MICHAEL B. TRISTER 

 (1941-2018) _____________________

GAIL E. ROSS

B. HOLLY SCHADLER 

LAURENCE E. GOLD 

ALLEN H. MATTISON† 

DAVID M. WACHTEL»

JESSICA ROBINSON†

KAREN A. POST

ELIZABETH A. GROSSMAN

†ALSO ADMITTED IN MARYLAND

»ALSO ADMITTED IN CALIFORNIA AND MARYLAND

KATHY S. STROM+ Of Counsel +ALSO ADMITTED IN NEW YORK AND MARYLAND

JOSEPH W. STEINBERG‡

‡ALSO ADMITTED IN MINNESOTA

SARAH E. NASON*

JOHN O. SAWYKO* *ALSO ADMITTED IN NEW YORK

RENATA E. B. STRAUSE▫

▫ALSO ADMITTED IN PENNSYLVANIA

LAW OFFICES

Trister, Ross, Schadler & Gold, PLLC

1666 CONNECTICUT AVENUE, N.W., FIFTH FLOOR 

WASHINGTON, D.C. 20009

PHONE: (202) 328-1666

FAX: (202) 204-5946

www.tristerross.com

December 23, 2022 

By USPS & Email

Mr. Charles Kitcher

Associate General Counsel 

 for Enforcement

Federal Election Commission

1050 First St., NE

Washington, DC 20463 

Re: MUR 7537, Care in Action, Inc.

Dear Mr. Kitcher:

 We write on behalf of Care in Action, Inc. (“Care in Action”) in response to your November 2, 

2022, letter regarding the October 2021 action taken by the Federal Election Commission (“FEC” or the 

“Commission”) based on complaints filed before the 2018 general election by Friends of Erik Paulsen 

Committee and Raymond Bozarth, Executive Director of the Missouri Republican Party. By finding 

reason to believe (“RTB”) that “Unknown Respondents” may have violated the Federal Election 

Campaign Act (“FECA” or the “Act”), the Commission improperly deprived Care in Action – which had 

been named as the respondent in one of the complaints and could have been identified as a respondent in 

the other through no more than a Google news search – of the “opportunity to demonstrate ... that no 

action should be taken” against it that it was owed under the Act. 52 U.S.C. § 30109(a)(1); see also 11 

C.F.R. § 111.6(a)(1). 

If Care in Action had been afforded that statutorily guaranteed opportunity, it would have argued 

that no violation of the Act occurred because the mailers and digital advertisements in question did not 

contain express advocacy. Now, more than four years after the complaints were submitted and a year after 

the Commission voted RTB, Care in Action is instead in the disadvantaged position of asking the 

Commission to vacate its RTB finding and instead find no RTB in this matter on those grounds. 

Alternatively, Care in Action seeks the dismissal of this matter as an exercise of the Commission’s 

prosecutorial discretion.1

 

1 We also ask that a copy of this letter be provided to the Commissioners along with the Office of General Counsel’s 

recommendation in connection with the information that Care in Action was the source of the mailers and digital ads at issue in 

this matter. While we assume that is the Office’s intent, your letter did not state as much directly and we find nothing in the 

Commission’s regulations or guidance that establishes the procedures applicable to the highly unusual situation Care in Action 

finds itself in.

MUR753700109
2 

I. The Commission Should Vacate Its “Reason To Believe” Finding 

For either of two reasons, the Commission should vacate its RTB finding that Care in Action 

violated the Act. First, the Commission’s action failed to comply with its own procedures as dictated by 

the Act and the regulations, denying Care in Action the due process they guarantee. Second, the finding 

erroneously concluded that Care in Action’s 2018 communications contained express advocacy. 

A. The Commission Failed to Comply with the Act and Its Regulations, 

Denying Due Process To and Prejudicing Care in Action

1. Care in Action Was Not an “Unknown Respondent” 

This matter is the consolidation of proceedings arising from two complaints – one filed by Friends 

of Erik Paulsen Committee on October 25, 2018 (the “Paulsen Complaint”) and one filed by Raymond 

Bozarth, Executive Director of the Missouri Republican Party, on November 5, 2018 (the “MRP

Complaint”). The Paulsen Complaint – notably, the first-filed of the two – named Care in Action as a 

respondent and cited to the fact that “Paid for by Care in Action” appeared on the digital advertisements 

and on the website to which they linked. It appears that the Office of General Counsel (“OGC”) received 

the Paulsen Complaint on November 1, 2018; as such, OGC was required to notify Care in Action that the 

complaint had been filed no later than November 6, 2018. 11 C.F.R. § 111.5(a). While the Paulsen 

Complaint did not provide the Commission with contact information for Care in Action, a complainant has 

no obligation to do so, see 11 C.F.R. § 111.4; and, that information could easily have been obtained by 

OGC with a brief Internet search conducted in early November 2018. Indeed, an October 30, 2018 article 

in the St. Louis Post-Dispatch identified Care in Action as the source of the mailer referencing Rep. 

Wagner, quoted Care in Action spokesperson Andy Macdonald as acknowledging Care in Action’s 

sponsorship of the ads, and linked to Care in Action’s website.2

 That same Internet search also would 

have yielded some or all of the following results: 

• an October 25, 2018, article in the St. Louis Post-Dispatch attributing the mailer referencing Rep. 

