FEDERAL ELECTION COMMISSION 

Washington, DC 20463 

AGENDA DOCUMENT NO. 

AGENDA ITEM 

For meeting of Oct. 20, 2022

SUBMITTED LATE 

October 18, 2022 

MEMORANDUM 

TO: 

FROM: 

The Commission 

Lisa J. Stevenson Mr:5 £&1., L<Js 

Acting General Counsel {) v' -

Neven F. Stipanovic Mr:5 

Associate General Counsel 

Robert M. Knop RMK

Assistant General Counsel 

Heather Filemyr

Attorney 

Subject: Draft AO 2022-21 (DSCC, et al.) - Draft B 

We have been asked to place this draft on the Agenda by one or more Commissioners. 

Members ofthe public may submit written comments on the draft advisory opinion. We 

are making this draft available for comment until 9:00 am (Eastern Time) on September 

20, 2022. 

Members of the public may also attend the Commission meeting at which the draft will 

be considered. The advis01y opinion requestor may apperu· before the Commission at 

this meeting to answer questions. 

For more inf01mation about how to submit comments or attend the Commission meeting, 

go to https://www.fec.gov/legal-resources/advis01y-opinions-process/. 

Attachment 

22-51-B
1 ADVISORY OPINION 2022-21

2

3 Jacquelyn K. Lopez, Esq.

4 Rachel L. Jacobs, Esq.

5 Shanna M. Reulbach, Esq. DRAFT B

6 Jonathan A. Peterson, Esq.

7 Elias Law Group

8 10 G Street, NE

9 Suite 600

10 Washington D.C. 20002

11 Dear Counsel:

12 We are responding to your advisory opinion request on behalf of the DSCC, 

13 Bennet for Colorado, and People for Patty Murray concerning the application of the 

14 Federal Election Campaign Act, 52 U.S.C. §§ 30101-45 (the “Act”), and Commission 

15 regulations to requestors’ proposal for the DSCC to pay for two types of television 

16 advertisements, labeled Solicitation 1 and 2 in the request, using funds in the DSCC’s

17 account established under 52 U.S.C. § 30116(a)(9)(C) (“Legal Proceedings Account”). 

18 The proposed television advertisements would feature federal candidates, including 

19 Senators Bennet and Murray, and solicit donations to the Legal Proceedings Account. 

20 Requestors ask whether the proposal to pay for these advertisements using the Legal 

21 Proceedings Account is permissible and whether Bennet for Colorado and People for 

22 Patty Murray (collectively “Candidate Committees”) may coordinate the timing, content,

23 and placement of these advertisements with the DSCC. 

24 The Commission concludes that the DSCC may use funds from the Legal 

25 Proceedings Account to pay for television advertisements described in Solicitation 1 

26 because, under the circumstances proposed, disbursements from the Legal Proceedings 

27 Account for Solicitation 1 would not be for the purpose of influencing a federal election. 

28 The Commission further concludes that the Candidate Committees may coordinate 
AO 2022-21 (DSCC, et. al)

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1 Solicitation 1 with the DSCC because limitations on coordinated expenditures by a 

2 national party committee do not apply to disbursements from a separate, segregated 

3 account established under 52 U.S.C. § 30116(a)(9)(C). Finally, the Commission

4 concludes that the DSCC may use funds from the Legal Proceedings Account to pay for 

5 the television advertisements described in Solicitation 2, provided that the advertisements 

6 do not expressly advocate the election or defeat of a clearly identified candidate, because 

7 the disbursements would not be for the purpose of influencing a federal election in that 

8 circumstance. If, however, those advertisements contain express advocacy, such

9 disbursements would be for the purpose of influencing a federal election, and the DSCC 

10 may not use funds in the Legal Proceedings Account to pay for Solicitation 2.

11 Background

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

13 September 20, 2022, your email dated September 23, 2022, and disclosure reports filed 

14 with the Commission.

