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contributions (the “Short Code Program”). An individual must affirmatively opt-in to receive 

short-code text messages from the Short Code Program. To opt in, individuals may either text a 

specified keyword to the Committee’s short code number (e.g., “Text NH2022 to 12345”), or 

provide their cell phone number to the Committee, through a form or webpage that requests optins to the Short Code Program and provides notice that the individual is consenting to receive 

automated text messages from the Committee (“Subscribers”). In operating the Short Code 

Program, the Committee only sends text messages to Subscribers who have opted into receiving 

messages from the Committee. The Committee pays a fee to a text messaging vendor to send 

each message to each Subscriber who has opted into receiving such messages.

The Committee wishes to send short code text messages to its Subscribers containing links to 

“split it” fundraising pages that allow contributions to multiple federal political committees.2

These types of fundraising pages are an effective fundraising strategy because they exponentially 

increase supporter enthusiasm by simultaneously highlighting multiple candidates. These pages 

also allow supporters to more efficiently participate in the political process by contributing to 

multiple candidates simultaneously. Notably, this Commission has unanimously opined that the 

use of such pages is not joint fundraising.3 Since the Commission approved of these types of 

fundraising pages, their use has become extremely common amongst the regulated community 

on both sides of the aisle.4

II. QUESTION PRESENTED

Are short code text messages containing links to “split-it” fundraising pages, which allow 

contributions to multiple federal political committees, subject to the joint fundraising rules under 

the Act and Commission regulations? 

(such as the Committee). Content providers use short codes to disseminate content to wireless users who have opted 

to receive the messages. FEC Adv. Op. 2012-31 at 2, n. 1 (AT&T). 2 The Committee notes that ActBlue allows “split it” fundraising in conjunction with nonfederal candidates and 

other entities that raise soft money. This request, however, is limited to raising funds in conjunction with other 

entities that are registered with and report to the Commission. The Committee is not seeking advice from the 

Commission regarding the application of state law. 3 FEC Adv. Op. 2014-13 (ActBlue) at 5. 4 See, e.g., ActBlue, Tandem Fundraising, https://support.actblue.com/campaigns/contribution-formfeatures/tandem-fundraising/; WinRed, Creating a Team Page, https://support.winred.com/en/articles/3730553-

creating-a-team-page; see also CFG Action, Facebook Ad, 

https://www facebook.com/ads/archive/render ad/?id=855184792124095&access token=EAAbSiR67EQwBAF7Sj

GqDpe4ZCXCDjg7waxSg6box4FKy5MyV5qTTZAO55ESknHLYfekU3ZAqMbN399JaR4HD8w1uOBbdEML0Y

r4CeU4mXIlh2EOlL90MirhfssgQEdWHLIPyH9ZB25UO7TzHMTJMulumdbI0QBldeYLB0EuGyAZDZD (paid 

advertisement from Club for Growth Action, which is not a joint fundraising committee, linking to a WinRed split it 

fundraising page).

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III. LEGAL ANALYSIS

Short code text messages containing links to “split it” fundraising pages would not be subject to

the joint fundraising rules because the use of such messages does not constitute an agreement on 

the part of the committees to fundraise jointly, and because short codes text messages do not 

involve allocable costs that would trigger the joint fundraising rules. 

A. Solicitations disseminated by one committee do not constitute an agreement on the part 

of the committees to fundraise jointly. 

In its 2014 advisory opinion regarding “split-it” fundraising pages, the Commission noted that 

the use of such pages did not constitute joint fundraising because the use of such pages “does not 

indicate that the recipient political committees have agreed to fundraise jointly or have

collectively arranged for the disposition of any contributions raised,” and that apart from the 

committee making the solicitation, the other committees in question “have no involvement in the 

creation, modification, or administration of the contribution form.”5

The same principle is true here, where a campaign is merely texting a split-it page to its 

Subscribers. Notably, the use of a “split it” fundraising page does not entail the creation, 

modification, or administration of a new fundraising account, entity, or even contribution form; 

rather, it merely involves embedding an existing contribution form for another committee on a 

fundraising page.6 Nor does the creation of a “split it” page entail any costs. Functionally, this is 

almost identical to an email or webpage containing links to the donate pages of multiple different 

candidates – a practice that the Commission has never treated as joint fundraising.7