Ann Wagner to Care in Action and reporting on statements made by Rep. Wagner’s campaign 

about the mailer and the digital advertisements at issue in the FLA;3

• an article in the Huffington Post, published the day before OGC received the Paulsen Complaint, 

which focused entirely on Care in Action’s efforts in the Georgia gubernatorial election and named 

Georgia state senator Nikema Williams as Care in Action’s Georgia state director;4 

• an October 17, 2018, article in Politico about Care in Action’s efforts in the Georgia gubernatorial 

election;5

• the registration and reports that Care in Action filed with the Georgia Government Transparency 

 

2 Celeste Bott, Ad Watch: Wagner’s Campaign, DC Nonprofit Spar Over Legality of Campaign Mailer, St. Louis Post-Dispatch 

(Oct. 30, 2018), https://www.stltoday.com/news/local/govt-and-politics/ad-watch-wagner-s-campaign-d-c-nonprofit-sparover/article_534916e5-3d4f-5ce0-912c-21071301bd7f.html (“October 30, 2018 SLPD Article”). 3 Celeste Bott, Wagner Campaign Says Mailer Criticizing Her Immigration Record Is Illegal, St. Louis Post-Dispatch (Oct. 25, 

2018), https://www.stltoday.com/news/local/govt-and-politics/wagner-campaign-says-mailer-criticizing-her-immigrationrecord-is-illegal/article_17718630-906f-5baf-8e1a-ba0b520bdd34.html. 4 Laura Bassett, Georgia Domestic Workers Mobilize for Stacey Abrams in the Birthplace of Their Movement, Huffington Post 

(Oct. 31, 2018), https://www.huffpost.com/entry/stacey-abrams-georgia-domestic-workers_n_5bd8a9cbe4b0da7bfc14a210. . 5 Alice Miranda Ollstein, Home Health Aides Test Political Clout in Georgia Governor’s Race, Politico (Oct. 17, 2018), 

https://www.politico.com/story/2018/10/17/georgia-governors-home-health-aides-test-857156. 

MUR753700110
3 

and Campaign Finance Commission beginning in May 2018, which included Care in Action’s 

mailing address;6

• the Form 8871 (Notice of Section 527 Status) that Care in Action PAC filed with the Internal 

Revenue Service on November 9, 2018, which listed Care in Action, Inc.’s contact information as 

the contact information for the PAC;7

 

• Care in Action’s website and profiles on various social media platforms;8 and

• Care in Action’s corporate registration on file with the Delaware Division of Corporations.9

Despite this readily available information, the Commission did not notify Care in Action after receiving 

the Paulsen Complaint. In fact, Care in Action has found no evidence that the Commission even attempted 

to do so, nor did your November 2 letter provide any explanation for the three-year delay in notice.

 Unlike the Paulsen Complaint, the MRP Complaint did not name Care in Action as a respondent or 

otherwise provide information that could have immediately connected Care in Action to its mailer naming 

Rep. Ann Wagner. However, it is clear that at some point prior to October 2021, OGC realized that the 

two complaints overlapped in part. This is evident from the fact that the Commission’s RTB finding 

addressed communications naming Rep. Wagner that were not included in the MRP Complaint.10 And, 

the two digital advertisements referring to Rep. Wagner appeared in Exhibit C of the Paulsen Complaint, 

evidently because the screenshot the complainant took to show Care in Action’s digital ads referring to 

Rep. Paulsen necessarily captured images of digital advertisements referring to Rep. Wagner.11 Thus the 

Paulsen complaint itself pointed the Commission to Care in Action’s connection with the communications 

at issue in the MRP Complaint. At the latest, when OGC made the connection between the 

communications at issue in MUR 7532 and MUR 7537, OGC should have located Care in Action and 

notified it of the complaints filed against it. Again, this did not occur and there is no indication that such 

an attempt was made.

 Finally, regardless of when OGC connected the mailer in Exhibit C of the MRP Complaint to the 

digital advertisements in Exhibit C of the Paulsen Complaint, the public record became only more replete 

 

6 See Georgia Gov’t Transparency and Campaign Fin. Comm’n, Campaign Reports and Registration Information for Care in 

Action, Inc. available at 

https://media.ethics.ga.gov/Search/Campaign/Campaign_Name.aspx?NameID=29237&FilerID=NC2018000035&Type=commi

ttee (accessed Dec. 15, 2022). 7 Care in Action PAC Form 8871 (Attachment A).

8 See, e.g., Care in Action US, @CareinActionUS, Facebook.com, 

https://www.facebook.com/CareInActionUS/about_profile_transparency (created Sept. 26, 2018); Care in Action, 

@CareinActionUS, Twitter.com, https://twitter.com/CareInActionUS (“Joined October 2018”); Care in Action, 

@careinactionus, Instagram.com, https://www.instagram.com/careinactionus/?hl=en (“Date joined - September 2018”). Care in 

Action also appeared to have launched the website “careinactionvotes.org” by late October 2018. See October 30, 2018 SLPD 

Article, note 2, supra (link in article to careinactionvotes.org); see also Internet Archive, 

https://web.archive.org/web/20181208115704/https://careinactionvotes.org/ (captured December 8, 2018). 9 Care in Action has been registered as a Delaware domestic corporation since January 1, 2014. It was originally named 

