FEDERAL ELECTION COMMISSION 

Washington, DC 

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT: 

The Commission 

Office of the Commission Secretary VFV

November 14, 2023

AOR 2023-08 (Cowboy Analytics, LLC) Comment

Attached is a comment received on Advisory Opinion Request 

2023-08.

Attachment
November 13, 2023 

Lisa J. Stevenson, Esq.

Acting General Counsel

Federal Election Commission

1050 First St. NE 

Washington, DC 20463

ao@fec.gov 

Re: Advisory Opinion Request 2023-08 (Cowboy Analytics, LLC) 

Dear Ms. Stevenson: 

Campaign Legal Center (“CLC”) respectfully submits this comment on advisory 

opinion request (“AOR”) 2023-08, submitted to the Federal Election Commission (the 

“FEC” or “Commission”) by Cowboy Analytics, LLC (“Cowboy Analytics”).1 We write 

to address two erroneous arguments that Cowboy Analytics advances as purported 

support for its flawed assertion that solicitations including express advocacy would 

not meet the definition of an independent expenditure under the Federal Election 

Campaign Act (the “Act”).

Cowboy Analytics argues that because the purpose of a solicitation is to raise money, 

a solicitation cannot expressly advocate the election or defeat of a candidate, as 

required under the Act’s definition of “independent expenditure.”2 It also claims that

the definition of “express advocacy” has “never been construed to extend to 

fundraising solicitations.”3 These arguments are wrong. 

First, as a practical matter, a communication can have two simultaneous purposes: 

it can raise money and encourage people to vote for or against a candidate. Second, 

turning to the law itself, the definition of “independent expenditure” does not 

exclude solicitations. An “independent expenditure” is “an expenditure by a person 

1 See AOR 2023-08 (Cowboy Analytics, LLC) (Oct. 25, 2023) (“AOR 2023-08”). 2 See id. at 8-9. 

3 See id. at 8.

Received by OGC on Nov. 13, 2023
2

expressly advocating the election or defeat of a clearly identified candidate.”4 A 

communication can do just that while also attempting to raise money.

Furthermore, in FEC v. Christian Coalition, the U.S. District Court for the District 

of Columbia unequivocally stated that “express advocacy also includes verbs that 

exhort one to campaign for, or contribute to, a clearly identified candidate.”5 The 

FEC has also explained that “exhortations to contribute time or money to a 

candidate would also fall within the revised definition of express advocacy.”6 Thus, 

there is clear authority that solicitations can “advocate the election or defeat of a 

clearly identified candidate,” and thus qualify as an independent expenditure. 

Cowboy Analytics’ position is not only illogical and inconsistent with precedent, it is 

also problematic as it could be used to circumvent the Act’s reporting requirements 

for independent expenditures, which would frustrate the Act’s goal of ensuring 

transparency for voters. Under Cowboy Analytics’ flawed theory, super PACs and 

other “independent” spending groups could evade reporting information about their 

financing of independent expenditures by simply tacking a solicitation statement 

onto the end of their electoral ads, which would deprive voters of critical information

regarding the sources of election spending.

Separately, Cowboy Analytics appears to argue that solicitations targeted to an 

audience outside of the state or district of the candidate mentioned in the solicitation 

cannot contain express advocacy because the target audience cannot vote for or 

against the candidate.7 This argument is also inconsistent with the law. An 

independent expenditure is defined by the content of the communication—whether it 

“urge[s] the election or defeat of one or more clearly identified candidate(s);” neither 

the Act nor the Commission’s regulations contain an exception for express advocacy 

or independent expenditures that are (or are not) targeted to a particular audience.8

4 52 U.S.C. § 30101(17); see 11 C.F.R. § 100.16(a). “Expressly advocating,” in turn, means 

language that urges the election or defeat of one or more clearly identified candidates. 11 

C.F.R. § 100.22.

5 FEC v. Christian Coal., 52 F. Supp. 2d 45, 62 (D.D.C. 1999) (emphasis added). 6 Express Advocacy; Independent Expenditures; Corporate and Labor Organization 

Expenditures, 60 Fed. Reg. 35,292, 35,294 (July 6, 1995).

7 See AOR 2023-08 at 9.

8 When Congress and the FEC intend to make geographic targeting part of a definition, 

they do so explicitly. See 52 U.S.C. § 30104(f)(3)(A)(III) (electioneering communications); 

11 C.F.R. § 109.21(c)(4) (coordinated communication content prong). The Commission has

also correctly refused to read in a targeting requirement where one does not exist at least 

once before. See Advisory Op. 1980-119 (NRSC) (holding that a party-sponsored 

communication, even when broadcast to voters outside of the featured candidate’s state (who 

thus cannot vote for or against the candidate), still counts against the party’s coordinated 

expenditure limit).
3

We respectfully urge the Commission, in responding to this request, to reject these 

flawed and problematic arguments regarding the scope and purpose of independent 

expenditures and express advocacy. 

Respectfully submitted,

/s/ Shanna (Reulbach) Ports 

Saurav Ghosh

Shanna (Reulbach) Ports 

Campaign Legal Center

1101 14th St. NW, Suite 400

Washington, DC 20005