FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) MUR 7753 

Everytown for Gun Safety Action Fund, Inc. ) 

) 

Everytown for Gun Safety Victory Fund and ) 

Tara Paone in her official capacity ) 

as Treasurer ) 

) 

U.S. Rep. Lucy McBath ) 

) 

Friends of Lucy McBath Inc. and ) 

Kendra-Sue Derby in her official capacity ) 

as Treasurer ) 

 

STATEMENT OF REASONS OF VICE CHAIR ALLEN DICKERSON AND 

COMMISSIONERS SEAN J. COOKSEY AND JAMES E. “TREY” TRAINOR, III

The Complaint in this matter alleges that two related organizations, Everytown for Gun 

Safety Action Fund and Everytown for Gun Safety Victory Fund (“Everytown Respondents”), 

illegally coordinated expenditures with Lucy McBath, a congressional candidate and one-time paid 

national spokesman for an associated Everytown for Gun Safety organization, and her campaign.1

The Respondents deny the allegations and claim that the Complaint is too speculative to support a 

reason to believe finding.2

As we have stated before, “purely speculative charges, especially when accompanied by a 

direct refutation, do not form an adequate basis to find reason to believe that a violation of the 

[law] has occurred.”3 Here, the Commission has only suppositions that, because McBath was 

employed by an Everytown for Gun Safety organization, she must have engaged in substantial 

1 Complaint (March 16, 2020), MUR 7753 (Everytown for Gun Safety Action Fund, et al.) (“Complaint”).

2 See Response of Lucy McBath, et al. (Aug. 10, 2020), MUR 7753 (Everytown for Gun Safety Action Fund, 

et al.) (“McBath Response”); Response of Everytown for Gun Safety Action Fund, et al. (Aug. 10, 2020), MUR 7753 

(Everytown for Gun Safety Action Fund, et al.) (“Everytown Response”). 

3 Statement of Reasons of Vice Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. 

“Trey” Trainor III at 2 (June 28, 2021), MUR 7501 (Bill Nelson for U.S. Senate, et al.) (quoting Statement of Reasons 

of Commissioners David M. Mason, Karl J. Sandstrom, Bradley A. Smith, and Scott E. Thomas at 3 (Dec. 21, 2000), 

MUR 4960 (Hillary Rodham Clinton for Senate)). 

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discussions or provided material information related to Everytown’s political spending. But the 

mere employment of a candidate alone is insufficient to establish coordination or support a reasonto-believe finding, and there is no other supporting evidence for the Complaint’s claim. Therefore, 

we voted to dismiss this matter.

I. Factual Background

Everytown for Gun Safety is a collection of interrelated gun-control education and 

advocacy groups consisting of: Everytown for Gun Safety Support Fund (the “Support Fund”), a 

501(c)(3) charitable organization engaged in education and research; Everytown for Gun Safety 

Victory Fund (the “Victory Fund”), an independent expenditure-only political action committee; 

and Everytown for Gun Safety Action Fund (the “Action Fund”), a 501(c)(4) social-welfare

organization. The third organization describes its “primary activity” as “promoting gun safety 

legislation and initiatives and reducing gun violence through the education of policymakers, the 

public, and the media and organizing communities in support of gun safety.”4 Together, the 

Support Fund, the Victory Fund, and the Action Fund are all part of what Respondents characterize 

as “[t]he Everytown for Gun Safety family of organizations.”5 

Congresswoman Lucy McBath was first elected to Georgia’s Sixth Congressional District 

in 2018. Prior to running for office, she was a spokesperson for Everytown for Gun Safety 

(although which specific organization employed her is disputed). The timeline of McBath’s 

decision to run for federal office in 2018 is as follows: On March 5, 2018, McBath filed her 

Statement of Candidacy and her campaign committee, Friends of Lucy McBath (the “McBath 

Committee”), filed its Statement of Organization.6 On April 2, 2018, McBath took unpaid leave 

from Everytown for Gun Safety in order to pursue her campaign.7 Following Georgia’s May 22, 

2018, primary election for the Democratic nomination, McBath advanced to a primary run-off 

election, which she won on July 24, 2018.