“Domestic Worker Legacy Fund, Inc.” but changed its name to “Care in Action, Inc.” in an amendment to its certificate of 

incorporation filed on January 16, 2018. See October 30, 2018 SLPD Article, note 2, supra (reporting this progression). 10 Indeed, Exhibit C is the only communication referenced in the MRP Complaint that Care in Action disseminated. Care in 

Action has no information relating to the other communications in the MRP Complaint. 11 It is also possible that OGC first learned of the Wagner digital advertisements through either of the articles published in the 

St. Louis Post-Dispatch, see notes 3-4, supra, both of which also included a copy of the mailer attached to the MRP Complaint

as Exhibit C. However, that article attributed the mailer and the digital advertisements to Care in Action, and so provided OGC 

with the same information as the Paulsen Complaint.

MUR753700111
4 

with information about Care in Action as time progressed. During the nearly three years after the 

Commission failed in its duty to notify Care in Action of the complaints, Care in Action’s national profile 

grew significantly. To provide only a few examples from those three years, articles featuring Care in 

Action’s work or quoting its leaders appeared in The New York Times,

12 Vox,13 The Washington Post,14

Time Magazine,

15 Fortune,16 Essence,17 and on National Public Radio.18 And, in June 2020, Care in 

Action PAC registered with the Commission.19 Although Care in Action PAC is not a separate segregated 

fund of Care in Action, the PAC registered at Care in Action’s address (as it had done when it filed Form 

8871 with the IRS in November 2018) and appointed Care in Action personnel as its treasurer and 

assistant treasurers. Care in Action PAC also reported disbursements to Care in Action for staff time on its 

2020 Post-General Election Report. Thus, long before the time it voted to find RTB that Unknown 

Respondents had violated the Act, the Commission could have located Care in Action merely by searching 

its own records. 

2. The Commission Was Obligated But Failed To Notify Care in Action

Of the Complaints Before Taking Action

Within five days after receiving a sworn complaint, the Act requires the Commission to send 

written notice to “any person alleged in the complaint to have committed ... a violation” of the Act. 52 

U.S.C. § 30109(a)(1). The Commission’s regulations direct the General Counsel to fulfill this statutory 

obligation – the General Counsel “shall within five (5) days after receipt [of a complaint that substantially 

complies with the Commission’s technical requirements] notify each respondent that the complaint has 

been filed, advise them of Commission compliance procedures, and enclose a copy of the complaint.” 11 

C.F.R. § 111.5(a) (emphasis added). The regulations further specify the respondent’s procedural rights – 

namely, “an opportunity to demonstrate that no action should be taken on the basis of the complaint” by 

submitting a written response within (15) days from receipt of a copy of the complaint. 11 C.F.R. § 

111.6(a). This procedural right is made meaningful by the constraint that applies to the Commission, 

which “shall not take any action, or make any finding, against a respondent other than action dismissing 

the complaint, unless it has considered such response or unless no response has been served” within the 

 

12 Lauren Hilgers, Out of the Shadows, New York Times (Feb. 21, 2019), 

https://www.nytimes.com/interactive/2019/02/21/magazine/national-domestic-workers-alliance.html; Isabella Grullón Paz, To 

This Group, Labor Is More Than A ‘White Man Who Works In A Factory’ (Feb. 22, 2020), 

https://www.nytimes.com/2020/02/22/us/politics/domestic-workers-politics-2020.html. 13 Anna North, Focusing on America’s Child Care Crisis Could Help Democrats Win The Next Election, Vox (Jan. 8, 2021), 

https://www.vox.com/22215259/georgia-runoff-election-child-care-covid. 14 Vanessa Williams, Lawsuit by Abrams PAC Continues Debate Over Voter Suppression In Bitter Georgia Governor’s Race, 

The Washington Post (Nov. 29, 2018), https://www.washingtonpost.com/politics/lawsuit-alleges-voter-suppression-in-bittergeorgia-governors-race-and-seeks-protections-for-future-races/2018/11/29/750afc20-f353-11e8-aeea-b85fd44449f5_story.html. 15 Lissandra Villa, Democrats Worry Joe Biden Is Taking Latino Voters For Granted, Time Magazine (Sept. 2, 2020), 

https://time.com/5885656/joe-biden-latino-voters/. 16 Emma Hinchliffe and Nicole Goodkind, Melinda Gates, Ai-Jen Poo, and 9 More Women On What The 19th Amendment’s 

100th Anniversary Means to Them, Fortune (Aug. 18, 2020), https://fortune.com/2020/08/18/19th-amendment-anniversary-100-

years-melinda-gates-ai-jen-poo-women-voting-right-to-vote/. 17 Breanna Edwards, Georgia State Sen. Nikema Williams On Continuing the Legacy of the Civil Rights Movement, Essence 

(Oct. 23, 2020), https://www.essence.com/news/georgia-state-sen-nikema-williams-on-continuing-the-legacy-of-the-civilrights-movement/. 18 All Things Considered, A Year After Accusations, Justin Fairfax Plots Next Act: A Run for Governor, National Public Radio 

(Mar. 10, 2020), https://www.npr.org/2020/03/10/814164916/a-year-after-accusations-justin-fairfax-plots-next-act-a-run-forgovernor. 19 Care in Action PAC, Statement of Organization (June 8, 2020). 

