July 2011 Federal Election Commission Volume 37, Number 7

Table of Contents

(continued on page 2) (continued on page 4)

Reports

1 July Reporting Reminder

 Court Cases

1 Carey v. FEC

4 The Real Truth About Obama, Inc. 

v. FEC and U.S. Department of 

Justice

3 2011 Combined Federal/State 

Disclosure Directory Now 

Available

 

6 Advisory Opinions

 Commission

12 Agency Procedure for Document 

and Information Disclosure During 

Enforcement

 

 Outreach

13 FEC to Host Reporting and 

E-Filing Workshops in July

13 Index

Reports Court Cases

July Reporting Reminder

The following reports are due in 

July:

•	 All principal campaign committees of House and Senate candidates must file a quarterly report 

by July 15, 2011. The report covers financial activity from April 1 

(or the day after the closing date 

of the last report) through June 

30;

•	 Principal campaign committees

of Presidential candidates must 

file a report by July 15, if they are 

quarterly filers (the report covers 

financial activity from April 1 

through June 30), or by July 20, 

if they are monthly filers (the report covers activity for the month 

of June); and

•	 National party committees, political action committees (PACs) following a monthly filing schedule 

and state, district and local party 

committees that engage in reportable federal election activity must 

file a monthly report by July 20. 

This report covers activity for 

the month of June. Other PACs 

and party committees must file a 

Mid-Year Report by July 31 (the 

report covers financial activity 

from January 1 through June 30).

Carey v. FEC

On June 14, 2011, the U.S. District Court for the District of Columbia granted a limited preliminary 

injunction to Plaintiffs Rear Adm. 

(Ret.) James J. Carey, Kelly S. Eustis 

and the National Defense Political 

Action Committee (NDPAC) (collectively, “Plaintiffs”) enjoining the 

Commission from enforcing certain 

provisions of the Federal Election 

Campaign Act (the Act) which limit 

the amount of contributions individuals may make and that NDPAC 

may accept into a separate bank 

account for the purpose of making 

independent expenditures.

Federal Election Campaign Law

The Act imposes contribution 

limits on the sources and amounts 

of contributions that may be made 

by individuals and groups to federal 

candidates, political party committees and political action committees 

(PACs). Currently, the Act limits 

contributions from individuals to 

PACs to $5,000 per calendar year. 

2 U.S.C. §441a(a)(1)(C). Additionally, the Act limits the total amount 

of contributions that an individual 

may make to all committees during a two-year period, beginning on 

January 1 of an odd-numbered year 

and ending on December 31 of the 
Federal Election Commission RECORD July 2011

2

Federal Election Commission

999 E Street, NW

Washington, DC 20463

800/424-9530 (Toll-Free)

202/694-1100 (Information Div.)

202/501-3413 (FEC Faxline)

202/219-3336 (TDD for the

 hearing impaired)

Cynthia L. Bauerly, 

 Chair

Caroline C. Hunter, 

 Vice Chair

Donald F. McGahn II, 

 Commissioner

Matthew S. Petersen,

 Commissioner

Steven T. Walther,

 Commissioner

Ellen L. Weintraub, 

 Commissioner

Alec Palmer,

 Acting Staff Director

Christopher Hughey, 

 Acting General Counsel

Published by the Information

 Division of the Office of 

 Communications

Greg J. Scott, 

 Assistant Staff Director

Amy L. Kort,

 Deputy Assistant Staff Director

Myles G. Martin, 

 Editor

http://www.fec.gov

Reports

(continued from page 1)

(continued on page 3)

Notification of Filing Deadlines

In addition to publishing this 

article, the Commission notifies 

committees of filing deadlines on its 

website, via its automated Faxline 

and through reporting reminders 

called prior notices. Prior notices are 

distributed exclusively by e-mail. 

For that reason, it is important that 

every committee update its Statement of Organization (FEC Form 1) 

to disclose a current e-mail address. 

To amend Form 1, electronic filers 

must submit Form 1 filled out in its 

entirety. Paper filers should include 

only the committee’s name, address, 

FEC identification number and the 

updated or changed portions of the 

form.

Treasurer’s Responsibilities

The Commission provides reminders of upcoming filing dates as 

a courtesy to help committees comply with the filing deadlines set forth 

in the Federal Election Campaign 

Act and Commission regulations. 

Committee treasurers must comply 

with all applicable filing deadlines 

established by law, and the lack of 

prior notice does not constitute an 

excuse for failing to comply with 

any filing deadline. Accordingly, 

reports filed by methods other than 

Registered, Certified or Overnight 

Mail (see below), or electronically, 

must be received by the Commission’s (or the Secretary of the Senate 

Public Records Office’s) close of 

business on the last business day 

before the deadline.

Filing Electronically

Under the Commission’s mandatory electronic filing regulations, 

individuals and organizations that 

receive contributions or make expenditures, including independent 

expenditures, in excess of $50,000 

in a calendar year—or have reason to expect to do so—must file 

all reports and statements with the 

FEC electronically.1 Reports filed 

electronically must be received and 

validated by the Commission by 

11:59 p.m. Eastern Time on the applicable filing deadline. Electronic 

filers who instead file on paper or 

submit an electronic report that does 

not pass the Commission’s validation program by the filing deadline 

will be considered nonfilers and may 

be subject to enforcement actions, 

including administrative fines. 11 

CFR 104.18(e).

Senate committees and other 

committees that file with the Secretary of the Senate are not subject to 

the mandatory electronic filing rules, 

but may, in addition to their filing 

with the Secretary of the Senate, file 

an unofficial copy of their reports 

with the Commission in order to 

speed disclosure.

On April 5, the Commision released a new version of the Commission’s free electronic filing software, 

FECFile, which is available for 

download from the FEC website at 

http://www.fec.gov/elecfil/updatelist.

html. Current FECFile users need 

only open their software and accept the automatic update to Format 

Version 7. Reports filed in previous formats will not be accepted. 

Filers may also use commercial or 

privately developed software as long 

as the software meets the Commission’s format specifications, which 

are available on the Commission’s 

website. Committees using commercial software should contact their 

vendors for more information about 

the Commission’s latest software 

release.

Timely Filing for Paper Filers

Registered and Certified Mail.

Reports sent by Registered or Certified mail must be postmarked on or 

before the mailing deadline to be 

considered timely filed. A committee sending its reports by Certified 

or Registered mail should keep its 

mailing receipt with the U.S. Postal 

Service (USPS) postmark as proof 

of filing because the USPS does 

not keep complete records of items 

sent by Certified mail. See 2 U.S.C. 

§434(a)(5) and 11 CFR 104.5(e) and 

100.19.

1 The regulation covers individuals and 

organizations required to file reports of 

contributions and/or expenditures with 

the Commission, including any person 

making an independent expenditure. 

Disbursements for “electioneering 

communications” do not count toward 

the $50,000 threshold for mandatory 

electronic filing. 11 CFR 104.18(a).
July 2011 Federal Election Commission RECORD

3

Reports

(continued from page 2)

2011 Combined 

Federal/State 

Disclosure Directory 

Now Available

 The 2011 edition of the 

Combined Federal/State 

Disclosure and Election 

Directory is now available on the 

Commission’s website (www.

fec.gov). This directory identifies 

the federal and state agencies 

responsible for the disclosure 

of campaign finances, lobbying, 

personal finances, public 

financing, candidates on the 

ballot, election results, spending 

on state initiatives and other 

financial filings.