15 The DSCC is a national political party committee whose purpose is electing 

Democrats to the U.S. Senate.1 16 Bennet for Colorado is the principal campaign committee 

of Michael Bennet, the sitting Democratic senator from Colorado,2 17 and People for Patty 

18 Murray is the principal campaign committee of Patty Murray, the sitting Democratic 

1

 See DSCC, Statement of Organization, FEC Form 1(Sept. 19, 2022), https://docquery.fec.gov/cgibin/forms/C00042366/1630498/.

2

 See Bennet for Colorado, Statement of Organization, FEC Form 1 (Aug. 17, 2022), 

https://docquery.fec.gov/cgi-bin/forms/C00458398/1624593/. 
AO 2022-21 (DSCC, et. al)

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senator from Washington state.3 1 Both senators are seeking re-election in the November 

2 2022 general election.

3 The DSCC established the Legal Proceedings Account under 52 U.S.C. 

4 § 30116(a)(9)(C), and it represents that the account is used to pay for expenses in 

connection with recounts, contests, and other legal proceedings.4 5 Requestors provide two 

6 alternate proposals under which the DSCC would use this Legal Proceedings Account to 

7 pay for television advertisements soliciting donations to the Legal Proceedings Account; 

8 the advertisements would feature Senators Bennet and Murray and other federal 

9 candidates. Under both proposals, the requestors represent that all advertisements would 

10 “comply fully” with the disclaimer requirements of 52 U.S.C. § 30120 and 11 C.F.R. 

§ 110.11.5 11 Further, under both proposals, if any donation exceeded a donor’s limit to the 

12 Legal Proceedings Account, the DSCC would refund the excess portion of the donation. 

13 Any funds raised through either proposed solicitation “would be spent exclusively on 

14 legal proceedings that comply with the permissible uses of the Legal Proceedings 

Account.”6 15

16 For Solicitation 1, the advertisements purchased using funds from the Legal 

17 Proceedings Account would feature one or more candidates, including Senator Bennet 

18 and Senator Murray. The ads would air “in states across the country,” including 

3

 See People for Patty Murray, Statement of Organization, FEC Form 1 (Sept. 15, 2022), 

https://docquery.fec.gov/cgi-bin/forms/C00257642/1629812/. 

4 Advisory Opinion Request (“AOR”) at AOR001.

5 AOR006.

6 AOR006. 
AO 2022-21 (DSCC, et. al)

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1 Colorado and Washington, and may air in the jurisdiction in which the featured 

2 candidate(s) are candidate(s) for re-election as well as in other jurisdictions where the 

featured candidate(s) are not candidates.7 3 Solicitation 1 would “[i]nclude a clear 

4 solicitation asking viewers to donate to the Legal Proceedings Account so that [the] 

5 DSCC can protect the right to vote in court and prepare for potential recounts and 

election contests.”8 6 The solicitation included in these advertisements would be both oral 

7 and written, with the written solicitation appearing as an easily readable weblink. The 

8 weblink would direct viewers to a contribution page, which would clearly state that 

9 donations would be allocated to the DSCC’s Legal Proceedings Account.

10 The DSCC “wants to include recognizable political figures in the communications 

11 because it believes [doing so would] make viewers of the communications more likely to 

donate to the cause.”9 12 The advertisements would “focus on the issue of voter suppression 

and [would] make no mention of any political party.”10 13 The advertisements would also 

14 not contain express advocacy or publish or republish any candidate materials. The ads, 

15 however, would “[b]e coordinated, including timing, content, and placement” with the 

candidates appearing in the ads.

11 16

17 For Solicitation 2, the advertisements purchased using funds from the Legal 

18 Proceedings Account would feature “a single candidate seeking re-election . . . in the 

7 AOR002.

8 AOR002.

9 AOR002.

10 AOR006.

11 AOR002.
AO 2022-21 (DSCC, et. al)

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1 jurisdiction where the advertisement is disseminated” and would be “coordinated, 

2 including the timing, content, and placement with the Democratic Senate candidate 

whose race is featured” in the ad.12 3 Each ad would focus on “one or more policy issues 

4 central to the . . . general election in the jurisdiction of distribution” and “would either 

5 discuss a Democratic candidate and promote or support the candidate and [the 

6 candidate’s] policy position(s), or discuss a Republican candidate and attack or oppose 

the candidate and [the candidate’s] policy positions.”13 7 The advertisement would not 

