1 FEDERAL ELECTION COMMISSION

2 

3 FIRST GENERAL COUNSEL’S REPORT

 4 

5 MUR 7532 

6 DATE COMPLAINT FILED: November 1, 2018 

7 DATE OF LAST RESPONSE: Not Applicable

8 DATE ACTIVATED: June 26, 2019 

9 

10 EXPIRATION OF SOL: October 7, 2023 

11 ELECTION CYCLE: 2018 

12 COMPLAINANT: Friends of Erik Paulsen 

13 

14 RESPONDENTS: Unknown Respondents 

 15 

16 MUR 7537 

17 DATE COMPLAINT FILED: November 6, 2018 

18 DATE OF LAST RESPONSE: Not Applicable

19 DATE ACTIVATED: June 26, 2019 

20 

21 EXPIRATION OF SOL: October 1, 2023 

22 ELECTION CYCLE: 2018 

23 COMPLAINANT: Raymond Bozarth

24 

25 RESPONDENTS: Unknown Respondents 

 26 

27 RELEVANT STATUTES 

28 AND REGULATIONS: 52 U.S.C. § 30101(4), (17), (22), (23)

29 52 U.S.C. § 30104(b), (c), (g) 

30 52 U.S.C. § 30120(a)

31 11 C.F.R. § 100.5 

32 11 C.F.R. § 100.17 

33 11 C.F.R. § 100.22 

34 11 C.F.R. § 100.26 

35 11 C.F.R. § 100.27 

36 11 C.F.R. § 104.4 

37 11 C.F.R. § 109.10 

38 11 C.F.R. § 110.11

39 

40 INTERNAL REPORTS CHECKED: Disclosure reports

41 FEDERAL AGENCIES CHECKED: None 

42 

MUR753700023
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

Page 2 of 23

1 I. INTRODUCTION

2 These two complaints involve virtually identical advertisements criticizing two different 

3 congressional candidates. The Complaint in MUR 7532 alleges that unknown respondents, 

possibly an organization named Care in Action,1 4 sent a mailing on or before October 17, 2018, 

advocating the defeat of former Rep. Erik Paulsen.2 5 The mailer did not include a disclaimer or 

any information identifying who authorized or paid for it.3 6 The Complaint also alleges that 

7 internet video (“digital”) ads and a website criticizing Paulsen, which are very similar to the 

mailer, did not contain proper disclaimers.4 8 

9 In MUR 7537, the Complaint alleges that numerous mailings distributed in October 2018 

10 that criticized Republican candidate Ann Wagner—mailers very similar to those at issue in MUR 

7532—lacked disclaimers.

5 11 The MUR 7537 Complaint also alleges different mailers regarding 

12 another federal candidate, Josh Hawley, lacked disclaimers. 

13 The Paulsen and Wagner communications should have contained proper disclaimers and 

14 been reported to the Commission because they are public communications containing express 

15 advocacy. Therefore, we recommend that the Commission find reason to believe that Unknown 

 

1

 A search of the FEC disclosure database indicates that Care in Action has never filed an independent 

expenditure report. 

2 MUR 7532 Compl. at 1-2 (Nov. 1, 2018). Paulsen was the incumbent congressman and Republican 

candidate for Minnesota’s third congressional district seat in the U.S. House in 2018. Paulsen lost in the November 6, 

2018 general election. Paulsen is also the Complainant in MUR 7532.

3

 Id., Ex. A. 

4

 Id. at 1-2; Ex. B-E. 

5

 MUR 7537 Compl. at 1 (Nov. 6, 2018). Wagner was re-elected in the November 6, 2018 general election to 

represent Missouri’s second congressional district seat in the U.S. House with 51.1% of the vote; Josh Hawley, who 

was the attorney general of Missouri at the time of the election, was elected in the November 6, 2018 general election 

to represent Missouri in the U.S. Senate with 51.4% of the vote. One mailer criticizing Hawley appears to promote 

another 2018 Senate candidate, Japheth Campbell, who received 1.12% of the vote. Id., Ex. A. 

MUR753700024
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

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1 Respondents in MURs 7532 and 7537 violated 52 U.S.C. §§ 30120(a) and 30104(b) or (c), and 

2 (g). We also recommend that the Commission merge MUR 7532 into MUR 7537. 

3 There is insufficient information to determine if the Hawley mailers were created and 

4 disseminated by the same entity responsible for the Paulsen and Wagner mailers. Further, the 

5 Hawley mailers do not appear to contain express advocacy. However, the Hawley mailers seem to 

6 be professionally produced, carry a U.S. Postal Service bulk mail permit, and likely exceed $1,000 

7 in costs. Therefore, it is possible that they were created and distributed by a political committee. 

8 The available information is insufficient to determine whether the unknown respondent is a 

9 political committee and, thus, we recommend that the Commission take no action at this time as to

10 that issue. 

11 II. FACTUAL BACKGROUND

12 A. Materials Opposing Erik Paulsen and Ann Wagner

13 1. Paulsen Mailer (MUR 7532) and Wagner Mailer (MUR 7537) 

14 The mailers attached to the Complaints show that unknown respondents disseminated 

15 nearly identical mailers targeting federal candidates Paulsen and Wagner. The front of each 

mailer shows a photo of children lying on mats in a large room.6 16 

 

6

 MUR 7532 Compl., Ex. A; MUR 7537 Compl., Ex. C.

MUR753700025
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

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1 

2 

3 As shown below, the backs of the Paulsen and Wagner mailers read “REP. 

4 [CANDIDATE] is COMPLICIT in the separation of families,” and list three categories: “UNAMERICAN,” “UNJUST,” AND “UNWORTHY.”7 5 The text of the mailers is virtually the 

same.8

 Neither mailer contains a disclaimer.9 6 Both mailers were sent via bulk mail with no return 

address.10 7 

 

7

 Id. 

8

 Id. The mailers read: “UN-AMERICAN: Throughout history, America has fought to protect families in 

jeopardy. But now our government is locking up thousands of children in military detention centers along our own 

border;” “UNJUST: As an elected member of Congress, [Paulsen/Wagner] has the power to act against this crisis. 

But he/she has refused to introduce or support legislation to keep families safe and together;” and “UNWORTHY: 

[Paulsen/Wagner] voted to let the Trump administration lock up children and families indefinitely, and make it harder 

for those children to ever see their families again. [Paulsen/Wagner] is making this crisis worse.” 

9

 Id. 

10 Id. The Paulsen mailer’s postmark, set apart in a box, reads: “PRSRT STANDARD U.S. POSTAGE PAID

85040 PERMIT NO. 2691.” The address label bears the imprint “SCH 5-DIGIT 55344 FSSC” (indicating “5-Digit 

Scheme,” “Carrier Route — Periodicals and Marketing Mail basic FSS (Flats Sequencing System)), see

https://about.usps.com/postal-bulletin/2016/pb22457/html/updt1_003.htm, and features an Intelligent Mail barcode 

above the address, indicating the mail was prepared for automation prices, see

https://postalpro.usps.com/mailing/intelligent-mail-barcode. The Wagner mailer’s postmark, set apart in a box, reads: 

“PRSRT STD U.S. POSTAGE PAID St. Louis, MO, PERMIT NO. 256.” The address label bears the imprint 

“ECRLOT **C 017” (indicating “Enhanced Carrier Route — Marketing Mail basic), and features an Intelligent Mail 

barcode above the address, indicating the mail was prepared for automation prices.

