1 

FEDERAL ELECTION COMMISSION

1050 FIRST STREET, N.E.

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matters of ) 

 ) 

Joseph R. Biden, Jr., et al. ) MURs 7931/8059

) 

Donald J. Trump, et al. ) MURs 7968/7969

) 

STATEMENT OF REASONS OF VICE CHAIRMAN SEAN J. COOKSEY 

AND COMMISSIONERS ALLEN J. DICKERSON AND JAMES E. “TREY” TRAINOR, III

Introduction

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

governs the financial conduct of candidates for federal office. Once a person becomes 

a federal candidate, as defined by the Act and Commission regulations,1 he or she 

must create a committee to handle the campaign’s money, appoint a treasurer to 

oversee that committee, abide by the Act’s source-and-amount limits on 

contributions, and comply with the Act’s disclosure requirements.2

President Joseph R. Biden, Jr. and former President Donald J. Trump are both 

candidates for election in 2024 and have both submitted the required statements of 

candidacy and organization. Both were also the subject of complaints alleging that 

they were, in fact, candidates much earlier than is reflected on those official filings. 

We disagreed and voted to find no reason to believe that either candidate violated the 

law.3

1 52 U.S.C. § 30101(2); 11 C.F.R. § 100.3. 

2 52 U.S.C. §§ 30101(2), 30102, 30104, 30125. 

3 We voted to find no reason to believe as to all allegations against all Respondents. In doing so, we 

voted to dismiss the complaints. 52 U.S.C. § 30109(a)(1). 

MUR793100308
2 

I. Legal standard

a. “Candidacy” under the Federal Election Campaign Act is 

determined solely by evaluating one’s contributions and 

expenditures.

The Act explains that a candidate is “an individual who seeks nomination for 

election, or election, to Federal office.” 4 And it gives the standard for determining 

whether someone is, for legal purposes, a candidate within the meaning of the Act:

“[A]n individual shall be deemed to seek nomination for election or election” if he or 

she, directly or through an authorized agent, either has “received contributions 

aggregating in excess of $5,000 or has made expenditures aggregating in excess of 

$5,000.” 5 The Commission’s regulations make it equally clear that a person becomes 

a candidate only upon receiving $5,000 in contributions or making $5,000 in 

expenditures, either directly or through authorized representatives.6 

Here we come to our first disagreement with the Office of General Counsel’s 

(“OGC”) legal recommendations. Rather than focusing on whether there is reason to 

believe that $5,000 of contributions were raised or $5,000 of expenditures made, OGC 

directs the bulk of its analysis toward determining whether President Biden or Mr. 

Trump had “decide[d] to run for office.”7 To determine whether either man had made 

this decision, OGC looked to “Commission regulations [that] set forth a nonexhaustive set of examples of activities that indicate that an individual has decided 

to become a candidate.”8 Those factors include, in relevant part, making public 

statements referring to the individual as a candidate, raising “funds in excess of what 

could reasonably be expected to be used for exploratory activities or undertak[ing] 

activity designed to amass campaign funds,” and “conducting activities...over a 

protracted period of time.”9

This approach suffers from two fatal problems.

4 52 U.S.C. § 30101(2).

5 52 U.S.C. § 30101(2)(A)–(B).

6 11 C.F.R. § 100.3(a)(1)–(4).

7 First Gen’l Counsel’s Report at 21–37, MURs 7968/7960 (Donald J. Trump, et al), Oct. 13, 2022 

(“Trump FGCR”); First Gen’l Counsel’s Report at 21–29, 43, MURs 7931/8059 (Biden for President, et 

al.), May 3, 2023 (“Biden FGCR”).

8 Trump FGCR at 22 (citing 11 C.F.R. § 100.72(b)) (cleaned up); see also Biden FGCR at 21 (same).

9 Trump FGCR at 22; Biden FGCR at 21–22.

MUR793100309
3 

First, OGC’s analysis of whether someone has “decided to become a candidate” 

is premised on 11 C.F.R. § 100.7210—the Commission’s testing-the-waters regulation. 

But that is not the operative regulation. Instead, the binding candidate definition is 

set forth at 11 C.F.R. § 100.3, which contains no such reference to a candidate’s 

personal decision to run. To the contrary, it clearly states that “an individual becomes 

a candidate for federal office” when he or she (1) receives contributions or makes 

expenditures of more than $5,000, (2) gives consent to another person to do the same, 

or (3) fails to disavow third-party efforts to receive $5,000 in contributions or make 

$5,000 in expenditures on his or her behalf.11 In other words, as one would expect of

campaign finance law, the definition of candidacy turns on funds, not intent.

Reliance on 11 C.F.R. § 100.72 is misplaced in another way. By its plain terms, 

it applies only to “[f]unds received solely for the purpose of determining whether an 

individual should become a candidate.”12 It is true that this regulatory safe harbor 

“does not apply to funds received for activities indicating that an individual has 

decided to become a candidate for a particular office,”13 and that the regulation lays 

out potential ways of determining whether “an individual has decided to become a 

candidate.”14 But that is not relevant to whether an individual is actually a 

candidate—a question resolved under 11 C.F.R. § 100.3.15 The analysis of the 

candidate’s personal “decision” affects only whether the narrow category of funds 

governed by the testing-the-waters regulation can qualify as a contribution. Here, the 

complaints made no allegation concerning testing-the-waters activity, and the 

exception—and thus 11 C.F.R. § 100.72 in its entirety—is “not at issue here.”16 

10 There is a parallel provision governing expenditures at 11 C.F.R. § 100.131. That provision 

substitutes the phrase “payments for” in place of “funds received,” but is otherwise essentially identical 

to 11 C.F.R. § 100.72. The analysis accordingly applies equally to both provisions.

11 11 C.F.R. § 100.3(a)(1)–(4).

