AO 2014-13: Contributions earmarked for multiple committees

Contributors may use ActBlue’s “Split It!” feature on its contribution forms to divide a single contribution among multiple political committees, including candidate committees. Using this feature will not result in ActBlue exercising direction or control over the choice of recipient candidates or political committees, nor will it trigger the Commission’s joint fundraising rules.

Background

ActBlue is a nonconnected political committee that receives earmarked contributions via its website and forwards them to the candidates and political committees as instructed by the original contributor. ActBlue lists candidates and committees that are eligible to receive earmarked contributions through ActBlue’s website. For each eligible candidate or committee, ActBlue creates a template contribution form. ActBlue does not itself solicit funds for candidates or committees through the template contribution forms. Rather, any person with an account on ActBlue’s website may use the templates to create customized forms that solicit contributions to one or more candidates or committees.

To make a contribution, a visitor to ActBlue’s website must enter a specific dollar amount into a box next to the political committee’s name on the contribution form. If the contribution form identifies multiple recipient political committees, the contributor has the option of entering a single dollar amount into a box labeled, “Split It!” If a contributor enters a dollar amount into the “Split It” box, that dollar amount will be divided equally among all of the committees listed on the form, with the resulting per committee dollar amount displayed in the box next to each listed committee. A contributor may change the amount to be contributed to any listed committee or decide not to make a contribution to a listed committee by simply changing the amount appearing next to that committee. To make the contributions, the contributor must click on a separate button at the bottom of the form. Once a contributor has authorized his or her contributions to be made to multiple recipients through the contribution form, the contributor’s credit card is charged for the total amount of the contributions. ActBlue will receive the funds from the credit card processor and forward them to each recipient committee as designated by the contributor on the contribution form, less ActBlue’s standard credit card processing fees.

ActBlue asks how the Act and Commission regulations apply to its proposal.

Analysis

Earmarked contributions. The Federal Election Campaign Act (the Act) provides that “all contributions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to such candidate, shall be treated as contributions from such person to such candidate.” 52 U.S.C. §30116(a)(8) (formerly 2 U.S.C. §441a(a)(8)); 11 CFR 110.6(a). “Earmarked” means “a designation, instruction, or encumbrance, whether direct or indirect, express or implied, oral or written, which results in all or any part of a contribution…being made to…a clearly identified candidate or a candidate’s authorized committee.” 11 CFR 110.6(b)(1).

Any person who receives and forwards an earmarked contribution to a candidate is considered a “conduit or intermediary.” 11 CFR 110.6(b)(2). A forwarded earmarked contribution does not count against the conduit’s contribution limits unless the conduit “exercises any direction or control over the choice of the recipient candidate.” If the conduit exercises direction or control, then the entire earmarked contribution is treated as a contribution from both the original contributor and from the conduit to the recipient candidate. 11 CFR 110.6(d).

Previously, the Commission has found that a conduit or intermediary does not exercise directly or control if the contributor has the final say over whether to make a contribution to a particular recipient and the amount of the contribution. See, for example, Advisory Opinions (AOs) 1980-46 (National Conservative PAC), 2006-30 (ActBlue), and 2003-23 (WE LEAD); MUR 6390 (Senate Conservatives Fund).

The Commission concluded that ActBlue does not exercise direction or control when a person uses the Split It box to make contributions on ActBlue’s website since ActBlue is merely suggesting an allocation to each recipient committee after the contributor chooses a total amount of a contribution; ultimately, the contributor decides whether to contribute and how much he or she will contribute and not ActBlue. The contributor may agree to the suggested allocation or alter the allocation as he or she chooses, or may decide not to contribute at all.

Joint fundraising rules. Commission regulations specify the requirements that apply when a political committee engages in joint fundraising, pursuant to 11 CFR 102.17. Participants in such joint fundraising efforts must, among other things, designate a participating committee or form a new committee to serve as their joint fundraising representative, and enter into a written agreement that identifies the fundraising representative and states an allocation formula for dividing up committee proceeds to the participants. 11 CFR 102.17(c)(1).

ActBlue asked whether use of the Split It box on a contribution form would trigger these joint fundraising requirements when the solicitation at issue would otherwise not be considered joint fundraising. The Commission concluded that ActBlue’s “Split It” box would not trigger the Commission’s joint fundraising rules because the box itself does not indicate that the recipient committees have agreed to fundraise jointly or have collectively arranged for the disposition of any contributions raised. The request also specified that any person soliciting contributions to multiple committees on ActBlue’s website did so independently of all other recipient committees. Under the circumstances in ActBlue’s proposal, where the other recipient committees have had no involvement in the creation, modification, or administration of ActBlue’s contribution form, the use of the Split It box would not constitute joint fundraising under Commission regulations.

Date issued: September 19, 2014; Length: 5 pages

Resources:

• Advisory Opinion 2014-13 [PDF]