Berke | Farah LLP

 Attorneys at Law 

701 8th St NW, Suite 620  Washington, DC 20001 eberke@berkefarah.com  202.517.0585

www.berkefarah.com 

Navigating the Law of Politics

September 21, 2022 

BY ELECTRONIC MAIL DELIVERY 

Office of General Counsel 

Attn: Lisa J. Stevenson, Esq. 

Acting General Counsel Federal Election Commission 

1050 First Street NE 

Washington, DC 20463 

Re: Advisory Opinion Request 

Dear Ms. Stevenson: 

Pursuant to 52 U.S.C. § 30108, we seek an advisory opinion from the Federal Election 

Commission (“Commission”) on behalf of DataVault Holdings Inc. (“DataVault”) to confirm 

that political committees may utilize non-fungible tokens (“NFTs”) designed and marketed by 

DataVault as a campaign fundraising promotion and expenditure. 

I. FACTUAL DISCUSSION

DataVault proposes to undertake the following two types of NFT fundraising using its U.S. 

patented technology as a business venture. Proposal #1 would involve recognition for 

contributions made to political committees and Proposal #2 would involve an incentive for 

additional campaign fundraising by contributors to political committees. DataVault’s activities 

to political committees will be conducted on a strictly commercial basis and DataVault will not 

seek to influence, affirmatively or negatively, the nomination or election of any candidate to 

Federal office. DataVault would provide the NFTs to political committees in the same manner 

and normal course of business as other non-political committee clients. DataVault would operate 

as a commercial vendor under 11 C.F.R. § 116.1(c), by “providing goods or services to a 

candidate or political committee whose usual and normal business involves the sale, rental, lease, 

or provision of those goods and services.”1

 

1

11 C.F.R. § 116.1(c),

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Proposal #1 

DataValult will market NFTs to political committees as souvenirs in a manner akin to a 

campaign hat or souvenirs. The NFT would be offered by the political committee with a focus 

on high volume low dollar donors consistent with the federal contribution limits. The NFT could 

contain artwork, campaign literature, position papers, and other campaign approved and 

compliant digital content including video, audio, and interactive social media. The NFT would 

be commemorative and can be published to a blockchain. The NFT could provide the user with a 

membership # for VIP access at various levels to campaign events. There is no secondary sale of 

such NFTs nor smart contract associated with any political committee. DataVault would levy a 

usual and normal fundraising fee on the political committees as a commercial fundraising 

expense and the political committees would report the fee as a fundraising expenditure. 

 

As example: 

An NFT is priced at $10.00 and is provided by DataVault to a campaign committee. The NFT is 

offered by the campaign committee to contributors who make a $10.00 contribution. Once the 

campaign committee collects a contribution connected with the NFT, it records the $10.00 

contribution and pays DataVault a fee of $3.00 as a usual and normal fundraising expenditure. 

Proposal #2 

DataValult will market NFTs to political committees as souvenirs in a manner akin to a 

campaign hat or souvenirs. The NFT would be offered by the political committee with a focus 

on high volume low dollar donors consistent with the federal contribution limits. The NFT could 

contain artwork, campaign literature, position papers, and other campaign approved and 

compliant digital content including video, audio, and interactive social media. The NFT would 

be commemorative and can be published to a blockchain. The NFT could provide the user with a 

membership # for VIP access at various levels to campaign events. The owner of the NFT would 

be given the opportunity by the political committee to offer the NFT to a second contributor if 

the second contributor makes a contribution to the political committee. The owner of the NFT 

would promote the campaign strictly on a volunteer basis and without any compensation. The 

blockchain would provide open ledger and complete transparency and tracking and recording of 

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the NFT transfer and the contributions associated with it as they were made. As recognition of 

the first contributor’s efforts, the political committee will issue a second NFT of greater apparent 

significance to the first contributor, but the second NFT would hold the same monetary value as 

the first NFT. DataVault would render all services in the ordinary course of business at the usual 

and normal charge or in exchange for bargained-for consideration. It would forward 

contributions through a segregated account to candidates and committees and employ adequate 

screening procedures to ensure that the service provider does not forward illegal contributions 

As example: 

An “bronze” NFT is priced at $10.00 and is provided by DataVault to a campaign committee. 

The “bronze” NFT is offered by the campaign committee to contributors who make a $10.00 

contribution. Once the campaign committee collects a contribution connected with the “bronze” 

NFT, it records the $10.00 contribution and pays DataVault a fee of $3.00 as a usual and normal 

fundraising expenditure. The first campaign contributor voluntarily finds a second campaign 

contributor interested in obtaining the “bronze” NFT and contributing to the campaign 

committee. The second contributor makes a $10.00 contribution to the campaign committee. 

The blockchain provides open ledger and complete transparency and tracks and records the 

“bronze” NFT transfer from the first contributor to the second contributor. The campaign 

committee issues a “silver” NFT to the first contributor and pays DataVault a second fee of 

$3.00 as a usual and normal fundraising expenditure. DataVault would forward contributions 

through a segregated account to the campaign committee and employ adequate screening 

procedures to ensure that the service provider does not forward illegal contributions 

II. QUESTIONS PRESENTED

1) May DataVault design and market NFTs to political committees as outlined in Proposal 

#1? 

2) May DataVault and design and market NFTs to political committees to incentivize

contributors as outlined in Proposal #2? 