MUR753700112
5 

15-day period. 11 C.F.R. § 111.6(b) (emphasis added). The Commission breached all of these important 

and explicit due process requirements by voting to find RTB that Care in Action’s mailers and digital 

advertisements violated the Act. 

Moreover, the Commission’s failure to afford Care in Action an opportunity to respond in 2018 has 

prejudiced Care in Action’s position in this matter in two ways. First, the four-year delay in notifying 

Care in Action means it is more difficult to gather the information necessary to respond to the allegations 

in the complaints. Nearly all of the Care in Action personnel who dealt with the 2018 communications are 

no longer working for the organization. And, because Care in Action neither filed reports with the 

Commission in 2018 (because it was not obligated to do so, as discussed below) nor was notified by the 

Commission that a complaint was pending against it (as the Commission was required to do), Care in 

Action was not obligated to preserve any records of its 2018 public communications. See 11 C.F.R. § 

104.14(b).20 

Second, the fact that the Commission proceeded to a “RTB” finding contrary to the Act and its 

regulations has effectively imposed an extra-statutory burden of persuasion on Care in Action to convince 

the Commission to reverse its own action. Had the Commission followed its regular procedures and 

timely notified and heard from Care in Action, the Commission would have been informed as Congress 

intended when it determined whether there was RTB that Care in Action had violated the Act. See 52 

U.S.C. § 30109(a)(2). And, at that point Care in Action would have had to persuade only three 

Commissioners not to find RTB. See id. Instead, Care in Action has been doubly improperly 

disadvantaged: the complainants’ voices were the only ones heard by the Commission before it voted, and 

Care in Action must now persuade four Commissioners to act, and not just act but actually reverse what 

the Commission has already decided. And, although that much is clear, it is not apparent from the 

Commission’s regulations, its publicly-disclosed enforcement process materials, or from your November 2 

letter exactly what Care in Action must persuade four Commissioners to do procedurally. As discussed 

below, we argue that the Commission should either dismiss this matter as an exercise of its prosecutorial 

discretion or vacate its October 4, 2021 finding of “RTB” – but either way, Care in Action is now treading 

uphill instead of on the level due-process field that the Act and the Commission’s regulations have 

established.

This matter is not the first in which the Commission has put a respondent in the disadvantaged 

position Care in Action now finds itself. It appears that the first occasion when the Commission found 

RTB that an unknown respondent had violated the Act and thereafter proceeded against a specific named 

respondent was in MUR 1651 (Hustler Magazine).21 After the second RTB finding, counsel for the thennamed respondents objected to the Commission’s proceedings on the same grounds we do now. The 

Commission’s response to those objections is illuminating. In justifying its refusal to vacate the second 

 

20 Of course, even if Care in Action had been obligated to preserve records by application of 11 C.F.R. § 104.14(b), that threeyear obligation would have expired almost a full year before the Commission notified it of the complaints against it. 

21 The procedural background in MUR 1651 is as follows: There, the Commission found RTB that an unidentified “Concerned 

Citizen” had violated the Act by publishing an advertisement in Hustler Magazine. The Commission sent interrogatories to the

Republican National Committee and to Hustler’s publisher, Larry Flynt, seeking information about the advertisement’s source. 

OGC interpreted Mr. Flynt’s response – which objected in part to the interrogatory on the grounds that it violated the 

Commission’s obligation to notify a complaint respondent in a timely manner, then codified at 2 U.S.C. § 437(g) – as providing 

sufficient information to identify Mr. Flynt and his companies as responsible for the violation. Upon OGC’s further 

recommendation but no other response from Mr. Flynt, the Commission found RTB that he and his companies had violated the 

Act by placing the advertisement in question. 

MUR753700113
6 

RTB finding, Chairman McGarry emphasized that the Commission “did as much as possible to insure [sic] 

that all potential respondents were informed of all of the case’s pertinent facts” and that the Hustler 

respondents “knew of the investigation from its inception.”22 He also indicated that the Commission 

treated the second RTB finding as arising from an internally-generated matter because it resulted from the 

Commission’s investigation into the identity of the complaint’s respondents, implying that the 

Commission was thereby relieved of its statutory obligation to notify the respondents before finding RTB

that they had violated the Act. 

Care in Action’s position differs from that of the Hustler respondents because Care in Action did 

not know of the investigation from its inception and it is clear that the Commission did not come close to 

doing “as much as possible” to ensure that Care in Action was aware of the complaint or the relevant 

facts.23 And yet, it is not clear from your November 2 letter whether or not Care in Action is now in a 

procedural posture similar to that which the Hustler respondents were in before the second RTB finding in 

that case. What action is OGC preparing to recommend to the Commission? Is our confirmation that Care 

in Action is responsible for the communications enough for the Commission to find probable cause to 

believe the Act was violated? Is it enough to find RTB a second time but with Care in Action actually 

named, essentially fast-tracking Care in Action to the probable cause stage? Or is the Commission’s next 

step not a second RTB finding but rather a vote to substitute Care in Action’s name for “Unknown 

Respondents” in the Commission’s previous findings? The Commission’s otherwise helpful 2012 

publication, “Guidebook for Complainants and Respondents on the FEC Enforcement Process,” says only 

that OGC will notify respondents in the case of complaint-generated matters and non-complaint generated 

matters, but it does not address the procedures by which the Commission might find RTB against 

unknown respondents and then again once the respondents are located. Likewise, the Commission’s 1997 

