1 

January 12, 2024 

BY ELECTRONIC MAIL DELIVERY 

Office of General Counsel 

Attn: Lisa J. Stevenson, Esq. 

Acting General Counsel 

Federal Election Commission 

1050 First Street NE 

Washington, DC 20463 

Re: Advisory Opinion Request 

Dear Ms. Stevenson: 

Pursuant to 52 U.S.C. § 30108, we seek an advisory opinion on behalf of Texas Majority PAC 

(“TMP”) regarding the applicability of the Federal Election Campaign Act of 1971 (the “Act”) 

and Federal Election Commission (the “Commission”) regulations to its proposed paid canvassing 

operations. 

We thank the Commission for its thoughtfulness and time in responding to our initial request. To 

assist the Commission and regulated community, this new request breaks down the broader 

question into its component parts. The request first asks whether the two communications 

distributed via the paid canvassing operation are “public communications” (under 11 C.F.R. § 

100.26) and/or “coordinated communications” (under 11 C.F.R. § 109.21). It argues that they are 

not because TMP does not rely on an intermediary to distribute them. The request then asks 

whether the production and distribution costs associated with these two communications are 

“coordinated expenditures” under 11 C.F.R. § 109.20. It argues that they are not because the costs 

are directly attributable to specific non-public communications and are not easily repurposed for a 

a non-exempt or non-communicative use. Finally, the request asks whether TMP may provide the 

data that results from the paid canvass to candidates and party committees for free or below the 

normal and usual charge. It concludes that doing so would result in an in-kind contribution. 

I. Background 

TMP is a nonfederal political committee registered as a general-purpose committee (“GPAC”) 

with the Texas Ethics Commission.1

 It was not established by a candidate (federal, state, or local), 

1

 Tex. Ethics Comm’n, Search Campaign Finance Reports, https://jasper.prd.tecprd.ethicsefile.com/jasperserverpro/flow.html?_flowId=viewReportFlow&standAlone=true&_flowId=viewReportFlow&ParentFolderUri/public/pu

blicData&reportUnit=/public/publicData/datasource/CFS/By_Filer_Name&decorate=no&SuperName=texas%20ma

jority&FilerType=ANY&FirstName=&CorrFlag=N&tec250 Massachusetts Ave NW, Suite 400 | Washington, DC 20001

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party committee, or their agents. 

Texas law permits GPACs to accept unlimited contributions but prohibits the use of corporate or 

labor treasury funds to make contributions to nonfederal candidates, party committees, or political 

committees other than committees that only undertake independent expenditure activity.2

Corporate and labor treasury funds may only be used for establishment or administration costs, 

such as office space and equipment, and independent expenditures.3 Accordingly, TMP maintains 

corporate and labor treasury funds in a separate account. TMP would not – because, under Texas 

law, it may not – use corporate or labor treasury funds to pay for the paid canvassing expenses 

described in this request. 

TMP will retain vendors to carry out the paid canvassing programs.4 Managed by TMP’s paid 

staff, the vendors will design and produce canvassing literature (the “Canvassing Literature”) and 

hire individuals to distribute it. These individuals will be instructed to go to the homes of 

preselected voters and trained to read a script (the “Script”) and record the voters’ answers to 

certain questions. TMP’s paid staff will select the voters whose homes will be visited by the 

canvassers. Neither the staff nor the vendors will have a contractual or other business relationship 

with the selected voters. Nor will the voters be customers of these vendors or canvassers. The 

canvassers will approach voters’ doors in the way that any volunteer canvasser might do so for a 

political or religious cause. While TMP will not ask residents to opt-in prior to the canvassers’ 

arrival, TMP will follow applicable law which generally permits residents to refuse to allow the 

canvasser to deliver the message by putting up a “no trespass” sign or asking the canvasser to leave 

their premises and not leave any literature.5

 The voters, therefore, may effectively opt-out of 

receiving the Scripts and Canvassing Literature. 

The expenditures associated with the Paid Canvass include: 

 Payments to one or more vendor(s) to design and produce the Canvassing Literature and 

Script (the “Production Costs”), including the actual costs of design and production, and 

a commercially reasonable profit for the vendor(s). 

 Payments to one or more vendor(s) to recruit, hire, train, and manage canvassers, (the 

“Distribution Costs”), including payments to compensate the canvassers for their time, 

actual costs to the vendor to recruit, hire, train, and manage the canvassers, and a 

commercially reasonable profit for the vendor(s). 

 Payments to one or more vendor(s) to store (on a data platform) and analyze the voters’ 

answers to the questions posed by paid canvassers (“Data Costs”), including the actual 

costs of maintaining the platform and analyzing the data and a commercially reasonable 

pp=u=PUBLIC2&7CexpireTime=Tue%20Jul%2025%202023%2006:23:41%20GMT0400%20(Eastern%20Daylight%20Time) (accessed Jan. 10, 2024). 2

 Tex. Admin. Code, tit. 1 § 24.19; Tex. Elec. Code Ann. § 252.003(a)(4). 

3

 Tex. Admin. Code, tit. 1 § 24.18(b); Tex. Elec. Code Ann. § 253.100(a). 