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III. LEGAL ANALYSIS

President Abraham Lincoln reportedly was the first president to use buttons strategically as a 

campaign tool with the mass production of campaign buttons staring with William McKinley’s 

campaign in 1896.2 In essence, they represented the first campaign merchandise. The 

Commission has long considered situations involving business ventures by private entities 

involving candidate or party-related merchandise.3 NFTs are a 21st century version of candidate 

or party-related merchandise. In Advisory Opinion 1988-17 (Election Concepts, Inc.), the 

Commission determined that a corporation could offer to sell products, specifically 

commemorative medallions (the 20th century version of an NFT) that may be useful to political 

organizations. The Commission further determined that the Act does not preclude such a 

commercial venture provided the purchase price represents the usual and normal charge.4

In Advisory Opinion 2019-08 (Omar 2020), the Commission determined that NFTs are 

materially indistinguishable from traditional forms of campaign souvenirs.5 In that Advisory 

Opinion Request, the NFTs were to be used as incentives for volunteers and other supporters by 

a campaign committee. The Commission concluded that the provision of the NFTs to volunteers 

would not constitute compensation for their services. The campaign committee had represented 

that the NFTs had no monetary value, are not a type of cryptocurrency, and cannot be used to 

purchase goods or services. The only purpose of the NFTS were to provide campaign volunteers 

and supporters with a novel means of showing support for the campaign by being able to display 

unique tokens in their digital wallets earned by campaign support. 

Rather than constituting a form of compensation, the Commission stated that the NFTs were

analogous to more traditional types of campaign souvenirs, such as bumper stickers, yard signs 

or buttons. Such items are regularly distributed by campaigns to volunteers and supporters at no 

2 See https://www.americanbuttonmachines.com/blogs/american-button-machines/a-brief-history-of-politicalcampaign-buttons (visited on September 13, 2022). 3 Fed. Election Comm’n, Adv. Op. 1994-30 (Conservative Concepts/Pence)(Commercial sale of t-shirts advocating 

candidates).

4 Fed. Election Comm’n, Adv. Op. 1988-17 (Election Concepts, Inc.)(Corporate sale of commemorative medallions 

to political committees).

5 Fed. Election Comm’n, Adv. Op. 2019-08 (Omar2020) (Requestor, a congressional campaign committee, asked

whether it may distribute digital blockchain tokens with no monetary value to volunteers and supporters as an 

incentive to engage in volunteer activities).

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cost to the volunteer or supporter, and without implicating federal campaign finance law. As the 

Commission stated:

In fact, the distribution of such campaign souvenirs has been an essential 

component of American political campaigns since the earliest American elections. 

Campaigns rely on supporters wearing or displaying campaign insignia to 

promote their candidates and demonstrate the breadth of their support, while 

supporters display these souvenirs to express their pride in the campaign. That 

free campaign souvenirs can now be distributed and displayed through a digital, 

rather than physical, medium is immaterial for purposes of the [Federal Election 

Campaign] Act [“the Act”] and Commission regulations.6 

Nothing in the Act or Commission regulations would limit or prohibit DataVault from marketing 

and distributing NFTs. As was the case in AO 2019-08 and is the case here, the Commission 

correctly assumes that any transaction fees incurred by a political committee for transferring the 

NFTs to supporters will be properly reported by the political committee as expenditures pursuant 

to the Act and Commission regulations. 

An individual may volunteer personal services to a campaign without making a contribution as 

long as the individual is not compensated by anyone for the services.7 Volunteer activity is not 

reportable.8 Therefore, a political committee contributor who decides to solicit contributions for 

a political committee may do so – even if incentivized herein with a more significant NFT – 

consistent with the Act and the regulations promulgated thereunder. 

The Commission has previously examined a number of business arrangements where, as here, a 

service provider proposed to provide contribution processing and other services to political 

committees.9 The Commission determined that a service provider does not make a contribution 

to a political committee when the service provider acts as a commercial vendor by 1) rendering 

6 Id. at 4. 7 11 CFR 100.74.

8 Id.

9 Fed. Election Comm’n, Adv. Op. 2021-10 (Retail Benefits Inc.)( Use of web-based platform to make contributions 

to political committees.), citing Advisory Opinion 2019-04 (Prytany); Advisory Opinion 2018-05 (CaringCent); 

Advisory Opinion 2016-08 (eBundler); Advisory Opinion 2012-09 (Points for Politics); Advisory Opinion 2010-21 

(ReCellular).

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services in the ordinary course of business at the usual and normal charge or in exchange for 

bargained-for consideration; 2) forwarding contributions through a segregated account to 

candidates and committees; and 3) employing adequate screening procedures to ensure that the 

service provider does not forward illegal contributions.10

For these reasons, we ask the Commission to confirm that political committees may utilize nonfungible tokens (“NFTs”) designed and marketed by DataVault as a campaign fundraising 

incentive under both proposals articulated herein.

 Very truly yours, 

 

 Elliot S. Berke

 

 Counsel to DataVault 

 

10 Id. citing Advisory Opinion 2019-04 (Prytany) at 5; Advisory Opinion 2018-05 (CaringCent) at 4-5; Advisory 

Opinion 2016-08 (eBundler) at 6-7; Advisory Opinion 2012-09 (Points for Politics) at 5-6; see also Advisory 

Opinion 2010-21 (ReCellular) at 5. The Commission has also concluded that such an arrangement does not result in 

prohibited corporate facilitation of contributions under 11 C.F.R. § 114.2(f)(1). Advisory Opinion 2007-04 (Atlatl) 

at 3-4.

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