FEDERAL ELECTION COMMISSION

Washington, DC 20463

October 4, 2022

ADVISORY OPINION 2022-20

Jacquelyn Lopez, Esq.

Varoon Modak, Esq.

Elias Law Group

10 G Street NE, Suite 600

Washington, DC 20002

Dear Ms. Lopez and Mr. Modak:

We are responding to the advisory opinion request that you submitted on behalf of 

Maggie for NH, asking whether short code text messages containing links to “split-it” 

fundraising pages would constitute in-kind contributions under the Federal Election Campaign 

Act, 52 U.S.C. §§ 30101-45 (the “Act”), and Commission regulations. The Commission 

concludes that the proposed text messages under the facts presented here would not constitute inkind contributions.

Background

The facts presented in this advisory opinion are based on your letter received on 

September 19, 2022 (“AOR”).

Maggie for NH is the principal campaign committee of Maggie Hassan, U.S. Senator 

from New Hampshire and candidate for re-election in 2022. Maggie for NH maintains a shortcode texting program to send text messages to its supporters on topics relevant to the campaign 

and to solicit contributions.1 Maggie for NH sends text messages only to individuals who have 

affirmatively opted in to receive them, either by texting a keyword to the committee’s short code 

number, or by providing their cell phone numbers to the committee through a form or webpage. 

Maggie for NH pays both per-message and flat fees to operate its short code program. The permessage fees include a “pass-through fee” for each message that the committee sends, which is 

paid to the vendor but passed along to the cellular carriers, and a per-message fee to the vendor 

to cover the vendor’s overhead costs for transmitting the message. These per-message fees vary 

1 For information on how short-code texting operates, see, e.g., Advisory Opinion 2012-31 (AT&T).
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by service and vendor, but are generally a few cents per message. The vendor also charges a fee 

for access to the software that the Committee uses to draft and send messages. Finally, the 

Committee pays a monthly fee to lease the short code number. These fees also vary by service 

and vendor, but are generally up to a few hundred dollars per month. The costs to send text 

messages linking to split-it fundraising pages are the same as the costs for sending text messages 

linking to pages that allow contributions only to Maggie for NH.

Maggie for NH proposes to use its text messaging program to text links to its “split-it” 

fundraising pages on ActBlue.com to its supporters. ActBlue’s “split-it” pages allow users to 

make contributions to multiple federal political committees simultaneously.2

 Any political 

committee that has an existing ActBlue account can create a split-it page listing any other 

political committee that also has an existing ActBlue account, and users of the split-it page may 

make simultaneous contributions to some or all of the listed political committees, at the users’ 

discretion. Split-it pages allow a user to enter the total amount the user wishes to contribute and 

will automatically calculate the amount to be allocated to each recipient committee. Users can

change the amounts allocated to each listed political committee and can decide not to contribute 

any amount to a listed committee. There is no additional cost to create or use a split-it page, and 

no new account or entity is created as a result of setting up a split-it page. Funds contributed 

through a split-it page are transmitted directly from the contributor to each recipient committee 

according to the terms of the committee’s existing contractual relationship with ActBlue.3

Maggie for NH will create and administer split-it pages that list Maggie for NH and other 

federal political committees as potential recipients of split contributions. Other recipient 

committees could include federal candidate committees, party committees, or nonconnected 

political committees; separate segregated funds and non-federal entities will not be included. 

Maggie for NH asserts that it will solicit only funds that comply with the source prohibitions and 

amount limitations of the Act and Commission regulations. Maggie for NH alone will decide 

which political committees to list on the split-it pages.4

 Maggie for NH further asserts that it will 

create and administer split-it pages and solicit contributions through them, including in text 

messages to its supporters, without the involvement of or coordination with other recipient 

committees. Maggie for NH expects, however, to possess material, non-public information on the 

projects, plans, activities and/or needs of the other listed committees. 

2

 For an example of a split-it page, see https://secure.actblue.com/donate/defendthesenate-hassan (last visited 

Sept. 22, 2022). The Commission notes that ActBlue is not a party to the instant advisory opinion request, and the 

Commission is not opining on any of ActBlue’s activities. The Commission previously considered the application

of the Act and Commission regulations to ActBlue’s split-it pages in Advisory Opinion 2014-13 (ActBlue). 