4

 TMP anticipates that the Scripts and Canvassing Literature will be disseminated to more than 500 homes within a 

30-day period. 

5 See Tex. Penal Code Ann. § 30.05(a) (“A person commits an offense if the person enters or remains on or in 

property of another ... without effective consent and the person: (1) had notice that the entry was forbidden; or 

(2) received notice to depart but failed to do so.”).

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profit for the vendor(s). 

TMP’s major purpose is to elect Democrats to state and local office in Texas. TMP’s major purpose 

does not include “[f]ederal campaign activity (i.e., the nomination or election of a [f]ederal 

candidate).”6 Therefore, it is not a “political committee” under the Act and is not registered as such 

with the Commission. TMP anticipates that federal candidates, nonfederal candidates, and party 

committees will work together in Texas as they do in other states. TMP also plans to coordinate 

its activities with candidates and party committees in Texas to the extent permitted by law. 

Accordingly, TMP anticipates that it will come into possession of nonpublic plans, projects, 

activities, or needs of candidates (federal and nonfederal) and/or political parties within the 

meaning of 11 C.F.R. § 109.21(d)(3). 

TMP wishes to refer to federal candidates and political parties in the Canvassing Literature and 

Scripts. It plans to do so within the pre-election timeframes described in 11 C.F.R. § 109.21(c)(4). 

TMP also plans that some Canvassing Literature and Scripts will include express advocacy or its 

functional equivalent with respect to federal candidates. Except for the Data Costs, TMP’s paid 

canvasses will not have non-communicative components; for example, unlike some grassroots 

efforts, TMP’s paid canvasses will not include offers to drive voters to polling places. Further, 

Canvassing Literature and Scripts will not disseminate, distribute, or republish federal candidate 

campaign materials under 11 C.F.R. § 109.23. 

TMP will not permit candidates (federal, state, or local), party committees, or their agents to 

finance, maintain, or control TMP. Specifically, candidates, party committees, and their agents 

will not be permitted to: 

 direct or participate in the governance through provisions of constitutions, bylaws, 

contracts, or other rules, or through formal or informal practices or procedures; 

 hire, appoint, demote, or otherwise control the officers, or other decision-making 

employees or members of TMP; 

 have common or overlapping officers or employees with TMP; or 

 make contributions, monetary or in-kind, in significant amounts or on an ongoing basis to 

TMP. 

Candidates (federal, state, or local), party committees, and their agents will not have any spending 

authority within TMP. They will not have any authority to approve TMP budgets or TMP 

expenditures, nor will they have authority to sign checks or initiate wires. Nor will federal 

candidates, party committees, or their agents have final approval authority with respect to any 

Canvassing Literature, Script, or other aspect of the paid canvassing program. TMP itself will 

exercise full direction and control over all such programs. In short, even though TMP plans to 

consult with federal candidates, party committees, and their agents on these paid canvassing 

programs, “[b]y themselves, such consultations do not constitute spending” by federal candidates, 

6

 Political Committee Status, 72 Fed. Reg. 5595, 5597 (Feb. 7, 2007). 

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party committees, or their agents.7

II. Questions Presented 

1. Are the Canvassing Literature or Script “public communications” under 11 C.F.R. § 

109.26? 

2. Are the Canvassing Literature or Script “coordinated communications” under 11 C.F.R. § 

109.21? 

3. Are the Production Costs or Distribution Costs “coordinated expenditures” under 11 C.F.R. 

§ 109.20? 

4. May TMP provide any of the data that arises from the paid canvasses to a federal candidate 

or party committee at no charge or less than its fair market value? 

III. Legal Analysis 

1. Are the Canvassing Literature or Script “public communications” under 11 C.F.R. § 

109.26? 

A “public communication” is “a communication by means of any broadcast, cable, or satellite 

communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone 

bank to the general public, or any other form of general public political advertising.”8

 Neither the 

Canvassing Literature nor the Script is being distributed “by means of” any broadcast, cable, or 

satellite communication. Nor is the Canvassing Literature or Script being distributed “by means 

of” a newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank. 

“Because Congress did not include door-to-door canvassing in the list of media enumerated in the 

statutory definition of ‘public communication,’ door-to-door canvassing could qualify as a ‘public 

communication’ only if it is a form of advertising and therefore falls within the catch-all category 

of ‘general public political advertising.’”9

“The term ‘general public political advertising’ is not defined by the Act or Commission 

regulations.”10 In its Explanation and Justification for the 2006 Internet Communication 

rulemaking (hereinafter, “the 2006 E&J”), however, “the Commission clarified the types of 

communications that qualify as ‘general public political advertising.’”11 The Commission noted 

that “[t]he forms of mass communication enumerated in the definition of ‘public communication’ 

... each lends itself to distribution of content through an entity ordinarily owned or controlled by 

another person.”12 For “an individual to communicate with the public using any of the forms of 

7

 FEC Adv. Op. 2005-02 (Corzine) at 8. 

8

 11 C.F.R.§ 100.26. 

9

 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) (quoting Internet Communications, 71 Fed. 

Reg. 18589, 18594 (Apr. 12, 2006)) (internal quotations omitted). 

