FEDERAL ELECTION COMMISSION WASHINGTON, D.C.

 

 January 25, 2024 

ADVISORY OPINION 2023-11 

Christopher Siragusa 

VoteDown PAC

90 Church St. #2356 

New York, NY 10008 

Dear Mr. Siragusa: 

We are responding to your advisory opinion request on behalf of VoteDown PAC 

(“Requestor”) concerning the application of the Federal Election Campaign Act, 52 U.S.C. 

§§ 30101–45 (the “Act”), and Commission regulations to Requestor’s proposal to operate as a 

conduit for contributions earmarked for federal candidates opposing several incumbent federal 

officeholders. Your advisory opinion request includes five questions about this proposal. The 

Commission concludes that nothing in the Act or Commission regulations prohibits your 

proposed activities as described in questions one through four of your request but that Requestor 

must report any funds it receives to offset the cost of credit-card processing fees as contributions 

to Requestor. 

Background 

 

The facts presented in this advisory opinion are based on your letter received November 

15, 2023, reports filed with the Commission, and supplemental materials received on January 23 

and 24, 2024. 

Requestor is a hybrid PAC established in 2023 for the purpose of “promot[ing] the 

election of non-incumbent candidates for Federal office[.]”1

 Requestor has not yet been required 

to file any reports disclosing contributions or expenditures, but Requestor proposes to solicit 

contributions solely through its website and accept contributions made by credit card.2 

Requestor proposes to serve as a conduit for contributions made to candidates it identifies as the 

leading opponents to certain incumbent federal officeholders 90 days before the relevant primary 

1

 See Statement of Organization (Form 1) 1–2, VoteDown PAC (Sept. 29, 2023); Advisory Opinion Request 

(“AOR”) at AOR001.

2

 AOR001.
AO 2023-11 (VoteDown PAC)

Page 2 

or general election.3 Requestor plans to designate leading candidates based on its analysis of 

certain objective criteria, which Requestor will make available to contributors at the time of 

solicitation.4 Those criteria include: (1) the candidate with the highest average of polling data 

published within a relevant period and conducted by preapproved pollsters listed on Requestor’s 

website; (2) if no qualified polling data is available, then the candidate with the highest net cash 

on hand (defined as cash plus debts receivable minus debts payable) as reported on candidates’ 

FEC Form 3 filings; (3) if all opponent candidates have the same net cash on hand, then 

Requestor will split the contributions equally between the candidates.

5

 If all of the above 

methods fail to designate a leading opponent in a race for which Requestor has received a 

contribution, or if the designated candidate refuses to accept the contributions, Requestor 

proposes to forward the contributions to the incumbent’s national party committee in a primary 

election or the opposing national party committee for a general election as the “default 

recipient[s].”6

To account for credit-card processing fees essential to its solicitation model, Requestor 

proposes to charge contributors the fee directly on top of the contribution amount, forwarding the 

contribution to the identified candidate and remitting the fee to the credit card processor.7 Thus, 

a contributor giving $100 would be charged $100 plus the credit card processing fee.8

 Requestor 

proposes reporting the receipt of such fees as “Offsets to Operating Expenditures” on Line 15 of 

its quarterly reports and reporting the remittance of such fees to the credit card processors as 

“Other Federal Operating Expenditures,” on Line 21.9

Questions Presented

(1) Will contributions received and forwarded by Requestor be considered earmarked 

contributions under the Commission’s regulations such that the contributions are 

attributable only to the original contributor and not to Requestor?

(2) May Requestor postpone forwarding the earmarked contributions to the designated 

candidate until after the designated candidate is identified using external, public 

criteria, set up and disclosed to the contributor at the time of contribution? 

3

 AOR001-2.

4

 AOR002.

5

 Id.

6

 AOR002, 5.

7

 AOR003.

8

 Id.

9

 AOR003, 5.
AO 2023-11 (VoteDown PAC)

Page 3 

(3) If a designated candidate is not available or is unable or unwilling to accept 

Requestor’s earmarked contributions, may Requestor forward the contributions to a 

national party committee according to the proposed criteria?

(4) If the earmarked contributions are held in an interest-bearing depository account 

before they are transferred to the ultimate recipient, may Requestor retain the interest 

earned on those funds to use for any lawful purpose in accordance with the Act?

(5) How should Requestor reflect the receipt and subsequent payment of credit card 

processing fees on its reports to the Commission?

Legal Analysis 

(1) Will contributions received and forwarded by Requestor be considered earmarked 

contributions under the Commission’s regulations such that the contributions are 

attributable only to the original contributor and not to Requestor?