8 As the Democratic nominee, McBath then won the 

general election to represent the Sixth Congressional District on November 6, 2018.9

Throughout the election, but only after McBath had begun her unpaid leave, the Action 

Fund and the Victory Fund supported McBath’s election. The Action Fund spent $1,256,290 on 

independent expenditures in support of McBath’s candidacy.10 In addition, it contributed 

4 Everytown for Gun Safety Action Fund, 2018 Return of Organization Exempt From Tax (“2018 Action Fund 

Tax Return”), available at https://apps.irs.gov/pub/epostcard/cor/208802884_201812_990O_2020061217189577.pdf. 

5 Everytown Response at 2.

6 First General Counsel’s Report at 3 (Jan. 28, 2021), MUR 7753 (Everytown for Gun Safety Action Fund, et al.). 

7 Everytown Resp., Attach. 1 ¶ 2. 

8 First General Counsel’s Report at 3 (Jan. 28, 2021), MUR 7753 (Everytown for Gun Safety Action Fund, et al.).

9 Georgia Secretary of State, November 6, 2018 General Election: Official Results, available at 

https://results.enr.clarityelections.com/GA/91639/Web02-state.221451/#/c/C_2/s/C_2_1. 

10 2017-2018 Independent Expenditures, Everytown for Gun Safety Action Fund, available at 

https://www.fec.gov/data/committee/C90015025/?tab=spending. 

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$3,712,786 to the Victory Fund in 2018.

11 The Victory Fund, in turn, spent $2,953,240 on 

independent expenditures in support of McBath.12

On March 16, 2020, this Complaint was filed against McBath, the McBath Committee, the 

Action Fund, and the Victory Fund. It alleges that the Action Fund and Victory Fund’s independent 

expenditures were coordinated with McBath and her campaign based on her ties to Everytown for 

Gun Safety. In support of the allegation, the Complaint points to the initial overlap in McBath’s 

candidacy and her employment, as well as information in McBath’s congressional Financial 

Disclosure Report indicating that she drew a salary from the Action Fund. It also suggests that the 

timing and scale of the independent expenditures indicates coordination, such that it is “highly 

implausible that Representative McBath did not engage in substantial discussion regarding her 

election.”13

The Respondents deny the allegations and argue the Complaint is entirely speculative. 

McBath and her campaign committee dispute that she was ever an employee of the Action Fund, 

and the Action Fund and Victory Fund submitted an affidavit supporting the claim that she was 

actually employed by the Support Fund. The Respondents further argue that there is no relevant 

conduct that would make the independent expenditures into prohibited coordinated 

communications, and that there was a firewall and anti-coordination policy in place at the time of 

McBath’s candidacy. 

II. The Law

The Federal Election Campaign Act of 1971, as amended (the “Act”) prohibits corporations 

from making contributions to candidates for federal office, and further prohibits the officers and 

directors of any corporation from consenting to such a contribution.14 “[E]xpenditures made by 

any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a 

candidate, his authorized political committees, or their agents” are considered “contributions” 

under the Act.15 

Commission regulations setting out the parameters of the coordinated-communications 

prohibition are byzantine. They consist of various multi-factor tests and standards, many of which 

have sub-parts, and then further exceptions to the sub-parts. But stated as simply as possible, the 

Commission uses a three-part test to determine whether a communication was coordinated with a 

campaign. The Commission looks to: (1) who paid for the expenditures, (2) what was the content 

of the expenditures, and (3) and what, if any, coordinating conduct there was between the campaign 

and the outside party. 