MUR753700026
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

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1 

2 The MUR 7532 Complaint also states that “[u]pon information and belief, the public 

3 communication was paid for and prepared by Care in Action,” alleging “[t]he content of the mailer 

4 matched in substance and style to content presented in two digital political advertisements 

published on Facebook.com by a group called ‘Reunify Families Now.’”11 5 

6 2. Paulsen and Wagner Internet Video Ads (MUR 7532) 

7 The Reunify Families Now ads are identical, except for references to either Paulsen or 

8 Wagner. Specifically, the dates of publication, format, language, text, and images used in both the 

9 Paulsen and Wagner internet video ads (except for references to the candidate) are the same. 

 

11 MUR 7532 Compl. at 1, ¶ 3. An initial notification was sent to an entity in Florida named Care in Action 

USA, but the available information indicates that the Florida organization is a different entity than the one indicated in 

the Complaint. A rescission letter was mailed on November 16, 2018. This Office was not able to find an address for 

the entity identified in the Complaint as Care in Action. 

MUR753700027
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

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1 

2 

3 The MUR 7532 Complaint attaches screenshots of Facebook ads, Ad Archives, and charts 

4 of Ad Performance statistics related to Reunify Families Now, and alleges that the internet video 

5 ads failed to include contact information for Care in Action, and does not state whether the 

communications are authorized by any candidate or candidate’s committee.12 6 The image at the

7 top of the October 7 ad reads “Reunify Families Now; Sponsored ∙ Paid for by Care in Action,” 

 

12 Id., Ex. B-E, Id. at 1-2. See supra at 6. See also: 

https://www.facebook.com/ads/library/?active_status=all&ad_type=political_and_issue_ads&country=US&q=%22Re

unify%20Families%20Now%22. 

MUR753700028
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

Page 7 of 23

1 and the bottom of the ad links to www.paulsenfailedfamilies.com and 

www.wagnerfailedfamilies.com.

13 2 The October 7 ad is transcribed here:

3 (image): headshot of Paulsen/Wagner

4 (voiceover) “If [Paulsen/Wagner] won’t speak up when children are in pain...” 

5 (text): Rep. [Erik Paulsen/Ann Wagner] 

6 (text in red): SILENT when children are in pain 

7 

8 (image): Young family of four — man, woman, girl, infant — walking in the park 

9 (voiceover) “What makes you think [he’d/she’d] speak up for yours?” 

10 (text): What makes you think [he’d/she’d] speak up for yours? 

11 

12 (image): crying toddler behind glass 

13 (voiceover) “Our children are in pain, taken from their parents by our own government.” 

14 (text): Children taken from their parents

15 

16 (image): image of crying child; frame rips open to reveal headshot of Paulsen/Wagner

17 (voiceover) “And [Erik Paulsen/Ann Wagner] is complicit.” 

18 (text): [Erik Paulsen/Ann Wagner] is complicit

19 

20 (image): video of children behind fence 

21 (voiceover) “[He/She] even voted to lock families up indefinitely...” 

22 (text): [Erik Paulsen/Ann Wagner] voted to detain families indefinitely

23 

24 (image): alternate video of different children behind fence 

25 (voiceover) “...and make it harder for children to be reunited with their families.” 

26 (text): [Erik Paulsen/Ann Wagner] keeping families apart

27 

28 (image): headshot of Paulsen/ Wagner

29 (voiceover) “Families deserve better than [Congressman Erik Paulsen/Congresswoman 

30 Ann Wagner].” 

31 (text): Families deserve better than [Paulsen/Wagner] 

32 (text): Paid for by Care in Action. 

33 

34 There are also October 12, 2018, internet videos allegedly posted by the “Reunify Families 

Now” Facebook account each bearing photos of Paulsen or Wagner.

14 35 The October 12 ad is 

36 transcribed here:

 

13 Id. The URL http://www.paulsenfailedfamilies.com/ and http://www.wagnerfailedfamilies.com/ do not link 

to currently active websites, and are not accessible via the Archive.org Wayback Machine search feature.

MUR753700029
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

Page 8 of 23

1 (image): Split screen — video of children behind fence (L)/headshot of the candidate (R)

2 (voiceover) “[Erik Paulsen’s/Ann Wagner’s] Republican Party took small children away 

3 from their parents.” 

4 (text): [Erik Paulsen’s/Ann Wagner’s] Republican Party took children from parents

5 (voiceover) “They locked children in prisons.”

6 (text): [Erik Paulsen’s/Ann Wagner’s] Republican Party locked children in prisons

7 

8 (image): headshot of Paulsen/Wagner

9 (voiceover) “And what did [Erik Paulsen/Ann Wagner] do?”

10 (text): What did [Erik Paulsen/Ann Wagner] do?

11 

12 (image): video of jail door closing superimposed over American flag

13 (voiceover) “[He/She] voted to let the government lock up children and their families 

14 indefinitely.”

15 (text): [Erik Paulsen/Ann Wagner] voted to lock up families indefinitely

16 

17 (image): videos of American military scenes (D-Day, Vietnam) superimposed over 

18 American flag

19 (voiceover) “Throughout history, Americans have taken a brave stand against human rights 

20 abuses and crimes against children.”

21 (text): Americans stand against human rights abuses

22 

23 (image): headshot of Paulsen/Wagner

24 (voiceover) “By letting his/her party lock up children, [Erik Paulsen/Ann Wagner] has 

25 betrayed our American values.”

26 (text): [Erik Paulsen/Ann Wagner] betrayed American values

27 (voiceover) “Families deserve better than [Erik Paulsen/Ann Wagner].”

28 (text): [Erik Paulsen/Ann Wagner] betrayed American families

29 (text): Paid for by Care in Action. 

30 

31 Finally, the MUR 7532 Complaint attaches a screenshot of the website 

www.paulsenfailedfamilies.com (now unavailable), that displays a photo of Paulsen.15 32 

 14 Id., Ex. B-D. The October 12 ad screenshot that is attached to the Complaint reads “What did Erik Paulsen 

do?” Id., Ex. B. See also: 

https://www.facebook.com/ads/library/?active_status=all&ad_type=political_and_issue_ads&country=US&q=%22Re

unify%20Families%20Now%22. 

15 Id., Ex. F. Because the MUR 7532 Complaint only addresses materials opposing Erik Paulsen, it does not 

include screenshots of the website www.wagnerfailedfamilies.com. 

MUR753700030
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

Page 9 of 23

1 

2 The website also lists three columns criticizing Paulsen, similar to those on the back of 

mailer.16 3 In addition to using the same language as the mailer attached to the Complaint, the 

4 website states: “Disclaimer: Paid for by Care in Action. Independent expenditure, not approved 

by any candidate or candidate’s committee.”17 5 

 

16 Id. 

17 Id.

MUR753700031
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

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1 

2 

3 

MUR753700032
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

Page 11 of 23

1 B. Materials Opposing Josh Hawley (MUR 7537) 

Images of the first mailer opposing Hawley are reproduced below: 18 2 

3 

 4 

5 

 

18 MUR 7537 Compl., Ex. D.

MUR753700033
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

Page 12 of 23

1 The mailer concludes: “Call Josh Hawley at (573) 751-3327 and tell him to stop standing up for 

lobbyists and start supporting ethics reform.”19 2 

Images of the second Hawley mailer appear below.

20 3 

4 

5 

6 

 

19 Id. 

20 Id., Ex. A, B.

MUR753700034
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

Page 13 of 23

1 The text on the back of the mailer reads as follows.

Josh HAWLEY 

 Caved to the liberals who want to 

restrict our right to bear arms.

 Wants the government to have more 

involvement in gun sales.

 Refuses to oppose raising the age 

required to purchase firearms. 

