FEDERAL ELECTION COMMISSION 

Washington, DC 

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT: 

The Commission 

Office of the Commission Secretary VFV

November 1, 2023

AO 2023-06 (Texas Majority PAC) Comment on Drafts A & B

Attached is a comment received from Sandler Reiff regarding 

AO 2023-06 (Texas Majority PAC) Drafts A & B. This matter is 

on November 2, 2023 Open Meeting Agenda. 

Attachment
SANDLER REIFF 1090 Vermont Ave NW, Suite 750

Washington, DC 20005

www.sandlerreiff.com

T: 202-479-1111

F: 202-479-1115

SANDLER REIFF LAMB

ROSENSTEIN & BIRKENSTOCK, P.C.

1

November 1, 2023 

Federal Election Commission

Office of General Counsel

1050 First Street, NE

Washington, DC 20463 

ao@fec.gov 

COMMENT ON ADVISORY OPINION 2023-06 

(TEXAS MAJORITY PAC) DRAFTS A&B

Ms. Stevenson: 

We write to express our concerns with the drafts submitted by the General Counsel’s 

Office in response to Advisory Opinion Request 2023-06. Our firm represents a multitude of 

federal candidates, PACs, and state party committees that would be adversely affected by the 

Commission’s approval of either draft. Furthermore, we believe these drafts to be in conflict with 

the Federal Election Campaign Act and Commission regulations. For the reasons described 

below, we would urge the Commission to vote down both drafts and hold over the issue to 

another meeting to allow for an additional draft or drafts to be presented. In the alternative, the 

Commission should either approve a pared down version of Draft A per our comments below, or 

propose changes to the rules to give the regulated community time to better grapple with what 

would be a major change in federal campaign finance regulation. 

I. Draft A

With regards to Draft A, we would first like to state our agreement with the draft’s initial 

conclusion that paid canvassing is not a public communication under 109.21.1 We will further 

address our reasoning for that conclusion below in our comments on Draft B. However, our 

concurrence with Draft A stops there. The draft goes on to advise that despite its conclusion that 

paid canvassing is not a public communication, and therefore not a “coordinated 

communication” that “at least some of the expenses necessary to prepare and execute the Paid 

Canvass, as described in TMP’s request, still constitute coordinated expenditures under 11 

1 FEC Adv. Op. 2023-06 Draft A at 7-8 [hereinafter "Draft A"]. The Commission can and should approve 

an opinion that adheres solely with that conclusion and determine that all costs associated with the 

proposed canvassing program would not result in an in-kind contribution to a federal candidate.
2 

C.F.R. § 109.20(b).”2

 This conclusion is in direct conflict with the plain language in 109.20(b), 

which states: 

Any expenditure that is coordinated within the meaning of paragraph (a) of this 

section, but that is not made for a coordinated communication under 11 CFR 

109.21 . . . is either an in-kind contribution to, or a coordinated party expenditure 

with respect to, the candidate or political party committee with whom or with 

which it was coordinated . . .3

The plain language of the regulation differentiates between (1) expenditures made 

for coordinated communications and (2) coordinated expenditures not made for

coordinated communications. There is no further detail or explanation provided in 109.20 

as to what it means for an expenditure to be made “for” a coordinated communication, 

but the regulated community has long operated under the understanding that coordinated 

communication costs included all ancillary costs of the communication, not just the costs 

of production and dissemination. It should also hold true that for a communication that is 

exempt from the coordinated communication definition because it is not a public 

communication, that communication costs should include both direct and ancillary costs. 

The standard adopted in Draft A is both bizarre and illogical. The draft states that 

the Requestor seeks to make expenditures not only for the communications themselves, 

but also “for goods and services provided by third parties to support the overall 

canvassing effort” and then specifically identifies “hiring vendor consultants, hiring and 

training paid canvassers, and creating and managing a canvass questionnaire.”4 Draft A

then makes the inexplicable conclusion that those “supportive expenses are not for the 

canvassing communications themselves, and . . . at least some are not sufficiently direct 

inputs or components of the canvassing communications to be considered part of 

communications.”5 Without any further explanation, analysis, or guidance, the draft 

continues on to the next prong of the coordinated communication analysis and ultimately 

concludes that these input costs should be considered an in-kind contribution to any 

candidate with which the committee “coordinated” its activities. 

