FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

 

In the Matter of ) 

 ) MUR 7760 

SMP and Rebecca Lambe in her official ) 

 capacity as treasurer ) 

 

STATEMENT OF REASONS OF VICE CHAIRMAN SEAN J. COOKSEY AND 

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

In this matter, we declined to follow the Commission’s Office of the General Counsel’s 

(“OGC”) recommendation to find reason to believe that Respondents SMP and Rebecca Lambe in 

her official capacity as treasurer violated the Federal Election Campaign Act of 1971, as amended 

(“FECA” or the “Act”), and the Commission’s regulations by making and failing to report an 

excessive in-kind contribution to Hickenlooper for Colorado. Instead, we exercised our 

prosecutorial discretion to dismiss the republication allegations against SMP.

1 This statement 

explains why. 

The Complaint alleges that SMP, an independent expenditure-only political committee,

illegally republished campaign materials when it paid to produce and disseminate a 30-second 

television advertisement called “Honest Mistake,” which included six seconds of B-roll footage 

that previously appeared in an online video released by Hickenlooper for Colorado, the principal 

campaign committee of John Hickenlooper in Colorado’s 2020 U.S. Senate election.

2

 In the First 

General Counsel’s Report, OGC accepted the Complaint’s theory that SMP’s distribution of

“Honest Mistake” was an unlawful republication, reasoning that “republication is established by 

SMP’s incorporation of the Video Footage of Hickenlooper.”3 On that basis OGC recommended 

the Commission find reason to believe SMP violated the Act and Commission regulations.

4

 

1

 See Certification ¶ 3 (Nov. 29, 2022), MUR 7760 (Hickenlooper for Colorado, et al.); Heckler v. Chaney, 

470 U.S. 821 (1985). 

2

 Complaint at 7–12 (July 9, 2020), MUR 7760 (Hickenlooper for Colorado, et al.). 

3

 First General Counsel’s Report at 14–17 (Oct. 20, 2022), MUR 7760 (Hickenlooper for Colorado, et al.). 

The Complaint also alleges that SMP’s messaging in “Honest Mistake” repeated key talking points from a public 

website called “Get the Facts” that was set up by the Hickenlooper committee shortly before SMP’s ad began to air. 

Because OGC concluded that SMP violated the Act and regulations based on its use of the video footage alone, it 

did not determine whether SMP’s alleged use of the talking points as part of “Honest Mistake” also amounted to 

unlawful republication. See id. at 16–17. 

4 Id. at 17. 

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2 

We have previously expressed our views on the problems presented by this agency’s

attempts to read its own republication regulations beyond the Act’s limits.

5 OGC has continually 

“taken a maximalist view that an outside party’s incorporation of any amount of campaign 

materials into its own communications is an illegal republication,”6 even though the Commission’s 

enforcement precedents have not articulated such a bright-line standard to delineate the scope of 

republication.7 In addition, the Commission’s primary republication regulation⸺11 C.F.R. § 

109.23⸺deviates from the plain terms of FECA by failing to distinguish between coordinated 

republication—which the Act treats as a “contribution”8

—and independent (that is, noncoordinated) republication—which the Act classifies as an “expenditure.”9 Because the regulation

designates any republication of campaign materials “in whole or in part” as a contribution,10 it is 

at odds with “a straightforward reading of the Act [which] precludes the conclusion that noncoordinated republication constitutes a contribution.”11 And by treating non-coordinated 

republication as an in-kind contribution subject to the statute’s amount and source limitations, the

regulation improperly proscribes independent political speech in contravention of Supreme Court 

precedent going back to Buckley v. Valeo.

12 

5

 See Interpretive Statement of Commissioner Sean J. Cooksey (Nov. 30, 2021), 

https://www.fec.gov/resources/cms-content/documents/2021-11-30_Interpretive_Statement_of_Cmsr_Cooksey.pdf; 

Interpretive Statement of Chairman Allen J. Dickerson (Mar. 24, 2022), https://www.fec.gov/resources/cmscontent/documents/Final_Dickerson_Interpretive_Statement_Republication.pdf; Statement of Reasons of 

Commissioners Cooksey and Trainor (Apr. 7, 2022), MURs 7646, 7666, 7675, 7681, 7715, 7717 and 7781 (1820 

PAC, et al.); Statement of Reasons of Chairman Dickerson and Commissioners Cooksey and Trainor (Nov. 1, 

2022), MUR 7670 (Hickenlooper for Colorado, et al.). 

6

 Interpretive Statement of Commissioner Sean J. Cooksey at 2 (Nov. 30, 2021), 

https://www.fec.gov/resources/cms-content/documents/2021-11-30_Interpretive_Statement_of_Cmsr_Cooksey.pdf.

