February 2004 Federal Election Commission Volume 30, Number 2

Table of Contents

1 Advisory Opinions

Compliance

1 MUR 5357: Corporation’s

Reimbursement of Contributions

12 Public Appearances

Public Funding

13 Commission Certifies Matching

Funds for Presidential Candidates

13 Dean Requests Withdrawal of

Certification for Matching Funds

Administrative Fines

14 Committees Fined for Late and

Nonfiled Reports

Outreach

13 Conference in Tampa

15 DC Conference for House and

Senate Campaigns and Party

Committees

15 2004 Conference Schedule

15 Index

Advisory

Opinions

AO 2003-30

Retiring Campaign Debt and

Repaying Candidate Loans

The Fitzgerald for Senate Committee (the Committee) may use its

remaining cash-on-hand for any of

the permissible uses of campaign

funds listed in FEC regulations,

including the repayment of personal

loans made by the candidate during

the 1998 elections. Recently enacted

regulations that limit campaigns’

ability to repay certain candidate

loans do not apply to these repayments.

Background

The Committee is the principal

campaign committee of Senator

Peter Fitzgerald, who announced on

April 15, 2003, that he would not

seek re-election in 2004. The

Committee wishes to use some of its

remaining cash-on-hand to repay

debts owed to:

• A bank, for loans incurred in the

1998 primary and general elections;

• Senator Fitzgerald, for loans he

made to the Committee with

Compliance

MUR 5357: Corporation’s

Reimbursement of

Contributions

The Commission has entered into

a conciliation agreement with

Centex Construction Group, Inc.

(CCG), Centex-Rooney Construction Co., Inc. (Rooney), headquartered near Ft. Lauderdale, FL,

former CCG and Rooney CEO Bob

Moss and various current and

former CCG and Rooney officers,

resulting in total civil penalties of

$168,000. The conciliation agreement settles violations of the

Federal Election Campaign Act (the

Act) stemming from the company

officers’ reimbursement of $56,125

in contributions with corporate

funds. The reimbursed contributions

went to seven federal candidates,

two political party committees and

one political action committee

between 1998 and 2002. The FEC’s

investigation stemmed from a sua

sponte submission and complaint

filed with the FEC by Centex

Corporation, headquartered in

Dallas, TX.

Background

The Act prohibits corporations

from making contributions or

expenditures from their general

(continued on page 2) (continued on page 12)
Federal Election Commission RECORD February 2004

2

Federal Election Commission

999 E Street, NW

Washington, DC 20463

800/424-9530

202/694-1100

202/501-3413 (FEC Faxline)

202/219-3336 (TDD for the

 hearing impaired)

Bradley A. Smith, Chairman

Ellen L. Weintraub, Vice Chair

David M. Mason, Commissioner

Danny L. McDonald,

 Commissioner

Scott E. Thomas, Commissioner

Michael E. Toner, Commissioner

James A. Pehrkon, Staff Director

Lawrence H. Norton, General

 Counsel

Published by the Information

 Division

Greg J. Scott, Assistant Staff

 Director

Amy Kort, Editor

http://www.fec.gov

Advisory Opinions

(continued from page 1)

1 The Bipartisan Campaign Reform Act

(BCRA) deleted the phrase “for any

other lawful purpose” from the list of

permitted uses of campaign funds at 2

U.S.C. §439a. Therefore, the Commission removed this passage regarding

the use of campaign funds from its

regulations.

AO 2003-31

Candidate’s Loans to

Campaign Apply to

Millionaires’ Amendment

Threshold

Senator Mark Dayton’s personal

expenditures for campaign expenses

will permanently constitute expenditures from personal funds under the

Millionaires’ Amendment—even if

his campaign reimburses him—

unless the payments are otherwise

exempted from the definitions of

“contribution” and “expenditure.” A

candidate’s payment for committee

expenses is an “expenditure from

personal funds” that counts toward

the threshold amount for determining whether a candidate’s personal

spending has triggered increased

contribution limits for his or her

opponents. See 2 U.S.C.

§434(a)(6)(B)(i).

Background

Under the Federal Election

Campaign Act (the Act) and Commission regulations, a candidate

may make unlimited contributions

from his or her personal funds,

including unlimited contributions to

his or her campaign. 11 CFR

110.10(a). See AO 1997-10. However, under the Bipartisan Campaign

Reform Act’s so-called “Millionaires’ Amendment,” a candidate

respect to the 1998 primary and

general elections;

• Non-bank, non-candidate creditors,

for obligations incurred in the

1998 primary and general elections, and for which the amount of

debt is disputed; and

• Non-bank, non-candidate creditors,

for obligations incurred for the

2004 primary.

Analysis

Commission regulations prohibit

personal use of campaign funds, but

otherwise permit campaigns to

spend funds for any expense that

would not exist absent the

candidate’s campaign or duties as a

federal officeholder. In addition to

paying expenses in connection with

the campaign for federal office,

campaign funds may be used only

for non-campaign purposes included

in an exhaustive list found at 11

CFR 113.2 (a), (b) and (c):1

• Ordinary and necessary expenses

incurred in connection with the

duties of a federal officeholder;

• Donations to a charitable organization; and

• Transfers to a national, state or

local committee of a political

party.

Such uses are permitted provided

that they do not result in campaign

funds being converted to personal

use by any person. 2 U.S.C.

§439a(b)(1).

Repayment of the debts listed

above is a permissible use of the

Committee’s campaign funds. The

committee’s cash-on-hand consists

of contributions lawfully made for

the 2004 primary election for which

Senator Fitzgerald was a candidate,

and debt repayment is an authorized

expenditure in connection with

Senator Fitzgerald’s campaign for

federal office.2

In implementing the Bipartisan

Campaign Reform Act of 2002

(BCRA), the Commission promulgated regulations at 11 CFR 116.11

that limit repayment of certain

personal loans from the candidate.

These regulations do not apply to

the retirement of the Committee’s

debt owed to Senator Fitzgerald,

since it was incurred in connection

with a pre-BCRA election. Specifically, the Committee’s 1998 primary and general election debt to

Senator Fitzgerald was incurred

May 12, 1997, and April 16, 1998,

well before the BCRA’s November

6, 2002, effective date. Therefore,

the Committee is not limited in the

amount of its debt owed to Senator

Fitzgerald that it may repay with

2004 primary contributions, even

those contributions received after

November 6, 2002.

Date Issued: December 19, 2003;

Length: 5 pages.✦

—Jim Wilson

2 When a political committee has a

significant amount of debt, use of cashon-hand for purposes other than debt

repayment may affect the committee’s

future ability to terminate and to go

through the debt settlement process.

Also, bank loans and lines of credit are

not subject to debt settlement or

forgiveness because bank loan debt

settlement may result in prohibited

contributions from banks.
February 2004 Federal Election Commission RECORD

3

opposing a self-financed candidate

may under certain circumstances

accept contributions from individuals under increased contribution

limits, and, for Senate candidates,

the coordinated party expenditure

limits for national and state party

committees may be suspended. 2

U.S.C. §§441a(i) and 441a-1; 11

CFR 400.40 and 400.41. Increased

contribution limits and/or suspended

expenditure limits are triggered

based on a candidate’s “oppositional

personal funds amount,” (OPFA)

which is based in part on the

difference between the aggregate

amount of expenditures from

personal funds that a candidate and

an opposing candidate each make in

the same election. See 2 U.S.C.

§441a(i)(1)(D) and 11 CFR 400.10.

An expenditure from personal funds

is “an expenditure made by a

candidate using personal funds; and

a contribution or loan made by a

candidate using personal funds or a

loan secured using such funds to the

candidate’s authorized committee.”

