AGENDA DOCUMENT NO. 10-16 

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

MEMORANDUM
 

TO: 

FROM: 

Subject: 

The Commission 

Chairman Matthew S. Petersen ~~.

Commissioner Caroline C. Hunter CC 

Commissioner Donald F. McGahn II " 

/­

Proposed Interim Enforcement Policy 

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March 10,2010 

AGENDA ITEM 

For Meeting of 03 U-I,Q 

SUBMITTED LATE 

Attached is a proposed interim enforcement policy. We have asked to place this 

draft on the agenda for March 11, 2010. 

Attachment 
FEDERAL ELECTION COMMISSION 

11 CFR Part 100 

[NOTICE 2010-XX] 

"Volunteer Mail" Exemption 

AGENCY: Federal Election Commission 

ACTION: Interim Enforcement Policy 

SUMMARY: This notice expresses the view of the Commission regarding the 

exemption from the definition of "contribution" and "expenditure" for the 

payment by a State or local committee of a political party ofthe costs of 

certain campaign materials used by such committee in connection with 

volunteer activities on behalf of nominees of such party. 

DATES: Effective [upon publication in the Federal Register]. 

FOR FURTHER 

INFORMATION 

CONTACT: ______, Assistant General Counsel, or _ 

Attorney, 999 E Street, NW, Washington, DC 20463, (202) 694-1650 or 

(800) 424-9530. 

SUPPLEMENTARY 

INFORMATION: 

I. Background 

The Federal Election Campaign Act, 2 U.S.c. 431 et seq., as amended ("FECA" 

or "the Act") limits the amount that a State or local political party committee 

may contribute to or make an expenditure on behalf of a federal candidate. See 2 

U.S.c. 441a(a)(2)(A), 441a(d). However, the Act exempts certain activities from 

the definition of "contribution" and "expenditure." See 2 U.S.C. 431 (8)(B) and 

(9)(B). As a result of these exemptions, State and local party committees may 

spend unlimited amounts on costs associated with the production and 

dissemination of certain campaign materials distributed in connection with 

volunteer activities on behalf of the nominees of such a party (hereinafter 

"volunteer materials exemption"). See 2 U.S.c. 431(8)(B)(ix) and (9)(B)(viii); 11 

CFR 100.87 and 100.147. Under the volunteer materials exemption, the term 

"campaign materials" generally refers to items such as pins, bumper stickers, 

handbills, brochures, posters, party tabloids and yard signs. 

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To qualify for the volunteer materials exemption, a State or local party committee 

must satisfy certain conditions: (a) the committee's "payment may not be made 

for the costs incurred in connection with any broadcasting, newspaper, magazine, 

billboard, direct mail or similar type of general public communication or political 

advertising;" (b) the portion ofthe cost ofthe campaign materials allocable to a 

Federal candidate must be paid with funds subject to the Act's limitations and 

source prohibitions; (c) the committee's payment may not be made from 

contributions to the committee that have been designated by the donor for use on 

behalf a particular Federal candidate; (d) the campaign materials must be 

"distributed by volunteers" and not by commercial or for-profit operations; (e) the 

committee must report the payment as a disbursement; and (f) the campaign 

materials may not be purchased either directly by a national party committee or 

with funds donated by a national party committee for the purchase of such 

materials. 11 CFR 100.87 and 100.147. 

During the past several election cycles, questions have arisen as to the 

applicability of the volunteer materials exemption, and specifically the application 

of the requirement that campaign materials must be "distributed by volunteers" 

and not by commercial or for-profit operations with respect to mailings 

distributed through the United States Postal Service (hereinafter "volunteer 

mail"). As a consequence of the implementation of new technology in the 

production, preparation and distribution of mailings, which has, in tum, led to 

new practices by State and local political party committees, the Commission's 

volunteer mail framework may have, in some respects, become outdated and may 

no longer provide adequate guidance to the public. 

Thus, the Commission is hereby announcing its interim policy regarding 

enforcement of 11 CFR 100.87 and 100.147 as applied to volunteer mail. This 

interim policy is consistent with the intent of Congress in establishing the 

volunteer materials exemption in 1979 - to increase the role of State and local 

parties and volunteer civic participation in the activities of such parties - and with 

the new reality of current political practice thirty years later. 

This interim policy will remain in effect until July 1,2011, and will not apply to 

any activities that occur after that date. As ofJuly 1,2011, the interim policy will 

automatically expire leaving previous guidance in effect prior to this interim 

policy and subject to four votes of the Commission. The interim policy as 

enunciated herein may only be modified or continued by four votes of the 

Commission. 

II. "Volunteer Materials" Exemption 

A. The History ofthe Volunteer Materials Exemption 

In the 1979 amendments to the Act, which were passed, inter alia, to "increas[e] 

the role of state and local political parties," Congress established an exemption 

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from the definition of "contribution" and "expenditure" for the cost of campaign 

materials purchased by a State or local party political party committee which 

support a Federal nominee and which are used by the State or local party 

committee in connection with volunteer activity. H.R. Rep. No. 422, 96th Cong., 

1st Sess. at 9. Congress explained that its purpose in creating this exemption was 

to "encourage volunteers to work for and with local and State political party 

organizations." Id. 