12 11 C.F.R. § 100.72(a) (emphasis added). 

13 11 C.F.R. § 100.72(b). Even here, the regulation speaks of “funds” used for particular “activities.” 

The candidate’s free-standing intentions are irrelevant except in so far as (1) funds are received solely 

for testing-the-waters activity, and (2) the recipient spends those funds on activities tending to show 

that he or she is, in fact, a candidate. For this reason, there is no tension between the testing-thewaters regulation and the actual definition of “candidate” turning on contributions and expenditures. 

Section 100.72 is merely a safe harbor for funds that would otherwise qualify as contributions for 

purposes of § 100.3(a).

14 11 C.F.R. § 100.72(b).

15 This conclusion also follows from the Commission’s rule governing statements of candidacy. That 

regulation, 11 C.F.R. § 100.1(a), requires a candidate to designate a principal campaign committee 

“[w]ithin 15 days after becoming a candidate under 11 CFR 100.3.” 

16 Trump FGCR at 46.

MUR793100310
4 

While we disagree with OGC’s analysis, we note that the confusion is not of 

OGC’s making and that it has been asked to advise the Commission against a 

contradictory and confused backdrop. The Commission has not always spoken clearly 

on this point, and prior decisions can be read to support OGC’s position. 17 As these 

Matters show, the need for clarification in this area of the law has become 

pronounced. If the Commission has previously spoken with less clarity than is 

needed, that does not excuse it from faithfully applying the plain text of the law here.

 Consequently, we are left with the text of the Act and 11 C.F.R. § 100.3. While 

an individual may voluntarily submit to the Commission’s jurisdiction by filing a 

statement of candidacy before crossing the $5,000 threshold, the Commission is 

powerless to “deem” an individual a candidate until that person has either raised 

$5,000 in contributions or made $5,000 in expenditures.18 

b. The definitions of “contributions” and “expenditures” are 

subject to the same limitations in the context of candidacy as 

elsewhere in the Act.

Federal law defines “contribution” to include “any gift, subscription, loan, 

advance, or deposit of money or anything of value made by any person for the purpose 

of influencing any election for Federal office.”19 It similarly defines an “expenditure” 

as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or 

17 See e.g. Factual & Legal Analysis at 10, MUR 6999 (David Larson), Nov. 2, 2016 (a candidate “may 

have decided to run for office four month earlier than [a fundraising] invitation” by “link[ing] to [a] 

report on his Twitter feed without correction” which quoted the respondent “as saying ‘it’s time to do 

it again’ and ‘we’ll win this time’”); Statement of Reasons of Vice Chairman Petersen and Comm’rs 

Hunter, McGahn, and Weintraub at 2, MUR 5934 (Fred Thompson), Mar. 10, 2009 (carefully parsing 

public statements made by former Senator Thompson to see if he had become a candidate under 

FECA); Advisory Op. 2015-09 at 5 (Senate Majority PAC) (“[A]n individual who has raised or spent 

more than $5000 on ‘testing-the-waters’ activities would become a candidate when he or she makes a 

private determination that he or she will run for federal office.”); Statement of Reasons of Vice Chair 

Dickerson and Comm’rs Cooksey and Trainor at 6, MUR 7354 (McDaniel), Aug. 3, 2021 (“To qualify 

as a candidate under the Act, an individual or their agent must receive contributions or make 

expenditures exceeding $5,000, or the individual must make the private decision to run for federal 

office and spend more than $5,000 on testing-the-waters activity.”).

18 See, e.g., Statement of Reasons of Chairman Petersen and Comm’rs Hunter, McGahn, Walther, and 

Weintraub, MUR 5908 (Duncan Hunter), Aug. 23, 2010 (dismissing, as an exercise of prosecutorial 

discretion, allegations of late-filed statement of candidacy because, based upon date on which $5,000 

threshold was crossed, Rep. Hunter’s statement was at most three days late).

19 52 U.S.C. § 30101(8)(A).

MUR793100311
5 

anything of value, made by any person for the purpose of influencing any election for 

Federal office.”20

Both terms, however, are subject to the limiting constructions imposed upon 

them nearly a half century ago in Buckley v. Valeo.21 Where the Supreme Court has 

provided such a “gloss,” it must “govern our application of the Act.”22 

The Buckley Court determined that the “critical phrase ‘for the purpose 

of...influencing’” presented issues of “ambiguity...that pose[d] constitutional 

problems.”23 Noting that violations of FECA potentially incur criminal penalties, the 

Court described its concern that “fear of incurring these sanctions may deter those 

who seek to exercise protected First Amendment rights,” and expressed an 

obligation—which we share—to construe the statute, where possible, to “avoid the 

shoals of vagueness.”24

The Court observed that the vagueness inquiry posed “fewer problems in 

connection with the definition of a contribution because of the limiting connotation

created by the general understanding of what constitutes a political contribution,” 

namely “[f]unds provided to a candidate,”25 whether “made directly or indirectly.” 26

“So defined, ‘contributions’ have a sufficiently close relationship to the goals of the 

Act, for they are connected with a candidate or his campaign.”27

But expenditures posed a thornier problem. Unlike “contributions,” they were 

not bounded by a “general understanding.”28 Merely seeking to “influence” an election 

result could “encompass[ ] both issue discussion and advocacy of a political result.”29 

20 52 U.S.C. § 30101(9)(A).

21 424 U.S. 1 (1976) (per curiam). 

22 Statement of Reasons of Chairman Dickerson and Comm’rs Cooksey and Trainor at 6, MURs 

7645/7663/7705 (Trump), Aug. 31, 2022 (cleaned up).

23 Buckley, 424 U.S. at 77.

24 Id. at 77–78; see also United States v. Nat’l Comm. for Impeachment, 469 F.2d 1135, 1139 (2d Cir. 

1972) (evaluating the vagueness issues posed by FECA by applying “fundamental principles of freedom 

of expression in our democratic form of government”). 

