AO 2009-26: Federal candidate may fund certain activities from nonfederal campaign account

Illinois State Representative Elizabeth Coulson, who is also a federal candidate for the U.S. House, may use her state campaign committee funds or her state office account to sponsor a seniors fair and to mail postcards publicizing that event because those activities are not in connection with any federal or nonfederal election. She may also use her state campaign account or her state office account to pay for a "health care legislative update" letter because the letter is also not in connection with any federal or nonfederal election. Neither the postcards nor the letter would constitute "coordinated communications" under Commission regulations.

Background

Elizabeth Coulson is an Illinois State Representative and a candidate for the U.S. House in 2010. Coulson for Congress (Federal Committee) is Representative Coulson's principal campaign committee. The Coulson Campaign Committee (State Campaign Committee) is Rep. Coulson's state campaign committee. Under Illinois law, Rep. Coulson also receives an office allowance (State Office Account) for the purpose of defraying official office, personnel and constituent services expenses. Illinois law allows state candidates to raise funds in connection with state races from corporations and labor organizations and raise funds from individuals without limits. At least some of the donations in the State Campaign Committee exceed the limitations set by the Federal Election Campaign Act (the Act) or come from sources which are prohibited by the Act.

Rep. Coulson plans to undertake three activities: 1) to organize a "seniors fair"; 2) to mail a postcard publicizing the seniors fair; and 3) to mail a "health care legislative update" letter to health care professionals in her state legislative district.

Seniors Fair. Rep. Coulson plans to organize a "seniors fair" at a local community center in her district. The purpose of this event is to promote health and safety programs available to seniors in Rep. Coulson's state legislative district. Rep. Coulson has sponsored similar seniors fairs for the past eight years in her role as a state officeholder. Rep. Coulson states that this event will not be used to expressly advocate her election or to promote or support her federal candidacy, nor will it be used to attack or oppose any of her federal election opponents. The seniors fair will not be used for any federal election activity, nor will Rep. Coulson or her agents solicit any contributions at the seniors fair.

Promotional postcard. Additionally, Rep. Coulson will mail approximately 12,000 postcards to seniors in her district publicizing the seniors fair that she plans to organize. The postcard will note the date, time and location of the seniors fair, in addition to the telephone number of Rep. Coulson’s district office that the recipients may call for more information about the fair. The contents, timing and distribution of the planned postcard mailing will be the same in all material respects as in previous years when Rep. Coulson was not a federal candidate. Rep. Coulson plans to pay for the mailing with funds from her State Office Account or the State Campaign Committee's account.

Legislative update. Finally, Rep. Coulson also plans to mail a "legislative update" letter to approximately 4,000 health care professionals in her legislative district which describes various health care legislative proposals being considered by the Illinois legislature. As with the postcard, the contents, timing and distribution of the planned mailing will be the same in all material aspects as in previous years when Rep. Coulson was not a federal candidate, and Rep. Coulson plans to pay for the mailing with funds from her State Office Account or her State Campaign Committee account.

Analysis

Seniors fair. Rep. Coulson may sponsor the seniors fair because the event is not in connection with any federal or nonfederal election and it does not involve making any "public communications" as defined by the Act. 2 U.S.C. §431(22). The seniors fair also does not result in the making of any contributions to Rep. Coulson.

Federal candidates, their agents and entities directly or indirectly established, financed, maintained or controlled by, or acting on behalf of, federal candidates, may not raise or spend funds in connection with federal elections unless those funds are subject to the limitations, prohibitions and reporting requirements of the Act. 2 U.S.C. §441i(e) (1)(A) and 11 CFR 300.61. Also, federal candidates, their agents and entities directly or indirectly established, financed, maintained or controlled by, or acting on behalf of, federal candidates, may not raise or spend funds in connection with nonfederal elections unless those funds are subject to the limitations and prohibitions of the Act. 2 U.S.C. §441i(e)(1)(B) and 11 CFR 300.62. Since Rep. Coulson is a federal candidate and her state committee acts on her behalf, Section 441i(e) would apply to the seniors fair if it were in connection with any federal or nonfederal election. The Commission has previously stated, "if the funds are not raised or spent in connection with an election, then the funds do not fall within the scope of Section 441i(e)." See AO 2003-20.