 The Directory is available at 

http://www.fec.gov/pubrec/cfsdd/

cfsdd.shtml. Printed editions of 

the Directory are also available. 

To order a copy, please contact the 

FEC’s Public Disclosure Division 

at 800/424-9530 or 202/694-1120.

Overnight Mail. Reports filed via 

overnight mail2 will be considered 

timely filed if the report is received 

by the delivery service on or before 

the mailing deadline. A committee 

sending its reports by Express or Priority Mail, or by an overnight delivery service, should keep its proof of 

mailing or other means of transmittal 

of its reports. See 2 U.S.C. §434(a)

(5) and 11 CFR 104.5(e), 100.19 and 

111.35(b).

Other Means of Filing. Reports 

sent by other means—including first 

class mail and courier—must be received by the FEC (or the Secretary 

of the Senate Public Records Office) 

before close of business on the filing 

deadline. See 11 CFR 100.19 and 

104.5(e).

Paper forms are available for 

downloading at the FEC’s website 

(http://www.fec.gov/info/forms.

shtml) and from FEC Faxline, the 

agency’s automated fax system 

(202/501-3413). The 2011 Reporting Schedule is also available on the 

FEC’s website (http://www.fec.gov/

info/report_dates_2011.shtml), and 

from Faxline. For more information on reporting, call the FEC at 

800/424-9530 or 202/694-1100.

Presidential Campaign 

Committees

The Commission recently updated the disclosure form used by 

Presidential candidates—FEC Form 

3P—to make it more consistent with 

the disclosure forms used by other 

candidates, party committees and 

political action committees. Specifically, the Commission added to the 

Detailed Summary Page lines 17(a)

(i) and (ii) for itemized and unitemized contributions from individuals 

and persons other than political committees. Presidential candidates must 

use the revised form for all reports 

due on or after April 15, 2011. Paper 

filers may download the updated 

Form 3P from the FEC’s website 

at http://www.fec.gov/info/forms.

shtml#candidates.

State, District and Local Party 

Committees

State, district and local party 

committees that engage in certain 

levels of “federal election activity” 

must file on a monthly schedule. See 

11 CFR 300.36(b) and (c)(1). Committees that do not engage in reportable “federal election activity” may 

file on a semi-annual basis in 2011. 

See 11 CFR 104.5(c)(2)(i).

National Party Committees

National committees of political 

parties must file on a monthly schedule in all years. 2 U.S.C. §434(a)(4)

(B) and 11 CFR 104.5(c).

Political Action Committees

PACs (separate segregated funds 

and nonconnected committees) that 

filed on a quarterly basis in 2010 

file on a semi-annual basis in 2011. 

11 CFR 104.5(c)(2). Monthly filers 

continue on the monthly schedule. PACs may change their filing 

schedule, but must first notify the 

Commission in writing. Electronic 

filers must file this request electronically. A committee may change its 

filing frequency only once a year, 

after giving notice of change in 

filing frequency to the Commission. The committee will receive a 

letter indicating the Commission’s 

acknowledgment of the request. All 

future reports must follow the new 

filing frequency. 11 CFR 104.5(c).

Disclosure of Lobbyist Bundling 

Activity

Campaign committees, party 

committees and leadership PACs 

may need to file FEC Form 3L in 

July if they receive two or more 

bundled contributions from lobbyists/registrants or lobbyist/registrant 

PACs that aggregate in excess of 

$16,200 during the applicable covered period. 11 CFR 104.22(a)(5)(v). 

See the January 2011 Record, page 

9, for more information.

Additional Information

For more information on 2011 

reporting dates:

•	 See the reporting tables in the

January 2011 Record;

•	 Call and request the reporting

tables from the FEC at 800/424-

9530 or 202/694-1100;

•	 Fax the reporting tables to

yourself using the FEC’s Faxline 

(202/501-3413, document 586); 

or

•	 Visit the FEC’s web page at

http://www.fec.gov/info/report_

dates_2011.shtml to view the 

reporting tables online.

—Elizabeth Kurland

2

“Overnight mail” includes Priority or 

Express Mail having a delivery confirmation, or an overnight service with 

which the report is scheduled for next 

business day delivery and is recorded in 

the service’s online tracking system.
Federal Election Commission RECORD July 2011

4

Court Cases

(continued from page 1)

next even-numbered year. 2 U.S.C. 

§441a(a)(3). 

Recent Supreme Court and D.C. 

Circuit Court cases have partially 

invalidated certain provisions of the 

Act with respect to the limits placed 

on contributions made to pay for 

independent expenditures. See Citizens United v. FEC, 130 S. Ct. 876 

(2010) and SpeechNow.org v. FEC, 

599 F. 3d. 686 (D.C. Cir. 2010). The 

Act defines an independent expenditure as an expenditure for a communication by a person “expressly 

advocating the election or defeat of 

a clearly identified [federal] candidate” and that is not made in concert 

or cooperation with or at the request 

or suggestion of such candidate, the 

candidate’s campaign committee, 

or their agents, or a political party 

committee or its agents. 2 U.S.C. 

§431(17). These courts have found 

that limits on contributions used 

for independent expenditures are 

unconstitutional because limiting 

them violates the First Amendment 

rights of prospective contributors 

and recipients.

Background

Admiral Carey is the founder 

and treasurer of NDPAC, which 

raises funds pursuant to the Act’s 

amount and source limitations and 

makes contributions to candidates 

for federal office up to the applicable limit and also plans to make 

independent expenditures in support 

of or in opposition to federal candidates. Plaintiff Kelly S. Eustis is a 

potential contributor to NDPAC who 

would like to contribute more than 

the amount currently allowed toward 

NDPAC’s planned independent expenditures in federal campaigns.

NDPAC requested an advisory 

opinion from the Commission in 

August, 2010, asking whether it 

would be lawful for NDPAC to accept unlimited contributions for the 

purpose of making independent expenditures into a bank account that 

was separated from funds it used 

to make campaign contributions. 

The Commission failed to issue a 

binding advisory opinion by the 

required four affirmative votes. On 

January 31, 2011, the Plaintiffs filed 

a complaint and motion for preliminary injunction in the District Court 

for the District of Columbia, seeking to enjoin the Commission from 

enforcing 2 U.S.C. §§441(a)(1)(C) 

and 441a(a)(3) against the Plaintiffs 

should NDPAC and Admiral Carey 

solicit and receive contributions in 

excess of the Act’s limits and/or 

should Mr. Eustis contribute more 

than currently allowed.

Legal Analysis

The District Court held that the 

Plaintiffs have a high likelihood 

of partial success on the merits of 

their complaint. The District Court 

reasoned that since laws that burden political speech are subject to 

“strict scrutiny,” the Government 

must prove that restrictions further a 

compelling interest and are narrowly 

tailored to achieve that interest. 

The court held that the Government 

did not meet this burden because 

it did not adequately explain why 

NDPAC’s proposed separation of 

accounts does not satisfy the same 

objective as separate political action 

committees. The court also held that 

NDPAC’s proposal would comply 

with the D.C. Circuit Court of Appeals decision in EMILY’s List v. 