Enforcement Manual instructs that, “[u]pon activation, the staff person should review the file to ensure 

that all respondents have been properly notified[,]” and provides extensive guidance on conducting 

research at the preliminary stages of a matter, but says nothing about how the Commission proceeds when 

notification has not occurred.24 

Instead, the Commission has simply described what it’s doing here to Care in Action as a 

“practice.”25 That the Commission lacks a clear and formal process for how it deals with cases against 

unknown respondents is a procedural deficiency that should be addressed in light of its tension with the 

Act – but it should be addressed in a rulemaking or through other agency guidance so that respondents like 

 

22 Letter to H. Richard Mayberry (Date Unknown), MUR 1651; see also Gen. Counsel’s Memo., MUR 1651 (arguing that it, the 

Commission, “made its [second] finding against [the Hustler] Respondents on the basis of internal generation” because the 

complaint had not named the respondents).

23 It is of no moment that a spokesperson for Rep. Wagner’s campaign stated to the press that the campaign intended to file a 

complaint with the Commission. See October 30, 2018 SLPD Article, note 2, supra. The campaign did not in fact file a 

complaint (as is often the case in election season when a campaign publicizes that it will), and even if it had, the obligation to 

notify a respondent falls on the Commission. This past spring, a Care in Action vendor that was involved with the 2018 ads 

informed Care in Action that the Commission was asking who its client was, and Care in Action authorized the vendor to 

identify it, but Care in Action did not know about the existence of this matter, let alone its status.

24 See 1997 Enforcement Manual, Chapter 2 § II(A). 25 See MUR 7335 (Heller for Senate), Memorandum, Notification of Respondent (August 19, 2021). This “practice” sometimes 

entails dismissing the matter after a vote to substitute a named respondent and sometimes proceeding to a second RTB vote 

against the named respondent. See, e.g., id., Certification (Sept. 22, 2022) (substituting named respondent and then dismissing 

case); MUR 7280 (Derek Utley), Certification (Apr. 28, 2022) (substituting named respondent and then dismissing case); MUR 

6920 (American Conservative Union, et al.), Certification (July 12, 2017) (substituting named respondent and then finding RTB 

against that named respondent).

MUR753700114
7 

Care in Action at least have the minimum due process protection of knowing where they stand. Until 

those procedures are clear, the bottom line is that nothing in the Act provides the Commission with the 

authority to find “RTB” against a complaint respondent without first notifying the respondent of the 

complaint.26 And even if the Commission had such authority, it of course could not exercise it with 

respect to a respondent that was not unknown, which is plainly the case here.

B. Care in Action’s Communications Did Not Contain Express Advocacy 

In addition to the procedural failures described above, the Commission erred substantively in 

finding that the six communications described in the Factual and Legal Analysis (FLA) gave rise to 

potential violations of the Act. These communications did not expressly advocate for the election or 

defeat of a clearly-identified candidate, so they were not independent expenditures requiring either 

disclaimers or reporting to the Commission.

The Commission found RTB that Unknown Respondents violated 52 U.S.C. § 30120(a) and 52 

U.S.C. § 30104(c) by disseminating two mailers and four digital advertisements that expressly advocated 

the defeat of a clearly-identified candidate without including required disclaimers or filing reports with the 

Commission. Care in Action does not dispute that it was responsible for the six communications, that they 

qualified as “public communications” under 11 C.F.R. § 100.26, and that their substance pertained to 

clearly-identified officials who were also candidates for public office at the time. But Care in Action does 

dispute that the communications contained express advocacy.

 A communication can meet the Commission’s definition of “express advocacy” in two ways – 

either by using words or phrases like those specifically included in the regulation’s text or because the 

communication’s only reasonable interpretation is as advocacy for the election or defeat of a clearlyidentified candidate. See 11 C.F.R. § 100.22(a)-(b). The Commission’s finding was based on a 

determination that Care in Action’s six communications met the latter standard because they supposedly 

included attacks on Reps. Paulsen and Wagner’s character and fitness that were “very similar to those the 

Commission has found to be express advocacy under § 100.22(b).”27 The import of such attacks, 

according to the Commission’s explanation and justification for § 100.22(b), is that “communications 

discussing or commenting on a candidate’s character, qualifications or accomplishments are considered 

express advocacy under new section 100.22(b) if, in context, they can have no other reasonable meaning 

than to encourage actions to elect or defeat the candidate in question.”28 In other words, by its own 

explanation, the Commission should examine character-related commentary in a communication in light of 

its context and then determine if, within that context, “reasonable minds” could differ as to whether the 

character commentary encouraged the audience to vote for or against the candidate identified.

However, the October 2021 Factual and Legal Analysis (“FLA”) falls short of such an analysis; 

rather, the Commission analogized the six communications to three older enforcement actions in which the 

relevant context was entirely different:

 

26 Although the Commission has not said so in this matter (to our knowledge – again, we are uncertain what procedural 

recommendation OGC is preparing), we submit that its position in MUR 1651 that the second RTB finding could proceed 

without notifying the respondent because the investigation to identify a complaint’s unnamed respondent qualified as an 

internally-generated matter was a remarkable side-step of the Act’s requirements. 27 Factual and Legal Analysis at 13. 28 Corporate and Labor Organization Expenditures, 60 Fed. Reg. at 35,292, 35,295 (July 6, 1995) (emphasis added).

