AO 2011-08: Trade association members may be solicited for PAC contributions

The American Society of Anesthesiologists (ASA), an incorporated nonprofit medical society, qualifies as a “membership organization” and may solicit certain categories of its members for contributions to its separate segregated fund (SSF).

Background

ASA serves as the connected organization for the American Society of Anesthesiologists Political Action Committee (ASAPAC). ASA’s membership consists of some 45,000 physicians and other professionals who engage in or are interested in the medical practice of anesthesiology.

ASA has eight categories of membership, and its bylaws expressly lay out qualifications and requirements for each type of membership. When an individual accepts ASA’s request for membership, ASA responds by sending written confirmation of membership and a membership card and lists the new member on the “members only” section of ASA’s website.

ASA seeks to solicit contributions from two classes of members, Life Members and Retired Members, for contributions to ASAPAC. Life Members are past presidents of ASA. They have the right to vote for ASA’s delegates and directors and serve as members of the House of Delegates, ASA’s highest governing body. Retired Members consist of several classes: individuals who have been active or affiliate members of ASA for 20 years or more and who have retired from practice; individuals who have been active or affiliate members for 20 years or more and have reached the age of 70; or individuals who are active members and who are disabled and therefore unable to practice for one year or more. Unlike Life Members, Retired Members do not have a vote in ASA.

Neither Life Members nor Retired Members are required to pay dues, but they must confirm their ASA membership annually. All members are subject to the same sanctions and disciplinary procedures.

Analysis

The Federal Election Campaign Act (the Act) and Commission regulations define a restricted class of persons who can be solicited by SSFs such as ASAPAC. 2 U.S.C. § 441b(b)(4). The solicitable class of an incorporated membership organization includes its “members,” its executive and administrative personnel and their families.

In determining whether Life Members and Retired Members qualify as “members” for solicitation purposes, the Commission first determined that ASA qualifies as a “membership organization.” The Commission defines a “membership organization” as a trade association, cooperative or corporation without capital stock that:

• Is composed of members, some or all of whom are vested with the power and authority to operate or administer the organization, pursuant to the organization’s articles, bylaws or other formal organization documents;
• Expressly states in these organizational documents the qualifications and requirements for membership;
• Makes these formal organizational documents available to its members upon request;
• Expressly solicits persons to become members;
• Expressly acknowledges acceptance of membership; and
• Is not organized primarily for the purpose of influencing the nomination for election, or election, of any individual for federal office.

ASA meets all of these criteria, and therefore qualifies as a membership organization within the meaning of 11 CFR 100.134 and 114.1(e). 

The Commission also determined that both Life Members and Retired Members meet the Commission’s definition of “members” and may, therefore, be solicited by ASA for contributions to ASAPAC.

Commission regulations define a member as a person who satisfies the requirements for membership in a membership organization, affirmatively accepts the membership’s invitation to become a member and has significant financial attachment to the membership organization, pays membership dues or has significant

organizational attachment to the membership organization. Factors indicating significant organizational attachment include affirmation of membership on at least an annual basis, direct participatory rights in the governance of the organization, the right to vote on policy questions and the right to approve the organization’s budget.

Life Members have the right to vote in ASA’s elections for the House of Delegates, the ASA’s highest governing body. Life Members qualify as members under Commission regulations because they currently satisfy the requirements for membership, affirmatively accept membership in ASA and have a significant organizational attachment to ASA.

Retired Members satisfy ASA’s membership requirements and annually accept the invitation to maintain membership. But, unlike Life Members, they do not have the right to vote in elections for the ASA House of Delegates. As such, Retired Members do not have the same type of organizational attachment as do Life Members. However, the Commission may determine on a case-by-case basis whether persons qualify as members on the basis that they have a relatively enduring and independently significant financial or organization attachment to the organization. 11 CFR 100.134(g) and 114.1(e)(3).

Two types of Retired Members have similar requirements: a person must have paid dues for at least 20 years and must either be retired from anesthesiology or have reached the age of 70. Because these types of members are long-term dues-paying members, the Commission determined they qualify as “members” and may be solicited for contributions to ASAPAC. The third type of Retired Members consists of active members who are disabled

and therefore are unable to engage in the practice of anesthesiology for one year or more. Once they become Retired Members they no longer pay dues and no longer have the right to vote in ASA elections as Active Members. In AO 2008-21 (CME Group, Inc.) the Commission determined that when a member of the Chicago Board of Trade (CBOT) temporarily transferred a seat on CBOT, that individual still remained a solicitable “member” under Commission regulations. The Commission stated that, “while they do not exercise most of the prerogatives of membership… they have reversionary interests in the membership and may reacquire those prerogatives,” and that this demonstrated a relatively enduring and independently significant financial attachment. Also, these third types of Retired Members maintain the same member benefit resources as active members and are also subject to sanction by the ASA, even while they are retired. Taking these factors into consideration, the Commission determined that these Retired Members also have an enduring and independently significant organization attachment to ASA. Therefore, Retired Members also qualify as “members” and may be solicited for contributions to ASAPAC.

AO 2011-08: Date Issued: June 15, 2011; Length: 7 pages.