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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 on behalf of Nevadans for 

Reproductive Freedom regarding the applicability of the Federal Election Campaign Act of 1971 

(the “Act”) and Federal Election Commission (the “Commission”) regulations to its ballot measure 

activities. 

The request first asks the Commission to confirm that a federal candidate or officeholder may 

solicit funds outside of the Act’s source restrictions and amount limitations to support efforts to 

advocate for a state ballot measure, both before and after the measure qualifies for the ballot. The 

request next asks the Commission to confirm that a ballot measure committee and a federal 

candidate may allocate the costs of a television advertisement that advocates for both a ballot 

measure and the election of the federal candidate on a time and space basis. Finally, if the answer 

to the second question is in the affirmative, the request asks whether all time and space that meets 

the content prong under 11 C.F.R. § 109.21 must be attributed to the candidate. This request 

proposes that only the content that promotes, attacks, supports, or opposes the federal candidate is 

attributable to the federal candidate. 

I. Background 

Nevada allows citizens to propose legislation, amend the state Constitution, and alter existing law 

through ballot initiatives and referenda. Nevadans for Reproductive Freedom maintains two 

entities – a Nevada registered “Committee for Political Action (PAC) Advocating Passage” 

(“NFRF PAC”) and a 501(c)(4) organization also called Nevadans for Reproductive Freedom 

(“NFRF c4”) (collectively referred to herein as “NFRF”).

1 NFRF’s mission is to enshrine 

1 See Nev. Sec’y of State, Nevadans for Reproductive Freedom Committee Registration Form (Sept. 1, 2023), 

https://www.nvsos.gov/elections/11241.pdf?_gl=1*coaah9*_ga*MjA2NTUxNzQ4My4xNzA1NTk0MDEw*_ga_2

QDKTLXQYL*MTcwNTU5NDAwOS4xLjEuMTcwNTU5NDEyNy40My4wLjA./ 

250 Massachusetts Ave NW, Suite 400 | Washington, DC 20001

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reproductive freedom in the Nevada state constitution. NFRF filed a constitutional initiative 

petition (the “Initiative”)2

 that would, if enacted by Nevada voters, amend the state’s constitution 

to codify reproductive freedom as a fundamental right. NFRF is in the process of collecting the 

signatures necessary to place the Initiative on the 2024 general election ballot.

3 No federal 

candidate or officeholder established NFRF nor will a federal candidate or officeholder finance, 

maintain, or control NFRF moving forward.4 

NFRF plans to raise funds to support the Initiative into both NFRF PAC and NFRF c4 from sources 

and amounts that are prohibited under federal law. As part of its fundraising, NFRF plans to partner 

with a wide-variety of important stakeholders who are committed to fundraising for NFRF. These 

stakeholders include federal candidates and officeholders who are, and are not, on the general 

election ballot this November in Nevada. NFRF wishes to ask these individuals to solicit funds 

that will be used in connection with the Initiative, both before and after the Initiative has qualified 

for the general election ballot. NFRF may ask federal candidates or officeholders to solicit into

both NFRF PAC and NFRF c4. No federal candidate or officeholder will be asked to solicit funds 

on behalf of NFRF for any earmarked purpose beyond general support of the Initiative or NFRF’s 

mission, including but not limited to any federal election activity, as defined by the Act and 

Commission regulations. NFRF c4 would issue a certification under 11 C.F.R. § 300.65(e) once 

the Commission affirms that ballot measure activity does not fall under the category of “election 

activities.”

In addition, NFRF proposes to sponsor advertisements featuring prominent Nevadans, including 

federal candidates and officeholders, urging Nevadans to support the Initiative. Such 

advertisements may also in part expressly advocate for, promote, or support the featured federal 

candidate or expressly advocate against, attack, or oppose their opponent. The featured federal 

candidate would be responsible for the costs of any such portion of the advertisement. NFRF will 

only pay for those portions of the advertisements that promote the Initiative. 

