FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

February 27, 2024

AOR 2024-01 (Texas Majority PAC) Comment on Drafts A 

and B from Elias Law Group (Counsel to the Requestor)

Attached is a comment received from Elias Law Group on 

behalf of the requestor regarding AOR 2024-01 (Texas 

Majority PAC) Drafts A and B. This matter will be discussed 

on the next Open Meeting scheduled for February 29, 2024.

Attachment 
250 Massachusetts Ave NW, Suite 400 | Washington, DC 20001

February 26, 2024

Federal Election Commission

Office of the General Counsel

Federal Election Commission

1050 First Street, NE

Washington, DC 20463

ao@fec.gov

Re: Advisory Opinion Request 2024-1

Dear Acting General Counsel Stevenson:

We write in response to Drafts A and B. We urge the Commission to adopt Draft B.

I. Drafts A and B agree on several key points.

Before explaining why the Commission should adopt Draft B, we want to note that both Drafts A 

and B agree on the following points:

First, both Drafts A and B agree that the costs to produce and distribute the campaign literature 

and scripts are not “coordinated expenditures” under 11 C.F.R. § 109.20. Each draft bases that 

determination on the Commission’s 2003 E&J concluding that 11 C.F.R § 109.20 applies only to 

“expenditures that are not made for communications.”1

Second, both Drafts A and B agree that Texas Majority PAC’s (“TMP”) provision 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 would constitute a “contribution.”2

Third, both Drafts A and B concur that the Canvassing Literature and Script would constitute a 

“coordinated communication” only if it qualifies as “general public political advertising.”3

Fourth, both Drafts A and B agree that the Commission’s 2006 E&J sets forth the criteria that 

must be considered when determining whether a communication qualifies as “general public 

political advertising.”4

Federal law prescribes that “the term ‘public communication’ means a communication by means 

1 See Adv. Op. Req. 2024-1, Draft A (hereinafter, “Draft A”) at 12, n. 47; Adv. Op. Req. 2024-1, Draft B

(hereinafter, “Draft B”) at 11-12. 2 See Draft A at 12-13; Draft B at 12-13. 3 See Draft A at 7-8; Draft B at 7-8. 4 See Draft A at 7-8; Draft B at 8.
February 26, 2024

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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.”5 As Draft A notes, “[b]ecause paid door-to-door canvassing as 

proposed in the request is not expressly enumerated in the statutory or regulatory definition of 

‘public communication,’ the Commission must determine whether the Paid Canvass constitutes 

‘general public political advertising.’”6 In Advisory Opinion 2020-22, the Commission observed 

that “[t]he term ‘general public political advertising’ is not defined by the Act or Commission 

regulations. However, the Commission interprets each term listed in the definition of ‘public 

communication’ or in [52 U.S.C. § 30120(a)] as a specific example of one form of ‘general 

public political advertising.’”7 The Commission’s approach is consistent with the interpretive 

canon ejusdem generis, which counsels that “where general words follow specific words in a 

statutory enumeration, the general words are [usually] construed to embrace only objects similar 

in nature to those objects enumerated by the preceding specific words.”8

Consistent with its statutory obligation, the Commission articulated the common thread that 

unites all communications that qualify as “public communications” in the 2006 E&J:

The forms of mass communication enumerated in the definition of “public 

communication” in 2 U.S.C. 431(22), including television, radio, and newspapers, each 

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

another person. Thus, for an individual to communicate with the public using any of the 

forms of 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.9

In Advisory Opinion 2020-22, the Commission reiterated that all public communications “share 

several common elements, one of which is that they typically require the person making the 

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

audience.”10 The dissenting opinion concurred on this point, noting that “all general public 

political advertising communications rely on an intermediary to disseminate the message.”11 The 

cost of the communication is immaterial to the analysis. A digital advertisement that costs $100 

to produce and is placed for $1 on a third-party website is a “public communication”;12 a video 

that costs $25,000 to produce and is posted for free on YouTube is not a “public 

5 52 U.S.C. § 30101(22). 6 Draft A at 7. 7 FEC Adv. Op. 2022-20 (Maggie for NH) at 4 (quotations and citations omitted). 8 Yates v. United States, 574 U.S. 528, 545, 135 S. Ct. 1074, 1086, 191 L. Ed. 2d 64 (2015) (internal quotations and 

citations omitted).

9 Internet Communications, 71 Fed. Reg. 18,589, 18,594 (April 12, 2006). 10 Advisory Opinion 2022-20 (Maggie for NH) at 4. 11 Statement of Comm’rs Shana M. Broussard and Ellen L. Weintraub in 2022-20 (Maggie for NH) at 2. 12 Internet Communications, 71 Fed. Reg. at 18,595.
February 26, 2024

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communication.”13 As Draft A correctly summarizes, “the category of general public political 

advertising encompasses communications for which the speaker must rely on and pay a thirdparty to access the speaker’s target audience.”14 

II. Only Draft B correctly applies the test set forth in the 2006 E&J and affirmed in 

Advisory Opinion 2022-20.

