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Interpretative Opinion 09-10: Circulation of Campaign Literature

December 11, 2009

Valencia Mohammed
6600 Luzon Avenue, N.W.
Suite 402
Washington, D.C. 20012

Dear Ms. Mohammed:

This is to officially respond to your concerns in your several recent e-mails to Kathy S. Williams, General Counsel to the Office of Campaign Finance (OCF). You query whether elected officials who use “electronic newsletters to promote their accomplishments to their constituents thru extensive listserves” must comply with mailing restrictions for paper campaign literature. Additionally, you appear to question the use of government personnel used to implement the electronic mail-out, especially of campaign materials. Finally, you question how a citizen may challenge any alleged wrongdoing.

You may remember that Ms. Williams responded to you, in brief, by e-mail, and advised you that OCF “view the use of the electronic media for political purposes and non-governmental purposes similarly to that of paper based media.” In other words, all must conform to campaign finance requirements.

D.C. Official Code §1-1102.01(e) (2001 Edition) states “[e]ach political committee and candidate shall include on the face or front page of all literature and advertisement soliciting funds the following notice: ‘A copy of our report is filed with the Director of Campaign Finance of the District Board of Elections and Ethics.’”

D.C. Official Code §1-1102.10 states, in part, “[a]ll newspaper or magazine advertising, posters, circulars, billboards, handbills, bumper stickers, sample ballots. . .and other printed matter with reference to or intended for the support or defeat of a candidate or group of candidates for nomination or election to any public office. . .shall be identified by the words ‘paid for by’ followed by the name and address of the payer or the committee or other person and its treasurer on whose behalf the material appears.”

D.C. Official Code §1-1106.51(a) states, in part, “[n]o resources of the District of Columbia government, including, the expenditure of funds, the personal services of employees during hours of work, and nonpersonal services, including supplies, materials, equipment, office space, facilities, telephones and other utilities, shall be used to support or oppose any candidate for elected office, whether partisan or nonpartisan.”

Notwithstanding that the affected statutes fail to use the words “electronic” or “listserves” therein, they are incorporated within the requirements and prohibitions for campaign literature and electioneering ads, plus the personal and nonpersonal services used to implement same.

As you pointed out to Ms. Williams, with the advent of electronic mail and listserves, they are used for the political purposes of candidates and to solicit funds. Consequently, such an electronic document must contain the required language, in accordance with D.C. Official Code §1-1102.01(e).

The “paid for by” language must be included therein because electronic documents “with reference to or intended for the support or defeat of a candidate[s]” constitute “printed matter.” See D.C. Official Code §1-1102.10.

Additionally, no government resource, i.e., any thing for which a District Government penny is spent, shall “be used to support or oppose any candidate for elected office, whether partisan or nonpartisan.” See D.C. Official Code §1-1106.51(a).

Finally, to challenge any alleged wrongdoing under OCF jurisdiction, simply submit a written complaint. It must be filed with OCF, as a signed and verified document under oath; contain both the full name and address of the person making the complaint and each person named as a respondent, and a clear and concise statement of that which is alleged to constitute a violation of the Campaign Finance Act; and be accompanied by supporting documentation, if known and available to the person making the complaint. See 3 D.C.M.R. §3701 (March 2007, as amended). The regulations provide, in pertinent part, that any employee or resident of the District of Columbia may initiate an investigation upon a complaint. §3703.2.

You may also remember that Ms. Williams advised you that the Council, under its own procedures, regulates the issuance of newsletters, paper-based or by listserves. Specifically, under D.C. Official Code §§2-701 et seq., as amended, the statute clarifies the type and manner of official correspondence created and dispatched by elected officials.

An “elected official may not mail, as official mail, any mass mailing within the 90-day period that immediately precedes a primary, special, or general election in which such official is a candidate for office.” D.C. Official Code §2-706(a). Notwithstanding, elected officials may mail newsletters, as official mail, but the newsletters may not contain references to political, campaign or partisan matters. See D.C. Official Code §2-706. For any further information regarding the Council and its official correspondence, do not hesitate to contact its General Counsel, Brian K. Flowers, Esq.

The foregoing is an Interpretative Opinion of the Director of the Office of Campaign Finance. Pursuant to D.C. Official Code, §1-1103.05, you are entitled to request an Advisory Opinion from the Board of Elections and Ethics on this transaction or activity.

Should you have any additional questions, please contact William O. Sanford, Senior Staff Attorney, at 202/671-0550.