8 publish or republish candidate materials, but “[m]ight in some circumstances expressly 

advocate the election or defeat of a clearly identified candidate for federal office.”14 9 The 

10 advertisements would not mention the Legal Proceedings Account or any legal 

11 proceedings, but would include a written link to an online webpage such as 

12 dscc.org/urgent and that website would “clearly state that all funds accepted through the 

page are allocated to [the] DSCC’s Legal Proceedings Account.”15 13

14 Questions Presented

15 1a. May the DSCC use funds in its Legal Proceedings Account to pay for 

16 television advertisements following the description for Solicitation 1? 

17 1b. May the Candidate Committees coordinate with the DSCC on such 

18 communications by having input on the content, timing, and placement of the 

19 communications for Solicitation 1?

12 AOR003.

13 AOR003.

14 AOR003.

15 AOR003.
AO 2022-21 (DSCC, et. al)

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1 2a. May the DSCC use funds in its Legal Proceedings Account to pay for 

2 television advertisements following the description for Solicitation 2? 

3 2b. May the Candidate Committees coordinate with the DSCC on such 

4 communications by having input on the content, timing, and placement of the 

5 communications for Solicitation 2?

6 Legal Analysis

7 1a. May the DSCC use funds in its Legal Proceedings Account to pay for 

8 television advertisements following the description for Solicitation 1?

9 Yes, the DSCC may use funds in its Legal Proceedings Account to pay for 

10 television advertisements following the description for Solicitation 1 because, under the 

11 circumstances proposed, disbursements from the Legal Proceedings Account for 

12 Solicitation 1 would not be for the purpose of influencing a federal election.

13 As added to the Act by the Consolidated and Further Continuing Appropriations 

14 Act, 2015 (“Appropriations Act”), 52 U.S.C. § 30116(a)(9)(C) authorizes a national party 

15 committee, including a national congressional campaign committee, to establish a 

16 “separate, segregated account” to “defray expenses incurred with respect to the 

17 preparation for and conduct of election recounts and contests and other legal 

proceedings.”16 18 In advisory opinions issued before enactment of the Appropriations Act, 

19 the Commission consistently stated that funds donated to a separate, segregated recount 

20 account, including an account established by a national political party committee, could 

21 not be used for the purpose of influencing a federal election, including for any “campaign 

16 Consolidated and Further Continuing Appropriations Act of 2015, Pub. L. No. 113-235, § 101, 

128 Stat. 2130, 2772-73 (2014).
AO 2022-21 (DSCC, et. al)

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activities.”17 1 Consistent with that longstanding approach, the Commission explained in 

2 Advisory Opinion 2019-02 (Bill Nelson for Senate) that funds in the DSCC’s Legal 

3 Proceedings Account established under 52 U.S.C. § 30116(a)(9)(C) “could not be used 

for the purpose of influencing a federal election.”18 4 Similarly, Commission advisory 

5 opinions predating the Appropriations Act also indicate that funds in the Legal 

6 Proceedings Account may be used to solicit donations to that fund, explaining that 

7 “Commission regulations generally permit (and in some cases require) the proceeds of 

fundraising activities to be used to defray the costs of those activities.”19 8

9 In the Appropriations Act, which authorized separate, segregated national party 

10 accounts “used to defray expenses incurred with respect to the preparation for and the 

11 conduct of election recounts and contests and other legal proceedings” under 52 U.S.C. 

12 § 30116(a)(9)(C), Congress also authorized two additional separate, segregated national 

party committee accounts, codified at 52 U.S.C. § 30116(a)(9)(A) and (B).

20 13 Congress 

14 limited those two additional accounts to be “used solely” for the statutorily listed 

15 purposes related to the payment of expenses for presidential nominating conventions and 

17 See, e.g., Advisory Opinion 2010-14 (DSCC) at 3, 5 (“[N]one of [DSCC’s] proposed recount 

activities can or will be used to campaign for any candidates or to influence any elections. Instead, recount 

activities paid for by the recount fund must have no relation to campaign activities.”) (citing Advisory 

Opinion 1978-92 (Miller) at 3 (“[I]n view of the special treatment and exemption accorded funds received 

and spent for recount purposes, any resulting surplus of funds may not be used in any manner that would 

constitute a contribution or expenditure under the Act or regulations.”).