11 First General Counsel’s Report at 6 (Jan. 28, 2021), MUR 7753 (Everytown for Gun Safety Action Fund, et 

al.) (citing 2017-2018 Individual Contributions, Everytown for Gun Safety Victory Fund, available at 

https://www.fec.gov/data/committee/C00688655/?cycle=2018&tab=raising#individual-contribution-transactions).

12 2017-2018 Independent Expenditures, Everytown for Gun Safety Victory Fund, available at 

https://www.fec.gov/data/committee/C00688655/?cycle=2018&tab=spending#independent-expenditures.

13 Complaint at 4. 

14 52 U.S.C. § 30118(a).

15 52 U.S.C. § 30116(a)(7)(B)(i).

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The Respondents acknowledge that the first two elements related to payment and content 

are satisfied. The Action Fund and the Victory Fund are outside parties who paid for public 

communications, and those communications were independent expenditures in support of 

McBath’s candidacy or in opposition to her opponent. But the Respondents argue that there is no 

evidence they meet the conduct standard for coordinated communications. 

Commission regulations set out six types of conduct that, if any one is present along with 

the payment and content standards, indicate a prohibited coordinated communication. The six 

types of conduct are: (1) request or suggestion; (2) material involvement; (3) substantial 

discussion; (4) use of a common vendor; (5) use of a former employee or independent contractor; 

and (6) republication of campaign material.16 

The Complaint contends that available evidence suggests two of these conduct categories 

have been met between the Everytown Respondents and the McBath Committee: substantial 

discussion and the use of a former employee or independent contractor. For both, the Commission 

has set out specific guidelines for how the standards are met.

First, the “substantial discussion” standard is satisfied when: 

The communication is created, produced, or distributed after one or more 

substantial discussions about the communication between the person paying for the 

communication, or the employees or agents of the person paying for the 

communication, and the candidate who is clearly identified in the communication, 

or the candidate’s authorized committee, the candidate’s opponent, the opponent’s 

authorized committee, or a political party committee. A discussion is substantial 

within the meaning of this paragraph if information about the candidate’s or 

political party committee’s campaign plans, projects, activities, or needs is 

conveyed to a person paying for the communication, and that information is 

material to the creation, production, or distribution of the communication.17

The substantial discussion standard is closely related to material involvement, and in both cases 

the standard “is not satisfied if the information material to the creation, production, or distribution 

of the communication was obtained from a publicly available source.”18

Second, the former employee or independent contractor standard looks to overlapping 

personnel between the outside party and the campaign. The standard is met when two conditions 

are true: 

[1.] The communication is paid for by a person, or by the employer of a person, 

who was an employee or independent contractor of the candidate who is clearly 

identified in the communication, or the candidate’s authorized committee, the 

16 11 C.F.R. § 109.21(d)(1)–(6).

17 11 C.F.R. § 109.21(d)(3).

18 Id. 

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candidate’s opponent, the opponent’s authorized committee, or a political party 

committee, during the previous 120 days; and ... 

[2.] That former employee or independent contractor uses or conveys to the person 

paying for the communication: (A) [i]nformation about the campaign plans, 

projects, activities, or needs of the clearly identified candidate, the candidate’s 

opponent, or a political party committee, and that information is material to the 

creation, production, or distribution of the communication; or (B) [i]nformation 

used by the former employee or independent contractor in providing services to the 

candidate who is clearly identified in the communication, or the candidate’s 

authorized committee, the candidate’s opponent, the opponent’s authorized 

committee, or a political party committee, and that information is material to the 

creation, production, or distribution of the communication.19

Like the standard for substantial discussion, this standard is not met when the information used or 

conveyed is publicly available.20

III. Analysis 

As noted above, the disposition of this matter turns entirely on whether the Respondents 

satisfy either of the conduct standards described above: substantial discussion or use of a former 

employee or contractor. The Complaint alleges that Respondents meet both,21 but for the reasons 

set forth below, we disagree.

