1 FEDERAL ELECTION COMMISSION 

2 999 E Street, NW flO PM Qg 

3 Washington, DC 20463 

4 

5 FIRST GENERAL COUNSEL'S REPORT 

7 MUR6920 CELA 

8 DATE COMPLArNT FILED: Februai7 27.2015 

9 DATE OF NOTIFICATIONS: March 4, 2015 

10 LAST RESPONSE RECEIVED: May 4, 2015 

11 DATE ACTIVATED: September 23, 2015 

1 ' 

7 13 EXPIRATION OF SOL: October 31.2017 

0 14 (earliest) • 

4 15 ELECTION CYCLE: 2012 

4 16 

4 17 COMPLAINANT: Citizens for Responsibility and Ethics In 

4 18 Washington 

3 19 

Q 20 RESPONDENTS: American Conservative Union 

0 21 Now or Never PAC and James C. Thomas III 

22 in his official capacity as Treasurer 

23 Unknown Respondent 

24 

25 RELEVANT STATUTES AND 52 U.S.C. § 30104(b)' 

26 REGULATIONS: 52 U.S.C. § 30122 

27 11 C.F.R.§ 110.4(b) 

28 

29 INTERNAL REPORTS CHECKED: FEC Disclosure Reports 

30 

31 FEDERAL AGENCIES CHECKED: None 

32 I. INTRODUCTION 

33 The Complaint in this matter alleges that American Conservative Union C'ACU"), Now 

34 or Never PAC, and Unknown Respondent violated the Act's prohibition against making and 

35 receiving contributions in the name of another. In its 2012 Post-General Election Report, Now 

36 or Never PAC disclosed a $ 1.71 million contribution from ACU. Approximately 18 months 

37 later, ACU reported to the Internal Revenue Service ("IRS") that it had received the contribution 

' On September 1. 2014, the Federal Election Campaign Act of 1971, as amended (the "Act") was 

transferred from Title 2 to new Title 52 of the United States Code. 
MUR 6920 (American Conservative Union, el al.) 

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1 and "promptly and directly delivered" it "to a separate political organization," and that no part of 

2 it came from ACU's funds. The Complaint alleges that ACU acted as a conduit for Unknown 

3 Respondent, the true donor to Now or Never PAG. We conclude that the record in this matter 

4 provides reason to believe that ACU violated the Act by knowingly permitting its name to be 

5 used to effect a contribution in the name of another, and Unknown Respondent violated the Act 

1 6 by making such a contribution. We further recommend that the Commission authorize an 

0 7 investigation. 

1 8 11. FACTUAL BACKGROUND 

9 Now or Never PAC is an independent, expenditure-only political committee ("lEOPC") 

10 that filed regular reports with the Commission during the 2012 election cycle. James C. 

11 Thomas III is Now or Never PAC's treasurer.^ ACU is registered with the IRS as a social 

12 welfare organization under section 501 (c)(4) of the Internal Revenue Code,^ and is not registered 

13 with the Commission as a political committee. 

14 In its 201.2 Post-General Election Report, Now or Never PAC reported that on October 

15 31, 2012, it received a $ 1.71 million contribution from ACU."* ACU first reported the transaction 

16 at issue in an amended tax return filed in May 2014, apparently after an independent auditor 

17 reviewed its 2012 finances.^ In this filing, ACU disclosed the receipt as a "political donation" 

' Now or Never PAC first registered with the Commission in February 2012. During the 2012 election 

cycle, it reported receiving $8.2 million in contributions and spending $7.8 million on independent expenditures. 

Now or Never PAC reported having only $476 in cash on hand as of December 31,2015. 

^ ACUResp.at 1 (Apr.23,2015). 

" Now or Never PAC, 2012 Post-General Report (Dec. 6, 2012) at 6; see also Compl. ^ 14 (Feb. 27,2015). 

' Compl. Til 15-17, Exs. B (Conlon & Associates Independent Auditor's Report, Apr. 9,2014) and C (ACU 

Amended Form 990, May 12, 2014). 
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1 and Stated that the "$ 1,710,000 was a political contribution received by the Organization and 

2 promptly and directly delivered to a separate political organization," Now or Never PAC.® 

3 The Complaint alleges that Unknown Respondent is the true source of the $1.71 million 

4 contribution made in ACU's name to Now or Never PAG, and that ACU's amended tax return 

5 reflects that ACU merely served as a conduit for the contribution.' The Complaint highlights 

6 representations in ACU's tax return that none of the money came from ACU's funds, and that 

7 the contribution was "received and promptly and directly delivered" to Now or Never PAC.* It 

4 8 alleges that this activity was carried out under IRS regulations that permit such transactions 

4 

^ 9 "when a section 501 (c) organization collects political contributions" that are "earmarked for a 

4 9 I 10 separate segregated fund," and. "promptly and directly transfers them." 

