June 16, 2023

Federal Election Commission 

1050 First Street, NE

Washington, DC 20463

Re: Request for Advisory Opinion

Dear Commissioners:

Alamo PAC (“the Committee”), through the undersigned counsel, submits this request 

for an advisory opinion pursuant to 52 U.S.C. § 30108 of the Federal Election Campaign Act of 

1971, as amended (the “Act”). The Committee—a leadership PAC that maintains a hard-money 

“contribution account”—seeks to establish a separate “non-contribution account” with its own 

contribution limit. This account would be used exclusively for financing independent 

expenditure activities and would only solicit and receive contributions that comply with the 

Act’s limitations, prohibitions, and reporting requirements. The Committee requests that the 

Commission confirm the legality of this proposal, which is supported by Court and Commission 

precedent.

Question Presented

May the Committee establish a non-contribution account for making independent 

expenditures that is separate from the Committee’s hard-money contribution account and has its 

own contribution limit, provided the account is limited to soliciting and receiving contributions 

that are subject to the Act’s limitations, prohibitions, and reporting requirements?

Factual Background

The Committee is the leadership PAC of Senator Cornyn of Texas and first registered 

with the Commission in 2003.1 The Committee currently maintains a single account that raises 

funds that comply with the Act’s limitations, prohibitions, and reporting requirements and out of 

which the Committee inter alia makes contributions to other candidates and committees. This 

account will hereinafter be referred to as the “contribution account.”

The Committee proposes to create a second account—a “non-contribution account”—that 

would be subject to a separate contribution limit and used exclusively for financing independent 

expenditures that expressly advocate the election or defeat of candidates other than Senator 

Cornyn. As with the contribution account, all solicitations related to the non-contribution 

1 See FEC Form 1: Statement of Organization, Alamo PAC (Jun. 4, 2003), 

https://docquery.fec.gov/pdf/607/23038094607/23038094607.pdf. 

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account made by Senator Cornyn or any other Committee agent would be limited to asking for 

funds in amounts and from sources that comply with the Act. The non-contribution account 

would similarly only accept funds that met these same requirements. Finally, the Committee 

would put in place procedures and safeguards to ensure that the amounts in the contribution and 

non-contribution accounts would not be commingled, and that all independent expenditures 

financed out of the non-contribution account would not constitute coordinated communications, 

as that term is defined at 11 C.F.R. § 109.21.

Legal Background

The Act and Commission Regulations

The Act defines a “leadership PAC” as “a political committee that is directly or indirectly 

established, financed, maintained, or controlled [‘EFMC’d’] by” a federal candidate or 

officeholder “but which is not an authorized committee of the candidate or” officeholder.2 

Despite being sponsored by a candidate, a leadership PAC is still a type of nonconnected PAC.3

 

As a nonconnected PAC, a leadership PAC may receive up to $5,000 per donor per year and may 

contribute up $5,000 per candidate per election.4 However, a leadership PAC may not be used to 

support the campaign activities of its sponsoring candidate.

The Act places restrictions on the fundraising activities of federal candidates and entities 

EFMC’d by those candidates. Under § 30125(e)(1)(A) of the Act, a federal candidate and any 

entity EFMC’d by a candidate “shall not ... solicit, receive, direct, transfer, or spend funds in 

connection with an election for Federal office ... unless the funds are subject to the limitations, 

prohibitions, and reporting requirements of this Act.” Since a leadership PAC is, by definition, 

EFMC’d by a federal candidate, it is subject to the requirements described above.

Court Precedent

Court precedent confirms that nonconnected PACs may maintain different accounts with 

separate contribution limits to finance distinct types of activities. For instance, Carey v. FEC

involved a nonconnected PAC that sought to raise funds to (1) make direct contributions to 

federal candidates and (2) make independent expenditures in federal elections. Towards this 

end, the PAC “propose[d] to keep these two distinct pools of funds segregated by maintaining 

separate banking accounts” and brought a declaratory judgment action against the Commission 

enjoin it from enforcing the Act’s contribution limits against the PAC.5

 Rather than approving 

the proposal to create separate accounts for contributions and independent expenditures, 

2 52 U.S.C. § 30104(i)(8)(B); see also 11 C.F.R. § 100.5(e)(6).

3 See Types of Nonconnected PACs, Fed. Election Comm’n, https://www.fec.gov/help-candidates-andcommittees/registering-pac/types-nonconnectedpacs/#:~:text=A%20leadership%20PAC%20is%20defined,an%20authorized%20committee%20of%20a (describing 

different categories of nonconnected PACs, including leadership PACs).