First, the plain text of the former employee standard makes it inapplicable to the facts at 

hand. The former employee standard applies to “the employer of a person, who was an employee 

or independent contractor of the candidate.”22 McBath was the candidate; she was not an 

“employee or independent contractor of the candidate.” Thus, as the Office of the General Counsel 

(“OGC”) explained in their First General Counsel’s Report, “[g]iven that the plain text of the 

regulation clearly applies to ‘an employee or independent contractor of the candidate,’ it does not 

appear that the facts as alleged by the Complaint satisfy the conduct standard at section 

109.21(d)(5).”23

19 11 C.F.R. § 109.21(d)(5).

20 Id. 

21 The Complaint does not distinguish between the substantial discussion standard and the former employee 

standard in its analysis; however, it appears to be applying both. See Complaint at 3–4. It also references the request 

or suggestion standard in its recitation of the applicable law but does not raise it in the “Cause of Action” section 

applying the asserted facts to the law. Respondents specifically deny that any communication was created, produced, 

or disseminated at the request or suggestion of McBath or her campaign. See Everytown Response, Attachment A, 

Affidavit of Tara Paone, Chief Financial Officer of the Action Fund and Support Fund and Treasurer of the Victory 

Fund.

22 11 C.F.R. § 109.21(d)(5) (emphasis added).

23 First General Counsel’s Report at 13 (Jan. 28, 2021), MUR 7753 (Everytown for Gun Safety Action Fund, et al.).

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Second, there is insufficient information to find reason to believe that substantial discussion 

or material involvement occurred. The substantial discussion standard requires the candidate or 

the campaign to convey non-public information to the person paying for a qualifying 

communication. The Complaint alleges “the timing of Representative McBath’s employment as

the national spokesperson for the Action Fund and her own campaign launch, taken together with 

the near immediate paid advocacy efforts of the Action Fund render it highly implausible that 

Representative McBath did not engage in substantial discussion regarding her election.”24 The 

Complaint further alleges that “Everytown’s expenditures made in the 2018 elections demonstrate 

substantively unique and preferential treatment to Representative McBath ... [that] alone warrants 

investigation of coordination.”25 

As we have previously stated, “purely speculative charges, especially when accompanied 

by a direct refutation, do not form an adequate basis to find reason to believe that a violation of 

the [law] has occurred.”26 “[M]ere ‘official curiosity’ will not suffice as the basis for FEC 

investigations.”27 Therefore, “[t]he Commission cannot launch investigations into Americans’ 

political activities based on speculation or official curiosity, or shift the burden to respondents to 

prove their innocence.”28

The Complaint alleges no specific facts that would show substantial discussions or material 

involvement occurred other than the fact of McBath’s prior employment.29 Instead, the Complaint 

hypothesizes that such discussions must have occurred by virtue of McBath’s employment and the 

Action Fund and Victory Fund’s subsequent spending. The Action Fund and the Victory Fund are 

advocacy organizations. They exist to support policies and candidates that share their policy 

positions. It is hardly surprising—nor is it necessarily reflective of any coordination—that an 

advocacy organization would quickly and enthusiastically support a candidate who is closely 

associated with their issues and policy views. Shared interests provide a more plausible alternative 

explanation for the Action Fund and Victory Fund’s spending that is not rebutted by any evidence 

in the record.30 

24 Complaint at 4.

25 Id. 

26 Statement of Reasons of Vice Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. 

“Trey” Trainor III at 2 (June 28, 2021), MUR 7501 (Bill Nelson for U.S. Senate, et al.) (quoting Statement of Reasons 

of Commissioners David M. Mason, Karl J. Sandstrom, Bradley A. Smith, and Scott E. Thomas at 3 (Dec. 21, 2000), 

MUR 4960 (Hillary Rodham Clinton for Senate)). 