25 Buckley, 424 U.S. at 23, n.24. 

26 Id. at 78. In so doing, the Court explicitly recognized the FEC’s ability to regulate in-kind 

contributions, such as the gift of computers or office furniture, to a candidate committee.

27 Id. 

28 Id. at 23, n.24.

29 Id. at 79.

MUR793100312
6 

For individuals that have already qualified as candidates, or organizations the 

“major purpose of which is the nomination or election of a candidate,” this was less of 

a risk, because “[e]xpenditures of candidates and of ‘political committees’ so construed 

...are, by definition, campaign related.”30 But where “the maker of the expenditure” 

was “an individual other than a candidate,” the Court narrowed the term 

“expenditure” further, to “precisely [ ] that spending that is unambiguously related 

to the campaign of a particular federal candidate,” such as “communications that 

expressly advocate the election or defeat of a clearly identified candidate.” 31 

The Court was not called upon to address the definitions of “contribution” and 

“expenditure” in the context of the Act’s definition of “candidate.” Nor has OGC 

pointed to any case law, from the Supreme Court or otherwise, on that point. But the 

Court’s discussion is instructive, and the Commission has a duty to give it effect.32

To begin, the Court’s discussion of “candidates” poses a risk of circularity. 

Because funds given to a candidate or to an organization controlled by a candidate 

constitute “contributions,” and because a candidate is defined in part by making

“contributions,” there is a potential chicken-and-the-egg problem: Which came first, 

the candidacy or the contribution? Indeed, that appears to be the problem OGC 

attempted to solve by asserting that a person “must have made th[e] determination” 

to run for federal office before the money they raise and spend can qualify as a 

contribution or expenditure.33

 

The trouble with OGC’s interpretation is that while it may be true as far as it 

goes—contributions and expenditures must be directed toward a candidacy—that 

does not mean the inverse is true. The fact that a person has decided to run for office 

does not mean that all funds they receive are “contributions” or that all funds they 

expend are “expenditures.” To take only the most obvious example, a candidate may 

receive and spend outside income for his or her personal use, subject to certain rules, 

none of which is considered a “contribution” or “expenditure” under the Act.34 So the 

definitions of “contribution” and “expenditure” must turn on the nature of the funds 

themselves. The alternative is a hopelessly circular standard: a candidate is defined 

30 Id. 

31 Id. at 79–80.

32 “Administrative agencies,” such as the Commission, “are creatures of statute....[which] possess only 

the authority that Congress has provided.” Nat’l Fed’n of Indep. Business v. U.S. Dep’t of Labor, 595 

U.S. 109, 117 (2022); cf. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (noting the “basic constitutional 

proposition[ ]...that ‘it is emphatically the province and duty of the judicial department to say what 

the law is’”) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)) (punctuation altered). 

33 Biden FGCR at 21, n.82; Trump FGCR at 21, n.80.

34 Cf. 52 U.S.C. § 30114(b)(2).

MUR793100313
7 

by certain financial transactions, but those transactions are defined by the person’s 

status as a candidate.

So “contributions” and “expenditures” must be judged objectively, based upon 

their own characteristics, and not by someone’s intent to run for office. This leads us 

to the second interpretive difficulty. Not just any contribution or expenditure can lead 

to candidate status because a person may receive contributions or make expenditures 

completely unrelated to his or her candidacy. Every treasurer of every nonconnected 

political committee receives contributions and makes expenditures. No one asserts 

that they are therefore candidates.35

Having determined that the “contributions” and “expenditures” discussed in 

the Act’s definition of “candidate” must be judged based upon their own 

characteristics, the question becomes what those characteristics are. Here the 

Supreme Court has shown the way, in two senses.

Most broadly, it has explained that the Commission may not adopt a test based 

upon “intent-and-effect” to distinguish between expenditures advocating an electoral 

result and other political speech (which may not be constitutionally regulated by the 

Commission).36 That rule flows directly from the Buckley Court’s vagueness concerns 

and applies generally to the Commission’s efforts to regulate in this constitutionally

sensitive area.37 As the Court has repeatedly explained, “[a]n intent-based standard 

‘blankets with uncertainty whatever may be said,’ and ‘offers no security for free 

35 In one of these Matters, OGC contended that a person running a leadership PAC might meet the 

definition of “candidate” because such groups “receive[d] contributions and ma[de] expenditures on his 

behalf.” Trump FGCR at 38–39; id. at 38, n.166. But leadership PACs are separate organizations 

recognized by the statute, 52 U.S.C. § 30104(i)(8)(B), which are routinely run by former officeholders

who are plainly not candidates. Some leadership PACs even continue operation after the officeholderfounder has died. It would be news to these leadership PAC founders to learn that contributions to a 

leadership PAC are evidence of candidacy. 

36 Fed. Election Comm’n v. Wisc. Right to Life, Inc., 551 U.S. 449, 467 (2007) (“WRTL II”) (“[T]his Court 

in Buckley had already rejected an intent-and-effect test for distinguishing between discussions of 

issues and candidates.). The same necessarily is true for a contribution, which is simply money donated 

to a political committee to make expenditures. Buckley, 424 U.S. at 79 (noting that all activities of a 

political committee or candidate committee “are, by definition campaign related”); Statement of 

Reasons of Vice Chair Dickerson and Comm’r Trainor at 3, MUR 7181 (Independent Women’s Voice), 

May 10, 2021 (“After all, the Act has always defined political committees solely in monetary terms, as 

groups receiving ‘contributions’ and making ‘expenditures’”).