10 Statement of Comm’rs Shana M. Broussard & Ellen L. Weintraub Regarding Adv. Op. 2022-20 (Maggie for NH), 

FEC Adv. Op. 2022-20 (Maggie for NH) at 1 (Nov. 4, 2022). 

11 Id. 12 Internet Communications, 71 Fed. Reg. at 18594. 

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media listed by Congress, he or she must ordinarily pay an intermediary (generally a facility 

owner) for access to the public through that form of media each time he or she wishes to make a 

communication.”13 The Commission contrasted these types of communications – those requiring 

payment to an intermediary – from those communications that are “analogous to a communication 

made from a soapbox in a public square” where no intermediary is required to disseminate the 

communication.14 This latter category of communications were not “general public political 

advertising” and therefore not “public communications.” 

In Advisory Opinion 2022-20, the Commission opined that short-code text messages – a category 

of text messages that can only be sent to users who affirmatively opt-in to receive messages from 

the sender – are not “public communications.” Applying the analysis set forth in the 2006 E&J, 

the Commission reasoned that disseminating public communications “typically require[s] the 

person making the communication to pay to use a third party’s platform to gain access to the third 

party’s audience” and such communications are therefore sent “through a medium controlled, and 

to an audience established, by a third party.”15 The opinion, in other words, established a threepart test for a communication to qualify as “general public political advertising”: it must (1) require 

payment; (2) make use of a medium controlled by a third party intermediary; and (3) be received 

by an audience established by the third party intermediary “many of whom may have little or no 

interest in receiving the committee’s communications and do so only incidentally while reading 

the news” or “because they wish to use the third party’s website.”16 

The Commission’s opinion received four votes. The two dissenting commissioners also cited 

favorably to the 2006 E&J. But rather than adopt the majority’s three-part test, the dissenters 

concluded that “[t]hese types of communications share two key characteristics. First, they are all 

communications for which a payment is required ... Second, all general public political 

advertising communications rely on an intermediary to disseminate the message.”17 The dissenters 

parted ways with the majority only on the third prong of the majority’s proposed test: the 

requirement that the audience be established by the intermediary.18 Notably, the dissenters agreed 

that a public communication encompasses only those communications that rely on an intermediary 

to disseminate the message. 

Neither the Canvassing Literature nor the Script is a “public communication” under the majority 

test or minority test because TMP does not rely on an intermediary to disseminate the 

communications. The term “intermediary” means “an intermediate agent or agency; a go-between 

or mediator.”19 Vocabulary.com elaborates that “[a]n intermediary is someone who acts as a gobetween or a mediator between two other people”20 and that: 

13 Id. 14 Id. 15 FEC Adv. Op. 2022-20 (Maggie for NH) at 4-5 (Oct. 4, 2022). 

16 Id. 17 Statement of Comm’rs Shana M. Broussard & Ellen L. Weintraub Regarding Adv. Op. 2022-20 at 1-2, supra n.9 

(emphasis added). 

18 Id. at 4 (“Our colleagues do not address this apparent inconsistency between their claim that ‘public 

communication’ can only be one in which the speaker pays to access a third party’s audience and the plain language 

of the statute which includes all mass mailings with no limitation based on how the audience was assembled.”). 19 Dictionary.com, “Intermediary,” https://www.dictionary.com/browse/intermediary (accessed Jan. 10, 2024). 20 Vocabulary.com, “Intermediary,” https://www.vocabulary.com/dictionary/intermediary. (accessed Jan. 10, 2024). 

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The word intermediary comes from the Latin intermedius, which is also the root word for 

intermediate. Inter- means between, and medius means the middle — intermediary

retains that sense of being in the middle. Intermediaries are used to negotiate between 

two countries who are at odds, between a company and a client over a contract, between 

two bickering children, or between a boss and an employee in salary negotiations.21

An intermediary, in other words, does not include someone who is acting as the agent of one party 

(in this case, TMP) but not the other party (in this case, the voters).22 The vendors that TMP plans 

to hire and the individual canvassers hired by those vendors are agents of TMP for purposes of 11 

C.F.R. § 109.3. Conversely, the individual canvassers have no contractual, business, or other 

relationship with the voters being canvassed. They have no more right to communicate with the 

voters than a campaign’s volunteers; voters may ask paid canvassers to leave their property or not 

leave behind the literature just like with volunteers. Hiring paid canvassers to go door-to-door, 

therefore, is no different than hiring a paid speaker to stand atop the proverbial “soapbox in a 

public square.”23 In both circumstances, there is no intermediary. And therefore, in both 

circumstances, there is no public communication. 