2 U.S.C. §434(a)(6)(B)(i).

The Act and Commission regulations also contain exceptions from

the definitions of “contribution” and

“expenditure.” Any campaignrelated transportation or subsistence

expense paid for by an individual,

including a candidate, that does not

aggregate in excess of $1,000 for a

single election and is not reimbursed

by the campaign is not a contribution or expenditure. 2 U.S.C.

§431(8)(b)(iv); 11 CFR 100.79 and

100.39. Also, any reimbursed

campaign-related travel or subsistence expense paid for by an individual, including a candidate, is not

a contribution1

 if it is reimbursed by

the campaign within 30 days after

the expense is incurred or, in the

case of a credit card payment,

within 60 days after the closing date

of the billing statement on which the

expense first appears. 11 CFR

116.5(b).

Application to Proposal

Senator Dayton, a candidate for

U.S. Senate in 2006, expects

personally to make payments for:

• Campaign-related travel expenses

in excess of $1,000 that are

reimbursed by his campaign

committee more than 30 days after

the date on which the expense was

incurred;

• Campaign-related travel expenses

in excess of $1,000 that are

charged to his personal credit card

and reimbursed by his committee

more than 60 days after the closing

date of the credit card billing

statement on which the expense

first appears; and

• Other campaign expenses that are

not travel related.

All of these payments will be

both expenditures and contributions

under the Act because they are a

payment made, and a loan or

something of value given, for the

purpose of influencing an election

for federal office. 11 CFR 100.111

and 100.52. Moreover, Senator

Dayton’s payments for the travel

expenses do not fall into the exceptions to the definitions of “contribution” and “expenditure” because

they will not be reimbursed within

the appropriate timeframes.2

 As a

result, any of the payments described above would constitute an

expenditure from personal funds

within the meaning of the Millionaires’ Amendment. 2 U.S.C.

§434(a)(6)(B)(i); 11 CFR

400.4(a)(1) and (2).

The fact that Senator Dayton may

subsequently be reimbursed does

not change the expenses’ character

as expenditures from personal

funds. Neither the Millionaires’

Amendment nor the Commission’s

implementing rules and forms

contemplate reductions in expenditures from personal funds. Rather,

the OPFA is calculated using the

“aggregate amount[s]” of expendi2 Once Senator Dayton’s payments for

such expenses exceed $200 in the

aggregate for the election cycle, and

reimbursement does not bring the

amount below this threshold before the

end of the reporting period, his

campaign committee should report the

expenses as in-kind contributions. 11

CFR 104.13(a)(1). See AOs 1992-1 and

1990-9. The committee should report

the in-kind contributions as memo

entries on Schedule A and should

report a disbursement when Senator

Dayton is actually reimbursed. 11 CFR

104.13 and AO 1992-1. When reporting

a reimbursement, the committee should

note the memo entry to which it relates.

If the reimbursement is made in a

reporting period after the period in

which Senator Dayton incurs the

expense, then the committee must also

report the debt owed if it exceeds $500

or has been outstanding for more than

60 days 11 CFR 104.11.

1 Although the wording of the exception

in 11 CFR 116.5(b) does not explicitly

mention the definition of “expenditure,” the Commission recognizes that

for the purposes of the Millionaires’

Amendment, all expenditures made by

the candidate from personal funds will

also be contributions to the campaign.

Therefore, it is appropriate in this case

to exempt such travel expenses from the

definition of “expenditure” as well.

Web Access to

Senate Candidates’

Campaign Finance

Reports

Senate campaign finance reports

are available to the public on the

FEC web site. All Senate reports

received after May 15, 2000, are

currently accessible on the site,

and the FEC will make future

reports available within 48 hours

of receiving them.

To view these reports, go to

www.fec.gov, click on

“Campaign Finance Reports and

Data,” and then select “View

Financial Reports.”

(continued on page 4)
Federal Election Commission RECORD February 2004

4

Advisory Opinions

(continued from page 3)

AO 2003-32

Federal Candidate’s Use of

Surplus Funds from

Nonfederal Campaign

Account

Inez Tenenbaum, a candidate for

U.S. Senate, may donate surplus

nonfederal funds in her state campaign account to 501(c)(3) charitable organizations that do not

conduct any election activity. She

may not, however, donate these

funds to 501(c)(3) charitable

organizations that conduct election

activity, including types of federal

election activity, as their principal

purpose, nor may she donate these

funds to the South Carolina Democratic party or a state legislative

caucus committee.

Background

As a candidate for South Carolina

state office in 2002, Ms.

Tenenbaum’s campaign maintained

a state campaign account into which

she placed funds raised for her

candidacy. The state campaign

account has paid all of its expenses

from the 2002 election and is

prepared to terminate. The account

contains surplus funds that, while

compliant with South Carolina law,

were not raised in accordance with

the contribution limits and source

prohibitions of the Federal Election

Campaign Act (the Act).

Ms. Tenenbaum would like to

donate these funds to several

organizations including those

organized under section 501(c)(3) of

the Internal Revenue Code (26

U.S.C. 501(c)(3)), the South Carolina Democratic Party and a state

legislative caucus committee. Ms.

Tenenbaum does not directly or

indirectly establish, finance, maintain or control any of the 501(c)(3)

organizations that might receive the

funds, and the proposed uses are

consistent with South Carolina law.

Some of the 501(c)(3) organizations

to which she would like to donate

funds conduct activities in connection with elections, including the

tures from personal funds from the

candidate and his or her opponents.

2 U.S.C. §441a(i)(1)(D). The

reporting provisions of the Act and

Commission regulations use the

terms “aggregate” and “total”

interchangeably, and do not consider “aggregate” to mean “net”—in

other words, what remains after

deductions. Moreover, Congress

provided for the subtraction of

candidate contributions from

personal funds in one of the variables used for OPFA calculation,

but did not make a similar provision

for the subtraction of any amounts

in the variables for the “[g]reatest

aggregate amount of expenditures

from personal funds” made by the

candidate or opposing candidate. 2

U.S.C. §§441a(i)(1)(D)(i) and (ii);

11 CFR 400.10(b). Finally, the

Commission does not require a

candidate to file a new FEC Form

10 when a committee repays a

candidate’s loan to the committee. If

repayment of such loans decreased

the total amount of expenditures

from personal funds, the candidate

would need to file a new Form 10

with the corrected, decreased

expenditure from personal funds

amount.

Since any of the expenses listed

above paid for by Senator Dayton

are permanently expenditures from

personal funds for the purposes of

the Millionaires’ Amendment, the

committee must report on Form 10

when they aggregate in excess of

twice the threshold amount. 11 CFR

400.21(a) and 400. 24 (a).

Date Issued: December 19, 2003;

Length: 6 pages.✦

—Amy Kort

federal election activities enumerated at 11 CFR 300.65(c) (e.g., voter

registration, voter identification,

get-out-the-vote activity and generic

campaign activity). Some of these

organizations conduct some federal

election activity that is not their

principal purpose, while others

conduct such activity as their

principal purpose or would spend

the donation specifically on those

activities.

Analysis

Donations to 501(c)(3) organizations that do not conduct any

election activity. Ms. Tenenbaum

may donate the nonfederal funds in

her state campaign account to

501(c)(3) organizations that do not

conduct any election activity. As

amended by the Bipartisan Campaign Reform Act of 2002 (BCRA),

the Act limits the ability of federal

candidates and officeholders, their

agents and entities directly or

indirectly established, financed,

maintained or controlled by them to

raise or spend funds in connection

with either federal or nonfederal

elections. 2 U.S.C. §441i(e)(1). As a

candidate for election to the U.S.

