I 

FEDERAL ELECTION COMMISSION 

WASHINGTON, D C 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

SENSITIVE 

In the Matter of 1 

1 

Senator Barbara Boxer, 1 

Senator Dianne Feinstein, 1 

Representative Nancy Pelosi, and 1 

Phil Angelides 1 

MUR 5711 

STATEMENT OF REASONS OF CHAIRMAN ROBERT D. LENHARD, 

VICE CHAIRMAN DAVID M. MASON AND 

COMMISSIONERS HANS A. von SPAKOVSKY AND STEVEN T. WALTHER 

The complaint in this matter alleged that Senators Boxer and Feinstein, Representative Pelosi, and 

Phil Angelides violated the Federal Election Campaign Act (“FECA” or the “Act”), 2 U.S.C. 0 431 et seq., 

by soliciting funds in connection with a non-federal election in amounts that exceed the limits in the FECA.’ 

The Commission voted 5-0 to approve recommendations to: (1) find no “reason to believe” Senator Boxer, 

Senator Feinstein, and Representative Pelosi violated 2 U.S.C. fj 441a(a) and 11 C.F.R. 300.61; (2) dismiss 

the allegation that Phil Angelides violated the Act by aiding and abetting Senator Boxer, Senator Feinstein, 

and Representative Pelosi’s alleged violation of 2 U.S.C. 5 441i(e); and (3) close the file? The Commission, 

however, voted 5-0 to reject recommendations from the Office of General Counsel to dismiss the allegation 

that Senator Barbara Boxer, Senator Dianne Feinstein, and Representative Nancy Pelosi violated 2 U.S.C. tj 

441i(e) and 11 C F R. 6 300 62, and instead voted to find no “reason to believe” that they violated the Act.3 

We wnte separately to explam our reasons for this decision. 

, 

I. BACKGROUND 

This matter concerns the solicitation of fimds on the campaign website of California gubernatorial 

candidate Phil Angelides. See http://m angelides com (visited March 2006). The homepage included 

individual photographs of Senator Barbara Boxer, Senator Dianne Feinstein, Representative Nancy Pelosi, 

and California Assembly Speaker Fabian Nuiiez under the heading “Campaign Co-Chairs,” with each 

’ Compl at 1 (March 6,2006) 

Voting affirmatively were Chairman Lenhard, Vice Chaman Mason, and Comrmssioners Toner, von Spakovsky and Walther 

Comssioner Weintraub recused herself from the matter ’ A determnation of “reason to believe” a violation has occurred will be issued when the available information provides a basis for 

proceeding with the matter Such determnations do not establish that a respondent violated the Act The Commission finds no “reason 

to believe” when the complaint, any i esponse filed by the respondent, and any publicly available information, when taken together, fail to 

give rise to a reasonable inference that a violation has occurred. or even if the allegations were true, would not constitute a vlolation of 

the law In contrast, the Comssion will elect to dismss a matter when it does not merit fiuther use of Comrmssion resources even 

though there may be reason to believe that a violation may have occurred ‘,See Comrmssion Action in Matters at the Inihal Stage in the 

Enforcement Process (F E C Feb 27,2007): avuzlubZe ut http //www fec gov/agenda/2007/mtgdoc07-14 pdf (visited March 13,2007) 
1 -8 1 

Statement of Reason in MUR 57 

8 

Page 2 of 6 

identified by name and ofice held? Also included on the homepage were links labeled “Meet Phil,” “Get 

Involved,” “Issues,” “Endorsements,” “Media Center,” “Volunteer Center,” “Store,” “Join,” “Contnbute,” 

“Volunteer,” “Contact Us,” “Community Pages,” and “Endorse Phil.”’ Clicking the “Contribute” link 

redirected the reader to a separate web page that provided instructions on how to make a contribution to the 

Angelides campaign6 This separate web page, which did not contain the names or likenesses of the federal 

officials, contained boxes for an individual to indicate his or her commitment to contnbute between $25 and 

$22,300 to Angelides 2006. At the bottom of the “Contnbute” web page, this statement appeared inside a 

box: 

Angelides 2006 is a committee formed to support Phil Angelides’s campaign for Governor of 

California in 2006. Under California and Federal law, Angelides 2006 may accept 

contributions of up to $22,300 per election for the pnmary and general elections from 

individuals, businesses, corporations, unions, PACs and small contributor committees. 