3

 A political committee that receives contributions through a split-it page is responsible for paying any 

processing fees that it would ordinarily owe under the terms of its existing contractual relationship with ActBlue. 

4

 Maggie for NH states that it might separately engage in joint fundraising activities with other political 

committees, but any such activities would be conducted separately from the activity discussed here. 
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Question Presented

Are the costs associated with the sending of short code text messages as described in the 

request in-kind contributions to the other federal political committees listed on the “split it” 

fundraising pages in question?

Legal Analysis 

No, the costs associated with the sending of short-code text messages as described in the 

request are not in-kind contributions to other federal political committees listed on the split-it 

fundraising pages.

Under the Act, expenditures that are coordinated with a candidate or political party 

committee are treated as contributions to that candidate or political party committee.5

 

Specifically, Commission regulations provide that if a communication is “coordinated with a 

candidate, an authorized committee, a political party committee, or an agent of any of the 

foregoing,” the payment for the communication is an in-kind contribution to that candidate or the 

political party committee from the payor.6 Commission regulations set forth a three-prong test to 

determine whether a communication is a coordinated communication.7

 

The first prong is the payment prong, which requires that the communication be paid for 

by a person other than the candidate or party to whom it would be a contribution.8 Here, this 

prong would be satisfied because Maggie for NH would pay for the text messages that link to 

split-it fundraising pages listing other political committees. 

The second prong of the coordinated communication test is the content prong. The 

content prong provides that a communication is a coordinated communication only if it is an 

electioneering communication or a “public communication” that meets any of several criteria.9

 

An “electioneering communication” is defined as “any broadcast, cable, or satellite 

communication” that refers to a clearly identified federal candidate, is publicly distributed within 

certain time periods, and is targeted to the relevant electorate.

10 The proposed text messages are 

not “broadcast, cable, or satellite communications” and, thus, are not electioneering 

communications. 

Therefore, only if the proposed text messages are “public communications” could they be 

coordinated communications. A public communication is defined as “a communication by 

5 52 U.S.C. § 30116(a)(7)(B). 

6 11 C.F.R. § 109.21(a), (b)(1). 

7 Id. § 109.21(a). 

8 Id. § 109.21(a)(1).

9 Id. § 109.21(a)(2).

10 Id. § 100.29(a).
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means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor 

advertising facility, mass mailing, or telephone bank to the general public, or any other form of 

general public political advertising.”11 In 2006, the Commission amended the definition of 

“public communication” specifically to exclude communications made over the internet from the 

scope of general public political advertising, “except for communications placed for a fee on 

another person’s Web site.”12 

Because short-code text messages as proposed in the request are not expressly 

enumerated in the statutory or regulatory definition of “public communication,” the Commission 

must determine whether the proposed short code text messages constitute “general public 

political advertising.”13 Based on the facts presented here, the Commission concludes they do 

not.

The term “general public political advertising” is not defined by the Act or Commission 

regulations.14 However, “the Commission interprets each term listed in the definition of ‘public 

communication’ or in [52 U.S.C. § 30120(a)] as a specific example of one form of ‘general 

public political advertising.’”15

The listed forms of “general public political advertising” share several common elements, 

one of which is that they typically require the person making the communication to pay to use a

third party’s platform to gain access to the third party’s audience.

16 For example, when a 

political committee places an advertisement in a newspaper, it pays to convey its message to the 

newspaper’s readers, many of whom may have little or no interest in receiving the committee’s 

communications and do so only incidentally while reading the news.

17 Similarly, in the online 

11 52 U.S.C. § 30101(22) (emphasis added); see also 11 C.F.R. § 100.26. 

12 11 C.F.R. § 100.26; Internet Communications, 71 Fed. Reg. 18,589 (Apr. 12, 2006). 

13 See Shays v. FEC, 337 F. Supp. 2d 28, 70 (D.D.C. 2004), aff'd sub nom. Shays v. FEC, 414 F.3d 76 (D.C. 

Cir. 2005) (“What constitutes “general public political advertising” in the world of the Internet is a matter for the 

FEC to determine.”); Advisory Opinion 2012-35 (GTSG) (concluding Commission has authority to interpret Act 

and its regulations with respect to emerging technologies like short codes so long as use of such new technologies 

does not compromise intent of Act or regulations). See also Advisory Opinion 1995-09 (NewtWatch) at 2 (“The 

term ‘general public political advertising’ . . . may be applied on a case-by-case basis to forms of communication not 

specifically listed in 11 C.F.R. § 110.11.”).