Senate, Ms. Tenenbaum is prohibited from soliciting, receiving,

directing, transferring or spending

any funds in connection with a

federal or nonfederal election unless

such funds are subject to the limitations and prohibitions of the Act. 2

U.S.C. §§441(e)(1)(A) and (B); 11

CFR 300.61 and 300.62. Donations

to 501(c)(3) organizations that

conduct no election activity of any

kind would not be in connection

with a federal or nonfederal election. Therefore, such donations do

not fall within the restrictions and

prohibitions of 2 U.S.C. §441i(e)(1)

and are permissible. These donations cannot be earmarked or

designated for any election activity,

including federal election activity,

or debts arising from any election

activity.
February 2004 Federal Election Commission RECORD

5

a state legislative caucus committee

in South Carolina. Since Ms.

Tenenbaum is not a candidate in

2004 or 2006 for state or local

office, 2 U.S.C. §441(e)(2) does not

apply because the donated funds

could not be used “solely in connection with [her] election for State or

local office.” The exception in

§441(e)(4)(A) also does not apply

because neither the South Carolina

Democratic party committee nor a

state legislative caucus committee is

a 501(c) organization.

Donations to 501(c)(3) organizations that conduct election activity,

but not as their principal purpose.

Ms. Tenenbaum also asked if she

could donate the funds in her state

campaign account to 501(c)(3)

organizations that conduct election

activity, including federal election

activity, but whose principal purpose is not to conduct election

activity. The Commission considered this question but could not

approve a response by the required

four votes.

Date Issued: December 19, 2003;

Length: 5 pages.✦

—Meredith Trimble

Donations to 501(c)(3) organizations that conduct election activity

as their principal purpose. Ms.

Tenenbaum may not donate the

nonfederal funds in her state campaign account to 501(c)(3) organizations that conduct election activity,

including federal election activity as

described in 11 CFR 300.65(c), as

their principal purpose. Given the

strong likelihood that these organizations would use the donations to

fund election activity either directly

or indirectly, such donations would

be subject to the restrictions and

prohibitions of 2 U.S.C. §441i(e)(1),

unless one of the exceptions to this

section applies.

Under 2 U.S.C. §441i(e)(2), the

prohibition above does not apply to

the solicitation, receipt or spending

of funds by an individual who is or

was a candidate for state or local

office solely in connection with

such election for state or local

office, if such activity is permitted

by state law. While Ms. Tenenbaum

falls within the scope of §441i(e)(2)

because she is a former state candidate, the donations must also meet

the other elements of this section.

Section 441i(e)(2) applies to funds

spent “solely in connection with

election for State or local office.”

Donations to 501(c)(3) organizations that conduct federal election

activity would not constitute the

spending of funds solely in connection with her election for state

office, and are therefore not permissible.

Ms. Tenenbaum’s request also

proposed that the donations should

nonetheless be permitted by the

exception at §441i(e)(4)(B). This

section, however, pertains only to

solicitations and does not extend to

donations; thus, it does not apply.

Donations to the South Carolina

Democratic Party or state legislative caucus committee. Similarly,

the Commission concluded that Ms.

Tenenbaum’s nonfederal campaign

funds may not be donated to the

South Carolina Democratic Party or

PACronyms, Other

PAC Publications

Available

The Commission annually

publishes PACronyms, an

alphabetical listing of acronyms,

abbreviations and common names

of political action committees

(PACs).

 For each PAC listed, the index

provides the full name of the

PAC, its city, state, FEC

identification number and, if not

identifiable from the full name,

its connected, sponsoring or

affiliated organization.

 The index is helpful in identifying PACs that are not readily

identified in their reports and

statements on file with the FEC.

 To order a free copy of

PACronyms, call the FEC’s

Disclosure Division at 800/424-

9530 (press 3) or 202/694-1120.

PACronyms also is available on

diskette for $1 and can be

accessed free at www.fec.gov/

pages/pacronym.htm.

Other PAC indexes, described

below, may be ordered from the

Disclosure Division. Prepayment

is required.

• An alphabetical list of all

registered PACs showing each

PAC’s identification number,

address, treasurer and

connected organization ($13.25).

• A list of registered PACs

 arranged by state providing the

 same information as above

 ($13.25).

• An alphabetical list of

organizations sponsoring PACs

 showing the PAC’s name and

identification number ($7.50).

The Disclosure Division can

also conduct database research to

locate federal political committees

when only part of the committee

name is known. Call the telephone

numbers above for assistance or

visit the Public Records Office in

Washington at 999 E St., NW.

AO 2003-33

Charitable Matching Plan

with Prizes for Donors

Anheuser-Busch Companies, Inc.

may count donations it makes to the

United Way through its PAC’s

Charitable Matching Program

toward a contributor’s eligibility to

receive prizes under the company’s

United Way program.

Background

Anheuser-Busch currently

administers both a Charitable

Matching Program to encourage

contributions to its PAC and a

United Way Program to encourage

employees to donate to charity.

Under the first, when an individual

contributes to the Anheuser-Busch

(continued on page 6)
Federal Election Commission RECORD February 2004

6

Advisory Opinions

(continued from page 5)

AO 2003-34

Reality TV Show to Simulate

Presidential Campaign

Three incorporated media

companies may fund, produce, air

and distribute a reality television

series depicting a fictional Presidential campaign without making a

prohibited corporate contribution or

expenditure because the proposed

show falls within the Federal

Election Campaign Act’s (the Act)

press or media exemption.

Background

Showtime Networks, a whollyowned subsidiary of Viacom, has

contracted with TMD Productions

(collectively, “the requesters”) to

produce American Candidate, a

“reality documentary series” that

will simulate a Presidential campaign. In the show, American

citizens will compete in a series of

events designed to test their political

skills. The competition will include

fundraising for charitable organizations, which will be the sole benefiCompanies, Inc. Political Action

Committee (AB-PAC), AnheuserBusch matches that contribution

with a donation to a charity designated by the contributing employee.

Under the second, Anheuser-Busch

gives prizes such as beer, steins or

plaques to employees who donate

directly to the United Way.

Prior to 2002, these programs

were separate. If an individual

participated in the Charitable

Matching Program and designated

the United Way as his or her charity,

then the donation did not count

toward the prize thresholds under

the United Way Program. In 2002,

Anheuser-Busch began to aggregate

donations so that these individuals

could receive prizes under the

United Way Program.

Analysis

Although corporations are

prohibited from making contributions or expenditures in connection

with any federal election, they are

allowed to use their treasury funds

to pay establishment, administration

and solicitation expenses for their

separate segregated fund (i.e., PAC).

However, a corporation may not use

this process as a means to exchange

treasury funds for voluntary contributions. A contributor may not be

rewarded for their contribution

through a bonus, expense account or

any other direct or indirect compensation. 11 CFR 114.5(b).

The Commission has allowed

charitable matching programs

similar to those offered by

Anheuser-Busch. Under the Charitable Matching Program, all treasury

funds go to a designated charity, not

the individual. The contributor does

not receive any tangible benefit and

there is no exchange of treasury

funds for contributions to AB-PAC.

See, for example, AOs 2003-4,

1990-6, and 1989-9.

The Commission has also allowed contributors to be rewarded

with prizes or tokens of appreciation. See AO 1981-40. These prizes

are permitted so long as they are not

disproportionately valuable compared to the contributions raised.

The cost of the prizes may not

exceed one-third of the money

raised. 11 CFR 114.5(b)(2).

Anheuser-Bush’s plan combines

these two permissible fundraising

methods, offering contributors both

a charitable match and a token of

appreciation. Since the value of the

prizes awarded under the United

Way Program do not exceed onethird of the amount raised under the

Charitable Matching Program, and

the prizes are not so valuable as to

constitute a tangible benefit to the

employee who contributes through

the Charitable Matching Program,

the plan is permissible.