 

Japheth CAMPBELL 

 Believes that you don’t need the 

government’s permission to defend yourself 

and your family. 

 Opposes any new restrictions on the right of 

citizens to purchase firearms.

 Knows that a good guy with a gun is the 

only way to stop a bad guy with a gun.

Both Hawley mailers were sent via bulk mail with no return address.21 2 A third mailer 

3 appears in the Complaint next to the second Hawley mailer, but only the front is shown, with no 

reference to Hawley or any other candidate.22 4 

5 

6 

 

21 The first mailer’s postmark, set apart in a box, reads: “PRSRT STD U.S. POSTAGE PAID SAINT LOUIS, 

MO, PERMIT NO. 256.” This appears to be the same indicia as the postmark on the Ann Wagner mailer, see MUR 

7537 Compl. Ex. C, indicating that they may have been mailed from the same shipping source, although there are no 

other similarities in the content of the Hawley and Wagner mailings. The address label bears the imprint “5-DIGIT 

65109” and features an Intelligent Mail barcode above the address, indicating the mail was prepared for automation 

prices, see https://postalpro.usps.com/mailing/intelligent-mail-barcode. The second mailer’s postmark is also set apart 

in a box, but the image attached to the Complaint is less clear. The legible text reads: “PRSRT STD U.S. POSTAGE 

PAID WC MLG.” The address label is not legible on the image attached to the Complaint for the second mailer, but 

it clearly features an Intelligent Mail barcode above the address, indicating the mail was prepared for automation 

prices.

22 MUR 7537 Compl. Ex. B. Neither the postmark nor the address label of this third mailer are legible.

MUR753700035
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

Page 14 of 23

1 III. LEGAL ANALYSIS

2 A. Disclaimers

3 The Federal Election Campaign Act of 1971, as amended (the “Act”), requires that 

4 whenever a political committee makes a disbursement for the purpose of financing any 

5 communication through any mailing, or any other type of general public political advertising, such 

communication must clearly state who paid for the communication.

23 6 A communication 

7 authorized and paid for by a candidate, an authorized committee of a candidate, or an agent of 

8 either, must clearly state that the communication was paid for by the authorized political 

committee.24 9 A communication authorized by a candidate, an authorized committee of a 

10 candidate, or an agent of either but paid for by another person, must clearly state that the 

communication was paid for by such person but authorized by the political committee.25 11 

12 The Act also requires that all public communications that expressly advocate the election 

or defeat of a clearly identified candidate include a disclaimer.26 13 “Public communications” 

14 include “mass mailings,” which are mailings of more than 500 pieces of mail of an identical or 

substantially similar nature within any 30-day period.27 15 “Public communications” also include 

communications over the Internet that have been placed for a fee on another person’s Web site.”28 16 

17 Where required, disclaimers must be “presented in a clear and conspicuous manner, to give 

18 the reader, observer, or listener adequate notice of the identity of the person or political committee 

 

23 52 U.S.C. § 30120(a). 

24 52 U.S.C. § 30120(a)(1).

25 52 U.S.C. § 30120(a)(2); see also 11 C.F.R. § 110.11(b)(2).

26 52 U.S.C. § 30120(a); see 11 C.F.R. § 110.11(a)(2).

27 52 U.S.C. § 30101(22), (23); 11 C.F.R. §§ 100.26, 100.27.

28 11 C.F.R. § 100.26.

MUR753700036
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

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that paid for, and where required, that authorized the communication.”29 1 If a communication is 

2 not authorized by a candidate’s authorized committee, it must clearly state the name and 

3 permanent address, telephone number or website address of the person who paid for the 

4 communication and state that the communication is not authorized by any candidate or candidate’s 

committee.30 5 

6 The Complaints allege that the Paulsen, Wagner, and Hawley mailers violated the Act’s 

disclaimer requirements.

31 7 The Paulsen, Wagner, and Hawley mailers appear to constitute public 

8 communications because they appear professionally produced and carry a U.S. Postal Service 

(“USPS”) bulk mail permit and, therefore, likely exceeded 500 pieces for each mailing.

32 9 The 

mailers, however, do not include any disclaimers.33 10 

11 Additionally, the MUR 7532 Complaint alleges that the internet videos related to Paulsen 

violated 11 C.F.R. § 110.11(b)(3).34 12 The Paulsen videos, and the nearly identical Wagner videos,

13 also appear to constitute public communications because they each advocate the defeat of a clearly 

14 identified candidate, and the available information indicates they were internet communications 

 

29 11 C.F.R. § 110.11(c). For printed communications, disclaimers must be clear and conspicuous, be of 

sufficient type size to be clearly readable, be contained in a printed box set apart from the other contents of the 

communication, and must clearly state who paid for the communication. Id. § 110.11(c)(2).

30 Id. § 110.11(b)(3).

31 MUR 7532 Compl. at 1-2; MUR 7537 Compl. at 1

32 Neither Complaint specifies the number of mailings, but the MUR 7532 Complaint does categorize the 

Paulsen mailer as a “public communication.” MUR 7532 Compl. at 1. It is clear that at least 200 copies of the 

mailers were distributed because the bulk mail permit imprints indicate that the mailers were sent by Standard Mail, 

and USPS requires a minimum of 200 pieces or 50 pounds of mail to qualify for the Standard Mail bulk mail discount. 

MUR 7532 Compl., Ex. A, MUR 7537 Compl., Ex. A-D. See

https://pe.usps.com/businessmail101?ViewName=StandardMail. (Last visited September 4, 2019). 

33 MUR 7532 Compl., Ex. A; MUR 7537 Compl., Ex. A-D. 

34 MUR 7532 Compl. at 1-2. The internet video ads are designated as “Sponsored,” see id., Ex. B-E, indicating 

that they were placed for a fee on another person’s Web site. See 11 C.F.R. § 100.26. Additionally, the “Money 

spent” statistic in the Facebook Ad Performance analytics for each ad indicates that each ad cost between $500-999. 

Id., Ex. D-E. 

MUR753700037
MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

Page 16 of 23

1 that were placed for a fee on another person’s Web site. Although the videos contained the 

2 disclaimer “Paid for by Care in Action,” they failed to state the name and permanent address, 

3 telephone number, or website address of the person who paid for the communication, and failed to 

4 state whether or not the political advertisement was authorized by any candidate or candidate’s 

5 committee. 

6 1. The Paulsen and Wagner Communications Required Disclaimers Because They 

7 Contain Express Advocacy 

8 

9 Commission regulations provide that a communication expressly advocates the election or 

10 defeat of a clearly identified candidate when it uses certain phrases or uses campaign slogans or 

11 individual words, “which in context can have no other reasonable meaning than to urge the 

election or defeat of one or more clearly identified candidate(s).”35 12 Commission regulations also 

13 state, a communication constitutes express advocacy if “[w]hen taken as a whole and with limited 

14 reference to external events, such as the proximity to the election, [the communication] could only 

15 be interpreted by a reasonable person as containing advocacy of the election or defeat of one or 

16 more clearly identified candidate(s) because — (1) [t]he electoral portion of the communication is 

17 unmistakable, unambiguous, and suggestive of only one meaning; and (2) [r]easonable minds 

18 could not differ as to whether it encourages actions to elect or defeat one or more clearly identified 

candidate(s) or encourages some other kind of action.”36 19 

 

35 11 C.F.R. § 100.22(a). The Commission explained that the phrases enumerated in 11 C.F.R. § 100.22(a), 

such as “Smith for Congress” and “Bill McKay in ‘94,” have no other reasonable meaning than to urge the election or 

defeat of a clearly identified candidate. See Express Advocacy; Independent Expenditures; Corporate and Labor 

Organization Expenditures, 60 Fed. Reg. 35,292, 35,294 (July 6, 1995) (“Express Advocacy E&J”); see also FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249 (1986) (a communication is express advocacy when “it 

provides, in effect, an explicit directive” to vote for the named candidates).

