FEDERAL ELECTION COMMISSION 

Washington, DC 20463 

AGENDA DOCUMENT NO. 22-51-D 

AGENDA ITEM 

For meeting of Oct. 20, 2022

SUBMITTED LATE 

October 18, 2022 

MEMORANDUM 

TO: 

FROM: 

The Commission 

Lisa J. Stevenson Mr:5 £&1., L<Js 

Acting General Counsel {) v' -

Neven F. Stipanovic Mr:5 

Associate General Counsel 

Robert M. Knop RMK

Assistant General Counsel 

Heather Filemyr

Attorney 

Subject: Draft AO 2022-21 (DSCC, et al.) - Draft D 

We have been asked to place this draft on the Agenda by one or more Commissioners. 

Members ofthe public may submit written comments on the draft advisory opinion. We 

are making this draft available for comment until 9:00 am (Eastern Time) on September 

20, 2022. 

Members of the public may also attend the Commission meeting at which the draft will 

be considered. The advis01y opinion requestor may apperu· before the Commission at 

this meeting to answer questions. 

For more inf01mation about how to submit comments or attend the Commission meeting, 

go to https://www.fec.gov/legal-resources/advis01y-opinions-process/. 

Attachment 
1 ADVISORY OPINION 2022-21

2

3 Jacquelyn K. Lopez, Esq.

4 Rachel L. Jacobs, Esq.

5 Shanna M. Reulbach, Esq. DRAFT D

6 Jonathan A. Peterson, Esq.

7 Elias Law Group

8 10 G Street, NE

9 Suite 600

10 Washington D.C. 20002

11 Dear Counsel:

12 We are responding to your advisory opinion request on behalf of the DSCC, 

13 Bennet for Colorado, and People for Patty Murray concerning the application of the 

14 Federal Election Campaign Act, 52 U.S.C. §§ 30101-45 (the “Act”), and Commission 

15 regulations to requestors’ proposal for the DSCC to pay for two types of television 

16 advertisements, labeled Solicitation 1 and 2 in the request, using funds in the DSCC’s

17 account established under 52 U.S.C. § 30116(a)(9)(C) (“Legal Proceedings Account”). 

18 The proposed television advertisements would feature federal candidates, including 

19 Senators Bennet and Murray, and solicit donations to the Legal Proceedings Account. 

20 Requestors ask whether the proposal to pay for these advertisements using the Legal 

21 Proceedings Account is permissible and whether Bennet for Colorado and People for 

22 Patty Murray (collectively “Candidate Committees”) may coordinate the timing, content,

23 and placement of these advertisements with the DSCC. 

24 The Commission concludes that the DSCC may pay for both Solicitation 1 and 

25 Solicitation 2, subject to reasonable cost allocation among the DSCC’s accounts, 

26 including the Legal Proceedings Account. The Candidate Committees may coordinate 

27 both Solicitation 1 and Solicitation 2 with the DSCC, provided that those costs not 

28 reasonably allocable to the Legal Proceedings Account are either consistent with the 
AO 2022-21 (DSCC, et. al) 

Draft D 

Page 2

1 limits on coordinated expenditures by a national political party committee under 

2 52 U.S.C. § 30116(d)(3) or the DSCC treats those costs as in-kind contributions to the 

3 candidate with whom the advertisement is coordinated. 

4 Background 

5 The facts presented in this advisory opinion are based on your letter dated

6 September 20, 2022, your email dated September 23, 2022, and disclosure reports filed 

7 with the Commission. 

8 The DSCC is a national political party committee whose purpose is electing 

Democrats to the U.S. Senate.1 9 Bennet for Colorado is the principal campaign committee 

of Michael Bennet, the sitting Democratic senator from Colorado,2 10 and People for Patty 

11 Murray is the principal campaign committee of Patty Murray, the sitting Democratic 

senator from Washington state.3 12 Both senators are seeking re-election in the November 

13 2022 general election. 