This is why a bipartisan group of FEC commissioners agreed in 2007 that paid canvassing 

communications are not “public communications.”24 And why three commissioners found in 2006 

that handbills are not “public communications.”25 And why three commissioners observed in 2016 

the “[t]he Commission’s longstanding position . . . is that door to-door canvassing is not a ‘public 

communication’ under 11 C.F.R. § 100.26, and therefore does not constitute a ‘coordinated 

communication’ under 11 C.F.R. § 109.21.”26 And potentially why the Commission failed to 

approve a recommendation by the Audit Division and OGC to find that two state parties had made 

excessive contributions through their canvassing work.27 The absence of an intermediary simply 

forecloses the possibility that the Paid Canvass can qualify as a “public communication” under the 

21 Id. 22 See 11 C.F.R. § 110.6(b)(2)(i)(A), (D)-(E) (defining “conduit or intermediary” to exclude “[a]n individual who is 

an employee or a full-time volunteer working for the candidate’s authorized committee,” “[a] commercial 

fundraising firm retained by the candidate or the candidate’s authorized committee to assist in fundraising,” and 

“[a]n individual who is expressly authorized by the candidate or the candidate’s authorized committee to engage in 

fundraising ....”). 

23 Internet Communications, 71 Fed. Reg. at 18594. 24 See 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). 

25 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). 

26 See Concurring Statement of Vice Chair Caroline C. Hunter & Comm’rs Lee E. Goodman & Matthew S. Petersen, 

FEC Adv. Op. 2016-21 (Great America PAC), supra n.8. 27 Final Audit Rep. of the Comm, Ky. State Democratic Cent. Exec. Comm. (Oct. 13, 2022); Final Audit Rep. of the 

Comm, Democratic Party of Arkansas (Oct. 18, 2022). 

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Commission’s regulation and precedents.28 

2. Are the Canvassing Literature or Script “coordinated communications” under 11 

C.F.R. § 109.21? 

To qualify as a coordinated communication, a communication must satisfy a three-pronged test: 

the communication must (1) be paid for by a person other than the campaign or party committee 

to which it would be a contribution (the “payment prong”); (2) satisfy one of the content standards 

(the “content prong”);29 and (3) be preceded by certain interactions between the sponsor of the 

communication and the federal candidate, authorized committee or political party committee (the 

“conduct prong”).30 

In a 2011 advisory opinion, the Commission opined that a sponsor’s “website and email 

communications to the general public soliciting contributions to certain Federal candidates will 

not result in in-kind contributions to those Federal candidates, because the communications will 

not be ‘coordinated communications’ under the Act and Commission regulations.”31 In the 2022 

advisory opinion referenced above, the Commission once again confirmed that communications 

that “do not satisfy the content prong of the coordinated communications test ... are not in-kind 

contributions.”32 And in a recent enforcement action, the Office of General Counsel opined that 

“[b]ecause [a nonauthorized committee’s] emails soliciting contributions to [a federal candidate] 

do not satisfy the content prong, they cannot be coordinated communications under 11 C.F.R. § 

109.21. In turn, because [the nonauthorized committee’s] email solicitations are not coordinated 

communications, their costs are not treated as in-kind contributions.”33

Both the Canvassing Literature and the Script fail the content prong. “To meet the content prong, 

a communication must be either a ‘public communication’ ... or an ‘electioneering 

communication’ ....”34 As set forth above, neither the Canvassing Literature nor the Script is an 

electioneering communication or a public communication. Because these communications fail the 

28 In a few instances since adoption of the coordinated communication regulation in 2002, the Office of General 

Counsel has published analysis suggesting that literature distributed via a paid canvasses was a public 

communication. But in these cases, the Office of General Counsel’s analysis played no role in the ultimate 

disposition of the matter. See Factual & Legal Analysis, MUR 6924 (Andrew Winer, et al.) (Aug. 21, 2017) 

(dismissing a complaint alleging that a nonfederal committee’s mailers and doorhangers were impermissibly 

coordinated with a federal candidate committee after finding that the conduct prong was not met; therefore, whether 

doorhangers met the content prong by constituting public communications was immaterial to the analysis); Factual 

& Legal Analysis, MUR 6778 (David Hale for Congress) (Nov. 5, 2015) (exercising prosecutorial discretion to 

dismiss complaint alleging that a disclaimer printed on a doorhanger did not comply with the Commission’s 

technical requirements for disclaimers); see also Final Audit Rep. of the Comm’n at 19-20, Ky. State Democratic 

Cent. Exec. Comm. (LRA 1107) (Dec. 14, 2021) (noting that the Commission did not approve the Office of the 

General Counsel’s view that doorhangers were public communications and that the Office of the General Counsel 

had initially concluded that doorhangers were not public communications in its legal analysis dated December 14, 

2021). In none of these cases did the Office of General Counsel attempt to square its analysis with the Commission’s 

conclusion in the 2006 E&J that a “public communication” requires dissemination through an intermediary. 29 11 C.F.R. § 109.21(c). 

30 Id. § 109.21(a). 31 FEC Adv. Op. 2011-14 (Utah Bankers Association) at 4 n. 3 (Sept. 22, 2011).

32 FEC Adv. Op. 2022-20 (Maggie for NH) at 5, supra n.14. 33 First Gen. Counsel’s Rep. at 17, MUR 7943 (Common Good Virginia, et. al.) (March 8, 2023). 34 FEC Adv. Op. 2011-14 at 5. 

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content prong, they are not coordinated communications. 

3. Are the Production Costs or Distribution Costs “coordinated expenditures” under § 

109.20? 