2 For purposes of this request, we use initiatives or ballot measures interchangeably, but both refer to questions that 

appear on a ballot to be voted on by voters. See FEC, MUR 7523 (Stop I-186 to Protect Mining and Jobs, et al.), 

First General Counsel’s Report at 2 n.3. 3 Nev. Sec’y of State, Notice of Intent for Statewide Initiative or Referendum petition, Nevadans for Reproductive 

Freedom (Dec. 6, 2023), https://www.nvsos.gov/sos/home/showpublisheddocument/12633/638375592027970000; 

see also Sean Golonka, Reproductive rights group seeks second initiative to protect abortion in NV Constitution, 

Nevada Independent (Dec. 14, 2023, 3:49 PM.) https://thenevadaindependent.com/article/reproductive-rights-groupseeks-second-initiative-to-protect-abortion-in-nv-constitution. 4 See Nev. Sec’y of State, Notice of Intent for Statewide Initiative or Referendum petition, Nevadans for 

Reproductive Freedom (Dec. 6, 2023), 

https://www.nvsos.gov/sos/home/showpublisheddocument/12633/638375592027970000.

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II. Questions Presented

1. May a federal candidate or officeholder solicit funds for NFRF PAC and NFRF c4, without 

regard to amount limitations or source restrictions both before and after the Initiative 

qualifies for the 2024 general election ballot? 

2. May NFRF and a federal candidate allocate the costs of a television advertisement that 

both advocates for the Initiative and either expressly advocates for the election or defeat of 

a federal candidate or promotes, attacks, supports or opposes a federal candidate? 

3. Assuming the answer to Question 2 is in the affirmative, is all time and space in the 

advertisement that meets the content prong of 11 C.F.R. § 109.21(c)(4) attributable to the 

candidate or does only the time and space that promotes, attacks, supports, or opposes the 

candidate, and not the underlying ballot measure, attributable to the candidate?

III. Legal Analysis 

1. Can a federal candidate or officeholder solicit funds for NFRF without regard to source 

or amount limitations? 

Federal candidates and officeholders may solicit funds outside of the contribution limits and source 

restrictions of the Act for NFRF because the Act and Commission regulations, including the

restrictions on federal candidate and officeholder solicitations, only extend to candidate elections, 

not ballot measure elections. This conclusion flows from the plain text of the Act, which reflects 

the fundamental distinction long made between efforts to influence the outcome of candidate 

elections and those that seek to influence passage or defeat of specific issues. 

The Act, as amended by the Bipartisan Campaign Reform Act (“BCRA”), provides that a federal 

candidate, officeholder, or their agents, may not “solicit, receive, direct, transfer, or spend funds 

in connection” “with an election for Federal office” or “any election other than an election for 

Federal office” unless the funds are subject to the Act’s amount and source restrictions (the “Soft 

Money Restriction”).

5 With respect to a solicitation for a 501(c)(4) organization, a federal 

candidate, officeholder, or their agents may make a general solicitation of funds without regard to 

source or amount limitations so long as the organization’s principal purpose is not to conduct 

“election activities.”6

 

The plain text of the Act, legislative history surrounding the passage of BCRA, Supreme Court 

precedent, and Commission precedent all support the conclusion that a ballot measure election is 

not an “election” under the Act. 

The Act expressly defines “election” in terms of a candidate election. An “election” is limited to 

“a general, special, primary, or runoff election; a convention or caucus of a political party which 

has authority to nominate a candidate; a primary election held for the selection of delegates to a 

5 52 U.S.C. § 30125(e)(1).

6 Id. § 30125(e)(1), (4); 11 C.F.R. § 300.65(a). If the organization conducts some activities in connection with an 

election, the solicitation must not be to obtain funds for activities in connection with an election. 11 C.F.R. § 

300.65(a)(2). 

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national nominating convention of a political party; and a primary election held for the expression 

of a preference for the nomination of individuals for election to the office of President.”7

Commission regulations similarly specify that “[e]lection means the process by which individuals, 

whether opposed or unopposed, seek nomination for election, or election, to Federal office.”8 

In 1995, in keeping with the plain text of the Act, the United States Supreme Court made clear that 

“[t]he Federal Election Campaign Act of 1971 . . . regulates only candidate elections, not 

referenda or other issue-based ballot measures”9 The Commission has similarly repeatedly held 

that an “election” under the Act does not include a ballot measure election.

10 This is true even 

where the Act references not just a federal election, but a state or local election. In a recent 

enforcement matter, the Commission dealt with a complaint alleging that a foreign national’s 

donation to a state ballot measure committee violated 52 U.S.C. § 30121(a)(1), which prohibits a 

foreign national from donating “in connection with a federal, state, or local election.” The 

Commission voted 5-1 to dismiss the complaint, affirming that “spending relating only to ballot 

initiatives is generally outside the purview of the Act because such spending is not ‘in connection 

with’ elections.”11 

There is similarly no rationale for reading the Soft Money Restriction or its implementing 

regulations to extend to cover a ballot measure election. Requestors are not aware of any legislative 

history surrounding the passage of BCRA that indicates an intent to extend the scope of an 

“election” beyond candidate elections. In fact, Members of Congress who voted for BCRA 

7 52 U.S.C. § 30101(1). 8 11 C.F.R. § 100.2(a). 