14 The DSCC established the Legal Proceedings Account under 52 U.S.C. 

15 § 30116(a)(9)(C), and it represents that the account is used to pay for expenses in 

connection with recounts, contests, and other legal proceedings.4 16 Requestors provide two 

17 alternate proposals under which the DSCC would use this Legal Proceedings Account to 

1

 See DSCC, Statement of Organization, FEC Form 1(Sept. 19, 2022), https://docquery.fec.gov/cgibin/forms/C00042366/1630498/. 

2

 See Bennet for Colorado, Statement of Organization, FEC Form 1 (Aug. 17, 2022), 

https://docquery.fec.gov/cgi-bin/forms/C00458398/1624593/. 

3

 See People for Patty Murray, Statement of Organization, FEC Form 1 (Sept. 15, 2022), 

https://docquery.fec.gov/cgi-bin/forms/C00257642/1629812/. 

4 Advisory Opinion Request (“AOR”) at AOR001.
AO 2022-21 (DSCC, et. al)

Draft D

Page 3

1 pay for television advertisements soliciting donations to the Legal Proceedings Account; 

2 the advertisements would feature Senators Bennet and Murray and other federal 

3 candidates. Under both proposals, the requestors represent that all advertisements would 

4 “comply fully” with the disclaimer requirements of 52 U.S.C. § 30120 and 11 C.F.R. 

§ 110.11.5 5 Further, under both proposals, if any donation exceeded a donor’s limit to the 

6 Legal Proceedings Account, the DSCC would refund the excess portion of the donation. 

7 Any funds raised through either proposed solicitation “would be spent exclusively on 

8 legal proceedings that comply with the permissible uses of the Legal Proceedings 

Account.”6 9

10 For Solicitation 1, the advertisements purchased using funds from the Legal 

11 Proceedings Account would feature one or more candidates, including Senator Bennet 

12 and Senator Murray. The ads would air “in states across the country,” including 

13 Colorado and Washington, and may air in the jurisdiction in which the featured 

14 candidate(s) are candidate(s) for re-election as well as in other jurisdictions where the 

featured candidate(s) are not candidates.7 15 Solicitation 1 would “[i]nclude a clear 

16 solicitation asking viewers to donate to the Legal Proceedings Account so that [the] 

17 DSCC can protect the right to vote in court and prepare for potential recounts and 

election contests.”8 18 The solicitation included in these advertisements would be both oral 

19 and written, with the written solicitation appearing as an easily readable weblink. The 

5 AOR006.

6 AOR006. 

7 AOR002.

8 AOR002.
AO 2022-21 (DSCC, et. al)

Draft D

Page 4

1 weblink would direct viewers to a contribution page, which would clearly state that 

2 donations would be allocated to the DSCC’s Legal Proceedings Account.

3 The DSCC “wants to include recognizable political figures in the communications 

4 because it believes [doing so would] make viewers of the communications more likely to 

donate to the cause.”9 5 The advertisements would “focus on the issue of voter suppression 

and [would] make no mention of any political party.”10 6 The advertisements would also 

7 not contain express advocacy or publish or republish any candidate materials. The ads, 

8 however, would “[b]e coordinated, including timing, content, and placement” with the 

candidates appearing in the ads.

11 9

10 For Solicitation 2, the advertisements purchased using funds from the Legal 

11 Proceedings Account would feature “a single candidate seeking re-election . . . in the 

12 jurisdiction where the advertisement is disseminated” and would be “coordinated, 

13 including the timing, content, and placement with the Democratic Senate candidate 

whose race is featured” in the ad.12 14 Each ad would focus on “one or more policy issues 

15 central to the . . . general election in the jurisdiction of distribution” and “would either 

16 discuss a Democratic candidate and promote or support the candidate and [the 

17 candidate’s] policy position(s), or discuss a Republican candidate and attack or oppose 

the candidate and [the candidate’s] policy position(s).”13 18 The advertisement would not 

9 AOR002.

10 AOR006.

11 AOR002.

12 AOR003.

13 AOR003.
AO 2022-21 (DSCC, et. al)

Draft D

Page 5

1 publish or republish candidate materials, but “[m]ight in some circumstances expressly 

advocate the election or defeat of a clearly identified candidate for federal office.”14 2 The 

3 advertisements would not mention the Legal Proceedings Account or any legal 

4 proceedings, but would include a written link to an online webpage such as 

5 dscc.org/urgent and that website would “clearly state that all funds accepted through the 

page are allocated to [the] DSCC’s Legal Proceedings Account.”15 6

7 Questions Presented

8 1a. May the DSCC use funds in its Legal Proceedings Account to pay for 

9 television advertisements following the description for Solicitation 1? 