Notably, the Commission has itself advised that fundraising on behalf of more than one 

committee does not necessarily constitute joint fundraising. In a 1990 rulemaking amending the 

language of 11 C.F.R. § 106.1, the Commission explained that “[t]he second example stated in 

the rules covers the costs of fundraising events where funds are collected by one committee for 

more than one clearly identified candidate. Such costs are to be allocated according [sic] the 

amount of funds received on behalf of each candidate as compared to the total receipts by all 

candidates. This situation should not be confused with that described in 11 CFR § 102.17, which 

concerns joint fundraising activities conducted by more than one committee.”8

5 FEC Adv. Op. 2014-13 (ActBlue) at 5. 6 See, e.g., ActBlue, Tandem Fundraising, https://support.actblue.com/campaigns/contribution-formfeatures/tandem-fundraising/ (“You can create a form for your own campaign or organization and add others who 

are working alongside you in your issue area, or you can create a form that lists groups you’d like to help support”). 7 See, e.g., FEC Adv. Op. 2011-14 (Utah Bankers Association) at 2. 8 FEC, Methods of Allocation Between Federal and Non-Federal Accounts; Payments; Reporting, 55 Fed. Reg. 

26058 (June 26, 1990).

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This explanation makes clear that collecting funds on behalf of multiple candidates is not per se

joint fundraising – and under the scenario described in this request, the Committee would not 

even be collecting funds; rather, it would merely be directing donors to the fundraising forms of 

other committees.

Furthermore, “split-it” fundraising pages are fundamentally inconsistent with the joint 

fundraising activities contemplated by the Act and Commission regulations. For example, the 

joint fundraising regulation requires the participants to enter into a written agreement 

“identify[ing] the fundraising representative and [stating] a formula for the allocation of 

fundraising proceeds.”9

 But in the case of “split-it” fundraising pages, there is no fundraising 

representative, and there is no allocation formula; funds are transmitted directly from the donor 

to each committee listed on the page through a payment processor like ActBlue. The donor can 

choose not only the amount to allocate to each committee, but also to not donate to one or more 

committees at all.

Similarly, the regulation refers to “commercial fundraising firm[s],” “[f]unds advanced for 

fundraising costs,” and “fundraising events,” but none of these are relevant to the practice of 

sending a text message to a supporter which allows the supporter to go to a webpage and make a 

contribution. Rather than two campaigns coming together with the mutual intent of holding joint 

events to raise funds, the activity contemplated in this request merely entails one campaign 

embedding on its fundraising page another campaign’s contribution form. In short, the language 

and requirements of the joint fundraising regulation, while relevant to traditional in-person 

fundraisers, are fundamentally inapplicable to this type of online fundraising (of course, the same 

may not be true of other types of online fundraising which do involve two campaigns coming 

together and making joint expenditures for the purpose of fundraising). 

Using split-it pages is ubiquitous for modern campaigns. In 2021, the two major political 

contribution processing platforms (ActBlue and WinRed) processed almost $1.9 billion in 

contributions, from millions of donors, for more than 20,000 campaigns and organizations.10

Treating text messages that promote split-it pages as joint fundraising would subject many of 

these campaigns and organizations – and their millions of supporters – to the expensive and 

onerous process of establishing a new joint fundraising committee, executing a new joint 

fundraising agreement, establishing a new depository, and so forth, merely on the basis of 

embedding an existing form for another campaign on an existing fundraising page. This would 

create an unnecessary barrier to participation in the political process for millions of donors, and, 

9 11 C.F.R. § 102.17(c)(1). 10 See ActBlue, 2021 Numbers Recap: Donors stay dedicated to fueling change (Jan. 27, 2022), 

https://blog.actblue.com/2022/01/27/2021-numbers-recap-donors-stay-dedicated-to-fueling-change/; WinRed, 

WinRed raises $559 million in 2021, over 3,200 campaigns and organizations use the platform today (Jan. 18, 

2022), https://winred.com/blog/2021-fundraising/. 