FEC (581 F.3d 1 (D.C. Cir. 2009)) 

by establishing separate accounts to 

1) solicit and spend unlimited funds 

for independent federal expenditures 

(soft money); and 2) solicit and 

spend federally permissible funds 

on direct contributions to federal 

political candidates and/or political 

parties (hard money).

The court further held that because the 2012 Presidential election 

cycle is under way, the Plaintiffs 

“must be freed immediately from the 

chill of possible FEC enforcement,” 

and that prior cases from the D.C. 

Circuit and Supreme Courts support 

the Plaintiffs’ position. The court 

concluded that the Plaintiffs demonstrate that the Commission’s interference with their First Amendment 

rights constitutes irreparable harm.

Preliminary Injunction

The District court granted a 

preliminary injunction to the Plaintiffs that the Commission shall not 

enforce 2 U.S.C. §§441a(a)(1)(C) 

and 441a(a)(3) against the Plaintiffs 

with regard to independent expenditures so long as NDPAC maintains 

separate bank accounts for its “hard 

money” and “soft money,” proportionately pays related administrative 

costs and complies with the applicable “hard money” limits for its 

PAC account that is used to make 

contributions directly to federal 

candidates.

U.S. District Court for the District 

of Columbia: 1:11-cv-00259-RMC. 

—Myles Martin

The Real Truth About 

Obama, Inc. v. FEC and U.S. 

Department of Justice

On June 16, 2011, the U.S. District Court for the Eastern District of 

Virginia granted summary judgment 

in favor of the Commission and denied The Real Truth About Obama’s 

(RTAO’s) motions for preliminary 

injunction and summary judgment 

in this case. RTAO challenges the 

constitutionality of the Commission 

regulation defining “express advocacy” at 11 CFR 100.22(b) and the 

Commission’s approach to determining when an organization becomes a 

“political committee” under the Federal Election Campaign Act (Act).

Background

On July 30, 2008, RTAO sued 

the Commission and the U.S. 

Department of Justice, challenging the constitutionality of several 

FEC regulations, including 11 CFR 

100.22(b), as well as the FEC’s approach to determining whether an 

(continued on page 5)
July 2011 Federal Election Commission RECORD

5

Court Cases

(continued from page 4)

organization qualifies as a “political 

committee” under the Act (“political committee status”). See 2 U.S.C. 

§431(4). Along with raising facial 

challenges to the regulations and 

political committee status methodology, RTAO challenged the application of the regulations and the 

methodology to two RTAO radio 

ads mentioning then-Senator Barack 

Obama. During the 2008 Presidential campaign, RTAO planned 

to disburse over $1,000 to air the 

two ads, which might have brought 

RTAO within the statutory definition 

of “political committee.” 

RTAO argued that the Commission’s regulation at 11 CFR 

100.22(b), which provides a definition of “expressly advocacating,” 

was overbroad and vague. RTAO 

also argued that the Commission’s 

approach to determining political 

committee status on a case-by-case 

basis was overbroad and vague. In 

Buckley v. Valeo, 424 U.S. 1, 79 

(1976), the Supreme Court limited 

the application of the Act’s political 

committee provisions to organizations “under the control of a candidate” or “the major purpose of 

which is the nomination or election 

of a candidate.” The Commission’s 

current approach to determining 

political committee status considers 

several factors, such as the organization’s level of spending on federal 

campaigns, public statements and 

fundraising appeals when determining whether an organization’s “major 

purpose” is the election or defeat of 

federal candidates.

The District Court denied RTAO’s 

motions for preliminary injunctions 

and issued an opinion on September 

24, 2008, and the Fourth Circuit 

Court of Appeals affirmed that decision. RTAO filed a petition for a writ 

of certiorari with the Supreme Court 

in December 2009. In January 2010, 

the Supreme Court held unconstitutional the Act’s restrictions on 

corporate financing of independent 

expenditures and electioneering 

communications in Citizens United 

v. FEC, 130 S. Ct. 876 (2010). On 

April 26, 2010, the Supreme Court 

vacated the Fourth Circuit’s judgment in this case and remanded the 

case for further consideration in light 

of the decision in Citizens United

and the Solicitor General’s suggestion of mootness.

Upon remand, RTAO moved for 

a preliminary injunction and for 

summary judgment in its challenges 

to 11 CFR 100.22(b) and the Commission’s approach to determining political committee status. The 

Commission and the Department of 

Justice opposed RTAO’s motions 

and moved for summary judgment.

District Court Decision

Express Advocacy. The court 

held that the Commission’s regulation at 11 CFR 100.22(b) defining 

express advocacy is consistent with 

the Supreme Court’s opinion in FEC 

v. Wisconsin Right to Life, Inc., 551 

U.S. 449 (2007). In that opinion, 

the Supreme Court had upheld the 

constitutionality of the Act’s financing restrictions on electioneering 

communications as applied to communications that are the ”functional 

equivalent of express advocacy,” 

which the Court defined as communications that are subject to “no 

reasonable interpretation” other than 

as an appeal to vote for or against 

a candidate. The District Court 

determined that the regulation at 11 

CFR 100.22(b), which requires that 

“reasonable minds [cannot] differ” 

about an advertisement’s message, 

was similar to the standard from 

Wisconsin Right to Life. The District 

Court further determined that the 

interpretation of 100.22(b) was not 

altered by the decision in Citizens 

United, and that had the Commission deemed both RTAO ads to be 

express advocacy under 100.22(b), 

that application would not have been 

unconstitutional.

Political Committee Status. The 

court denied RTAO’s challenge to 

the Commission’s approach to determining political committee status. 

The court stated that the Commission undertakes a “fact-intensive, 

case-by-case adjudication to determine whether a group’s major 

purpose” is the election or defeat 

of federal candidates, including 

examining whether the group spends 

money extensively on campaign 

activities such as canvassing or 

phone banks. The court noted that 

the Commission also examines the 

organization’s public statements, 

fundraising appeals and personal 

meetings.

The court agreed with the Commission that determining an organization’s “major purpose” is an 

“inherently comparative task and 

requires consideration of the full 

range of an organization’s activities.” Furthermore, the court held 

that RTAO had not shown that the 

Commission’s approach had harmed 

RTAO’s ability to speak, nor had 

Citizens United altered the constitutionality of the Commission’s approach to political committee status.

The District Court accordingly 

granted summary judgment in favor 

of the Commission and the Department of Justice and rejected RTAO’s 

challenges to both 11 CFR 100.22(b) 

and the Commission’s approach to 

determining political committee 

status.

U.S. District Court for the Eastern 

District of Virginia: 3:08-cv-00483-

JRS.

—Myles Martin
Federal Election Commission RECORD July 2011

6

Advisory

Opinions

(continued on page 7)

AO 2011-06

Vendor May Collect and 

Forward Contributions 

Without Making 

Impermissible Contribution

A vendor may collect contributions from a group of subscribers and forward them to recipient 

political committees. The vendor’s 

services in collecting and forwarding 

these contributions do not amount 

to impermissible corporate contributions from the vendor. A convenience fee paid by the contributor to 

the vendor does not constitute a contribution by the contributor to any of 

the recipient political committees. 