MUR753700115
8 

• First, the FLA cites to the Commission’s findings in MUR 5024R that two brochures attacking 

congressional candidate Tom Kean, Jr. in the 2000 Republican primary election contained express 

advocacy under § 100.22(b), including by using the phrase “Tell Tom Kean Jr. ... New Jersey 

Needs New Jersey Leaders.” But the FLA’s analysis omits other facts about the brochures that the 

Commission found relevant to the express advocacy analysis – specifically, that they directly 

referred to Kean’s campaign for Congress and used a photo of Kean wearing a campaign button 

that read “Tom Kean Jr. for Congress.”29

• Second, the FLA cites to the Commission’s finding in MURs 5511/5525 that communications in 

the 2004 general election stating then-presidential candidate John Kerry “CANNOT BE 

TRUSTED” and that he was “unfit for command” qualified as express advocacy under § 100.22. 

But the FLA’s analysis leaves out the Commission’s reliance on the context in which those 

communications occurred – specifically that the audience would view them together with the fact 

that he was a candidate for the only elected office that commands the U.S. military and the 

surrounding commentary on Senator Kerry’s actions in the Vietnam War.30

• The final communication the FLA cites as “very similar” to Care in Action’s communications is an 

ad attacking Sen. Bob Casey’s qualifications for the U.S. Senate when he first ran in 2006. This 

advertisement asked if the audience could “risk Bob Casey learning on the job.” However, the FLA 

fails to mention that the ad also praised Casey’s incumbent opponent Sen. Rick Santorum’s 

qualifications and personal characteristics in a manner that the Commission found was “unrelated 

to any issue.”31

Care in Action’s communications differ from these decades-plus-old examples of express advocacy 

under § 100.22(b) in multiple key respects. First, Care in Action’s communications lacked any reference 

to the election whatsoever. Chairman Dickerson and Commissioners Trainor and Cooksey’s 

characterization of OGC’s analysis in MURs 7672, 7674 and 7732 (Iowa Values) applies to the FLA in 

this matter as well, in that the FLA “gives short shrift to § 100.22(b)’s requirement that the communication 

must also include an electoral portion” and ignores the fact that “not one of the [communications] 

referenced ... contains a reference to an election, to [Paulsen or Wagner] as a candidate in an election, or a 

call for voters to take electoral action.”32 The fact that they were disseminated close in time to an election 

or the possibility that a communication might somehow be interpreted as election-related does not satisfy 

the necessary condition in § 100.22(b) that a communication have an unmistakable “electoral portion” in 

order to be regulated as express advocacy.33 As the Commission determined in MUR 7150 (New Yorkers 

 

29 MUR 5024R (Council for Responsible Government) Conciliation Agreement at 5-8. 30 MURs 5511 and 5525 (Swift Boat Veterans and POWs for Truth), Conciliation Agrmt at 26-28. 31 MUR 5381 (Softer Voices), Factual and Legal Analysis at 8. 32 Statement of Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III 

(May 13, 2022), MURs 7672, 7674, and 7732 (Iowa Values, et al) at 8. 33 Id; see also MUR 7839 (Westerleigh Press, Inc., et al.), Factual and Legal Analysis at 11-12 (unanimous finding of no RTB

that mailers violated the Act where such mailers (i) did not “contain any reference to an election or call on the reader to take any 

electoral action,” (ii) did not “refer to the incumbents as candidates in a federal election and [did] not mention their political 

opponents,” and (iii) “the target of the advertisements [was] a current officeholder with the ability to effect change on policy”); 

MUR 6311 (Americans for Prosperity), Factual and Legal Analysis at 5-6 (unanimous finding of no express advocacy because 

ads that exhorted “Tell [incumbent Representative] we won’t forget” and directed viewers to www.novemberiscoming.com

contained no unmistakable electoral portion and could reasonably be understood to request that the incumbent officials take a 

different policy position); Statement of Reasons of Vice Chair Allen J. Dickerson and Commissioners Sean J. Cooksey and 

James E. “Trey” Trainor, III (Oct. 7, 2021), MUR 7513 (Community Issues Project) at 4-5 (emphasizing that, to qualify under § 

MUR753700116
9 

Together), even mentioning a federal candidate on the ballot and characterizing that candidate in 

unflattering terms in a communication disseminated close to an election in which that candidate appears on 

the ballot is not, by itself, enough to “exhort the recipient to vote” for or against that candidate.34 The 

communications at issue here are similar to the billboard depicting Sen. Ron Johnson and Rep. Tom 

Tiffany in MUR 7930 that the Commission determined did not contain express advocacy: despite 

criticizing the officeholders’ characters, the billboard’s message was ambiguous because it made no 

mention of their status as candidates.35 Because Care in Action’s communications made no connection to 

the election and instead only discussed the actions of incumbent officeholders on matters of public 

concern, the Commission cannot find that they contained express advocacy. 

