[EL] Business Week story about DreamWorks marketing team assisting Messina (Pres. Obama's campaign manager)
Rick Hasen
rhasen at law.uci.edu
Thu Jun 14 12:00:51 PDT 2012
http://www.gpo.gov/fdsys/pkg/CFR-2011-title11-vol1/xml/CFR-2011-title11-vol1-sec114-9.xml
Title 11 - Federal ElectionsVolume: 1Date: 2011-01-01Original Date:
2011-01-01Title: Section 114.9 - Use of corporate or labor organization
facilities.Context:
Title 11 - Federal Elections. CHAPTER I - FEDERAL ELECTION
COMMISSION. SUBCHAPTER A - GENERAL. PART 114 - CORPORATE AND LABOR
ORGANIZATION ACTIVITY.
§ 114.9
Use of corporate or labor organization facilities.
(a) Use of corporate facilities for individual volunteer activity
by stockholders and employees.
(1) Stockholders and employees of the corporation may, subject to
the rules and practices of the corporation and 11 CFR 100.54, make
occasional, isolated, or incidental use of the facilities of a
corporation for individual volunteer activity in connection with a
Federal election and will be required to reimburse the corporation only
to the extent that the overhead or operating costs of the corporation
are increased. A corporation may not condition the availability of its
facilities on their being used for political activity, or on support for
or opposition to any particular candidate or political party. As used in
this paragraph, occasional, isolated, or incidental use generally means---
(i) When used by employees during working hours, an amount of
activity which does not prevent the employee from completing the normal
amount of work which that employee usually carries out during such work
period; or
(ii) When used by stockholders other than employees during the
working period, such use does not interfere with the corporation in
carrying out its normal activities.
(2) Safe harbor. For the purposes of paragraph (a)(1) of this
section, the following shall be considered occasional, isolated, or
incidental use of corporate facilities:
(i) Any individual volunteer activity that does not exceed one hour
per week or four hours per month, regardless of whether the activity is
undertaken during or after normal working hours; or
(ii) Any such activity that constitutes voluntary individual
Internet activities (as defined in 11 CFR 100.94), in excess of one hour
per week or four hours per month, regardless of whether the activity is
undertaken during or after normal working hours, provided that:
(A) As specified in 11 CFR 100.54, the activity does not prevent
the employee from completing the normal amount of work for which the
employee is paid or is expected to perform;
(B) The activity does not increase the overhead or operating costs
of the corporation; and
(C) The activity is not performed under coercion.
(3) A stockholder or employee who makes more than occasional,
isolated, or incidental use of a corporation's facilities for individual
volunteer activities in connection with a Federal election is required
to reimburse the corporation within a commercially reasonable time for
the normal and usual rental charge, as defined in 11 CFR 100.52(d)(2),
for the use of such facilities.
(b) Use of labor organization facilities for individual volunteer
activity by officials, members, and employees.
(1) The officials, members, and employees of a labor organization
may, subject to the rules and practices of the labor organization and 11
CFR 100.54, make occasional, isolated, or incidental use of the
facilities of a labor organization for individual volunteer activity in
connection with a Federal election and will be required to reimburse the
labor organization only to the extent that the overhead or operating
costs of the labor organization are increased. A labor organization may
not condition the availability of its facilities on their being used for
political activity, or on support for or opposition to any particular
candidate or political party. As used in this paragraph, occasional,
isolated, or incidental use generally means---
(i) When used by employees during working hours, an amount of
activity during any particular work period which does not prevent the
employee from completing the normal amount of work which that employee
usually carries out during such work period; or
(ii) When used by members other than employees during the working
period, such use does not interfere with the labor organization in
carrying out its normal activities.
(2) Safe harbor. For the purposes of paragraph (b)(1) of this
section, the following shall be considered occasional, isolated, or
incidental use of labor organization facilities:
(i) Any individual volunteer activity that does not exceed one hour
per week or four hours per month, regardless of whether the activity is
undertaken during or after normal working hours; or
(ii) Any such activity that constitutes voluntary individual
Internet activities (as defined in 11 CFR 100.94), in excess of one hour
per week or four hours per month, regardless of whether the activity is
undertaken during or after normal working hours, provided that:
(A) As specified in 11 CFR 100.54, the activity does not prevent
the employee from completing the normal amount of work for which the
employee is paid or is expected to perform;
(B) The activity does not increase the overhead or operating costs
of the labor organization; and
(C) The activity is not performed under coercion.