36 11 C.F.R. § 100.22(b). 

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MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

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1 In its explanation and justification for section 11 C.F.R. §100.22(b), the Commission 

2 stated, “communications discussing or commenting on a candidate’s character, qualifications or 

3 accomplishments are considered express advocacy under new section 100.22(b) if, in context, they 

4 can have no other reasonable meaning than to encourage actions to elect or defeat the candidate in 

question.”37 5 In MUR 5024R, the Commission concluded that, in context, the brochures 

6 constituted express advocacy under 11 C.F.R. § 100.22(b), because the electoral portions of the 

7 brochure, including the phrase “Tell Tom Kean Jr....New Jersey Needs New Jersey Leaders,” 

8 were “unmistakable, unambiguous and suggestive of only one meaning” — to vote against Tom 

Kean.38 9 In MURs 5511/5525, the Commission concluded that attacks on John Kerry’s character, 

10 fitness for public office, and capacity to lead, including phrases such as “JOHN KERRY 

11 CANNOT BE TRUSTED” and “unfit for command” were “unmistakable, unambiguous and 

12 suggestive of only one meaning” — and had no reasonable meaning other than to encourage 

actions to defeat him in the upcoming election.39 13 Similarly, in MUR 5831, the Commission 

14 concluded that, in context, the ad attacking Bob Casey’s qualifications and stating “Can we really 

15 risk Bob Casey learning on the job?” constituted express advocacy under 11 C.F.R. § 100.22(b), 

16 because the electoral portions were “unmistakable, unambiguous and suggestive of only one 

meaning” — to vote against Bob Casey.40 17 The Commission concluded that outside the context of 

the upcoming election, these advertisements were virtually meaningless.41 18 

 

37 EA E&J, 60 Fed. Reg. at 35,295. 

38 MUR 5024R (Council for Responsible Government) Factual and Legal Analysis at 14-15. 

39 MUR 5511/5525 (Swift Boat Veterans) Conciliation Agreement at IV.25-28. 

40 MUR 5831 (Softer Voices) Factual and Legal Analysis at 6-8. 

41 Id.

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First General Counsel’s Report

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1 The available information indicates that the Paulsen and Wagner mailers, and the similar

2 internet video ads, contained express advocacy under 11 C.F.R. § 100.22(b). The mailers clearly 

3 identify federal candidates Paulsen and Wagner, and contain attacks on their character and fitness 

4 very similar to those the Commission has found to be express advocacy under § 100.22(b). 

5 Specifically, the ads call both Paulsen and Wagner “unjust,” “unworthy,” and “un-American” and 

6 state that Paulsen and Wagner “ha[ve] betrayed American values,” they do not “deserve to speak 

for...families” and “Families deserve better than” Paulsen and Wagner.

42 7 Additionally, the 

8 mailers were sent in late October 2018, close to the November 6, 2018, general election, and the 

9 videos were made available online less than a month before the general election. The content of 

the statements, along with their timing,43 10 have an unmistakable, unambiguous meaning: vote 

11 against Paulsen and Wagner in the upcoming election. Because the Paulsen and Wagner 

12 communications advocate the defeat of federal candidates, those communications constitute 

13 express advocacy, and should have contained disclaimers. Accordingly, we recommend that the 

14 Commission find reason to believe that Unknown Respondents violated 52 U.S.C. § 30120(a) with 

15 regard to the Paulsen and Wagner communications. 

16 The Hawley mailers in MUR 7537 clearly identify Josh Hawley, a federal candidate and 

17 then-Attorney General of Missouri, and were distributed in October 2018, close to the November 

18 6, 2018, general election. However, the Hawley mailers appear to encourage the reader to contact 

19 Hawley in his then-current role as Attorney General, thus, they can be reasonably interpreted as 

20 something other than calling for his defeat in his federal election. 

 

42 See supra at 4-6. 

43 Commission regulations specify that the “proximity to the election” is a permissible external event to 

consider when determining whether a communication has a reasonable, non-electoral meaning. See 11 C.F.R. 

§ 100.22(b); FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) (“Timing the appearance of the advertisement less than a 

week before the election left no doubt of the action proposed.”).

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MURs 7532 and 7537 (Unknown Respondents) 

First General Counsel’s Report

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1 2. The Communications May Have Been Paid for by a Political Committee

2 Notwithstanding whether the mailers and internet video ads contained express advocacy, if 

3 they were paid for by a political committee, the Act and Commission regulations require the 

communications to include disclaimers.

44 4 The Act and Commission regulations define a “political 

5 committee” as “any committee, club, association or other group of persons which receives 

6 contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures 

aggregating in excess of $1,000 during a calendar year.”45 In Buckley v. Valeo,

46 7 the Supreme 

8 Court observed that the term “political committee” “need only encompass organizations that are 

9 under the control of a candidate or the major purpose of which is the nomination or election of a 

candidate.”47 10 

11 The Paulsen and Wagner communications all contain the same general content and used

12 similar phrases and images, so it is reasonable to conclude that the Paulsen and Wagner 

communications were produced by the same sponsor.48 13 Furthermore, the record contains 

14 sufficient information to infer that the sponsors of the Paulsen and Wagner mailers and videos 

exceeded the $1,000 statutory threshold.49 15 There is, however, insufficient information at this point 

 

44 52 U.S.C. § 30120(a). 

45 Id. § 30101(4)(A); 11 C.F.R. § 100.5. See also Political Committee Status, 72 Fed. Reg. 5596, 5597 (Feb. 7, 

2007) (Supplemental Explanation and Justification) (“Supplemental E&J”) (“When applied to communications made 

independently of a candidate or a candidate's committee, the term ‘expenditure’ includes only ‘expenditures for 

communications that in express terms advocate the election or defeat of a clearly identified candidate for federal 

office.’ Buckley v. Valeo, 424 U.S. 1, 44, 80 (1976).”)

46 424 U.S. 1 (1976).

47 Id. at 79. 

48 MUR 7532 Compl., Ex. A-F; MUR 7537 Compl., Ex. C. 

49 The Facebook analytics for each internet video ad indicate that each ad cost between $500-999, which would 

total an expenditure of $2,000-$3,996. MUR 7532 Compl., Ex. D-E. See also

https://www.facebook.com/ads/library/?active_status=all&ad_type=political_and_issue_ads&country=US&q=%22Re

unify%20Families%20Now%22. 

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First General Counsel’s Report

Page 20 of 23

1 to determine whether the sponsor’s major purpose was the nomination or election of a federal 

2 candidate. Accordingly, we recommend that the Commission take no action at this time as to the 

3 allegations that Unknown Respondents violated 52 U.S.C. § 30120(a) with regard to the Paulsen 

and Wagner communications on the basis that the sponsor may have been a political committee.

50 4 

5 The Hawley mailers appear to have been produced by a separate entity than the party responsible 

6 for the Paulsen and Wagner mailers. Additionally, the Hawley mailers seem to be professionally 

7 produced, carry a U.S. Postal Service bulk mail permit, and likely exceed $1,000 in costs. 

8 However, like the Paulsen and Wagner communications, there is insufficient information in the 

9 record to determine whether the major purpose of the Hawley mailers’ sponsor was the 

10 nomination or election of a federal candidate. Therefore, we recommend that the Commission 

11 take no action at this time as to the allegations that separate Unknown Respondents violated 52 

12 U.S.C. § 30120(a) with regard to the Hawley mailers on the basis that the sponsor may have been 

13 a political committee. 

