AO 2006-11: Allocation of payment for mass mailings

At least half the cost of a mass mailing that expressly advocates the election of one clearly identified federal candidate as well as the election of other generically referenced candidates must be attributed to the clearly identified federal candidate.¹ If the space devoted to the clearly identified federal candidate exceeds the space devoted to the generically referenced candidates, then the costs attributed to the clearly identified federal candidate must exceed 50 percent and reflect at least the relative proportion of the space devoted to that candidate.

Background

The Washington Democratic State Central Committee proposes to prepare and distribute one or more mass mailings that will expressly advocate the election of one clearly identified federal candidate as well as the election of other generically referenced party candidates. The mailings will not contain any solicitations. In accordance with the rules for this type of FEA, only federal funds will be used to pay for each mailing. The party would like to split the costs equally with the federal candidates campaign.

Under the Federal Election Campaign Act (the Act), a mass mailing is a form of public communication. A state party committee that makes a public communication that promotes, supports, attacks or opposes a clearly identified federal candidate is engaging in federal election activity (FEA). This type of FEA must be paid for only with federal funds. 11 CFR 100.24(b)(3), 300.32(a)(2) and (b)(2). These regulations apply even if the communication refers to nonfederal candidates or does not expressly advocate the federal candidate’s election or defeat. See also 11 CFR 300.61

Neither the Act nor FEC regulations directly address the attribution of funds spent for this particular type of communication. The rules that apply to communications benefiting more than one federal candidate require attribution based on “the benefit reasonably expected to be derived.” To determine benefit, the rules compare the relative amount of space devoted to each candidate in relation to the total space devoted to all the candidates. 11 CFR 106.1(a). Other rules governing party committee phone banks that reference a clearly identified federal candidate and other party candidates generically, and that do not solicit funds, require that a flat 50 percent of the costs be attributed to the federal candidate and that the other 50 percent be attributed to the party committee, regardless of the amount of time devoted to each. 11 CFR 106.8. However, the Commission’s Explanation and Justification stated that the scope of 11 CFR 106.8 is specifically limited to phone banks.

Analysis

While neither of these regulations applies directly to the party’s proposed mailings, some of the concepts in these regulations are applicable. The Commission concluded that “the benefit reasonably expected to be derived” by the clearly identified federal candidate from the mass mailing is sufficient to require that at least half the cost of the mailings must be attributed to him, even if the space attributable to him is less than that attributable to the generically referenced party candidates.

If the space devoted to the clearly identified federal candidate exceeds the space devoted to the generically referenced party candidates, then the benefit reasonably expected to be derived is measured by determining the amount of space devoted to the clearly identified candidate as compared to the amount of space devoted to the generically referenced party candidates. Since no part of the cost of the mailing may remain unattributed to either the clearly identified federal candidate or the generically referenced party candidates, the percentage of the cost attributed to the federal candidate is equal to the amount of space devoted to the federal candidate as compared to the total space devoted to both that candidate and the generically referenced party candidates. 11 CFR 106.1(a).

The state party committee would not make a contribution or coordinated expenditure as long as the candidate’s principle campaign committee pays its proportionate share of the cost of the mass mailing. The cost of a mass mailing that is attributable to the clearly identified candidate can be either:

• An in-kind contribution, subject to the limitations set forth in 11 CFR 110.2;
• A coordinated expenditure, subject to the limitations, restrictions and requirements of 11 CFR 109.32 and 109.33; or
• Reimbursed by the federal candidate or the candidate’s authorized committee.

Date: April 25, 2006; Length: 5 pages

¹ On example of such message would be: “Vote for John Doe and our great Democratic team.”