10 1b. May the Candidate Committees coordinate with the DSCC on such 

11 communications by having input on the content, timing, and placement of the 

12 communications for Solicitation 1?

13 2a. May the DSCC use funds in its Legal Proceedings Account to pay for 

14 television advertisements following the description for Solicitation 2? 

15 2b. May the Candidate Committees coordinate with the DSCC on such 

16 communications by having input on the content, timing, and placement of the 

17 communications for Solicitation 2?

18 Legal Analysis

19 1a. May the DSCC use funds in its Legal Proceedings Account to pay for 

20 television advertisements following the description for Solicitation 1?

14 AOR003.

15 AOR003.
AO 2022-21 (DSCC, et. al)

Draft D

Page 6

1 The DSCC may pay for television advertisements meeting the description of

2 Solicitation 1, subject to reasonable cost allocation among its accounts to the extent that 

3 those communications are attributable to more than one purpose. If Solicitation 1 

4 qualifies as both a solicitation to its Legal Proceedings Account and a party coordinated 

5 communication, the DSCC’s costs for Solicitation 1 must be reasonably allocated 

6 between the Legal Proceedings Account and an account other than the Legal Proceedings 

7 Account.

8 As added to the Act by the Consolidated and Further Continuing Appropriations 

9 Act, 2015 (“Appropriations Act”), 52 U.S.C. § 30116(a)(9)(C) authorizes a national party 

10 committee, including a national congressional campaign committee, to establish a 

11 “separate, segregated account” to “defray expenses incurred with respect to the

12 preparation for and conduct of election recounts and contests and other legal

proceedings.”16 13 Statements by House and Senate leaders at the time 52 U.S.C. 

14 § 30116(a)(9)(C) was enacted explained that “Commission precedent” on the raising and 

15 spending of recount funds would continue to apply to national party committee accounts 

16 established under 52 U.S.C. § 30116(a)(9)(C); those statements each cited earlier 

Commission advisory opinions on recount accounts.

17 17

18 Although the Commission has not previously addressed the issue of payment for 

19 solicitations in the context of an account established under 52 U.S.C. § 30116(a)(9)(C), 

16 Consolidated and Further Continuing Appropriations Act of 2015, Pub. L. No. 113-235, § 101, 

128 Stat. 2130, 2772–73 (2014).

17 160 Cong. Rec. H9286 (daily ed. Dec. 11, 2014) (statement of Rep. Boehner); 160 Cong. Rec. 

S6814 (daily ed. Dec. 13, 2014) (statement of Sen. Reid).
AO 2022-21 (DSCC, et. al)

Draft D

Page 7

1 the Commission has explained in previous advisory opinions that “Commission 

2 regulations generally permit (and in some cases require) the proceeds of fundraising 

activities to be used to defray the costs of those activities.”18 3 Additionally, “Commission

4 regulations . . . generally permit (and in some cases require) the allocation of expenses 

attributable to more than one purpose.”19 5

6 Prior to the enactment of 52 U.S.C. § 30116(a)(9)(C), the Commission concluded 

7 in Advisory Opinion 2010-14 (DSCC) that the DSCC could allocate expenses attributable 

8 to both recount activities and campaign activities and could not allocate costs for 

campaign activities to its recount account.20 9 The Commission explained in that advisory 

10 opinion that while the Commission regulations and prior advisory opinions did not

11 address the allocation of costs between recount and campaign activities, the 

12 Commission’s allocation regulations “stand generally for the proposition that allocation is 

an appropriate way to fund activities with multiple purposes.”21 13

14 This principle applies here. Under the circumstances presented, Solicitation 1

15 could serve two purposes: it would include a solicitation of funds to the Legal 

16 Proceedings Account, and could contain other content that would qualify the resulting 

18 See Advisory Opinion 2010-14 (DSCC) at 5 (“The DSCC may also use recount funds to defray 

the costs of soliciting donations to the recount fund.”) (citing 11 C.F.R. §§ 102.17(c)(7)(i)(A), 

9003.3(a)(2)(i)(E), Advisory Opinion 2003-15 (Majette)); see also 160 Cong. Rec. H9286 (daily ed. Dec. 