Background

Democracy Engine, LLC (the 

vendor) is the sole stockholder of 

Democracy Engine, Inc. Democracy 

Engine, Inc. is the connected organization of the separate segregated 

fund (SSF) Democracy Engine, Inc., 

PAC (the PAC). Mr. Jonathan Zucker 

and Mr. Erik Pennebaker are United 

States citizens who qualify as part 

of the restricted class of Democracy 

Engine, Inc., and therefore may 

be solicited by and contribute to 

the PAC. The vendor is a for-profit 

limited liability company offering 

a web-based payment service that 

provides “subscribers” with the 

opportunity to make contributions 

to federal political committees and 

donations to non-political entities. 

Mr. Zucker and Mr. Pennebaker plan 

to become subscribers and use the 

vendor’s services.

A subscriber wishing to make 

a contribution using the vendor’s 

service must first go to the vendor’s 

website and choose the intended 

recipient political committee and 

the amount of the contribution. If 

the recipient political committee is 

not already included in the vendor’s 

directory of potential recipients, 

the vendor will add that recipient 

political committee to its directory. 

If the recipient political committee 

is an SSF, the vendor ensures that 

the subscriber is a member of the restricted class of the SSF’s connected 

organization. The vendor does not 

solicit contributions for any political 

committee or other entity, nor does 

the vendor exercise any direction or 

control over any subscriber’s choice 

of recipient political committees. If 

a subscriber designates a political 

committee as a recipient, the vendor 

informs the subscriber of the contribution limits established by 11 CFR 

110.1. The vendor will not process 

contributions that the vendor determines or believes will exceed those 

limits. 

The subscriber is required to 

provide information to the vendor 

that the recipient political committee must maintain or report, including the subscriber’s name, mailing 

address, employer and occupation.

11 CFR 104.8(a). The vendor will 

forward this information to the recipient political committee. 

The vendor deducts a convenience 

fee from the subscriber’s payment 

before transmitting the remaining 

amount to the recipient political 

committee. The convenience fee 

covers all of the costs of the financial institutions involved in the credit 

card transaction and the vendor’s 

costs, and provides a reasonable 

profit to the vendor. The vendor, and 

not the recipient political committee, pays the fees and costs to those 

financial institutions.

The vendor indicates that it will 

set the convenience fee in a commercially reasonable manner in accordance with market conditions with 

respect to all recipients, regardless 

of whether the recipient is a political 

committee or a non-political entity. 

This amount will reflect a complete 

payment of the vendor’s costs plus 

an amount as profit. After the subscriber provides the vendor with the 

required information, attests to his or 

her ability to make the contribution 

and agrees to the terms of service, 

the vendor accepts the subscriber’s 

payment by means of credit card, 

debit card or electronic check. The 

vendor then deposits the subscriber’s 

contribution, via a vendor merchant 

account, into a vendor bank account 

that is completely separate from the 

vendor’s corporate operating funds. 

The vendor will transfer the 

subscriber’s funds from its transfer 

account to the recipient political 

committee no later than ten days 

after the subscriber authorizes the 

contribution to the recipient political committee. The vendor will also 

forward all the necessary contributor 

information required for the recipient committees’ reports. 

Analysis

The Federal Election Campaign 

Act (the Act) and Commission regulations prohibit corporations from 

making a contribution in connection with federal elections. 2 U.S.C. 

§441b(a); 11 CFR 114.2(b)(1). A 

“contribution” includes, among 

other things, the provision of goods 

or services without charge or at a 

charge that is less than the usual and 

normal charge. 

In this case, the vendor’s services 

in processing subscribers’ contributions to the committee and other 

recipient political committees would 

not result in impermissible corporate 

contributions by the vendor to those 

political committees because the 

vendor is not providing services or 

anything else of value to any recipient political committee.

The payment of the convenience 

fee will not relieve the PAC or 

any other recipient political committee of a financial burden that it 

would otherwise have had to pay 

for itself. Therefore, a subscriber’s 

payment of the convenience fee 

would not constitute a contribution 
July 2011 Federal Election Commission RECORD

7

by the subscribers to the PAC or any 

other recipient political committee. 

Because the subscriber’s payment of 

the convenience fee is not a contribution or any other form of receipt, 

the convenience fee does not need to 

be reported to the Commission. 

Date Issued: May 26, 2011;

Length: 7 pages.

—Isaac J. Baker

Advisory Opinions

(continued from page 6)

AO 2011-07

Principal Campaign 

Committee May Pay Certain 

Campaign Consultant’s 

Legal Fees

A principal campaign committee 

may use campaign funds to pay a 

campaign consultant’s legal fees and 

expenses described in the advisory 

opinion request because the payment 

is for a lawful purpose that would 

not constitute personal use.

Background

Chuck Fleischmann is the U.S. 

Representative from the Third 

District of Tennessee. Chuck 

Fleischmann for Congress, Inc. (the 

Committee) is Representative Fleischmann’s principal campaign committee. In the 2010 primary election, 

Representative Fleischmann won the 

Republican Party nomination for the 

Third District of Tennessee over his 

opponent, Robin Smith. 

During the 2010 campaign, 

John Saltsman, Jr. was a consultant 

employed by S&S Strategies LLC. 

Through S&S Strategies LLC, Mr. 

Saltsman provided campaign advice 

to then-candidate Fleischmann. Mr. 

Saltsman has been sued by Mark 

Winslow, a former campaign staffer 

for then-candidate Robin Smith, for 

tortuous interference with a contractual relationship and defamation. 

Mr. Winslow’s complaint alleges 

that Mr. Saltsman helped create 

attack ads directed at Ms. Smith 

and “improperly obtained” and disseminated to the press a confidential 

employment agreement between 

Mr. Winslow and his former employer, the Tennessee Republican 

Party. The complaint also alleges 

that then-candidate Fleishmann 

used the employment agreement 

to attack then-candidate Smith and 

that Mr. Saltsman made defamatory 

statements about Mr. Winslow. The 

complaint alleges Ms. Smith was 

defeated in large part due to Mr. 

Saltsman’s actions.

The Committee has asked the 

Commission if it may use campaign 

funds to pay Mr. Saltsman’s legal 

fees and expenses that arise from the 

Mr. Winslow’s civil suit.

Analysis

The Federal Election Campaign 

Act (the Act) identifies six categories of permissible uses of campaign 

funds, including: (1) payments for 

expenses in connection with the 

candidate’s campaign for federal 

office; (2) payments for ordinary 

and necessary expenses incurred in 

connection with the duties of the 

individual as a federal officeholder; 

and (3) for any other lawful purpose 

not prohibited by 2 U.S.C. §439a(b). 

2 U.S.C. §439a(a); 11 CFR 113.2(a)-

(e). However, campaign funds may 

not be converted to “personal use.” 

2 U.S.C. §439a(b)(1); 11 CFR 

113.2(e). Personal use is any use of 

campaign funds “to fulfill any commitment, obligation, or expense of a 

person that would exist irrespective 

of the candidate’s election campaign 

or individual’s duties as a holder of 

Federal office.” 2 U.S.C. §439a(b)

(2). The Act and Commission regulations provide a non-exhaustive 

list of items that would constitute 

personal use. See 11 CFR 113.1(g)

(1)(i)(A-J). For items not on this 

list, the Commission determines on 

a case-by-case basis whether the 

expense is personal use. Commission regulations specifically provide 

that “legal expenses” are subject to a 

case-by-case determination. 11 CFR 

113.1(g)(1)(ii)(A). 