(3) The officials, members, and employees who make more than
occasional, isolated, or incidental use of a labor organization's
facilities for individual volunteer activities in connection with a
Federal election are required to reimburse the labor organization within
a commercially reasonable time for the normal and usual rental charge,
as defined in 11 CFR 100.52(d)(2), for the use of such facilities.
(c) Use of corporate or labor organization facilities to produce
materials. Any person who uses the facilities of a corporation or labor
organization to produce materials in connection with a Federal election
is required to reimburse the corporation or labor organization within a
commercially reasonable time for the normal and usual charge for
producing such materials in the commercial market.
(d) Use or rental of corporate or labor organization facilities by
other persons. Persons, other than those specifically mentioned in
paragraphs (a) and (b) of this section, who make any use of corporate or
labor organization facilities, such as by using telephones or
typewriters or borrowing office furniture, for activity in connection
with a Federal election are required to reimburse the corporation or
labor organization within a commercially reasonable time in the amount
of the normal and usual rental charge, as defined in 11 CFR
100.52(d)(2), for the use of the facilities.
(e) Nothing in this section shall be construed to alter the
provisions in 11 CFR Part 114 regarding communications to and beyond a
restricted class.
[41 FR 35955, Aug. 25, 1976, as amended at 45 FR 21210, Apr. 1,
1980; 67 FR 78681, 78682, Dec. 26, 2002; 68 FR 69595, Dec. 15, 2003; 71
FR 18614, Apr. 4, 2006]
On 6/14/2012 11:59 AM, Rick Hasen wrote:
> From the FEC's brochure on volunteer activity:
> http://www.fec.gov/pages/brochures/volact.shtml#corporate
>
> *I work in a corporate office. Can I conduct campaign-related
> volunteer work while at the office?*
>
> In general, if an individual provides services to a campaign during
> paid working hours, the employer is making a contribution. 11 CFR
> 100.54
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr100.54.htm>.
> However, if you are an employee, stockholder or member of a
> corporation or labor organization you may use the organization's
> facilities during paid working hours. For example, an employee could
> use the office phone to make calls pertaining to political volunteer
> work, but the activity must not interfere with the employee's work or
> the organization's normal activity.
>
> In order for the activity not to be counted as a contribution, the
> Commission suggests limiting the activity to "incidental use" of the
> corporate facilities. Incidental use is considered to be one hour a
> week or four hours a month. 11 CFR 114.9(a)(1) and (b)(1)
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr114.9.htm>. If
> the activity exceeds incidental use or the individual uses the
> organization's equipment to produce campaign materials, the individual
> must reimburse the organization within a commercially reasonable time.
> The reimbursement is considered a contribution from the individual to
> the political committee and must be reported. 11 CFR 114.9(a)(2),
> (b)(2) and (c)
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr114.9.htm>.
>
> *Can I conduct volunteer Internet activity from my corporate office?*
>
> Yes, an individual can conduct volunteer Internet activity at work as
> long as the individual complies with the employer's rules for personal
> use of computers and Internet access. This kind of activity can
> include anything from forwarding political emails to signing up to
> work at a candidate fundraiser. The individual must complete the
> normal amount of work for which the individual is paid and the
> activity must not increase the overhead or operating costs of the
> organization. In addition, the Internet activity cannot be coerced or
> conditioned upon being used for particular candidates. 11 CFR 100.94
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr100.94.htm>,
> 114.9(a)(2)(ii) and (b)(2)(ii)
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr114.9.htm>.
>
>
> On 6/14/2012 10:44 AM, Scarberry, Mark wrote:
>>
>> Joe,
>>
>> On your first point, all I can say is "duh." Of course Citizens
>> United didn't affect contribution rules; I try to make that point
>> whenever I can, so I don't know how I could have made that mistake!
>>
>> For the rest of it, thanks for confirming what I thought was the
>> case, that if the marketing team provided services at the direction
>> of their corporate boss, then that would be considered a corporate
>> contribution.