The Script and Canvassing Literature are not the types of communications for which TMP must 

rely on and pay a third-party to access its target audience. TMP must pay television stations to 

access the television station’s audience; TMP must pay radio stations to access the radio station’s 

audience; TMP must pay Meta to access Meta’s audience; TMP must pay the Postal Service to 

access the Postal Service’s audience; and TMP must pay a billboard company to access its 

audience. There is simply no alternative. Here, however, TMP could hire an entirely different 

group of paid canvassers as employees and their access to the target audience would not be 

affected one iota – a clear distinction between canvassing and the aforementioned categories of 

“general public political advertising.” As Draft B correctly observes, “[u]nlike a newspaper or 

television company, the canvassing vendors will have no preexisting relationship with the 

canvass’s audience and will have no more right to communicate with the audience than TMP.”15

Draft A’s analytical error lies in its conflation of intermediaries and agents. Whether one looks at 

a dictionary or at the Commission’s own regulations – which, at 11 C.F.R. § 110.6(b), define the 

term “intermediary” to exclude individuals and vendors that are authorized by a political 

committee to raise funds on its behalf (e.g. its fundraising agents) – an agent includes persons 

who work on behalf of one party and an intermediary includes persons who have pre-existing 

relationships with both parties.

16 All the aforementioned categories of “general public political 

advertising communications rely on an intermediary to disseminate the message” – television 

advertising, radio advertising, digital advertising, mail, telephone banks, billboards, etc.17 Paid 

canvassing communications, such as the Script and Canvassing Literature, rely on agents to 

disseminate the message. 

Draft A’s attempt to shoehorn the paid canvassers into the category of “intermediary” is 

unpersuasive.18 Yes, the paid canvassers communicate TMP’s message to voters and record 

information that is transmitted back to TMP. But they do so as agents on behalf of TMP. They 

are no different than, say, a paid fundraiser for a federal candidate who solicits a donor as a 

fundraising agent for the candidate, and then reports back to the candidate on what the donor 

13 See First General Counsel Report, MUR 6657 (May 16, 2013) (Akin) at 6-7. 14 Draft A at 8 (emphasis added). 15 Draft B at 8. 16 See Adv. Op. Req. 2024-1 (Texas Majority PAC) at 5-6. 17 Statement of Comm’rs Shana M. Broussard and Ellen L. Weintraub Regarding Advisory Opinion 2022-20 

(Maggie for NH) at 2 (allocated). 18 Draft A at 8-9, n. 35.
February 26, 2024

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said. Nobody would call that person an “intermediary” – in fact, the soft money regulations 

would be undermined if they did, see 11 C.F.R. § 300.2 – and the same is true with paid 

canvassers. Under Draft A’s theory, every communication distributed via a vendor or consultant 

would be deemed “general public political advertising”; even the proverbial speech “made from 

a soapbox in the public square” if a committee paid a local actor to deliver it.19 That simply is 

not the law. The Commission has never even hinted, let alone held, that a communication’s 

status as “general public political advertising” turns on whether the sponsor uses in-house 

employees or a vendor to disseminate it, and such an approach finds no basis in the 

Commission’s regulations.

Draft A then incorrectly asserts that TMP’s proposed communications are “functionally similar 

to forms of media that are listed in the statutory definition of ‘public communication.’”20 But as

Draft B correctly observes, “door-to-door canvassing is a traditional grassroots activity 

fundamentally different from the types of mass media enumerated in the statutory definition of 

‘public communication.’”21 Unlike newer technologies that were unknown (or barely known) to 

Congress at the time it defined the term “public communication,” Congress was keenly aware of 

this form of political speech when it enacted the statute. In fact, of all the widely used forms 

political speech in use at the time Congress defined “public communication,” canvassing appears 

to be the one category that Congress failed to enumerate in the statute. That, in and of itself, is

powerful evidence of congressional intent. And it suggests that the Commission was correct in 

2006 when it drew a bright line between forms of communication that require payment to a thirdparty platform to access the platform’s audience and those that do not.

Finally, Draft A’s reliance on two enforcement actions is unpersuasive. Neither matter involved 

the question presented here: whether paid canvassing is a “public communication.” One matter

(Bono) pre-dated the Commission’s 2006 E&J, where the Commission clearly articulated a 

bright line between communications that qualify as “general public political advertising” and 

those that do not. The other matter (Hale) resulted in a dismissal that elided any need for 

commissioners to grapple with the question now before it. Notably, when commissioners have 

been asked to answer this question, they have overwhelmingly concluded that paid canvassing is 

not a “public communication.”22

19 Internet Communications, 71 Fed. Reg. at 18,594. 20 Draft A at 9. 21 Draft B at 9. 22 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); Statement of Reasons of Chairman Michael E. Toner & 
February 26, 2024

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Congress is free to pass laws regulating paid canvassing in the way it regulates television ads. 

The Commission may open a rulemaking to determine whether it should revisit the bright line it 

drew in 2006. But “regulated parties should know what is required of them so they may act 

accordingly” and “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.”23 Only Draft 

B follows the Commission’s clear precedents; Draft A does not. Draft B should be adopted.

Yours truly,

Jonathan S. Berkon

Courtney T. Weisman

Sarah N. Mahmood

Counsel to Texas Majority PAC

Comm’rs David M. Mason & Hans A. von Spakovsky at 5, MUR 5604 (Friends of William D. Mason) (Dec. 11, 

2006); 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. 23 F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253–54, 132 S. Ct. 2307, 2317, 183 L. Ed. 2d 234 (2012).