11, 2014) (statement of Rep. Boehner) (explaining that permissible uses of funds in 52 U.S.C. 

§ 30116(a)(9)(C) account “include[e] the costs of fundraising for this segregated account”); 160 Cong. Rec. 

S6814 (daily ed. Dec. 13, 2014) (statement of Sen. Reid) (same).

19 Advisory Opinion 2010-14 (DSCC) at 6 (citing 11 C.F.R. § 102.5(a), Part 106, Part 300, and § 

9003.3(a)(2)(ii)).

20 Id. at 6–7.

21 Id. at 6.
AO 2022-21 (DSCC, et. al)

Draft D

Page 8

television advertisement as a party coordinated communication.

22 1 As such, to the extent 

2 that Solicitation 1 is attributable to more than one purpose, the DSCC must use a 

3 reasonable method to allocate the costs for its solicitation of donations to its Legal 

4 Proceedings Account and allocate the costs for other purposes to other accounts from 

5 which such disbursements are permissible.

6 1b. May the Candidate Committees coordinate with the DSCC on such 

7 communications by having input on the content, timing, and placement of the 

8 communications for Solicitation 1?

9 The Candidate Committees may coordinate with the DSCC on the content, 

10 timing, and placement of the communications for Solicitation 1, provided that the 

11 DSCC’s costs for Solicitation 1 that are not allocable to the Legal Proceedings Account 

12 are either consistent with the limitations on coordinated national party committee 

13 expenditures under 52 U.S.C. § 30116(d)(3) or those costs are treated by the DSCC as in14 kind contributions to the candidate with whom Solicitation 1 is coordinated. 

15 The Act limits coordinated expenditures by a national party committee on behalf 

of a federal candidate of that party.23 16 While those limits do not apply to disbursements 

17 from a national party committee’s separate, segregated account established under 

52 U.S.C. § 30116(a)(9)(C),24 18 they do apply to disbursements from national party 

19 committee accounts not established under 52 U.S.C. § 30116(a)(9)(C).

22 11 C.F.R. § 109.37(a)(2).

23 52 U.S.C. § 30116(d)(3); see also 11 C.F.R. § 109.32(b).

24 52 U.S.C. § 30116(d)(5). 
AO 2022-21 (DSCC, et. al)

Draft D

Page 9

1 The Commission’s regulation at 11 C.F.R. § 109.37 defines a party coordinated 

2 communication as a communication that meets certain payment, content, and conduct 

3 standards. The payment prong is met if the communication is paid for by a political party 

committee or its agent.

25 4 The content prong is met if the communication meets one of 

three standards, including if the communication is a public communication26 5 that 

6 “expressly advocates the election or defeat of a clearly identified candidate for Federal 

7 office” or “refers to a clearly identified House or Senate candidate and is publicly 

8 distributed or otherwise publicly disseminated in the clearly identified candidate’s 

9 jurisdiction 90 days or fewer before the clearly identified candidate’s general . . . 

election.”27 10 Finally, a communication meets the conduct prong if it meets any one of six 

11 standards, including that a candidate or candidate’s committee is “materially involved” in 

12 decisions regarding the “content” of the communication, the “means or mode” or 

13 “specific media outlet used” for the communication, or the “timing or frequency” of the 

communication.28 14

15 Proposed Solicitation 1 could meet the definition of a party coordinated 

16 communication. First, because the DSCC proposes to pay for proposed Solicitation 1, 

that communication satisfies the payment prong.29 17 Second, the communication would

25 11 C.F.R. § 109.37(a)(1).

26 The definition of “public communication” includes a “communication by means of any broadcast, 

cable, or satellite communication.” 11 C.F.R. § 100.26.

