FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

February 21, 2024

AOR 2024-01 (Texas Majority PAC)

Comment Responses from Elias Law Group

Attached is AOR 2024-01 (Texas Majority PAC)

Comment Responses from Elias Law Group. 

Attachment 
250 Massachusets Ave NW, Suite 400 | Washington, DC 20001

February 20, 2024

Federal Election Commission

Office of the General Counsel

Federal Election Commission

1050 First Street, NE

Washington, DC 20463

ao@fec.gov

Re: Advisory Opinion Request 2024-1

Dear Acting General Counsel Stevenson:

We write in response to comments submitted by the Campaign Legal Center (“CLC”).

I. CLC does not contend that any of the production or distribution costs enumerated 

in the request are “coordinated expenditures.”

We agree with CLC that not “all expenses related to a communication must be bundled together 

and analyzed under 11 C.F.R. § 109.21” and that the “district court in Correct the Record 

rejected that very argument.” Accordingly, in its request, TMP asks the Commission to opine on 

whether specific production, distribution, and data costs are “coordinated expenditures” under 

section 109.20 or are instead exempt costs associated with a non-public communication under 

section 109.21.

It is notable that CLC does not ask the Commission to find that any specific production or 

distribution cost enumerated in the request is a “coordinated expenditure.” Eschewing the 

expense-by-expense inquiry prescribed by the Correct the Record courts to date, the CLC instead 

asks the Commission to “conclude that at least some of the costs of TMP’s proposed ‘paid 

canvass’ activity are in-kind contributions.” At least some? Which ones? CLC does not say. 

Having been afforded the opportunity to select items off the menu a la carte, CLC has thrown up 

its hands and demanded that the Commission figure out what to order. 

The salary paid to TMP employees is the only specific cost that the CLC argues is an in-kind 

contribution. But these salary costs are not part of TMP’s request; TMP has not asked the

Commission to opine on whether these costs are “coordinated expenditures.” In responding to an 

advisory opinion request, the Commission is limited to answering the questions that it is asked. It 

may not order off-menu, as the CLC asks it to do.
February 20, 2024

Page 2

Incorporating the holding in Correct the Record, TMP articulates a two-part test that the 

Commission can apply to each expense: first, does it bear a direct connection to one or more 

specific exempt communication(s) and, second, is it not easily repurposed for a non-exempt or 

non-communicative use? Expenses that satisfy this test are communication expenditures

associated with an exempt non-public communication and are not contributions. In its request, 

TMP articulates why each expense meets this standard. CLC neither objects to these arguments 

nor does it propose a different test. CLC offers no path forward for the Commission to 

implement Correct the Record.

II. CLC misstates the standard for what constitutes a “public communication.”

Citing a long line of precedents, TMP argues that the distribution of a script and literature via 

paid canvassing is not a “public communication.” Specifically, TMP argues that a 

communication must be distributed via an intermediary to qualify as a public communication 

and that the paid canvassers are not intermediaries. The evidence for TMP’s position is 

overwhelming. In 2006, the Commission opined in its Internet Rulemaking E&J:

The forms of mass communication enumerated in the definition of “public 

communication” in 2 U.S.C. 431(22), including television, radio, and newspapers, each 

lends itself to distribution of content through an entity ordinarily owned or controlled by 

another person. Thus, for an individual to communicate with the public using any of the 

forms of media listed by Congress, he or she must ordinarily pay an intermediary 

(generally a facility owner) for access to the public through that form of media each time 

he or she wishes to make a communication.1

In their statement accompanying their dissenting vote in Advisory Opinion 2022-20, 

Commissioners Weintraub and Broussard stated:

Second, all general public political advertising communications rely on an intermediary 

to disseminate the message.

...