Communication expenditures fall into two general categories: production costs and distribution 

costs. The cost of a television or radio ad includes the amounts paid to the media consultant to 

create and produce the ad; it also includes the amounts paid to television stations to place it and to 

the buyer to manage the distribution process. The cost of a mailer includes the amounts paid to the 

mail vendor to create and produce the mail piece; it also includes the amounts paid to the U.S. 

Postal Service to deliver it and to the mail vendor for managing that distribution process. Every 

medium of communication – whether public communication or non-public communication – 

follows this pattern. 

The Commission’s electioneering communications regulation mirrors this two-part cost construct, 

defining the “[d]irect costs of producing or airing electioneering communications” to include “(i) 

[c]osts charged by a vendor, such as studio rental time, staff salaries, costs of video or audio 

recording media, and talent” (production costs) and “[t]he cost of airtime on broadcast, cable or 

satellite radio and television stations, studio time, material costs, and the charges for a broker to 

purchase the airtime” (distribution costs).35 The Commission’s Form 5 and Form 9 instructions 

likewise instruct the regulated community to report production costs and distribution costs.36 

a. The Commissions has generally applied section 109.21 – not section 109.20 – to 

assess whether a communication’s production and distribution costs are 

“contributions.”

For twenty years, the Commission has drawn a clear line between the communications it regulates 

and the communications it does not. Section 109.20, the Commission explained in 2003, 

“addresses expenditures that are not made for communications but that are coordinated with a 

candidate, authorized committee, or political party committee.” As then-Commissioner Lenhard 

correctly observed in a 2007 matter involving a paid canvass: “if 109.20 were read to apply to 

communications it would render meaningless the Commission’s coordinated communications and 

party coordinated communications at 11 CFR 109.21 and 109.37.”37 Section 109.21, in turn, 

carefully distinguishes between electoral speech and nonelectoral speech, eliminating the 

uncertainty that plagued the regulated community during the Christian Coalition era and replacing 

it with a relatively clear set of rules. The regulatory framework has rested on two pillars: (1)

distinguishing between public communications and other communications; and (2) defining 

35 11 C.F.R. § 104.20(a)(2)(i) – (ii). 

36 See FEC, Instructions For Preparing FEC Form 5, available at https://www.fec.gov/resources/cmscontent/documents/policy-guidance/fecfrm5i.pdf (requiring disclosure of “purchases of radio/television 

broadcast/cable time, print advertisements and related production costs.”); FEC, Instructions For Preparing FEC 

Form 9, available at https://www.fec.gov/resources/cms-content/documents/fecfrm9i.pdf (requiring speakers to 

disclose “(1) costs charged by a vendor (e.g., studio rental time, staff salaries, costs of video or audio recording 

media and talent) or (2) costs of airtime on broadcast, cable and satellite radio and television stations, studio time, 

material costs and the charges for a broker to purchase the airtime.”). 37 Statement of Reasons of Commissioner Robert D. Lenhard at 4 n.5, MUR 5564 (Alaska Democratic Party, et al.) 

(Dec. 31, 2007). 

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communication expenditures with sufficient breadth to allow speakers to produce effective 

communications and efficiently distribute them to voters.

Applying this framework, the Office of General Counsel (“OGC”) has consistently opined that a 

communication qualifies as an in-kind contribution only if it meets the three-prong test set forth 

in section 109.21 and that section 109.20 does not apply to communications.38 

 In 2009, the OGC expressly stated that section 109.20 “applies only to those coordinated 

expenditures which are not made for communications” and “[a]ccordingly . . . is 

inapplicable” to a communication.39 The Commission dismissed the complaint.40

 In 2016, the OGC considered a complaint alleging that Facebook posts constituted in-kind 

contributions to a campaign committee. The OGC rejected the application of 11 C.F.R. § 

109.20(b): “The Complaint alleges that the Facebook communications were coordinated 

pursuant to 11 C.F.R § 109.20(b). As noted, that regulation applies to expenditures that are 

not communications.”41 The Commission dismissed the complaint.42

 In 2019, the OGC wrote that “[u]nder Commission regulations, expenditures for 

‘coordinated communications’ are addressed under a three-prong test at 11 C.F.R. § 109.21 

and other coordinated expenditures are addressed under 11 C.F.R. § 109.20(b). The 

Commission has explained that section 109.20(b) applies to ‘expenditures that are not made 

for communications but that are coordinated with a candidate, authorized committee, or 

political party committee.’”43 The Commission dismissed the complaint.44

 In 2020, in a matter also concerning Facebook posts, the OGC concluded that section 

109.20 applied only to an expenditure “for something other than a communication.”45 The 

Commission dismissed the complaint.46

 In 2021, the OGC assessed whether Twitter had made in-kind contributions to a candidate 

committee, both in the form of expenditures for communications and expenditures that 

were unrelated to communications. The OGC exclusively applied section 109.21 to the 

communications and section 109.20 to the expenditures that were not communications, 

opining that “a communication is considered coordinated and thus treated as an in-kind 

38 See First Gen. Counsel’s Rpt., MUR 6477 (Right Turn USA, et al.) (Dec. 27, 2011); First Gen. Counsel’s Rpt., 

MUR 6502 (Nebraska Democratic Party, et al.) (May 17, 2012); First Gen. Counsel’s Rpt., MUR 6522 (Lisa 

Wilson-Foley for Congress, et al.) (Feb. 5, 2013); First Gen. Counsel’s Rpt., MUR 6657 (Akin for Senate, et al.) 

