FEDERAL ELECTION COMMISSION

Washington, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of )

) MUR 7347 

End Citizens United and Kimberly Coleman )

 in her official capacity as treasurer ) 

STATEMENT OF REASONS OF CHAIR SHANA M. BROUSSARD AND 

COMMISSIONERS ELLEN L. WEINTRAUB AND STEVEN T. WALTHER

The Complaint in this matter alleges that End Citizens United (“ECU”), a multicandidate 

committee, disseminated a fundraising solicitation via email that fraudulently misrepresented 

that it was from congressional candidate Connor Lamb, in violation of the Federal Election 

Campaign Act of 1971, as amended (the “Act”).

1

 The Complaint also alleges that the solicitation 

failed to include the appropriate disclaimer. The body of the email asked for funds for ECU and 

for congressional candidate Conor Lamb.

2

 At the bottom of the email was a disclaimer: “Paid 

For By End Citizens United PAC (endcitizensunited.org) and Not Authorized By Any Candidate 

or Candidate’s Committee.”3 

ECU, in response to the Complaint, acknowledges that the Lamb campaign consented to 

the email solicitation.4 Given this fact, the Commission, on July 23, 2019, found reason to 

believe that ECU violated 52 U.S.C. § 30120(a) and 11 C.F.R. § 110.11(b) because the 

disclaimer in the email solicitation failed to state it was authorized by Conor Lamb or his 

1 See Compl. (Mar. 13, 2018). Lamb was a candidate in Pennsylvania’s special election for the 18th 

Congressional District held on March 13, 2018.

2 See Compl. at Ex. A. The message used Lamb’s signature and included a fundraising link, which led to a 

landing page where contributors could allocate funds between Lamb’s campaign and ECU. Id.

3

Id.

4 ECU Resp. to Compl. at 2 (May 4, 2018).

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authorized committee.5 The Commission also authorized pre-probable cause conciliation with 

ECU.6

A little over a month after authorizing pre-probable cause conciliation, the Commission 

lost its quorum for approximately nine months.7 The Commission regained its quorum in June 

2020 before losing it again a month later,8and then went without a quorum for nearly six 

months.9 On December 18, 2020, the Commission regained its quorum. During the nearly 15 

months the Commission lacked a quorum, the Commission could not vote on matters, including 

approving or rejecting proposed settlement terms in this matter. Considering the Commission’s 

backlog of other pressing matters and in light of the likely modest civil penalty and the 

protracted state of the negotiations, we did not believe further conciliation efforts in this matter 

would be an efficient use of the Commission’s limited resources. For these reasons, on March 

25, 2021, we joined our colleagues in dismissing this matter under Heckler v. Chaney, 470 U.S. 

821, 831 (1985).10

Three of our colleagues issued a Statement of Reasons (“SOR”) explaining that they 

credited ECU’s argument that the “not authorized” disclaimer in the email solicitation was 

appropriate based on the lack of agency guidance and Commission precedent.11 Claiming that it 

relied on MUR 6044 (Musgrove) and MUR 6037 (Merkley), ECU argues that communications 

paid for by third parties require candidate authorization statements only where the 

communications satisfy the Commission’s definition of coordinated communications.

12

 Noting 

that its email solicitation is not a coordinated communication, ECU asserts that these matters 

5 See Certification ¶ 2 (July 23, 2019); Factual & Legal Analysis at 4–6. The Commission found no reason 

to believe that ECU violated 52 U.S.C. § 31024(b) by fraudulently misrepresenting that it was soliciting funds on 

behalf of Conor Lamb. Certification ¶ 2. The Commission also took action on other allegations in the Complaint, 

namely, dismissing the allegations that Conor Lamb and his authorized committee, Conor Lamb for Congress, 

violated 52 U.S.C. § 30125(e)(1)(A) and 52 U.S.C. § 30116(f) by soliciting and accepting excessive contributions, 

and finding no reason to believe that ActBlue, which administered the webpage through which the contributions 

were made, violated the Act. See id. ¶¶ 3–4. 

6 See id. ¶ 6.

7 See Press Release, FEC, FEC remains open for business, despite lack of quorum (Sept. 11, 2019), 

https://www.fec.gov/updates/fec-remains-open-business-despite-lack-quorum/; Press Release, FEC, James E. 

Trainor III sworn in as Commissioner (June 5, 2020), https://www.fec.gov/updates/james-e-trainor-iii-sworncommissioner/. 

8 See Press Release, FEC, Caroline C. Hunter to depart Federal Election Commission (June 26, 2020), 

https://www.fec.gov/updates/caroline-c-hunter-depart-federal-election-commission/.

9 See Press Release, FEC, Shana Broussard, Sean Cooksey, Allen Dickerson sworn in as Commissioners 

(Dec. 18, 2020), https://www.fec.gov/updates/shana-broussard-sean-cooksey-allen-dickerson-sworncommissioners/.

10 Certification ¶ 1 (Mar. 25, 2021).

11 Statement of Reasons, Comm’rs Allen Dickerson, Sean Cooksey, & James E. “Trey” Trainor, III at 1–2.

12 See ECU Resp. to Compl. at 2–3; ECU Resp. to RTB Notif. at 2–3 (Sept. 4, 2019).

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supported its choice to use the “not authorized” disclaimer.

