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
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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 electionrelated 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. §43 l(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)(l) and

100.8(a)(l); see also 2 U.S.C. §441b(b)(2) and 11 CFR 114.1(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. 11 CFR

100.7(a)(l)(iii)(A) and 100.8(a)(l)(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
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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) ffif 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
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nonpartisan basis.1 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

1

 This is a brief summary of the features referred to in the three opinions. The web sites varied in die

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(9XB)(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-outthe-vote activity somehow is not election-related and intended to influence elections.
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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,2 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

2

 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)(BXO; 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)(BXii)), 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
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contact between the guide issuer and the candidate. 11 CFR 114.4(c)(5XiiXB)(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.

Date Danny Lee McDonald

Vice Chairman

Date Scott E. Thomas

Commissioner

114.4(cX5X»)(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).