Thus, the category of general public political advertising encompasses communications 

for which the speaker must rely on and pay a third-party intermediary to access the 

speaker’s target audience “each time he or she wishes to make a communication.”2

CLC disputes the proposition, articulated by Commissions Weintraub and Broussard, that all 

public communications “rely on an intermediary to disseminate the message.” Its argument rests 

1 Internet Communications, 71 Fed. Reg. 18589, 18594 (Apr. 12, 2006). 2 Statement of Comm’rs Shana M. Broussard & Ellen L. Weintraub Regarding Adv. Op. 2022-20 (Maggie for NH),

FEC Adv. Op. 2022-20 (Maggie for NH) at 2 (Nov. 4, 2022).
February 20, 2024

Page 3

on the fact that the word “intermediary” does not appear in the final version of Advisory Opinion 

2022-20. But the final opinion, citing to the aforementioned E&J, makes clear that “[t]he listed 

forms of ‘general public political advertising’ share several common elements, one of which is 

that they typically require the person making the communication to pay to use a third party’s 

platform to gain access to the third party’s audience.”3 The portion of the E&J cited in the final 

opinion states that, for public communications, “the advertiser is paying for access to an 

established audience using a forum controlled by another person, rather than using a forum that 

he or she controls to establish his or her own audience.”4

To the extent that a “platform” or “forum” exists in paid canvassing, it is the home of the voter(s)

to whom the canvasser is directed to go. And it would certainly be news to Texas homeowners 

and residents that TMP’s paid canvassers – not the homeowners or residents – control that 

platform. Moreover, Texas law permits residents to refuse to allow the canvasser to deliver the 

message by putting up a “no trespass” sign or asking the canvasser to leave their premises and 

not leave any literature.5 Paid canvassers exercise no control over the platform or forum involved 

in paid canvassing; they are agents of TMP, not intermediaries. Accordingly, the distribution of a 

script and literature via paid canvassing is not a “public communication.”

III. It is CLC – not TMP – that seeks to rewrite federal campaign finance law.

TMP does not seek to undermine FECA’s text or foundational purposes, as CLC claims. The 

proposition that a communication that fails the content prong of section 109.21(c) may be 

coordinated with a candidate has been a feature of federal campaign finance law since 

promulgation of section 109.21 in 2002. Commission majorities – led by the Office of General 

Counsel – have consistently upheld the principle a communication cannot qualify as a 

contribution if it fails the content prong.6

Nothing in the Correct the Record or True the Vote cases changes this longstanding rule. The 

court decisions in Correct the Record have not questioned whether unpaid Internet 

communications are exempt from the definition of “contribution”; they have simply required the 

Commission to apply a more rigorous standard to determine which input costs for such 

communications are similarly exempt. And the True the Vote case is not about communications 

or section 109.21 at all, because True the Vote’s program – unlike TMP’s – included multiple 

non-communicative elements. True the Vote did not invoke section 109.21 as a defense in its 

response to the administrative complaint; the controlling bloc of commissioners did not rely on 

section 109.21 in voting to dismiss; and the federal court decision did not analyze True the 

3 FEC Adv. Op. 2022-20 (Maggie for NH) at 4 (Oct. 4, 2022) (emphasis added). 4 Internet Communications, 71 Fed. Reg. at 18594-95 (emphasis added). 5 See Tex. Penal Code Ann. § 30.05(a) (“A person commits an offense if the person enters or remains on or in

property of another ... without effective consent and the person: (1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.”).

6 See FEC Adv. Op. Req. 2024-1 (Texas Majority PAC) at 8-10.
February 20, 2024

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Vote’s program under section 109.21.

7 The case is simply inapposite to TMP’s request. CLC’s 

suggestion otherwise conflates legal issues that are distinct from one another.

Yours truly,

Jonathan S. Berkon

Courtney T. Weisman

Sarah N. Mahmood

Counsel to Texas Majority PAC

7 See Matter Under Review 7894 (True the Vote), Response of True the Vote, Inc. and Catherine Engelbrecht (June 

9, 2021); Matter Under Review 7894 (True the Vote), Statement of Reasons of Chairman Allen J. Dickerson and 

Commissioner James E. “Trey” Trainor, III. (Sept. 13, 2022); Mem. Op., Common Cause Ga. v. FEC, Case No. 22-

cv-3067 (Sep. 29, 2023), 2023 WL 6388883.