FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

STATEMENT OF 

COMMISSIONERS SHANA M. BROUSSARD AND ELLEN L. WEINTRAUB

REGARDING ADVISORY OPINION 2022-20 (MAGGIE FOR NH)

On October 4, 2022, the Commission approved an advisory opinion in response to a request 

from Maggie for NH (the “Committee”), the principal campaign committee of Maggie Hassan, the 

U.S. Senator from New Hampshire and a candidate for re-election in 2022. The request asked, in 

essence, whether short code text messages1 sent to supporters who have affirmatively opted in to 

receive them are “public communications” under the Act and Commission regulations. The 

Commission concluded that they are not. We did not vote to approve Draft B, which was ultimately 

adopted. We write separately to explain our votes. 

A public communication is defined as “a communication by 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.”2 

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

statutory or regulatory definition of “public communication,” the question before the Commission 

was whether the proposed short code text messages constitute “general public political 

advertising.”3 

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

regulations.4 However, in the 2006 rulemaking concerning internet communications, the 

Commission clarified the types of communications that qualify as “general public political 

advertising.”5 These types of communications share two key characteristics. First, they are all 

1 For information on how short code texting operates, see, e.g., Advisory Opinion 2012-31 (AT&T).

2 52 U.S.C. § 30101(22) (emphasis added); see also 11 C.F.R. § 100.26.

3 See Advisory Opinion 2012-35 (GTSG) at 4 (concluding Commission has authority to interpret Act and its 

regulations with respect to emerging technologies like short codes, “where the use of the technology would not 

compromise the intent of the 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.”). 

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

5 Internet Communications, 71 Fed. Reg. 18,589, 18,594 (Apr. 12, 2006). In this rulemaking, the Commission 

also 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.” 11 C.F.R. § 110.26; Internet Communications, 71 Fed. Reg. at 18,593-95.
Advisory Opinion 2022-20 (Maggie for NH)

Statement of Commissioners Shana M. Broussard and Ellen L. Weintraub

communications for which a payment is required.6 There is no threshold payment amount that 

triggers the definition of “general public political advertising”; even relatively low-cost paid 

advertising may qualify.7 Second, all general public political advertising communications rely on 

an intermediary to disseminate the message. The Commission reasoned that:

The forms of mass communication enumerated in the definition of “public communication” 

in [52 U.S.C. § 30101(22)], including television, radio, and newspapers, each lends itself to 

distribution of content through an entity ordinarily owned or controlled by another person. 

Thus, for an individual to communicate with the public using any of the forms of media 

listed by Congress, he or she must ordinarily pay an intermediary (generally a facility 

owner) for access to the public through that form of media each time he or she wishes to 

make a communication. This is also true for mass mailings and telephone banks, which are 

other forms of “public communication” under [52 U.S.C. § 30101(22)]. A communication to 

the general public on one’s own website, by contrast, does not normally involve the payment 

of a fee to an intermediary for each communication.8

Thus, the category of general public political advertising encompasses communications for which 

the speaker must rely on and pay a third-party intermediary to access the speaker’s target audience 

“each time he or she wishes to make a communication.”9 

As described in the request, the proposed short code text messages share these two 

characteristics with the types of communications that constitute “general public political 

advertising.” First, to implement its short code text messaging program, the Committee pays 

(directly or indirectly) multiple intermediaries, including the entity from which it leases its short 

code, a text messaging vendor, and cellular carriers. Second, the Committee relies upon each of 

these third parties to provide critical technologies, infrastructure, and expertise necessary for the 

Committee to disseminate communications to its supporters using short code messaging technology. 

In particular, the Committee pays a text messaging vendor a per-message fee each time it wishes to 

disseminate a communication, similar to the way a speaker using any of the types of communication 

listed in the definition must pay a third-party intermediary to disseminate each communication. 

Text messages sent via the short code program as described in the request are therefore of the same 

6 “By definition, the word ‘advertising’ connotes a communication for which a payment is required, particularly 

in the context of campaign messages.” Internet Communications, 71 Fed. Reg. at 18,594 (citing dictionary definitions 

of “advertising” that include a payment element).

7 Id. at 18,595 (“There is no stated threshold payment amount in the statutory definition of ‘public 

communication,’ and it is not clear on what statutory basis the Commission could establish one. Nor was the 

Commission able to establish a record that would justify a particular threshold. Congress could have chosen, but did 

not, to establish a specific threshold cost below which an advertisement would not be a ‘public communication.’ Thus, 

even late-night advertisements on small radio stations, low-cost classified ads in small circulation newspapers, and lowcost billboards in relatively remote areas are forms of ‘public communication’ under [the Act].”).