(May 6, 2013); First Gen. Counsel’s Rpt., MUR 6722 (House Majority PAC, et al.) (Aug. 6, 2013); First Gen. 

Counsel’s Rpt., MUR 7268 (Russian Federation, et al.) (Feb. 23, 2021). 39 First Gen. Counsel’s Rpt. at 13, MUR 6037 (Oregon Democratic Party, et al.) (Sept. 17, 2009). 40 Notification to Democratic Party of Oregon & Laura Calvo, MUR 6037 (Oregon Democratic Party, et al.) (Nov. 

24, 2009). 

41 First Gen. Counsel’s Rpt. at 12 n.38, MUR 7080 (Public Integrity Alliance) (Dec. 15, 2016). 42 Notification to Public Integrity Alliance, MUR 7080 (Public Integrity Alliance) (Oct. 30, 2017). 43 First Gen. Counsel’s Rpt. at 6, MUR 7521 (Swing Left, et al.) (Oct. 30, 2019); see also First Gen. Counsel’s Rpt. 

at 6, MUR 7654 (America First Action, et al.) (Aug. 7, 2020). 44 Notification to Swing Left, MUR 7521 (Swing Left, et al.) (Oct. 6, 2021). 45 First Gen. Counsel’s Rpt. at 9, MUR 7641 (Facebook, Inc.) (Feb. 14, 2020) 46 Notification with Factual & Legal Analysis MUR 7641 (Facebook, Inc.) (Feb. 4, 2022). 

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contribution when it is: (1) paid for by a third-party; (2) satisfies one of five content 

standards; and (3) satisfies one of five conduct standards [under section 109.21(a)],” 

whereas section 109.20 applied to any payments that “were not made for 

communications.”47 The Commission dismissed the complaint.48

 In another 2021 matter, the OGC reiterated that “section 109.20(b) applies to ‘expenditures 

that are not made for communications but that are coordinated with a candidate, authorized 

committee, or political party committee.’”49 The Commission dismissed the complaint.50

 In another 2021 matter, the OGC applied 11 C.F.R. § 109.21 to assess whether certain 

advertisements constituted an in-kind contribution, noting that “[e]xpenditures for 

‘coordinated communications’ are addressed under a three-prong test at 11 C.F.R. § 109.21 

and other coordinated expenditures are addressed under 11 C.F.R. § 109.20(b). The 

Commission has explained that section 109.20(b) applies to ‘expenditures that are not made 

for communications but that are coordinated with a candidate, authorized committee, or 

political party committee.’”51 The Commission dismissed the allegation.52

 And earlier this year, OGC explained that “[w]e have analyzed this web posting under 11 

C.F.R. § 109.21 (concerning coordinated communications), rather than 11 C.F.R. § 

109.20(b) (concerning coordinated expenditures generally) because this web posting is a 

communication of the type contemplated by § 109.21.”53 The Commission dismissed the 

complaint.54

The Commission has taken the same approach in advisory opinions, noting in 2011 that section 

109.20(b) governed only those expenditures not made for communications.55

b. The Production Costs are sufficiently direct inputs or components of the 

canvassing communications to not qualify as “coordinated expenditures” under 

11 C.F.R. § 109.20. 

To the extent that Commission regulations exempt a particular type of communication from the 

definition of “contribution” or “expenditure,” that exemption typically covers both production and 

distribution costs. For example, Commission regulations exempt “[t]he payment by a State or local 

47 Notification with Factual & Legal Analysis at 11, 18, MUR 7821 (Twitter, Inc., et al) (Aug 16, 2021) (internal 

quotation marks omitted). 

48 Notification with Factual & Legal Analysis, MUR 7821 (Twitter, Inc., et al) (Aug. 16, 2021). 49 First Gen. Counsel’s Rpt. at 63-64, MUR 7274 (Internet Research Agency) (Feb. 23, 2021); see also First Gen. 

Counsel’s Rpt. at 16, MUR 7834 (Facebook, Inc., et al.) (Aug. 11, 2021); First Gen. Counsel’s Rpt. at 29 n.107, MUR 

7313 (Michael D. Cohen, et al.) (Dec. 7, 2020); First Gen. Counsel’s Rpt. at 11, MUR 7497 (National Rifle 

Association of America Political Victory Fund, et al.) (May 10, 2019); First Gen. Counsel’s Rpt. at 63-64, MUR 7623 

(Donald J. Trump, et al.) (Feb. 23, 2021). 50 Notification to Internet Research Agency, MUR 7274 (Internet Research Agency) (Aug. 18, 2021). 51 First Gen. Counsel’s Rpt. at 18, MUR 7853 (Lance Harris, et al.) (Aug. 31, 2021). 52 Certification, MUR 7853 (Lance Harris, et al.) (May 16, 2022). 53 First Gen. Counsel’s Rpt. at 8 n.29, MUR 8056 (Bob Healey for Congress, et al.) (May 16, 2023). 54 Notification with Factual & Legal Analysis to Robert Healey, Jr., Bob Healey for Congress & Ronald R. Gravino, 

MUR 8056 (Bob Healey for Congress, et al.) (July 18, 2023). 55 FEC Adv. Op. 2011-14 (Utah Bankers Association) at 4 n. 3 (Sept. 22, 2011). 

