Recently, the FEC has issued several Advisory Opinions (AOs) regarding the use of text messages to make contributions in connection with federal elections. This article answers common questions about political contributions made and received by text message.
Who is responsible for determining the eligibility of the contributor to make a contribution by text?
Under the proposals that the Commission has approved, the recipient political committee is solely responsible for ensuring that a text contribution is lawful under the Act and Commission regulations. See AO 2012-28 (CTIA II).
What if we receive a contribution by text that we later discover is from a prohibited source?
Committee treasurers must return or refund any contribution that the committee receives if the treasurer subsequently learns that the contribution came from a prohibited source. See generally 103.3(b), 110.20(a)(4), (g) and AO 2012-26, n.8 (m-Qube II).
When is a contribution that is sent by text “received?”
Under the proposals approved by the Commission, a contribution that is sent by text message is considered “received” when a user completes an “opt-in,” that is, when a user confirms that he or she intends to make the contribution and certifies that he or she is eligible to make contributions under the Act and Commission regulations. See AO 2012-17 (m-Qube I).
May individuals contribute more than $200 by text message?
Yes. The Commission has approved proposals that would allow political committees to receive more than $200 in contributions by text message. In AO 2012-30 (Revolution Messaging), for example, the Commission approved a proposal for a text messaging application provider to process contributions to political committees that aggregated more than $200 per year (or election cycle, as applicable) so long as the contributor provided at least his or her name and address in response to requests for name, address, occupation, and name of employer. Under the proposal, the application provider would work with the recipient political committees to combine this information with information about the contributors that the political committees had obtained through other means. See also AO 2012-26 (m-Qube II).
Would our committee receive a prohibited in-kind corporate contribution if our wireless service provider offers us a discounted rate or establishes a new rate structure for political committees when providing its services?
Not necessarily. While a discount or new fee structure for political committees that is less than what a vendor typically charges can result in a contribution, the Commission has determined that a prohibited corporate in-kind contribution would not result if a wireless service provider charges reduced rates that reflect commercial considerations and that do not reflect considerations outside of a business relationship. See AOs 2012-26 (m-Qube II), 2012-28 (CTIA II), 2012-31 (AT&T Inc.).
Our committee would like to share a single short code with other committees for text contributions. Is this permissible?
Yes. In AO 2012-30 (Revolution Messaging), the Commission approved a proposed service that would allow multiple Federal political committees to share one premium short code for receiving contributions by text message, when each political committee would be assigned one or more unique keywords to ensure that each contribution would be associated with only one political committee. Under the proposal, the contributor would send both the shared short code and the unique keyword in the text message, and the transaction would be assigned to the correct recipient political committee’s account, based on the keyword in the text message. The Commission concluded that this method would “ensure that contributions will be properly accounted for and that corporate funds will not be inadvertently transmitted to political committees.” For more information, see AO 2012-30 (Revolution Messaging).