37 WRTL II, 551 U.S. at 467; see also Statement of Reasons of Vice Chairman McGahn and Comm’rs 

Hunter and Peterson at 8, n.29, MUR 5878 (Ariz. State Dem. Cent. Comm., et al.), Sept. 19, 2013

(applying WRTL II in analyzing whether the spending of so-called Levin funds were permissible and 

noting that the Supreme Court had “reject[ed] an ‘intent-and-effect’ test for evaluating political 

speech”). 

MUR793100314
8 

discussion.’”38 That concern was borne out by OGC’s emphasis on parsing various 

public statements for hints that a candidacy may be in the offing.39

More concretely, having told the Commission the standard to avoid, the 

Supreme Court also provides the standard to apply. In evaluating the terms 

“contribution” and “expenditure” with an eye toward avoiding unconstitutional 

vagueness, the Buckley Court routinely explained that both terms must be directed 

toward funds that are “by definition” or “unambiguously campaign related.”40 This 

approach eliminates both problems already identified. By requiring the 

“contributions” and “expenditures” referenced in the definition of “candidate” to 

themselves be directed specifically toward a particular candidate’s campaign, the 

Commission avoids the problem of circularity inherent in judging contributions and 

expenditures with reference to a person’s intent to run. And by limiting itself to 

contributions and expenditures unambiguously related to a particular campaign, the 

Commission avoids the line-drawing problems inherent in treating anyone who 

handles money for a political committee as a potential candidate.

Accordingly, for purposes of calculating whether an individual has crossed the 

$5,000 threshold for candidacy, “contributions” and “expenditures” are those funds 

unambiguously raised or spent for the campaign for federal office of that particular 

individual.41

II. There was insufficient evidence to find reason to believe that 

President Biden violated the Federal Election Campaign Act. 

The relevant question at this stage of the proceedings, then, is a

straightforward one: Was there reason to believe that, prior to his announcement,

President Biden, directly or through his agents, received $5,000 in contributions to 

advance a 2024 candidacy or made $5,000 in expenditures unambiguously related to 

his 2024 campaign? We concluded that there was not.

38 WRTL II, 551 U.S. at 468 (quoting Buckley, 424 U.S. at 43).

39 Biden FGCR at 24–29; Trump FGCR at 23–30.

40 Buckley, 424 U.S. at 79–80 (“This reading is directed precisely to that spending that is 

unambiguously related to the campaign of a particular federal candidate.”); see also, e.g., N.M. Youth 

Organized v. Herrera, 611 F.3d 669, 676 n.4 (10th Cir. 2010) (“[F]or a regulation of campaign related 

speech to be constitutional it must be unambiguously campaign related”); Nat’l Comm. for 

Impeachment, 469 F.2d at 1139–40 (“The Government says it is enough that the advertisement was 

published and sought money, since publication alone is said to have been an ‘obvious’ political activity 

that was intended to further the candidacies of the Congressmen” mentioned, but “the words of the 

Act seem to indicate that Congress’[s] concern was primarily with groups organized or at least 

authorized by a particular candidate and whose principal focus is a specific campaign.”). 

41 Buckley, 424 U.S. at 79–80.

MUR793100315
9 

a. OGC generally recommended against finding reason-to-believe the 

Biden Respondents violated the Act.

In 2020, Joseph R. Biden, Jr. successfully ran for President of the United 

States. As required by law, he formed a candidate committee (Biden for President) to 

promote that candidacy.42 During the 2020 election, Biden for President also entered 

into a joint fundraising arrangement with the Democratic National Committee and 

the federal committees of several state Democratic parties by means of a joint 

fundraising committee, the “Biden Victory Fund.”43 Rather than winding down and 

terminating those entities after the 2020 election, President Biden chose to leave both 

his campaign committee and its participation in the joint fundraising arrangement 

intact. 

 “Between November 4, 2020 and March 31, 2023, [Biden for President] 

reported $134,048,699.80 in total receipts,” including over $100 million “in 

contributions during the 2020 Post-General reporting period.” 44 During that same 

time period, Biden for President made over a quarter-billion dollars in expenditures, 

“all designated as for the 2020 election.” 45

As for the Biden Victory Fund, “[s]ince the 2020 general election, [it] has 

reported receiving $73,740,037.29 in total receipts, of which $73,172,580.88 was 

reported as contributions,” but it “state[d] that all contributions” the Victory Fund 

received for Biden for President “were made to it on or before Election Day, and that 

no contributions received after Election Day have been transferred to” Biden for 

President.46 During that same time period, the Victory Fund “also reported spending 

$78,027,083.84.”47

While most of OGC’s analysis was directed toward the legally irrelevant 

question whether the President had demonstrated the requisite mental state 

regarding his reelection,48 OGC also reviewed a total universe of transactions well 

42 Biden FGCR at 12.

43 Id. at 14–16.

44 Id. at 12.

45 Id. at 13. 

46 Id. at 14–15.

47 Id. at 15.

48 Id. at 5–11, 21–29. This included reviewing milquetoast statements of general support from the 

Secretary of Transportation, id. at 9, 25, and how the President of the United States reportedly reacted 

to a toast delivered by the French President during a state dinner. Id. at 11, 26.