>>
>> Thanks!
>>
>> Mark
>>
>> Mark S. Scarberry
>>
>> Professor of Law
>>
>> Pepperdine Univ. School of Law
>>
>> *From:*Joe La Rue [mailto:joseph.e.larue at gmail.com]
>> *Sent:* Thursday, June 14, 2012 10:33 AM
>> *To:* Scarberry, Mark
>> *Cc:* law-election at uci.edu
>> *Subject:* Re: [EL] Business Week story about DreamWorks marketing
>> team assisting Messina (Pres. Obama's campaign manager)
>>
>> Mark,
>>
>> Even /post Citizens United/, corporations are prohibited from making
>> contributions to candidates, whether direct or in-kind. /Citizens
>> /did nothing to change that. A corporation may, however, offer its
>> services to a candidate so long as the candidate pays the fair market
>> value for the services. Employees and officers of corporations are
>> free to make contributions /up to the contribution limits/, of
>> course. But under current federal law the corporation itself may not
>> make contributions.
>>
>> So this article really raises only four questions. First, did
>> Spielberg offer advice in his private capacity or as an extension of
>> DreamWorks? (I think it would be hard to argue that he's an extension
>> of a corporation; therefore, I think his advice has to be considered
>> private). Second, does advice from one person to another, offered in
>> a private conversation, count as a contribution, such that a monetary
>> value must be attached to it to determine whether one has given 'too
>> much advice' and violated the applicable contribution limit? (I don't
>> know the answer to this, not having researched it; but, I find it
>> difficult to conceive that private advice would be counted as a
>> contribution). Third, did the DreamWorks employees offer advice as
>> private individuals, or was it offered within the scope of their
>> employment? This is, I think, the key question: for, if they acted
>> within the scope of their DreamWork employment because a DreamWork
>> executive told them to do so, then this seems to be an illegal
>> in-kind contribution.
>>
>> Finally, here's another key question: why is it Democrats are so
>> worried that corporate money is going to go to SuperPACs supporting
>> Romney? Obama did quite well with donations from corporate executives
>> in 2008. Might it be because Democrats realize that Obama's policies
>> have been bad for business? And, if Obama's policies are bad for
>> business, aren't they also, by extension, likely bad for job creation?
>>
>> Joe
>> ___________________
>> *Joseph E. La Rue*
>>
>> cell: 480.272.2715
>> email: joseph.e.larue at gmail.com <mailto:joseph.e.larue at gmail.com>
>>
>>
>>
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>>
>>
>>
>> On Thu, Jun 14, 2012 at 10:14 AM, Scarberry, Mark
>> <Mark.Scarberry at pepperdine.edu
>> <mailto:Mark.Scarberry at pepperdine.edu>> wrote:
>>
>> From Business Week
>> (http://www.businessweek.com/printer/articles/30696-obamas-ceo-jim-messina-has-a-president-to-sell):
>>
>> "At DreamWorks Studios, Steven Spielberg spent three hours explaining
>> how to capture an audience's attention and offered a number of ideas
>> that will be rolled out before Election Day. An early example of
>> Spielberg's influence is RomneyEconomics.com, a website designed by
>> the Obama team to tell the story---a horror story, by their
>> reckoning---of Mitt Romney's career at Bain Capital. Afterward,
>> Spielberg insisted that Messina sit down with the DreamWorks
>> marketing team. Hollywood movie studios are expert, as presidential
>> campaigns also must be, at spending huge sums over a few weeks to
>> reach and motivate millions of Americans."
>>
>> Pre-Citizens United, would free consulting from a corporation's
>> marketing team, at the CEO's direction, be an illegal corporate
>> contribution? I'm not that familiar with rules about in-kind
>> contributions. Spielberg as an individual surely had the right to
>> provide free advice to Messina, without it being counted against
>> contribution limits, right? I suppose the members of the DreamWorks
>> marketing team might have volunteered as individuals, rather than as
>> a corporation's employees, to provide these consulting services, but
>> the story suggests that they did so at Spielberg's direction.
>>
>> Mark S. Scarberry
>>
>> Professor of Law
>>
>> Pepperdine Univ. School of Law
>>
>>
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>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv
www.thevotingwars.com
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