[EL] Microsoft & the Tillman Act

[Roberts, Brian E]

Microsoft has submitted an Advisory Opinion request (AO 2018-11<https://www.fec.gov/data/legal/advisory-opinions/2018-11/>) that effectively seeks an exemption from Tillman Act prohibitions of corporate contributions to federal candidates.  Microsoft is asking that it be able to provide candidates (among other political actors) with an enhanced security package *at no charge* to help thwart misuse of its email applications by foreign actors (Russia is called out) seeking to disrupt US elections.

Because this security enhancement would only be offered to a set of political actors, including candidates, and not the general public as part of some standard version update, it seemingly is something of unique value to a candidate and thus would constitute a corporate contribution.

Presumably the FEC will fall over backwards trying to make this work, but can it manage the AO language carefully enough to avoid other corporations exploiting the exception for less noble reasons than offered by Microsoft - election integrity?  It's worth noting that Microsoft also points to its own reputation being at stake if/when its applications are used to undermine US elections, so this is not an entirely altruistic gesture on its part.

With the Supreme Court already on record as unwilling to extend MCFL-like exemptions to corporate contributions (Beaumont v. FEC), what's the likelihood that 1) the FERC issues a favorable AO, 2) someone would challenge a favorable AO, and 3) that it would be upheld by the Court?

Brian Roberts
University of Texas


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