FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

March 18, 2024

AOR 2024-01 (Texas Majority PAC) Responses 

from the NRSC's comment

Attached is AOR 2024-01 (Texas Majority PAC) Responses from the NRSC's 

comment

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

March 16, 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 the NRSC’s comment submitted on the morning of Thursday’s 

Commission meeting.1 The NRSC’s comment raises two important questions: one, which set of 

facts would support a finding that a federal candidate or political party is “spending” soft money 

or “controls” an organization that is doing so (both of which BCRA forbids); and, two, does part 

114 of the Commission’s regulations impose additional restrictions on get-out-the-vote 

canvassing programs sponsored by corporations?

Neither question, however, is part of Texas Majority PAC’s (“TMP”) request. And for good 

reason: TMP is not a federal candidate or political party, and TMP is not proposing to spend 

corporate funds on the canvassing program. The Commission can – and by statute, must –

respond to the request submitted by TMP. It may not simply “move on” from TMP’s request, as 

NRSC urges, nor may it issue an opinion colored by NRSC’s materially distinct hypothetical.

2

But if it so chooses, the Commission can modify Draft B to acknowledge that TMP’s request –

and the Commission’s opinion – is limited to the specific questions posed and does not address 

what level of candidate or party involvement is required to constitute impermissible “spending” 

or “control” under the soft money ban, or whether corporate funds may be used to finance the 

same program. In doing so, the Commission would be meeting its statutory obligations while 

properly limiting its opinion to the questions presented.

I. The Commission should answer the four questions that TMP poses.

Federal law permits any person to request an advisory opinion concerning the application of the 

Federal Election Campaign Act (“FECA” or “the Act”), regarding “a specific transaction or 

1 See FEC Adv. Op. Req. 2024-1 (Texas Majority PAC), Comment on Drafts A and B (NRSC) (“NRSC Comment”) 

(March 13, 2024) at 1..

2 See 11 C.F.R. § 112.1(b) (“Requests presenting a general question of interpretation, or posing a hypothetical 

situation, or regarding the activities of third parties, do not qualify as advisory opinion requests.”).
March 16, 2024

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activity that the requesting person plans to undertake or is presently undertaking and intends to 

undertake in the future.”3 The Commission is required to issue a written advisory opinion in 

response to the requester (or, alternatively, a response stating that the Commission was unable to 

approve an advisory opinion by the required number of votes).4

The advisory opinion process “exists so that the Commission may provide guidance as to how 

FECA applies to a requestor’s specific circumstances.”5 Accordingly, when considering an 

advisory opinion, the Commission must answer “the question presented by [the] requestor, based 

upon the unique facts and [] characteristics presented” by that requester.6 The advisory opinion 

must be “premised on the specific facts and circumstances posited in [the] request.”7 That is why 

requests “posing a hypothetical situation, or regarding the activities of third parties” do not 

qualify as advisory opinions, and the Commission has repeatedly declined to consider such 

requests.8 “Questions [that] are hypothetical and present general questions of interpretation of 

the Act, rather than specific transactions or activities . . . are [] not proper for an advisory 

opinion.”9

TMP has crafted a proper advisory opinion request (as confirmed by the Commission’s 

acceptance of it). TMP poses four questions to the Commission, each of which relates

specifically to activities that TMP proposes to undertake and the answers to which directly affect 

TMP’s compliance with the Act and Commission regulations:

1. Are the Canvassing Literature or Script “public communications” under 11 C.F.R. § 

109.26? 

2. Are the Canvassing Literature or Script “coordinated communications” under 11 C.F.R. § 

109.21? 

3. Are the Production Costs or Distribution Costs “coordinated expenditures” under 11 

C.F.R. § 109.20? 

4. May TMP provide any of the data that arises from the paid canvasses to a federal 

3 52 U.S.C. § 30108(a)(1); 11 C.F.R. § 112.1. 4 52 U.S.C. § 30108(a), (b); 11 C.F.R. § 112.4(a). 5 Statement of Reasons of Chairman Allen Dickerson and Commissioners Sean J. Cooksey and James E. “Trey” 

Trainor, MUR 7491 (emphasis added). 6 Concurring Statement of Vice Chair Caroline C. Hunter and Commissioners Lee E. Goodman and Matthew S. 