MUR793100316
10

north of three-quarters of a billion dollars and was unable to identify any funds 

expended to advance a 2024 Biden reelection.49 

Looking at the post-Election Day financial universe of the Biden for President 

committee and the Victory Fund, OGC required only three paragraphs to find that 

there was no reason to believe that Biden for President accepted $5,000 in 

contributions, and similarly swift analysis concluded that the Victory Fund had not 

crossed the threshold as to either contributions or expenditures.50 In making these 

determinations, OGC correctly credited the rebuttals proffered by the respondent 

committees.51 Unlike other administrative agencies,52 the Commission is not 

permitted to rely upon “mere ‘official curiosity’...as the basis for FEC investigations,” 

which the Act conditions upon a finding of reason to believe.53

On the expenditure side, however, OGC believed it was “murky [ ] whether 

Biden passed the $5,000 threshold triggering status as a candidate via funds spent 

by the Biden [for President] Committee in support of his 2024 candidacy prior to his 

formal campaign announcement.” 54 Out of nearly $300 million in spending, OGC 

found three buckets suspicious: (1) “$478,158.91 in disbursements to NGP Van Inc. 

for [a] ‘database subscription,’ and ‘processing fees,’” (2) “$5,083,361.49 to Upland 

49 Id. at 21–43.

50 Id. at 39–43. 

51 Id. at 40 (“Although the Complaints raise questions as to the amount of contributions accepted by 

the Biden Committee and the Victory Fund after the 2020 general election, the Respondents credibly 

rebut the allegations that those post-election contributions were attributable to a 2024 Biden 

candidacy. The [Biden for President] Committee does not appear to have solicited or accepted 

contributions for Biden’s reelection campaign prior to Biden’s formal campaign announcement.”).

In making its determinations that the Victory Fund did not make any expenditures, OGC suggested 

that there was reason to believe that a $100,000 payment by the Fund in 2021 to Vox Media, LLC was 

for services rendered in August of 2020, and should have been reported as a “debt or obligation to the 

vendor of greater than $500 that was outstanding for over sixty days.” Id. at 48. We voted against 

OGC’s reason-to-believe recommendation on this allegation because the pursuit of further action 

against the Victory Fund for a payment already made and reported, albeit untimely, was not a good 

use of the agency’s scarce enforcement resources. Heckler v. Chaney, 470 U.S. 831,831–35 (1985). 

52 As the U.S. Court of Appeals for the D.C. Circuit has observed, the FEC operates in a uniquely 

sensitive constitutional space as the only “federal administrative agenc[y]” which “has as its sole 

purpose the regulation of core constitutionally protected activity—‘the behavior of individuals and 

groups only insofar as they act, speak[,] and associate for political purposes.’” Am. Fed’n of LaborCongress of Indus. Orgs., 333 F.3d 168, 170 (D.C. Cir. 2003) (quoting Fed. Election Comm’n v. 

Machinists Non-Partisan Pol. League, 655 F.2d 380, 387 (D.C. Cir. 1981) (“Machinists”)). 

53 Machinists, 655 F.2d at 388 (quoting United States v. Morton Salt Co., 338 U.S. 632, 652 (1950), and 

contrasting the FEC’s “scope of investigative authority” against that of “the FTC, SEC, or the 

Administrator of the Department of Labor’s Wage and Hour Division”).

54 Biden FGCR at 32.

MUR793100317
11

Software Inc. for ‘software,’” and (3) “$2,019,395.00 to Action Squared Inc. for ‘text 

message/email outreach’ and ‘text message outreach.’”55 

OGC ultimately determined there was nothing nefarious about the Biden for 

President’s post-Election Day disbursements to NGP Van Inc., noting that former 

President Barack Obama’s committee made similar disbursements to that same 

vendor following the 2012 Presidential election.56 It also concluded that spending to 

Action Squared Inc. may have been for elections taking place in 2021 or 2022, but it 

was not “associated with Biden’s 2024 candidacy.”57

OGC believed, however, that the Upland bucket of spending, totaling just over 

$5 million, may have been expenditures for the 2024 race. OGC recommended that 

the FEC take no action, however, until it authorized an investigation into Biden for 

President’s alleged misreporting of the purpose of these disbursements, believing that

a subsequent investigation “might shed light on the Complaints’ late-candidacy 

allegations.”58

b. Contrary to OGC’s recommendation, we conclude there was no

reason to believe that the Biden for President committee 

misreported the purpose of its spending to Upland Software.

OGC’s purpose-description recommendation concerns spending specifically 

addressed in the complaint, and the record before the Commission includes the 

committee’s refutation.59 The committee explicitly stated those payments were 

“related to [the 2020 campaign’s] ownership of a SMS short code” and as such 

reflected “costs necessary to protect [its] intellectual property.”60 This was supported 

by the sworn statement of Taryn Vogel, who “provide[d] compliance consulting 

services for” the committee.61 Ms. Vogel asserted that “[a]ll expenditures by [the 

committee] since Election Day 2020 have been for activity related to the 2020 election 

or expenses of winding down its 2020 activities.” 62 Moreover, she swore that the 

55 Id. at 13–14.

56 Id. at 33. 

57 Id. at 38–39.

58 Id. at 38. OGC specifically concluded that it was “plausible” that the $5 million in “disbursements” 

to Upland “were for the purpose of advancing Biden’s 2024 re[-]election campaign.” Id. at 37. OGC was 

correct not to recommend finding reason to believe on a merely “plausible” set of circumstances. 

59 This is not always the case. See infra at 16–18 (discussing Facebook ads produced by Save America). 

60 MUR 7931 Biden for President Resp. at 2, 5. 

61 Vogel Aff. at 1, ¶ 1.

62 Id. at ¶ 6.

MUR793100318
12

committee “made disbursements to Upland Software Inc. in June 2021 to maintain 

ownership of [the committee’s] short code phone number, used for communications 

with” Biden for President.63

“‘At the [reason-to-believe] stage,’ when speculation that is ‘not premised on 

whistleblower testimony or any other sworn statement from someone with direct, 

personal knowledge’ is ‘pitched against a contradictory sworn statement from 

someone with personal knowledge of the matter at hand, we must credit the sworn 

statement.’” 64 Here, the Commission has a sworn statement from the individual at 

the Biden for President committee responsible for “reviewing receipts and 

disbursements to ensure they are accurately and appropriately recorded, and 

ensuring receipts are permissible and in compliance with regulations.”65 

Nevertheless, OGC speculated, on the basis of its “online review of short code 

vendors,” that such a product would more likely have been a “subscription service 

provided at a set rate, rather than charges varying by amount and time.” 66 OGC 

conceded, however, that Ms. Vogel’s “declaration’s statement may accurately 

describe” reality and that “it is...possible that maintenance of the SMS short 

code...was necessary as a communications tool to further appropriate wind-down 

activities” from the 2020 election.67 

Just as “‘something outweighs nothing every time,’”68 a sworn statement based 

upon personal knowledge outweighs mere allegations or speculation based upon 

internet searches. We accordingly voted against OGC’s reason-to-believe

recommendation concerning misreported purpose descriptions. We also rejected 

OGC’s effort to bootstrap the very thin argument for reason to believe on these 

purpose descriptions into authorization for an investigation into the candidacy 

allegations against President Biden. As OGC correctly found, and as already 

discussed, there was no evidence supporting reason to believe on those allegations 

and thus no legal basis to undertake an investigation supplementing OGC’s existing 

analysis. 

