FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

May 3, 2023

AO 2023-03 (Colorado Republican State Central Committee) 

Comment from Campaign Legal Center

Attached is AO 2023-03 (Colorado Republican State Central Committee) 

Comment from Campaign Legal Center. This matter will be discussed on 

the Open Meeting of May 4, 2023.

Attachment 
May 2, 2023

Lisa J. Stevenson, Esq.

Acting General Counsel

Federal Election Commission

1050 First St. NE

Washington, DC 20463

ao@fec.gov

Re: Advisory Opinion Request 2023-03 (Colorado Republican State 

Central Committee)

Dear Ms. Stevenson:

Campaign Legal Center (“CLC”) respectfully submits this comment on the Federal 

Election Commission’s (the “Commission”) draft advisory opinion regarding Advisory 

Opinion Request 2023-03 (Colorado Republican State Central Committee), which is 

designated as Agenda Document No. 23-09-A (Draft A) for the Commission’s May 4, 

2023, open meeting.

We urge the Commission to remove footnote 22 from the draft opinion. Footnote 22 

contravenes federal law by addressing hypothetical or conditional facts that are not 

presented in the request, and it would thus be highly irregular and inappropriate for 

the Commission to include that material in its final advisory opinion. 

Under the Federal Election Campaign Act of 1971 (“FECA”), the Commission is 

required to respond to the specific facts presented by a requester, not to hypothetical 

or conditional facts.1 Commission regulations, moreover, provide that an advisory 

opinion “shall set forth a specific transaction or activity that the requesting person 

plans to undertake or is presently undertaking and intends to undertake in the 

future” and specifically state that requests “presenting . . . or posing a hypothetical 

situation . . . do not qualify” as a valid request.2

1 FECA states that an advisory opinion requester must submit a request regarding “a specific 

transaction or activity,” and “the Commission shall render a written advisory opinion 

relating to such transaction or activity.” 52 U.S.C. § 30108(a)(1). 2 11 C.F.R. § 112.1(b).
2

In its request, the Colorado Republican State Central Committee (the “Committee”) 

asked whether a segregated account would be subject to FECA’s contribution limits 

and source prohibitions if: (1) the account were used solely to defray the costs of 

challenging a state law governing the process for nominating candidates to the 

general election ballot; (2) all solicitations for the fund were to make clear that the 

money would not be used for the purpose of influencing any federal election; (3) an 

independent governing board (that excludes federal candidates and officeholders) 

would manage the fund, including controlling the solicitations and disbursements; 

and (4) all leftover funds following the conclusion of the lawsuit would be refunded 

or donated to charity.3

The draft advisory opinion would answer the Committee’s question by stating that 

the proposed account would not be subject to FECA’s contribution restrictions 

because it would not be accepting “contributions” — i.e., funds provided “for the 

purpose of influencing” federal elections.4 But in footnote 22, the draft opinion offers 

additional guidance addressing the hypothetical factual scenario — distinct from 

what the requester proposes to do — in which the segregated account would not be 

governed by an independent board:

While the Committee’s creation of an independent governing board to 

manage the proposed legal fund would serve as an additional safeguard 

against the fund being used to receive contributions or make 

expenditures regulated by the Act, the establishment of such an 

independent board was not necessary to the Commission’s conclusion 

that donations to or payments by the legal fund would not constitute 

federal contributions or expenditures under the facts presented here.5

In other words, this footnote addresses different facts, and answers a different 

question, than what is presented in the request: would the Committee’s segregated 

fund be required to abide by FECA’s source restrictions and amount limitations if 

only safeguards 1, 2, and 4 were in place? That question is not what the request asks 

and is an alternative, hypothetical scenario, and by addressing it, the draft opinion 

contravenes the legal requirement that the Commission provide an advisory opinion 

on the “specific transaction or activity” described in the request.6

Regardless of whether footnote 22 is correct as a matter of substantive campaign 

finance law — which it probably is not — it represents a major procedural departure 

from the requirements of FECA and the Commission’s regulations. We are unaware 

of the Commission ever before using an advisory opinion to issue guidance on a

hypothetical, unasked question, and it should not start now. The Commission should

remove footnote 22 from its final advisory opinion.

3 Draft A at 3-4, Advisory Op. Request 2023-03 (Colorado Republican State Central 

Committee) (Apr. 27, 2023).

4 See id. at 5-9.

5 Id. at 8 n.22.

6 See 11 C.F.R. § 112.1(b).
3

Respectfully submitted,

___________________________ 

Adav Noti 

Erin Chlopak

Saurav Ghosh

Shanna (Reulbach) Ports 

Campaign Legal Center

1101 14th St. NW, Suite 400

Washington, DC 20005

/s/ Shanna (Reulbach) Ports