Contributions from foreign nationals are prohibited, unless an individual is lawhlly admitted 

for permanent residence in the United States . 

The complainant alleged that Respondents violated the “soft money” prohibitions enacted in the I 

Bipartisan Campaign Refonn Act (“BCRA”), specifically, 2 U.S.C. 55 441i(e)(l)(A) and (B) and 11 C.F.R. 

$9 300 61 and 300 62, which prohibit federal candidates, officeholders, and their agents (“covered 

individuals”) from soliciting funds in connection with any non-federal election unless the hnds are in 

amounts that do not exceed the Act’s contribution limits and do not come from prohibited sources. 

11. DISCUSSION 

Pursuant to the FECA, covered individuals may not solicit, receive, direct, transfer or spend finds in 

connection with either federal or non-federal elections, unless the finds comply with federal contribution 

limits, source restnctions, and reporting requirements. See 2 U.S C. $5 441i(e)( l)(A) and (B) and 1 1 C.F.R. 

$8 300.61 and 300.62. Specifically, a covered individual, whether in conqection with a federal or nonfederal election, may not raise hnds from any person that exceed 8 limit of $2,300 per election per 

candidate,’ and may not raise funds from corporations or labor organizations At all times relevant to this 

matter, the Commission defined the tenn “solicit” to mean “to ask that another person make a contribution, 

donation, transfer of hds, or otherwise provide anything of value whether the contribution, donation, 

transfer of funds, or thing of value, is to be made or provided directly, or through a conduit or intermediary.” 

http //www angelides com (unless otherwise noted, all Internet sites visited March 6,2006) 

After the filing of the complaint, the format of the homepage changed Senators Boxer and Feinstein, Representative Pelosi, and 

Mr Nuiiez were no longer identified as “Campaign Co-Chairs” and their pictures were moved below new language stating “Join 

California’s Democratic leaders -Sign your name to show your support ” See http //www angelides corn (vis!ted May 3,2006) 

The format of the homepage changed again and most recently identified Senators Boxer and Feinstein, Representative Pelosi, and 

Mr Nuiiez as “Campaign Co-Chairs” on a separate webpage titled “Endorsements ” See http //ww angelides corn (visited 

November 9,2006) ’ http //www angelides com 

Id Additionally, a rotating banner at the top of the homepage contained a picture of Mr Angelides with Senators Boxer and 

Representative Pelosi See Compl at 3 Below the rotating banner were web lmks to other parts of the website labeled “Jom,” 

“Contribute,” “Volunteer,” “Contact Us.” “Community Pages,” and “En Espanol ” Clicking the “Contribute” link redlrected the 

reader to the separate webpage noted above that sought and allowed the making of a donation in amounts between $25 and 

$22,300 See http.//www angelides corn 

* At the time of the alleged violation, the individual contribution limt was $2,100 

7 

8 
I * -. 

1 

. Statement of Reason in MUR 571 

Page 3 of 6 

See 11 C.F.R. 5 300.2(m).’ 

1 The Commission has interpreted the solicitation prohibition at issue through several advisory 

opinions. See, e g., A0 2003-03 (Cantor), A0 2003-36 (Republican Governors Association (“RGA”)), 

2003-37 (Americans for a Better Country (“ABC”)). The Commission’s opinion in Cantor proves instructive 

to the questions presented here. 

