State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

A097-21-CD

Number: A097-21-CD

Requested by: Patti Higgins

On Behalf of: Anchorage Women’s Political Caucus

Prepared by: Jenifer Kohout, Assistant Director

Date issued: March 2, 1998

Subject: Posting of a PAC Website Consistent with the Campaign Disclosure Law

This letter responds to your request for an advisory opinion regarding the application of the new campaign disclosure law to the Anchorage Women’s Political Caucus (AWPC) website.

Summary

The AWPC may not endorse candidates on its web site. The AWPC is an organization and the campaign disclosure law prohibits organizations from making campaign contributions or independent expenditures. However, the AWPC’s political action committee (PAC) may post its own web site to endorse candidates. The cost of design and maintenance of the site should be calculated and reported on the AWPC-PAC’s campaign disclosure reports.

The Law

Definition of Contribution

AS 15.13.400(3)(A) "[C]ontribution" means a purchase, payment, promise or obligation to pay, loan or loan guarantee, deposit or gift of money, goods, or services for which charge is ordinarily made and that is made for the purpose of influencing the nomination or election of a candidate, and in AS 15.13.010(b) for the purpose of influencing a ballot proposition or question, including the payment by a person other than a candidate or political party, or compensation for the personal services of another person, that are rendered to the candidate or political party;

AS 15.13.400(3)(B)(i) Contribution does not include services provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or ballot proposition or question, but it does include professional services volunteered by individuals for which they ordinarily would be paid a fee or wage. . . .

2 AAC 50.313

(a) [C]ontribution includes a payment, gift, subscription, loan, advance, transfer, deposit of money, services, or anything of value made by a person or group for the purpose of influencing an election . . . .

(d) "[A]nything of value" includes facilities, equipment, polling information, supplies, advertising services, membership lists, mailing lists, any item of real or personal property, and personal services of any kind, the cost or consideration for which is paid by a person other than the candidate or group for whom the services are rendered.

(l) "[C]ontribution" does not include . . . (4) a payment made by a business, corporation, trade association, labor organization, or other organization not organized primarily to influence elections to communicate directly with its members or employees, or their families, on any subject, if the communication is of the same format and nature used by the organization when it has communicated in the past on nonpolitical subjects, does not request members or their families to do anything other than exercise the right to vote, and does not solicit individual contributions to a clearly identified candidate or group chosen by the organization.

Prohibited Contributions.

AS 15.13.074 (f). A corporation, company, partnership, firm, association, organization, business trust or surety, labor union, or publicly funded entity that does not satisfy the definition of group in AS 15.13.400 may not make a contribution to a candidate or group.

Independent Expenditures.

AS 15.13.135(a). Only an individual or group may make an independent expenditure supporting or opposing a candidate for election to public office.

Facts

You state that the AWPC has established a web page on the Internet. The site contains a welcome page; a list of meeting times and programs; a history of AWPC; a list of officers with biographies and pictures; information on how to join AWPC; the AWPC baseline; election timelines and notices; links to other sites AWPC members may find of interest; and a calendar. During election times, you indicate that the AWPC will add a "page" with information about endorsed candidates.

The web page is posted through an internet service provider which charges AWPC a flat fee every six months for the page and an e-mail address.

Describing AWPC’s organizational structure, you state that AWPC has two separate funds. Those include an operating fund which contains money used in the operation in maintenance of the organization and a PAC used to support endorsed candidates.

Analysis

You ask how the AWPC should report the cost of this endorsement "page" on its campaign disclosure reports. In addition, you ask whether the endorsements are contributions and if so, how they should be reported.

The AWPC web site serves many functions for the organization. It notifies members about upcoming meetings, programs, and election times; and offers them links to other related sites. The page also educates member and non-member visitors to the site about the AWPC--its history, its officers, and how to join the organization. Presumably, the costs of designing the site and maintaining its space on the internet were paid out of the AWPC organizational account.

You indicate that, prior to the election, the AWPC intends to add a "page" with information about endorsed candidates. Because organizations are prohibited from making contributions and independent expenditures, however, the AWPC may not post endorsements on its web page.

Under the campaign disclosure law, effective January 1, 1997, organizations like the AWPC are prohibited from making contributions. Contributions include direct or indirect payments, gifts of money or services, or anything of value for the purpose of influencing the outcome of a state election. This definition would include a political communication like an endorsement which was posted on a web page.