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committee of a political party of the costs of preparation, display, or mailing or other distribution 

incurred by such committee with respect to a printed slate card ....”56 In resolving the Correct the 

Record matter at the administrative level, a controlling group of Commissioners relied largely on 

the principle – articulated in a 2013 matter involving Congressman Akin and unpaid Internet 

communications – that “[t]he Commission has narrowly interpreted the term Internet 

communication ‘placed for a fee,’ and has not construed that phrase to cover payments for services 

necessary to make an Internet communication.”57

 

The federal district court adjudicating the Commission’s administrative dismissal in Correct the 

Record found the Akin matter to be inapposite. In remanding the matter to the Commission for 

resolution, the court warned that such an exemption must be “meaningfully bounded” to avoid 

abuse.58 It was insufficient, in the court’s view, for an expense to merely be an “input” to an exempt 

communication; instead, such expenses must be “themselves communications orsufficiently direct 

components of communications to be exempt.”59 Across multiple opinions, the court then 

articulated two principles to guide the Commission on remand. First, the court noted that the 

expenses in Correct the Record “are far broader categories of expenses, and far less directly 

connected to a specific unpaid internet communication, than email-list rentals and donationprocessing software purchased to enable email blasts.”60 Second, the court warned against 

exempting production expenses that “can just as easily be used to produce [nonexempt] versus 

[exempt] communications.”61 Stated affirmatively, distribution and production costs are 

governed by section 109.21 if they bear a direct connection to specific exempt 

communication(s) and are not easily repurposed for a non-exempt or non-communicative 

use. 

The Production Costs satisfy that test. Like the amounts paid to vendors to create and produce a 

television ad, the Production Costs relate to specific communications – the Canvassing Literature 

and the Script. Moreover, they cannot be repurposed for a non-exempt or non-communicative 

use. Indeed, the services’ value to the Committee inheres entirely in the exempt 

communications and is exhausted as soon as the communications are disseminated. The 

disbursement(s) to the vendor(s) to create and produce the Script and Canvassing Literature 

secures only that Script and Canvassing Literature; the payment(s) cannot be redeemed for 

additional communications or funds. Therefore, the Production Costs are communication 

expenditures governed by section 109.21 rather than non-communication expenditures 

governed by section 109.20. 

56 11 C.F.R. § 100.80. 

57 Factual and Legal Analysis, FEC Matter Under Review 6657 (Akin for Senate) (Sept. 17, 2013), at 3-4. 

58 Campaign Legal Ctr. v. Fed. Election Comm’n, 646 F. Supp. 3d 57, 64 (D.D.C. 2022) (“CLC V”). 59 Id. 60 Campaign Legal Ctr. v. Fed. Election Comm’n, 466 F. Supp. 3d 141, 157 (D.D.C. 2020) (“CLC II”), on 

reconsideration in part, 507 F. Supp. 3d 79 (D.D.C. 2020) (“CLC III”), rev'd and remanded, 31 F.4th 781 (D.C. Cir. 

2022) (“CLC IV”). 61 CLC V, 646 F. Supp. at 65. 

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c. The Distribution Costs are sufficiently direct inputs or components of the 

canvassing communications to not qualify as “coordinated expenditures” under 11 

C.F.R. § 109.20. 

Notably, Correct the Record involved production costs rather than distribution costs. Distribution 

costs are necessarily “directly connected to a specific ... communication.”62 The buying of a 30-

second commercial block is directly connected to the 30-second television ad that airs in the block; 

the purchase of postage to send a mailer is directly connected to the mailer on which the postage 

is affixed; and the payment to individuals to deliver canvassing literature and the organization’s 

message is directly connected to those canvassing communications. There can be no re-purposing 

of such expenses for non-communicative uses. That is why, to our knowledge, neither the 

Commission nor any federal court has questioned whether the expenses associated with 

distributing a communication are “sufficiently direct components of communications” to be 

exempt.63 And the regulated community, until now, has relied on that presumption in structuring 

its communication programs. 

In any paid canvass, the canvassers are the means by which the canvassing communications are 

distributed. The direct costs of compensating canvassers are plainly exempt distribution costs. 

They are analogous to the cost of television or radio airtime, advertising space in a newspaper or 

magazine, USPS postage for a mail piece, and payments to vendors to manage the distribution 

process. All such expenses are necessary to distribute the underlying communication. All such 

expenses are directly connected to specific communications. And such expenses cannot be 

repurposed for non-communicative use. 

The principal role of a canvassing vendor is to recruit, hire, train, and manage the paid canvassers. 

One cannot pay a canvasser without first hiring the canvasser; and it costs money to hire 

canvassers. And while TMP could theoretically send untrained canvassers to deliver their 

canvassing communications, no reasonable (or responsible) organization would willingly do so. 