Petersen, FEC Adv. Op. 2017-12 (Take Back Action Fund). 7 FEC Adv. Op. 2003-37 (Americans for a Better Country) at 1. 8 11 C.F.R. § 112.1(b); see FEC Adv. Op. 2003-37 (Americans for a Better Country) at 10; FEC Adv. Op. 2021-04 

(Pray.com) at 2, n. 8; FEC Adv. Op. 2006-41 (NRSC and DSCC) at 11; FEC Adv. Op. 2006-32 (Progress for 

America). 

9 FEC Adv. Op. 2003-37 (Americans for a Better Country) at 8.
March 16, 2024

Page 3

candidate or party committee at no charge or less than its fair market value?

The Commission can issue an opinion answering TMP’s four questions and nothing in the 

NRSC’s comment affects that:

• In its comments, the NRSC makes clear its view that the answers to questions #1 and #2 

are “no.”10 We agree. For the reasons we have previously articulated, the Commissioners 

should therefore issue an opinion that answers “no” to questions #1 and #2.

• The NRSC does not opine on the answer to Question #3. Both Drafts A and B agree that 

the answer to Question #3 is “no.” For the reasons we have previously articulated, the 

Commissioners should therefore answer “no” to Question #3.

• The NRSC does not opine on the answer to Question #4. Both Drafts A and B agree that 

the answer to Question #4 is that the provision of such data would constitute an in-kind 

contribution. TMP does not dispute that conclusion.

As noted above, the Commission can make clear in a modified Draft B that its opinion is limited 

to these questions and does not address what level of candidate or party involvement is required 

to constitute impermissible “spending” or “control” for purposes of the soft money ban, or 

whether corporate funds may be used to finance the same program. 

II. Granting TMP’s request does not prevent the Commission from answering the 

NRSC’s questions if and when they are properly presented.

The NRSC’s comment raises two issues not squarely before the Commission in TMP’s request: 

the scope of the soft money ban and the regulations governing corporate GOTV drives. As the 

NRSC correctly observes, the so-called “soft money” ban is central to the “current campaign 

finance regime.”11 The soft money ban makes it illegal for a federal candidate or “an entity 

directly or indirectly established, financed, maintained, or controlled by” a federal candidate to 

“solicit, receive, direct, transfer, or spend funds in connection with an election for Federal office, 

including funds for any Federal election activity, unless the funds are subject to the limitations, 

prohibitions, and reporting requirements of this Act.”12 Similar rules govern party committees.

TMP agrees with the NRSC that there are hypothetical scenarios where a candidate or political 

party’s participation in a paid canvassing program and/or in the organization that sponsored it 

rise to the level of impermissible “spending” or “control.” If such facts were substantiated in a 

10 See NRSC Comment at 4 (“Draft B’s coordinated communications analysis (as well as many commentors) 

correctly elucidates the errors plainly obvious in Draft A’s first conclusion, and there is little need to reiterate the 

reasons to reject Draft A.”). 11 NRSC Comment at 1. 12 52 U.S.C. § 30125(1)(A).
March 16, 2024

Page 4

complaint to the Commission, for example, the Commission could find that the candidate or 

political party had violated the soft money bans found at 52 U.S.C. §§ 30125(a), (e)(1)(A).

TMP’s request, however, is not the proper vehicle for the Commission to address this question.