27 11 C.F.R. § 109.37(a)(2)(ii)–(iii).

28 11 C.F.R. §§ 109.37(a)(3), 109.21(d)(2). 

29 11 C.F.R. § 109.37(a)(1).
AO 2022-21 (DSCC, et. al)

Draft D

Page 10

1 satisfy the content prong if it features a candidate seeking re-election in November 2022 

2 in the jurisdiction where the advertisement is disseminated and airs within 90 days of that 

candidate’s general election.30 3 Requestors state that Solicitation 1 would feature one or 

4 more candidates, including Senator Bennet and Senator Murray, and may air in the 

5 jurisdiction in which the featured candidate(s) are candidate(s) for re-election as well as 

in other jurisdictions where the featured candidate(s) are not candidates.31 6 Finally, 

7 Solicitation 1 satisfies the conduct prong because the proposed television advertisements 

8 described meet one of the conduct standards: Requestors state that the DSCC would 

9 coordinate the “timing, content, and placement [of the communication] with the 

Democratic Senate candidate appearing in the advertisement,”32 10 which fulfills the 

“material involvement” conduct standard.33 11

12 Commission regulations provide that a party coordinated communication must be 

13 treated by the political party committee making the payment as either an “in-kind 

14 contribution . . . to the candidate with whom it is coordinated” or a “coordinated party 

15 expenditure. . . . in connection with the general election campaign of the candidate with 

whom it was coordinated.”34 16 Accordingly, the Candidate Committees may coordinate 

17 with the DSCC on Solicitation 1 as proposed, provided that the DSCC treats costs for 

18 Solicitation 1 not allocable to the Legal Proceedings Account as either in-kind candidate 

30 AOR002; 11 C.F.R. § 109.37(a)(2)(iii)(A).

31 AOR002.

32 AOR002.

33 11 C.F.R. §§ 109.21(d)(2); 109.37(a)(3) 

34 11 C.F.R. § 109.37(b).
AO 2022-21 (DSCC, et. al)

Draft D

Page 11

1 contributions or coordinated party expenditures subject to the Act’s limits on such 

2 contributions and coordinated expenditures.

3 2a. May the DSCC use funds in its Legal Proceedings Account to pay for 

4 television advertisements following the description for Solicitation 2? 

5 The DSCC may pay for television advertisements meeting the description of

6 Solicitation 2, subject to reasonable cost allocation among its accounts to the extent that 

7 those communications are attributable to more than one purpose. Because Solicitation 2 

8 qualifies as both a solicitation to its Legal Proceedings Account and a party coordinated 

9 communication, the DSCC’s costs for Solicitation 2 must be reasonably allocated 

10 between the Legal Proceedings Account and an account other than the Legal Proceedings 

11 Account.

12 Although the Commission has not previously addressed the issue of payment for 

13 solicitations in the context of an account established under 52 U.S.C. § 30116(a)(9)(C), 

14 the Commission has explained in previous advisory opinions that “Commission 

15 regulations generally permit (and in some cases require) the proceeds of fundraising 

activities to be used to defray the costs of those activities.”35 16 Additionally, “Commission

35 See Advisory Opinion 2010-14 (DSCC) at 5 (“The DSCC may also use recount funds to defray 

the costs of soliciting donations to the recount fund.”) (citing 11 C.F.R. §§ 102.17(c)(7)(i)(A), 

9003.3(a)(2)(i)(E), Advisory Opinion 2003-15 (Majette)); see also 160 Cong. Rec. H9286 (daily ed. Dec. 

11, 2014) (statement of Rep. Boehner) (explaining that permissible uses of funds in 52 U.S.C. 

§ 30116(a)(9)(C) account “include[e] the costs of fundraising for this segregated account”); 160 Cong. Rec. 