13

 Our colleagues believe ECU’s 

“reasonable reliance” argument warranted dismissal.14 We disagree.

ECU raised, and the Commission previously rejected, this same argument at the reason to 

believe stage. In its Factual and Legal Analysis, the Commission unanimously found this matter 

readily distinguishable from MUR 6044 (Musgrove) and MUR 6037 (Merkley) because here, 

unlike those matters, the third party (ECU) admitted that the candidate (Lamb) authorized the 

solicitation.15 To be sure, five Commissioners dismissed the alleged disclaimer violation in 

MUR 6044 (Musgrove) because there was insufficient information to conclude that the ad was 

authorized by the candidate, given that the ad contained video of the candidate but the candidate 

did not speak, there was no information that he reviewed the ad before it aired, and the ad did not 

constitute a coordinated communication.16 In MUR 6037 (Merkley), which also involved ads,

OGC’s recommendation to find reason to believe there was a disclaimer violation did not receive 

the required support of at least four commissioners.17 Three Commissioners issued an SOR 

explaining that MUR 6044 (Musgrove) was “indistinguishable in all material respects” and the 

matter merited the same result.

18 Although our colleagues conclude that it was reasonable for

ECU to rely on the SOR in MUR 6037 (Merkley), it is well settled that an SOR by less than four 

Commissioners is not binding and does not establish agency precedent.

19 Thus, contrary to the 

views expressed by our three colleagues, these matters, as the Commission previously 

determined, do not reasonably support ECU’s disclaimer choice.

20

13 ECU Resp. to RTB Notif. at 2.

14 Statement of Reasons, Comm’rs Allen Dickerson, Sean Cooksey, & James E. “Trey” Trainor, III at 4. 

15 Factual & Legal Analysis at 5; see Advisory Opinion 2003-23 (WE LEAD) at 5 (concluding that a 

solicitation coordinated with a candidate must include in the disclaimer that the candidate authorized the 

communication).

16 See Statement of Reasons, Comm’rs Walther, Petersen, Bauerly, Hunter & McGahn at 6–7, MUR 6044 

(Musgrove for Senate); Certification ¶ 3, MUR 6044 (Musgrove for Senate) (May 15, 2019).

17 See Certification, MUR 6037 (Merkley for Oregon) (Nov. 17, 2009).

18 Statement of Reasons, Comm’rs Hunter, Petersen, & McGahn at 4–5, MUR 6037 (Merkley).

19 Common Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 1988) (“[A] statement of reasons would not be 

binding legal precedent or authority for future cases.”); see id. (“The statute clearly requires that for any official

Commission decision there must be at least a 4-2 majority vote.”). It is also noteworthy that two of the three 

Commissioners that issued the SOR in MUR 6037 (Merkley) concluded that it was distinguishable from this matter. 

Further, the Factual and Legal Analysis in this matter was unanimously supported by a bipartisan Commission less 

than two years ago, which included the support of Commissioners Weintraub and Walther, who now join this SOR.

20 Moreover, there is no statutory or regulatory support for ECU’s argument that the “authorized by” 

disclaimer applies only where a communication qualifies as a coordinated communication. See ECU Resp. to RTB 

Notif. at 2–3; ECU Resp. to Compl. at 2–3. The terms “authorized” and “coordinated” are not interchangeable, and 

one district court, in rejecting an argument similar to the one raised here, explained that whether a disclaimer noting 

candidate authorization applied was a separate issue from whether the ad was a coordinated communication, Brown 

v. FEC, 386 F. Supp. 3d 16, 30 (D.D.C. 2019); see Def. FEC’s Opp’n at 22-23, 386 F. Supp. 3d, ECF No. 14

(indicating that candidate authorization disclaimer could have been required for an ad that was not coordinated

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Nor do we agree with our colleagues that the disclaimer here is similar to other technical

disclaimer violations that the Commission has dismissed because there was sufficient 

information to avoid confusion about who paid for the communication.21 The issue here is not 

who paid for the communication, but whether Lamb or his campaign authorized the 

communication. Again, the Factual and Legal Analysis addressed this particular argument and 

concluded that the Commission had not dismissed a disclaimer violation under these 

circumstances,22 and for good reason: the statement that no candidate authorized the solicitation 

is false and deprives the electorate of the transparency that the Act is intended to ensure.23

____________________ ____________________________

Date Shana M. Broussard 

Chair

____________________ ____________________________

Date Ellen L. Weintraub

Commissioner

____________________ ____________________________

Date Steven T. Walther

Commissioner

(citing Statement of Reasons, Comm’rs Walther, Petersen, Bauerly, Hunter & McGahn at 6 MUR 6044 (Musgrove 

for U.S. Senate))).

21 See Statement of Reasons, Comm’rs Allen Dickerson, Sean Cooksey, & James E. “Trey” Trainor, III at 4. 

22 Factual & Legal Analysis at 5–6.

23 See Citizens United v. FEC, 558 U.S. 310, 368 (2010) (explaining that disclaimers “provide the electorate 

with information and ensure that the voters are fully informed about the person or group who is speaking) (internal 

citations and alterations removed).

May 26, 2021

May 26, 2021

May 26, 2021

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