Last Week at the FEC: Revisions to Draft Advisory Opinion Would Reject Revolution Messaging’s Supplemental Proposal

by Holland & Knight LLP
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Last week the Federal Election Commission did not meet, but issued a revised draft Advisory Opinion related to Revolution Messaging, LLC and released records related to MUR 6610, where it closed its investigation and dismissed a complaint alleging that the candidate committee for former Congressman Cliff Stearns had failed to include proper disclaimers on its webpage and emails.

Revisions to Revolution Messaging Advisory Opinion Draft A

In Advisory Opinion Request (AOR) 2013-18, Revolution Messaging, LCC has requested a Commission determination regarding whether mobile phone banner advertisements for political committees are exempt from disclaimer requirements based on the small item or impracticability exceptions.   This blog has covered the Commission's deliberations on this issue extensively, including specific discussions on December 2 and December 9, 2013, and two weeks ago on February 12, 2014.

Last week, the Commissioned continued its consideration of this request by publishing revisions to one of the two draft advisory opinions it originally issued in November 2013. As originally released, AO Draft A would have found that proposed mobile phone advertisements do not qualify for either the small item or impracticability exceptions, but could meet the disclaimer requirements by alternative means, such as on a "landing page" as suggested (but not adopted by the requisite four votes) in AO 2010-19 (Google). As issued last week, Revised Draft A addresses a supplemental proposal offered by attorneys for Revolution Messaging on February 3, which would have provided for identifying the party paying for a mobile advertisement, albeit without the full language typically required under the Commission's regulations.  

The Commission's revisions to Draft A appear to reject Revolution Messaging’s supplemental proposal, finding that it "does not propose an alternative method of delivering a disclaimer" and instead "entails 'dispensing with, or truncating' the disclaimer," an approach the Commission previously rejected in AO 2007-33 (Club for Growth PAC).

Use of Dormant Funds by the Solano County Democratic Central Committee

The Commission also released a draft advisory opinion in AOR 2014-01, a request from the Solano County United Democratic Central Committee. That Committee submitted an AO request in January related to its potential use of $10,801.81 in funds that it had discovered in a bank account associated with a related committee the Commission closed administratively in 2005 due to its failure to file required reports.

If the Commission adopts the draft Advisory Opinion released last week, which will be considered during its open meeting on February 27, the Commission will find that the Central Committee may not use these funds because it is admittedly unable to demonstrate that the funds in the account comply with the source prohibition and contribution amount limitations of the Federal Election Campaign Act (FECA).      

Dismissal of Disclaimer-Related Complaint against Friends of Cliff Stearns

The Commission released the records of its closed its investigation and dismissal of a complaint brought by a consultant to an opposing candidate committee. That complaint alleged that Friends of Cliff Stearns, the campaign committee of former Congressman Clifford B. "Cliff" Stearns, failed to include proper disclaimers on three emails and its webpage during the 2012 election.

After investigation and a resulting report by the its General Counsel, the Commission determined that it had no reason to believe that Friends of Cliff Sterns, its treasurer, or the candidate, had violated FECA or Commission regulations because: 1) the disclaimer requirement for emails applies only to those emails sent to in excess of 500 recipients, and the Committee advised that the emails in question were sent to less than 100 recipients; and 2) that the Committee’s webpage did have required disclaimers, and a linked third-party payment vendor's webpage did not fall within the ambit of the Commission’s regulations.

Meeting Schedule

The Commission is scheduled to meet in executive session on Tuesday, February 25 and to hold an open meeting on Thursday, February 27. The agenda for the open meeting indicates that the Commission is set to discuss AOR 2013-18 (Revolution Messaging) and AOR 2014-01 (Solano County United Democratic Central Committee).  

- See more at: http://www.hklaw.com/PoliticalLawBlog/Last-Week-at-the-FEC-Revisions-to-Draft-Advisory-Opinion-Would-Reject-Revolution-Messagings-Supplemental-Proposal-02-24-2014/#sthash.t8MO4Kdo.dpuf

Last week the Federal Election Commission did not meet, but issued a revised draft Advisory Opinion related to Revolution Messaging, LLC and released records related to MUR 6610, where it closed its investigation and dismissed a complaint alleging that the candidate committee for former Congressman Cliff Stearns had failed to include proper disclaimers on its webpage and emails.

Revisions to Revolution Messaging Advisory Opinion Draft A

In Advisory Opinion Request (AOR) 2013-18, Revolution Messaging, LCC has requested a Commission determination regarding whether mobile phone banner advertisements for political committees are exempt from disclaimer requirements based on the small item or impracticability exceptions.   This blog has covered the Commission's deliberations on this issue extensively, including specific discussions on December 2 and December 9, 2013, and two weeks ago on February 12, 2014.

Last week, the Commissioned continued its consideration of this request by publishing revisions to one of the two draft advisory opinions it originally issued in November 2013. As originally released, AO Draft A would have found that proposed mobile phone advertisements do not qualify for either the small item or impracticability exceptions, but could meet the disclaimer requirements by alternative means, such as on a "landing page" as suggested (but not adopted by the requisite four votes) in AO 2010-19 (Google). As issued last week, Revised Draft A addresses a supplemental proposal offered by attorneys for Revolution Messaging on February 3, which would have provided for identifying the party paying for a mobile advertisement, albeit without the full language typically required under the Commission's regulations.

The Commission's revisions to Draft A appear to reject Revolution Messaging’s supplemental proposal, finding that it "does not propose an alternative method of delivering a disclaimer" and instead "entails 'dispensing with, or truncating' the disclaimer," an approach the Commission previously rejected in AO 2007-33 (Club for Growth PAC).

Use of Dormant Funds by the Solano County Democratic Central Committee

The Commission also released a draft advisory opinion in AOR 2014-01, a request from the Solano County United Democratic Central Committee. That Committee submitted an AO request in January related to its potential use of $10,801.81 in funds that it had discovered in a bank account associated with a related committee the Commission closed administratively in 2005 due to its failure to file required reports.

If the Commission adopts the draft Advisory Opinion released last week, which will be considered during its open meeting on February 27, the Commission will find that the Central Committee may not use these funds because it is admittedly unable to demonstrate that the funds in the account comply with the source prohibition and contribution amount limitations of the Federal Election Campaign Act (FECA).

Dismissal of Disclaimer-Related Complaint against Friends of Cliff Stearns

The Commission released the records of its closed its investigation and dismissal of a complaint brought by a consultant to an opposing candidate committee. That complaint alleged that Friends of Cliff Stearns, the campaign committee of former Congressman Clifford B. "Cliff" Stearns, failed to include proper disclaimers on three emails and its webpage during the 2012 election.

After investigation and a resulting report by the its General Counsel, the Commission determined that it had no reason to believe that Friends of Cliff Sterns, its treasurer, or the candidate, had violated FECA or Commission regulations because: 1) the disclaimer requirement for emails applies only to those emails sent to in excess of 500 recipients, and the Committee advised that the emails in question were sent to less than 100 recipients; and 2) that the Committee’s webpage did have required disclaimers, and a linked third-party payment vendor's webpage did not fall within the ambit of the Commission’s regulations.

Meeting Schedule

The Commission is scheduled to meet in executive session on Tuesday, February 25 and to hold an open meeting on Thursday, February 27. The agenda for the open meeting indicates that the Commission is set to discuss AOR 2013-18 (Revolution Messaging) and AOR 2014-01 (Solano County United Democratic Central Committee).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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