While TMP concedes that “it will come into possession of nonpublic plans, projects, activities, 

or needs of candidates (federal and nonfederal) and/or political parties within the meaning of 11 

C.F.R. § 109.21(d)(3),”13 coordination is a distinct legal concept from the soft money ban. In 

McConnell v. FEC, the Supreme Court held that activity satisfies the conduct prong set forth in 

11 C.F.R. § 109.21(d) does not violate BCRA’s soft money ban, indicating that the conduct

covered by section 109.21 is not coterminous with conduct covered by the soft money ban:

Nothing on the face of § 323(a) prohibits national party officers, whether acting in their 

official or individual capacities, from sitting down with state and local party committees 

or candidates to plan and advise how to raise and spend soft money. As long as the 

national party officer does not personally spend, receive, direct, or solicit soft money, § 

323(a) permits a wide range of joint planning and electioneering activity.14

The Commission is bound by that holding, as it recognized in the Corzine AO in 2005.15 In the 

Corzine AO, in fact, the Commission specifically held that a federal officeholder may coordinate 

with an entity spending soft money on GOTV activities without violating the soft money ban:

McConnell has made clear as a matter of law that BCRA does not preclude parties and 

candidates from discussing campaign strategy and fundraising goals with one another. 

Therefore, if Senator Corzine or his agents discuss the spending plans of other specific 

candidates or committees, such discussions would not, in and of themselves, constitute 

“spending” or “disbursing” funds. For example, if Senator Corzine or his agents were to 

discuss with the State and local party committees plans to spend $50,000 on get-outthe-vote (“GOTV”) efforts, such discussions would not constitute spending or 

disbursing funds by Senator Corzine.16

Answering TMP’s questions, therefore, will not tie the Commission’s hands if it is presented 

with the conduct set forth in NRSC’s hypothetical. There are material differences between 

TMP’s request and the NRSC’s hypothetical. TMP makes clear that it will impose significant 

guardrails to curb any candidate or party committee involvement in its organization or programs:

TMP will not permit candidates (federal, state, or local), party committees, or their agents 

to finance, maintain, or control TMP. Specifically, candidates, party committees, and 

13 FEC Adv. Op. Req. 2024-1 (Texas Majority PAC) (Jan. 12, 2024) at 3. 14 McConnell v. FEC, 540 U.S. 93, 160 (2003). 15 FEC Adv. Op. 2005-2 (Corzine) at 8-9. 16 Id. (emphasis added).
March 16, 2024

Page 5

their agents will not be permitted to:

• direct or participate in the governance through provisions of constitutions, bylaws, 

contracts, or other rules, or through formal or informal practices or procedures;

• hire, appoint, demote, or otherwise control the officers, or other decision-making 

employees or members of TMP;

• have common or overlapping officers or employees with TMP; or

• make contributions, monetary or in-kind, in significant amounts or on an ongoing 

basis to TMP. 

Candidates (federal, state, or local), party committees, and their agents will not have any 

spending authority within TMP. They will not have any authority to approve TMP 

budgets or TMP expenditures, nor will they have authority to sign checks or initiate 

wires. Nor will federal candidates, party committees, or their agents have final approval 

authority with respect to any Canvassing Literature, Script, or other aspect of the paid 

canvassing program. TMP itself will exercise full direction and control over all such 

programs.

In NRSC’s hypothetical, by contrast, candidates “make efforts to persuade [the spender]” to 

make expenditures in their jurisdiction; there is “extensive federal candidate involvement”; and 

“common canvassing vendors [are] used.”17 Whether the activity set forth in NRSC’s 

hypothetical rises to “spending” or “control” is a question that the Commission can consider if 

NRSC or another party wishes to submit its own request. 

Finally, unlike NRSC’s hypothetical, TMP’s request does not involve the expenditure of 

corporate funds. The Commission maintains regulations governing corporate spending that could 

apply to the activities described in TMP’s request (if sponsored by a corporation) or NRSC’s 

hypothetical.18 The Commission’s issuance of an opinion to TMP does not necessarily “green 

light” corporations to engage in the same activities. This is another issue that the Commission 

could take up in response to a subsequent advisory opinion request.

The Commission should answer TMP’s four questions and make clear that it is only those four 

questions that it is answering. 

Yours truly,

Jonathan S. Berkon

Courtney T. Weisman

Sarah N. Mahmood

17 NRSC Comment at 2-3. 18 See 11 C.F.R. § 114.4(a) (restricting GOTV drives sponsored by corporations).
March 16, 2024

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Counsel to Texas Majority PAC