AO 2015-09: Activities conducted by Super PACs, single-candidate committees, 527 organizations, candidates and prospective candidates
The Commission addressed several questions posed by two Super PACs (i.e., independent expenditure-only committees) regarding activities by Super PACs, single-candidate committees, 527 organizations, candidates and prospective candidates.
Senate Majority PAC and House Majority PAC (the Super PACs) are both registered with the Commission, and both accept contributions in unlimited amounts as well as from corporations and labor organizations. Both PACs represented to the Commission upon registration that they would not use those funds to make contributions to federal candidates. See: SpeechNow v. FEC.
In their request, the two Super PACs proposed a number of activities to be undertaken with the active involvement of prospective candidates, including the formation of single candidate committees which would collaborate on strategy and advertising with the potential candidates. The Super PACs also proposed the formation of section 527 political organizations which would raise nonfederal funds to pay the testing-the-waters expenses of prospective candidates, including polling, travel, research, consulting and administrative expenses. The Super PACs intend to stop working closely with prospective candidates once those individuals have become candidates under the Federal Election Campaign Act (the Act).
Once an individual''s candidacy has been established, the Super PACs propose to ask individuals associated with the candidate''s campaign to also raise funds for the single-candidate committees and the Super PACs. The Super PACs also intend to ask the candidates themselves to speak, attend or be a featured guest at fundraisers for the single candidate committees and the Super PACs, with all solicitations of nonfederal funds made by the PAC or single-candidate committees and not by the candidate.
The opinion provides a response to seven specific questions asked in the request:
Questions regarding testing-the-waters activities. Under the Act, an individual who seeks nomination for election or election to federal office becomes a “candidate” (and thereby triggers registration and reporting requirements) if he or she receives contributions or makes expenditures in excess of $5,000 or consents to another person’s doing so in excess of $5,000 on the individual’s behalf. 52 U.S.C. § 30101(2)(A); 11 CFR 100.3(a). Under FEC regulations, an individual who raises or spends money only to "test the waters" (but not to campaign for office) does not become a candidate. 11 CFR 100.72, 100.131.
In regard to proposed testing-the-waters activities funded by 527 organizations, the opinion sets forth that the proposed 527 organizations’ use of funds raised outside of the Act''s limits and prohibitions to pay for an individual''s testing-the-waters activities would violate FEC regulations if that individual decides to become a candidate. The Commission was unable to render an opinion on whether a violation of the Act would occur if the individual never decides to become a candidate. (Question 4.)
The opinion also affirms that an individual would become a candidate for federal office, when he or she privately determines that he or she will run for office (assuming that more than $5,000 has been raised or spent on testing-the-waters activities). (Question 5.) Although an individual may raise or spend more than $5,000 on activities to explore a potential candidacy without becoming a candidate, the testing-the-waters exemption no longer applies once an individual has decided to become a candidate. 11 CFR 100.72(b), 100.131(b); see also Advisory Opinion (AO) 1981-32 (Askew).
Moreover, while FEC regulations specify that conducting testing-the-waters activities in close proximity to the election or over a protracted period of time are examples of activities that indicate that an individual has decided to become a candidate, the regulations do not establish a specific time limit for such activities. (Question 6.) Thus, the length of time that an individual spends deliberating whether to become a candidate is just one factor and does not by itself determine whether the individual has become a candidate (assuming that more than $5,000 has been raised or spent on testing-the-waters activities). 11 CFR 100.72(b)(4), 100.131(b)(4); see also: Factual and Legal Analysis at 6, MUR 5722 (Friends for Lauzen).
The request also asked if an individual would become a candidate should that person make a public statement that he or she is running for office, but then subsequently attempts to withdraw the statement. (Question 8.) Commission regulations provide that any written or oral statements made or authorized by the individual that refer to him or her as a candidate for a particular office are examples of activities that indicate that the individual has decided to become a candidate. 11 CFR 100.72(b)(3), 100.131(b)(3); see also: Factual and Legal Analysis at 4-8, MUR 5363 (Sharpton). Thus, if an individual makes or authorizes such a statement, it would generally reflect the individual’s decision to become a candidate, and so the statement may trigger candidacy regardless of any subsequent retraction attempts (assuming that more than $5,000 has been raised or spent on testing-the-waters activities). The Commission also noted that a demonstrably inadvertent misstatement does not necessarily indicate that the individual has decided to become a candidate.
