fi 

FEDERAL ELECTION COMMISSION 

. WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of ) 

) MUR 6391 /6471 

Commission on Hope, Growth, and Opportunity ) 

) 

SUPPLEMENTAL STATEMENT OF 

COMMISSIONER LEE E. GOODMAN 

% This matter was dismissed because there was no prospect of a successful administrative 

I enforcement action or federal court litigation against the Respondent. The Respondent was a 

defunct organization without agents or assets, which would have made further enforcement 

efforts ultimately futile. The only clear violations (reporting and disclosure) arose from activity 

in September and October 2010 that was time barred by the time the Commission voted on the 

matter in October 2015. The more debatable violation (political committee status) had not even 

progressed to a reason to believe finding, the statute of limitations would have run within four 

months, and it was practically impossible to take all required steps in the enforcement process 

within that period.' 

Some Commissioners nonetheless wanted the Commission to vote on the political 

committee theory in order to make academic findings. 1 did not believe the purpose of the 

enforcement process was to make purely symbolic gestures. However, now that the enforcement 

case is closed, 1 write separately to make an observation that concerned me throughout the 

Commission's consideration of the matter. The Office of General Counsel's (OGC) analysis for 

determining whether an organization is a "political committee" varied throughout this matter 

which indicates a fundamental problem with the Commission's approach to such cases. 

The Commission's responsibilities include determining whether two or more persons 

engaged in core First Amendment activities are "political committees" within the meaning of the 

Federal Election Campaign Act of 1971, as amended (the "Act"), and thus subject to a host of 

costly and burdensome prohibitions, limits, and reporting obligations.^ Political committee 

^ See Statement of Reasons of Vice Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter 

and Lee E. Goodman, MURs 6391/6471 (Commission on Hope, Growth, and Opportunity). 

^ See, e.g., 52 U.S.C. § 30101(4) ("political committee" defined); id. § 30102 (organizational and 

recordkeeping requirements); id. § 30103 (registration requirements); id. § 30104 (reporting requirements); id. 

§ 30116 (limitations on contributions and expenditures); id. § 30120 (disclaimers required on communications). 
Statement of Reasons of Commissioner Lee Goodman 

MUR 6391 & 6741 (Commission on Hope, Growth, and Opportunity) 

Page 2 of 4 

status means, among other things, that donors to the organization must have their names, 

addresses, occupations, and employers' names permanently disclosed for public consumption on 

the Commission's website. In its seminal case of Buckley v. Valeo, the Supreme Court correctly 

concluded that the Act's vague definition of "political committee" threatened to chill the 

protected speech of groups engaged in activities that were unrelated to those which the Act was 

designed to regulate.^ To save this part of the Act from xmconstitutionality, the Court required 

political committee status to be reserved only for those groups whose major purpose is the 

election or defeat of federal candidates—so that we could assume that the group's expenditures 

were what Congress intended to regulate and could regulate consistent with the First 

Amendment.^ 

For the same reason the Court was concerned that the definition of "political committee" 

cannot be vague, I am concerned that the Coirunission's application of the major purpose test 

caimot be inconsistent or incoherent. The public and the Conunission must share a common and 

clear conception of what activity triggers status as a political committee and the heavy burdens 

of regulation applicable to political committees. Unfortunately, in this matter, OGC presented 

the Commission with three different descriptions of the major purpose test that were neither 

tj consistent nor coherent. 

In its revised First General Counsel's Report, dated December 27,2013 ("Revised 

^ FGCR"),^ OGC acknowledged that the courts "[i]n large measure" have left "the contours of 

[defining] political committee status" to the Commission.^ The Revised FGCR advocated 

analyzing CHGO's major purpose by focusing on two categories of expenditures: first, 

expenditures on communications that contained express advocacy; second, expenditures on 

communications that "support or oppose a clearly identified candidate."' OGC deduced that 

non-express advocacy "ads evidenced that the organization's major purpose was federal 

campaign activity because they 'support,' 'oppose,' 'praise,' or 'criticize' the federal 

candidates."® Accordingly, OGC considered CHGO's payments for ads that lacked either 

express advocacy or its functional equivalent, but which OGC deemed had "supported" or 

"opposed" federal candidates, as indicating the requisite major purpose.' Significantly, however. 

^ See also, Van Hollen v. Federal Election Commission, No. 15-5016, slip op. at 24-26 (D.C. Cir. Jan. 21, 

2016) (acknowledging the chilling effects of FEC disclosure rules). . 

' See Buckley v. Valeo, 424 U.S. 1,79 (1976). 

® The OGC's initial First General Counsel's Report, dated August 31,2011, was withdrawn and replaced by 

a revised First General Counsel's Report, dated December 27,2013. 

^ Revised FGCR at 25; id. at 28 {BucMey "did not mandate a particular methodology" (quoting Real Truth 

About Abortion. Inc., v. FEC, 681 F.3d 544, 556 (4*^ Cir. 2012))). 

^ Id. at 33; id. at n. 21 (citing past MURs in which the Commission considered payments for communications 

that supported or opposed a candidate, but which fell short of express advocacy). 

' Id. at 35. 