14 B. Reporting

15 Political committees, whether authorized by any candidate or not, must disclose 

disbursements as part of their regular reporting to the Commission.51 16 Political committees that 

17 make independent expenditures, whether authorized by any candidate or not, must also disclose 

these expenditures to the Commission as part of their regular reporting.52 18 Any person other than a 

19 political committee that makes expenditures that expressly advocate the election or defeat of a 

 

50 See also 11 C.F.R. § 110.11(a)-(c). 

51 52 U.S.C. § 30104(b)(4)(G), (H)(v). An organization that is not controlled by a candidate that (1) exceeds 

the $1,000 aggregate expenditure threshold and (2) it has as its “major purpose” the nomination or election of federal 

candidates would also have to register and file disclosure reports with the Commission.

52 52 U.S.C. § 30104(b)(4)(G), (H)(iii).

MUR753700042
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First General Counsel’s Report

Page 21 of 23

1 federal candidate that exceed $250 must file an independent expenditure report with the 

Commission pursuant to 52 U.S.C. § 30104(c).53 2 Additionally, political committees and other 

3 persons that make independent expenditures aggregating $1,000 or more made after the 20th day, 

4 but more than 24 hours before, the date of an election, must report the expenditures by filing a 24-

hour notice.

54 5 

6 The available information indicates that the Paulsen and Wagner mailers and their 

7 associated internet video ads constituted express advocacy, and expenditures for the mailers and 

8 ads exceeded $250. Therefore, whether these communications were made by a political 

9 committee or through independent expenditures, they should have been disclosed to the 

10 Commission. Accordingly, we recommend that the Commission find reason to believe that 

11 Unknown Respondents violated 52 U.S.C. § 30104(b) or (c) by failing to report expenditures 

12 made in connection with the Paulsen and Wagner mailers and internet video ads. Also, because 

the mailers appear to have been distributed in October 2018,55 13 potentially 20 days before the 

14 election on November 6, 2018, and appeared to cost over $1,000, 24-hour notices would likely 

15 have been required. Accordingly, we recommend that the Commission find reason to believe that 

16 Unknown Respondents violated 52 U.S.C. § 30104(g) with respect to the Paulsen and Wagner 

17 communications. 

 

53 The Act defines “independent expenditure” as “an expenditure by a person expressly advocating the election 

or defeat of a clearly identified candidate; and that is not made in concert or cooperation with or at the request or 

suggestion of such a candidate, the candidate’s authorized political committee, or their agents, or a political party 

committee or its agents.” 52 U.S.C. § 30101(17). 

54 See 52 U.S.C. § 30104(g)(1)(A). Political committees and other persons must file 24-hour notices by 

11:59 p.m. on the day following the date on which the independent expenditure communication is publicly distributed. 

See 11 C.F.R. §§ 104.4(c), 109.10(d).

55 See MUR 7532 Compl. at 1-2; MUR 7537 Compl. at 1. 

MUR753700043
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First General Counsel’s Report

Page 22 of 23

1 The available information indicates that the Hawley mailers did not constitute express 

2 advocacy, even if the expenditures for the mailers may have exceeded $250. Therefore, these 

3 communications were only required to have been disclosed to the Commission if they were made 

4 by a political committee. There is, however, insufficient information in the record to determine 

5 whether the sponsor was a political committee, therefore, we recommend that the Commission 

6 take no action at this time as to the possibility that Unknown Respondents violated 52 U.S.C. 

7 § 30104(b) or (c) and 52 U.S.C. § 30104(g) by failing to report expenditures made in connection 

8 with the Hawley mailers. 

9 IV. PROPOSED INVESTIGATION

10 During an investigation, we intend to identify the parties responsible for the 

11 communications at issue in the two complaints, how many mailers were sent, how much they cost, 

12 when they were disseminated, and whether the responsible parties sponsored additional 

13 communications. We have asked the USPS offices to identify the holders of the bulk mail 

permits, but USPS has not yet provided that information.56 14 Although we intend to conduct the 

15 investigation through informal means, we recommend the Commission authorize compulsory 

16 process if informal means fail.

17 V. RECOMMENDATIONS

18 1. Merge MUR 7532 into MUR 7537; 

19 

20 2. Find reason to believe that Unknown Respondents violated 52 U.S.C. § 30120(a), with 

21 regard to the Paulsen and Wagner mailers and internet video ads on the basis that the 

22 communications contained express advocacy. 

23 

 

56 Representatives at the USPS offices have stated either that the permit number is not currently registered, or

that they could not give out the permit holder’s information without the permit holder’s consent.

MUR753700044
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First General Counsel’s Report

Page 23 of 23

1 3. Take no action at this time as to the allegations that Unknown Respondents violated 52 

2 U.S.C. § 30120(a) with regard to the Paulsen and Wagner mailers and internet video ads 

3 on the basis that the sponsor may have been a political committee. 

4 

5 4. Find reason to believe that Unknown Respondents violated 52 U.S.C. § 30104(b) or 

6 (c), and (g) with regard to the Paulsen and Wagner mailers and internet video ads on 

7 the basis that the communications contained express advocacy. 

8 

9 5. Take no action at this time regarding the allegations that Unknown Respondents violated 

10 52 U.S.C. § 30120(a) with regard to the Hawley mailers on the basis that the sponsor may 

11 have been a political committee. 

12 

13 6. Take no action at this time regarding the possibility that Unknown Respondents violated 

14 52 U.S.C. § 30104(b) or (c), and (g) with regard to the Hawley mailers on the basis that the 

15 sponsor may have been a political committee. 

16 

17 7. Authorize the use of compulsory process, as necessary. 

18 

8. Approve the attached Factual and Legal Analysis.57 19 

20 

21 9. Approve the appropriate letters. 

22 

23 Lisa J. Stevenson 

24 Acting General Counsel

25 

 26 

27 ____________________ 

28 Date Stephen Gura 

29 Deputy Associate General Counsel 

 30 

 31 

32 _________________________ 

33 Jeff S. Jordan

34 Assistant General Counsel

 35 

 36 

37 _________________________ 

38 Donald E. Campbell 

39 Attorney 

 40 

41 Attachment

42 Factual and Legal Analysis

 

57 We intend to send the Factual and Legal Analysis to the parties responsible for the mailers and internet video

ads once we learn their identities. 

10.21.19

MUR753700045
MUR 7537 (Unknown Respondents)

Factual and Legal Analysis 

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 Attachment 1

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1 FEDERAL ELECTION COMMISSION

2 FACTUAL AND LEGAL ANALYSIS

3 RESPONDENTS: Unknown Respondents MUR: 7537 

4 

5 I. INTRODUCTION

6 Two separate complaints filed with the Commission involve virtually identical 

advertisements criticizing two different congressional candidates.1 7 The Complaint in MUR 7532 

alleges that unknown respondents, possibly an organization named Care in Action,2 8 sent a 

mailing on or before October 17, 2018, advocating the defeat of former Rep. Erik Paulsen.3 9 The 

mailer did not include a disclaimer or any information identifying who authorized or paid for it.4 10 

11 The Complaint also alleges that internet video (“digital”) ads and a website criticizing Paulsen, 

which are very similar to the mailer, did not contain proper disclaimers.5 12 

13 In MUR 7537, the Complaint alleges that numerous mailings distributed in October 2018 

14 that criticized Republican candidate Ann Wagner—mailers very similar to those at issue in MUR 

7532—lacked disclaimers.6 15 

16 The Paulsen and Wagner communications should have contained proper disclaimers and 

17 been reported to the Commission because they are public communications containing express 

 

1

 The Commission merged MUR 7532 into MUR 7537.

