1 

FEDERAL ELECTION COMMISSION

1050 FIRST STREET, N.E.

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) MUR 7646

1820 PAC, et al. ) 

) 

 

STATEMENT OF REASONS OF CHAIRMAN ALLEN DICKERSON

AND COMMISSIONER JAMES E. “TREY” TRAINOR, III

During the 2020 election cycle, Senator Susan Collins sought another term in 

the world’s greatest deliberative body. 1820 PAC, an independent-expenditure-only 

committee1 named for the year that Maine was admitted into the Union, supported 

Senator Collins’s re-election and spent over $1.5 million on independent expenditures 

in support of her effort.

 

One of 1820 PAC’s independent expenditures reproduced approximately 22 

seconds of so-called “B-roll” footage that Senator Collins’s campaign committee had 

posted to YouTube, “overlaid with a voiceover and on-screen text describing the 

candidate’s policy positions and her work supporting the interests of constituents in 

Maine.”2 

The advertisement sparked a complaint to this Commission from Maine’s 

Democratic Party. It alleged that 1820 PAC’s independent expenditure “made a 

prohibited in-kind contribution to Collins and her Committee...by republishing the 

Committee’s [YouTube] footage of Collins.”3 Our Office of General Counsel (“OGC”) 

agreed with the complainant on this point, and recommended that the Commission 

1 Commonly referred to as a Super PAC. See, e.g., Open Meeting Agenda Doc. No. 22-06-A at 11, Mar. 

3, 2022 (“Super PACs are nonconnected political committees that came into existence after the decision 

of the Supreme Court in Citizens United v. Federal Election Commission...and the decision of the U.S. 

Court of Appeals for the District of Columbia Circuit in SpeechNow.org v. Federal Election 

Commission”).

2 First Gen’l Counsel’s Report (“FGCR”) at 4-5, MUR 7646 (1820 PAC, et al.), June 4, 2021.

3 Id. at 2.

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“[f]ind reason to believe that 1820 PAC violated 52 U.S.C. § 30116(a)(1)(A) and 11 

C.F.R. § 110.1(b)(1) by making an excessive in-kind contribution and violated 52 

U.S.C. § 30104(b) and 11 C.F.R. § 104.3(b) by misreporting the in-kind contribution 

as an independent expenditure.”4 OGC also recommended dismissing “the allegations 

that [the respondents]...violated” the law “by knowingly accepting an excessive inkind contribution” and “by failing to report [that] in-kind contribution.”5

We disagreed with this approach,6 and we write now to explain our reasoning.

I. FACTUAL BACKGROUND

In 2019, the Collins committee “published a 6-minute video on its YouTube 

page...comprised of different segments of video showing [Senator] Collins interacting 

with individuals in various settings, such as a factory, pharmacy, and school, as well 

as footage of Collins working in her office.”7 This footage, shorthanded by OGC as “Broll,”8 was set to music, concluded with the slogan “Our Senator, Susan Collins,” and

bore a paid-for-by proclamation stating the Collins committee was responsible for its 

publication.9

Several months after the Collins committee posted this six-minute video, 1820 

PAC made an independent expenditure of $276,780, consisting of an advertisement 

that “was 30 seconds long and incorporated 22 continuous seconds of the Collins Broll overlaid with a voiceover and on-screen text describing the candidate’s policy 

positions and her work supporting the interests of constituents in Maine.”10

4 Id. at 14.

5 Id. 

6 Certification at 1-4, MUR 7646 (1820 PAC, et al.), Feb. 17, 2022. 

7 FGCR at 4.

8 This is a description loosely derived from the vocabulary of filmmaking. B-roll is “recorded video of 

subjects or locations used to provide supplementary material for a film or television show,” which is 

contrasted with the “A-roll,” the primary footage of the film’s subject matter. Merriam-Webster, “Broll.” Thus, the use of this term implies that the six-minute video posted by the Collins committee, 

complete with a logo and disclaimer, is not a finished, final product.

9 FGCR at 4.

10 Id. at 4-5.

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II. THE LAW REGARDING REPUBLICATION

The Federal Election Campaign Act of 1971, as amended (“FECA” or the “Act”) 

characterizes the republication of a campaign committee’s advertisements as an 

expenditure. Specifically, FECA provides that “the financing by any person of the 

dissemination, distribution, or republication, in whole or in part, of any broadcast or 

any written, graphic, or other form of campaign materials prepared by the candidate, 

his campaign committees, or their authorized agents shall be considered to be an 

expenditure.”11 

As has been explained elsewhere, our regulations do not give that effect to the 

statute. Rather, 11 C.F.R. § 109.23(a) states that “[t]he financing of the 

dissemination, distribution, or republication, in whole or in part, of any broadcast or 

any written, graphic, or other form of campaign materials prepared by the candidate, 

the candidate’s authorized committee, or an agent of either of the foregoing shall be 

considered a contribution for the purposes of contribution limitations and reporting 

responsibilities of the person making the expenditure.” 