' /rf. at 35-36, 38. 
Statement of Reasons of Commissioner Lee Goodman 

MUR 6391 & 6741 (Commission on Hope, Growth, and Opportunity) 

Page 3 of4 

it was the substantive content of CHGO's ads—^that they "supported" or "opposed" candidates— 

that made them count toward a major purpose calculation. The revised FGCR did not argue that 

all "electioneering communications" count toward major purpose merely because they refer to 

a candidate. Finally, OGC reached the conclusion that CHGO was a political committee 

considering CHGO's spending for only one calendar year, 2010." 

By contrast, OGC's Second General Counsel's Report ("Second GCR")" abandoned the 

"support" or "oppose" paradigm altogether and instead stated that all CHGO ads evidenced the 

major purpose of electing federal candidates because "each of CHGO's advertisements was 

either an express-advocacy independent expenditure or electioneering communication, both of 

which are indicative of major purpose."" Like the Revised FGCR, the Second GCR counted 

only CHGO's spending in calendar year 2010.'^ 

Finally, in its Third General Counsel's Report ("Third GCR")," OGC stated, as it had in 

^ the Second GCR, that to determine whether an organization satisfied the Supreme Court's major 

4 purpose test, the Commission should consider how much an organization spent on "federal 

3 campaign activity," an undefined term but one which included both independent expenditures 

g and all electioneering communications (without regard to their "support" or "oppose" content)." 

g But, in contrast to the Revised FGCR and the Second GCR, OGC stated that it would apply the 

major purpose test to the amount spent by CHGO in 2010 and 2011, that is, "during the entire 

4 duration of its existence."" 

In sum, OGC's major purpose test has varied in this matter. On the one hand, OGC 

would count all electioneering communications as indicative of the requisite major purpose, but 

on the other hand only those that "support," "oppose," "praise," or "criticize" federal candidates 

would coimt. Similarly, one year, two years, or the entire duration of an organization's existence 

are acceptable time periods for measuring an organization's major purpose. Fluctuations in these 

analytical criteria would not necessarily have been dispositive in this matter, but in other matters 

these discrepancies could be outcome-determinative. 

" An "electioneering communication" is an advertisement that references a federal candidate (but does not 

expressly advocate the election or defeat of a candidate) and is broadcast on television or radio within 60 days of a 

general election or 30 days of a primary election. See 11 C.F.R. § 100.29(a). 

" /d.at33. 

12 

13 

14 

IS 

16 

17 

The Second GGR was dated July 28,2015.' 

Second GCR at 10. 

Mat 35. 

The Third GCR was dated September 24, 2013. 

Third GCR at 18. 

Matn.62. 
Statement of Reasons of Commissioner Lee Goodman 

MUR 6391 & 6741 (Commission on Hope, Growth, and Opportunity) 

Page 4 of 4 

1 fi The Commission has decided to determine major purpose on a case-by-case basis, but 

the decisive criteria the Commission applies to different groups caimot keep changing within the 

Commission—^indeed, within the course of a single matter. Nor can its analysis turn on 

distinctions so subtle they are beyond detection by the public or, worse, so subjective they can be 

manipulated to reach desired results in a "heads I win, tails you lose" approach.The criteria 

must be consistent and clear. 

What this case underscores is that CHGO and groups like it, such as Crossroads GPS, 

Americans for Job Security, and American Action Network, among others, were never afforded 

clear notice as to the legal criteria that the Comrnission would apply to them in order to subject 

them to the significant regulatory burdens applicable to "political committees." This uncertainty 

is all the more disrupting because it impacts pure issue speech that Americans may make through 

such organizations within the electioneering communication window. Under one test proposed 

3 by OGC, pure issue speech ("call Senator Jones and ask him to support the education bill") 

4 would have triggered political committee status if it was broadcast within 60 days of an election, 

4 but would not under another test counting only ads that "supported" or "opposed" candidates. 

5? • Furthermore, altering the time period under scrutiny to exclude an organization's spending 

during non-election years, while emphasizing their spending in election years punctuated by 

0 numerous electioneering communication windows and occasions for independent expenditures, 

would further render the political committee analysis incoherent and unpredictable, if not 

arbitrary. 

For this reason I continue to support a clear, bright line test to count toward each group's 

major purpose: speech that unambiguously indicates an intent to influence elections, that is, 

express advocacy.^" And I believe a group's spending over its entire existence is the truest 

measure of the organization's major purpose, rather than an arbitrary or myopic snapshot in time. 

Only then can we reasonably assume that the group's main activities fall within the "core area" . 

the Supreme Court demarcated for regulation. 

b 

5 

Lee E. Goodman Date 

Commissioner 

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19 

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Political Committee Status, 12 Fed. Reg. 5595, 5601-5602 (Feb. 7,2007). 

Federal Election Commission v. Wis. Right to Life, Inc., 551 U.S. 449,471 (2007). 

See also Concurrinig Statement of Reasons of Commissioners Lee E. Goodman and Caroline C. Hunter, 

MUR 6795 (Citizens for Responsibility and Ethics in Washington) (concurring with unanimous Commission 

decision to dismiss allegation of political committee status based on properly limited scope of review); Concurring 

Statement of Reasons of Commissioner Lee E. Goodman, MUR 6660 (Americans Elect) (concmring with 

unanimous Commission decision to fuid no reason to believe respondent was a political committee because 

ostensible "federal campaign activities"— including $35 million to gain ballot access for, nominate, and elect 

unspecified independent candidates for federal office — did not count toward the major purpose of nominating or 

electing clearly identified feAexA candidates, a decision consistent with UnityOS v. FEC, 596 F.3d 861 (D.C. Cir. 

2010)).