| Use of the
Internet
This article, which orginally appeared in the August 2000 Record, summarizes Commission advisory opinions (AOs) and one Matter Under Review (MUR) issued to date on the use of the internet in connection with federal elections.
The Internet as Public Political Advertising In several advisory opinions the Commission said that the use of the Internet for express advocacy1 communications or political fundraising constituted "general public political advertising." As a result, a Web site that contained express advocacy and/or solicited contributions in connection with a federal election had to contain the appropriate disclaimer stating who paid for the site and whether or not the communication was authorized by a candidate or candidate’s committee. See 11 CFR 110.11 and AOs 1998-22 and 1995-9. Moreover, any e-mail containing express advocacy or a solicitation had to contain the appropriate disclaimer if it was sent to more than 100 separate e-mail addresses in a calendar year. AO 1999-37. Support of Candidates Through Internet Creation of Web Site Fees associated with the creation and administration of a Web site may be subject to the federal election law. Specifically, the Commission said that the fee to secure registration of a domain name, funds invested in hardware and utility costs associated with the creation of a Web site that supported or opposed a candidate were generally expenditures under the Federal Election Campaign Act (the Act) unless they fell within an exception to the Act’s definitions of contribution or expenditure. AO 1998-22. Exception for Web Sites Established by Campaign Volunteers In another AO, the Commission said that costs incurred by a campaign volunteer who used his or her personal home computer to set up a Web site supporting a candidate fell within the Act’s exception for the use of personal property by an individual volunteer. See 2 U.S.C. §431(8)(B)(ii). Therefore, costs incurred by a volunteer using a home computer were not contributions or expenditures under the Act. Such costs did not need to be reported by the campaign. This exception extended to the redistribution or other use of downloaded material from the campaign’s Web site. AO 1999-17. Web Sites Established by Non-Volunteer In the case of an individual who was not a campaign volunteer and who set up and ran a Web site supporting or opposing a federal candidate, the campaign had no reporting obligation. AO 1999-17. In this AO, the Commission assumed that the campaign had not coordinated a particular Web site’s activity with the non-volunteer and that the non-volunteer provided nothing of value to the campaign. Provision of Web Space/Online Accounts to Federal Candidates In another AO, the Commission concluded that a corporation could not provide online accounts (for which it normally charged a fee) to candidates free of charge. AO 1996-2. Such activity did not fall within the type of exemption afforded to news organizations covering election-related news stories (at 2 U.S.C. §431(9)(B)(i)) or to organizations engaging in nonpartisan efforts to encourage individuals to vote (at 2 U.S.C. §431(9)(B)(ii)). In AO 1999-25, the Commission said that two incorporated nonprofit organizations could jointly sponsor a Web site that provided information on federal candidates because the information fell within the exception for nonpartisan activity designed to encourage individuals to vote or to register to vote. (See 2 U.S.C. §431(9)(B)(ii) and 11 CFR 100.8(b)(3).) Similarly, in AO 1999-24, a for-profit limited liability company was permitted to sponsor a Web site promoting communication between voters and all candidates on a nonpartisan basis because the activities on the Web site also fell within the exemption for nonpartisan voter registration and voter drive activity. See 2 U.S.C. §431(9)(B)(ii) and 11 CFR 100.8(b)(3). In Matter Under Review 4340, the Commission found that a link from a candidate’s corporate Web site to his campaign Web site represented something of value and, consequently, was a prohibited corporate contribution. By contrast, nonpartisan Web sites, such as those described above, have been permitted to establish hyperlinks to all candidate sites as part of exempt nonpartisan voter registration and voter drive activity. AOs 1999-25, 1999-24 and 1999-7. On the other hand, in AO 1999-17, the Commission said that the provision of a hyperlink was a contribution in those cases where a Web site owner normally would have charged for a link to another site, but chose either not to charge the campaign for a link to the campaign’s site or to charge less than it normally charged to a similarly situated nonpolitical organization or entity. Corporate/Labor/Trade Association communications A corporation, labor organization or trade association could endorse, or solicit contributions for a candidate via its Web site only if it used a method (such as passwords) to limit access to these messages to the organization’s restricted class.2 AO 1997-16. See also 2 U.S.C. §441b(b)(2)(A) and 11 CFR 114.3. The Commission said, in another AO, that a Web site containing express advocacy would be considered an independent expenditure if the activity was completely independent of the campaign. On the other hand, if the activity was done in cooperation, consent or concert with a campaign, it would be an in-kind contribution and, thus, reportable by the campaign. AO 1998-22. See also 2 U.S.C. §431(17) and 11 CFR Part 109. In AO 1999-37, a PAC that created independent expenditures for electronic distribution through downloads and e-mail did not need to include the costs of Web site hosting, domain name registration or computer hardware and software in the valuation of its independent expenditures. Only the expenses of initially distributing the advertisements through e-mail represented the cost of the independent expenditure. Moreover, the PAC was not required to collect information on those individuals who downloaded the PAC’s advertisements and used them for their own political activity. In AO 1999-17, the Commission said that campaign volunteers