FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

October 20, 2022

AO 2022-21 (DSCC et. al) Comment from Requestors DSCC, 

Bennet for Colorado, and People for Patty Murray

Attached is AO 2022-21 (DSCC, et al.) Requestors' Comment on Drafts A-D. 

This matter will be discussed on the Open Meeting of October 20, 2022.

Attachment 
October 19, 2022

BY ELECTRONIC MAIL DELIVERY

Federal Election Commission

1050 First Street, NE

Washington, DC 20463

Re: Comment Regarding AO 2022-21

Dear Commissioners:

DSCC, Bennet for Colorado, and People for Patty Murray (“Requestors”) submit these comments in 

response to the four draft advisory opinions issued regarding AO 2022-21. Requestors urge the 

Commission to adopt Draft D because it proposes a commonsense approach and provides clear, 

practical guidance to Requestors and the regulated community in accordance with congressional 

intent with respect to DSCC’s Legal Proceedings Account.

Drafts A and B rely on an incorrect legal standard governing the Legal Proceedings Account. Both 

drafts hinge their analysis of Requestors’ proposed solicitations on whether the communications are 

“for the purpose of influencing a federal election.” This standard conflicts with the plain text and the 

legislative history of the law creating the Legal Proceedings Account, the Consolidated and Further 

Continuing Appropriations Act of 2015 (the “Appropriations Act”). 

Under the Appropriations Act, the national party committees are permitted to raise funds into a 

separate account in order “to defray expenses incurred with respect to the preparation for and the 

conduct of election recounts and contests and other legal proceedings.”1 This Legal Proceedings 

Account is subject to its own contribution limit separate from the committees’ general accounts, and 

expenditures using the funds in a Legal Proceedings Account do not count against the committees’ 

coordinated party expenditure limit.2 Prior to the establishment of the present-day Legal Proceedings 

Account, the Commission permitted state and national party committees to establish segregated 

accounts for use in connection with recounts and election contests.3 When enacting the 

Appropriations Act, Congress went even further by also including a third category of permissible 

expenses – “other legal proceedings” – which the previous segregated accounts could not cover. 

At the time of passing the Appropriations Act, the drafters, then-Speaker of the House John Boehner 

and then-Senate Majority Leader Harry Reid declared this intent very clearly. In their joint

Explanation of Congressional Intent accompanying the Appropriations Act (the “Explanation”), they

stated that by including the phrase “and other legal proceedings,” Congress intended to permit the 

Legal Proceedings Account to be used for all legal proceedings, not just legal proceedings arising out 

of election contests and recounts. After describing that although the law “is not intended to modify 

Federal Election Commission precedent permitting the raising and spending of [recount] funds by 

1 52 U.S.C. § 30116(a)(9)(C).

2

Id. § 30116(d)(5).

3 See, e.g., Advisory Opinion 2009-04 (DSCC).
2

campaign or state or national party committees. See FEC Advisory Opinions 2006–24, 2009–4,” the 

legislative history goes on to say that the law “is also intended to permit the national parties to use 

such funds for costs, fees, and disbursements associated with other legal proceedings.

4 Notably, the 

advisory opinions cited with respect to recount funds have limited the use of those funds to expenses 

that are not for the purpose of influencing a federal election. But thelegislative history does not cite 

those advisory opinions after the sentence about “other legal proceedings,” it does so only with 

respect to recounts. 

As the legislative history notes, prior to the enactment of the Appropriations Act, the national party 

committees were already expressly authorized to use funds raised under separate contribution limits 

to defray expenses incurred in connection with recounts and election contests.

5 But, in addition to 

approving the use of the Legal Proceedings Account for recounts and election contests, the 

Appropriations Act created a separate, independent use of the Legal Proceedings Account: to pay for 

expenses incurred with respect to the preparation for and the conduct of “other legal proceedings.”

The legislative history is crystal clear on this intent – “[s]ection 101 is also intended to permit the 

national parties to use such funds for costs, fees, and disbursements associated with other legal 

proceedings.”

6 The express use of the term “also” leaves no doubt that Congress intended to permit 

a third category of permissible expenses. 

Thus, in passing the Appropriations Act, Congress expressly intended to expand the permissible use 

of the Legal Proceedings Account beyond costs related to the conduct of election recounts and 

contests to any “other legal proceedings.” Any other read of the Appropriations Act ignores not only 

the plain language of the statute, but also the legislative history accompanying its passage.