Date Issued: December 12, 2003;

Length: 4 pages.✦

—Phillip Deen

ciaries of any funds raised. No

fundraising will be done for actual

federal candidates, officeholders or

committees, and no contestant will

be permitted to receive any monetary contributions to his or her

fictional campaign. The series may,

however, include appearances by

and references to actual federal

candidates in order to make the

simulated campaign appear realistic.

Potential contestants must sign a

release agreeing to automatic

disqualification if they become an

actual candidate, or a potential

candidate, for any public office. The

requesters plan to operate two web

sites to promote the series and its

contestants and to educate the public

about actual political campaigns.

Analysis

The Act prohibits “any corporation whatever” from making a

contribution or expenditure in

connection with a federal election.

2 U.S.C. §441b(a). The Act and

FEC regulations, however, make an

exception for press entities or media

entities, known as the “press exempBack Issues of the

Record Available on

the Internet

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other issues of the Record starting

with January 1996 are available

through the Internet as PDF files.

Visit the FEC’s World Wide Web

site at http://www.fec.gov and

click on “What’s New” for this

issue. Click “Campaign Finance

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the latest version of the software

for free.
February 2004 Federal Election Commission RECORD

7

tion or media exemption,” that

exempts from the definitions of

“contribution” and “expenditure”

any “news story, commentary, or

editorial distributed through the

facilities of any broadcasting

station, newspaper, magazine, or

other periodical publication, unless

such facilities are owned or controlled by any political party,

political committee, or candidate.”

2 U.S.C. §431(9)(B)(i); 11 CFR

100.73 and 100.132. The Act and

regulations also include a similar

exemption with respect to the

definition of an “electioneering

communication.” 2 U.S.C.

§434(f)(3)(B)(i); 11 CFR

100.29(c)(2).

In this case, the Commission

concluded that the requesters meet

the criteria within the Act and

regulations to qualify for the “press

or media exemption.” First, the

requesters qualify as press entities

and are not owned or controlled by a

political party, political committee

or candidate.1

 Second, the series as

proposed qualifies as “commentary”

within the meaning of the Act and

regulations. Thus, to the extent that

actual federal candidates or office

holders are depicted or discussed in

the series and accompanying web

sites, no contribution or expenditure

will result from corporate payments

for the production, promotion,

distribution or licensing of rights,

even if statements are included in

the series or accompanying web

sites that expressly advocate the

election or defeat of a clearly

identified federal candidate. Moreover, no broadcast or cablecast of

the series will constitute an electioneering communication.

Issued: December 19, 2003,

Length: 4 pages.✦

—Dorothy Yeager

1 See Readers Digest Association v.

FEC, 509 F. Supp. 1210, 1215

(S.D.N.Y. 1981) and FEC v. Phillips

Publishing, 517 F.Supp. 1308, 1312-

1313 (D.D.C. 1981), and AOs 2003-13,

1996-48 and 1982-44.

candidate whom the Commission

has certified as eligible to receive

payments but who no longer wished

to participate in the program.

However, the legislative history

does expressly recognize that a

Presidential primary candidate’s

participation in the program is

voluntary. See H.R. Conf. Rep. No.

93-1438, at 116 (1974). Moreover,

the Matching Payment Act’s

dependence on a candidate’s written

agreement and certification implicitly recognizes the voluntary nature

of participation in the program. In

addition, the Supreme Court held

that the voluntary nature of all of the

public funding programs permits the

related expenditure limits, while it at

the same time found expenditure

limits that were not voluntarily

accepted as part of a public funding

program to be unconstitutional. See

Buckley v Valeo, 424 U.S. 1, 57 n.

65 (1976). The voluntary nature of

the program supports the conclusion

that a candidate may withdraw from

the program prior to receiving

payments.

The Commission’s previous

resolution of similar issues is also

consistent with allowing a candidate

to withdraw prior to receiving

payments. In 1999 the Commission

allowed Elizabeth H. Dole to

withdraw from the program. Al1 Congressman Gephardt accepted

$3,131,788.10 in matching fund

payments on January 2, 2004. See

related article on page 13. Mr.

Gephardt has since withdrawn his

candidacy.

AO 2003-35

Presidential Candidate May

Withdraw from Matching

Payment Program

Congressman Richard A.

Gephardt, a Presidential candidate

in 2004, could choose to withdraw

from the Presidential Primary

Matching Payment Account Act’s

(the Matching Payment Act) public

funding program even though the

Commission has already certified

his eligibility to receive funds under

the program, so long as he withdraws before the payment date for

receiving funds.1

 Withdrawing from

the program would not require him

to refund any contributions or obtain

the contributors’ authorization to

retain the contributions. Moreover,

if he withdrew from the program,

Congressman Gephardt would not

be bound by the legal requirements

imposed as a result of participating

in the public funding program.

Background

On November 4, 2003, Congressman Gephardt and Gephardt for

President, Inc., (the Committee)

filed their threshold submissions to

the Commission to qualify for

primary matching funds under the

Matching Payment Act, along with

the necessary Candidate and Committee Agreements and Certifications under 26 U.S.C. §9033 and 11

CFR 90033.1. The Commission

subsequently certified to the Secretary of the U.S. Treasury that

Congressman Gephardt was eligible

to receive matching funds, which

were scheduled to be paid on

January 2, 2004.

Analysis

Withdrawal from the program.

Neither the Matching Payment Act

nor its legislative history addresses a

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(continued on page 8)
Federal Election Commission RECORD February 2004

8

though Ms. Dole withdrew from the

primary election before asking to

withdraw from the matching program, her withdrawal from the

election did not require her to

relinquish her claim to matching

funds. Indeed, other candidates in

that election cycle received public

funds to cover qualified campaign

expenses even though their campaigns ended before the initial

payment of matching funds.2

Finally, the Matching Payment

Act, Commission regulations and

the U.S. Treasury Department all

require the Secretary of the Treasury

to distribute the available funds

equally and to consider the sequence

in which the funds are certified for

candidates. 26 U.S.C. §9037(b). In

the event of a shortfall, the Secretary considers all funds certified for

all candidates in order to determine

how the funds should be distributed.

If the Commission withdraws its

certification of funds for a candidate, those funds will become

available for distribution to the

remaining eligible candidates. Thus,

withdrawing the certification of

eligibility for a candidate prior to

the date of payment would not

prejudice the other fund recipients.

In light of all of these factors, the

Commission would withdraw a

certification of a candidate’s eligibility to receive matching funds

prior to initial the payment date for

that candidate if the Commission

received a written request to do so

signed by the candidate.3

 The

Commission’s withdrawal of its

certification would constitute its

agreement to a candidate’s request

to rescind the Candidate and Committee Agreements and Certifications.4

Treatment of contributions.

Withdrawing from the public

funding program does not require

the committee to refund contributions or obtain authorization from

contributors to retain their contributions. The presumed intent of the

contributors is to assist in Congressman Gephardt’s 2004 Presidential

primary campaign, and the

Committee’s use of the contributions for this purpose satisfies that

intent. Moreover, in some instances

a publicly funded candidate does not

submit contributions for matching.

In these cases the Commission does

not require that the contribution be

refunded—whether a contribution is

matched by public funds is not an

aspect of contributor intent that the

Commission has previously considered sufficient to trigger refund

obligations.

Legal requirements of the Matching Payment Act. The Commission’s

withdrawal of its certification would

be its agreement to rescind the

Candidate and Committee Agreements and Certifications submitted

by Congressman Gephardt. Thus,

the Congressman, the Committee

and the Commission would not be

bound by the Matching Payment Act

obligations that are imposed solely

by virtue of that contract. For

example, Congressman Gephardt

and the Committee would not be

required to abide by the expenditure

limitations in 11 CFR part 9035 or

to permit an audit and examination

under 11 CFR part 9038. They

would, of course, remain subject to

the Federal Election Campaign Act

and Commission regulations, and

could be subject to an audit under 2

U.S.C. §438(b).