18 Advisory Opinion 2019-02 (Bill Nelson for Senate) at 4.

19 Advisory Opinion 2010-14 (DSCC) at 5 (“The DSCC may also use recount funds to defray the 

costs of soliciting donations to the recount fund.”)

20 Consolidated and Further Continuing Appropriations Act of 2015, Pub. L. No. 113-235, § 101, 

128 Stat. 2130, 2772-73 (2014).
AO 2022-21 (DSCC, et. al)

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party headquarters buildings.21 1 Congress did not, however, include similar limiting 

2 language for accounts established under 52 U.S.C. § 30116(a)(9)(C) to be used for

3 election recounts, contests, and other legal proceedings. This omission suggests that 

4 Congress intended a wider scope of permissible uses for funds in accounts established 

5 under subsection (C) and did not intend to strictly limit the use of funds in an account 

6 authorized by that subsection to solely the listed legal expenses. Accordingly, the 

7 Commission concludes that funds in the Legal Proceedings Account are not limited 

8 solely to expenses for election recounts, contests, and other legal proceedings, and may 

9 be used for other purposes, subject to the limitation that funds in such accounts may not 

10 be used for the purpose of influencing a federal election as explained in prior 

11 Commission advisory opinions.

12 Here, the DSCC may use funds in its Legal Proceedings Account to pay for 

13 television advertisements following the description for Solicitation 1 because, under the 

14 circumstances presented in the request, the advertisements would be for the purpose of 

15 soliciting donations to the Legal Proceedings Account and not for the purpose of 

16 influencing a federal election. Although Solicitation 1 would feature federal candidates, 

17 the solicitation would “focus on the issue of voter suppression” and would not contain 

any express advocacy or mention any political party.22 18 In addition, the advertisements 

19 would provide a clear solicitation for the Legal Proceedings Account. Under these 

20 circumstances, the advertisement would be for the purpose of soliciting donations to the 

21 Id.; 52 U.S.C. § 30116(a)(9)(A), (B).

22 AOR002, 6.
AO 2022-21 (DSCC, et. al)

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1 Legal Proceedings Account and not for the purpose of influencing a federal election. 

2 Because funds in the Legal Proceedings Account may be used to pay for solicitations for 

donations to that account,23 3 the proposal is permissible.

4 1b. May the Candidate Committees coordinate with the DSCC on such 

5 communications by having input on the content, timing, and placement of the 

6 communications for Solicitation 1?

7 Yes, the Candidate Committees may coordinate with the DSCC on the content, 

8 timing, and placement of the advertisements for Solicitation 1. 

9 The Act limits coordinated expenditures by a national party committee on behalf 

of a federal candidate of that party.

24 10 However, the Act expressly provides that those 

11 limitations “shall not apply” to disbursements from a national party committee’s separate,

segregated account established under 52 U.S.C. § 30116(a)(9)(C).25 12 In addition, as 

13 discussed above, given the description of the DSCC’s proposed Solicitation 1, the 

14 DSCC’s disbursements from the Legal Proceedings Account for Solicitation 1 would not 

15 be for the purpose of influencing a federal election and so no expenditure would result

from the proposed activity.

26 16 Because the Act expressly excludes disbursements from an

23 See Advisory Opinion 2010-14 (DSCC) at 5.

24 52 U.S.C. § 30116(d)(3).

25 52 U.S.C. § 30116(d)(5). .

26 See 52 U.S.C. § 30101(9)(A)(i) (defining expenditure to include “any purchase, payment, 

distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the 

purpose of influencing any election for Federal office”); see also Advisory Opinion 2006-24 (National 

Republican Senatorial Committee, et. al) at 9 (concluding that state party committee could coordinate

recount activities funded by state party committee’s recount account with federal candidate because “the 

limitations on coordinated spending by the State Party for a particular candidate are not applicable to a 

State Party’s recount fund” given that state party committee’s proposed recount activity was not in 

connection with a federal election and recount account funds could not be used for campaign activity).
AO 2022-21 (DSCC, et. al)

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1 account established under 52 U.S.C. § 30116(a)(9)(C) from the limitations on a national 

2 party committee’s coordinated expenditures on behalf of candidates, and because the 

3 proposed activity would not result in an expenditure, the proposal is permissible.

