Your web browser is not supported You're using Internet Explorer, some features might not work. Please switch to another browser like Chrome, Firefox, or Edge for a better experience.


An official website of the United States government Here's how you know
 **Official websites use .gov**
            
            A **.gov** website belongs to an official government organization in the United States.
 **Secure .gov websites use HTTPS**
            
            A **lock** ( A locked padlock ) or **https://** means you've safely connected to the .gov website. Share sensitive information only on official, secure websites.


Federal Election Commission | United States of America Calendar
           Glossary
          Search
              Search


Menu
      Home
      Campaign finance data
        All data
            Raising
            Spending
            Loans and debts
            Filings and reports
            Candidates
            Committees
            Bulk data
            Campaign finance statistics
        Find elections. Search by state or ZIP code
          Look up contributions from specific individuals
      Help for candidates and committees
        All compliance resources
            Guides
            Forms
            Dates and deadlines
            Trainings
        Learn about electronic filing
          Find and contact your committee's analyst
      Legal resources
        All legal resources
            Advisory opinions
            Enforcement
            Statutes
            Legislation
            Regulations
            Court cases
            Policy and other guidance
        Search across all legal resources
          Search guidance documents
      About
        All about the FEC
            News and announcements
            Commission meetings
            Mission and history
            Leadership and structure
            Reports about the FEC
            Careers
            Working with the FEC
            Contact
        Introduction to campaign finance and elections


- Home
- ›
      FEC Record: Advisory opinions
- ›
      AO 2011-14: SSF communications to public

