1

FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matters of

Fair People for Fair Government 

Coalition for a Safe Secure America

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MUR 7460

MURs 7536 & 7551 

SUPPLEMENTAL STATEMENT OF REASONS OF VICE CHAIR 

ALLEN DICKERSON AND COMMISSIONERS SEAN J. COOKSEY AND 

JAMES E. “TREY” TRAINOR, III

We joined our colleagues in voting unanimously to dismiss these matters as an exercise of 

prosecutorial discretion.1 We write separately because we do not believe the Respondents in these 

matters violated the law. In reaching that judgment, we would adopt the reasoning set out by 

Commissioners McGahn, Hunter, and Petersen in previous statements analyzing what mailer 

features do and do not constitute express advocacy to conclude that these do not.

2

In particular, a 

mailer does not contain express advocacy under 11 C.F.R. § 100.22(b) merely because it identifies 

someone as a candidate for federal office, or because it compares two candidates’ policy positions 

with a clear preference for one, or because it comments on a candidate’s character, or even because

the mailer is sent close in time to an election. It must be that “[r]easonable minds could not differ 

as to whether it encourages actions to elect or defeat” a candidate.3

 

1 Certification (Apr. 22, 2021), MUR 7460 (Fair People for Fair Government); Certification (Apr. 28, 2021),

MURs 7536 & 7551 (Coalition for a Safe Secure America).

2 See, e.g., Statement of Reasons of Vice Chairman Donald F. McGahn and Commissioners Caroline C. Hunter 

and Matthew S. Petersen (Sept. 19, 2013), MUR 6346 (Cornerstone Action, et al.); Statement of Chair Caroline C. 

Hunter and Commissioners Donald F. McGahn and Matthew S. Petersen (May 9, 2012), Advisory Opinion 2012-11 

(Free Speech); Statement of Reasons of Vice Chair Caroline C. Hunter and Commissioners Donald F. McGahn and 

Matthew S. Petersen (June 23, 2011), MUR 6429 (Unknown Respondents).

3 11 C.F.R. § 110.22(b)(2). The constitutionality of 11 C.F.R. § 100.22(b) remains subject to debate. Compare 

Me. Right to Life Comm. Inc. v. FEC, 914 F. Supp. 8,13 (D. Me. 1996) (holding “that 11 C.F.R. § 100.22(b) is contrary 

to the statute as the United States Supreme Court and the First Circuit Court of Appeals have interpreted it and thus 

beyond the power of the FEC”), aff’d per curiam, 98 F.3d 1 (1st Cir.1996) (per curiam), cert. denied, 522 U.S. 810 

(1997); FEC v. Christian Action Network, 894 F. Supp. 946, 958 (W.D. Va. 1995) (concluding that the FEC’s approach 

to express advocacy wrongly expanded the definition beyond that enunciated by the Court in Buckley and was “based 

on a misreading of the Ninth Circuit’s decision in Furgatch”), aff’d, 92 F.3d 1178 (4th Cir. 1996) (unpublished); Va.

Society for Human Life, Inc. v. FEC, 263 F.3d 379, 392 (4th Cir. 2001) (holding that § 100.22(b) “violates the First 

Amendment”); Right to Life of Dutchess County, Inc. v. FEC, 6 F. Supp. 2d 248, 253–254 (S.D.N.Y. 1998) (finding 

MUR746000035
2

We further believe that any merits assessment in MURs 7536 and 7551 (Coalition for a 

Safe Secure America) should have followed the Commission’s decision in MUR 5634 (Sierra 

Club, Inc.). There, the Commission voted 5-1 to find no reason to believe that a Sierra Club ad 

known as “The Dirt” contained express advocacy and therefore constituted a prohibited corporate 

expenditure.

4

In our view, there is no legally meaningful difference between the content of “The 

Dirt” and the mailers sent by the Coalition for a Safe Secure America, the relevant portions of 

which are included below. Like matters should be treated alike. It is therefore regrettable that this 

important Commission decision was not cited or acknowledged by the Office of General Counsel 

in its First General Counsel’s Report recommending enforcement in these matters.

5

______________________________ May 26, 2021

Allen Dickerson Date

Vice Chair

_________________________________ May 26, 2021

Sean J. Cooksey Date

Commissioner

_________________________________ May 26, 2021

James E. “Trey” Trainor, III Date

Commissioner

 

that § 100.22(b) is beyond the statute), with Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) (holding that 11 C.F.R. 

§ 100.22(b) is neither overly broad nor impermissibly vague); The Real Truth About Abortion v. FEC, 681 F.3d 544 

(4th Cir. 2012) (holding that 11 C.F.R. § 100.22(b) is constitutional).

4 Certification (Sept. 20, 2005), MUR 5634 (The Sierra Club, Inc.). See also First General Counsel’s Report 

at 6–9 (Aug. 10, 2005), MUR 5634 (The Sierra Club, Inc.) (describing and analyzing “The Dirt”).

5 See First General Counsel’s Report (Jan. 13, 2020), MURs 7536 and 7551 (Coalition for a Safe Secure 

America).

MUR746000036
MUR746000037
MUR746000038
Lucy 

ENTON 

Opposed to Tax Hikes 

Lucy Brenton strongly opposed the Mike Braun 

tax hikes. In fact, she has always opposed 

all taxes that take money from us to line 

the government's pockets.2 

MUR746000039
Lucy Brenton: Opposed to all tax increases 

Lucy Brenton strongly opposed the Mike Braun tax hikes. 

In fact, she opposes all taxes that take money from our pockets.3 

Call Lucy Brenton at (317) 721-3676 and tell her to keep opposing new taxes. 

1. PolitiFact, April 30, 2018. 2. Times of Northwest Indiana, June 19, 2017. 3. Indianapolis Star, September 14, 2018.

MUR746000040
THANKS TO TAX HIKE MIKE, 

HOOSIERS ARE HAVING TO 

PAY MORE FOR: 

GAS for your car 

Car registration FEES 

Airplane FUEL 

IMMUNIZATIONS 

,,,,and a1 other things,

2

Lucy BRENTON: 

OPPOSED TO TAKING 

MORE MONEY FROM 

TAXPAYER POCKETS 

Lucy Brenton is opposed 

to Mike Braun's Gas Tax 

Hike, and the 45 other 

taxes he voted to support 

or impose. In fact, she 

opposes all taxes that take 

money from taxpayers to 

line the government's pockets.3 

Call Lucy Brenton at (317) 721-3676 and 

tell her to keep opposing new taxes. 

MUR746000041