Similarly, the opinion notes that an individual who has raised or spent more than $5,000 on testing the waters activities and who informs the media (either directly or through an advisor) that he or she "will announce candidacy" would be a candidate. (Question 9.) Such an announcement is a clear signal that the individual has decided to become a candidate. See MURs 2262 (Robertson) and 5363 (Sharpton).
Questions regarding fundraising activities. In regard to the ability of individuals who are agents of federal candidates to raise nonfederal funds on behalf of the Super PACs, the Commission determined that individuals who are agents of federal candidates may solicit nonfederal funds to the Super PACs as proposed. (Question 11.) While the Act prohibits federal officeholders and candidates from raising nonfederal funds, it does not prohibit individuals who are agents of a candidate from also raising nonfederal funds for other, outside groups. 52 U.S.C. § 30125(e)(1)(A); 11 CFR 300.61.
The Commission found that the proposed activities in this instance are consistent with those found to be permissible in prior advisory opinions. The Super PACs propose to have individuals who are agents of federal candidates solicit funds “on their own” and “not at the request or suggestion” of federal candidates. When fundraising, individuals would identify themselves as raising funds only for the Super PACs, would not use their campaign titles or campaign resources, and would inform potential contributors that they are “making the solicitation on [their] own and not at the direction of [the federal candidates] or their agents.” Moreover, the individuals would not solicit contributions for the federal candidate at the same time. In prior AOs, the Commission had determined that individuals who are agents of federal candidates may solicit funds on behalf of other organizations if the individuals act in their own capacities “exclusively on behalf of” the other organizations when fundraising for them, “not on the authority of” the candidates, and raise funds on behalf of the candidates and the other organizations “at different times.” See: AOs 2007-05 (Iverson) and 2003-10 (Nevada State Democratic Party et al.). The Commission could not approve a response by the required four affirmative votes to the question of whether the individuals would be permitted to raise nonfederal funds on behalf of single-candidate committees (as defined in the Advisory Opinion).
The Super PACs asked if FEC regulations at 11 CFR 300.64 require that there be a minimum number of expected attendees before a federal candidate can permissibly speak, attend, or be featured as a special guest at nonfederal fundraising events. The Act and Commission regulations state that federal candidates and officeholders may not solicit nonfederal funds, but may attend, speak at, or be a featured guest at fundraising events where nonfederal funds are being raised. They may also solicit funds provided that the solicitation is limited to funds that comply with the Act’s amount limitations and source prohibitions. Candidates may limit their solicitations through a clear and conspicuous written notice or oral statement by the candidate that the solicitation is not for nonfederal funds and that the candidate does not seek funds in excess of federally permissible amounts or from prohibited sources. 11 CFR 300.64(c)(3)(A). The name or likeness of a federal candidate or officeholder may appear in publicity for such an event that contains a solicitation of nonfederal funds if the publicity identifies the candidate in a manner not related to fundraising and includes a clear and conspicuous oral or written disclaimer that the solicitation is not being made by the federal candidate or officeholder. 11 CFR 300.64(c)(3)(B). The Commission concluded that in light of the Super PACs’ factual representations and their representations that they will comply with all of the requirements of 11 CFR 300.64 and any other requirements under the Act and applicable Commission regulations when engaging in the specified activity, a federal candidate may attend, speak, or be a featured guest as proposed. (Question 12.)
Other questions. The Commission was unable to approve a response by the necessary four votes on the remaining questions posed:
- Question 1 regarding the ability of a single-candidate committee to raise or spend nonfederal funds after a prospective candidate involved in the formation of the committee becomes a candidate;
- Question 2 regarding the creation and timing of public communications that use information shared with single-candidate committees and Super PACs by prospective candidates about their plans, projects, activities or needs;
- Question 3 regarding the use of video footage previously filmed of prospective candidates by single-candidate committees and Super PACs in public communications supporting the individual after candidacy is established;
- Question 7 regarding the amount of funds raised by a prospective candidate as a factor indicating an actual candidacy; and
- Question 10 regarding whether filming the video footage described in Question 3 would trigger candidacy for a prospective candidate.
Date Issued: November 13, 2015; 9 pages