 

 To our knowledge, this concept of supportive expenses, direct inputs, and 

components are not defined or otherwise addressed anywhere in the Commission’s 

regulations or in FECA. Furthermore, the drafters do not provide any definitions of those 

terms or guidance on how to determine whether a cost is merely supportive or indirect, or 

2 Draft A at 8-9 (emphasis added); see also id. at 5 (“Although the costs associated with the paid 

canvassing program would not constitute coordinated communications, they would constitute coordinated 

expenditures”). 

3 11 CFR 109.20(b) (emphasis added).

4 Draft A at 9.

5 Id. 
3

whether it should be considered a direct input or component of the communication.6

 To 

confuse matters more, the list of examples of “supportive” expenses are very clearly 

components of the communication itself. 

First – the creating and managing of the canvassing questionnaire, which is 

referring to the script that is read to potential voters at their door. It is, in fact, a

communication itself. The cost of creating and managing this questionnaire is very 

clearly a direct input and component of the communication expense. The same should be

said for the hiring and training the canvassers who are the communicators of the message.

It defies logic to untether the costs of creating and disseminating the message from the 

overall costs of the communication for purposes of a coordination analysis. One could not 

exist without the other and should not be subject to different rules. In practice, this 

creates even more confusion – how would a PAC determine what cost is covered and 

which is not?

The final example of “supportive” expenses listed is that of “vendor consultants”, 

which is only discussed in the AOR in relation to the vendor hired to “carry out the paid 

canvassing programs”, including designing and producing the literature and hiring the 

canvassers.7

 Again, these expenses are a component of the proposed communications –

the materials left with potential voters to read and the people who carry those messages to 

their door. Parsing these expenses would result in an untenable situation, which is also 

contrary to law, where committees are no longer able to pay for the strategy, production, 

and dissemination of non-public communications coordinated with candidates.

It is our understanding that the definition of a “coordinated expenditure” in 

109.20(b) is intended to catch “non-communication expenditures” that are coordinated 

with candidates and provide independent value to the candidate; it is intended to be read 

together with the other existing regulations regarding coordinated and independent 

expenditures.

8 In other words, it is intended to cover payments made or things of value 

given to a candidate to influence their election and that otherwise provide a direct benefit 

to the candidate, such as sharing a poll or other common in-kind contributions such as 

providing rent, equipment or staff directly to the candidate.

9 This new concept of 

supportive expenses or insufficiently direct input costs to support the overall 

communication effort is, in our view, neither practical nor a proper reading of the 

Commission’s regulations – nor is it consistent with the treatment of other non-public 

6 Furthermore, the Commission Draft provides no citations or support for its position in the Draft 

Opinion.

7 FEC Adv. Op. Req. 2023-06 at AOR002.

8 FEC, Explanation and Justification for the Regulations on Internet Communications, 71 Fed. Reg. 

18,589, 18,594 (Apr. 12, 2006); FEC, Explanation and Justification for Regulations on Coordinated and 

Independent Expenditures, 68 Fed. Reg. 421, 425-26 (Jan. 3, 2003).

9 11 CFR 100.111(e).
4

communications.10 An advisory opinion request is simply not the best place to make new 

law in this way, with such a wide-reaching effect on the regulated community.

Finally, the draft does not discuss the practical impact this guidance would have 

on the interpretation of Part 106, which discusses in detail the rules regarding the 

allocation of expenses between candidates and committees or the impact on state party 

committees that are partaking in coordinated activities with candidates. The broad 

interpretation suggested by Draft A calls into question how the Commission will parse

expenses between those that it considers day-to-day operating expenses of a political 

committee under 11 C.F.R. § 106.1 and those it considers to be a coordinated 

expenditure. It has generally been understood that consulting expenses paid for by 

political committees are operating costs of the committee. Consultants provide a myriad 

of services, including general strategic advice and specific advice related to 

communications by a committee. Under Draft A, committees would be required to 

determine which expenses are not covered by the regulation and how to allocate them 

between operating costs and coordinated expenditures. For this reason, we believe the 

Commission created this exception in 11 C.F.R. § 106.1(c).