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as described above, is fundamentally inconsistent with the purpose of the joint fundraising 

regulations. 

B. Even if the use of a “split-it” fundraising page were to constitute an “agreement to 

fundraise jointly,” short code text messages are not public communications, and there 

would therefore be no allocable costs to trigger the joint fundraising rules. 

Under Commission regulations, the costs of a communication will result in an in-kind 

contribution only if the communication is a “coordinated communication.”11 In order to meet the 

definition of a coordinated communication, a communication must be either an “electioneering 

communication” or a “public communication.”12 “Electioneering communications” are defined 

to certain “broadcast, cable, or satellite communication[s].”13 A “public communication” is 

defined to include “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.”14 A 

communication that does not fit within one of those enumerated categories is not a public 

communication. Text messages sent through the Short Code Program are not sent by means of a 

broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, 

mass mailing,15 or telephone bank to the general public.16 Therefore, text messages can only be 

a public communication if they fall within the scope of “general public political advertising.”

In a 2011 advisory opinion, the Commission was asked whether an organization could “solicit 

individuals in the general public via email and the [organization’s] website to make contributions 

directly to certain recommended Federal Candidates.”17 The Commission opined that the “costs 

of the [organization’s] solicitations via email and website will not be in-kind contributions to the 

recommended candidates because the solicitations will not be ‘coordinated communications,’” 

stating that “[b]ecause the Project’s communications will appear only on the Project’s own 

website and by email, the communications will not be either public communications or 

electioneering communications...[b]ecause the content prong is not satisfied, the Project’s 

communications via email and on its own website will not be coordinated communications under 

11 11 C.F.R. § 109.21(b)(1). 12 Id. § 109.21(c). 13 Id. § 100.29. 14 52 U.S.C. § 30101(22); 11 C.F.R. § 100.26. 15 A “mass mailing” is defined as “a mailing by United States mail or facsimile of more than 500 pieces of mail 

matter of an identical or substantially similar nature within any 30-day period.” 52 U.S.C. § 30101(23); 11 C.F.R. § 

100.27.

16 A “telephone bank” is defined as “more than 500 telephone calls of an identical or substantially similar nature 

within any 30-day period.” 52 U.S.C. § 30101(24); 11 C.F.R. § 100.28. The plain language of this definition would 

not encompass text messages, and the FEC has never interpreted the scope of a “telephone bank” to include text 

messages. 

17 FEC Adv. Op. 2011-14.

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11 CFR 109.21. Accordingly, the costs of these communications will not be in-kind 

contributions.”18

In a 2013 enforcement action, the Commission similarly determined that email solicitations sent 

in coordination with a candidate did not constitute in-kind contributions to that candidate, noting 

that email solicitations “do not satisfy the content requirement because they are neither 

electioneering communications nor public communications... communications over the Internet 

are specifically exempt from the definition of ‘public communication’ unless placed for a fee on 

a third party website,” and concluding that therefore, “there was no coordinated communication 

under 11 C.F.R. § 109.21 and thus no contribution.”19

The same is true here. Text messages are by their nature communications, and therefore subject 

to the provisions of 11 C.F.R. § 109.21. However, short code text messages are not public 

communications, as defined by Commission regulations. As a plurality of the Commission has 

acknowledged, short code text messages “are similar to speech disseminated through a 

political...committee’s own website, which requires viewers to affirmatively access the 

communications and which the Commission previously concluded is not a public 

communication. For these reasons, [short code] text messages...do not constitute a form of 

general public political advertising and, therefore, are not public communications.”20

In its 2006 rulemaking regarding internet communications, the Commission amended the 

definition of a “public communication” in 11 C.F.R. § 100.26 to exclude “communications over 

the Internet, except for communications placed for a fee on another person’s Web site.” 21 In the 

accompanying Explanation and Justification, the Commission indicated that paid internet 

advertising falls within the scope of “general public political advertising,” but free internet 

activity does not, because in the former scenario “the advertiser is paying for access to an 

established audience using a forum controlled by another person, rather than using a forum that 

he or she controls to establish his or her own audience.”22 For the same reason, the Commission 

rejected the proposition that content by a political committee on its own website constitutes 