4 2a. May the DSCC use funds in its Legal Proceedings Account to pay for 

5 television advertisements following the description for Solicitation 2? 

6 The request states that Solicitation 2 “[m]ight in some circumstances expressly 

advocate the election or defeat of a clearly identified candidate for federal office.”27 7 

Provided that the advertisements do not contain express advocacy,28 8 the DSCC may use 

9 funds in the Legal Proceedings Account to fund Solicitation 2 because the disbursements 

10 would not be for the purpose of influencing a federal election. If, however, the 

11 advertisements contain express advocacy, then the DSCC may not use funds in its Legal 

12 Proceedings Account to pay for television advertisements following the description for 

13 Solicitation 2 because disbursements from the Legal Proceedings Account for Solicitation 

14 2 would be for the purpose of influencing a federal election in that circumstance.

15 As discussed above, funds the Legal Proceedings Account may not be used for the 

16 purpose of influencing a federal election. Solicitation 2 would feature a single federal 

17 candidate in the jurisdiction where the television ad is disseminated and would “either 

18 discuss a Democratic candidate and promote or support the candidate and the

19 [candidate’s] policy position(s), or discuss a Republican candidate and attack or oppose 

27 AOR003.

28 See 11 C.F.R. § 100.22.
AO 2022-21 (DSCC, et. al)

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the candidate and the [candidate’s] policy position(s).”29 1 As explained above, the 

2 absence of restrictive language in 52 U.S.C. § 30116(a)(9)(C) suggests that Congress did 

3 not intend to limit the use of funds in a legal proceedings account to solely use in

4 recounts, contests, and other legal proceedings. Accordingly, provided that the 

5 advertisements described in Solicitation 2 do not expressly advocate the election or defeat 

6 of a clearly identified candidate for federal office, the DSCC may use the Legal 

7 Proceedings Account to fund the proposed solicitation of donations to the Legal 

8 Proceedings Account because such advertisements would not be for the purpose of 

9 influencing a federal election. However, if the advertisement expressly advocates the 

10 election or defeat of a clearly identified candidate for federal office, then the DSCC may 

11 not use the Legal Proceedings Account to fund Solicitation 2 because the disbursements 

12 would be for the purpose of influencing a federal election. 

13 2b. May the Candidate Committees coordinate with the DSCC on such 

14 communications by having input on the content, timing, and placement of the 

15 communications for Solicitation 2?

16 If Solicitation 2 does not contain express advocacy, then the Candidate 

17 Committees may coordinate with the DSCC on the content, timing, and placement of the 

18 communications for Solicitation 2 for the reasons explained in response to question 1b.

19 If Solicitation 2 contains express advocacy, then this question is moot given the 

20 Commission’s response to question 2a.

29 AOR003. 
AO 2022-21 (DSCC, et. al)

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1 This response constitutes an advisory opinion concerning the application of the 

2 Act and Commission regulations to the specific transaction or activity set forth in your 

request.30 3 The Commission emphasizes that, if there is a change in any of the facts or 

4 assumptions presented, and such facts or assumptions are material to a conclusion 

5 presented in this advisory opinion, then the requestors may not rely on that conclusion as 

6 support for its proposed activity. Any person involved in any specific transaction or 

7 activity that is indistinguishable in all its material aspects from the transaction or activity 

8 with respect to which this advisory opinion is rendered may rely on this advisory 

opinion.31 9 Please note that the analysis or conclusions in this advisory opinion may be 

10 affected by subsequent developments in the law including, but not limited to, statutes,

11 regulations, advisory opinions, and case law. Any advisory opinions cited herein are 

12 available on the Commission’s website. 

13 On behalf of the Commission,

14 Allen J. Dickerson

15 Chairman

30 See 52 U.S.C. § 30108. 

31 See 52 U.S.C. § 30108(c)(1)(B).