Campaign disclosure regulations permit organizations like AWPC to issue limited political communications to the members of the organization if certain conditions exist. 2 AAC 50.313(l)(4). The communication must be in the same format and nature used by the organization to communicate on nonpolitical subjects and the communication must not solicit contributions to a clearly identified candidate or group. In this case, however, the provision does not apply because an endorsement which appears on a web page is not limited to the members of AWPC. Because of the general availability of the internet, the posting of endorsements on the AWPC web site is considered to be a political communication to the general public.

This interpretation is consistent with a determination made by the Federal Election Commission regarding a similar situation under federal law. AO 1997-16. In that case, an environmental organization asked whether it could place candidate endorsements on its web site. The FEC determined that because the endorsement would reach beyond the organization’s membership, it was prohibited unless the organization employed some mechanism so that only its members could access the endorsements.

The campaign disclosure law does not prohibit the AWPC-PAC from posting its endorsements on a the internet. However, the PAC endorsements must be made on a PAC web site, not the organization’s web site.

In addition, because endorsements on a web site are political communications, they must be identified with a "paid for by" identifier. The identifier should appear on a PAC’s homepage, which contains an index to the site and often basic information about an organization. In addition, "paid for by" identifiers should appear on any pages which may be accessed or used independent of the homepage.

On its campaign disclosure reports, the AWPC-PAC would report as expenditures, the complete cost of web site creation and all fees associated with maintaining the site. In addition, the AWPC-PAC must calculate the value of its endorsements by dividing the cost of the endorsements by the number of candidates endorsed.

To calculate the cost of the endorsements, the AWPC-PAC may use a number of methods. For example, to estimate the cost of creation and posting of an endorsement page, the AWPC-PAC might consult with computer experts in the field. To calculate the cost of maintenance of the endorsements, the AWPC-PAC might divide the fees associated with maintaining the entire AWPC-PAC website by the amount of space taken up by the endorsements. Amount of space might be based on the proportion of memory used, the percentage of space as one scrolls down the page, or any other reasonable calculation of space. Ultimately, the cost is divided by the number of candidates endorsed. If the AWPC-PAC consults with the candidates endorsed, the AWPC-PAC must disclose the endorsements as contributions to the candidates. If AWPC-PAC does not coordinate or consult with the candidates, the PAC discloses the amounts as independent expenditures.

You also ask whether a contribution results if AWPC posts a home page on someone’s personal home page. If so, you ask whether the contribution is from the individual sponsor to AWPC; or whether it is from the individual or AWPC to the endorsed candidates. Finally, if the posting is a contribution, you ask how it should be reported.

As described above, the AWPC may not endorse candidates on its web site. This restriction applies whether the AWPC site is posted directly to the internet or is tacked on to an individual member’s site.

If the AWPC-PAC were to post its site on an individual member’s site, then any costs associated with the creation, posting and maintenance of the site must be disclosed on the PAC’s reports. The primary cost is web site creation. This should appear as either an expenditure to the individual who designed the page or as a non-monetary contribution from the individual to the PAC. Similarly, the costs associated with maintaining the site on the internet should also be reflected on the campaign disclosure reports. The individual who maintains the site must calculate the cost to the AWPC-PAC for maintaining the site. She may estimate the value of site maintenance by dividing the full cost of maintaining her own site by the amount of space taken up by the AWPC-PAC site. As discussed above, the calculation of space on a website must be reasonable but is not prescribed by the APOC.

The value of any endorsements would be considered a contribution or independent expenditure by the AWPC-PAC to the candidates. The PAC must calculate the cost of the endorsement as described in the section above. In this scenario, the fee for the site might be reduced because it is shared by the individual sponsor’s own postings. Even though the costs associated with maintaining the site may be minimal, they must be disclosed on the AWPC-PAC’s campaign disclosure reports.

Conclusion

While the AWPC may not endorse candidates on its web site, the AWPC-PAC may post its own home page with candidate endorsements. The AWPC-PAC must identify the site with a "paid for by" identifier and must disclose the costs associated with and contributions or independent expenditures resulting from political communications posted on the PAC page.

The Commission approved this advisory opinion on February 26, 1998.. The advice in this opinion applies only to the specific activity for which the advice was requested.

A copy of the original letter requesting the above advisory opinion is available upon request at the Alaska Public Offices Commission. 907/276-4176.