The Commission noted that in 

previous advisory opinions, it has 

concluded that the use of campaign 

funds for legal expenses did not constitute personal use when the legal 

proceedings involved allegations 

directly related to the candidate’s 

campaign or duties as a federal officeholder. See, e.g., AO 2009-20, 

2009-10, 2008-07, 2006-35, 2005-

11 and 2003-17. The Commission 

specifically cited to 2009-20, where 

it approved the use of campaign 

funds for legal fees of persons other 

than the candidate. In that case, 

Representative Visclosky’s current and former congressional staff 

members received, or were expecting to receive, grand jury subpoenas 

related to a federal investigation of 

Representative Visclosky. The Commission concluded that the staffers’ legal expenses would not exist 

irrespective of the Congressman’s 

campaign or duties as a federal ofCampaign Guides 

Available

 For each type of committee, a 

Campaign Guide explains, in clear 

English, the complex regulations 

regarding the activity of political 

committees. It shows readers, 

for example, how to fill out FEC 

reports and illustrates how the law 

applies to practical situations.

 The FEC publishes four 

Campaign Guides, each for a 

different type of committee, 

and we are happy to mail your 

committee as many copies as 

you need, free of charge. We 

encourage you to view them on 

our web site (www.fec.gov).

 If you would like to place an 

order for paper copies of the 

Campaign Guides, please call the 

Information Division at 800/424-

9530.

(continued on page 8)
Federal Election Commission RECORD July 2011

8

ficeholder and could be paid using 

campaign funds.

In distinguishing the facts in 

AO 2009-20 from the facts here, 

the Commission pointed out that in 

2009-20, although approving the use 

of campaign funds for the legal fees 

of persons other than the Congressman, the Congressman’s alleged activity was the subject of the federal 

investigation. In this case, the basis 

of the lawsuit is the alleged activity 

of Mr. Saltsman, not Representative 

Fleishmann. Nonetheless, the Commission concluded that the legal fees 

and expenses involve allegations 

directly relating to campaign activities engaged in by Mr. Saltsman in 

his role as a campaign consultant 

for Representative Fleischmann’s 

campaign. As a result, the lawsuit 

against Mr. Saltsman would not exist 

irrespective of Representative Fleischmann’s campaign.

The Commission concluded that, 

to the extent that the legal proceedings derive from allegations directly 

relating to campaign activity, the 

Committee may use campaign 

funds to pay the campaign consultant’s legal fees and expenses.

Date Issued: May 26, 2011;

Length: 7 pages

—Zainab Smith

Advisory Opinions

(continued from page 7)

AO 2011-08

Trade Association Members 

May Be Solicited for PAC 

Contributions

The American Society of Anesthesiologists (ASA), an incorporated 

nonprofit medical society, qualifies 

as a “membership organization” 

and may solicit certain categories of 

its members for contributions to its 

separate segregated fund (SSF).

Background

ASA serves as the connected organization for the American Society 

of Anesthesiologists Political Action Committee (ASAPAC). ASA’s 

membership consists of some 45,000 

physicians and other professionals 

who engage in or are interested in 

the medical practice of anesthesiology.

ASA has eight categories of 

membership, and its bylaws expressly lay out qualifications and 

requirements for each type of membership. When an individual accepts 

ASA’s request for membership, 

ASA responds by sending written 

confirmation of membership and a 

membership card and lists the new 

member on the “members only” section of ASA’s website.

ASA seeks to solicit contributions 

from two classes of members, Life 

Members and Retired Members, 

for contributions to ASAPAC. Life 

Members are past presidents of 

ASA. They have the right to vote for 

ASA’s delegates and directors and 

serve as members of the House of 

Delegates, ASA’s highest governing 

body. Retired Members consist of 

several classes: individuals who have 

been active or affiliate members of 

ASA for 20 years or more and who 

have retired from practice; individuals who have been active or affiliate members for 20 years or more 

and have reached the age of 70; or 

individuals who are active members 

and who are disabled and therefore 

unable to practice for one year or 

more. Unlike Life Members, Retired 

Members do not have a vote in ASA.

Neither Life Members nor Retired 

Members are required to pay dues, 

but they must confirm their ASA 

membership annually. All members 

are subject to the same sanctions and 

disciplinary procedures. 

Analysis

The Federal Election Campaign 

Act (the Act) and Commission 

regulations define a restricted class 

of persons who can be solicited by 

SSFs such as ASAPAC. 2 U.S.C. 

§441b(b)(4). The solicitable class of 

an incorporated membership organization includes its “members,” its 

executive and administrative personnel and their families. 

In determining whether Life 

Members and Retired Members 

qualify as “members” for solicitation purposes, the Commission first 

determined that ASA qualifies as 

a “membership organization.” The 

Commission defines a “membership 

organization” as a trade association, 

cooperative or corporation without 

capital stock that:

•	 Is composed of members, some

or all of whom are vested with the 

power and authority to operate 

or administer the organization, 

pursuant to the organization’s 

articles, bylaws or other formal 

organization documents;

•	 Expressly states in these organizational documents the qualifications and requirements for 

membership;

•	 Makes these formal organizational documents available to its 

members upon request;

•	 Expressly solicits persons to

become members;

•	 Expressly acknowledges acceptance of membership; and

•	 Is not organized primarily for the

purpose of influencing the nomination for election, or election, of 

any individual for federal office.

(continued on page 9)
July 2011 Federal Election Commission RECORD

9

ASA meets all of these criteria, 

and therefore qualifies as a membership organization within the meaning 

of 11 CFR 100.134 and 114.1(e).

The Commission also determined 

that both Life Members and Retired 

Members meet the Commission’s 

definition of “members” and may, 

therefore, be solicited by ASA for 

contributions to ASAPAC.

Commission regulations define 

a member as a person who satisfies 

the requirements for membership in 

a membership organization, affirmatively accepts the membership’s 

invitation to become a member and 

has significant financial attachment 

to the membership organization, 

pays membership dues or has significant organizational attachment to the 

membership organization. Factors 

indicating significant organizational 

attachment include affirmation of 

membership on at least an annual 

basis, direct participatory rights in 

the governance of the organization, 

the right to vote on policy questions 

and the right to approve the organization’s budget.

Life Members have the right 

to vote in ASA’s elections for the 

House of Delegates, the ASA’s highest governing body. Life Members 

qualify as members under Commission regulations because they 

currently satisfy the requirements 

for membership, affirmatively accept 

membership in ASA and have a 

significant organizational attachment 

to ASA.

Retired Members satisfy ASA’s 

membership requirements and 

annually accept the invitation to 

maintain membership. But, unlike 

Life Members, they do not have 

the right to vote in elections for the 

ASA House of Delegates. As such, 

Retired Members do not have the 

same type of organizational attachment as do Life Members. However, 

the Commission may determine on a 

case-by-case basis whether persons 

qualify as members on the basis that 

they have a relatively enduring and 

independently significant financial 

or organization attachment to the 

organization. 11 CFR 100.134(g) 

and 114.1(e)(3).

