The Federal Election Commission clarified rules for soliciting and receiving campaign contributions via text message, confirming that wireless service providers have no responsibility for determining the eligibility of contributors or enforcing contribution limits.
The decision is a win for CTIA-The Wireless Industry, which was represented by Wiley Rein partners Jan Baran and Caleb Burns.
In July, the trade group asked the FEC to establish that campaigns, not wireless companies, must determine donor eligibility, including in cases where a subscriber's bill indicates that he or she lives abroad or is a corporation. Also, the group asked the FEC to confirm that the campaigns are responsible for enforcing the $50 monthly limit on contributions and will bear the recordkeeping obligations for contributions in excess of $200 per year.
"Such responsibilities rest with political committees," the FEC found in an advisory opinion issued yesterday. The FEC also held that wireless service providers "may decide, due to commercial considerations, to accept proposals from some political committees and not others."
In comments filed with the FEC, Revolution Messaging, a D.C.-based company that specializes in mobile communication strategies, unsuccessfully objected to this provision. "In practice, the wireless carriers have used these rules arbitrarily to deny text messaging services to advocacy and political organizations based on the content of the proposed messaging," wrote Joseph Sandler and Elizabeth Howard of Sandler, Reiff, Young & Lamb.
In a follow-up letter dated Aug. 13, another firm partner, Neil Reiff, urged the FEC not to "completely abrogate its future responsibilities to determine whether arbitrary denial of access by CTIA or carrier's may not somehow violate the [Federal Election Campaign Act] in some future context."
The FEC found that "A vendor may establish and apply eligibility criteria to political committees in order to protect the commercial viability of the vendor's program."
The service providers said they would use their standard business practices in collecting money via text, and argued that it was not "practicable or workable" to vet political contributions.
The FEC agreed, noting it faced a similar issue in 1978, when it first approved making political contributions using credit cards.
In a related opinion also issued yesterday, the FEC approved a plan by Rep. Jim Cooper (D-Tenn.), m-Qube, Inc. and ArmourMedia, Inc., to collect contributions via texting. They were represented by Craig Engle and Brett Kappel of Arent Fox.