AO 2011-04: Candidate position papers posted on members-only section of website

A nonprofit corporation may post candidate position papers on the members-only section of its website.

Background

The American Israel Public Affairs Committee (AIPAC) is a nonprofit 501(c)(4) corporation dedicated to maintaining and improving the bonds between the United States and Israel that the Commission has previously determined qualifies as a membership organization under 11 CFR 114.1(e). Although primarily a lobbying organization, AIPAC also encourages its members to be involved in campaign activities, such as volunteering for campaigns and making contributions. AIPAC compiles information on candidates and races for federal office, including the political history of the district or state, information about money raised by the candidates, public polling data, recent news about the race and a list of announced candidates for the office. AIPAC also compiles voting records of incumbents and encourages its members to review those records, but the organization does not itself rate or endorse candidates.

AIPAC would like to encourage all federal candidates to prepare position papers on the United States-Israel relationship, and asks the Commission if it can post the position papers unedited and in their entirety on a portion of its website that is accessible only to AIPAC members. The position papers would set forth the candidates’ views on issues affecting the United StatesIsrael relationship and would not contain any express advocacy.

Analysis

The Federal Election Campaign Act (the Act) and Commission regulations prohibit corporations, including incorporated membership organizations, from making contributions in connection with a federal election. 2 U.S.C. § 441b(a); 11 CFR 114.2(b). However, communications by a membership organization to its restricted class are exempt from the definition of contribution and expenditure, and an incorporated membership organization may communicate with its restricted class on any subject, including by making express advocacy statements. 2 U.S.C. § 431(9)(B)(iii) and (8)(B)(vi); 11 CFR 114.1(a)(2)(x) and 114.3(a)(2).

The Commission concluded that AIPAC may post candidate-prepared position papers on a section of its website accessible only by its members. Because posting the position papers constitutes a permissible communication between AIPAC and its membership, the Commission concluded that any costs associated with posting the papers would not be contributions or expenditures.

The Commission pointed out that, although a membership organization must report the costs incurred that are directly attributable to an express advocacy communication to its membership if those costs exceed $2,000 for any election, [FN1] the member communications at issue do not contain express advocacy. Therefore AIPAC need not report any costs associated with the communications to the Commission. See 2 U.S.C. § 431(9)(B)(iii); 11 CFR 114.3(b), 100.134(a) and 104.6(a).

FOOTNOTE:

1 Communications containing express advocacy but that are “primarily devoted to subjects other than the express advocacy” need not be reported. 2 U.S.C. § 431(9)(B)(iii); 11 CFR 114.3(b), 100.134(a) and 104.6(a).

AO 2011-04: Date issued: April 7, 2011; Length: 4 pages.