Download the signed Advisory Opinion here.
In response to an advisory op1mon request on August 15, 2023, from Defending Digital Campaigns, Inc. (“DDC”) by and through their counsel Wiley Rein LLP, the State Ethics Commission advises that DDC may provide its cybersecurity goods and services, including those offered thorough DDC’s corporate partners, at no cost or at a reduced cost to Georgia campaign committees and political parties without making an in-kind contribution to the participating campaign committees and political parties.
Questions Presented in Request for Advisory Opinion 2023-03
May DDC provide its cybersecurity goods and services, including those offered through DDC’s corporate partners, at no cost or at a reduced cost to Georgia campaign committees and political parties without making an in-kind contribution to the participating campaign committees and political parties?
Pursuant to a written request for an advisory opinion dated August 15, 2023, Wiley Rein LLP, on behalf of DDC, seeks guidance as to whether DDC may provide its cybersecurity goods and services at no cost or a reduced cost to Georgia campaign committees without making an in-kind contribution.
DDC is a non-partisan, non-profit organization that engages with campaigns and political parties to provide them with knowledge, training, and resources to defend themselves from foreign cyber threats. DDC has offered free and reduced cost cybersecurity products and services during the 2020 and 2022 election cycles to federal campaigns. The success of this program has led DDC to expand its offerings to state campaigns and political parties.
DDC offers, through its corporate partners, many state-of-the-art cybersecurity products to campaigns. These include, but are not limited to, Titan Security Keys, YubiKeys (multi-factor authentication software), and Cloudflare. All these products are offered through DDC, which has negotiated free or reduced costs, and are available on a non-partisan basis for any campaign to utilize. In a sense, DDC is operating as the marketplace or bundler for all these products as a one stop shop for campaign cybersecurity.
In their proposed question DDC believes they are not making an in-kind contribution to any campaigns by providing these products at a reduced cost or free. DDC is no different than Target or Home Depot in this analysis, they are the marketplace or provider of products and services and just because they offer every campaign or political party a discount, this discount does not magically tum every transaction into an in-kind contribution. An in-kind contribution is, “(1) Deemed a “contribution” for purposes of the Act, and refers to any item of value other than money received by a candidate or any committee.
(2) The aggregate of monetary and in-kind contributions from the same
contributor shall not exceed the maximum contribution limits authorized by the
Act.”
Ga. Comp. R. &Regs. r. 189-6-.07. An example of a classic in-kind contribution to a campaign is normally food and beverage. A restaurant will contribute food and beverage to a campaign for a fundraiser in lieu of a monetary contribution. The campaign then discloses the monetary value of the food and beverage on its next Campaign Contribution Disclosure Report (“CCDR”) as an in-kind contribution. In this example, the campaign is receiving something of value and must report this as an in-kind contribution.
Compare the previous example to when a campaign utilizes a Costco membership to buy food in bulk for a campaign event. The campaign buys food in bulk at a cheaper price than they could at a supermarket. Although the campaign saves money buying in bulk from Costco, the difference in price they would spend at a supermarket is not an in-kind contribution from Costco. The same analysis applies to DDC, because they are offering the products to everyone on a non-partisan basis, an in-kind contribution has not been made.
DDC intends to offer their products and services at no cost or a reduced cost on a non-partisan basis to any campaign who meets a de minimis requirement of total receipts. Because these products and services are offered to any campaign that qualifies, DDC contends that the products and services it offers would not qualify as a contribution. Campaign contributions must be made “for the purpose of influencing the nomination for election or election of any person for office” O.C.G.A. § 21-5-3. DDC has asserted the structure in which these products and services are being offered is in no way intended to influence the outcome of an election. The product offering is solely intended to provide cybersecurity to state and local campaigns which hold vulnerable information. Because of the way DDC has structured the way they offer products and services to campaigns on a non-partisan basis, DDC is not making an in-kind contribution as their offerings are not intended to influence the outcome of an election.
Campaigns in Georgia that purchase DDC’s offerings and products must disclose any purchases made by the campaign as an expenditure. This is no different than if a campaign purchases ativirus software or something similar, campaigns must still disclose any expenditure made by the campaign.
Conclusion
The State Ethics Commission advises DDC may provide its cybersecurity goods and services, including those offered thorough DDC’s corporate partners, at no cost or at a reduced cost to Georgia campaign committees and political parties without making an in-kind contribution to the participating campaign committees and political parties.
This Advisory Opinion concerns the application of the Georgia Government Transparency and ampaign Finance Act, or regulations prescribed by the State Ethics Commission, to the specific facts, transaction, or activity set forth for Advisory Opinion 2023-03.
Advisory Opinion 2023-03 is hereby adopted by the Commission in conformity with O.C.G.A. § 21-5-6(13) on December 8, 2023.