In addition to the absence of an electoral component, there is an entirely reasonable interpretation 

of the Care in Action ads other than advocating the electoral defeat of either featured then-candidate that 

the FLA did not consider (perhaps because, again, the Commission eschewed hearing from Care in Action 

in the first place). The phrase “families deserve better” can, in the context of each communication as a 

whole, reasonably be interpreted to refer to the migrant families rather than the families of the 

communications’ audience who may be constituents of the named officeholders. In fact, the October 7 

digital advertisement communicates this point more directly, by including the statement “our children are 

in pain, taken from their parents by our own government” over an image of a detained child who is crying. 

Describing the migrant children as “our children” immediately following the image of the presumably 

non-migrant family walking together through a park and the phrase “your children,” could reasonably be 

understood to purposefully blur the lines between migrant families and the audience’s families in an effort 

to build the audience’s identification with the migrant families and therefore also their agreement that 

those families “deserve better.” 

Second, Care in Action’s communications did not comment on character, qualifications or 

accomplishments. The FLA suggests only the “character” element, but Care in Action’s communications 

differ from the three cases cited in the FLA in that the communications are entirely focused on

Representatives Paulsen and Wagner’s official conduct and policy choices. The policy issues discussed in 

the communications were regularly described in public discourse at the time in terms of their morality and 

alignment with American values – Care in Action’s communications used similarly hard-hitting language 

in characterizing Reps. Paulsen and Wagner’s positions, but did not comment on matters outside the scope 

of their duties as sitting Members of Congress.36 Also unlike the cases cited in the FLA, Care in Action’s 

communications could reasonably be interpreted as exerting pressure regarding policy positions that, at the 

time the communications were disseminated, Care in Action hoped these Representatives would take 

regardless of whether or not they won re-election.37 Although news of the Trump Administration’s policy 

of separating migrant children from their parents first broke in June 2018, journalists and government 

 

100.22(b) as express advocacy, a communication must have an “electoral portion” that is unmistakable and explaining that 

referring to an incumbent officeholder who was also a candidate for federal office as a “career politician” did not qualify as 

such).

34 MUR 7150 (New Yorkers Together), Factual and Legal Analysis at 4-5. 35 MUR 7930 (Minocqua Brewing Co., et al.), Factual and Legal Analysis at 12. 36 See, e.g., Editorial Board, Seizing Children From Parents at the Border is Immoral; Here’s What We Can Do About It, The 

New York Times (June 14, 2018), https://www.nytimes.com/2018/06/14/opinion/children-parents-asylum-immigration.html; 

Jazmine Ulloa, Senators Call Border Family Separation Policy ‘Immoral’ As Officials Defend Their Actions, The Los Angeles 

Times (July 31, 2018), https://www.latimes.com/politics/la-na-pol-family-separations-hearing-20180731-story.html. 37 See, e.g., MUR 7839 (Westerleigh Press, Inc., et al.), Factual and Legal Analysis at 11-12 (mailer with no electoral portion 

did not contain express advocacy where “the target of the advertisements [was] a current officeholder with the ability to effect 

change on policy”).

MUR753700117
10 

officials were still actively investigating and reporting on how the policy came to be and its consequences 

when Care in Action’s communications were disseminated.38 The day before the October 7 digital 

advertisements began running, President Trump referred in a speech to legislation to prohibit family 

separation that was pending in Congress – which, as the mailers note, neither Rep. Paulsen nor Rep. 

Wagner had yet joined as a co-sponsor.39 Moreover, when Congress recessed at the end of September, it 

was publicly reported that the Republican House leadership had struck a deal with President Trump to 

delay considering appropriations for the Department of Homeland Security – the agency that carried out 

the family separation plan – until December.40 Had the Commission afforded Care in Action the 

opportunity to respond to the complaints when they were submitted, this context would have been easier to 

demonstrate with reference to contemporaneous news articles and commentary, and the non-electoral 

meaning of the communications could have been more readily apparent to the Commission. 

II. Alternatively, the Commission Should Dismiss the Complaint

In an Exercise of Its Prosecutorial Discretion

As explained above, Care in Action’s position is that the communications did not contain express 

advocacy under § 100.22 because there can be disagreement among reasonable persons as to whether or 

not they advocate for the reader to take any electoral action. However, Care in Action’s ability to argue 

for its position has been unfairly disadvantaged by the Commission’s four-year delay in giving Care in 

Action notice of the complaints against it and by proceeding to find RTB prior to giving such notice. The 

Commission has not made clear – either directly to Care in Action or through the publicly available 

information about its enforcement process – what its next procedural options are in this matter. If the 

Commission intends to proceed as it did in MUR 1651, we ask that the Commission affirmatively find no 

RTB that Care in Action violated the Act for the reasons set forth above, in order to clarify the record in 

this matter. If instead the Commission will next consider merely substituting Care in Action’s name for 

that of “Unknown Respondent” in its earlier finding, we ask the Commission to instead vacate its finding 

of RTB because it was procedurally flawed under the Act and regulations and substantively incorrect as a 

matter of law.41

 

38 See, e.g., Joshua Barajas, More Than 400 Migrant Children Remain Separated From Their Parents; Here’s What We Know, 

PBS News Hour (Sept. 7, 2018), https://www.pbs.org/newshour/nation/more-than-400-migrant-children-remain-separatedfrom-their-parents-heres-what-we-know; Jeremy Raff, ‘The Separation Was So Long; My Son Has Changed So Much’, The 