11 ACU submitted a response asserting that its activities were permissible under the Act.'° 

12 The Response explains that the language in ACU's tax return describing, the circumstances of the 

13 contribution to Now or Never PAC was added by ACU's auditors, who "did not consult with 

14 contemporaneous ACU staff regarding the nature of this transaction, and instead relied upon the 

15 face of ACU's fmancials to support their notation on the amended IRS filing."'' The Response 

16 provides no other specific information regarding the circumstances of the transactions at issue, 

17 however, noting only that ACU received a total of approximately $10.2 million in donations in 

18 2012, "including an amount similar to $ 1.7 million," and that the donations were all placed in 

Id Ex. C at Schedule O, Schedule C. 

Compl.^H 12, 17. 

W.1I 19. 

W.H 18. 

ACU Resp. at 2. 

Id. 
MUR 6920 (American Conservative Union, et al.) 

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1 ACU's general treasury account.'^ ACU notes that it engaged in a variety of "public education 

2 and political activities" in 2.012, including the donation to Now or Never PAC. The Response 

3 further states that ACU consulted with election law counsel when it received the funds and 

4 during the course of its election-related activity in 2012 to ensure that its actions were 

5 permissible under the Act.''' The majority of ACU's Response is devoted to contentions that 

6 section 30122 is inapplicable to lEOPCs such as Now or Never PAC, as summarized below.'^ 

7 Now or Never PAC also submitted a response in this matter which does not provide any 

8 information regarding the contribution at issue, but denies that Now or Never PAC violated 

9 section 30122. The Response notes that as an lEOPC, Now or Never PAC may raise unlimited 

10 funds from sources including 501.(c)(4) organizations such as ACU." Now or Never PAC 

11 contends that it has complied with all reporting requirements by publicly disclosing all 

1.2 contributions received during the 2012 election cycle, "including the contribution received from 

13 ACU."'® 

14 Both Respondents argue that this matter is not worthy of the Commission's time and 

15 resources because section 30122 does not, or should not, apply to. lEOPCs such as Now or Never 

Id. 

Id. 

Id: 

Id. at 2-4. 

Now or Never PAC Resp. at 3 (May 4,2015). 

Id. 

Id. at 2. 
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PAC." They contend that the statute is intended to prevent circumvention of contribution limits 

and avoid corruption.^" Because lEOPCs are permitted to accept unlimited contributions, they 

assert that there is no basis to apply section 30122 to such groups.^' The Respondents also assert 

that the Commission has not yet applied section 30122 to lEOPCs." Now or Never PAC's 

Response concludes that "[a]t best, the issue is far from, settled, and the EEC should decline [to] 

use this enforcement action to rewrite [section 30122] to apply to Super PACs."^^ And ACU's 

Response similarly asserts that "[t]he application of [section 30122] to contributions made to 

Super PACs is far from settled, and the Commission should not use an enforcement action to 

resolve this question.The Respondents request that the Commission dismiss the Complaint.^^ 

III. LEGAL ANALYSIS 

A. There is Reason to Believe that ACU and Unknown Respondent Violated 

52 U.S.C. § 30122 

The Complaint alleges that Unknown Respondent, not ACU, was the source of the $1.71 

million contribution to Now Or Never PAC. The Act prohibits a person from making a 

contribution in the name of another, knowingly permitting his or her name to be used to effect 

such a contribution, or knowingly accepting such a contribution.^® The requirement that a 

" See, e.g.,/«/. at 3; ACU Resp. at 3. 

Now or Never PAC Resp. at 2-3; ACU Resp. at 2-3. 

" Id. 

" See., e.g., ACU Resp. at 4 ("It is no coincidence that the Commission has not applied [section 30122] to 

Super PACs because it is constitutionally suspect in light of recent court decisions."). 

" Now or Never PAC Resp. at 3. 

ACU Resp. at 4. 

" Id; Now or Never PAC Resp. at 1. 

" 52 U.S.C. § 30122; see also 11 C.F.R. § 110.4(b). The term "person" for purposes ofthe Act and 

Commission regulations includes partnerships, corporations, and other organizations. 52 U.S.C. § 30101(11); 
MUR 6920 (American Conservative Union, er«/.) 