4 52 U.S.C. § 30116(a); 11 C.F.R. §§ 110.1(d), 110.2(b)(1). 

5 791 F. Supp. 2d 121, 125 (D.D.C. 2011).

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respectively, the Commission’s Office of General Counsel took the position that the PAC should 

establish a second committee for independent expenditure activity.6 Id. The court rejected the 

Commission’s argument and instead granted the PAC’s motion for preliminary injunction.

7 

Shortly after issuing the injunction, the court issued a Stipulated Order and Consent 

Judgment in which the Commission agreed not to enforce the Act’s contribution limits against 

the PAC, provided it maintained separate accounts for its hard-money contribution activities and 

for its independent expenditures.8

Commission Precedent

In Advisory Opinion 2011-21 (Constitutional Conservatives Fund PAC), the Commission 

considered whether a leadership PAC may establish a separate non-contribution account for 

independent-expenditure activity. However, unlike the Committee here, the leadership PAC in 

Advisory Opinion 2011-21 sought to receive unlimited contributions from individuals, 

corporations, and labor organizations into the separate account. 

The Commission concluded the leadership PAC could not receive such funds into the 

separate account, reasoning that even after the Supreme Court’s decision in Citizens United v. 

FEC, 558 U.S. 310 (2010), the Act’s restrictions on federal candidate’s soliciting or receiving 

soft money remain in force. Therefore, since a leadership PAC is, by definition, EFMC’d by a 

federal candidate, it “must comply with section [30125(e)] of the Act, and the funds that the 

Committee receives in connection with an election for Federal office must be subject to the 

limitations, prohibitions, and reporting requirements of the Act.”9 Not considered or discussed in 

the advisory opinion was a scenario under which a leadership PAC establishes a separate noncontribution account that is limited to raising money that complies with the Act’s limits and 

prohibitions.

Analysis

Per the Carey decision, it is firmly established that a nonconnected PAC is entitled to 

have a non-contribution account separate from its contribution account. Since the Carey 

decision, so-called hybrid PACs have become common features of the federal election

landscape.10 As a species of nonconnected PAC, a leadership PAC should be able to establish a 

non-contribution account, as explained in greater detail below.

6 Id.

7 Id. at 135.

8 Carey v. FEC, Civ. No. 11-259-RMC (D.D.C. Aug. 19, 2011). 

9 Advisory Op. 2011-21 (Constitutional Conservatives Fund PAC) at 4. 

10 The Commission’s website lists more than 1,000 committees registered as hybrid PACs. Fed. Election 

Comm’n, Committees (Jun. 12, 2023), 

https://www.fec.gov/data/committees/?committee_type=V&committee_type=W. 

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* * *

Since shortly after Citizens United was handed down, federal candidates have been 

permitted to raise funds for independent expenditure-only political committees (“IEOPCs”), 

subject to the Act’s contribution limits and source prohibitions.

11 Furthermore, the Commission 

has previously determined that federal candidates enjoy the same right as other persons to engage 

in independent expenditure activity.

12 So clearly, federal candidate involvement in fundraising 

for independent expenditure activities does not run afoul of § 30125(e) of the Act, provided the 

funds are raised in amounts and from sources that comply with the Act.

It is worth mentioning that leadership PACs—as unauthorized, nonconnected 

committees—have interests and purposes that are distinct from the campaigns of the PACs’ 

sponsoring candidates. The Commission discussed this point in Advisory Opinion 2008-17 

(KITPAC), which examined whether a leadership PAC could make payments for certain 

expenses related to a book co-authored by a candidate. In approving the request, the 

Commission noted the leadership PAC’s representation “that its interest would exist even in the 

absence of the [the candidate’s] candidacy for reelection or his campaign, and even if the 

campaign did not share [the leadership PAC’s] interest.”13 Therefore, according to the 

Commission, the proposed payments were permissible “[b]ecause the book would advance the 

leadership PAC’s goals and the leadership PAC would pay for the book and the co-author’s 

expenses irrespective of the campaign.”14 Leadership PACs, thus, have their own particular 

objectives and agendas, which they may legitimately advance through independent expenditure

activity.