A. The Cantor Advisory Opinion 

In Cantor, the Commission explained that covered individuals must comply with the FECA’s 

solicitation restrictions if they solicit contnbutions for federal or non-federal campaigns. Four operating 

pnnciples mse out of the Cantor advisory opinion. m 

ed 

F-4 

Pki 

Ft 

p;f” 

v 

C3 

First, a covered individual may appear in wntten solicitations in connection with the election of state 

candidates, so long as the solicitation is expressly and entirely limited to amounts and from sources that 

comply with the Act’s contnbution limits and source prohibitions. See A0 2003-03. 

’ Second, if a wntten solicitation in connection with the election of state candidates asks for 

contributions, but does not specify an amount, a covered individual may appear in the written solicitation 

provided it contains express language stating that the federal officeholder or candidate is only soliciting 

amounts that comply with the Act’s contnbution limits and source prohibitions. I. 

h* 

tw 

Third, if a wntten solicitation in connection with the election of state candidates explicitly asks for - donations of funds in amounts exceeding the Act’s contnbution limits or from prohibited sources, then a 

covered individual may not appear in the solicitation regardless of whether there is an express statement 

limiting the covered individual’s solicitation to hnds that comply with the amount limits and source 

prohibitions of the Act.’’ Id 

Fourth, a plain reading of Cantor leads to a final conclusion: a covered individual may freely assent 

to include his or her name or likeness in pre-event publicity that does not amount to a solicitation. This 

remains true even if separate, additional pre-event publicity is generated that would constitute a solicitation, 

but which otherwise lacks the covered individual’s name or likeness. Id 

B. The RGA and ABC Advisory Opinions 

The Commission again considered the involvement of covered individuals in fimdraising for nonfederal elections in the RGA Opinion See A0 2003-36. There, the question posed was whether a covered 

individual could have his or her name appear as the featured guest or speaker on written solicitations for a 

Subsequent to the activity at issue here, the Comssion revised the defimtion of “solicit” with an effective date of April 19,2006 See 

71 Fed Reg 13,926 (Mar 20,2006) However, the Comrmssion does not apply substantive regulations retroactively cf Robertson v 

FEC, 45 F 3d 486,490 (D C Clr 1995) (citing Landgraf v US1 Film Prods 5 1 1 U S 244, , 1 14 S Ct 1483,1502 (1 994)), In re 

Mzssourz State Dernocratrc Comm Matters Under Review 483 1 & 5274, Statement of Reasons of Comm’r Toner at 2 (F E C Dec 4, 

2003), available at http //eqs sdrdc com/eqsdocs/00000704 pdf (visited March 12,2007). See also Shuys v FEC, 337 F Supp 2d 28,93 

(D D C 2004) (noting that the Comssion had concluded the Bipartisan Campaign Reform Act of 2002 (“BCRA”) “should not be 

interpreted in a manner that penalizes people for the way they ordered their affairs before the effective date of BCRA This w11 help 

ensure that BCRA is not enforced in a retroacbve manner with respect to activities that were legal when performed ” (quoting Prohibited 

and Excessive Contributions, 67 Fed Reg 49064,49084 (2002))), urd on other grounds, 414 F 3d 76 (D C Cir 2005). 

lo Comssioner von Spakovsky disagrees with the thrd principle of Cantor and its continued application However, this 

disagreement does not affect the analysis or outcome of this matter 
,‘ 

Statement of Reason in MUR 

Page 4 of 6 

fundraising event. The Commission explained that “Section 441i(e)(l) and section 300.62 do not apply to 

publicity for an event where that publicity does not constitute a solicitation or direction of non-Federal funds 

by a covered individual,, nor to a Federal candidate or officeholder merely because he or she is a featured 

guest at a non-Federal hndraiser.” Id. 

