FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

October 11, 2022

AOR 2022-21 (DSCC, et al.) Requestors' Comment

Attached is AOR 2022-21 (DSCC, et al.) Requestors' Comment.

Attachment 
October 7, 2022

BY ELECTRONIC MAIL DELIVERY

Federal Election Commission

1050 First Street NE

Washington, DC 20463

Re: Comment Regarding Advisory Opinion Request 2022-21

Dear Commissioners:

DSCC, Bennet for Colorado, and People for Patty Murray submit these comments as the requestors 

in Advisory Opinion Request 2022-21 (“Requestors”). In comments filed with the Commission, both 

Campaign Legal Center (“CLC”) and the NRSC assert that the request fails to meet the statutory 

requirements for an advisory opinion request. Commission regulations charge the Office of the 

General Counsel (“OGC”)—not third-party commentators—with the duty to examine advisory 

opinion requests to ensure they are proper and complete.1 Once the OGC determines a request is 

proper, the Commission “shall render a written advisory opinion relating to such transaction or 

activity to the person.”2 Requestors submitted an advisory opinion request regarding the 

permissibility of two very specific solicitations that DSCC intends to fund from its Legal Proceedings 

Account. The OGC deemed the request complete. It is now the job of the Commission to render an 

opinion. 

I. The Request is a Proper Advisory Opinion Request 

The Federal Election Campaign Act of 1971, as amended (the “Act”) and Commission regulations 

provide that any person may request an advisory opinion regarding “the application of [the] Act” or 

“a rule or regulation prescribed by the Commission.”3 The “request shall set forth a specific 

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

intends to undertake in the future.”4 Commission regulations explain that 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.”5 To be complete, the request must “include 

a complete description of all facts relevant to the specific transaction or activity with respect to which 

the request is made.”6

The advisory opinion plainly satisfies these requirements. Requestors asked the Commission for 

“guidance on whether [DSCC’s] plans for two types of public communications” can be funded 

through its Legal Proceedings Account and whether the campaigns may coordinate with DSCC on 

1 11 C.F.R. § 111.1(d)-(f).

2 52 U.S.C. § 30108(a)(1)(emphasis added). 

3

Id.; 11 C.F.R. § 112.1(a).

4

Id. (b).

5

Id.

6

Id. § 112.1(c).
2

the timing, content, and placement of these communications.7 The request goes on to describe in 

detail the two proposed solicitations DSCC intends to pay for using its Legal Proceedings Account.8

On September 20, 2022, attorneys in OGC and Requestors’ counsel conferred about this request. 

During this meeting, Requestors’ counsel answered all of OGC’s factual questions about the request 

and confirmed for OGC their intent to fully engage in the activities if permitted by the Commission. 

After the meeting, counsel for Requestors confirmed once more that they “have submitted this request 

to seek guidance about their own proposed future activity and not about the past actions or ongoing 

activity of any third party.”9 OGC determined that the request met the standards for a proper advisory 

opinion and deemed the request complete. Under the Act and Commission regulations, that is the end 

of the review process. Now, the Commission “shall render a written advisory opinion relating to such 

transaction or activity to the person.”10

Despite this, CLC and NRSC, citing a New York Times article, maintain that the request is not valid 

on grounds that it concerns activities of a third party and that it was filed to circumvent the complaint 

and enforcement process. NRSC calls counsel’s “confirmation” email to OGC “not credible” and 

even goes as far as claiming it is a “blatant misrepresentation.”11 As an initial matter, for NRSC’s 

counsel to accuse another member of the bar of making a “blatant misrepresentation” to government 

officials, a possible criminal violation of 18 U.S.C. § 1001, is inappropriate and unethical. This 

baseless accusation borders on defamatory.

Again, Requestors’ counsel confirmed to OGC verbally and in writing that DSCC and the campaigns 

fully intend to engage in the proposed transactions, and the request makes abundantly clear what 

those proposed transactions would be. Given the current lack of guidance regarding the permissibility 

on the use of the Legal Proceedings Account, as explained in the request, DSCC and the campaigns, 

out of prudence, elected to confirm whether their proposed solicitations are permissible. By seeking 

an advisory opinion, DSCC and the campaigns can obtain assurances that they will not face liability 

for their proposed transactions now or over the next five years. The advisory opinion process is 

intended precisely for this reason. 

In sum, OGC followed its regular procedures and concluded Requestors’ advisory opinion request 

satisfies the requirements to be considered a complete and valid request. It is now up to the 

Commission to issue an opinion in accordance with 52 U.S.C. § 30108(a)(1).

II. Section 30108(b) of the Act Requires the Commission to Act on the Request

NRSC also submits that the request seeks to establish one or more new rules of law “through the 

advisory opinion process in contravention of the Act.”12 Section 30108(b) states that “[a]ny rule of 

law which is not stated in this Act . . . may be initially proposed by the Commission only as a rule or 

regulation pursuant to procedures established in Section 30111(d) of this title.”13 The pending request 

does not ask the Commission to propose any new rules or regulations; it seeks only to confirm whether 

the two highly specific proposed solicitations are permissible under existing law. This is the exact 

purpose of the advisory opinion process and why Congress mandated the Commission to respond to 

such requests.

7 AOR 2022-21 at 2-4.

8

Id.

9 See Supplemental Material, AOR 2022-21.

10 52 U.S.C. § 30108(a)(1)(emphasis added). 

11 NRSC Comment at 2.

12 Id. at 4-5.

13 52 U.S.C § 30108(b).
3

Further, it is not unprecedented for the Commission to opine on the use of the legal proceedings 

account under 52 U.S.C. § 30116(a)(9).

14 Accordingly, the request seeks the Commission’s advice 

on the application of the Act to its specific transactions.

III. Conclusion

For the reasons outlined above, OGC already concluded that the advisory opinion request is valid and 

complete. Accordingly, DSCC and the Campaigns are entitled by law to an advisory opinion 

regarding their proposed activities. 

Very truly yours,

Jacquelyn K. Lopez

Rachel L. Jacobs

Jonathan A. Peterson

Counsel to DSCC, Bennet for Colorado, and People for Patty Murray 

14 See Advisory Opinion Request 2019-02 (Bill Nelson for Senate).