AO 2009-23: Nonfederal PAC need not allocate its expenses

Given the requestor’s representation that they are not “political committees” under the Federal Election Campaign Act (the Act) or Commission regulations, FEC allocation rules do not apply to the Virginia Chapter of the Sierra Club’s (“VA Chapter”) proposed use of its state-registered political action committee (“State PAC”) and funds from the Sierra Club Voter Education Fund (“SC-VEF”) to finance certain activities relating to upcoming elections in Virginia.

Background

VA Chapter is a state chapter of the Sierra Club, which is a nonprofit corporation pursuant to section 501(c)(4) of the Internal Revenue Code. VA Chapter formed the State PAC in 1985 for the exclusive purpose of engaging in state and local political campaign activities, and registered it with Virginia’s State Board of Elections. VA Chapter raises funds in accordance with Virginia law for the State PAC’s account, which may include funds from its members, corporations, labor organizations and other individuals. The State PAC has made contributions to state and local candidates, but has not used its account to make any contributions or expenditures in connection with federal elections. Since July 31, 2000, the State PAC has been organized under section 527 of the Internal Revenue Code. 26 U.S.C. §527.

SC-VEF is also organized under section 527 of the Internal Revenue Code. The Sierra Club established SC-VEF as a nonfederal political organization in order “to educate people about public official’s environmental records, voting records and position of candidates for election to Congress, the Presidency, and state or local offices…” Both VA Chapter and SC-VEF maintain that neither the State PAC nor SC-VEF is a “political committee” under FEC regulations.

Proposed activities

The State PAC intends to conduct three categories of activities in connection with the 2009 Virginia elections and the 2010 federal general elections. SC-VEF intends to assist by providing partial funding for these activities. First, the State PAC intends to conduct voter drives, including voter identification efforts asking potential voters for their views on environmental matters and how those views may affect their voting behavior in the upcoming elections. The voter drive activities will also involve voter registration and GOTV activity urging the public to register to vote and to elect candidates who support government actions to protect the environment. None of these voter drive activities will refer to any clearly identified federal, state or local candidates, or political parties.

Second, the State PAC intends to make public communications expressly advocating the election or defeat of clearly identified state and local (but not federal) candidates in connection with the 2009 Virginia general election. Some of these public communications will feature federal officeholders who are candidates for re-election in the 2010 federal elections endorsing state and local candidates, but the communications will neither reference the 2010 election, nor the fact that the officeholders are federal candidates.

Third, the State PAC will distribute “issue advertisements” in connection with the above-mentioned 2009 and 2010 elections that will refer to positions on issues of public policy held by clearly identified federal officeholders from Virginia, some or all of whom will also be candidates for re-election in 2010. These communications will not expressly advocate the election or defeat of any federal candidates, nor will they contain the functional equivalent of express advocacy. Additionally, the public communications will not be coordinated with any federal candidates.

Analysis

Under the Act and Commission regulations, the term “political committee,” includes any committee, club, association or other group of person which receives contributions or makes expenditures in excess of $1,000 during any calendar year. 2 U.S.C. §431(4) and 11 CFR 100.5(a)-(c). The Supreme Court has held that only organizations under the control of a candidate or whose major purpose is federal campaign activity (i.e., the nomination or election of federal candidates) can be considered political committees under the Act. See Buckley v. Valeo, 4242 U.S. 1, 79 (1976).

Commission regulations provide that various types of political committees that make disbursements in connection with both federal and nonfederal elections must allocate certain expenses between federal funds (i.e., funds that are subject to the limitations and prohibitions of the Act) and nonfederal funds (i.e., those funds not subject to the limitations or prohibitions of the Act). 11 CFR Part 106. More specifically, section 106.6 requires separate segregated funds and nonconnected committees that make disbursements in connection with both federal and nonfederal elections to allocate expenses in certain ways depending upon the nature of the activity involved. Under those rules, these entities may make such disbursements in one of two ways: 1) they may pay the activities using 100 percent federal funds; or 2) if they have established separate federal and nonfederal accounts pursuant to 11 CFR 102.5, they may allocate the expenses between these accounts. 106.6(a).

The Commission has consistently applied these allocation rules only to PACs that qualify as “political committees” under the Act and Commission regulations. Accordingly, given the representation that the State PAC and SC-VEF are not “political committees” under the Act and given the nature of their proposed activities, the allocation rules at 11 CFR 106.6 do not apply. This conclusion assumes that neither entity will engage in any activity that would cause it to become a political committee under the Act.

AO 2009-23: Date issued: October 9, 2009; Length: 5 pages.