63 Id. at ¶ 8.

64 Statement of Reasons of Chairman Dickerson and Comm’r Trainor at 3, MUR 7535 (Leah for 

Senate), Mar. 28, 2022. 

65 Vogel Aff. at 1, ¶ 1. 

66 Biden FGCR at 35.

67 Id. at 36.

68 SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 695 (D.C. Cir. 2010) (en banc) (ellipses 

omitted) (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989)). 

MUR793100319
13

Accordingly, we found no reason to believe that the Biden Respondents had 

violated the Act.

III. There was insufficient evidence to find reason to believe that 

former President Trump violated the Federal Election 

Campaign Act. 

The legal standard applicable to Mr. Trump was precisely the same as that 

applicable to President Biden. Was there reason to believe that, prior to his 

announcement, Mr. Trump, directly or through his agents, received $5,000 in 

contributions to advance a 2024 candidacy or made $5,000 in expenditures 

unambiguously related to his 2024 campaign? We again concluded that there was 

not.

As in the Biden Matters, OGC expended significant time and resources 

evaluating whether Mr. Trump had formed a private determination to run for 

reelection in 2024.69 As discussed above, this was unnecessary, as the answer is 

irrelevant. The question was whether OGC could show reason to believe that there 

were $5,000 in contributions or expenditures, unambiguously related to Trump’s 

2024 candidacy, that were received or made in advance of Mr. Trump’s submission of 

a statement of candidacy with the FEC on November 15, 2022.70

Like President Biden, Mr. Trump chose not to terminate his 2020 campaign 

committee after the 2020 election. Rather, he “converted [it] to an unauthorized, 

multicandidate committee and renamed” it the Make America Great Again (“MAGA”) 

PAC.71 While he was an officeholder, Mr. Trump also established a leadership PAC, 

Save America. Save America and MAGA PAC have entered into a joint fundraising 

relationship through the Save America Joint Fundraising Committee (“JFC”).72 

Much of OGC’s legal analysis is directed toward showing that MAGA PAC or 

the Save America committees either “amass[ed] funds” or “conduct[ed] 

activities...over a protracted period of time” within the meaning of the Commission’s 

69 Trump FGCR at 4–9, 21–30.

70 FEC Form 2, Donald J. Trump, Nov. 15, 2022. OGC’s FGCR in this Matter circulated before Mr. 

Trump filed his candidacy, but a Supplement acknowledging that event was circulated to the 

Commission on August 22, 2023. Supplement to First Gen’l Counsel’s Report at 3, MURs 7968/7960 

(Donald J. Trump, et al), Dec. 5, 2022 (“Trump SFGCR”) (“The $5,000 threshold was met in these 

Matters months before Trump filed his November 2022 Statement of Candidacy”) (capitalization 

altered for clarity).

71 Trump FGCR at 10. Upon announcing his candidacy, Mr. Trump designated a different entity as his 

2024 campaign committee. FEC Form 2, Donald J. Trump, Nov. 15, 2022. 

72 Trump FGCR at 10–12.

MUR793100320
14

testing-the-waters rules.73 But, as explained above, these categories are not relevant 

here. The question before the Commission was not whether Trump had fallen out of 

the testing-the-waters rules, because he had never fallen into them—a point on which 

OGC agrees, not least because Trump categorically denied that he was taking 

advantage of the testing-the-waters safe harbor.74

In any event, time has not borne out OGC’s amassing-funds theory. OGC 

posited that because “Trump has raised more than $100 million through the Save 

America Committees,” and that Save America had far more cash-on-hand than most 

other leadership PACs, “the available information [ ] indicate[d] that Trump [was]

amassing funds for his 2024 candidacy.”75 Subsequent to the October 2022 circulation 

of the First General Counsel’s Report in these Matters, however, Save America spent 

much of those funds, including over $21 million on legal fees unrelated to the 2024 

election.76 Save America most recently reported just over $3.65 million cash-onhand.77 

OGC’s second testing-the-waters argument was grounded on Trump’s regular

appearances at rallies sponsored by Save America, under the theory that Trump was 

conducting testing-the-waters activity over an impermissibly “‘protracted period of 

time.’”78 Once again, Trump was never testing the waters, and the Save America 

rallies were never “solely” for the purpose of determining the viability of a 2024 

presidential candidacy. 79 Nor were these rallies themselves expenditures or in-kind 

contributions to an alleged 2024 campaign. As the responses noted, the former 

president “is a leading political figure with a history of engaging in political activism 

and frequently engages in activities, such as public speaking, for reasons other than 

73 Id. at 31–37.

74 Id. at 31.

75 Id. 

76 See Save Am. Mid-Year 2023 Report.

77 Id. 

78 Trump FGCR at 37 (citation omitted); id. at 36–37 (“Trump has made public statements indicating 

that he has determined to run for president over a period spanning more than 15 months. Further, 

between June 2021, just days before he publicly stated that he had made this decision, and October 

2022, Trump has been the keynote speaker at no fewer than 24 rallies...”). As we noted above, putting 

aside that OGC’s theory incorrectly expands the scope of the testing-the-waters regulations, this 

particular test is hopelessly vague and would “dissolve in practical application.” Buckley, 424 U.S. at 

42. 