Two types of Retired Members 

have similar requirements: a person 

must have paid dues for at least 20 

years and must either be retired from 

anesthesiology or have reached the 

age of 70. Because these types of 

members are long-term dues-paying 

members, the Commission determined they qualify as “members” 

and may be solicited for contributions to ASAPAC. The third type 

of Retired Members consists of 

active members who are disabled 

and therefore are unable to engage 

in the practice of anesthesiology 

for one year or more. Once they 

become Retired Members they no 

longer pay dues and no longer have 

the right to vote in ASA elections 

as Active Members. In AO 2008-21 

(CME Group, Inc.) the Commission 

determined that when a member of 

the Chicago Board of Trade (CBOT) 

temporarily transferred a seat on 

CBOT, that individual still remained 

a solicitable “member” under Commission regulations. The Commission stated that, “while they do not 

exercise most of the prerogatives of 

membership... they have reversionary interests in the membership and 

may reacquire those prerogatives,” 

and that this demonstrated a relatively enduring and independently 

significant financial attachment. 

Also, these third types of Retired 

Members maintain the same member 

benefit resources as active members 

and are also subject to sanction by 

the ASA, even while they are retired. 

Taking these factors into consideration, the Commission determined 

that these Retired Members also 

have an enduring and independently 

significant organization attachment 

to ASA. Therefore, Retired Members also qualify as “members” and 

may be solicited for contributions to 

ASAPAC.

Date Issued: June 15, 2011;

Length: 7 pages.

—Isaac J. Baker

Advisory Opinions

(continued from page 8)

AO 2011-10

Partnerships May Deduct 

PAC Contributions from 

Sales Contracts

A family of partnerships may 

make preauthorized deductions from 

amounts due on sales contracts for 

contributions to a nonconnected 

committee. 

Background 

POET, LLC is a single-member, 

limited liability company that has 

elected not to be treated as a corporation for income tax purposes. 

POET PAC is registered with the 

Commission as a nonconnected, 

multicandidate committee. 

The POET family of companies 

includes 27 POET plants that produce and refine ethanol. To produce 

ethanol, the POET plants purchase 

corn from corn farmers, the vast 

majority of whom are individuals, 

partnerships or limited liability companies electing partnership treatment 

for tax purposes. The sales are conducted pursuant to sales contracts 

between the corn farmers and the 

POET plants. 

POET, LLC, POET PAC and 

Sioux River Ethanol, LLC d/b/a 

POET Biorefining-Hudson want to 

establish the POET PAC Cultivator Club (the “program”) to make it 

(continued on page 10)
Federal Election Commission RECORD July 2011

10

easier for corn farmers to contribute 

to POET PAC.1 Under the program, 

the participating POET plants would 

solicit contributions to POET PAC 

from the corn farmers with whom 

they do business. The corn farmers 

may opt to have the participating 

POET plants deduct a portion of the 

money owed to them for their corn, 

and the participating POET plants 

would transfer the deducted amounts 

to POET PAC each week. A corn 

farmer wishing to participate in the 

program would check a box on the 

farmer’s corn sales contract, thereby 

authorizing the participating POET 

plant to make deductions for contribution purposes. A farmer could 

modify or revoke the authorization 

at any time by notifying the participating POET plant in writing and 

via the POET companies’ website. 

The authorization would not carry 

over from contract to contract, but 

a farmer wishing to continue to 

participate in the program after his 

or her contract expires would have 

to affirmatively elect to do so on the 

new sales contract. 

Under the proposal, the POET 

PAC solicitation and check-off box 

would be preprinted on each corn 

sales contract, while the necessary 

disclaimers, statement of political 

purpose and best efforts statement 

would appear with the Terms and 

Conditions. The Terms and Conditions would also state that contributions from foreign nationals, 

federal government contractors and 

corporations are prohibited. POET, 

LLC, POET PAC and Sioux River 

Ethanol, LLC would implement 

compliance safeguards to ensure 

that POET PAC does not accept any 

excessive contributions or contributions from prohibited sources, and 

POET PAC would retain all necessary records and would report all 

contributions received on its reports 

filed with the Commission. All 

required disclaimers and “best efforts” information would be placed 

on a single double-sided document 

that includes the contract on one 

side and the Terms and Conditions 

on the other side. Finally, POET 

PAC proposes to compensate the 

participating POET plants for the 

services that they provide in soliciting, deducting and transmitting 

contributions by paying the usual 

and normal charge for these services 

to the participating POET plants in 

advance every month. The payments 

would be based on estimates of staff 

compensation and the time involved 

in administering the fundraising 

program. 

Analysis

The Commission determined that 

the planned Cultivator Club program 

is permissible and similar to other 

programs previously approved by 

the Commission. See AOs 1982-63 

and 2005-20. In this case, the solicitation, deduction and transmittal of 

contributions to POET PAC would 

constitute the provision of services 

and could be considered in-kind contributions by the participating POET 

plants to POET PAC. 2 U.S.C. 

§431(8)(A)(i) and 11 CFR 100.52(a) 

and (d)(1) and (2). However, the 

participating POET plants are all either partnerships or LLCs that have 

elected treatment as partnerships for 

tax purposes and are, thus, treated as 

partnerships under the Act and Commission regulations as well. See 11 

CFR 110.1(g)(2). As such, they may 

make contributions of up to $5,000 

per calendar year to nonconnected 

1 Under the program, only corn farmers 

that are individuals, partnerships, or 

limited liability companies electing to be 

treated as partnerships for tax purposes 

could make contributions to POET 

PAC. Only the 24 POET plants that are 

limited liability companies treated as 

partnerships and the single POET plant 

that is a limited liability partnership 

will participate in the Cultivator Club. 

The remaining two POET plants, one of 

which is a corporation and the other of 

which is treated as such for tax purposes, will not participate.

Advisory Opinions

(continued from page 9)

multicandidate political committees. 

2 U.S.C. §441a(a)(1)(C); 11 CFR 

110.1(d). 

In this case, however, POET 

PAC indicates it will pay in advance 

for the services furnished by the 

participating POET plants. Thus, 

the Commission concluded that no 

contribution would result if POET 

PAC pays in advance the usual and 

normal charge for the participating 

POET plants’ services in soliciting 

and processing contributions made 

by corn farmers. See AO 2005-20. 

The Commission also determined that POET PAC may include 

required disclaimers on a separate 

Terms and Conditions page rather 

than on the page with the actual 

Back Issues of the 

Record Available on 

the Internet

 This issue of the Record and all 

other issues of the Record starting 

with January 1985 are available 

on the FEC web site as PDF files. 

Visit the FEC web site at http://

www.fec.gov/pages/record.shtml

to find monthly Record issues. 

 The web site also provides 

copies of the Annual Record Index

for each completed year of the 

Record, dating back to 1985. The 

Annual Record Index list Record

articles for each year by topic, 

type of Commission action and, in 

the case of advisory opinions, the 

names of individuals requesting 

Commission action.

You will need Adobe® Acrobat® Reader software to view the 

publication. The FEC’s web site 

has a link that will take you to 

Adobe’s web site, where you can 

download the latest version of the 

software for free.