Similarly, in ABC, which primarily addressed the allocation of expenses by nonconnected committees 

and was superseded when the Commission enacted new regulations regarding the allocation of certain 

expenses (see 69 Fed. Reg 68,056,68,063 (Nov. 23,2004)), the requestor asked if federal officeholders or 

candidates could be named in written invitations as “honored guests” or “featured speakers” at fundraising 

events for ABC’s non-federal account. See A0 2003-37. The Commission reasoned that: 

See id, 

.. 

if a candidate agrees or consents to be named in a fundrasing solicitation as an honored 

guest, featured speaker or host, or if the invitation constitutes a solicitation for any other 

reason, then the solicitation must contain a clear and conspicuous statement that the entire 

solicitation is limited to funds that comply with the amount limits and source prohibitions of 

the Act. 

(Response to Question 18). 

C. Analysis 

The Commission has not directly addressed the factual circumstances raised here in earlier advisory 

opinions. The specific question rased in this case - whether, under the Act, federal officeholders and 

candidates are permitted to appear in websites that include solicitations for non-federal hds - was not 

asked or answered in the earlier advisory opinions. In this instance, the complaint involves two 

distinguishing features. First, the communications were featured on the Internet. Second, the covered 

individuals were referenced as “Campaign Co-Chairs.” While the Commission has not directly confronted 

the specific facts presented before it now, the guidelines established in the Cantor, RGA, and ABC advisory 

opinions provide persuasive guidance here. 

As established by Cantor, a covered individual’s agreement to endorse a non-federal candidate in 

pre-event publicity does not, by itself, establish a solicitation. See A0 2003-03. Rather, the Commission has 

applied a two-factor test since 2003 to determine whether a communication qualifies as a solicitation. First, 

the Commission will inquire whether the pre-event publicity alone constitutes a solicitation. Id. Second, the 

Commission will determine whether the covered individual “approved, authonzed, or agreed or consented to 

the use of his or her name or likeness in publicity, and that publicity contains a solicitation for donation^."'^ 

Id 

The Internet homepage in question here featunng the names and likenesses of the Respondents along 

with a vanety of information, text and links, including a single hyperlink featuring the word “contribute,” 

does not constitute a solicitation. In short, the Angelides campaign homepage featured a wide vanety of 

l3 Here, the Respondents could not recall any request to use thelr name or likeness on the campaign homepage See Joint Response 

at 1-2 , Joint Supplemental Response at 1 
-: . I* 

. ’ Statement of Reason in MUR 

Page 5 of 6 

information and links in addition to the Respondents’ names and likenesses. Along with several other links, 

visitors could select the “contribute” hyperlink, which would take them to a separate page where 

contributions could be collected. In the context of the Internet, the “contribute” button alone, when included 

among a vanety of links, does not constitute a solicitation because it does not itself provide any address or 

other mechanism by which contributions can be made and because additional volitional action by the person 

viewing the page is required to obtain information about how to contribute, amounts sought, and other 

requirements. 

I 

Subsequent to the activity at issue here, the Commission revised the definition of “solicit” with an 

effective date of Apnl 19,2006. See 71 Fed. Reg. 13,926 (Mar 20,2006). In the Commission’s 

Explanation and Justification, it noted that “a communication does not become a solicitation simply by 

providing a mailing address, phone number, or Web address unless the address or number is specifically 

dedicated to facilitating the making of a contnbution or donation.” Id at 13,93 1. Indeed, under the newly 

promulgated definition of “solicit,” a communication is a solicitation if it “is specifically dedicated to 

facilitating the making of a contnbution or donation, or automatically redirects the Internet user to such a 

page, or exclusively displays a link to such a page.” Id. at 13,934. The Angelides homepage in question 

here was not specifically dedicated to the making of contributions, nor did it automatically redirect users to a 

donation solicitation page, nor did it exclusively display a link to such a page. Instead, it provided visitors 

with a variety of hyperlinks and information about the candidate, his campaign, and his stance on issues - 

facts which preclude a determination that the homepage constituted a solicitation. 

