.RECEIVED

• -DERAL ELECTION

COMMISSION

ADVISORY OPINION 2000-16 "Cr :"

5 RIAT

THIRD MILLENIUM 2000 AUG 2M P 2- llO

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); 1 1 CFR 1 14.2(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); 1 1 CFR 100.7(a)(l) and 100.8(a)(l); see also 2

U.S.C. §441b(b)(2) and 1 1 CFR 1 14.1(a)(l) 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. 1 1 CFR

100.7(a)(l)(iii)(A) and 100.8(a)(l)(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 candidates) . . .." 1 1 CFR 1 14.4(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 1 1 CFR 1 14.4(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
AO 2000-16, Concurrence of Chairman Wold and Commissioners Mason and Smith

p. 2

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,"1 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,2 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).

1

 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), off-don other grounds 114 F.3d 1309 (1* Cir. 1997); Maine Right to Life

Comm. v. Federal Election Comm'n, 98 F.3d 1 (lrt 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 (1* Cir. 1991), ajfd 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), ajfd in part and rev 'd

in part on other grounds, 65 F.3d 285 (2d Cir. 1995); Federal Election Comm'n v. GOP AC, 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'don 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).

2

 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.
AO 2000-16, Concurrence of Chairman Wold and Commissioners Mason and Smith

P- 3

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
AO 2000-16, Concurrence of Chairman Wold and Commissioners Mason and Smith

p. 4

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.

Date DarylR.VG»W

Chairman

Date ' David M. Mason

Commissioner

Date Bradley AfS

Commissioner