The advisory opinion process
Advisory opinions are official Commission responses to questions about how federal campaign finance law applies to specific, factual situations.
Advisory opinions can answer questions about:
- The Federal Election Campaign Act, which is codified in Title 52 of the U.S. Code, Sections 30101-30146.
- The laws about public financing of presidential campaigns and conventions, which are codified in Title 26 of the U.S. Code, Chapters 95 and 96.
- The Commission’s regulations, which are codified at Title 11 of the Code of Federal Regulations.
An advisory opinion provides certain legal protections to any person who:
- Is involved in the activity involved in the issued advisory opinion, or
- Engages in activity that is “indistinguishable in all its material aspects” from the activity about which the advisory opinion is issued, and
- Acts in good faith in accordance with the opinion.
All advisory opinion requests,comments on requests and drafts (including attachments) are made available to the public online and in the FEC’s Public Records room.
Requesting an advisory opinion
Anyone may request an advisory opinion, as long as the requestor is affected by the question he or she presents. A requestor cannot ask for an advisory opinion about someone else’s activities, hypothetical situations, or general questions of law.
Advisory opinion requests must be in writing. The request must include a complete description of all facts relevant to the specific transaction or activity.
Within ten days of receiving the request, the Commission’s Office of General Counsel must determine whether it qualifies as a complete advisory opinion request.
A request does not qualify as a complete advisory opinion request if it:
- Asks a general question of interpretation.
- Asks about a hypothetical situation.
- Asks about the activities of someone other than the requestor.
- Asks about past activities that the requestor does not plan to continue in the future.
- Does not contain all of the factual information relevant to the activity that is the subject of the request.
If the request does not qualify as an advisory opinion request, the Office of General Counsel notifies the requestor of the specific deficiencies in the request.
If the request qualifies as an advisory opinion request, it is assigned an AOR number and made public.
MAIL REQUESTS FOR ADVISORY OPINIONS TO:
Federal Election Commission
Office of General Counsel
999 E Street NW
Washington, DC 20463
Draft answers to advisory opinion requests
Before the meeting where the Commission is scheduled to consider an advisory opinion, the Commission will make public any draft answers to the advisory opinion request.
Copies of these drafts are emailed to the requestor and made public.
Draft advisory opinions are usually considered at Commission meetings, which are open to the public. Requestors or their counsel may appear before the Commission to answer questions at this open meeting. Requestors or their counsel unable to appear physically at a public meeting may participate by telephone, subject to the Commission's technical capabilities.
Issuing an advisory opinion
The law generally requires the Commission to issue an advisory opinion within 60 days of receiving a complete advisory opinion request. But if the request is submitted by a federal candidate within 60 days before an election, and the request asks about a specific transaction or activity related to that election, then the Commission must respond within 20 days. In addition, the Commission has an informal practice through which it tries to respond to certain significant, time-sensitive requests within 30 days.
The Commission issues an advisory opinion when four or more Commissioners vote to approve the draft advisory opinion before it. These votes almost always occur during an open meeting of the Commission.
A requestor has the option to appear before the Commission at the open session where the Commission considers his or her advisory opinion request. A requestor can withdraw an advisory opinion request by submitting a written statement of withdrawal before the Commission votes to approve the advisory opinion.
If at least four Commissioners don’t vote to approve a draft advisory opinion in response to a request, the Commission’s Office of General Counsel will send the requestor a letter stating that the Commission was unable to approve an advisory opinion. This letter is also included in the public record.
Reconsidering an advisory opinion
A Commissioner who voted in the majority to approve an advisory opinion can move to reconsider the opinion. A Commissioner may move for reconsideration either:
- On the Commissioner’s own initiative, or
- In response to a written request submitted by the original requestor (within 30 days of the opinion being issued).
If at least four Commissioners vote to reconsider the advisory opinion, that opinion is vacated, and the Commission then proceeds to reconsider the substance of the original request.