FEC Record: Advisory opinionsAO 2011-14: SSF communications to publicOctober 4, 2011 An SSF may make communications to the general public that ask individuals to contribute directly to particular federal candidates.  **Background** Utah Bankers Association (UBA) is an incorporated tax-exempt trade association for Utah’s commercial banks, savings banks and industrial loan corporations, and is a state affiliate of the American Bankers Association. The Utah Bankers Association Action
    PAC (UBAAPAC) is the separate segregated fund of UBA.  UBAAPAC intends to solicit the general public by email and through a public website to make contributions directly to federal candidates (the “Project”). The Project will have its own name (“Friends of Traditional Banking”), as well as its own website
    and email address. UBAAPAC will assemble two councils to lead the Project: one council will identify federal candidates who support policies favorable to traditional banking, and the other council will select a small number of candidates from that
    list to be included in the Project’s communications. The councils will be composed of employees of state bankers associations who will serve on the councils as part of their regular employment responsibilities, as well as uncompensated individuals
    who are not employed by, but who may be members of, state bankers associations. The Project will encourage members of the councils to forward the Project’s emails to individuals on the members’ personal contact lists. It will also encourage email recipients to forward the emails and to refer others to the Project’s website. The website
    and emails will contain a disclaimer stating, in a printed box, that the communications are “Paid for by Friends of Traditional Banking, a project of Utah Bankers Association Action PAC. Not authorized by any candidate or candidate’s committee. www.FriendsOfTraditionalBanking.com.” The Project will not accept or forward earmarked contributions to a candidate or a candidate’s authorized committee, nor will it solicit contributions to itself or to UBAAPAC, or make contributions to candidates. The Project also intends to conduct its
    activities independently of federal candidates and political party committees. UBA will pay the Project’s administrative costs, including legal and phone costs, and intends to accept payments from affiliated incorporated state bankers associations to help defray the Project’s administrative costs. UBAAPAC will pay for the Project’s
    website and email expenses (including staff time spent creating email and website content, Internet vendor costs and server time). To cover these costs, UBAAPAC may use funds transferred from UBAAPAC’s affiliated political committees. The Project
    plans to cover the costs of forwarding emails for each council member who works at a state bankers association by making an annual advance payment of fifty dollars to that member’s association.  The Project’s disbursements will be reported to
    the Commission on UBAAPAC’s Form 3X.  **Analysis** First, the Commission considered whether the Project’s proposed website and email communications soliciting contributions to federal candidates would result in in-kind contributions to those candidates.  The Federal Election Campaign Act (the Act) and Commission regulations prohibit corporations, including incorporated trade associations, from making contributions to candidates or their authorized committees. 2 U.S.C. § 441b(a); 11 CFR 114.2(a),
    (b), (f), and 114.8(b). A payment for a communication to the general public that is coordinated with a federal candidate is an in-kind contribution to the candidate. 2 U.S.C. § 441a(a)(7)(B)(i); 11 CFR 109.21(b). Commission regulations provide a three-prong
    test to determine if a communication is a coordinated communication. 11 CFR 109.21(a). First, the communication must be paid for, in whole or in part, by a person other than the federal candidate, the candidate’s authorized committee or the political
    party committee (the payment prong); second, the communication must satisfy one of the five content standards (the content prong); and third, the communication must satisfy one of the five conduct standards (the conduct prong). 11 CFR 109.21(a), (c)
    and (d). A communication must satisfy all three prongs to be considered an in-kind contribution. 11 CFR 109.21. In this case, the Commission concluded that the Project’s proposed website and email communications will not result in in-kind contributions to candidates because the communications did not meet the content prong of the coordinated communications test.
    To meet the content prong, a communication must be either a “public communication” as defined in 2 U.S.C. § 431(22) and 11 CFR 100.26, or an “electioneering communication” as defined in 2 U.S.C. § 434(f)(3) and 11 CFR 100.29. Because the Project’s
    communications will appear only on the Project’s own website and by email, the communications will not be public communications or electioneering communications. See 11 CFR 100.26 (an Internet communication that is not placed for a fee on another
    person’s website is not a public communication); 11 CFR 100.29 (electioneering communications are limited to broadcast, cable or satellite communications). Therefore, payment for the communication would not be considered coordinated and would not
    result in an in-kind contribution. Next, the Commission considered several questions regarding activities by council members. First, the Commission examined whether uncompensated council members who are not employees of the state bankers associations would be considered volunteers, or
    whether the value of their service would be considered contributions to UBAAPAC. Under the Act and Commission regulations, the term “contribution” does not include “the value of services provided without compensation by any individual who volunteers
    on behalf of a candidate or political committee.” 2 U.S.C. § 431(8)(B)(i); 11 CFR 100.74. Thus, “a person''s time and services, if donated, without payment or compensation, to or on behalf of a [political] committee will not constitute a ‘contribution’
    under the Act.” See Advisory Opinions (AOs) 2007-08 (King), 1982-04 (Apodaca)    and 1980-88 (Citizens for Election of Harry Davis as President Committee). Therefore, the Commission concluded that, as long as the individuals do not receive any
    payment or other form of compensation for their service on the councils, they would be serving in their personal capacities as volunteers and the value of their service on the councils would not be a contribution to UBAAPAC.  The Commission was