Atlantic (Sept. 7, 2018), https://www.theatlantic.com/politics/archive/2018/09/trump-family-separation-childrenborder/569584/; Jeremy Stahl, Newly Uncovered Memo Suggests Kirstjen Nielsen Lied to Congress About Family Separation, 

Slate (Sept. 25, 2018), https://slate.com/news-and-politics/2018/09/memo-kirstjen-nielsen-lied-congress-family-separation.html; 

Amanda Holpuch, Trump’s Family Separations: Watchdog Review Paints Damning Picture of Policy, The Guardian (Oct. 2, 

2018), https://www.theguardian.com/us-news/2018/oct/02/trump-family-separations-watchdog-review-paints-a-damningpicture. 39 See Dara Lind, Anatomy of a Lie: Where Trump’s Fictitious ‘Open Borders Bill’ Comes From, Vox (Oct. 8, 2018), 

https://www.vox.com/2018/10/8/17951426/open-borders-bill-trump-feinstein-democrat (reporting on President Trump’s 

comments in a speech on October 6, 2018 regarding an “Open Borders Bill” sponsored by Senator Dianne Feinstein and tracing 

the moniker “Open Borders Bill” to the legislation officially named the Keep Families Together Act); Keep Families Together 

Act, H.R. 6135, 115th Cong., List of Cosponsors available at https://www.congress.gov/bill/115th-congress/housebill/6135/cosponsors?r=4&s=9&q=%7B%22search%22%3A%5B%22%5C%22keep+families+together+act%5C%22%22%2C

%22%5C%22keep%22%2C%22families%22%2C%22together%22%2C%22act%5C%22%22%5D%7D. 40 Lindsey McPherson, Republicans Likely in for a Messy December Funding, Leadership Fight, Roll Call (Oct. 1, 2018), 

https://rollcall.com/2018/10/01/republicans-likely-in-for-a-messy-december-funding-leadership-fight/ 41 There is precedent for the Commission’s consideration of such a motion. See, e.g., MUR 2093, Certification of Commission 

Vote on Motion to Vacate (Mar. 11, 1986). 

MUR753700118
11 

Alternatively, if the Commission does not vacate its October 2021 finding in this matter or 

affirmatively find no RTB that Care in Action violated the act, then Care in Action asks that the 

Commission dismiss this matter as an exercise of its prosecutorial discretion.42 Care in Action heard from 

the Commission about the complaints against it for the first time more than four years after the complaints 

were filed and more than an entire year after the Commission’s own record-keeping requirements would 

have expired had they applied to Care in Action. As a result, Care in Action is now responding to the 

complaints for the first time less than a year before the relevant statute of limitations expires. Moreover, 

even aside from the significant procedural deficiencies in this matter, its substance resembles that 

underlying the Commission’s recent exercise of its prosecutorial discretion in dismissing the complaint in

MUR 7884 (Georgia Gun Owners, Inc.). In sum, the Commission’s resources could no doubt be better 

spent on matters that are not already so stale and in which the Commission will not face the questions of 

statutory and regulatory compliance in its enforcement proceedings that it does here. 

Thank you for your consideration. 

 Respectfully submitted,

 Laurence E. Gold

Renata E.B. Strause 

Counsel for Respondent Care in Action, Inc. 

cc: Christina Obiajulu-Skinner 

General Counsel

Care in Action, Inc. 

 

42 See Heckler v. Chaney, 470 U.S. 821 (1985).

MUR753700119
MUR 7537, Care in Action, Inc.

Attachment A

MUR753700120
1 Name of organization Employer identification number

Care in Action PAC 83 - 2488940

2 Mailing address (P.O. box or number, street, and room or suite number)

45 Broadway Suite 320

City or town, state, and ZIP code

New York, NY 10006

3 Check applicable box: ✔ Initial notice Amended notice Final notice

4a Date established 4b Date of material change

11/09/2018 11/09/2018

5 E-mail address of organization 

no@email

6a Name of custodian of records 6b Custodian's address

Jessica Livoti 45 Broadway Suite 320

New York, NY 10006

7a Name of contact person 7b Contact person's address

Jessica Livoti 45 Broadway Suite 320

New York, NY 10006

8 Business address of organization (if different from mailing address shown above). Number, street, and room or suite number

45 Broadway Suite 320

City or town, state, and ZIP code

New York, NY 10006

9a Election authority 9b Election authority identification number

 

NONE

 

10a Is this organization claiming exemption from filing Form 8872, Political Organization Report of Contributions and Expenditures, as a

qualified state or local political organization? Yes ✔ No

 

10b If 'Yes,' list the state where the organization files reports: GA

 

11 Is this organization claiming exemption from filing Form 990 (or 990-EZ), Return of Organization Exempt from Income Tax, as a caucus or

associations of state or local officials? Yes No ✔

MUR753700121
 

12 Describe the purpose of the organization

 

Supporting and opposing nonfederal political candidates.

MUR753700122
13 Check if the organization has no related entities

.......................................................................................................................................................................

Care in Action, Inc. Connected 45 Broadway Suite 320

 

New York, NY 10006

 

Jessica Livoti Political Director 45 Broadway Suite 320

 

New York, NY 10006

 

Raquel Lavina 11/09/2018

MUR753700123