9 McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 356, (1995) (emphasis added). See also Bluman v. Fed. Election 

Comm’n, 800 F. Supp. 2d 281, 291 (D.D.C. 2011), aff'd, 565 U.S. 1104 (2012) (noting that Congress’ ban on foreign 

contributions in candidate elections do not extend to ballot initiatives).

10 FEC, AO 1989-32 (McCarthy) (July 2, 1990) at 3, https://www.fec.gov/files/legal/aos/1989-32/1989-32.pdf (“The 

Commission has previously recognized the distinction between a candidate-related ‘election to any political office,’ 

as used in 2 U.S.C. 441e and other provisions of the Act, and issue related ballot initiatives. The Commission has 

stated that contributions or expenditures relating only or exclusively to ballot referenda issues, and not to elections 

to any political office, do not fall within the purview of the Act”); see also FEC, AO 1984-62 (B.A.D. Campaigns)

(March 21, 1985), at 1 n.2, https://www.fec.gov/files/legal/aos/1984-62/1984-62.pdf (“The Commission has 

previously held that contributions or expenditures exclusively to influence ballot referenda issues are not subject to 

the Act.”); FEC, AO 1984-41 (National Conservative Foundation) (Oct. 12, 1984), at 1-2, 

https://www.fec.gov/files/legal/aos/1984-41/1984-41.pdf; FEC, MUR 7523 (Stop I-186 to Protect Miners and Jobs)

(Oct. 4, 2023), Factual and Legal Analysis at 4, https://www.fec.gov/files/legal/murs/7523/7523_24.pdf (“Consistent 

with the Act and court precedents, the Commission has observed that spending relating only to ballot initiatives is 

generally outside the purview of the Act because such spending is not ‘in connection with’ elections”); FEC, MUR 

7512 (Jordan Cove LNG, LP) (Oct. 5, 2021), Factual and Legal Analysis at 5, 

https://www.fec.gov/files/legal/murs/7512/7512_101.pdf; FEC, AO 2010-07 (Yes on Fair), Concurring Opinion of

Chairman Petersen and Commissioners Hunter and McGahn, (June 30, 2010),

https://www.fec.gov/files/legal/aos/2010-07/1142185.pdf (“The Act and Commission regulations define an 

‘election’ in terms of individual candidates seeking representative office. The ballot initiative process, on the other 

hand, allows voters to directly enact a proposed statute, constitutional amendment, or ordinance. This is a 

straightforward distinction: a candidate is elected into representative office - not passed into law - by voters, whereas 

the opposite is true for ballot initiatives; they are passed into law - not elected - by voters. Under the Act, the 

Commission's jurisdiction is circumscribed accordingly; it reaches the process by which voters select their 

representatives, but not how those representatives, or the people themselves, enact legislation.”). 11 FEC, MUR 7523 (Stop I-186 to Protect Miners and Jobs) (Sept. 30, 2021), Factual and Legal Analysis at 4 

https://www.fec.gov/files/legal/murs/7523/7523_24.pdf, Commission Certification (Sept. 30, 2021) 

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contacted the Commission in 2005 to express their opinion that BCRA does not cover ballot 

measure elections.12 Similarly, the Commission itself acknowledged that “there has been no 

intervening change in the law—including enactment of the Bipartisan Campaign Reform Act of 

2002 (“BCRA”)—that has altered the longstanding distinction between elections and ballot 

initiative activity” under the Act.13 

Given the lack of any statutory support or legislative intent to extend the Soft Money Restrictions 

to cover ballot measure elections, the Commission should confirm that an “election” does not 

include a ballot measure election and therefore a federal candidate or officeholder may solicit 

without regard to amount limitations or source restrictions for NFRF PAC or NFRF c4. This 

distinction between candidate and ballot measure elections rests not only on the plain text of the 

law, but on the fundamental principal expressed by the United States Supreme Court that “the risk 

of corruption perceived in this Court's decisions involving candidate elections is not present in a 

popular vote on a public issue.”14 

2. May Nevadans for Reproductive Freedom and a federal candidate allocate the costs of 

a television advertisement that advocates for the Initiative and either advocates the 

election or defeat of a federal candidate or promotes, attacks, supports, or opposes 

(“PASOs”) a federal candidate? 