S6814 (daily ed. Dec. 13, 2014) (statement of Sen. Reid) (same).
AO 2022-21 (DSCC, et. al)

Draft D

Page 12

1 regulations . . . generally permit (and in some cases require) the allocation of expenses 

attributable to more than one purpose.”36 2

3 Prior to the enactment of 52 U.S.C. § 30116(a)(9)(C), the Commission concluded 

4 in Advisory Opinion 2010-14 (DSCC) that the DSCC could allocate expenses attributable 

5 to both recount activities and campaign activities and could not allocate costs for 

campaign activities to its recount account.37 6 The Commission explained in that advisory 

7 opinion that while the Commission regulations and prior advisory opinions did not

8 address the allocation of costs between recount and campaign activities, the

9 Commission’s allocation regulations “stand generally for the proposition that allocation is 

an appropriate way to fund activities with multiple purposes.”38 10

11 This principle applies here. Under the circumstances presented, Solicitation 2 

12 would serve two purposes: it includes both a solicitation of funds to the Legal 

13 Proceedings Account as well as other content that would qualify the resulting television 

advertisement as a party coordinated communication.

39 14 Specifically, Solicitation 2 would

15 refer to a clearly identified Senate candidate in that candidate’s jurisdiction in a television 

16 advertisement publicly disseminated 90 days or fewer before that candidate’s general 

election,40 17 and might expressly advocate for the election or defeat of a clearly identified 

36 Advisory Opinion 2010-14 (DSCC) at 6 (citing 11 C.F.R. § 102.5(a), Part 106, Part 300, and § 

9003.3(a)(2)(ii)).

37 Id. at 6-7.

38 Id. at 6.

39 11 C.F.R. § 109.37(a)(2).

40 AOR003. 
AO 2022-21 (DSCC, et. al)

Draft D

Page 13

federal candidate “in some circumstances.”41 1 As such, to the extent that Solicitation 2 is 

2 attributable to more than one purpose, the DSCC must use a reasonable method to 

3 allocate the costs for its solicitation of donations to its Legal Proceedings Account and 

4 allocate the costs for other purposes to other accounts from which such disbursements are 

5 permissible.

6 2b. May the Candidate Committees coordinate with the DSCC on such 

7 communications by having input on the content, timing, and placement of the 

8 communications for Solicitation 2?

9 The Candidate Committees may coordinate with the DSCC on the content, 

10 timing, and placement of the communications for Solicitation 2, provided that the 

11 DSCC’s costs for Solicitation 2 that are not allocable to the Legal Proceedings Account 

12 are either consistent with the limitations on coordinated national party committee 

13 expenditures under 52 U.S.C. § 30116(d)(3) or those costs are treated by the DSCC as in14 kind contributions to the candidate with whom Solicitation 2 is coordinated.

15 The Act limits coordinated expenditures by a national party committee on behalf 

of a federal candidate of that party.42 16 While those limits do not apply to disbursements 

17 from a national party committee’s separate, segregated account established under 

52 U.S.C. § 30116(a)(9)(C),

43 18 they do apply to disbursements from national party 

19 committee accounts not established under 52 U.S.C. § 30116(a)(9)(C).

41 AOR003.

42 52 U.S.C. § 30116(d)(3); see also 11 C.F.R. § 109.32(b).

43 52 U.S.C. § 30116(d)(5). 
AO 2022-21 (DSCC, et. al)

Draft D

Page 14

1 The Commission’s regulation at 11 C.F.R. § 109.37 defines a party coordinated 

2 communication as one that meets certain payment, content, and conduct standards. The 

3 payment prong is met if the communication is paid for by a political party committee or 

its agent.

44 4 The content prong is met if the communication meets one of three standards, 

including if the communication is a public communication45 5 that “expressly advocates 

6 the election or defeat of a clearly identified candidate for Federal office” or “refers to a 

7 clearly identified House or Senate candidate and is publicly distributed or otherwise 

8 publicly disseminated in the clearly identified candidate’s jurisdiction 90 days or fewer 

before the clearly identified candidate’s general . . . election.”46 9 Finally, a 

10 communication meets the conduct prong if it meets any one of six standards, including 

11 that a candidate or candidate’s committee is “materially involved” in decisions regarding 

12 the “content” of the communication, the “means or mode” or “specific media outlet used” 

for the communication, or the “timing or frequency” of the communication.