In promulgating implementing regulations, the Commission adopted much of the 

language of the House Report accompanying the 1979 amendments. See 

generally Explanation and Justification, Amendments to the Federal Election 

Campaign Act of 1971, 45 FR 15080 (Mar. 7, 1980). However, over the past 

thirty years, the procedures for the production, preparation and distribution of 

mailings have changed and, as a result, the State and local political party 

committee volunteer programs have also changed with respect to volunteer mail. 

Some activities that were previously done by volunteers are now automated, 

thereby making volunteer involvement in those activities unnecessary and 

obsolete. For example, address labels and postage no longer have to be affixed by 

hand because that process has been automated by advances in technology. 

Similarly, bulk mail Zip Code sorting is often also automated. In order to 

accommodate changes in political campaigning and technology, updated guidance 

regarding additional volunteer involvement in the distribution ofmailings sent 

through the United States Postal Service is being provided by the Commission in 

order to encourage volunteer participation and provide more definitive guidance 

to the public. 

The numerous prior Commission audits and enforcement matters regarding 

volunteer mail have created a patchwork of guidance that might not be entirely 

consistent, leaving the public unclear guidance or notice about the Commission's 

interpretation of the Act's volunteer materials exemption with respect to volunteer 

mail. l Most recently, on February 11,2009, in dismissing a complaint involving 

volunteer mail, four Commissioners issued a Statement of Reasons noting the 

"complicated history of the volunteer materials exemption," and announced their 

plan to "issue more detailed guidance to clarify the volunteer materials exemption 

and the circumstances in which it applies.,,2 This interim policy attempts to fulfill 

that commitment. 

I See e.g., Matters Under Review 5598 (Swallow for Congress), 5824 and 5825 (Pennsylvania Democratic State 

Committee), 5837 (Missouri Democratic State Committee), 4851 (Michigan Republican State Cornnlittee). 4754 

(Republican Party of New Mexico), 4538 (Alabama Republican Party), 4471 (Montana State Democratic 

Committee), 3248 (New York Democratic Party), 3218 (Blackwell for Congress Cornnlittee), 2994 (Wyoming State 

Democratic Party), 2559 (Oregon Republican Party), 2337 (Texas Republican Congressional Committee), 2288 

(Shimzu for Congress). All Matters Under Review (MURs) can be accessed through the Enforcement Query 

System available on the Commission's website at http://www.fec.gov/emlem.shtml. 

: MUR 5598 (John Swallow for Congress, Inc.), Statement of Reasons of Vice Chairman Matthew Petersen and 

Cornnlissioners Cynthia Bauerly, Caroline Hunter, and Ellen Weintraub at 4 (Apr. 9, 2010). See also Id., 

Certification dated Feb. 11,2009 (The Commission voted 4-1 to dismiss MUR 5598. Chairman Steven Walther 

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B.	 The Commission's Interpretation of the Volunteer Materials Exemption, as Applied to 

Volunteer Mail 

1.	 What are the funding restrictions? 

Because it is an exemption to the Act's definitions of "contribution" and 

"expenditure," there is no limit to the amount of money that a State or local party 

committee may spend on qualified volunteer materials, including volunteer mail. 

However, there are several applicable funding restrictions. First, the portion of 

the cost of campaign materials allocable to Federal candidates must be paid with 

funds subject to the Act's limitations and source prohibitions. 11 CFR 100.87(b); 

11 CFR 100.147(b).3 Second, any funds raised by the State or local party 

committee but designated by a donor to be spent on behalf of a particular Federal 

candidate or candidates may not be spent on volunteer mail. 11 CFR 100.87(c); 

11 CFR 100.147(c). Third, a national party committee may not directly purchase 

and deliver the materials used by the State or local party committee; and, fourth, 

similarly, a national party committee may not donate funds specifically earmarked 

for the purchase of such materials. 4 11 CFR 100.87(g); 11 CFR 100.147(g). 

2.	 What are the elements of an exempt volunteer mail program? 

First, payment for costs incurred in connection with "direct mail," is excluded 

from the exemption. 11 CFR 100.87(a); 11 CFR 100.147(a). Direct mail means 

"any mailing(s) by a commercial vendor or any mailing(s) made from commercial 

lists." Id. As indicated above, because the procedures for the production, 

preparation and distribution of mailings have changed in the last thirty years, the 

Commission has permitted the exemption for mailings bearing commercially 

printed labels and commercial postage stamps so long as the name and address 

information for the mailing labels was not obtained from commercial mailing 

lists.s Accordingly, consistent with prior Commission interpretation ofthis 

provision, involvement of a commercial vendor in the production of campaign 

materials does not disqualify a mailing from the exemption.6 

dissented. Commissioner Donald McGahn was recused.). Statements of Reasons can also be accessed through the 

Enforcement Query System available on the Commission's website at http://www.fec.gov/em/em.shtml. 

, The costs of qualified campaign materials distributed in conjunction with non-Federal activity may be allocated 

between a State or local party committee's Federal and non-Federal accounts. 11 CFR 106.7(c). 