Equally important, the concept of committees associated with federal candidates or 

political parties having separate accounts subject to separate contribution limits is not a foreign 

one in campaign finance law. For instance, authorized committees of candidates may 

permissibly establish recount funds that have their own separate limits. The Commission 

approved this proposal in Advisory Opinion 2006-24 (NRSC, et al.) because donations to the 

recount fund would be subject to the Act’s limitations, prohibitions, and reporting requirements. 

National political party committees, which are subject to similar fundraising restrictions as 

candidates, may also establish recount funds subject to separate limits, per Advisory Opinion 

11 See Advisory Op. 2011-12 (Majority PAC) at 1 (concluding that “Federal officeholders and candidates ... 

may attend, speak at, and be featured guests at fundraisers for [] Committees at which unlimited individual, 

corporate, and labor organization contributions are solicited, so long as they restrict any solicitation they make to 

funds subject to the limitations, prohibitions and reporting requirements of the Act.”); see also Advisory Op. 2015-

09 (Senate Majority PAC) at 8–9. 

12 See Factual & Legal Analysis at 10 (Feb. 25, 2015), MUR 6405 (Friends of John McCain) (noting the 

Supreme Court’s holding in Citizens United that “‘independent expenditures ... do not give rise to corruption or the 

appearance of corruption,’ and thus cannot constitutionally be limited” before concluding that, post-Citizens United, 

“[i]t is unlikely that independent spending by authorized committees would be deemed more potentially corrupting 

than independent expenditures by individuals, political parties, or corporations, each of which has been found to 

have a constitutional right to make unlimited independent expenditures.”). 

13 Advisory Op. 2008-17 (KITPAC) at 4. 

14 Id.

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2009-04 (Franken).15 Thus, while § 30125(e)(1) of the Act restricts how much, and from whom, 

federal candidates and parties may solicit and raise funds, it does not necessarily preclude such 

candidates and parties from maintaining more than one account, provided that such accounts 

receive only contribution-limited and source-restricted funds.

Taken together, (1) Carey’s holding that nonconnected committees may establish both 

contribution and non-contribution accounts, (2) the principle that a federal candidate has a right 

to raise and spend funds to engage in independent expenditures, and (3) precedents permitting 

candidates and parties to establish separate accounts with separate limits lead to the conclusion 

that leadership PACs may lawfully set up non-contribution accounts for financing independent 

expenditures. This is consistent with the Commission’s reasoning in Advisory Opinion 2011-21. 

There, the Commission’s concern was not that a leadership PAC sought to create a second noncontribution account; rather, it was that the second account proposed to receive funds in amounts 

and from sources that did not comply with the Act’s contribution limits and source 

prohibitions.16 That was the animating reason for the Commission to deny the request made by 

the leadership PAC.

Here, no such concern arises because all funds raised for the non-contribution account 

would be fully compliant with the Act’s limitations, prohibitions, and reporting requirements. 

Senator Cornyn and Committee agents would not solicit any funds in excess of the $5,000 PAC 

contribution limit, nor would they ask for donations from corporations, labor organizations, or 

any other prohibited sources. In other words, the Act’s limits and prohibitions would be 

observed, and no unlimited money from individuals, corporations, or labor organizations would 

flow into an entity EFMC’d by Senator Cornyn. Therefore, the Committee’s proposed creation 

of a non-contribution account accords with the rationale underlying Advisory Opinion 2011-21.

It is important, though, to clarify certain language from Advisory Opinion 2011-21

regarding leadership PACs having second accounts. Near the end of the advisory opinion, there 

is a parenthetical description of Carey that says the case “affirm[s] the ‘two-account’ approach 

only for those political committees that are ‘wholly separate from federal candidates.’”17 To be 

correctly understood, this statement must be read in the proper context. In Carey (as well as

Advisory Opinion 2011-21), the non-contribution account under consideration sought to receive 

unlimited funds from individuals, corporations, and labor organizations. Under those facts, a

PAC must, of course, be separate from a candidate in order to receive such funds. 

15 Following the passage of the Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 

113-235, 128 Stat. 2772-73 (2014), the national party committees may also establish accounts, subject to enhanced 

contribution limits, with respect to presidential nomination conventions, election recounts and other legal 

proceedings, and headquarters buildings.

16 See Advisory Op. 2011-21 at 2 (“[T]he Committee may neither receive unlimited contributions from 

individuals nor receive any contributions from corporations or labor organizations for the purpose of financing 

independent expenditures because section [30125(e)(1)(A)] prohibits the Committee from doing so.”).