(2) May Requestor postpone forwarding the earmarked contributions to the designated 

candidate until after the designated candidate is identified using external, public 

criteria, set up and disclosed to the contributor at the time of contribution?

(3) If a designated candidate is not available or is unable or unwilling to accept 

Requestor’s earmarked contributions, may Requestor forward the contributions to a 

national party committee according to the proposed criteria? 

 Yes, the contributions received and forwarded by Requestor as proposed in the request

will be considered earmarked contributions attributable only to the original contributor and not 

the Requestor; and the Requestor may forward the earmarked contributions to the designated 

candidate, or to a national party committee if the designated candidate is unable or unwilling to 

accept the earmarked contribution, as proposed. 

The Act and Commission regulations provide that contributions earmarked for a specific 

candidate or committee but “directed through an intermediary or conduit” are attributable as 

contributions from the contributor to the candidate or committee.10 Contributions thus made are 

attributable neither to nor from the conduit as long as the conduit solely “receives and forwards” 

the earmarked contributions without “exercis[ing] any direction or control over the choice of the 

recipient[.]”11

 The Commission has authored a series of advisory opinions applying the conduit rules to 

committees who have proposed soliciting and forwarding contributions “after a predetermined 

10 See 52 U.S.C. § 30116(a)(8); 11 C.F.R. § 110.6(a).

11 See 11 C.F.R. § 110.6(b)(2), (d).
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Page 4 

event . . . where the ultimate recipient was not yet identified at the time of the solicitation” for 

the contribution.12 The Commission has approved proposals where: 

(1) the condition that would trigger the disbursement of the funds was objectively 

determinable and outside the control of the committee forwarding the contributions; 

(2) the committee forwarding the contributions specified a date certain by which the 

condition would or would not be met; (3) the committee forwarding the contributions 

would refund or otherwise lawfully distribute the funds if the triggering condition was 

not met; and (4) all of the foregoing were clearly communicated to contributors.13

The Commission has determined that the proposed conduit activities that comply with the above 

conditions “ensure that the contributors have ultimate control over their contributions and that 

the intermediary political committee exercises no direction with regard to the disposition of the 

conditional funds.”14

 Requestor’s proposal meets all four of the aforementioned conditions. First, the 

identification criteria Requestor describes — starting with polling data from previously selected 

pollsters and moving on to publicly available and verified campaign-finance data — are 

objective, easily determinable facts that are outside of Requestor’s control, similar to the public 

endorsements from preselected organizations proposed in Advisory Opinion 2019-01 (It Starts 

Today) and the stated gender of the nominee proposed in Advisory Opinion 2014-19 (ActBlue). 

Second, Requestor has specified a date certain by which the candidate must meet the objective 

criteria before Requestor forwards the contribution: 90 days before the general or primary 

election for which the contribution was earmarked. Third, Requestor’s proposal of either the 

Democratic National Committee or the Republican National Committee serving as a “default 

recipient” of contributions that Requestor cannot forward to a candidate is a lawful distribution 

of those funds, provided those contributions are forwarded under the timelines in 11 C.F.R. 

§ 102.8(b)(1).15 Finally, Requestor has proposed clearly disclosing the above information to 

contributors in its solicitations. As a result, the proposed activities satisfy the four criteria 

necessary to ensure Requestor acts as a conduit and does not direct or control any contributions it 

receives and forwards.

12 Advisory Opinion 2022-09 (Democratic Party of Wisconsin Federal) at 5; see also Advisory Opinion 

2019- 01 (It Starts Today) at 3-4; Advisory Opinion 2014-19 (ActBlue) at 3-4; Advisory Opinion 2006-30 (ActBlue) 

at 4–5; Advisory Opinion 2003-23 (WE LEAD) at 3–6; Advisory Opinion 1982-23 (Westchester Citizens for Good 

Government) at 2. 

13 Advisory Opinion 2022-09 (Democratic Party of Wisconsin Federal) at 5.

14 Id. (citing Advisory Opinion 2016-15 (Gary Johnson Victory Fund)); see also 11 C.F.R. § 110.6(d)(2).

15 See Advisory Opinion 2003-23 (WE LEAD) (concluding that the 10-day window of 11 C.F.R. § 102.8(a) 

does not begin until the triggering condition is satisfied). Here, the triggering condition is meeting certain polling or 

campaign-finance benchmarks at 90 days before a given election. AOR002. Thus, Requestor would have until 80 

days before a given election to forward contributions to the designated candidate; if there is no designated candidate 

or the contributions cannot be forward to the designated candidate, Requestor must forward any contributions to the 

relevant national party committee no later than 60 days before the election. See 11 C.F.R. § 102.8(b)(1) (political 

committees must forward contributions made to committees other than authorized committees within 30 days).
AO 2023-11 (VoteDown PAC)

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(4) If the earmarked contributions are held in an interest-bearing depository account

before they are transferred to the ultimate recipient, may Requestor retain the interest

earned on those funds to use for any lawful purpose in accordance with the Act?