NFRF wishes to run joint television advertisements that promote the Initiative while also featuring 

a federal candidate (by likeness or name) who advocates for the Initiative and also promotes their 

own election. This promotion could come either in the form of: (i) express advocacy for the 

featured candidate or against their opponent; or (ii) the promotion or support of the featured 

candidate or attacking or opposing of their opponent. 

NFRF would split the full costs of the advertisement, including production costs and the cost to 

place the advertisement, with the featured federal candidate on a time-space basis, thereby

allocating to itself the costs of the portion of the advertisement that promote the Initiative and that 

does not expressly advocate or PASO a federal candidate, and to the featured candidate the parts 

that promote the candidate’s election. 

Under the Act, the provision of “any gift, subscription, loan, advance, or deposit of money or

anything of value made by any person for the purpose of influencing any election for Federal

office” generally results in a contribution.

15 Commission regulations and guidance, however, have 

consistently held that where the cost of an expense is allocated between multiple payors in a way 

that reasonably reflects the benefit received by each payor, no contribution results.16 

12 See FEC, AO 2005-10 (Berman Doolittle), Ex Parte Communication from Representative Howard L. Berman, 

Representative Nancy Pelosi, (Aug. 17, 2005), https://www.fec.gov/files/legal/aos/2005-10/413239.pdf. 13 FEC, MUR 7523 (Stop I-186 to Protect Miners and Jobs) (Sept. 30, 2021), Factual and Legal Analysis at n. 18, 

https://www.fec.gov/files/legal/murs/7523/7523_24.pdf. 14 First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765, 766 (1978). 15 52 U.S.C. § 30101(1). 16 See 11 C.F.R. §§ 106.8(a); 106.4; FEC, AO 2022-21 (DSCC, Bennet for Colorado, and People for Patty Murray)

(Oct. 20, 2022) https://www.fec.gov/files/legal/aos/2022-21/2022-21.pdf (“[T]he Commission’s allocation 

regulations ‘stand generally for the proposition that allocation is an appropriate way to fund activities with multiple 

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For some types of costs, Commission regulations proscribe a method of allocation. The absence 

of a proscribed method has not served as a bar to cost allocation. In such instances, the Commission 

has emphasized that the “allocation regulations ‘stand generally for the proposition that allocation 

is an appropriate way to fund activities with multiple purposes’” and approved methods of 

allocation that reasonably divide costs by benefit received.17 In the context of television advertising

specifically, the Commission has routinely permitted costs to be allocated between payors on a 

time/space basis. For example, at least since 2004, the Commission has allowed national party 

committees to allocate the costs of “hybrid” television advertisements that promote both the party 

and a federal candidate.18 The concept of hybrid television advertising is not expressly found in 

either the Act or Commission regulations. Rather, the allowance rests on an extension of the hybrid 

phone bank regulation and the general logic of allowing cost allocation based on benefit received.19

That same logic applies to an advertisement that promotes both a ballot measure and a federal 

candidate. And in fact, in Advisory Opinion 2004-29 (Akin), the Commission expressly approved 

of a candidate and ballot measure committee splitting the costs of a television advertisement. 

Under NFRF’s proposal, just like the other cost splitting arrangements approved by the 

Commission, NFRF and the benefiting federal candidate will each cover their allocable share of 

the costs, preventing a contribution from resulting. 

Assuming the Commission approves the ability to cost split, the benefiting federal candidate would 

either reimburse NFRF for its allocable share of costs or pay the underlying vendors directly. 

3. Assuming the answer to Question 2 is in the affirmative, is all time and space in the 

advertisement that meets the content prong of 11 C.F.R. § 109.21(c)(4) attributable to 

the candidate or is only the time and space that PASOs the candidate or their opponent 

attributable the candidate? 

NFRF specifically requests that the Commission approve the following as a reasonable allocation 

method for an advertisement that both promotes the Initiative and a federal candidate:

1 The portion of the advertisement on a time/space basis that advocates for passage of the 

initiative without featuring a federal candidate is attributable to NFRF; 

2 The portion of the advertisement on a time/space basis that PASOs a featured federal 

candidate or their opponent is attributable to the featured candidate; and 

purposes.’”); FEC, AO 2022-05 (DSCC) (permitting the DSCC to allocate the costs of research books between itself 

and campaign committees based on benefit derived).