7

 Compare First General Counsel’s Report at 8 (June 3, 2013), MUR 6667 (House Majority PAC, et al.) 

(arguing that the regulation’s language about republication “in whole or in part” covers any use of campaign 

materials), with MUR 6357 (American Crossroads, et al.) (involving republication allegations where a committee 

used 10–15 seconds of b-roll footage in a 30-second TV ad, and where the Commission did not proceed with 

enforcement).

8

 52 U.S.C. § 30116(a)(7)(B)(i) (“[E]xpenditures made by any person in cooperation, consultation, or 

concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, 

shall be considered to be a contribution to such candidate”). 

9

 52 U.S.C. § 30116(a)(7)(B)(iii) (“[T]he financing by any person of the dissemination, distribution, or 

republication, in whole or in part, of any broadcast or any written, graphic, or other form of campaign materials 

prepared by the candidate, his campaign committees, or their authorized agents shall be considered to be an 

expenditure”). 

10 See 11 C.F.R. § 109.23(a) (“The financing of the dissemination, distribution, or republication, in whole or 

in part, of any broadcast or any written, graphic, or other form of campaign materials prepared by the candidate, the 

candidate's authorized committee, or an agent of either of the foregoing shall be considered a contribution for the 

purposes of contribution limitations and reporting responsibilities of the person making the expenditure.”). 

11 Interpretive Statement of Chairman Allen J. Dickerson at 3 (Mar. 24, 2022), 

https://www.fec.gov/resources/cms-content/documents/Final_Dickerson_Interpretive_Statement_Republication.pdf.

12 424 U.S. 1, 39–59 (1976) (per curiam) (holding that expenditure limits—including limits on independent 

expenditures by individuals, expenditures from candidates’ own personal resources, and total campaign 

expenditures—are unconstitutional). See also, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) 

(invalidating on First Amendment grounds Massachusetts law prohibiting corporate expenditures regarding state 

ballot initiatives and referenda); Citizens United v. FEC, 558 U.S. 310 (2010) (holding that federal statutory 

MUR776000113
3 

Furthermore, we take issue with OGC’ssimplistic analysis of republication because it gives 

no consideration to other relevant factors such as whether the campaign material was of de minimis

value, incidental to the advertising’s overall message, or already part of the public domain. As past 

Commissioners have explained in matters with similar fact patterns, these factors bear on whether 

a communication can be said to constitute republication.13 SMP’s brief inclusion of B-roll from 

the Hickenlooper committee’s video, which had been widely available online for nearly a year 

before the first televised airing of “Honest Mistake,” does not negate the ad’s status as an 

independent expenditure, and the record in this matter otherwise contains no evidence to support 

that any coordination occurred between SMP and Hickenlooper for Colorado.14 

For these reasons, we dismissed the allegations that SMP illegally republished the 

Hickenlooper committee’s campaign materials in violation of the Act and Commission 

regulations. 

_________________________________ February 27, 2023 

Sean J. Cooksey Date

Vice Chairman

__________________________________ February 27, 2023 

Allen J. Dickerson Date

Commissioner

_________________________________ February 27, 2023 

James E. “Trey” Trainor, III Date

Commissioner

prohibition on corporate entities making independent expenditures with their general treasury funds was

unconstitutional). 

13 See, e.g., Statement of Reasons of Chair Hunter and Commissioners McGahn and Petersen at 3–6 (Feb. 22, 

2012), MUR 6357 (American Crossroads, et al.) (concluding that an independent expenditure-only political 

committee’s use of “snippets” of campaign footage taken from YouTube did not constitute republication); Statement 

of Reasons of Vice Chairman Petersen and Commissioners Hunter and McGahn at 1 (Dec. 3, 2009), MUR 5996 

(Tim Bee for Congress, et al.) (“[W]e do not believe the republication of photographs from a candidate’s publicly 

available website, particularly ‘head shot’ photos, constitutes republication of campaign materials”); Statement of 

Reasons of Commissioners von Spakovsky and Weintraub at 4 (Jan. 23, 2007), MUR 5743 (Betty Sutton for 

Congress, et al.) (observing that “[t]o treat an incidental republication of a photograph, which is part of an otherwise 

permissible independent expenditures, as an ‘in-kind contribution’ makes no intuitive sense.”). 

14 See First General Counsel’s Report at 20 (Oct. 20, 2022), MUR 7760 (Hickenlooper for Colorado, et al.) 

(concluding that “the available information is insufficient to support a reasonable inference that the conduct prong of 

the coordinated communication test is satisfied.”). 

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