FECA distinguishes between contributions (which are subject to amount and 

source limitations and are reportable by the candidate) and expenditures (which are 

not subject to amount or source limitations and are reportable by the spender).12 The 

Act provides that “the financing by any person of the dissemination, distribution, or 

republication, in whole or in part, of any broadcast or any written, graphic, or other 

form of campaign materials prepared by the candidate, his campaign committees, or 

their authorized agents shall be considered to be an expenditure....”13 Such 

expenditure is considered a contribution to a candidate when it is ‘‘made by any 

person in cooperation, consultation, or concert, with, or at the request or suggestion 

of’’ that candidate, their authorized committee, or their agents.14 Thus, only if a 

person cooperates or consults with a candidate or committee on an expenditure (i.e., 

only if the expenditure is “coordinated”) does that expenditure become an in-kind 

contribution under FECA.

11 52 U.S.C. § 30116(a)(7)(B)(iii) (emphasis supplied).

12 This distinction is foundational to campaign finance jurisprudence, which relies on the application 

of distinct standards of review when reviewing First Amendment challenges to state action burdening 

contributions and expenditure regulations. McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 199 

(2014).

13 52 U.S.C. § 30116(a)(7)(B)(iii) (emphasis supplied). 

14 52 U.S.C. § 30116 (a)(7)(B)(i).

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III. THE LAW REGARDING COORDINATION

FECA also limits the ability of speakers to coordinate their expenditures with 

authorized candidate committees and those committees’ agents. As one of us has 

noted elsewhere, “[t]he Act, as amended, does not define the term ‘coordinated’ or set 

forth concrete standards for when a public communication is made ‘in cooperation, 

consultation, or concert, with, or at the request or suggestion of’ a federal candidate 

or political party.”15 

11 C.F.R. § 109.21 sets out a three-prong test for whether a public 

communication is a “coordinated communication”16 based on the source of the 

payment (the payment prong), the subject matter of the communication (the content 

prong), and the interaction between the person paying for the communication and the 

candidate or political party committee (the conduct prong).17 A public communication 

must satisfy all three prongs to qualify as “coordinated” under this test.18

IV. ANALYSIS

To the extent that 11 C.F.R. § 109.23 treats non-coordinated republication as 

an in-kind contribution—this regulation contradicts FECA’s text and is therefore 

contrary to law.19 We are not alone in observing this legal infirmity.20 Thus, in order 

to remain faithful to our enabling legislation, when the Commission enforces the 

republication provisions, it must establish actual coordination using the same 

standards applied to any other form of public communication.

There was no evidence of such conduct here. OGC conducted that analysis and 

determined that “the available information [was] insufficient to support a reasonable 

inference that all three prongs of the coordinated communication test are satisfied,”21

15 Interpretative Statement of Chairman Dickerson at 2, Mar. 24, 2022.

16 11 C.F.R. § 109.21. 

17 11 C.F.R. § 109.21(a).

18 Id.

19 See Interpretative Statement of Chairman Dickerson at 1-5, Mar. 24, 2022.

20 See MURs 6603, 6777, 6801, 6870, and 6902, Statement of Reasons of Vice Chairman Petersen and 

Comm’rs Hunter and Goodman at 2 n.4. See also Interpretative Statement of Comm’r Sean J. Cooksey, 

Nov. 30, 2021 (concurring in the view that § 109.23 is contrary to law because it improperly departs 

from and conflates the terms “contribution” and “expenditure” used in the underlying statute).

21 FGCR at 13.

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and instead relied entirely on 11 C.F.R. § 109.23(a) in recommending that we find 

reason to believe 1820 PAC violated FECA. But absent evidence of the coordination

required by 11 CFR § 109.21, 1820 PAC’s republication of the Collins video was an 

independent expenditure—just as the PAC reported. Similarly, there was no reason

to believe that the Collins committee illegally coordinated with 1820 PAC, and we 

voted accordingly.

Furthermore, were the Commission to pursue enforcement on the theory that 

1820 PAC’s non-coordinated republication of committee materials was an in-kind 

contribution, it seems to us extremely probable that a reviewing court would simply 

invalidate § 109.23 as directly contradictory to FECA. At the very least, a court would 

likely conclude that the regulation could not be lawfully applied in this case.

Therefore, we voted to dismiss those allegations pursuant to the agency’s 

prosecutorial discretion under Heckler v. Chaney.

22

_________________________________ _________________________ 

Allen Dickerson Date

Chairman

_________________________________ _________________________ 

James E. “Trey” Trainor, III Date

Commissioner 

22 470 U.S. 821 (1985).

April 15, 2022

April 15, 2022

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