Deferring matching payments.

The Matching Payment Act, Commission regulations and the U.S.

Treasury Department all require that

the Commission promptly certify

the amounts to which candidates are

eligible. As a result, the Commission may not delay certification of

eligible funds while a candidate

determines whether he or she wants

to participate in the program.

However, candidates may choose to

withhold their threshold submission

until they are prepared to accept

matching payments and participate

in the program. See 11 CFR

9036.1(a).

Having already made his threshold submission, Congressman

Gephardt’s only legal option to

delay payment is to request that the

Commission withdraw its certification, thus entirely nullifying the

agreement. No provision of law

would prevent the Congressman

from submitting another Candidate

and Committee Agreement and

Certifications at a later point, and

any matchable contributions may be

included in a subsequent threshold

submission.

Date Issued: December 12, 2003;

Length: 7 pages.✦

—Amy Kort

2 This withdrawal of certification was

distinguished from AO 1996-7, in which

the Commission refused to consider a

candidate’s eligibility because he had

stated his ideological opposition to

accepting matching funds. In this case,

the Commission determined that the

candidate did not give the necessary

assent to the Candidate Agreement

under 26 U.S.C. §9033(a) and 11 CFR

9033.1(a)(2), and to all the conditions

stated therein.

3 The certification of funds must not be

pledged as security for private financing.

4 The Commission cautions, however,

that it must receive request no later

than December 30, 2003, so that it has

one business day to deliver a certification of withdrawal to the Secretary of

the Treasury before he issues payments

on the first business day of the Presidential election year.

AO 2003-36

Fundraising by Federal

Candidate/Officeholder for

Section 527 Organization

Federal candidates and/or officeholders participating in fundraising

activities on behalf of the Republican Governors Association (RGA)

may not solicit donations outside the

Advisory Opinions

(continued from page 7)
February 2004 Federal Election Commission RECORD

9

• Providing policy assistance

through conferences, debates and

public messages; and

• Providing a platform for the

Governors to express, develop and

promote their governing philosophies.

Fundraising for State Candidates,

State Messages and RGA

RGA intends for federal candidates and/or officeholders to participate in its fundraising activities:

• As featured guests at RGA

fundraising events;

• By having their names appear on a

written solicitation for RGA

fundraising events as the featured

guests or speakers; or

• By signing RGA’s written

fundraising solicitations.

For any of these fundraising

activities, the following conditions

will apply:

• Funds raised will be either explicitly solicited for the purpose of

assisting only in the election of

state candidates or in messages on

state issues mentioning only state

officials, or solicited only for RGA

and not to support any specific

state candidates.

• Donations in excess of the federal

contribution limits or from prohibited sources will be solicited;

however, in solicitations by federal

candidates/officeholders, notice

will be given to the solicitees that

the federal candidate/officeholder

is not raising funds outside the

Act’s amount limits or source

prohibitions.

• Oral and written solicitations by

federal candidates/officeholders

will refer to nonfederal candidates,

but will not refer to any federal

candidates (other than to name the

individual making the solicitation).

• Funds solicited “only for the RGA

and not to support any specific

State candidates” will be used for

RGA’s administrative and overhead expenses. They may also be

used to pay for public communications that would include a mass

mailing fundraising letter not

mentioning any federal candidate

and signed by the RGA Chair or

for an issue message concerning a

state issue.

Application of Bipartisan Campaign Reform Act (BCRA). As

amended by the BCRA, the Act

regulates the conduct of federal

candidates and officeholders, their

agents and entities directly or

indirectly established, maintained,

financed or controlled by them

when they raise or spend funds in

connection with either federal or

nonfederal elections. 2 U.S.C.

§441i(e)(1). The Commission’s

regulations stipulate that these

persons may solicit, receive, direct,

transfer, spend or disburse funds in

connection with any nonfederal

election only in amounts and from

sources that are consistent with state

law and that do not exceed the Act’s

contribution limits or come from

prohibited sources under the Act. 11

CFR 300.62.

Commission regulations define

the terms “to solicit” and “to direct”

as “to ask.” 11 CFR 300.2(m) and

(n). Thus, a federal candidate will

not be held liable for soliciting

funds in violation of these restrictions merely by virtue of attending

or participating in a fundraising

event at which nonfederal funds are

raised. See AOs 2003-3 and 2003-5.

In AO 2003-3, the Commission

addressed appearances, speeches

and solicitations by a federal

candidate/officeholder at

fundraising events for nonfederal

candidates where nonfederal funds

were raised. The Commission

interpreted the Act and regulations

to permit oral solicitations and

signatures on written solicitations by

the candidate/officeholder, so long

as the solicitations included or were

accompanied by a disclaimer

contribution limits and source

prohibitions of the Federal Election

Campaign Act (the Act). RGA,

which is registered with the IRS

under section 527 and acts as the

political and public policy organization of the Republican State Governors, conducts its activities in

connection with elections other than

federal elections. As a result, the

Act limits federal candidates’ and

officeholders’ ability to raise funds

to support these activities. 2 U.S.C.

§441i(e). Federal candidates and/or

officeholders may, however, attend

and participate in RGA’s

fundraising events held to support

state candidates, state issue messages, RGA and RGA’s “Conference Account,” and they may solicit

funds within the Act’s limits and

prohibitions, so long as certain

procedures are followed.

Moreover, because RGA’s

activities are in connection with

nonfederal elections, it may not

accept into any of its accounts

donations from sources that are

prohibited under the Act from

making a contribution in connection

with any election to any political

office, such as the Federal Home

Loan Mortgage Corporation, the

Federal National Mortgage Association. 2 U.S.C. §441b(a).

Background

RGA is not affiliated with a

national, state or local political party

committee. It raises exclusively

nonfederal funds, does not participate in federal elections and has not

engaged, and does not anticipate

engaging, in “federal election

activity.” See 2 U.S.C. §431(20) and

11 CFR 100.24.

RGA’s mission is to aid Republican Governors, gubernatorial

candidates and other state candidates by:

• Assisting in their elections, as

permitted by state law, through

direct contributions and participation in the discussion of state and

local issues; (continued on page 10)
Federal Election Commission RECORD February 2004

10

indicating that the federal candidate/

officeholder was only asking for

federally permissible funds. See 2

U.S.C. 441i(e)(1)(B); 11 CFR

300.62.

May a covered individual participate as a featured guest at an RGA

fundraising event? RGA’s activities

are in connection with the election

of gubernatorial and other state

candidates. Thus, federal candidates/officeholders may solicit

funds for these activities only in

amounts that do not exceed the

Act’s contribution limits or source

prohibitions. 11 CFR 300.62.

Federal candidates/officeholders

may, subject to certain conditions,

appear as featured guests or speakers at RGA fundraisers, and they

may otherwise participate in the

fundraising activities so long as they

do not solicit, direct, receive,

transfer or spend funds outside the

Act’s limits and prohibitions.

If a federal candidate/officeholder makes a speech without

asking for donations, he or she does

not need to issue a disclaimer, even

though speeches by others solicit

funds. If the federal candidate/

officeholder gives a speech generally soliciting funds without mentioning specific amounts, sources or

limitations, written notices must be

clearly and conspicuously displayed

at the event indicating that the

federal candidate/officeholder is

soliciting only federally permissible

funds. In the absence of written

disclaimers, a federal candidate/

officeholder must make an oral

disclaimer, which need only be

made once and need not be made

during his or her one-on-one

discussions with donors or other

people at the event. A federal

candidate/officeholder may not

inoculate a solicitation of nonfederal

funds by reciting a rote limitation,

but then encouraging the potential

donor to disregard the limitation.