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1 contribution be made in the name of its true source promotes Congress's objective of enstiring 

2 the complete and accurate disclosure by candidates and committees of the political contributions 

3 they receive " Courts have uniformly rejected the assertion that "only the person who actually 

4 transmits funds... makes the contribution,"^® recognizing that "it is implausible that Congress, ' 

5 in seeking to promote transparency, would have understood the relevant contributor to be [an] 

J 6 intermediary who merely transmitted the campaign gift."^' 

P 7 Accordingly, the Act and the Commission's regulations provide that a person who 

4 8 provides funds to another for the purposes of contributing to a candidate or committee "makes" 

4 

^ 9 the resulting contribution.^" In other words, the true source of a contribution is the person who 

10 "made the gift by arranging for his money to finance the donation."^' If an intermediary merely 

11 plays a "ministerial role" in transmitting a contribution, the contribution should not be attributed 

12 to the intermediary but instead to the original source.®^ 

11 C.F.R. § 100.10. 

" See, e.g., United States v. O'Donnell, 608 F.3d 546, 553 (9lh Cir. 2010) ("[T]he congressional purpose 

behind [section 30122] — to ensure the complete and accurate disclosure of the contributors who finance federal 

elections — is plain."). 

United States v. Boender, 649 F.3d 650,660 (7th Gir. 2011). 

" O -Donnell, 608 F.3d at 554; see also Citizens United v. FEC, 558 U.S. 310, 371 (2010) ("The First 

Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of 

corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give 

proper weight to different speakers and messages."); Doe v. Reed, 561 U.S. 186, 199 (2010) ("Public disclosure also 

promotes transparency and accountability in the electoral process to an extent other measures cannot."). 

See. e.g., Boender, 649 F.3d at 660 ("[W]e consider the giver to be the source of the gift, not any 

intermediary who simpjy conveys the gift from the donor to the donee.").. 

O'Donrtell, 608 F.3d at 550; see also United States v. Whittemore, 776 F.3d 1074, 1080 (9th Cir. 2015) 

(holding that defendant's "unconditional gifts" to relatives and employees, along with suggestion they contribute the 

funds to a specific political committee, violated section 30122 because the source of the funds remained the 

individual who provided them to the putative contributors). 

32 O'Donnell, 608 F.3d at 550. 
MUR. 6920 (American Conservative Union, et al.) 

First Genera! Counsel's Report 

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1 The record in this matter supports a finding that there is reason to believe that. Unknown 

2 Respondent violated the Act's prohibition against contributions in the name of another, and that 

3 ACU violated the Act by knowingly permitting its name to be used to effect such a contribution. 

4 ACU reported to the IRS that the $1.71 million contribution at issue "was a political contribution 

5 received by [ACU] and promptly and directly delivered to a separate political organization," 

^ 6 Now or Never PAC. ACU's Response does not contradict this, nor does it provide any 

7 information regarding the circumstances surrounding the contribution that it received and made. 

8 Instead, the Response is vague as to the nature of the contribution or contributions that it 

9 received, does not assert that ACU exercised any control regarding the ultimate destination of the 

10 contribution at issue, and does not address the Complaint's allegations that Unknown 

11 Respondent gave the money to ACU with the intent that it be transmitted to Now or Never PAC. 

12 The Response therefore fails to counter, or even address, the reasonable conclusion drawn in the 

13 Complaint — that ACU's representations to the IRS regarding the contribution indicate it was 

14 "earmarked to Now or Never PAC" by the Unknown Respondent, and that ACU merely "acted 

15 as a conduit" for the funds.^'' This provides a sufficient basis for a finding that there is reason to 

16 believe that the alleged violations may have occurred and that an investigation is warranted." 

17 As discussed above. Respondents argue that this matter is not worthy of the 

18 Commission's time and resources because section 30122 should not be applied to lEOPCs such 

19 as Now or Never PAC. But the purpose of section 30122 is not restricted to ensuring adherence 

20 to contribution limits. Federal circuit courts have noted that the statute also furthers disclosure: 

" See Compl., Ex. C at Schedule 0. 

" Compl. II 17. 

" See Statement of Policy Regarding Comm'n Action in Matters at the Initial Stage in the Enft Process, 72 

Fed. Reg. 12545 (Mar. 16,2007). 
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1 Requiring that contributions be made in the name of the true donor promotes "the congressional 

2 purpose behind [section 30122] — to ensure the complete and accurate disclosure of the 

3 contributors who finance federal elections."^® 

4 In upholding the Act's disclaimer and disclosure requirements, the Supreme Court in 

5 Citizens United noted that "the public has an interest in knowing who is speaking about a 

6 candidate shortly before an election."^' The public interest in disclosure can only be vindicated 

7 if groups such as Now or Never PAG, which must report their donors, in fact report the true 

4 8 source of contributions that they receive. Accordingly, we recommend that the Commission find 

i 5 9 reason to believe that ACU and Unknown Respondent violated 52 U.S.C. § 30122, and authorize 1 2 10 an investigation.^" 

6 11 B. The Record Should be Developed Before Taking Action as to Now or Never 

12 PAG 

13 The Act prohibits a committee from knowingly accepting a contribution made in the 

14 name of another.^® The Act also requires political committees such as Now or Never PAG to file 

" O'Donneli, 608 F.3d at 553; see also Mariani v. United Stales,2\2 F.3d 761, 775 (3d Cir. 2000) (rejecting 

constitutional challenge to section 44 If [now section 30122] due to the compelling governmental interest in 

disclosure); Boender, 649 F.3d at 661 ("Straw man contributions undermine the goal of complete and accurate 

disclosure of the contributors who finance federal elections ..."). 

