FEDERAL ELECTION COMMISSION 

WASHINGTON, O.C. 20463 

Charles R. Spies 

Clark Hill PLC FEB "7 2017 

601 Pennsylvania Avenue, N.W. 

North Building, Suite 1000 

Washington, D.C. 20004 

RE: MUR 6920 

American Conservative Union 

Dear Mr. Spies: 

On March 4, 2015, the Federal Election Commission notified your client, American 

Conservative Union, of a complaint alleging violations of certain sections of the Federal Election 

Campaign Act of 1971, as amended ("the Act"). A copy of the complaint was forwarded to your 

clients at that time. 

Upon further review of the allegations contained in the complaint, information supplied 

by you, and additional information, the Commission, on January 24, 2017, found that there is 

reason to believe American Conservative Union violated 52 U.S.C. § 30122 (formerly 2 U.S.C. § 

441 f), a provision of the Act. The Factual and Legal Analysis, which formed a basis for the 

Commission's finding, is attached for your information. 

You may submit any factual or legal materials that you believe are relevant to the 

Commission's consideration of this matter. Please submit such materials to the General 

Counsel's Office within 15 days of receipt of this letter. Where appropriate, statements should be 

submitted under oath. In the absence of additional information, the Commission may find 

probable cause to believe that a violation has occurred and proceed with conciliation, 

Please note that you haye a legal obligation to preserve all documents, records and 

materials relating to this matter until such time as you are notified that the Commission has 

closed its file in this matter. See 18 U.S.C. § 1519. 

If you are interested in pursuing pre-probable cause conciliation, you should so request in 

writing. See 11 C.F.R. §111.18(d). Upon receipt of the request, the Office of the General 

Counsel will make recommendations to the Commission either proposing an agreement in 

settlement of the matter or recommending declining that pre-probable cause conciliation be 
MUR 6920 

Charles R. Spies 

Page 2 

pursued. The Office of the General Counsel may recommend that pre-probable cause 

conciliation not be entered into at this time so that it may complete its investigation of the matter. 

Further, the Commission will not entertain requests for pre-probable cause conciliation after 

briefs on probable cause have been mailed to the respondent. 

Requests for extensions of time will not be routinely granted. Requests must be made in 

writing at least five days prior to the due date of the response and specific good cause must be 

demonstrated. In addition, the Office of the General Counsel ordinarily will not give extensions 

beyond 20 days. 

This matter will remain confidential in accordance with 52 U.S.C. §§ 30109(a)(4)(B) and 

30109(a)(12)(A) (formerly 2 U.S.C. §§ 437g(a)(4)(B) arid 437g(a)(12)(A)) unless you notify the 

Commission in writing that you wish the matter to be made public. 

If you have any questions, please contact Antoinette Fuoto, the attorney assigned to this 

matter, at (202) 694-1634. 

On behalf of the Commission, 

Steven T. Walther 

Chairman 

Enclosures 

Factual and Legal Analysis 
1 FEDERAL ELECTION COMMISSION 

2 

3 FACTUAL AND LEGAL ANALYSIS 

4 

RESPONDENT: American Conservative Union MUR: 6920 

5 I. INTRODUCTION 

6 This matter was generated by a Complaint alleging that American Conservative Union 

1 7 ("ACU") knowingly permitted its name to be used to effect a $ 1.71 million contribution to Now 

0 8 or Never PAC from an undisclosed donor, and knowingly helped the undisclosed donor make the 

4 

4 9 contribution, in violation of 52 U.S.C. § 30122 and 11 C.F.R. § 110.4(b). 

1 10 II. FACTS 

. ^ II Now or Never PAC, an independent expenditure only committee, reported that on 

^ 12 October 31, 2012, it received a $1.7.1 million contribution from ACU,' a.501(c)(4) social welfare 

13 organization.^ In May 2014, apparently after an independent auditor reviewed its 2012 fmancesi^ 

14 ACU filed an Amended 2012 IRS.Form 990 that disclosed the $1.71 contribution to Now or 

15 Never PAC as "a political contribution received by the Organization and promptly and directly 

16 delivered to a separate political organization."^ 

17 III. LEGAL ANALYSIS 

18 The Act prohibits a person from knowingly permitting his or her name to be used to 

19 effect a contribution in the name of another.^ The requirement that a contribution be made in the 

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

ACU Resp. at I (Apr. 23,2015). 

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

Amended Form 990, May 12, 2014). 

Compl Ex. C at Schedule O, Schedule C. 

52 U.S.C. § 30122; see also 11 C.F.R. § 110.4(b). The term "person" includes partnerships, corporations, 

and other organizations. 52 U.S.C. § 30101 (11); II C.F.R. § 100.10. 
VfUR 6920 (American Conservative Union) 

Factual and Legal Analysis 

Page 2 of2 

1 name of its true source promotes Congress's objective of ensuring the complete and accurate 

2 disclosure by candidates and committees of the political contributions they receive.® Courts have 

3 uniformly rejected the assertion that "only the person who actually transmits funds ... makes the 

4 contribution,"^ recognizing that "it is implausible that Congress, in seeking to promote 

5 transparency, would have understood the relevant contributor to be [an] intermediary who 

7 6 merely transmitted the campaign gift."® Accordingly, the Act and the Commission's regulations 

4 7 provide that a person who provides funds to another for the purposes of contributing to a 

4 8 candidate or committee "makes" the resulting contribution.® If an intermediary merely plays a 

^ 9 "ministerial role" in transmitting a contribution, the contribution should not be attributed to the 

^ 10 intermediary but instead to the original source.'® 

11 Based on ACU's representation that the contribution to Now or Never PAC was "a 

12 political contribution received by the Organization and promptly and directly delivered to a 

13 separate political organization," the Commission finds reason to believe that A(2U violated 52 

14 U.S.C. § 30122. 

" See, e.g.. United Stales v. O'Donnell, 608 F.3d 546, 553 (9th Cir. 2010) ("[Tjhe 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 Cir. 2011). 

« ODo«fle//,608 F.3datS54. 

' 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 simply conveys the gift, from the donor to the donee."). 

UDonne//,608 F.3dat 550.