(continued on page 11)
July 2011 Federal Election Commission RECORD

11

Alternative Disposition of 

Advisory Opinion Request

AOR 2011-09

On June 15, 2011, the Commission considered, but could not approve by the required four votes, an 

advisory opinion request on behalf 

of Facebook regarding the disclaimer requirement with respect to small 

character-limited ads.

Thus, the Commission was unable 

to render an opinion in this matter 

and concluded its consideration of 

the request.

check-off box for the POET PAC 

Cultivator Club. See 2 U.S.C. 

§441d(a); 11 CFR 110.11(a)(3); 11 

CFR 100.26; 11 CFR 100.27. Under 

Commission regulations, every disclaimer “must be presented in a clear 

and conspicuous manner.” 11 CFR 

110.11(c)(1). Disclaimers on printed 

communications must be of sufficient type size to be clearly readable, must have a reasonable degree 

of color contrast between text and 

background and must be contained 

in a box set apart from the rest of the 

communication. 2 U.S.C. §441d(c); 

11 CFR 110.11(c)(2)(i)-(iii). A 

communication that would require a 

disclaimer if distributed separately 

must contain the required disclaimers if it is included in a package. 11 

CFR 110.11(c)(2)(v). However, a 

disclaimer need not appear on the 

front cover of a communication with 

multiple pages. 11 CFR 110.11(c)

(2)(iv). Political committees are also 

required to make their “best efforts” 

to gather information about contributors and to include in solicitations “a 

clear request” for the required identifying information from the contributor. 11 CFR 104.7(b)(1)(i). 

Here, POET PAC proposes to 

place all required disclaimers and 

“best efforts” information on a 

single double-sided document that 

includes the contract on one side 

and the Terms and Conditions on the 

other side. The disclaimer would be 

set apart in a box and it would be 

printed in the same font size as other 

material on the rest of the page. The 

Commission concluded that this proposal would satisfy the disclaimer 

requirement because the disclaimers 

and the solicitation and check-off 

will be distributed as a single document. 

Finally, the Commission allowed 

POET PAC to perform a quarterly 

reconciliation of the actual staff 

time spent administering the POET 

PAC Cultivator Club by participating POET plants and POET, LLC 

employees to the amounts paid in 

advance by POET PAC. POET PAC 

plans to provide advance payment 

to the participating POET plants 

based on an initial estimate of plant 

employee time to be spent soliciting 

and processing contributions in connection with the POET PAC Cultivator Club. It would then adjust these 

payments each calendar quarter to 

reflect the actual time spent. 

If POET PAC’s initial advance 

payment to the participating POET 

plant underestimates the amount 

due to the participating POET plant 

for the staff time actually expended, 

the resulting difference would be 

considered an advance or an extension of credit by the participating 

POET plant to POET PAC, and 

therefore a contribution, until it is 

repaid. 2 U.S.C. §431(8)(A)(i), 11 

CFR 100.52(a). As such, it would be 

subject to contribution limits. See

11 CFR 110.1(e). The Commission 

instructed POET PAC to report each 

advance payment to a participating 

POET plant on Schedule B, Line 

21(b), as an operating expense, 

with a memo text explaining that 

the expense is an advance payment 

for solicitation and contribution 

processing services to be provided 

by the participating POET plant. If 

POET PAC later determines that its 

advance payment to a participating POET plant was less than the 

amount actually due for services 

rendered, then POET PAC must 

report the difference between the 

two amounts as a debt owed to the 

participating POET plant on Schedule D until the difference is paid 

in full. See 11 CFR 104.11. When 

POET PAC pays the amount owed 

to a participating POET plant for 

services rendered, it must report 

the payment on Schedule B, Line 

21(b), as an operating expense, with 

a memo text explaining that the 

amount is an additional payment for 

services rendered and the date(s) 

that the services were rendered, and 

identifying the report in which the 

advance payment was reported. 

Date: June 16, 2011; 

Length: 9 pages. 

—Zainab Smith 

Advisory Opinion Requests

AOR 2011-13

Disclaimers for Internet solicitations, including on mobile Internet 

devices (Democratic Senatorial 

Campaign Committee, May 27, 

2011)

AOR 2011-14

SSF communications to the 

general public that ask individuals 

to contribute directly to particular 

federal candidates (Utah Bankers 

Association, June 8, 2011)

Advisory Opinions

(continued from page 10)
Federal Election Commission RECORD July 2011

12

Commission

Agency Procedure for 

Document and Information 

Disclosure During 

Enforcement

On June 15, 2011, the Commission published a notice in the Federal Register of its new procedures 

for providing respondents in enforcement proceedings with relevant 

documents obtained by the Commission as part of its investigation. 

The Commission believes that 

the principles of the due process 

clause set forth in Brady v. Maryland

(373 U.S. 83) should apply following investigations conducted under 

2 U.S.C. §437g and 11 CFR Part 

111. These principles hold that the 

government is required to provide 

defendants with exculpatory or 

potentially exculpatory evidence 

that is “material to guilt or punishment.” Although courts have held 

that Brady does not apply in administrative proceedings, the Commission’s enforcement proceedings 

may occasionally inform potential 

or concurrent criminal proceedings, 

and therefore the Commission is 

adopting a formal internal procedure 

requiring disclosure of information 

to respondents.

The Commission also believes 

that formalizing the procedure will 

promote fairness in the enforcement 

process, promote administrative efficiency and certainty and contribute 

to the Commission’s goal of fair and 

open investigations.

Procedure

The Commission will make available to the respondent all relevant 

documents gathered by the Office of 

General Counsel (OGC) during the 

course of its investigation, including 

all documents not publicly available and any documents containing 

exculpatory information—in other 

words, information that is likely to 

prove that a respondent is free from 

blame. The documents covered by 

this procedure include:

•	 Documents turned over in response to any subpoena or other 

request, written or otherwise, 

which are not already in the possession of the respondent;

•	 All deposition transcripts and

exhibits; and

•	 Any other documents gathered

by the Commission which are not 

publicly available and not otherwise in the respondent’s possession.

Unless otherwise determined by 

the Commission, OGC may withhold a document or a category of 

documents from a respondent if it 

contains privileged information or if 

OGC finds that it is not relevant to 

the subject of the proceeding. OGC 

may also withhold documents if the 

Commission is prevented by law 

or regulation from disclosing the 

information in the documents, or if 

a document contains some information that cannot be disclosed and the 

information cannot be removed from 

the document without changing its 

meaning. Finally, OGC may withhold a document or a category of 

documents (along with any information derived from the documents) 

if the Commission obtained the 

information from the Department of 

Justice or another government entity 

and a written agreement prevents its 

disclosure. 

OGC will disclose the documents 

and information if the respondent 

files a written request within 15 days 

of either the date of the General 

Counsel’s notification of a recommendation to proceed to a vote on 

probable cause, or no later than 

seven days after the certification of a 

vote by the Commission to conciliate with a respondent. Within ten 

business days of receiving these disclosed documents, a respondent may 

request in writing that OGC produce 

a list of documents or categories of 

documents withheld.

