where all candidates can cooperate by providing
information as long as no other contact regarding the
preparation, content, or distribution is involved).
13 See 2 U.S.C. 437f(b), which states, "Any rule of law
which is not stated in this Act or in chapter 95 or chapter
96 of title 26 may be initially proposed by the Commission
only as a rule or regulation pursuant to procedures
established in section 438(d) of this title. No opinion of
an advisory nature may be issued by the Commission or any of
its employees except in accordance with the provisions of
this section."
14 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" is defined as 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, and the term "expenditure" is defined as 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.
2 U.S.C. 431(8)(A)(i) and (9)(A)(i); 11 CFR 100.7(a)(1)
and 100.8(a)(1); see also 2 U.S.C. 441b(b)(2) and 11 CFR
114.1(a)(1) which provide a similar definition for
"contribution" and "expenditure" with respect to corporate
activity. According to Commission regulations, 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).
15 Since my colleagues discuss 11 CFR 114.4(c)(2) in their
respective concurrences, I would note that this regulation
applies to communications to the general public and thus
would not be applicable to Third Millenium's proposed study,
even if the study did not include express advocacy.
16 See Buckley v. Valeo, 424 U.S. 1, 43-44 and 424 U.S. at 80
(1976). I would also note that those two sections are no
longer part of the Act.
17 See also Federal Election Commission v. Massachusetts
Citizens for Life Inc., 479 U.S. 238 (1986), in which the
court, referencing Buckley, provided similar dicta:
"[S]hould MCFL's independent spending become so extensive
that the organization's major purpose may be regarded as
campaign activity, the corporation would be classified as a
political committee." 479 U.S. at 262 (citation omitted).