Yes, the Requestor may retain interest earned on the earmarked contributions held in an 

interest-bearing depository account. 

The Act and Commission regulations do not bar political committees from earning 

income from the investment of contributions made to the political committee.16 Funds earned as 

income on investments of committee assets are not contributions under the Act or Commission 

regulations because they are not a deposit of money “made . . . for the purpose of influencing any 

election for Federal office[.]”17 

The Commission concludes that nothing in the Act or Commission regulations prevents 

Requestor from retaining income earned as interest on contributions Requestor has received, 

provided, as Requestor acknowledges, that Requestor reports the interest income as set forth in 

Commission regulations. 

(5) How should Requestor reflect the receipt and subsequent payment of credit card

processing fees on its reports to the Commission?

Requestor should reflect the receipt of credit card processing fees as contributions to 

Requestor on its reports to the Commission. A contribution includes any “deposit of money . . . 

made by any person for the purpose of influencing any election for Federal office[.]”18 The 

Commission has long considered the cost of processing a contribution made by credit card to be 

an operating expenditure of the committee that received the contribution, the payment of which 

is itself a contribution to that committee.19

Here, Requestor is soliciting the contributions and is thus incurring the cost of paying a 

credit-card processor to process the payments; payment of that expense by someone other than 

Requestor — in this case, the contributor — constitutes a contribution to Requestor. This is true 

where the contributor pays the fee directly to the processor through a deduction from the total 

amount and where, as Requestor proposes, the committee collects the fee from the contributor 

16 See generally Advisory Opinion 1999-08 (Specter).

17 11 C.F.R. § 100.52(a).

18 Id.

19 See, e.g., Advisory Opinion 2019-15 (NORPAC); Advisory Opinion 2007-04 (Atlatl); Advisory Opinion

1999-08 (Specter); Advisory Opinion 1995-34 (Politechs); Advisory Opinion 1995-09 (NewtWatch); Advisory 

Opinion 1994-33 (VITEL International); Advisory Opinion 1991-01 (Deloitte & Touche). Cf. Advisory Opinion 

2015-15 at 4 (WeSupportThat.com) (“The Commission has previously concluded that entities that process 

contributions as a service to contributors, and not to the recipient political committees, are not making 

contributions to those committees.”) 
AO 2023-11 (VoteDown PAC)

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and remits it to the processor.20 Requestor’s proposal is materially similar to that in Advisory 

Opinion 2019-15 (NORPAC), in which the Commission concluded that the convenience fee that 

NORPAC proposed charging contributors to offset processing and administrative costs — the 

amount of which was based on the underlying contribution — was itself a contribution to 

NORPAC.21 The same is true here. The total amount of the contribution is “the entire amount 

authorized by the contributor.”22 The portion of the contribution attributable to the credit-card 

processing fee is a contribution to Requestor, while the remainder is a contribution to the 

designated candidate or national party committee that is its ultimate recipient. As a result, 

Requestor should report its receipt of the former group of funds as “contributions” on Line 11 of 

its quarterly reports. In addition, the Commission concludes that Requestor’s proposal to report 

its remittances to credit-card processors as “Other Federal Operating Expenditures” on Line 21 

of its quarterly reports accords with Commission regulations. 

This response constitutes an advisory opinion concerning the application of the Act and 

Commission regulations to the specific transactions or activities set forth in the instant advisory 

opinion request.23 The Commission emphasizes that, if there is a change in any of the facts or 

assumptions presented, and such facts or assumptions are material to a conclusion presented in 

this advisory opinion, then the requestor may not rely on that conclusion as support for its 

proposed transactions or activity. Any person involved in any specific transaction or activity 

which is indistinguishable in all its material aspects from the transaction or activity with respect 

to which this advisory opinion is rendered may rely on this advisory opinion.24 Please note that 

the analysis or conclusions in this advisory opinion may be affected by subsequent developments 

in the law including, but not limited to, statutes, regulations, advisory opinions, and case law. 

Any advisory opinions cited herein are available on the Commission’s website.

On behalf of the Commission,

Sean J. Cooksey, 

Chairman

20 Compare Advisory Opinion 2007-04 (Atlatl) with Advisory Opinion 2019-15 (NORPAC).

21 See Advisory Opinion 2019-15 (NORPAC) at 3–5.

22 Advisory Opinion 2007-04 (Atlatl) at 4.

23 See 52 U.S.C. § 30108.

24 See id. § 30108(c)(1)(B).