TMP’s trainings will be specific to the paid canvass and will train canvassers on messaging: 

specifically, on TMP’s philosophy, the candidates it supports, and the most effective way to deliver 

messaging to TMP’s targets. The trainings serve no purpose other than facilitating and effectuating 

TMP’s canvassing communications. They cannot be re-purposed for a non-communicative use and 

they have no residual value to TMP once the communications are delivered. 

Retaining a canvassing firm is analogous to a political organization retaining a broker to purchase 

television airtime. The organization could buy the time itself but instead chooses to retain a 

professional that specializes in the relevant communication or medium to manage the 

communication distribution process. Likewise, TMP could hire, train, and manage paid canvassers 

itself but prefers to outsource this task to an experienced vendor who can manage the process more 

effectively. The Commission’s regulations treat “the charges for a broker to purchase the airtime” 

as a “direct cost” of airing an electioneering communication.64 There is no reasonable basis for the 

Commission to treat charges paid to a canvassing firm any differently. 

62 CLC V, 646 F. Supp. at 65 63 Id. at 64 64 11 C.F.R. § 104.20(a)(2)(ii). 

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4. May TMP provide any of the data that arises from the paid canvasses to a federal 

candidate or party committee at no charge or at less than its fair market value? 

We presume the answer is “no.” The Data Costs are distinguishable from the Production Costs or 

Distribution Costs. 

First, the Data Costs result in a product that has value independent of the communication itself. 

Most political organizations use data, polling, and research to inform their communications. But 

the Commission has recognized that data – such as poll results and research books – have value 

and constitute an in-kind contribution if provided without charge or at less than the usual and 

normal charge.65 While the value of the Production Costs and Distribution Costs extinguishes once 

the specific communications are disseminated, the value of the Data Costs (like polling and 

research) does not. This factor provides the Commission with an administrable standard to 

distinguish between expenses that are “sufficiently direct components of communications to be 

exempt” and those that are not.66

Second, although the raw data is derived from specific communications, the Data Costs themselves 

do not bear a direct connection to specific non-public communications. In addition to being a 

marketable asset that can be sold or rented to others, the resulting product “can just as easily be 

used to produce [nonexempt] versus [exempt] communications.”67 That is simply not the case with 

the Production Costs or Distribution Costs, which purchase only exempt (non-public) 

communications and cannot be redeemed for non-exempt (public) communications. This, too, 

provides the Commission with an administrable standard to distinguish between expenses that are 

“sufficiently direct components of communications to be exempt” and those that are not.68

For these reasons, we presume that TMP may not provide any of the data that arises from the 

paid canvasses to a federal candidate or party committee at no charge or at less than its fair 

market value. 

Very truly yours, 

Jonathan S. Berkon 

Courtney T. Weisman 

Sarah N. Mahmood 

Counsel to Texas Majority PAC 

65 11 C.F.R. § 106.4; FEC Adv. Op. 2022-05 (DSCC). 

66 CLC V, 646 F. Supp. at 64. 67 Id. at 65. 68 Id. at 64.

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Lindsay Bird

From: Jon Berkon <jberkon@elias.law>

Sent: Monday, January 22, 2024 11:39 AM

To: Lindsay Bird; Courtney Weisman; Sarah Mahmood

Cc: Amy Rothstein; Robert Knop

Subject: RE: Advisory Opinion Request, Texas Majority PAC

Thanks all. Answers below.

Jon Berkon

Elias Law Group LLP

250 Massachusetts Ave NW, Suite 400

Washington DC 20001

W: 202‐968‐4511

jberkon@elias.law

  

  

  

CONFIDENTIAL: This email may contain privileged or confidential information and is for the sole use of the intended recipient(s). Any unauthorized use or disclosure

of this communication is prohibited. If you believe that you have received this email in error, please notify the sender immediately and delete it from your system.

  

From: Lindsay Bird <lbird@fec.gov>  

Sent: Monday, January 22, 2024 10:47 AM

To: Jon Berkon <jberkon@elias.law>; Courtney Weisman <cweisman@elias.law>; Sarah Mahmood

<smahmood@elias.law>

Cc: Amy Rothstein <ARothstein@fec.gov>; Robert Knop <rknop@fec.gov>

Subject: Advisory Opinion Request, Texas Majority PAC

Good morning, 

We received the advisory opinion request that you submitted on behalf of Texas Majority PAC (“TMP”). We 

need some additional information, as noted below. 

1. Footnote 4 of the request indicates that TMP anticipates that the Scripts and Canvassing Literature will 

be disseminated to more than 500 homes within a 30-day period. Can you please confirm that the Scripts 

and Canvassing Literature will be identical or of a substantially similar nature? Confirmed.

2. Will the literature and scripts produced for the Paid Canvass be used for any purpose other than the Paid 

Canvass? No.

3. Will the people who are hired as canvassers engage in any work or complete any assignments for TMP 

other than delivering the Canvassing Literature, reading the Script, and recording the answers to the 

scripted questions? No.

Please note that your response may become part of the advisory opinion request. If so, it will be posted on the 

Commission’s website. If you have any questions or would like to discuss further, please feel free to contact 

me. 

Sincerely, 

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Lindsay Bird 

Attorney, Policy 

Federal Election Commission 

202-694-1314 

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