17 Id. at 4. 

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That is not the case, however, when a PAC’s non-contribution account would only accept 

funds subject to the Act’s contribution limits and source prohibitions. In such instances, the

PAC need not be “wholly separate” from a candidate because the requirements in § 

30125(e)(1)(A) are being met. Thus, neither Carey nor Advisory Opinion 2011-21 can be 

reasonably read to foreclose the two-account approach where, as here, the non-contribution 

account of a leadership PAC would only receive funds that comply with the Act’s limitations, 

prohibitions, and reporting requirements. These two precedents—when read together—bear on 

the question of what (if any) funding restrictions may be placed on the non-contribution account

of a nonconnected PAC, not whether such a non-contribution account can be established. The 

latter question is answered in Carey.

* * *

The Committee’s proposal to create a separate non-contribution account also does not 

raise corruption concerns for either the candidates receiving contributions from the Committee or 

the Committee’s sponsoring candidate. Because the Committee’s non-contribution account

would be strictly segregated from its contribution account, the non-contribution account would 

not be a vehicle for funneling excessive contributions to other candidates. 

Neither would approving the Committee’s request increase corruption risks for the 

Committee’s sponsoring candidate. As noted earlier, none of the funds received into either the 

contribution or non-contribution accounts could be used to further the sponsoring candidate’s 

own election. And any corruption-related concerns regarding a leadership PAC establishing a 

non-contribution account are mitigated by the fact that such account would abide by the Act’s 

limitations, prohibitions, and reporting requirements.

In sum, the Committee is a leadership PAC, which is a type of nonconnected PAC that is 

neither affiliated with, nor authorized by, Senator Cornyn. Court precedent has established that 

nonconnected PACs may have non-contribution accounts separate from their contribution 

accounts. Therefore, leadership PACs should be able to have non-contribution accounts with 

separate limits, so long as such accounts only receive funds that comply with the Act’s 

limitations, prohibitions, and reporting requirements. 

* * *

In the alternative, if the Commission does not approve the proposed course of action 

described above, the Committee asks whether it may establish a non-contribution account that is

administered and overseen by a special committee whose members are appointed without any 

involvement of, and whose decision-making is not reviewed or approved by, Senator Cornyn. 

This proposal appears to be consistent with Advisory Opinion 2021-06 (Kelly), where the 

Commission considered whether a state party committee whose chair was a Member of Congress 

could, consistent with § 30125(e)(1) of the Act, continue to raise funds into its non-federal 

account in amounts and from sources that were consistent with state law but prohibited by the 

Act. The Commission concluded that the state party’s non-federal account could continue to 

raise such funds, provided “the non-federal account is administered by a special committee 

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without the review or approval of [the Member of Congress] and [the Member] has no role in the 

appointment of any member of the special committee.”18 Under those circumstances, the 

Commission determined that “the non-federal account is not an entity directly or indirectly 

established, financed, maintained or controlled by, or acting on behalf of, [the Member].”19

Advisory 2021-06, thus, establishes the precedent that an entity controlled by a federal 

candidate may nevertheless have an account that is considered not to have been EFMC’d by that 

candidate, so long as the conditions described above are met. That would support the alternative 

proposed by the Committee. Admittedly, the advisory opinion states that “[t]his advisory 

opinion does not address and is not applicable to the activities of other types of committees or 

entities, including, but not limited to, federal hybrid political action committees.”20 By 

specifically mentioning hybrid PACs, though, this language seems primarily designed to address 

candidate involvement with entities that raise non-federal funds. As made clear above, the noncontribution account that the Committee seeks to create would only raise funds that comply with 

the Act’s limitations, prohibitions, and reporting requirements. Therefore, in the alternative, the 

Committee asks the Commission to confirm that the Committee may establish a non-contribution 

account that would be administered and overseen by a special committee, as described above. 

Conclusion

For the reasons set forth above, we ask that the Committee confirm that a leadership PAC 

may establish a non-contribution account with its own contribution limit as long as the account 

only receives contributions that are subject to the Act’s limitations, prohibitions, and reporting 

requirements. Just as a nonconnected PAC without an association to a federal candidate may 

accept soft money into a Carey account, a leadership PAC should be able to accept hard money 

into a non-contribution account—a “Cornyn Account,” if you will.

Please feel free to contact us if you have any questions regarding this request.

18 Advisory Op. 2021-06 (Kelly) at 7. 

19 Id.

20 Id.

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Sincerely,

Jason Torchinsky

Jessica Furst Johnson

Matthew Petersen

Counsel to Alamo PAC

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