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AO 2012-28 Committees Responsible for Text Contribution Compliance
CTIA—The Wireless Association (“CTIA”) and its members may offer their text-to-donate services to political committees without assuming responsibility for the legality of the resulting contributions under the Federal Election Campaign Act (the “Act”) and Commission regulations, when the contributions are processed by a connection aggregator. That responsibility rests solely with the recipient political committees.
CTIA is a trade association representing wireless service providers. CTIA proposes to lease short codes for use by political committees, and the wireless service providers propose to enter into agreements that would allow their customers to contribute to federal political committees by text message.
To contribute, an individual would text a predetermined word or phrase to a code number assigned to the recipient committee. Shortly after, the provider would ask the individual to certify their eligibility to make contributions and confirm the contribution amount. Once the confirmation and certification are received, a charge in the amount of the contribution would appear on the individual’s cellular phone bill.
Before offering this service, CTIA and the wireless service providers seek to confirm that they will not be responsible for ensuring each contributor’s eligibility, monitoring contribution limits or fulfilling recordkeeping and reporting requirements.
Under the proposal presented by CTIA and the wireless service providers, political committees are solely responsible for ensuring that contributions by text message are lawful.
A treasurer of a political committee “must keep an account of (1) all contributions received by or on behalf of such political committee; (2) the name and address of any person who makes any contribution in excess of $50, together with the date and amount of such contribution by any person; [and] (3) the identification of any person who makes a contribution or contributions aggregating more than $200 during a calendar year, together with the date and amount of any such contribution.” See 2 U.S.C. §432(c)(1)-(3); see also 11 CFR 110.4(c).
Commission regulations also state that “[t]he treasurer shall be responsible for examining all contributions received for evidence of illegality and for ascertaining whether contributions received, when aggregated with other contributions from the same contributor, exceed the [Act’s] contribution limitations.” See 11 CFR 103.3(b).
Under the proposal, CTIA and the wireless service providers are not responsible for determining the eligibility of a contributor, or for ensuring compliance with the $50 monthly limit on contributions and the recordkeeping obligations for contributions in excess of $200. See AO 2012-17 (m-Qube I).
The wireless service providers also may develop eligibility criteria based upon commercial considerations and therefore may decide to accept only proposals from some political committees and not others.
When CTIA and the wireless service providers operate according to their normal business practices, no prohibited corporate contributions will result. Deviations from normal business practices could constitute “in-kind” contributions in situations such as a discount to a political committee that is not available to others on equal terms or preferential treatment outside of the business relationship. See 2 U.S.C. §441b(a); 11 CFR 114.2(b)(1).
Date Issued: August 14, 2012; Length: 10 pages.
(Posted 8/31/12; By: Alex Knott)
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