Co-Respondents and Disclosure

In some cases there may be more 

than one respondent under investigation in the same or a related 

matter. In these cases, OGC must 

get a confidentiality waiver from 

the co-respondent before disclosing 

documents that are about the corespondent or were provided by the 

co-respondent. Additionally, the respondent receiving these documents 

may be required to sign a nondisclosure agreement to keep confidential 

any document or information it 

obtains from the Commission. If 

the co-respondent does not agree 

to provide a confidentiality waiver, 

OGC will (if possible) summarize or 

redact those portions of the document subject to confidentiality. If 

this is not possible, OGC will ask 

the Commission to balance competing concerns of disclosure and confidentiality. If the confidentiality issue 

cannot be resolved with respect to a 

co-respondent, then OGC may try to 

segregate the matters under review.

In some cases information provided by one co-respondent may 

contains exculpatory information or 

be relevant to the General Counsel’s 

brief accompanying the notice of a 

recommendation to vote on probable 

cause for another co-respondent. In 

these cases, that information will be 

provided to the other co-respondent, 

subject to the same confidentiality concerns described above. 

Before disclosing any portion of a 

document that raises an unresolved 

confidentiality issue, OGC will ask 

the Commission to decide whether 

disclosure of a document containing 

exculpatory information conforms 

to the confidentiality provisions of 

2 U.S.C. §§437g(a)(4)(B)(i) and 

437g(a)(12).

(continued on page 13)
July 2011 Federal Election Commission RECORD

13

Outreach

FEC to Host Reporting and 

E-Filing Workshops in July

On July 13, 2011, the Commission will host roundtable workshops 

on reporting and electronic filing. 

The reporting sessions will address 

common filing problems and provide 

answers to questions committees 

may have as they prepare to file 

their July Quarterly, Monthly or 

Mid-Year reports. The electronic 

filing sessions will provide hands-on 

instruction for committees that use 

the Commission’s FECFile software 

and will address questions filers 

may have concerning electronic 

filing. All attendees will have an 

opportunity to meet the Campaign 

Finance Analyst who reviews their 

reports. Attendance is limited to 

50 people per reporting workshop 

and 16 people per electronic filing 

workshop; the registration fee is $25 

per workshop. The registration form 

is available on the FEC’s website 

at http://www.fec.gov/info/outreach.shtml#roundtables. For more 

information, please call the Information Division at 800/424-9530, or 

locally at 202/694-1100.

Roundtable 

Schedule

Reporting Roundtables

FEC Headquarters

Washington, DC

July 13, 2011

Reporting for PACs and Party 

Committees

9:30 a.m.-11:00 a.m.

FECFile and E-Filing for 

Candidate Committees 

9:30 a.m.-11:00 a.m.

Reporting for Candidate 

Committees

1:00 p.m.-2:30 p.m.

FECFile and E-Filing for PACs 

and Party Committees

1:00 p.m.-2:30 p.m.

Index

The first number in each citation refers to the numeric month of 

the 2011 Record issue in which the 

article appeared. The second number, following the colon, indicates 

the page number in that issue. For 

example, “1:4” means that the article 

is in the January issue on page four.

Advisory Opinions

2010-23: Contributions by text message, 1:2

2010-24: Party committee must use 

federal funds for certain salaries 

related to voter registration activities, 1:4

2010-29: Working Families Party 

of Oregon qualifies as state party 

committee, 1:5

2010-30: Rental of e-mail list to 

committees at fair market value 

is not coordinated expenditure or 

coordinated communication, 2:1

2011 Conference 

Schedule

Regional Conference for 

Campaigns, PACs and Party 

Committees

Radisson Plaza Hotel

Minneapolis, MN

September 7-8, 2011

Regional Conference for 

Campaigns, PACs and Party 

Committees

Omni San Diego Hotel

San Diego, CA

October 25-26, 2011

(continued on page 14)

Conciliation and Document 

Production

If the Commission votes to enter 

into conciliation prior to completing 

an investigation, the General Counsel will take reasonable steps to limit 

further formal investigation related 

to that respondent, as long as the 

respondent agrees to toll the applicable statute of limitation. Without a 

tolling agreement, the formal investigation and conciliation may take 

place simultaneously. If the Commission receives documents during 

conciliation, the General Counsel 

will inform the respondent of any 

documents that it would otherwise 

be required to be produced under 

this procedure.

Conclusion

No later than June 1 of each year, 

the General Counsel will prepare 

and distribute to the Commission 

a report describing the application 

of this procedure over the previous 

year. Failure to adhere to this procedure does not create a jurisdictional 

bar for the Commission to pursue 

all remedies to correct or prevent a 

violation of the Act. Disclosure of 

documents under the provisions of 

this procedure is not an admission 

by the Commission that the information takes away the respondent’s liability for potential violations of the 

Act. The Commission retains discretion in its enforcement program and 

will exercise it as appropriate with 

respect to facts and circumstances of 

each matter it considers.

—Christopher Berg

Commission

(continued from page 12)
Federal Election Commission RECORD July 2011

14

Index

(continued from page 13)

2011-01: Funds received and spent 

by legal defense fund not contri-

butions or expenditures, 3:1

2011-02: Campaign committee 

may purchase copies of Senator’s 

autobiography if publisher donates 

royalties to charity, 3:3

2011-03: National party committees 

may fund litigation expenses using 

recount funds, 5:1

2011-04: Candidate position papers 

posted on members-only section 

of website, 5:3

2011-05: Use of campaign funds for 

security upgrades, 5:3

2011-06: Vendor may collect and 

forward contributions without 

making impermissible contribu-

tion, 7:6

2011-07: Principal campaign com-

mittee may pay certain campaign 

consultant’s legal fees, 7:7

2011-08: Trade association members 

may be solicited for PAC contri-

butions, 7:8

2011-10: Partnerships may deduct 

PAC contributions from sales 

contracts, 7:9

Commission

Agency procedure for document 

and information disclosure during 

enforcement, 7:12

Message from the Chair, 1:1

FEC elects Chair and Vice Chair for 

2011, 1:2

Court Cases

______ v. FEC

 -Carey, 3:1; 7:1

 -Libertarian National Committee, 

5:1

 -The Real Truth About Obama, 

Inc., 7:4

 -Van Hollen, 6:1

FEC v. ______

 -Kazran, 2:1

Electronic Filing

Mandatory electronic filing, 3:5

Inflation Adjustments

2011 coordinated party expenditure 

limits, 3:7

2011 lobbyist bundling threshold, 3:8

Contribution limits for 2011-2012, 

3:6

Outreach

FEC to host reporting and E-Filing 

workshops for the 2010 Year-End 

report, 1:10

FEC to host reporting and E-Filing 

workshops in July, 6:4; 7:13

DC seminar for corporations and 

their PACs, 3:10; 4:7

DC seminar for House and Senate 

campaigns, 2:4; 3:10

DC seminar for political party com-

mittees, 1:10; 2:3

DC seminar for trade, member and 

labor PACs, 4:8

Outreach update for 2011-12, 4:7

Regulations

Interpretive rule on electronic redes-

ignation of contributions, 4:1

Petition for rulemaking on disclo-

sure of independent expenditures, 

6:1

Reports

Reports Due in 2011, 1:6; 4:1; 7:1

California Special Election Report-

ing: 36th District, 4:5

Nevada Special Election Reporting: 

2nd District, 6:2

New York Special Election Report-

ing: 26th District, 4:4

800 Line

Testing the waters, 3:9