In addition, while the Requestor is not a party committee, the Draft Opinion 

would have a significant potential impact on party committees. As a general matter, 

political parties have relied on past pronouncements that canvassing was not a public 

communication.11 If Draft A were to be approved, party committees would be required 

to fundamentally alter their operations since most, if not all, of their operations, even 

ones that do not reference federal candidates are done in coordination with both their 

federal and non-federal nominees. Does this mean that the “input costs” of a 

communication that says “Vote Democratic” or “Vote Republican” would be required to 

be considered an in-kind contribution to its federal candidates if it was coordinated with 

those candidates?

10 See MUR 6657 (Akin for Senate), Factual & Legal Analysis at 5-6, where the Commission 

unanimously agreed that where a communication was not a “public communication”, “significant 

related expenses” to the communication were not in-kind contributions.

11 FEC Adv. Op. Req. 2023-06 at AOR005-006 (describing Commission precedent that paid canvassing

and handbills are not “public communications”) (citing Statement of Reasons of Vice Chairman David M. 

Mason & Comm’r Hans A. von Spakovsky at 9, MUR 5564 (Alaska Democratic Party) (Dec. 21, 2007) 

(“Door-to-door canvassing is not ‘general public political advertising’ . . . [t]hus, door-to-door canvassing 

is [not] a ‘public communication.’”); Statement of Reasons of Chairman Robert D. Lenhard at 4, MUR 

5564 (Dec. 31, 2007) (“Most of the costs related to the ADP’s field program were payments by the ADP 

for salaries and benefits of its employees, and for costs related to maintaining office space. As such, these 

costs were not for ‘public communications’ (such as radio ads and direct mail) as that term is defined in 

our regulations. These costs include door to door canvassing, manning campaign offices and other 

traditional grass roots activities.”) (citations omitted); Statement of Reasons of Chairman Michael E. 

Toner & Comm’rs David M. Mason & Hans A. von Spakovsky at 5, MUR 5604 (Friends of William D. 

Mason) (Dec. 11, 2006); Concurring Statement of Vice Chair Caroline C. Hunter & Comm’rs Lee E. 

Goodman & Matthew S. Petersen, FEC Adv. Op. 2016-21 (Great America PAC) at 1-2 (Jan. 12, 2017)).
5

In a Statement of Reasons in MUR 5564, Commissioners Mason and von 

Spakovsky acknowledged that parsing what Draft A would classify as input costs of party 

get-out-the-vote activities as coordinated expenditures would be impossible without 

conducting a rulemaking to address party spending.12 The Commissioners correctly

acknowledged that a rulemaking would be necessary to treat similarly situated parties 

alike and provide the needed “advance notice of the standards to which they are expected 

to confirm in the future.”13 To fundamentally alter the way that party committees conduct 

their business through an advisory opinion that was not requested by a party committee 

would deprive political parties of the opportunity to substantively address the 

catastrophic effect that Draft A would cause on their operations. To be sure, providing 

committees only a few days to comment on a draft advisory opinion that fundamentally 

departs from Commission precedent is nothing near the ordinary notice and comment 

required by Commission regulations and the Administrative Procedures Act.14

We urge the Commission to vote down Draft A (or in the alternative, approve a 

modified draft) and adopt the position held by the Requestor – namely that since a paid 

canvass is not a public communication, the expenses associated with the communication 

are not treated as in-kind contributions.

II. Draft B

As described above, we agree with the position taken by the Requestor and in Draft A 

that a paid canvass is not a public communication because it does not qualify as “general public 

political advertising.”15 That conclusion is consistent with the analysis in the Commission’s 

recent Advisory Opinion 2022-20 and with its past enforcement actions as cited by the 

Requestor.

16

Draft B relies on the argument from the rulemaking on internet communications that the 

use of the word “advertising” signifies that payment is required for the communication to be 

considered “general public political advertising” and that public communications typically 

require that an intermediary is paid to disseminate the communication.17 The draft concludes 

that since the paid canvassing program described in the AOR would include paying a vendor to 

12 MUR 5564 (Alaska Democratic Party), Statement of Reasons of Vice Chairman David M. Mason & 

Comm’r Hans A. von Spakovsky at 2.