As established by Cantor and RGA, the relevant inquiry is whether or not the publicity “constitutes a 

solicitation for donations in amounts exceeding the Act’s limitations or fiom sources prohibited from 

contributing under the Act.” Id Because the Angelides homepage in question was not specifically dedicated 

to making donations, and did not automatically or exclusively direct viewers to such a page to donate, it is 

not a solicitation. The descnptive title of one hyperlink, “contribute,” is insufficient to transform the 

Angelides homepage into a solicitation itself. Rather, the “contnbute” hyperlink merely serves to inform 

readers that clicking on the link will take them to a separate webpage where a solicitation will occur. 

The mere presence of a solicitation on a secondary webpage does not transform other connected 

campaign webpages into solicitations. Here, the homepage in question referenced the Respondents in their 

ceremonial role as campaign co-chairs of the Angelides campaign. The simple display of covered 

individuals’ names or likenesses on the homepage of a campaign website that includes one “contnbute” link 

does not constitute a solicitation by the covered individuals. 

The separate contnbution page of the Angelides website constituted a solicitation of non-federal 

funds, and had the federal oficeholders approved, authonzed, or agreed or consented to the use of their 

names or likenesses in that solicitation, e g , on the contnbution page, we would be presented with a far 

different matter. Significantly, the federal officeholders’ names or likenesses did not appear on the separate 

contribution webpage. Because they were only featured on the homepage of the Angelides website, and 

because that homepage is not a solicitation, there is no reason to believe a violation of 2 U.S.C 65 

441i(e)(l)(A) and (B) and 11 C.F.R. 5 300.62 has occu~~ed.’~ 

Is As to allegations that the Respondents violated 2 U S C 0 441a(a) and 11 C F R 0 300 61, the complalnt does not contain any 

factual support for the allegation that they personally made any contributions in excess of the lirmts set forth in 2 U S C 0 44 I a(a) 

nor solicited, received, directed, transferred, spent. or disbursed funds in connection with an election for federal office, including 

finds for any federal election activity, as prohibited under 11 C F R 0 300 61 
b 

L+ 

, ‘Statement of Reason in MUR 57 

c Page 6 of 6 

D. Angelides 

The complainan,t also alleged that Phil Angelides aided and abetted Senators Boxer and Feinstein and 

Representative Pelosi in violating the ‘‘soft money” prohibitions enacted in the BCRA, specifically, 2 U.S.C. 

9 441i(e) and 11 C.F.R. 0 300 62, which prohibit federal candidates and officeholders from, among other 

things, soliciting hnds in connection with any non-federal election unless the funds are in amounts that do 

not exceed the Act’s contnbution limits and do not come fiom prohibited sources. 

Because the federal officials did not violate BCRA, Angelides cannot be held liable for giding and 

abetting any violation. See In re Sealed Case, 223 F 3d 775,779 (D C.Cir. 2000). Further, the Act does not 

impose liability for aiding and abetting another individual or entity in violating 2 U.S.C. fj 441i(e). The 

Commission therefore dismisses the aspect of the complaint that contains the allegation that Phil Angelides 

violated the Act by aiding and abetting Senators Boxer and Feinstein and Representative Pelosi in raising 

donations in mounts exceeding the contribution limits of the Act. 

111. CONCLUSION 

For the foregoing reasons, the Commission has determined to: (1) find no “reason to believe” Senator 

Boxer, Senator Feinstein, and Representative Pelosi violated 2 U.S.C. 5 441a(a), 2 U.S.C. 5 441i(e) and 11 

C.F.R. tj 300 61 and 11 C.F R. § 300.62; (2) dismiss the allegation that Phil Angelides violated the Act by 

aiding and abetting Senator Boxer, Senator Feinstein, and Representative Pelosi’s alleged violation of 2 

U.S.C 5 441i(e); and (3) close the file. 

September 20,2007 

RobertD Lenhard 6avid M. Mason 

Chairman Vice Chairman 

Steven T. Walther 

C ommi s si on er Commissioner