See AO 2003-3.

May a federal candidate/officeholder participate by having his or

her name appear on written solicitations for an RGA fundraising event

as the featured guest or speaker.

May he or she sign an RGA solicitation letter?

The significant issues in determining whether a publicity statement is subject to the Act’s and

regulations’ restrictions on

fundraising are:

• Whether the publicity constitutes a

solicitation for funds; and

• Whether the federal candidate/

officeholder approved, authorized,

agreed or consented to be featured,

or named, in the publicity.

The mere mention of a federal

candidate or officeholder in the text

of a written solicitation does not, in

itself, constitute a solicitation or

direction of nonfederal funds by that

individual. See AO 2003-3.

If a federal candidate or officeholder agrees to be named or

featured in a solicitation, then the

solicitation must contain a clear and

conspicuous express statement that

it is limited to funds that comply

with the Act’s limits and prohibitions. Similarly, such a statement

must be provided if the federal

candidate or officeholder signs a

written fundraising solicitation for

RGA. Note that including a disclaimer in a fundraiser’s publicity

does not relieve a federal candidate/

officeholder of the requirements to

provide a disclaimer, if required, at

his or her actual appearance at the

subsequent event.1

Fundraising for the Conference

Account

RGA also maintains a segregated

Conference Account, from which it

pays for the administrative and

event costs associated with the

RGA’s Annual Conference and its

nationwide series of Governors’

Forums. Events funded by the

Conference Account are policy

discussions and not political events,

and they do not include planning for

campaigning or fundraising or for

the solicitation of funds for federal

or nonfederal candidates or political

committees. The large majority of

Conference Account expenses pay

for hotel fees, catering and meeting

space. Funds received and disbursed

by the Conference Account are not

incorporated into RGA’s reports

filed with the states in which it

conducts its activities. However,

funds received and disbursed by the

Conference Account are included in

RGA’s filings with the IRS and are

not separated out from the other

activities of RGA in those filings.

Advisory Opinions

(continued from page 9)

1 Although Advisory Opinion 2003-3

might be read to mean that a disclaimer

is required in publicity or other written

solicitations that explicitly ask for

donations “in amounts exceeding the

Act’s limitations and from sources

prohibited from contributing under the

Act,” that was not the Commission’s

meaning. The Commission wishes to

make clear that the covered individual

may not approve, authorize, agree, or

consent to appear in publicity that

would constitute a solicitation by the

covered person of funds that are in

excess of the limits or prohibitions of

the Act, regardless of the appearance of

such a disclaimer. However, the

Commission could not agree whether

the use of a covered person’s name in a

position not specifically related to

fundraising, such as “honorary

chairperson,” on a solicitation not

signed by the covered person, is

prohibited under the Act.

FECFile Help on Web

 The manual for the Commission’s FECFile 5 electronic filing

software is available on the

FEC’s web site. You can download a PDF version of the manual

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

electron.html.
February 2004 Federal Election Commission RECORD

11

Advisory Opinion Requests

AOR 2003-39

Permissibility of trade association

plan to match SSF contributions

with donations to charities (Credit

Union National Association, Credit

Union Legislative Action Council of

CUNA and North Carolina Local

Government Employees’ Federal

Credit Union, December 30, 2003)

AOR 2003-40

Aggregating independent expenditures to trigger 48-hour notice

requirement (U.S. Navy Veterans’

Good Government Fund, December

31, 2003)

AOR 2004-1

Presidential candidate’s endorsement of federal candidate in public

communication within 120 days of

election; implication of coordination

between the campaigns (BushCheney ’04 and Alice Forgy Kerr

for Congress, January 12, 2004—

20-day expedited response)✦

A federal candidate/officeholder

must comply with the requirements

described above when participating

in fundraising activities specifically

for RGA’s Conference Account.

RGA is registered with the IRS as a

section 527 political organization.

As recognized by the Supreme

Court in McConnell v. Federal

Election Commission,

“[s]ection 527 political organizations are, unlike 501(c) groups,

organized for the express purpose of engaging in partisan

political activity. They include

any ‘party, committee, association, fund, or other organization

(whether or not incorporated)

organized and operated primarily

for the purpose of directly or

indirectly accepting contributions

or making expenditures’ for the

purpose of ‘influencing or

attempting to influence the

selection, nomination, or appointment of any individual for

Federal, State, or local public

office.’” 26 U.S.C. §527(e).

McConnell, 124 S.Ct., at 678,

n.67.

RGA states as its purpose on its

IRS registration form that it “supports the election of Republican

Governors and other nonfederal

candidates, promotes Republican

policies, and engages in other state

and local election activities.”

Additionally, the RGA may have

claimed that Conference Account

income is exempt function income

under 26 U.S.C. §527. As such,

donations or “contributions” to the

Conference Account must be treated

in the same manner as donations for

other purposes of RGA. Therefore,

the solicitation of funds for the

Conference Account constitutes

fundraising in connection with an

election other than an election for

federal office under 2 U.S.C.

§441i(e)(1)(B) and 11 CFR 300.62.

Moreover, the Conference

Account may not accept donations

from a corporation established by

the authority of Congress. The Act

BCRA on the FEC’s

Web Site

 The Commission has a section

on its web site (www.fec.gov)

devoted to the Bipartisan

Campaign Reform Act of 2002

(BCRA).

The page provides links to:

• The Federal Election Campaign

 Act, as amended by the BCRA;

• Summaries of major BCRA-

 related changes to the federal

 campaign finance law;

• Summaries of litigation

 involving challenges to the new

 law;

• Federal Register notices

announcing new and revised

Commission regulations that

 implement the BCRA;

• BCRA-related advisory

 opinions; and

• Information on educational

 outreach offered by the

Commission, including

upcoming Roundtable sessions

 and the Commission’s

2004 conference schedule.

 The section also allows

individuals to view the

Commission’s calendar for

rulemakings, including dates for

the Notices of Proposed

Rulemaking, public hearings,

final rules and effective dates for

regulations concerning:

• Soft money;

• Electioneering Communications;

• Contribution Limitations and

 Prohibitions;

• Coordinated and Independent

 Expenditures;

• The Millionaires’ Amendment;

• Consolidated Reporting rules;

 and

• Other provisions of the BCRA.

 The BCRA section of the web

site will be continuously updated.

Visit www.fec.gov and click on

the BCRA icon.

prohibits “any corporation established by authority of any law of

Congress” from making a contribution in connection with any election

to any political office. 2 U.S.C.

§441b(a). As indicated above,

contributions or donations to RGA’s

Conference Account would be in

connection with a nonfederal

election. Therefore, the Conference

Account may not accept contributions or donations from the Federal

Home Loan Mortgage Corporation

or the Federal National Mortgage

Association.

Date Issued: January 12, 2004;

Length: 8 pages.✦

—Amy Kort
Federal Election Commission RECORD February 2004

12

treasury funds in connection with

any election of any candidate for

federal office. 2 U.S.C. §441b(a).

In addition, the Act prohibits

making a contribution in the name

of another, knowingly permitting

one’s name to be used to effect such

a contribution and knowingly

accepting such a contribution.

Further, no person may knowingly

help or assist any person in making

a contribution in the name of

another. 2 U.S.C. §441f and 11 CFR

110.4(b)(1)(iii). This prohibition

also applies to any person who

provides the money to others to

effect contributions in their names.

11 CFR 110.4(b)(2).

CCG is a wholly-owned subsidiary of Centex Corporation and acts

as an umbrella group for regional

construction units, including

Rooney. In March 1998, Mr. Moss,

who was at the time the Chairman,

President and CEO of Rooney, met

with CCG President Brice Hill and

its former Executive Vice President

and COO Kenneth Bailey to discuss

the company’s discretionary bonus

program. Mr. Moss suggested that

the company should compensate or

reward Rooney employees for

political contributions they made

during the year by recognizing the

contributions as the primary component of the discretionary bonus

process paid out of a CCG account.