This intent is also underscored by the fact that the Explanation explicitly says: 

Finally, under current law coordinated limits do not apply even absent these provisions 

to the existing accounts as described in section 315 of FECA and therefore it is the 

intent of the amendments contained herein that expenditures made from the accounts 

described in section 315(a)(9) of FECA, many of which (such as recount and legal 

proceeding expenses) are not for the purpose of influencing federal elections, do not 

count against the coordinated party expenditure limits described in section 315(d) of 

FECA.7

Had Congress wanted to limit the use of the Legal Proceedings Account to expenses that were not 

for the purposes of influencing an election, it would not have included the modifier “many of which” 

and instead would have said “all of which” or simply “which.” This position makes logical sense 

because if an expense is not for the purpose of influencing an election to begin with, it would not be 

subject to the coordinated party expenditure limits. Thus, there would have been no need to further 

clarify or expressly exempt expenses from the Legal Proceedings Account from the coordinated party 

expenditure limits if those expenses could never be for the purposes of influencing an election in the 

first place. 

4 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner) (emphasis added); 160 Cong. Rec. S6814 

(daily ed. Dec. 13, 2014) (statement of Sen. Reid) (emphasis added).

5 See Advisory Opinion 2006-24 (DSCC); Advisory Opinion 2009-4 (DSCC).

6 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner) (emphasis added); 160 Cong. Rec. S6814 

(daily ed. Dec. 13, 2014) (statement of Sen. Reid) (emphasis added).

7

Id. 
3

As Requestors have noted, the regulated community has long suffered from the lack of any 

guidance beyond the plain text of the Appropriations Act. Requestors strongly support Draft D 

because it offers clear guidance on the proposed activity. Draft D draws on well-established 

Commission principles to reach a conclusion to the request. Draft D observes that Commission 

regulations “stand generally for the proposition that allocation is an appropriate way to fund 

activities with multiple purposes.”8 Using this method for allocating cost for communications with 

multiple purposes is consistent with long-standing Commission precedents. For example, 

Commission regulations provide that “expenditures made on behalf of more than one clearly 

identified Federal candidate shall be attributed to each such candidate according to the benefit 

reasonably expected to be derived,” as “determined by the proportion of space or time devoted to 

each candidate as compared to the total space or time devoted to all candidates.”9 A similar 

principle applies to polling expenses.10 The regulation governing phone banks also provides that a 

party committee and a federal candidate may allocate the costs of a phone bank 50/50 when the 

communication (1) refers to only one clearly identified federal candidate, (2) generically references 

without identifying other candidates of the same political party, and (3) does not solicit a 

contribution or donation.11

Based on these allocation principles, the Commission has approved of two further methods by 

which a party committee can share the costs of a communication with one or more clearly identified 

federal candidates without making an in-kind contribution or a party coordinated expenditure with 

those candidates. For example, for multicandidate advertisements, which are communications 

benefitting more than one clearly identified federal candidate, the Commission has advised that 

committees can allocate based on “the benefit reasonably expected to be derived” by each 

committee.

12 The Commission has also already allowed committees to allocate the costs of certain 

activities between their main accounts and legal proceeding accounts.13 In Advisory Opinion 2010-

14, the Commission allowed the DSCC to allocate expenses that were attributable to both “recount 

activities” and “campaign activities” unrelated to potential recounts, including the salary and 

benefits of staff who worked on both recount and campaign activities, by keeping a monthly log of 

the staff time spent on each type of activity and reimbursing the general account with funds from 

the legal proceeding account. The FEC also applied the same rationale to state party legal accounts 

in Advisory Opinion 2006-24. Finally, Commission regulations also provide for allocation of 

expenditures between a committee’s federal and non-federal accounts.14

In short, Commission regulations and guidance have consistently provided for political committee 

expenses being allocable based on the purpose of those expenditures. Accordingly, Requesters 

respectfully urge the Commission to approve Draft D.

8 Advisory Opinion 2010-14 at 6 (DSCC).

9 11 C.F.R. § 106.1(a). 

10 Id. § 106.4.

11 Id. § 106.8.

12 See Factual & Legal Analysis at 3, MURs 7169, et al. (Democratic Congressional Campaign Committee, et al.) (2017).

13 Advisory Opinion 2010-14 (DSCC).

14 11 C.F.R. §§ 106.5-106.7.
4

Very truly yours,

Jacquelyn K. Lopez

Rachel L. Jacobs

Jonathan A. Peterson

Counsel to DSCC, Bennet for Colorado, and People for Patty Murray