47 13

14 Proposed Solicitation 2 meets the definition of a party coordinated 

15 communication. First, because the DSCC proposes to pay for proposed Solicitation 2, 

that communication satisfies the payment prong.48 16 Second, Requestors state that 

44 11 C.F.R. § 109.37(a)(1).

45 The definition of “public communication” includes a “communication by means of any broadcast, 

cable, or satellite communication.” 11 C.F.R. § 100.26.

46 11 C.F.R. § 109.37(a)(2)(ii)–(iii).

47 11 C.F.R. §§ 109.37(a)(3), 109.21(d)(2). None of the exceptions in 11 C.F.R. § 109.37(a)(3) 

apply to proposed Solicitation 2. Proposed Solicitation 2 does not qualify for the safe harbor at 11 C.F.R. 

§ 109.21(g)(2) for solicitations by federal candidates for contributions to political committees because 

Solicitation 2 would promote, support, attack, or oppose the soliciting candidate or another candidate who 

seeks election to the same office as the soliciting candidate. AOR003.

48 11 C.F.R. § 109.37(a)(1).
AO 2022-21 (DSCC, et. al)

Draft D

Page 15

1 Solicitation 2 “[m]ight” expressly advocate the election or defeat of a clearly identified 

federal candidate, 49 2 in which case the communication would satisfy the content prong 

because it would be a public communication containing express advocacy.

50 3 

4 Alternatively, even if Solicitation 2 does not contain express advocacy, it would still 

5 satisfy the content prong because it would “[f]eature a single candidate seeking re6 election in November 2022 in the jurisdiction where the advertisement is disseminated” 

and would air within 90 days of that candidate’s general election.51 7 Finally, Solicitation 

8 2 satisfies the conduct prong because the proposed television advertisements described 

9 meet one of the conduct standards: Requestors state that the DSCC would coordinate the 

10 “timing, content, and placement [of the communication] with the Democratic Senate 

candidate whose race is featured in the advertisement,”52 11 which fulfills the “material 

involvement” conduct standard.53 12

13 Commission regulations provide that a party coordinated communication must be 

14 treated by the political party committee making the payment as either an “in-kind 

15 contribution . . . to the candidate with whom it is coordinated” or a “coordinated party 

16 expenditure. . . . in connection with the general election campaign of the candidate with 

whom it was coordinated.”54 17 Accordingly, the Candidate Committees may coordinate 

49 AOR003.

50 11 C.F.R. § 109.37(a)(2)(ii).

51 AOR003; 11 C.F.R. § 109.37(a)(2)(iii)(A).

52 AOR003.

53 11 C.F.R. §§ 109.21(d)(2); 109.37(a)(3) 

54 11 C.F.R. § 109.37(b).
AO 2022-21 (DSCC, et. al)

Draft D

Page 16

1 with the DSCC on Solicitation 2 as proposed, provided that the DSCC treats costs for 

2 Solicitation 2 not allocable to the Legal Proceedings Account as either in-kind candidate 

3 contributions or coordinated party expenditures subject to the Act’s limits on such 

4 contributions and coordinated expenditures.

5 This response constitutes an advisory opinion concerning the application of the 

6 Act and Commission regulations to the specific transaction or activity set forth in your 

request.55 7 The Commission emphasizes that, if there is a change in any of the facts or 

8 assumptions presented, and such facts or assumptions are material to a conclusion 

9 presented in this advisory opinion, then the requestors may not rely on that conclusion as 

10 support for its proposed activity. Any person involved in any specific transaction or 

11 activity that is indistinguishable in all its material aspects from the transaction or activity 

12 with respect to which this advisory opinion is rendered may rely on this advisory 

opinion.56 13 Please note that the analysis or conclusions in this advisory opinion may be 

14 affected by subsequent developments in the law including, but not limited to, statutes,

15 regulations, advisory opinions, and case law. Any advisory opinions cited herein are 

16 available on the Commission’s website. 

17 On behalf of the Commission,

18 Allen J. Dickerson

19 Chairman

55 See 52 U.S.C. § 30108. 

56 See 52 U.S.C. § 30108(c)(1)(B).