Mr. Hill agreed that it would be

appropriate to consider employee

political contributions, as well as

other political and community

activities, when determining bonus

amounts.

Rooney management encouraged

employees to send copies of contribution checks to either Mr. Moss or

Gary Esporrin, then Rooney’s CFO.

Employees understood that each of

these political contributions would

be considered in determining their

year-end bonuses. Some of these

contributions were solicited by

Rooney executives, including Mr.

violations of the Act and waived

their rights to a refund of all political contributions from the recipient

committees. In addition, CCG and

Rooney will instruct the recipient

committees to disgorge the prohibited contributions in question to the

U.S. Treasury.

The officers and employees who

served as conduits for the contributions were Mr. Moss, Mr. Esporrin,

Bruce Moldow, Gary Glenewinkel,

D.J. McGlothern, Albert Petrangeli,

Ted Adams, J. Michael Wood,

Raymond Southern, Larry Casey

and David Hamlin. They are responsible for $56,000 of the civil penalty

and also agreed to cease and desist

from further such violations of the

Act and to waive their rights to a

refund of all political contributions

from the recipient committees.✦

—Amy Kort

Moss. At bonus time, the contribution amounts were increased to

offset tax liability and added to the

bonus amounts each employee

would have otherwise received from

any incentive plan. Mr. Moss

ultimately approved the discretionary management bonuses, and the

Rooney bonus pool was reviewed

and approved by CCG. The plan

continued from fiscal year 1998

through fiscal year 2003.

There is no indication that any

Centex Corporation executive or

any of the recipient federal candidates and political committees were

aware that the contributions were

being reimbursed with corporate

funds.1

 When Centex Corporation

senior management learned of the

reimbursement scheme, it began an

internal investigation that resulted in

the voluntary disclosure made to the

Commission. All of the respondents

fully cooperated with the Commission throughout the course of its

investigation, which helped facilitate a timely resolution of the

matter.

Civil Penalties

Centex Construction Group, Inc.,

Centex-Rooney Construction Co.,

Inc., and the following corporate

officers who consented to the

reimbursement plan are responsible

for $112,000 of the civil penalty:

Mr. Moss, Mr. Esporrin, Mr. Hill,

Mr. Bailey, Chris Genry and Mark

Layman. These respondents agreed

to cease and desist from further such

Compliance

(continued from page 1)

1 When Mr. Moss was promoted to CEO

of CCG in January 2000, he met the

Chairman and CEO of Centex Corporation. Mr. Moss raised the issue of the

company’s political contribution

strategy, but did not discuss the

discretionary management bonus

program with the CEO. The CEO told

Mr. Moss to follow company guidelines

and legal advice. After the meeting, Mr.

Moss told certain CCG personnel that

the discretionary management bonus

program should be continued.

Public Appearances

February 2, 2004

American University

Washington, DC

Vice Chair Weintraub

February 6-7, 2004

University of Pennsylvania Law

Review

Philadelphia, PA

Chairman Smith

February 9, 2004

American University

Washington, DC

Chairman Smith

February 13-15, 2004

National Association of State

Election Directors

Washington, DC

Eileen Canavan
February 2004 Federal Election Commission RECORD

13

Matching Funds for 2004 Presidential Candidates:

December Certification

Candidate Certification Cumulative

December 2003 Certifications

Wesley K. Clark (D) $3,733,354.47 $3,733,354.47

John R. Edwards (D) $3,368,039.67 $3,368,039.67

Richard A. Gephardt (D) $3,131,788.10 $3,131,788.10

Dennis J. Kucinich (D) $735,665.22 $735,665.22

Lyndon H. LaRouche, Jr. (D) $838,848.34 $838,848.34

Joseph Lieberman (D) $3,609,658.04 $3,609,658.04

Public Funding

Commission Certifies

Matching Funds for

Presidential Candidates

On December 30, 2003, the

Commission certified

$15,417,353.84 in federal matching

funds to six Presidential candidates

for the 2004 election.1

 The U.S.

Treasury Department made the

payments on January 2, 2004.

Under the Presidential Primary

Matching Payment Account Act, the

federal government will match up to

$250 of an individual’s total contributions to an eligible Presidential

primary candidate. A candidate

must establish eligibility to receive

matching payments by raising in

excess of $5,000 in each of at least

20 states (i.e., over $100,000).

Although an individual may contribute up to $2,000 to a primary

candidate, only a maximum of $250

per individual applies toward the

$5,000 threshold in each state.

Candidates who receive matching

payments must agree to limit their

spending and submit to an audit by

the Commission. 26 U.S.C.

§9033(a) and (b); 11 CFR 9033.1

and 9033.3.

Candidates may submit requests

for matching funds once each

month. The Commission will certify

an amount to be paid by the U.S.

Treasury the following month. Only

contributions from individuals in

amounts of $250 or less are matchable. The chart below lists the

amount certified to each candidate.

While the current Fund balance is

sufficient to pay these certifications

in full, there may not be enough

money in the Fund to pay full

certifications in February. In the

event of a shortfall in the Fund, the

U.S. Treasury will make reduced

payments until the Fund has been

replenished by future checkoff

designations on 2003 tax returns, at

which time each campaign will

receive the amount it is due. See the

January 2004 Record, page 23.

The Commission has also certified $14,592,000 to each of the two

major political parties, for their

2004 Presidential Nominating

Conventions.✦

—Amy Kort 1 Note that Howard Dean, John Kerry

and President Bush have declined to

participate in the Matching Fund

program.

Dean Requests Withdrawal

of Certification for Matching

Funds

On December 18, 2003, the

Commission withdrew its certification that Presidential candidate

Howard Dean and his authorized

committee, Dean for America (the

Committee), were eligible to receive

public matching payments. The

action came after Dr. Dean informed

the Commission that he “no longer

wish[es] to participate in the Matching Payment system administered by

the Commission” and “withdraw[s]

the candidate agreement filed with

the Commission pursuant to 11

C.F.R. § 9033.1 and 2.” Since the

Committee will not be receiving

federal matching funds, the Commission will not conduct a mandatory audit of the Committee

pursuant to 26 U.S.C. §9038(a).✦

—Amy Kort

Conference in Tampa

Late registration for the FEC’s

February 11-12 conference in

Tampa, FL, will be accepted on a

first-come, first served basis. The

conference will address issues of

concern to House and Senate

campaigns, political party

committees and corporations,

labor organizations, trade

associations, membership

organizations and their respective

PACs. The two person per

organization limit has been

waived for this conference. For

complete, up-to-date registration

information visit the FEC web

site at http://www.fec.gov/pages/

infosvc.htm#Conferences.
Federal Election Commission RECORD February 2004

14

Committees Fined and Penalties Assessed

 1. Akram for Congress, Inc. $4,3751

 2. Americans United in Support of Democracy $9001

3. Bakery Confectionery Tobacco Workers & Grain

Millers International Union Local No. 19

Political Organization (BCTGM) $3121

 4. Barham for Congress, Inc. $02

 5. Battles for Congress $3,3751

 6. Ben Jones for Congress $900

 7. Brightharp for Congress $598

 8. Committee to Elect Kutsch $1,8001

 9. Dorsey National Fund October Quarterly 2002 $2,500

10. Dorsey National Fund 12 Day Pre-General 2002 $1,250

11. Dub Maines for Congress $1,3501,2

12. Ed Tinsley for Congress $02

13. Friends for Farley $900

14. Friends of Bob Gross Committee $2,7001

15. Friends of Margaret Workman $11,2501

16. Jay Blossman for U.S. Senate $5252

17. Jeff Fink for Congress $186

18. Joe Grimaud for Congress Committee $5,5003

19. Joe Slovinec for Congress Campaign Committee $02

20. John Taylor for Congress $1,1252

21. Kennecott Holdings Corporation PAC

(aka Kennecott PAC) $1,000

22. Lori Lustig for Congress $1,8001

23. Mike Greene for Congress Committee $5,6251

24. Mike Hathorn for Congress Committee $800

25. National Italian American Political Action Committee $2,0251,2

26. Ogles for Congress $2,700

27. Philip Lowe for Congress $11,8751

28. Randy Knepper for Congress $4,5001

29. Riverside County Republican Central Committee ____4

30. Roberts 2002 $5,6501

31. Skorski for Congress $2,7001

32. Stephanie Tubbs Jones for US Congress $400

33. Stuart Johnson for Congress $2,7005

34. Syed Mahmood for Congress $2,2501

1

This civil money penalty has not been collected.

