FEDERAL ELECTION COMMISSION 

Washington, DC 

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT: 

The Commission 

Office of the Commission Secretary VFV

November 2, 2023

AO 2023-06 (Texas Majority PAC) Comment

Attached is a comment received from Elias Law Group regarding AO 2023-06

This matter is on November 2, 2023 Open Meeting Agenda. 

Attachment
November 1, 2023

Federal Election Commission

Office of the General Counsel

Federal Election Commission

1050 First Street, NE

Washington, DC 20463

ao@fec.gov

Re: Advisory Opinion Request 2023-6

Dear Acting General Counsel Stevenson:

I write as counsel to the Montana Democratic Party (“MDP”) to provide comments on proposed 

Draft A in response to Advisory Opinion Request 2023-6. The MDP urges the Federal Election 

Commission (“Commission”) to adopt the portion of Draft A that holds that a paid canvass is not 

a “public communication” but to reject Draft A’s conclusion that expenses for “hiring vendor 

consultants, hiring and training paid canvassers, and creating and managing a canvass 

questionnaire” are non-communication expenditures under 11 C.F.R. § 109.20. This conclusion 

is irreconcilable with the MDP’s decades of experience in administering paid canvasses,

and if adopted, would drastically alter how political parties structure and fund their paid 

canvassing programs. At bottom, Draft A identifies a distinction between different 

mediums’ distribution costs that the regulated community does not understand or agree 

with, and its adoption will disrupt decades of established practice. 

The MDP is a state committee of the Democratic party under 52 § U.S.C. 30125(b). For decades, 

the MDP has relied on paid canvasses as a cornerstone method of communicating with Montana 

voters on a myriad of issues. As the Commission knows, a paid canvass entails compiling a list 

of voters and their addresses, then sending an individual to each voter’s address to knock on their 

door and attempt to communicate with that voter on a specific topic. If a voter does not answer 

the door, printed literature that synthesizes the desired communication is left, usually in the form 

of a door hanger or flyer. If the voter does answer the door, the canvasser engages in an oral 

conversation with the voter based off a pre-written script and may also leave printed literature

summarizing the relevant issue or topic. In either instance, a communication is made – either 

via printed literature, an oral communication or both. 

Received by OGC on Nov. 1, 2023
November 1, 2023

Page 2

In MDP’s extensive experience, the execution of a paid canvass necessarily entails two types of 

costs: (1) the cost of producing the printed literature distributed to voters; and (2) the cost of 

distributing the literature and training individuals on the accompanying oral communication.

The second cost – distribution of the literature and training on oral communication- comes in the 

form of a consulting fee paid to a canvassing vendor. When MDP decides to undertake a paid 

canvass, it selects a canvassing vendor. The MDP then typically provides that vendor with a list 

of voters and addresses, literature, and an oral script. The canvassing vendor hires and trains 

individual canvassers and executes the paid canvass according to the materials and instructions 

provided by MDP. The entire fee paid to the canvassing vendor is provided to compensate the 

vendor for the distribution of the communication (in both oral and printed form). The canvassing 

vendor serves no other purpose - and is not paid for any other purpose - apart from the services 

required to distribute the printed and oral communications. 

Despite this practical reality, Draft A concludes that the expenses of “hiring vendor consultants, 

hiring and training paid canvassers, and creating and managing a canvass questionnaire” are 

“supportive expenses” that are “not for canvassing communications themselves.”1 For every paid 

canvass sponsored by MDP in recent memory, distribution of the communications depended 

entirely on the fees paid to the canvassing vendor. The vendor fees served no purpose other than 

to compensate the vendor to hire individual canvassers, train them on how to deliver the specific 

communication and compensate the canvassers for time spent delivering said communications.

To MDP’s knowledge, the Commission has never separated out the distribution costs of a 

communication and treated such costs as subject to 11 C.F.R. § 109.20 instead of 11 C.F.R. § 

109.21. And it is difficult to identify a single form of communication that does not require

payment for distribution costs. For example, MDP’s direct mail program requires payments for 

postage to mail the communication to voters. When the MDP wishes to text voters, it does so by 

paying to use a software platform that works with wireless carriers’ systems to disseminate the 

text messages. To distribute a television advertisement, MDP pays a professional media buyer to 

enter into contracts with television stations that dictate the rate, time slot and duration of the 

advertising spot. All of these costs—just like the costs of a canvassing vendor—are directly tied 

to the distribution of the communication at issue and serve no other purpose. The underpinnings 

of Draft A would not only undermine existing practices around paid canvasses, it would disrupt 

the entire communities’ understanding of distribution costs for a wide range of communications. 

MDP understands the Commission’s goal of stopping attempts to treat costs that are tangential to 

a communication as communication costs under 11 C.F.R. § 109.21. Where Draft A errs is in 

determining that distribution costs for a paid canvass are not communication costs but are rather 

“supportive expenses.” It is not possible to communicate with voters through a paid canvass 

without paying a canvassing firm for the exact expenses identified by the Commission as 

1 Draft A at 9. 
November 1, 2023

Page 3

merely supportive. Such expenses are necessary for the distribution of the communication 

and are therefore properly categorized as communication costs under 11 C.F.R. § 109.21. A 

conclusion to the contrary would separate out from § 109.21 the exact kinds of distribution 

costs that are present in nearly every other type of voter communication. There is no legal 

or practical basis for this distinction. 

MDP urges the Commission to adjust Draft A such that (1) costs directly related to the 

production or distribution of a communication do fit within 11 C.F.R. § 109.21, but (2) the 

practically incorrect conclusion that “hiring vendor consultants, hiring and training paid 

canvassers, and creating and managing a canvass questionnaire” do not qualify as such is 

removed. Such reasoning is not necessary to protect against misuse of § 109.21 and would cause 

nothing short of chaos as the regulated community attempts to understand how such reasoning 

applies to other critical forms of voter contact and communication. 

Yours truly,

Jacquelyn Lopez

Counsel for Montana Democratic Party