    unable to agree, however, on whether use of the volunteers’ corporate titles, even if only for identification purposes, in Project communications that list the members of the councils, might result in the making of a prohibited corporate contribution. The Commission also considered whether council members could forward the Project’s email solicitations to their personal friends and acquaintances without making a contribution to UBAAPAC, and whether the council members could use their corporate employers’
    computers to forward the emails without causing a prohibited corporate contribution to UBAAPAC. The term “contribution” does not include individual’s use of equipment or services for uncompensated Internet activities, regardless of who owns the equipment and services. 11 CFR 100.94. Internet activities include sending and forwarding emails. 11 CFR
    100.94(b). The Commission has also established a safe harbor which permits corporations to allow their employees to use corporate computer and Internet facilities to engage in voluntary individual Internet activities, as defined in 11 CFR 100.94,
    without a corporate contribution resulting, provided that the activity does not prevent the employee from completing the normal amount of work for which the employee is paid or is expected to perform, does not increase the corporation’s overhead or
    operating costs and is not coerced. 11 CFR 114.9(a)(2)(ii). Under these provisions, the Commission concluded that the council members may forward the emails and may use their employers’ computer equipment without the activities resulting in contributions to UBAAPAC. With regard to individuals who serve on the
    councils in their personal capacity as volunteers, the activities would not be considered contributions so long as the council members forward the emails as uncompensated volunteers and as long as the use of the corporate computers and Internet facilities
    fall within the safe harbor. State association employees who serve on the councils also may forward the emails.  The Commission determined that an advance annual payment by UBAAPAC to each council member’s state association to cover costs associated
    with the member’s forwarding of Project email solicitations would not result in facilitation of a contribution if the advance payment is the fair market value of the council member’s services. 11 CFR 114.2(f)(2)(i)(A). The Commission also noted that the Project’s disclaimer language must be revised to comply with the Act and Commission regulations. All “public communications,” as defined in 11 CFR 100.26, made by a political committee; electronic mail of more than 500
    substantially similar communications when sent by a political committee; and all Internet websites of political committees available to the general public must include a disclaimer identifying who paid for and, where applicable, who authorized the
    communication. 11 CFR 110.11(a); see also 2 U.S.C. §§441d(a), 431(22). If the communication is not authorized by a candidate (or the candidate’s authorized committees or agents), the disclaimer must “clearly state the full name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication, and that the communication is not authorized by any candidate or candidate’s committee.” 11 CFR 110.11(b)(3); see also 2 U.S.C. § 441d(a)(3). In this case, UBAAPAC will pay for the Project’s email and website communications, but the proposed disclaimer identifies the Project, rather than UBAAPAC, as the payor, and does not provide UBAAPAC’s permanent street address, telephone number or website
    address. Therefore, the disclaimer must be revised to show UBAAPAC as the payor and include UBAAPAC’s permanent street address, telephone number or website address. The Commission added that the Project is not required to include disclaimers beyond
    those required under 11 CFR 110.11 to its email solicitations in anticipation of the emails being forwarded by the intended recipients to other individuals. Finally, the Commission approved the proposed methods of funding the Project’s administrative and communication costs. Although the Act and Commission regulations prohibit a corporation from making contributions in connection with any federal election,
    the definition of “contribution” does not include expenses paid by a corporation for “the establishment, administration, and solicitation of contributions to” the corporation’s SSF. 2 U.S.C. § 441b(a) and (b)(2)(C); 11 CFR 114.2(a). These establishment,
    administration and solicitation costs are “the cost of office space, phones, salaries, utilities, supplies, legal and accounting fees, fundraising and other expenses incurred in setting up and running a separate segregated fund established by a corporation.”
    11 CFR 114.1(b). Here, UBAAPAC would finance the Project’s communications costs, including the Project’s website and email expenses, and defray these costs through payments from UBAAPAC’s affiliated political committees. Affiliated political committees share contribution
    limits and may transfer funds freely among themselves.  2 U.S.C. § 441a(a)(5); 11 CFR 100.5(g)(2), 102.6(a)(1), 110.3(a)(1), and 110.3(c)(1). Because the Project is not a separately established legal entity but is, rather, a specially named undertaking
    of UBAAPAC, UBAAPAC may receive unlimited transfers of funds from its affiliated political committees to help defray the Project’s costs. The Commission also concluded that UBA may pay the Project’s administrative costs. As UBAAPAC’s connected organization,
    UBA may use its general treasury funds to pay the Project’s administrative costs without those payments being contributions to UBAAPAC. 2 U.S.C. §§ 431(7) and 441b(b)(2)(C); 11 CFR 114.1(b) and 100.6(a). The Commission considered, but could not approve a response by the required four affirmative votes on the consequences of UBA’s acceptance of payments from its affiliated state bankers associations to help pay the Project’s administrative costs, nor on
    the circumstances under which affiliated state bankers associations may provide support to UBAAPAC by compensating their employees for serving on the councils. Date issued: September 22, 2011; Length: 9 pages  **Resources:** Advisory opinion 2011-14 [PDF; 4 pages]
    Commission's consideration of AOR 2011-14 Audio File Icon
    Brochure: *Volunteer Activity*


Read next: AO 2011-19: Corporation may establish program to transmit its customers’ funds to political committees
 Related: Explore legal resources »


This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


About
          Careers
          Press
          Contact
   Privacy and security policy
          Plain language
          No FEAR Act
          Strategy, budget and performance
 Open government
          Protected Voices
          USA.gov
          Inspector General
          FOIA
 OpenFEC API
          GitHub repository
          Release notes
          FEC.gov status


Federal Election Commission
 The FEC's Twitter page
            The FEC's YouTube page Sign up for FECMail


Hide glossary Glossary Search terms