13 Id. at 2-3.

14 5 U.S.C. § 553; 11 CFR 200.3.

15 See supra note 1.

16 See FEC Adv. Op. 2022-20 (Maggie for NH) at 4; see supra note 11.

17 FEC, Adv. Op. 2023-06 Draft B at 6 [hereinafter "Draft B”] (citing Internet Communications, 71 Fed. 

Reg. 18,589, 18,594 (Apr. 12, 2006)).
6

create and distribute the communications, the canvass is a public communication.18 This 

conclusion is questionable at best as it seems to distinguish a paid canvassing program from 

canvassing done by paid employees or even volunteers, even though the communication at issue 

(the discussion at the door and literature) is the same in each scenario. The paid canvass vendor 

is simply an agent of the Requestor, stepping into the Requestor’s shoes to execute its canvassing 

program to an audience determined by the Requestor. The communications at issue should not 

be treated any differently than a volunteer or staff canvass since the Requestor is given no 

advantage and no improved or additional access to its intended audience by virtue of using a 

vendor for the paid canvass. 

In addition, Draft B’s sole citations to support the proposition that canvassing is a “public 

communication” is that “door hangers” have been determined to be “public communications” in 

two previous enforcement matters.19 It should be noted that the two matters involved the use of 

disclaimers and neither implicated the definition of “coordinated communications.”20 In neither 

matter did the Commission consider the implications of whether the communications resulted in 

an in-kind contribution to, or a coordinated expenditure on behalf of a candidate, and should not 

be relied upon as precedent for the intended position in Draft B or provide any persuasive 

guidance to the Commission.

For these reasons, we urge the Commission to reject Draft B outright.

The questions presented by this Advisory Opinion Request are not a nominal or obscure 

technical point solely affecting the Requestor. To determine that canvassing is a “public 

communication” or that “input costs” are somehow contributions or coordinated expenditures on 

behalf of candidates will have far reaching implications for the campaign activities of both 

political committees and political party committees alike. It will upend over twenty years of 

18 Draft B at 7.

19 Draft B at 7-8 (citing MUR 4741 (Mary Bono Committee et al.), Factual & Legal Analysis at 4-5; 

MUR 6778 (David Hale for Congress et al.), Factual & Legal Analysis at 5). Not only that, but the 

Commission’s treatment of door hangers as “public communications” has been inconsistent, even within 

the same Audit. Compare FEC, Office of the General Counsel’s Comments on the Draft Final Audit 

Report of the Audit Division on the Ky. State Dem. Central Exec. Cmte. at 5-6 (“Distribution of a door 

hanger by hand does not require payment to an intermediate facility owner each time communication with 

an audience is sought (though payment to a printer for the creation of the door hanger may be required), 

but rather may be accomplished independently by the communicator. A door hanger is therefore more 

akin to a printed slate card, handbill, brochure, or bumper sticker than it is to any of the communication 

modalities enumerated in the definition of public communication”), with FEC, Office of the General 

Counsel’s Comments on the Audit Division Recommendation Memorandum on the Ky. State Dem. 

Central Exec. Cmte. at 4 (“door hangers, if not within the VME, are likely public communications that 

otherwise meet the definition of ‘party coordinated communication’ in 11 C.F.R. § 109.37.13”). We note 

that the Commission has been similarly inconsistent with its treatment of canvasing and reiterate that an 

advisory opinion is not the proper avenue for resolving any inconsistency.

20 See generally MUR 4741 (Mary Bono Committee et al.), Factual & Legal Analysis; MUR 6778 (David 

Hale for Congress et al.), Factual & Legal Analysis.
7

understood practice and profoundly reorder the way regulated committees conduct their 

campaign activities.

If you have any questions or need additional information in connection with this 

Comment, I can be reached at (202) 479-1111 or reiff@sandlerreiff.com.

Sincerely,

Neil P. Reiff

Dave Mitrani

Erin Tibe