27 FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 388 (D.C. Cir. 1981). 

28 Statement of Reasons of Vice Chair Allen Dickerson and Commissioners Sean J. Cooksey and James E. 

“Trey” Trainor III at 2 (June 28, 2021), MUR 7501 (Bill Nelson for U.S. Senate, et al.) (quoting Statement of Reasons 

of Vice Chair Caroline C. Hunter and Commissioners Lee E. Goodman and Matthew S. Petersen at 2 (Feb. 15, 2017), 

MUR 6747 (Rick Santorum for President)). 

29 Indeed, as OGC acknowledges, “the available information does not establish that the Action Fund’s 

communications in support of McBath were in fact coordinated expenditures.” First General Counsel’s Report at 20

(Jan. 28, 2021), MUR 7753 (Everytown for Gun Safety Action Fund, et al.).

30 OGC in its First General Counsel’s Report states, “[t]he Responses do not sufficiently rebut the allegations.” 

First General Counsel’s Report at 17 (Jan. 28, 2021), MUR 7753 (Everytown for Gun Safety Action Fund, et al.).

This inappropriately shifts the burden of proof onto the Respondents in our view. Notwithstanding the reason-tobelieve standard being lower than belief beyond a reasonable doubt, respondents are presumed innocent until there is 

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The Complaint’s approach suggests that mere employment alone establishes a likelihood 

of substantial discussion and supports a reason to believe finding. But this effectively collapses 

the substantial discussion and former employee standards and fails to accord each requirement its 

due weight. The Complaint’s theory shifts the burden to Respondents to prove that coordination 

does not occur anytime an organization employs a candidate or their former employee.31 This 

cannot be correct. Even under the former employee standard, mere employment alone is not 

enough to establish coordination. The employee must still convey material information.32 By the 

same logic, mere former employment also does not establish substantial discussion. 

The Complaint does not identify what material information the Complainant believes was 

passed along to the Action Fund or the Victory Fund or how it was done, nor does it identify which 

specific communications were created using such information. In a sworn statement Respondents 

specifically deny that material information was conveyed and claim that they maintained a firewall 

policy to prevent coordination.33 Thus, the Complaint presents vague allegations, which are 

directly refuted by sworn statements from the Respondents. 

IV. Conclusion

At bottom, there is simply no evidence to support an inference of coordinating conduct 

between the McBath Committee and the Everytown Respondents. The Complaint is too 

speculative to support a reason to believe finding. So, we voted to dismiss. 

sufficient evidence to the contrary. See Statement of Reasons of Chairman Darryl R. Wold and Commissioners David 

M. Mason and Scott E. Thomas at 2 (July 20, 2000), MUR 4850 (Deloitte & Touche, LLP, et al.) (“The burden of 

proof does not shift to a respondent merely because a complaint is filed.”). 

31 The Complaint does not draw a clear distinction between the former employee standard and the substantial 

discussion standard. OGC does in its First General Counsel’s Report. As noted above, OGC correctly concluded that 

the former employee standard does not apply to the candidate themselves. Rather, OGC analyzes the situation under

the substantial discussion and material involvement standards, and states that the candidate’s employment creates “a 

reasonable basis to question whether McBath shared material information about her campaign’s plans, projects, and 

activities with the Action Fund.” First General Counsel’s Report at 16 (Jan. 28, 2021), MUR 7753 (Everytown for 

Gun Safety Action Fund, et al.). We disagree. The standard, after all, is “reason to believe,” not reason to question.

32 See 11 C.F.R. § 109.21(d)(5)(ii).

33 Everytown Response, Attachment A, Affidavit of Tara Paone, Chief Financial Officer of the Action Fund 

and Support Fund and Treasurer of the Victory Fund.

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______________________________ October 8, 2021_______________ 

Allen Dickerson Date

Vice Chair

_________________________________ October 8, 2021_______________ 

Sean J. Cooksey Date

Commissioner

_________________________________ October 8, 2021_______________ 

James E. “Trey” Trainor, III Date

Commissioner

MUR775300102