.17 Citizens United, 558 U.S. at 369. 

The Complaint alleges that ACU's conduct — and possibly that of the other Respondents —was knowing 

and willful. See, e.g., Compl. 23,25,27. We do not recommend at this time that the Commission make such a 

finding, which would require that the respondent knew that his or her actions were unlawful. See H.R. Rpt. 94-917 

at 3-4 (Mar. 17. 1976);/IFl-C/0 v./•"•fiC. 628 F.2d 97, 101 (D.C. Cir. 1980) (stating that "knowing and willful" 

indicates "'defiance' or 'knowing, conscious, and deliberate flaunting' of the Act"). We currently lack sufficient 

information to support an inference that the Respondents knew their actions were illegal. Indeed, ACU's Response 

asserts that ACU consulted with election law counsel in connection with the transactions at issue, which suggests 

that ACU likely did not intend to violate the Act. And without information as to the identity or intentions of 

Unknown Respondent, there is no basis to make a recommendation that the donor knowingly and willfully violated 

the Act. 

3'J 52 U.S.C. § 30122; 11 C.F.R. § 110.4(b). 
MUR 6920 (American Conservative Union, et al.) 

First General Counsel's Report 

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1 regular disclosure reports.'"' Committees must disclose itemized breakdowns of receipts and 

2 disbursements, including the name and address of each person who has made any contribution or 

3 received any disbursement in an aggregate amount or value in excess of $200 within the calendar 

4 year, together with the date and amount of any such contribution or disbursement."' In addition, 

5 if a committee treasurer discovers after receipt of an apparently legitimate contribution that it 

6 was made in the name of another, the treasurer must refund or disgorge the contribution within 

7 30 days."^ 

8 In its 2012 Post-General Election Report, Now or Never PAC reported that it received the 

9 contribution at issue from ACU on October 31,2012. The Complaint and Responses do not. 

10 provide a sufficient basis for us to evaluate whether there is reason to believe that Now or Never 

11 PAC knowingly accepted a contribution that was made by Unknown Respondent but 

12 inaccurately attributed to ACU. Specifically, the record does not enable us to determine what, if 

13 anything, Now or Never PAC knew about the origin of the SI .71 million contribution that it 

14 received from ACU. The record provides no information regarding whether Now or Never PAC 

15 knew or should have known that the contribution actually came from Unknown Respondent. 

16 Accordingly, we recommend that the Commission take no action at this time as to Now or Never 

17 PAC. 

52 U.S.C. § 30104. 

52 U.S.C. § 30l04(bX2H6); 11 C.F.R. § l04.3(a)(3)-(4), (b)(2H4). 

" 11 C.F.R. § 103.3(bX2); aee MUR 5643 (Carter's Inc.) (informing recipient committee of its obligation to 

refund or disgorge illegal contribution); AO 1996-05 (Jay Kim for Congress) (allowing for disgorgement of illegal 

contributions to U.S. Treasury as an alternative to refunding contributions). 
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First Genera] Counsel's Report 

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1 If we obtain information bearing on the question of Now or Never PAC's liability under 

2 sections 30122 and 30104 or its obligation to disgorge or refund the contribution during oiu: 

3 proposed investigation, we will make appropriate recommendations at that time. 

4 IV. PROPOSED INVESTIGATION 

5 We propose to seek further information regarding the circumstances surrounding the 

6 contributions made to ACU and Now of Never PAC, including the Unknown Respondent's 

7 identity, to determine whether the contribution made to Now or Never PAC should be attributed 

8 lo ACU or Unknown Respondent. We will attempt to conduct our investigation through 

9 voluntary means, but recommend that the Commission authorize the use of compulsory process 

10 as necessary. 

11 V. RECOMMENDATIONS 

12 

13 1. Find reason to believe that ACU violated 52 U.S.C. § 30122; 

14 

15 2. Find reason to believe that Unknown Respondent violated 52 U.S.C. § 30122; 

16 

17 3. Take no action at this time as to Now or Never PAC and James C. Thornas 111 in 

18 his official capacity as treasurer; 

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20 4. Approve the attached Factual and Legal Analyses; 

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22 5. Approve the use of compulsory process as necessary; and 
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MUR 6920 (American Conservative Union, ei al.) 

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6. Approve the appropriate letters. 

DATE: i/aQ/)6 BY: i/J^ 

Daniel A. Iretala.s 

Acting General Counsel 

Kathleen Guith 

Acting Associate General Counsel 

for Enforcement 

Mark.ShonUwilef 

Assistant General Counsel 

RaclieUAr-Flipse 

A » 

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