2

 A search of the FEC disclosure database indicates that Care in Action has never filed an independent 

expenditure report. 

3 MUR 7532 Compl. at 1-2 (Nov. 1, 2018). Paulsen was the incumbent congressman and Republican 

candidate for Minnesota’s third congressional district seat in the U.S. House in 2018. Paulsen lost in the November 

6, 2018 general election. Paulsen is also the Complainant in MUR 7532. 

4

 Id., Ex. A. 

5

 Id. at 1-2; Ex. B-E.

6

 MUR 7537 Compl. at 1 (Nov. 6, 2018). Wagner was re-elected in the November 6, 2018 general election 

to represent Missouri’s second congressional district seat in the U.S. House with 51.1% of the vote. 

MUR753700046
MUR 7537 (Unknown Respondents)

Factual and Legal Analysis 

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 Attachment 1

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1 advocacy. Therefore, the Commission finds reason to believe that Unknown Respondents in 

2 MURs 7532 and 7537 violated 52 U.S.C. §§ 30120(a) and 30104(b) or (c), and (g). 

3 II. FACTUAL BACKGROUND

4 A. Mailers Opposing Paulsen (MUR 7532) and Wagner (MUR 7537) 

5 The mailers attached to the Complaints show that unknown respondents disseminated 

6 nearly identical mailers targeting federal candidates Paulsen and Wagner. The front of each 

mailer shows a photo of children lying on mats in a large room.7 7 

8 

 9 

10 As shown below, the backs of the Paulsen and Wagner mailers read “REP. 

11 [CANDIDATE] is COMPLICIT in the separation of families,” and list three categories: “UNAMERICAN,” “UNJUST,” AND “UNWORTHY.”8 12 The text of the mailers is virtually the 

 

7

 MUR 7532 Compl., Ex. A; MUR 7537 Compl., Ex. C.

8

 Id. 

MUR753700047
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Factual and Legal Analysis 

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same.9

 Neither mailer contains a disclaimer.10 1 Both mailers were sent via bulk mail with no 

return address.11 2 

3 

4 The MUR 7532 Complaint also states that “[u]pon information and belief, the public 

5 communication was paid for and prepared by Care in Action,” alleging “[t]he content of the mailer 

6 matched in substance and style to content presented in two digital political advertisements 

published on Facebook.com by a group called ‘Reunify Families Now.’”12 7 

8 

 

9

 Id. The mailers read: “UN-AMERICAN: Throughout history, America has fought to protect families in 

jeopardy. But now our government is locking up thousands of children in military detention centers along our own 

border;” “UNJUST: As an elected member of Congress, [Paulsen/Wagner] has the power to act against this crisis. 

But he/she has refused to introduce or support legislation to keep families safe and together;” and “UNWORTHY: 

[Paulsen/Wagner] voted to let the Trump administration lock up children and families indefinitely, and make it 

harder for those children to ever see their families again. [Paulsen/Wagner] is making this crisis worse.” 

10 Id. 

11 Id. The Paulsen mailer’s postmark, set apart in a box, reads: “PRSRT STANDARD U.S. POSTAGE 

PAID 85040 PERMIT NO. 2691.” The address label bears the imprint “SCH 5-DIGIT 55344 FSSC” (indicating 

“5-Digit Scheme,” “Carrier Route — Periodicals and Marketing Mail basic FSS (Flats Sequencing System)), see

https://about.usps.com/postal-bulletin/2016/pb22457/html/updt1_003.htm, and features an Intelligent Mail barcode 

above the address, indicating the mail was prepared for automation prices, see

https://postalpro.usps.com/mailing/intelligent-mail-barcode. The Wagner mailer’s postmark, set apart in a box, 

reads: “PRSRT STD U.S. POSTAGE PAID St. Louis, MO, PERMIT NO. 256.” The address label bears the 

imprint “ECRLOT **C 017” (indicating “Enhanced Carrier Route — Marketing Mail basic), and features an 

Intelligent Mail barcode above the address, indicating the mail was prepared for automation prices.

12 MUR 7532 Compl. at 1, ¶ 3. 

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Factual and Legal Analysis 

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 Attachment 1

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1 B. Internet Video Ads Opposing Paulsen and Wagner (MUR 7532) 

2 The Reunify Families Now ads are identical, except for references to either Paulsen or 

3 Wagner. Specifically, the dates of publication, format, language, text, and images used in both 

4 the Paulsen and Wagner internet video ads (except for references to the candidate) are the same. 

5 

6 

7 The MUR 7532 Complaint attaches screenshots of Facebook ads, Ad Archives, and 

8 charts of Ad Performance statistics related to Reunify Families Now, and alleges that the internet 

9 video ads failed to include contact information for Care in Action, and does not state whether the 

MUR753700049
MUR 7537 (Unknown Respondents)

Factual and Legal Analysis 

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communications are authorized by any candidate or candidate’s committee.13 1 The image at the

2 top of the October 7 ad reads “Reunify Families Now; Sponsored ∙ Paid for by Care in Action,” 

3 and the bottom of the ad links to www.paulsenfailedfamilies.com and 

www.wagnerfailedfamilies.com.

14 4 The October 7 ad is transcribed here: 

5 (image): headshot of Paulsen/Wagner 

6 (voiceover) “If [Paulsen/Wagner] won’t speak up when children are in pain...” 

7 (text): Rep. [Erik Paulsen/Ann Wagner] 

8 (text in red): SILENT when children are in pain 

9 

10 (image): Young family of four — man, woman, girl, infant — walking in the park 

11 (voiceover) “What makes you think [he’d/she’d] speak up for yours?” 

12 (text): What makes you think [he’d/she’d] speak up for yours? 

13 

14 (image): crying toddler behind glass 

15 (voiceover) “Our children are in pain, taken from their parents by our own government.” 

16 (text): Children taken from their parents

17 

18 (image): image of crying child; frame rips open to reveal headshot of Paulsen/Wagner 

19 (voiceover) “And [Erik Paulsen/Ann Wagner] is complicit.” 

20 (text): [Erik Paulsen/Ann Wagner] is complicit

21 

22 (image): video of children behind fence 

23 (voiceover) “[He/She] even voted to lock families up indefinitely...” 

24 (text): [Erik Paulsen/Ann Wagner] voted to detain families indefinitely

25 

26 (image): alternate video of different children behind fence 

27 (voiceover) “...and make it harder for children to be reunited with their families.” 

28 (text): [Erik Paulsen/Ann Wagner] keeping families apart

29 

30 (image): headshot of Paulsen/ Wagner 

31 (voiceover) “Families deserve better than [Congressman Erik Paulsen/Congresswoman 

32 Ann Wagner].” 

33 (text): Families deserve better than [Paulsen/Wagner] 

34 (text): Paid for by Care in Action. 

35 

 

13 Id., Ex. B-E, Id. at 1-2. See supra at 4. See also: 

https://www.facebook.com/ads/library/?active_status=all&ad_type=political_and_issue_ads&country=US&q=%22

Reunify%20Families%20Now%22. 

14 Id. The URL http://www.paulsenfailedfamilies.com/ and http://www.wagnerfailedfamilies.com/ do not 

link to currently active websites, and are not accessible via the Archive.org Wayback Machine search feature.