79 OGC notes that at these events Mr. Trump would occasionally muse on running for president in 

2024. But those words are not incantations that transmogrified Save America’s rallies, which often 

were explicitly held for the purpose of promoting candidates that Save America supported in the 2022 

midterms, into activities conducted “solely” to determinate a candidacy, 11 C.F.R. § 100.131, or which 

were “by definition” or “unambiguously [2024] campaign related.” Buckley, 424 U.S. at 79–80.

MUR793100321
15

a potential political campaign.”80 We decline OGC’s invitation to find a violation of 

the Commission’s candidacy rules purely on the basis of a respondent’s public 

speaking.81

OGC’s remaining arguments were properly directed to the statute’s $5,000 

trigger, rather than the Commission’s testing-the-waters regulations. Neither, 

however, is availing. 

First, OGC noted that the Save America committees had raised over $100 

million, which is a lot of money.82 But just as with the (much larger) amount raised 

by the Biden Respondents, the question is not how much money was raised in the 

abstract, but rather whether the funds were raised and spent for Mr. Trump’s 2024 

campaign.

Specifically, OGC posited that because Trump maintained a leadership PAC, 

Save America “receive[d] contributions and ma[de] expenditures on his behalf” in the 

context of a candidacy,83 and therefore the “more than $100 million” those entities 

raised easily clears the $5,000 contribution threshold.84 This analysis misses a step. 

Contributions raised for a leadership PAC, which was established by Trump when he 

was an officeholder, are not contributions for a future candidacy. They are 

contributions raised for a leadership PAC. OGC fails to explain how funds raised for 

Save America were, in fact, unambiguously connected to Trump’s 2024 campaign. 

The Commission cannot assume that link without undertaking a sea change in the 

law whereby funds raised for a leadership PAC are simply transmogrified into 

contributions to the candidate. There is no basis for doing this in the law, and it would 

have severely disruptive consequences for leadership PACs generally. It would also 

make no sense; leadership PACs principally work toward the election of candidates 

other than their sponsors, and many are maintained by former officeholders who do 

not run for reelection—and are, in some cases, deceased.85

80 MUR 7968 Trump Resp. at 2.

81 U.S. Const. amend. I.

82 Trump FGCR at 39–40 (“The Responses argue that Trump has ‘not accepted contributions or made 

expenditures in excess of $5,000 for the purpose of supporting an alleged candidacy.’ However, the 

Save America Committees have done so on his behalf, and have raised more than $100 million in the 

process.”).

83 Id. at 38–39 & n.166.

84 Id. at 40 (“These contributions and expenditures...far exceed the $5,000 threshold triggering 

candidacy under the Act.”).

85 See supra at n.35.

MUR793100322
16

The closest OGC comes to linking Save America to unambiguous 2024 election 

activity is a single Facebook advertisement run by Save America in the spring of 

2022. OGC notes that spending on that ad “surpassed $5,000 in total cost between 

May 5 and May 11, 2022.” 86 

The advertisement in question shows a picture of Mr. Trump with the 

overlayed text: “Would you vote for Trump a third time?”87 Above the image of Mr. 

Trump, there is text that says the following: 

LIVE POLL[:] Would you vote for President Trump a 3rd Time? 

President Trump was the greatest President of all time—there is no 

arguing with that. Team Trump is collecting responses from our best 

Patriots all around the Country, like YOU. You have 1 minute to submit 

your answer to our question below. Tell us now: would you vote for 

President Trump A 3rd Time?88 

The Facebook ad offers only one option (“Yes”), and “[c]licking on these ads redirects 

to a page with ‘yes’ or ‘no’ response options, and that requires the user to sign up for 

text messages ‘from President Trump’ sent by Save America JFC. Submitting the poll 

response then leads to a WinRed contribution page for Save America JFC.” 89

There are two problems with relying on this ad. First, there is no question that 

it post-dates the complaint against Mr. Trump. The Commission may initiate 

enforcement proceedings either based upon a complaint or “or on the basis of 

information ascertained in the normal course of carrying out its supervisory 

responsibilities.”90 This advertisement cannot meet the first qualification, because it 

post-dates the complaint and consequently cannot fall within its allegations. Even if 

we were inclined to expand the scope of complaints to include whatever later 

information OGC might find in reviewing a matter, we would be mindful of the 

significant problems of fairness involved in acting on allegations about which the

respondent could not possibly be on notice.91 Nor do we believe that OGC review of 

86 Trump SFGCR at 5, n.17. This ad was not appended to the complaints against Mr. Trump and was 

discovered by OGC’s review of the Meta Ad Library prior to any finding of reason to believe. As a 

result, the Trump Respondents did not have the opportunity, as the Biden Respondents did, to directly 

address any allegations about this particular communication.

87 Trump FGCR at 14.

88 Id. 

89 Id. 

90 52 U.S.C. § 30109(a)(2).