17 FEC, AO 2022-05 (DSCC) (quoting Advisory Opinion 2010-14 (DSCC) at 6); FEC, AO 2006-11 (Washington 

Democratic State Central Committee); FEC, AO 2022-21 (DSCC, Bennet for Colorado, and People for Patty 

Murray); FEC, Report of the Audit Division on Bush-Cheney ’04, Inc. and the Bush-Cheney ’04 Compliance 

Committee.

18 FEC, Report of the Audit Division on Bush-Cheney ’04, Inc. and the Bush-Cheney ’04 Compliance Committee,

Inc. (April 24, 2007) at 10–11; MUR 7530 (NRCC), Statement of Reasons of Vice Chair Dickerson and 

Commissioners Cooksey and Trainor (Nov. 8, 2021), https://www.fec.gov/files/legal/murs/7530/7530_16.pdf; see 

also FEC, MUR 7169 (Santarsiero for Congress) (Nov. 22, 2017), Factual and Legal Analysis, 

https://www.fec.gov/files/legal/murs/7169/17044432804.pdf (applying time/space allocation analysis to 

multicandidate advertisements). 19 See 11 C.F.R. § 106.8.

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3 The portion of the advertisement on a time/space basis that advocates for the Initiative and 

features a federal candidate but lacks any PASOing of the federal candidate or their 

opponent is attributable to NFRF. 

Commission regulations do not proscribe a method for allocating the costs of an advertisement 

that advocates both for the passage or defeat of a ballot measure and for a candidate’s election. 

Therefore, here, as it has done in the past, the Commission must opine on a method that reasonably 

allocates costs according to the benefit derived.20 For broadcast communications split between 

candidates, Commission regulations require the use of “space or time” – but that space or time 

calculation is not merely when a candidate appears, but the “proportion of space or time devoted 

to each candidate.”21 Here, the advertisement’s portion “devoted to” the federal candidate should 

not include space or time where the candidate appears to promote the Initiative without any 

PASOing of themselves or their opponent. The reason is straightforward - the beneficiary of the 

candidate’s appearance in this instance is the Initiative. The use of the candidate’s likeness serves 

as an endorsement by an influential person in the state, designed to use their celebrity or credibility 

to persuade voters to support the Initiative. 

The logic of this allocation principle comes directly from Commission regulations, which provide 

that a federal candidate may appear in a communication to endorse another candidate or solicit for 

another candidate and absent any PASOing of themselves or their opponent, the costs of the 

communication are not attributable to their campaign.

22 In the context of the coordinated 

communication test, this allowance overrides the general rule that an advertisement must be treated 

as an in-kind to a candidate if they are featured within 90 or 120 days of their election.23 In setting 

exceptions, the regulations expressly recognize that where a candidate appears in an advertisement 

not to promote themselves but to use their popularity to aid another cause the cost of that 

appearance is not allocable to their campaign. 

The same exact analysis applies here. The Commission should recognize the vital First 

Amendment interest a federal candidate has in speaking out in support of or in opposition to a 

ballot measure, separate from promoting their own campaign. The costs of the portion of an 

advertisement where a candidate does so are not properly attributed to their campaign. Therefore, 

we ask the Commission to confirm the allocation method proposed above. 

IV. Conclusion 

For these reasons, NFRF may ask federal candidates and officeholders to solicit general funds on 

its behalf without implicating the Act’s source restrictions and amount limitations. NFRF may also 

include federal candidates and officeholders in its communications and allocate the costs of the 

communications based on a time-space allocation. When allocating the costs of any 

communications, NFRF will only allocate the time and space of the communications that PASOs 

the federal candidate. 

20 See id. § 106.1(a)(1); FEC, AO 2006-11 (Washington Democratic State Central Committee); FEC, Report of the 

Audit Division on Bush-Cheney ’04, Inc. and the Bush-Cheney ’04 Compliance Committee. 21 11 C.F.R. § 106.1. 22 See id. § 109.21(g). 23 Id. § 109.21(c)(4). 

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Very truly yours, 

Jacquelyn Lopez 

Ezra Reese

Jonathan Peterson 

Emma Anspach

Counsel to Nevadans for Reproductive Freedom 

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