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Factual and Legal Analysis 

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 Attachment 1

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1 There are also October 12, 2018, internet videos allegedly posted by the “Reunify 

Families Now” Facebook account each bearing photos of Paulsen or Wagner.15 2 The October 12 

3 ad is transcribed here:

4 (image): Split screen — video of children behind fence (L)/headshot of the candidate (R)

5 (voiceover) “[Erik Paulsen’s/Ann Wagner’s] Republican Party took small children away 

6 from their parents.” 

7 (text): [Erik Paulsen’s/Ann Wagner’s] Republican Party took children from parents

8 (voiceover) “They locked children in prisons.”

9 (text): [Erik Paulsen’s/Ann Wagner’s] Republican Party locked children in prisons

10 

11 (image): headshot of Paulsen/Wagner

12 (voiceover) “And what did [Erik Paulsen/Ann Wagner] do?”

13 (text): What did [Erik Paulsen/Ann Wagner] do?

14 

15 (image): video of jail door closing superimposed over American flag

16 (voiceover) “[He/She] voted to let the government lock up children and their families 

17 indefinitely.”

18 (text): [Erik Paulsen/Ann Wagner] voted to lock up families indefinitely

19 

20 (image): videos of American military scenes (D-Day, Vietnam) superimposed over 

21 American flag

22 (voiceover) “Throughout history, Americans have taken a brave stand against human 

23 rights abuses and crimes against children.”

24 (text): Americans stand against human rights abuses

25 

26 (image): headshot of Paulsen/Wagner

27 (voiceover) “By letting his/her party lock up children, [Erik Paulsen/Ann Wagner] has 

28 betrayed our American values.”

29 (text): [Erik Paulsen/Ann Wagner] betrayed American values

30 (voiceover) “Families deserve better than [Erik Paulsen/Ann Wagner].”

31 (text): [Erik Paulsen/Ann Wagner] betrayed American families

32 (text): Paid for by Care in Action. 

33 

 

15 Id., Ex. B-D. The October 12 ad screenshot that is attached to the Complaint reads “What did Erik Paulsen 

do?” Id., Ex. B. See also: 

https://www.facebook.com/ads/library/?active_status=all&ad_type=political_and_issue_ads&country=US&q=%22

Reunify%20Families%20Now%22. 

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MUR 7537 (Unknown Respondents)

Factual and Legal Analysis 

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 Attachment 1

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1 Finally, the MUR 7532 Complaint attaches a screenshot of the website 

www.paulsenfailedfamilies.com (now unavailable), that displays a photo of Paulsen.16 2 

3 

4 The website also lists three columns criticizing Paulsen, similar to those on the back of 

mailer.17 5 In addition to using the same language as the mailer attached to the Complaint, the 

6 website states: “Disclaimer: Paid for by Care in Action. Independent expenditure, not approved 

by any candidate or candidate’s committee.”18 7 

 

16 Id., Ex. F. Because the MUR 7532 Complaint only addresses materials opposing Erik Paulsen, it does not 

include screenshots of the website www.wagnerfailedfamilies.com. 

17 Id. 

18 Id.

MUR753700052
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Factual and Legal Analysis 

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1 

2 

3 

4 

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Factual and Legal Analysis 

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 Attachment 1

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1 III. LEGAL ANALYSIS

2 A. Disclaimers

3 The Federal Election Campaign Act of 1971, as amended (the “Act”), requires that 

4 whenever a political committee makes a disbursement for the purpose of financing any 

5 communication through any mailing, or any other type of general public political advertising, such 

communication must clearly state who paid for the communication.

19 6 A communication 

7 authorized and paid for by a candidate, an authorized committee of a candidate, or an agent of 

8 either, must clearly state that the communication was paid for by the authorized political 

committee.20 9 A communication authorized by a candidate, an authorized committee of a 

10 candidate, or an agent of either but paid for by another person, must clearly state that the 

communication was paid for by such person but authorized by the political committee.21 11 

12 The Act also requires that all public communications that expressly advocate the election or 

defeat of a clearly identified candidate include a disclaimer.22 13 “Public communications” include 

14 “mass mailings,” which are mailings of more than 500 pieces of mail of an identical or 

substantially similar nature within any 30-day period.23 15 “Public communications” also include 

communications over the Internet that have been placed for a fee on another person’s Web site.”24 16 

17 Where required, disclaimers must be “presented in a clear and conspicuous manner, to give 

18 the reader, observer, or listener adequate notice of the identity of the person or political committee 

 

19 52 U.S.C. § 30120(a). 

20 52 U.S.C. § 30120(a)(1).

21 52 U.S.C. § 30120(a)(2); see also 11 C.F.R. § 110.11(b)(2).

22 52 U.S.C. § 30120(a); see 11 C.F.R. § 110.11(a)(2).

23 52 U.S.C. § 30101(22), (23); 11 C.F.R. §§ 100.26, 100.27.

24 11 C.F.R. § 100.26.

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Factual and Legal Analysis 

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 Attachment 1

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that paid for, and where required, that authorized the communication.”25 1 If a communication is not 

2 authorized by a candidate’s authorized committee, it must clearly state the name and permanent 

3 address, telephone number or website address of the person who paid for the communication and 

state that the communication is not authorized by any candidate or candidate’s committee.26 4 

5 The Complaints allege that the Paulsen and Wagner mailers violated the Act’s disclaimer 

requirements.

27 6 The Paulsen and Wagner mailers appear to constitute public communications 

7 because they appear professionally produced and carry a U.S. Postal Service (“USPS”) bulk mail 

permit and, therefore, likely exceeded 500 pieces for each mailing.

28 8 The mailers, however, do not 

include any disclaimers.29 9 

10 Additionally, the MUR 7532 Complaint alleges that the internet videos related to Paulsen 

violated 11 C.F.R. § 110.11(b)(3).30 11 The Paulsen videos, and the nearly identical Wagner videos, 

12 also appear to constitute public communications because they each advocate the defeat of a 

13 clearly identified candidate, and the available information indicates they were internet 

 

25 11 C.F.R. § 110.11(c). For printed communications, disclaimers must be clear and conspicuous, be of 

sufficient type size to be clearly readable, be contained in a printed box set apart from the other contents of the 

communication, and must clearly state who paid for the communication. Id. § 110.11(c)(2).

26 Id. § 110.11(b)(3).

27 MUR 7532 Compl. at 1-2; MUR 7537 Compl. at 1

28 Neither Complaint specifies the number of mailings, but the MUR 7532 Complaint does categorize the 

Paulsen mailer as a “public communication.” MUR 7532 Compl. at 1. It is clear that at least 200 copies of the 

mailers were distributed because the bulk mail permit imprints indicate that the mailers were sent by Standard Mail, 

and USPS requires a minimum of 200 pieces or 50 pounds of mail to qualify for the Standard Mail bulk mail 

discount. MUR 7532 Compl., Ex. A, MUR 7537 Compl., Ex. C. See

https://pe.usps.com/businessmail101?ViewName=StandardMail. (Last visited September 4, 2019). 

29 MUR 7532 Compl., Ex. A; MUR 7537 Compl., Ex. C. 

30 MUR 7532 Compl. at 1-2. The internet video ads are designated as “Sponsored,” see id., Ex. B-E, 

indicating that they were placed for a fee on another person’s Web site. See 11 C.F.R. § 100.26. Additionally, the 

“Money spent” statistic in the Facebook Ad Performance analytics for each ad indicates that each ad cost between 

$500-999. Id., Ex. D-E. 

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Factual and Legal Analysis 

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1 communications that were placed for a fee on another person’s Web site. Although the videos 

2 contained the disclaimer “Paid for by Care in Action,” they failed to state the name and 

3 permanent address, telephone number, or website address of the person who paid for the 

4 communication, and failed to state whether or not the political advertisement was authorized by 

5 any candidate or candidate’s committee. 