91 See Fed. Communications Comm’n v. Fox Television Studios, Inc., 567 U.S. 239, 253–54 (2012) 

(“Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected 

MUR793100323
17

information post-dating a complaint, undertaken solely because of that complaint, 

qualifies as information obtained in the “normal course” of the Commission’s 

“supervisory responsibilities.”92

More fundamentally, however, it is the complainant’s and Commission’s 

burden to demonstrate that there is reason to believe that this advertisement was an 

expenditure.93 Because it is a communicative advertisement, as opposed to money 

spent, for example, securing a candidate’s ballot access, and because the legal 

question is whether it was money spent by Save America on Mr. Trump’s behalf to 

support his 2024 candidacy, the evidence must show it “expressly advocate[s] the 

election or defeat of a clearly identified candidate.”94

A communication is express advocacy when it either (a) uses terminology 

“which in context can have no other reasonable meaning than to urge the election or 

defeat of one or more clearly identified candidate(s)” or when (b) “[t]he electoral 

portion of the communication is unmistakable, unambiguous, and suggestive of only 

one meaning; and...[r]easonable minds could not differ as to whether it encourages 

actions to elect or defeat one or more clearly identified candidate[s] or encourages 

some other kind of action.” 95

This communication, taken in context and as a whole, does not call for the 

reader to vote for Mr. Trump. Instead, we believe the best reading of the 

advertisement is as a list-building solicitation. The ad is designed to draw the 

attention of Trump supporters and obtain their contact information and financial 

support for Save America. At minimum, the advertisement cannot be express 

advocacy “when reasonable minds could differ as to whether it encourages a vote for 

or against a candidate or encourages the reader to take some other kind of action.” 96

Others may view the advertisement differently, but the standard is whether the

communication “can have no other reasonable meaning” or is “suggestive of only one 

meaning”—and there are multiple ways to understand this communication.97

but discrete due process concerns: first, that regulated parties should know what is required of them 

so they may act accordingly; second, precision and guidance are necessary so that those enforcing the 

law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence 

to those requirements is necessary to ensure that ambiguity does not chill protected speech.”) (citation 

omitted).

92 52 U.S.C. § 30109(a)(2).

93 Buckley, 424 U.S. at 79–80.

94 Id. 

95 11 C.F.R. § 100.22.

96 FEC v. Furgatch, 807 F.2d 857, 864 (9th Cir. 1987); accord 11 C.F.R. § 100.22(b)(2).

97 11 C.F.R. § 100.22(a) and (b)(1).

MUR793100324
18

Leadership PACs are allowed to fundraise using the likeness and public notoriety of 

a principal without turning those sponsors into federal candidates.98

Accordingly, we determined that there was insufficient evidence that former 

President Trump had become a federal candidate prior to November 15, 2022, and 

because OGC’s remaining recommendations all hinged on a reason-to-believe finding 

on that question, we voted against OGC’s enforcement recommendations in these 

Matters. 

Conclusion

We end where we began. The greatest original error of FECA was not First 

Amendment overbreadth. It was vagueness. The Commission—time and time 

again—has run afoul of the basic obligation to regulate with precision and ensure 

that its rules place ordinary people on notice of their legal obligations.99 “The First 

Amendment does not permit laws that force speakers to retain a campaign finance 

attorney...before discussing the most salient political issues of our day.”100

Here, the beginning and the bulk of OGC’s analysis was directed toward 

evaluating the statements—that is, the speech—of President Biden and former 

President Trump to determine whether they had decided to run for president. The 

First General Counsel Reports in both cases even evaluate the speech of others, such 

as the Secretary of Transportation or even “unnamed Democrats,” toward that end. 101

The Supreme Court long ago explained the problem with such an approach:

No speaker, in such circumstances, safely could assume that anything 

he might say upon the general subject would not be understood by some 

as an invitation. In short, the supposedly clear-cut distinction between 

discussion, laudation, general advocacy, and solicitation puts the 

speaker in these circumstances wholly at the mercy of the varied 

98 Contra Trump SFGCR at 8 (“In short, Save America’s spending on Facebook advertisements asking 

whether individuals would “vote for Trump” were either expenditures or in-kind contributions because 

they were made by an entity under Trump’s control to promote a candidacy Trump had already decided 

many months earlier to pursue.”).

99 Buckley, 424 U.S. at 43; Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 336 (2010) (“Yet, the 

FEC has created a regime that allows it to select what political speech is safe for public consumption 

by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal 

penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion 

approving of the political speech in question. Government officials pore over each word of a text to see 

if, in their judgment, it accords with the 11-factor test they have promulgated.”). 

100 Citizens United, 558 U.S. at 324.

101 Biden FGCR at 24.

MUR793100325
19

understanding of his hearers and consequently of whatever inference 

may be drawn as to his intent and meaning.102 

And the Court warned the Commission that such a rule “blankets with uncertainty 

whatever may be said. It compels the speaker to hedge and trim.”103

We see that borne out here. The record before the Commission is replete with 

examples of both the sitting President and Mr. Trump, a major figure in the 

opposition party, contorting their messages to fit to what they have been told is the 

Commission’s rule. The fine difference between the President saying he “will” run 

versus “plans to run;”104 the snap decision to raise a glass, or not, when the French 

President toasts a 2024 campaign;105 or even the choice not to answer a question 

because, in the speaker’s view, “the campaign finance laws are extremely complicated 

and unbelievably stupid,” 106 cannot form the basis for legal liability. 

Thankfully, that is not the Commission’s rule. Ambitious undergraduates and 

potential major-party nominees alike may take comfort in the fact that FECA and 

Commission regulations govern spending, not speech. A person becomes a candidate

only upon receiving $5,000 in contributions, or making $5,000 in expenditures, to 

advance that individual’s candidacy, regardless of how often he or she expresses 

interest in seeking office. 

Here, there was no reason to believe that either President Biden or former 

President Trump met that test prior to the formal initiation of their 2024 campaigns. 

Accordingly, we voted to find no reason to believe that any of the Respondents 

violated the law.

102 Buckley, 424 U.S. at 43 (quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)).

103 Id. 

104 Biden FGCR at 27.

105 Id. at 26.

106 Trump FGCR at 5.

MUR793100326
20

_________________________________ October 6, 2023

Sean J. Cooksey Date

Vice Chairman

__________________________________ October 6, 2023

Allen Dickerson Date

Commissioner

_________________________________ October 6, 2023

James E. “Trey” Trainor, III Date

Commissioner

MUR793100327