2 This penalty was reduced due to the level of activity on the report.

3 This penalty was reviewed in the U.S. District Court for the District of South

Carolina, Columbia Division. The court entered a judgment in the

Commission’s favor on August 18, 2003. The Commission referred the debt

for collection after the respondents did not appeal within 60 days of the

court’s decision. See Cannon v. FEC, summarized in the October 2003

Record, page 13.

4 The Commission took no further action in this case.

5 The Commission has collected $1,045.59 of the penalty.

Committees Fined for

Nonfiled and Late Reports

The Commission recently

publicized its final action on 41 new

Administrative Fine cases, bringing

the total number of cases released to

the public to 874, with $1,164,638

in fines collected by the Commission.

Civil money penalties for late

reports are determined by the

number of days the report was late,

the amount of financial activity

involved and any prior penalties for

violations under the administrative

fines regulations. Penalties for late

reports—and for reports filed so late

as to be considered nonfiled—are

also determined by the financial

activity for the reporting period and

any prior violations. Election

sensitive reports, which include

reports and notices filed prior to an

election (i.e., 12 day pre-election,

October quarterly and October

monthly reports), receive higher

penalties. Penalties for 48-hour

notices that are filed late or not at all

are determined by the amount of the

contribution(s) not timely reported

and any prior violations.

The committees and the treasurers are assessed civil money penalties when the Commission makes its

final determination. Unpaid civil

money penalties are referred to the

Department of the Treasury for

collection.

The committees listed in the chart

at right, along with their treasurers,

were assessed civil money penalties

under the administrative fines

regulations.

Closed Administrative Fine case

files are available through the FEC

Press Office, at 800/424-9530 (press

2), and the Public Records Office, at

800/424-9530 (press 3).✦

—Amy Kort

Administrative

Fines
February 2004 Federal Election Commission RECORD

15

DC Conference for House

and Senate Campaigns and

Party Committees

The FEC will hold a conference

in Washington, DC, March 16-17,

2004, for House and Senate campaigns and political party committees. The conference will consist of

a series of workshops conducted by

Commissioners and experienced

FEC staff who will explain how the

federal campaign finance law, as

amended by the Bipartisan Campaign Reform Act of 2002 (BCRA),

applies to each of these groups.

Workshops will specifically address

rules for fundraising and reporting

and will explain the new provisions

of the BCRA. A representative from

the IRS will also be available to

answer election-related tax questions.

The conference will be held at the

Loews L’Enfant Plaza Hotel,

located near the National Mall and

Smithsonian museums in Washington, DC. The conference registration

fee is $350, which covers the cost of

the conference, materials and meals.

Outreach

Committees Fined and Penalties Assessed, cont.

35. Take Back the House $1,8001

36. Tim Johnson for South Dakota, Inc. $1,350

37. Uniformed Firefighters Association PAC (FIRE PAC) $2,250

38. United Association of Journeymen & Apprentices/

Plumbing & Pipe Fitting Industry Local Union 335

October Quarterly 2002 $1,100

39. United Association of Journeymen & Apprentices/

Plumbing & Pipe Fitting Industry Local Union 335

30-Day Post General 2002 $475

40. United Republican Finance Committee $350

41. 15th District Democratic Party $9001

1

This civil money penalty has not been collected.

A $10 late fee will be assessed for

registration forms received after

February 20.

The Loews L’Enfant Plaza Hotel

is located at 480 L’Enfant Plaza

S.W., Washington, DC. A room rate

of $189 per night (single or double)

is available for conference attendees

who make reservations on or before

February 20. To make reservations,

call toll free (800/635-5065) or

locally (202/484-1000, ext. 5000)

and state that you are attending the

FEC conference. After February 20,

room rates are based on availability.

Parking is available at the hotel for a

fee of $15 per day and $22 overnight. The hotel is located near the

L’Enfant Plaza Metro and the

Virginia Railway Express stations.

Registration

Complete conference program

and registration information is

available online. Conference

registrations will be accepted on a

first-come, first-served basis, and

registrations are limited to two

representatives per organization.

FEC conferences are selling out

quickly, so please register early. For

registration information concerning

any FEC conference:

• Call Sylvester Management

Corporation at 800/246-7277;

• Visit the FEC web site at http://

www.fec.gov/pages/

infosvc.htm#Conferences; or

• Send an e-mail to

lauren@sylvestermanagement.com.✦

—Amy Kort

Conference Schedule

for 2004

Conference for House and

Senate Campaigns, Political

Party Committees and

Corporate/Labor/Trade PACs

February 11-12, 2004

Tampa, FL

Conference for House and

Senate Campaigns and Political

Party Committees

March 16-17, 2004

Washington, DC

Conference for Corporations

and their PACs

April 22-23, 2004

Washington, DC

Conference for Trade

Associations, Membership

Organizations and their PACs

May 25-26, 2004

Boston, MA

The first number in each citation

refers to the “number” (month) of

the 2004 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 4.

Advisory Opinions

2003-28: Nonconnected PAC

established by LLC composed

entirely of corporations may

Index

(continued on page 16)
FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

Official Business

Penalty for Private Use, $300

Federal Election Commission RECORD February 2004

PRESORTED STANDARD

U.S. POSTAGE

PAID

FEDERAL ELECTION COMMISSION

become an SSF with LLC as its

connected organization, 1:20

2003-29: Transfer of funds from a

nonfederal PAC to a federal PAC

of an incorporated membership

organization, 1:21

2003-30: Retiring campaign debt

and repaying candidate loans, 2:1

2003-31: Candidate’s loans to

campaign apply to Millionaires’

Amendment threshold, 2:2

2003-32: Federal candidate’s use of

surplus funds from nonfederal

campaign account, 2:4

2003-33: Charitable matching plan

with prizes for donors, 2:5

2003-34: Reality television show to

simulate Presidential campaign,

2:6

2003-35: Presidential candidate may

withdraw from matching payment

program, 2:7

2003-36: Fundraising by federal

candidate/officeholder for section

527 organization, 2:8

Compliance

ADR program cases, 1:25

Administrative Fine program cases,

1:24

Enforcement Query System, disclosure policy for closed enforcement matters and press release

policy for closed MURs; “enforcement profile” examined, 1:6

MUR 5229: Collecting agent’s

failure to transfer contributions,

1:7

MUR 5357: Corporation’s reimbursement of contributions, 2:1

Court Cases

_____ v. FEC

McConnell v. FEC, 1:1

Regulations

Leadership PACs, final rules, 1: 18

Index

(continued from page 15)

Public financing of Presidential

candidates and nominating

conventions, correction and

effective date, 1:19

Travel on behalf of candidates and

political committees, final rules,

1:19

Reports

Due in 2004, 1:9

Kentucky special election reporting,

1:9