“general public political advertising.” Rather, the Commission determined that that “a political 

party committee’s Web site cannot be a form of ‘public communication’ any more than a Web 

site of an individual can be a form of ‘public communication.’ In each case, the Web site is 

controlled by the speaker, the content is viewed by an audience that sought it out, and the 

speaker is not required to pay a fee to place a message on a Web site controlled by another 

person.”23

18 Id. 19 MUR 6657, First General Counsel’s Report (May 6, 2013). 20 FEC Adv. Op. 2021-11 (DSCC & DCCC), Draft B at 5; see also FEC Adv. Op. 2021-11, Certification of Vote. 21 FEC, Internet Communications, 71 Fed. Reg. 18589 (Apr. 12, 2006). 22 Id. at 18594-95. 23 Id. at 18598. 

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This rationale is equally applicable to the Short Code Program. In operating the Short Code 

Program, the Committee uses its own text messages over its own short code to communicate 

with an audience that has sought it out. All recipients of text messages through the Short Code 

Program have affirmatively opted into receiving such messages. In addition, the Committee is 

not paying a fee to place its message on a forum controlled by a third party; rather, it is 

transmitting its messages directly to its own audience, the individual Subscribers. As such, the 

short code text messages described in this request are analogous to this type of free internet 

activity that the Commission has held falls outside the scope of general public political 

advertising. By sending these text messages, the Committee is communicating on an individual 

basis with an audience that has sought it out. In its 2006 Rulemaking, the Commission specified 

that for a communication to meet the definition of a public communication, the payor must pay 

the third-party intermediary “for access to the public through that form of media.”24 In addition, 

that intermediary must be “owned or controlled by another person.”25 Neither factor is true as 

applied to the Short Code Program. Unlike a television station or publication, text messaging 

vendors are not selling the Committee access to the vendors’ audiences or to the general public; 

rather, the Committee has obtained its own audience in the form of individual opted-in 

Subscribers, and the vendors are only providing the technology used by the Committee to 

communicate with its own audience. 

Furthermore, the costs associated with these text messages are functionally equivalent to the 

costs of operating an email program. Both types of costs allow the Committee to communicate 

directly with an audience that has affirmatively sought to receive communications from the 

Committee, rather than to pay a third party to distribute communications to its own audience as 

part of a forum that the third party controls. For all of these reasons, these communications are 

not aimed at the general public, nor are they for the purpose of “plac[ing] a message on a Web 

site controlled by another person.” 

The Commission has also consistently found that the cost of communications are not in-kind 

contributions unless they meet the definition of a coordinated communication under Commission 

regulations.26 Therefore, because short code messages are not public communications, and not 

coordinated communications, they also cannot be in-kind contributions (or expenditures) under § 

109.21, and thus do not represent the type of allocable cost that would trigger the joint 

fundraising rules. Simultaneously treating the same communications as expenditures for 

purposes of the joint fundraising rules, and not as expenditures for purposes of the coordinated 

communications rules, would produce a paradoxical result. 

24 Id. at 18594 (Apr. 12, 2006). 25 Id. 26 See, e.g., Adv. Op. 2011-14 (Utah Bankers Association); MUR 6477 (Turn Right USA), First General Counsel's 

Report at 8 (Dec. 27, 2011); MUR 6502 (Nebraska Democratic Party), First General Counsel's Report at 13 (May 

17, 2012); MUR 6522 (Lisa Wilson-Foley for Congress), First General Counsel's Report at 7 (Feb. 5, 2013); MUR 

6657 (Akin for Senate), First General Counsel's Report at 6-7 (May. 16, 2013); MUR 6722 (House Majority PAC), 

First General Counsel's Report at 4-5 (Aug. 6, 2013).

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In other words, even if the Commission were to determine that merely sending a text message 

with a link to a “split-it” fundraising page could constitute joint fundraising, as a factual matter 

there still would be no costs to allocate in this scenario, and the joint fundraising rules would 

therefore not be triggered. Ultimately, the purpose of the joint fundraising rules is to ensure the 

appropriate allocation of expenses when the expenses in question would otherwise result in an 

in-kind contribution, to avoid one committee paying for the fundraising costs of another.27 That 

purpose is inapplicable here because the communications in question would not constitute inkind contributions regardless. 