Although Rep. Coulson is a federal candidate and the State Campaign Committee is established, financed, maintained or controlled by Rep. Coulson, the Commission concludes that the seniors fair is not in connection with any federal or nonfederal election, because the event will not be used to solicit any contributions for Rep. Coulson, nor will any information about the participants be provided to Rep. Coulson's Federal Committee. The event will not involve any express advocacy of Rep. Coulson's election or the defeat of her opponents, nor will it be used for any "federal election activity" as defined in 2 U.S.C. §431(20) and 11 CFR 100.24.

Similarly, the Commission concludes that the seniors fair is not in connection with any nonfederal election. Rep. Coulson is not a candidate for state office and the seniors fair will not be used to solicit any donations to Rep. Coulson's State Campaign Committee. The event will rather be held as a service to Rep. Coulson's constituents and will be consistent with similar events that Rep. Coulson has held in previous years when she was not a candidate for federal office.

Since the seniors fair is not in connection with any federal or nonfederal election and will not involve public communications or the solicitation of contributions, Rep. Coulson may use nonfederal funds to pay for any costs associated with sponsoring this event.

Promotional postcard. Rep. Coulson may also pay for postcards publicizing the seniors fair using funds in her State Office Account or her State Campaign Committee because, as with the seniors fair, the postcards are not in connection with any federal or nonfederal election and because the postcards would not be "coordinated communications." Instead, the postcards will promote an event that the Commission determined is not in connection with a federal or nonfederal election.

The Act and Commission regulations prohibit a state officeholder from spending funds for a public communication that clearly identifies a federal candidate and promotes or supports a candidate unless the funds are subject to the limitations, prohibitions and reporting requirements of the Act. 2 U.S.C. §441i(f); 2 U.S.C. §431(20)(A)(iii). The postcards would be "public communications" under the Act and the postcards would clearly identify Rep. Coulson.1 However, the Commission concluded that the postcards, as proposed, do not promote, attack, support or oppose (PASO) any candidate for federal office. Although the postcards clearly identify Rep. Coulson, the Commission has previously determined that the mere identification of an individual who is a federal candidate does not, in itself, PASO that candidate. See AOs 2007-34, 2007-21, 2006-10 and 2003-25. The postcards do not PASO Rep. Coulson, and no other candidate is clearly identified in their proposed contents. As such, Rep. Coulson is not required to pay for the costs of this mass mailing with federal funds.

Furthermore, the Commission concluded that the payment for the postcards by the state campaign committee would not constitute a coordinated communication because the communication would not meet the "payment prong" of the Commission’s three-prong test for determining coordination. If the communication were determined to have been coordinated, the payment for the communication would be considered an in-kind contribution from the person paying for the communication to the candidate or committee with whom it was coordinated. 11 CFR 109.21.

Under the first prong of the definition of coordinated communication, a communication is only subject to the regulations if it "is paid for, in whole or in part, by a person other than that candidate, authorized committee, or political party committee." 11 CFR 109.21(a)(1). Under this scenario, the postcards would be paid for by Rep. Coulson's State Office Account or her State Campaign Committee. In AO 2007-01, the Commission concluded that the payment prong was not met if a U.S. Senator’s former state campaign committee paid for solicitations for the purpose of retiring debts remaining from her previous candidacies for state offices, because "the candidate and her agents are paying for these communications." Thus, since the postcards are being paid for by Rep. Coulson and her agents, the payment prong of the coordination test is not met.

Legislative update letter. Rep. Coulson may also use either her State Office Account or her State Campaign Committee to pay for the "health care legislative update letter" because the letter is not in connection with any federal or nonfederal election and it similarly does not PASO any federal candidate. As with the proposed postcard described above, Section 441i(e) would only apply to Rep. Coulson if the activity involved were in connection with any federal or nonfederal election, including any federal election activity described at 11 CFR 100.24. The letter describes Illinois State legislative developments to health care professionals residing in Rep. Coulson's district, and it neither solicits any donations nor expressly advocates Rep. Coulson’s election, or the defeat of any of her opponents. As such, the Commission concluded that it is not in connection with any election.

With respect to the Commission regulations on "coordinated communications," the Commission concluded that, like the postcard proposal described above, the health care letter would not constitute a coordinated communication because the letter would not satisfy the "payment prong" of the coordination three-part test because Rep. Coulson and her agents would be paying for the communication. 11 CFR 109.21(a)(1).

AO 2009-26: Date issued: November 6, 2009; length: 10 pages.