14 See 52 U.S.C. § 30101(22); 11 C.F.R. § 100.26. 

15 See Disclaimers, Fraudulent Solicitation, Civil Penalties, and Personal Use of Campaign Funds, 67 Fed. 

Reg. 76,962, 76,963 (Dec. 13, 2002).

16 See Internet Communications, 71 Fed. Reg. at 18,594-95 (“[T]he advertiser is paying for access to an 

established audience using a forum controlled by another person, rather than using a forum that he or she controls to 

establish his or her own audience.”).

17 See id. at 18,590 (“A number of commenters also noted that the Internet differs from traditional forms of 

mass communication because individuals must generally be proactive in order to access information on a website, 

whereas individuals receive information from television or radio the instant the device is turned on, or passively 

view a billboard while driving or walking down a street.”).
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context, a political committee pays to place a communication on a third party’s website to reach 

the website’s users. Again, many of these people may have little to no interest in receiving the 

communication and do so only because they wish to use the third party’s website.

In contrast, according to the request, supporters of Maggie for NH who elect to receive 

information from the committee via text message “must affirmatively opt-in to receive short 

code text messages,”18 either by texting a specified keyword to Maggie for NH’s short code 

number, or by providing their cell phone number through a form or webpage provided by the 

committee. Maggie for NH “only sends text messages to Subscribers who have opted into 

receiving messages from the Committee.”19 Participants in the committee’s short code program 

therefore have sought out the speaker and speech through a forum controlled by the speaker (i.e., 

the short code number the committee leases). This contrasts with traditional forms of paid 

advertising discussed above, where a speaker pays to disseminate a message through a medium 

controlled, and to an audience established, by a third party. Thus, text messages sent to 

subscribers as part of Maggie for NH’s text message program are similar to speech disseminated 

through a political committee’s own website, which the Commission previously concluded is not 

a public communication.

20 For these reasons, text messages sent as described in the request do 

not constitute a form of general public political advertising and, therefore, are not public 

communications.21

Accordingly, based on the facts presented, the Commission concludes that, because the 

short code text messages described in the request are not “public communications,” the proposed 

text messages do not satisfy the content prong of the coordinated communications test. Thus, 

they are not in-kind contributions to the other political committees listed on the split-it 

fundraising pages.22

This response constitutes an advisory opinion concerning the application of the Act and 

Commission regulations to the specific transaction or activity set forth in your request.23 The 

Commission emphasizes that, if there is a change in any of the facts or assumptions presented, 

18 AOR002.

19 Id.

20 Internet Communications, 71 Fed. Reg. at 18,598 (“[A] political party committee’s Web site cannot be a 

form of ‘public communication’ any more than a Web site of an individual can be a form of ‘public 

communication.’ In each case, the Web site is controlled by the speaker, the content is viewed by an audience that 

sought it out, and the speaker is not required to pay a fee to place a message on a Web site controlled by another 

person.”). 

21 This advisory opinion only addresses text messages sent as described in the request. It does not address 

whether text messages in general are public communications under the Act and Commission regulations. 

Furthermore, this advisory opinion does not address any disclaimer requirements that may apply to the 

communications in question because the requestor did not raise that issue in the request.

22 Because the text messages described in the request would not satisfy the content prong of the coordinated 

communication test, the Commission need not, and does not, address the third and final part of the test, the conduct 

prong. See 11 C.F.R. §109.21(a)(3), (d).

23 See 52 U.S.C. § 30108. 
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and such facts or assumptions are material to a conclusion presented in this advisory opinion, 

then the requestor may not rely on that conclusion as support for its proposed activity. Any 

person involved in any specific transaction or activity which is indistinguishable in all its 

material aspects from the transaction or activity with respect to which this advisory opinion is 

rendered may rely on this advisory opinion.24 Please note that the analysis or conclusions in this 

advisory opinion may be affected by subsequent developments in the law including, but not 

limited to, statutes, regulations, advisory opinions, and case law. Any advisory opinions cited 

herein are available on the Commission’s website. 

 On behalf of the Commission, 

 Allen J. Dickerson

 Chairman 

24 See id. § 30108(c)(1)(B).