8 Id. at 18,594. 

9 Id. 
Advisory Opinion 2022-20 (Maggie for NH)

Statement of Commissioners Shana M. Broussard and Ellen L. Weintraub

nature as the types of communications that the Commission has previously described as general 

public political advertising.10 

Moreover, messages sent via the Committee’s short code text message program are 

distinguishable from communications the Commission has concluded are not public 

communications. Unlike email, which has “virtually no cost[s] associated” with it, even when 

sending “thousands of e-mails to thousands of recipients,”11 the Committee’s text message program 

incurs per message fees as well as flat fees for the entire short code text messaging program.12 

The Committee’s text message program is similarly distinguishable from a political party 

committee’s website.13 After a website is created, its owner does not incur transactional fees or 

require the material participation of intermediaries to communicate with visitors to the site. As 

discussed above, this is not the case with short code messaging programs. Because the committee 

must rely continuously on paid, third-party intermediaries to access its target audience via short 

code text messages, they are a form of general public political advertising. Consequently, they are 

public communications under the Act and Commission regulations.

In the advisory opinion, our colleagues argue that the listed types of communications share 

an additional requirement: “[The listed types of communications] 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.”14 In contrast, the advisory opinion goes on, “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...’”15 “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).”16

10 See id. at 15,594-95. This conclusion is consistent with Advisory Opinion 2002-09 (Target Wireless). In that 

opinion, the Commission applied the small items disclaimer exception, 11 C.F.R. § 110.11(a)(6)(i), to paid content 

distributed via text message. Although the Commission did not conduct a public communication analysis, the text 

messages in question would not have required an exception from the disclaimer requirement unless they were public 

communications that otherwise would have been subject to the disclaimer requirement. Advisory Opinion 2002-09 

(Target Wireless) at 4; see 11 C.F.R. § 110.11(a). See also Factual & Legal Analysis at 3-4, MURs 5401, 5422 (Texans 

for Henry Cuellar Congressional Campaign) (Nov. 29, 2004) (finding that campaign’s robocall program was general 

public political advertising). 

11 Internet Communications, 71 Fed. Reg. at 18,596 (“The Commission does not consider e-mail to be a form of 

‘general public political advertising’ ... All of the forms of ‘public communication’ expressly listed by Congress 

normally involve at least some charge for delivery, such as telephone charges or postage.”). 

12 AOR002.

13 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.”).

14 Advisory Opinion 2022-20 (Maggie for NH) at 4.

15 Id. at 5 (citing AOR002).

16 Advisory Opinion 2022-20 (Maggie for NH) at 5.
Advisory Opinion 2022-20 (Maggie for NH) 

Statement of Commissioners Shana M. Broussard and Ellen L. Weintraub

But the advisory opinion ignores a glaring deviation from this ostensible “shared common 

element”: the Act includes “mass mailing” in its enumerated list of types of public 

communications.17 The Act defines “mass mailing” as “a mailing by United States mail or 

facsimile of more than 500 pieces of mail matter of an identical or substantially similar nature 

within any 30-day period.”18 Neither the definition of “public communication” nor the definition of 

“mass mailing” exclude mailings or faxes sent to individuals who have assented to receive them, 

such as by providing their mailing address or fax number to the political committee through an 

online or paper form. Our colleagues do not address this apparent inconsistency between their 

claim that “public communication” can only be one in which the speaker pays to access a third 

party’s audience and the plain language of the statute which includes all mass mailings with no 

limitation based on how the audience was assembled.

19 And exempting text messages that may go 

to thousands or even millions of recipients from the definition of “public communication” is 

fundamentally inconsistent with a statutory scheme that defines more than 500 substantially similar 

communications as “public.” 

Our role as commissioners is to enforce the laws as they are written. In our view, the text 

message program as described falls within the statutory definition of “public communication.” 

Because our colleagues were unable to persuasively harmonize their desired interpretation with the 

language of the statute, we were unable to vote to approve Draft B. 

November 4, 2022 ____________________________

Date Shana M. Broussard 

Commissioner

November 4, 2022 ____________________________

Date Ellen L. Weintraub 

Commissioner

17 52 U.S.C. § 30101(22) (“The term ‘public communication’ means a communication by 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 C.F.R. § 100.26.

18 52 U.S.C. § 30101(23); 11 C.F.R. § 100.27. 

19 It is also worth noting that as described in the request, the Committee would be sending text messages 

soliciting contributions to other political committees and would be doing so in coordination with those other political 

committees. AOR003-04 (“the payment and conduct standards for a coordinated communication would be met” 

because “the Committee will be in possession of material, non-public information on the projects, plans, activities 

and/or needs of the other listed committees”). Thus, even if the definition of “public communication” was limited to 

situations in which one entity paid to access another entity’s audience, those are not the facts presented here. As 

described in the request, the Committee would not solely be accessing its own audience through the text messaging 

program. Instead, the Committee would be providing, for free, access to the Committee’s audience to other political 

committees – the same political committees with which it stipulates it would be coordinating – for the purpose of 

soliciting contributions to those political committees.