For these reasons, we ask the Commission to confirm that short code text messages containing 

links to “split-it” fundraising pages, which allow contributions to multiple political committees, 

are not subject to the joint fundraising rules under the Act and Commission regulations. 

Very truly yours, 

Jacquelyn Lopez 

Varoon Modak 

Counsel to Maggie for NH

27 See FEC, Public Financing of Presidential Primary and General Election Candidates, 56 Fed. Reg. 35898 (July 29, 

1991) (explaining that the “two problems” to be addressed by 11 C.F.R. § 102.17 are the lack of an “explicit 

allocation formula for determining the amounts to be distributed to each of the participating original committees,” 

and for how “the expenses for a series of fundraising events or activities must be allocated”). Neither of those 

problems exists here, because contributions are transmitted directly from donors to the recipient committees, and 

there are no allocable costs for fundraising events or activities.

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1

Joanna Waldstreicher

From: Varoon Modak <vmodak@elias.law>

Sent: Monday, August 22, 2022 11:03 PM

To: Amy Rothstein

Cc: Joanna Waldstreicher; Jacquelyn Lopez

Subject: Maggie for NH - Advisory Opinion Request - Supplemental Information

Amy, thanks again for taking the time to speak with us. Our answers to the follow‐up questions that we discussed are

below. Please let us know if we can provide any additional information in connection with this request.

1. Would Maggie for NH be coordinating with the other committees listed on the split‐it pages?

  

No. The split‐it pages at question in this request would be set up and administered by Maggie for NH without the

involvement of, or coordination with, the other committees listed on the pages.

2. Is the use of split‐it pages part of a larger effort by the committees listed on the split‐it pages to engage in

fundraising?

  

No. While Maggie for NH may choose to separately engage in joint fundraising activities with other committees as part

of its overall fundraising activities, those activities would be separate from activity proposed in the request.  

  

3. Who would decide which committees are listed on the split‐it pages?

  

Maggie for NH only.

  

4. Who would create and administer the ActBlue pages?

  

Maggie for NH only.

  

5. Would Maggie for NH itself be listed on the split‐it pages?

  

Yes.

  

6. Which other committees or entities would be listed on the split‐it pages?  

  

The split‐it pages could include federal candidates, party committees, or political action committees that are registered

with the Commission. No SSFs would be included. All solicitations would be for federally permissible funds and would

comply with all relevant requirements of the Act.  

  

7. Are there any costs associated with the use of ActBlue and/or an ActBlue split‐it pages?

  

Maggie for NH would not incur any costs for creation or administration of the ActBlue split‐it pages. The costs associated

with ActBlue processing contributions to each committee are already borne by those committees pursuant to their

existing contractual relationship with ActBlue, as approved by the Commission in Advisory Opinion 2014‐13; there are

no additional costs incurred by creation of a split‐it page.

  

8. How is a split‐it page created on ActBlue?

  

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Any committee can create a split‐it page that allows for simultaneous contributions to multiple committees, if the

committee has an existing ActBlue account. Such pages can be created without the knowledge or consent of the other

committees listed on the pages. Additional information regarding split‐it pages is available at:

https://support.actblue.com/campaigns/contribution‐form‐features/tandem‐fundraising/. Other political contribution

processing services such as WinRed also provide a similar feature: https://support.winred.com/en/articles/3730553‐

creating‐a‐team‐page.

  

9. What does an ActBlue split‐it page looks like?

  

An example can be found here: https://secure.actblue.com/donate/defendthesenate‐hassan

  

10. How much would each text message cost to send?

  

The cost of sending a text message varies by service/vendor, but is generally a few cents per text. The cost of a text

message would not change based on whether the message is linking to a split‐it page as opposed to a page that only

allows contributions to Maggie for NH.

Varoon Modak

Elias Law Group LLP

10 G St NE Ste 600

Washington DC 20002

202‐968‐4542

vmodak@elias.law

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

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notify the sender immediately and delete it from your system.

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