could use their home computers to send e-mail supporting the campaign without making a contribution. This activity came under the law’s exception at 2 U.S.C. §431(8)(B)(ii) for the use of personal property. The volunteers could also make isolated, incidental use of their corporate employers’ computers, in connection with campaign activity, under 11 CFR 114.9(a).3 The Commission also noted, in AO 1999-37, that a PAC could e-mail communications that contained express advocacy to foreign nationals because the Act does not prohibit the distribution of such messages to foreign nationals. Use of Internet for Fundraising Recordkeeping In AO 1995-9, the Commission said that a political committee using the internet for fundraising had to comply with all of the Act’s recordkeeping provisions.4 The committee had to ensure that its electronic records were retrievable and that contributor data was maintained for three years after the date on which it reported the contributions. In two AOs, the Commission said that committees using the Internet for fundraising had to use "best efforts" to obtain and report the identification of contributors who made more than $200 in contributions during a calendar year, including making follow-up requests to those contributors who failed to provide the requested information. 11 CFR 104.7. The follow-up request could take the form of an e-mail to the contributor. AOs 1999-17 and 1995-9. Avoiding Prohibited Contributions In several AOs, the Commission said that Web sites soliciting contributions in connection with a federal election were required to inform potential contributors of all of the Act’s prohibitions, including the prohibitions on contributions from corporations, labor organizations, federal government contractors and foreign nationals,5 and the restrictions at 11 CFR 110.1(i)(2) on contributions from minors. AOs 1999-22, 1999-9 and 1995-9 contain detailed examples of sample language and mechanisms for vetting contributors. Acceptance of funds Via credit cards and electronic checks In several AOs, the Commission said that online contributions could be made via credit card. Such contributions were acceptable for publicly funded Presidential campaigns and were matchable provided that the correct documentation was provided to the Commission. See 11 CFR 9034.2(c)(8) and AOs 1999-22, 1999-9 and 1995-9. In the same AOs, companies were permitted to administer online fundraising for political committees. The date the contributors sent the electronic confirmation of their contributions to the online company was the date "made," for contribution limitation purposes. See 11 CFR 110.1(b)(6) and AO 1995-9. The date of receipt, used for reporting purposes, was the date the committee received notice of the electronic confirmation from the contributor. Political committees were required to compensate the companies providing this service at the usual and normal rates. Funds paid to the companies were reportable as operating expenditures. AOs 1999-22, 1999-9 and 1995-9. In AOs 1999-36 and 1999-22, the Commission provided detailed guidance to companies providing online fundraising services to federal candidates and political committees. Fundraising for Corporate/Labor/Trade PACs Under federal election law, any solicitation message for a corporate/labor/trade association PAC may only be directed to the organization’s restricted class.6 Accordingly, a corporate PAC could send a newsletter containing a PAC solicitation via e-mail to the secretaries of corporate executives, provided that the material was accompanied by a note informing the secretary that the material was intended solely for the executive. AO 1995-33. Similarly, a corporation could maintain an electronic mail list serve (i.e., mailing list) to send PAC solicitations to members of the corporation’s restricted class who had indicated an interest in the corporation’s PAC. AO 2000-07. Moreover, that corporation also could include a message on a company intranet site (available only to corporate employees) about the company’s PAC if that message did not constitute a solicitation. For example, the corporation could post a statement that merely explained the legal requirements that applied to the PAC but did not encourage support for the PAC. The same message could include a link to a separate, password-protected site accessible only by members of the corporation’s restricted class. Because access was limited to the restricted class, the password-protected Web site could contain a solicitation. It was also important that the page introducing the PAC Web site included a statement that federal law prohibits the PAC from soliciting donations from persons other than stockholders, executive and administrative personnel and the families of such individuals and that any contribution received from any other person would be returned to the donor. AO 2000-07. Finally, in AO 2000-10, the Commission said that a trade association could use its web site to seek prior approval from its corporate members under 11 CFR 114.8 so that the restricted class of those corporations could be subsequently solicited for contributions to the trade association’s PAC. 1 "Express advocacy" refers to a communication that unambiguously advocates the election or defeat of a clearly identified candidate. See 11 CFR 100.22. 2 See the Campaign Guide for Corporations and Labor Organizations for a chart detailing the restricted classes of various organizations for communications purposes. 3 Such use is defined as isolated and incidental if it does not exceed one hour per week or four hours per month or if it does not prevent the employee from carrying out the workload that the employee normally carries out during that period. 11 CFR 114.9(a) and (b). 4 See 2 U.S.C. §432 and 11 CFR 102.5, 102.8 and 102.9. 5 See 2 U.S.C. §§441b, 441c and 441e. 6 See 11 CFR 114.5(g), 114.7(a) and 114.8(c). Also, see the Campaign Guide for Corporations and Labor Organizations for a chart detailing the restricted classes of various organizations for solicitation purposes.
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