AO 2011-26: Funds raised to help individuals obtain identification not subject to FECA
An individual may raise and spend money for the purpose of assisting individuals in obtaining photographic identification in states where such identification is necessary for registering to vote and/or voting. Because the proposed activities will not be performed on behalf of any federal candidate or political party, and because the individual will not solicit or accept funds from any candidate or political party, the donations and disbursements will not be considered contributions or expenditures, and are therefore not subject to the requirements of the Federal Election Campaign Act (the Act).
Background
Some states require individuals to present photo identification when registering to vote or voting. Mr. Martin H. Freeman, who requested the advisory opinion, intends to identify such individuals who do not possess photo identification and assist these individuals in obtaining the necessary identification. Mr. Freeman intends to seek donations that will be used solely to identify individuals needing photographic identification and to assist those individuals in obtaining the photo identification.
Mr. Freeman will neither solicit nor accept funds from any political party, candidate, political committee or agent thereof. He is not undertaking these efforts on behalf of any political party, candidate or political committee. Mr. Freeman will not assist voters in registering to vote or in the actual process of voting.
Analysis
Persons who make expenditures are subject to a number of requirements and provisions in the Act and Commission regulations. An “expenditure” is defined as “any purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value made by any person for the purpose of influencing any election for Federal office…” 2 U.S.C. § 431(9)(A). Commission regulations expressly exempt the costs of encouraging individuals to register to vote or to vote from the definition of expenditure, as long as “no effort is or has been made to determine the party or candidate preference of individuals before encouraging them to register to vote or to vote…” 11 CFR 100.133. Under this exemption, money Mr. Freeman spends in helping individuals to obtain photo identification will not amount to expenditures, as long as no effort is made to determine the party or candidate preference of potential voters.
The Act and Commission regulations define a contribution as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. § 431(8)(A). Mr. Freeman’s activities will not be performed on behalf of any federal candidate or political party, and Mr. Freeman will not accept any funds from, or solicited by, a candidate or political party. Therefore, provided Mr. Freeman does not make any effort to determine candidate or party preference in connection with his efforts, the proposed activities will not be for the purpose of influencing a federal election, meaning the money he raises will not constitute contributions. Therefore, the Commission concludes that Mr. Freeman’s proposed activities are not subject to the requirements or limitations of the Act and Commission regulations.
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