See MUR 5575 (Tony Knowles for U.S. Senate, et al.), Statement of Reasons of Vice Chairman Matthew Petersen, 

and Commissioners Cynthia Bauerly, Caroline Hunter, and Donald McGahn at 4. 

, See Statements of Reasons in MURs 5824 and 5825 (Pennsylvania Democratic State Cornnlittee) and 5837 

(Missouri Democratic State Committee). 

(> In several prior MURs where the exemption has been found to apply, a commercial vendor has been involved in 

the production of the materials. See, e.g., MURs 2377 (Texas Republican Congressional Committee), 3281 

(Blackwell for Congress), 3248 (New York Democratic Party), 4538 (Alabama Republican Party), 4471 (Montana 

State Democratic Committee), 4851 (Michigan Republican State Committee), 4754 (Republican Party of New 

Mexico), 5824 and 5825 (Pennsylvania Democratic State Committee), 5837 (Missouri Democratic State 

Committee). Moreover, the Commission has never found that the mere involvement of a commercial vendor per se 

rendered a mailing ineligible for the exemption. 

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Second, materials must be "distributed by volunteers and not by commercial or 

for-profit operations." II CFR 100.87(d); 11 CFR 100.147(d). The tenn 

"distributed" has never been defined explicitly by the Commission. However, in 

prior enforcement matters, the Commission has interpreted "distributed" by 

volunteers to mean that there must be "substantial volunteer involvement,,7 but for 

which the distribution of the mailing would not have occurred. The Commission 

hereby adopts this interim policy applying the "but for" test. 

The Commission recognizes certain activities, any of which may be used to show 

that there has been "substantial volunteer involvement" in the process of 

preparation and distribution of a mailing "but for" which, the distribution of the 

materials would not have been possible: 

•	 Bundling and sorting of mailers, provided that such activity is required by 

the Post Office in order for the committee to send the mailer under the 

applicable postage rate 

•	 Feeding the mailers into label-affixing machines, or affixing address labels 

or stamping the return address or bulk mail indicia on mailers 

•	 Sorting by Zip Code or placing bundled mailers into mail bags based on 

the laser printed address, provided that such activity is required by the 

Post Office in order for the committee to send the mailer under the 

applicable postage rate 

•	 Loading mailers into trucks for delivery to the Post Office or unloading 

mailers at the Post Office or other weigh-in location approved by the Post 

Office (and, if required, signing-in of mailers at the Post Office or other 

weigh-in location), provided that such activity is required by the Post 

Office in order for the committee to send the mailer under the applicable 

postage rate 

•	 Developing or enhancing a mailing list, such as through door-to-door 

address collection or confinnation 

Each of these examples of volunteer activity may be used to show that there has 

been "substantial volunteer involvement" in order to satisfy the "distribution by 

volunteers" aspect of the volunteer materials exemption because the distribution 

of the mailer or campaign material would not have been possible but for such 

activity. However, this list is not exhaustive, and other activities may also satisfy 

the test. Moreover, no inference will be drawn from the absence of any of these 

activities. 

7 See Factual and Legal Analysis in MUR 5841 (Arizona Democratic Party) (describing past enforcement matters 

as examining whether there was "substantial volunteer involvement" in the distribution of the materials); Statement 

of Reasons in MUR 5837 at 4 (Missouri Democratic State Committee) (observing that in past matters the 

Commission has emphasized that "substantial volunteer involvement" is required for the exemption to apply); 

Statement of Reasons in MURs 5824/5825 at 5-6 (Pennsylvania Democratic State Committee) (observing that the 

exemption applied where there was "substantial amount of volunteer involvement"). 

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To fall within the volunteer exemption, a State or local party must show that: (a) 

there was "substantial volunteer involvement" as a result of volunteers performing 

the specified activity, and (b) had the volunteers not performed the activity, the 

mailing could not have been distributed. 

In considering evidence of volunteer participation, the Commission has 

previously considered, and will continue to consider various types of evidence 

respecting the extent to which, if any, the volunteer mail exemption is applicable. 

Some of these types of evidence include photographs of the volunteer activity, 

volunteer sign-in sheets, payment of travel or subsistence for, or customary token 

payments to volunteers, and the State or local party committee's written policies 

regarding volunteer mail. 

III. Conclusion 

This interim policy represents an articulation of how the Commission intends to 

exercise its discretion in enforcing an existing regulation on an interim basis and 

is not intended bind the Commission or any member of the public, or to create or 

remove any rights or duties, nor is it intended to affect any other aspect of 11 CFR 

Part 100, the Act, or the Commission's regulations. See 5 U.S.c. 553(b)(A). 

IV. Operative Period of Interim Enforcement Policy 

This interim policy will remain in effect until July 1, 2011, and will not apply to 

any activities that occur after that date. As of July 1, 2011, the interim policy will 

automatically expire leaving previous guidance in effect prior to this interim 

policy and subject to four votes of the Commission. The interim policy as 

enunciated herein may only be modified or continued by four votes of the 

Commission. 

Matthew S. Petersen 

Chairman 

Federal Election Commission 

DATED
 

BILLING CODE: 6715-01-P
 

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