6 The Paulsen and Wagner Communications Required Disclaimers Because They 

7 Contain Express Advocacy 

8 

9 Commission regulations provide that a communication expressly advocates the election or 

10 defeat of a clearly identified candidate when it uses certain phrases or uses campaign slogans or 

11 individual words, “which in context can have no other reasonable meaning than to urge the 

election or defeat of one or more clearly identified candidate(s).”31 12 Commission regulations also 

13 state, a communication constitutes express advocacy if “[w]hen taken as a whole and with limited 

14 reference to external events, such as the proximity to the election, [the communication] could only 

15 be interpreted by a reasonable person as containing advocacy of the election or defeat of one or 

16 more clearly identified candidate(s) because — (1) [t]he electoral portion of the communication is 

17 unmistakable, unambiguous, and suggestive of only one meaning; and (2) [r]easonable minds 

18 could not differ as to whether it encourages actions to elect or defeat one or more clearly identified 

candidate(s) or encourages some other kind of action.”32 19 

 

31 11 C.F.R. § 100.22(a). The Commission explained that the phrases enumerated in 11 C.F.R. § 100.22(a), 

such as “Smith for Congress” and “Bill McKay in ‘94,” have no other reasonable meaning than to urge the election 

or defeat of a clearly identified candidate. See Express Advocacy; Independent Expenditures; Corporate and Labor 

Organization Expenditures, 60 Fed. Reg. 35,292, 35,294 (July 6, 1995) (“Express Advocacy E&J”); see also FEC v. 

Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249 (1986) (a communication is express advocacy when “it 

provides, in effect, an explicit directive” to vote for the named candidates).

32 11 C.F.R. § 100.22(b). 

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Factual and Legal Analysis 

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1 In its explanation and justification for section 11 C.F.R. §100.22(b), the Commission 

2 stated, “communications discussing or commenting on a candidate’s character, qualifications or 

3 accomplishments are considered express advocacy under new section 100.22(b) if, in context, 

4 they can have no other reasonable meaning than to encourage actions to elect or defeat the 

candidate in question.”33 5 In MUR 5024R, the Commission concluded that, in context, the 

6 brochures constituted express advocacy under 11 C.F.R. § 100.22(b), because the electoral 

7 portions of the brochure, including the phrase “Tell Tom Kean Jr....New Jersey Needs New 

8 Jersey Leaders,” were “unmistakable, unambiguous and suggestive of only one meaning” — to 

vote against Tom Kean.34 9 In MURs 5511/5525, the Commission concluded that attacks on John 

10 Kerry’s character, fitness for public office, and capacity to lead, including phrases such as “JOHN 

11 KERRY CANNOT BE TRUSTED” and “unfit for command” were “unmistakable, unambiguous 

12 and suggestive of only one meaning” — and had no reasonable meaning other than to encourage 

actions to defeat him in the upcoming election.35 13 Similarly, in MUR 5831, the Commission 

14 concluded that, in context, the ad attacking Bob Casey’s qualifications and stating “Can we really 

15 risk Bob Casey learning on the job?” constituted express advocacy under 11 C.F.R. § 100.22(b), 

16 because the electoral portions were “unmistakable, unambiguous and suggestive of only one 

meaning” — to vote against Bob Casey.36 17 The Commission concluded that outside the context of 

the upcoming election, these advertisements were virtually meaningless.37 18 

 

33 EA E&J, 60 Fed. Reg. at 35,295. 

34 MUR 5024R (Council for Responsible Government) Factual and Legal Analysis at 14-15. 

35 MUR 5511/5525 (Swift Boat Veterans) Conciliation Agreement at IV.25-28. 

36 MUR 5831 (Softer Voices) Factual and Legal Analysis at 6-8. 

37 Id.

MUR753700057
MUR 7537 (Unknown Respondents)

Factual and Legal Analysis 

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1 The available information indicates that the Paulsen and Wagner mailers, and the similar 

2 internet video ads, contained express advocacy under 11 C.F.R. § 100.22(b). The mailers clearly 

3 identify federal candidates Paulsen and Wagner, and contain attacks on their character and fitness 

4 very similar to those the Commission has found to be express advocacy under § 100.22(b). 

5 Specifically, the ads call both Paulsen and Wagner “unjust,” “unworthy,” and “un-American” and 

6 state that Paulsen and Wagner “ha[ve] betrayed American values,” they do not “deserve to speak 

for...families” and “Families deserve better than” Paulsen and Wagner.

38 7 Additionally, the 

8 mailers were sent in late October 2018, close to the November 6, 2018, general election, and the 

9 videos were made available online less than a month before the general election. The content of 

the statements, along with their timing,39 10 have an unmistakable, unambiguous meaning: vote 

11 against Paulsen and Wagner in the upcoming election. Because the Paulsen and Wagner 

12 communications advocate the defeat of federal candidates, those communications constitute 

13 express advocacy, and should have contained disclaimers. Accordingly, the Commission finds 

14 reason to believe that Unknown Respondents violated 52 U.S.C. § 30120(a) with regard to the 

15 Paulsen and Wagner communications. 

16 B. Reporting

17 Political committees, whether authorized by any candidate or not, must disclose 

disbursements as part of their regular reporting to the Commission.40 18 Political committees that 

 

38 See supra at 2-4. 

39 Commission regulations specify that the “proximity to the election” is a permissible external event to 

consider when determining whether a communication has a reasonable, non-electoral meaning. See 11 C.F.R. 

§ 100.22(b); FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) (“Timing the appearance of the advertisement less than 

a week before the election left no doubt of the action proposed.”).

40 52 U.S.C. § 30104(b)(4)(G), (H)(v). An organization that is not controlled by a candidate that (1) exceeds 

the $1,000 aggregate expenditure threshold and (2) it has as its “major purpose” the nomination or election of 

federal candidates would also have to register and file disclosure reports with the Commission.

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MUR 7537 (Unknown Respondents)

Factual and Legal Analysis 

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1 make independent expenditures, whether authorized by any candidate or not, must also disclose 

these expenditures to the Commission as part of their regular reporting.41 2 Any person other than a 

3 political committee that makes expenditures that expressly advocate the election or defeat of a 

4 federal candidate that exceed $250 must file an independent expenditure report with the 

Commission pursuant to 52 U.S.C. § 30104(c).42 5 Additionally, political committees and other 

6 persons that make independent expenditures aggregating $1,000 or more made after the 20th day, 

7 but more than 24 hours before, the date of an election, must report the expenditures by filing a 24-

hour notice.

43 8 

9 The available information indicates that the Paulsen and Wagner mailers and their 

10 associated internet video ads constituted express advocacy, and expenditures for the mailers and 

11 ads exceeded $250. Therefore, whether these communications were made by a political 

12 committee or through independent expenditures, they should have been disclosed to the 

13 Commission. Accordingly, the Commission finds reason to believe that Unknown Respondents 

14 violated 52 U.S.C. § 30104(b) or (c) by failing to report expenditures made in connection with the 

15 Paulsen and Wagner mailers and internet video ads. Also, because the mailers appear to have 

been distributed in October 2018,44 16 potentially 20 days before the election on November 6, 2018, 

17 and appeared to cost over $1,000, 24-hour notices would likely have been required. Accordingly, 

 

41 52 U.S.C. § 30104(b)(4)(G), (H)(iii).

42 The Act defines “independent expenditure” as “an expenditure by a person expressly advocating the 

election or defeat of a clearly identified candidate; and that is not made in concert or cooperation with or at the 

request or suggestion of such a candidate, the candidate’s authorized political committee, or their agents, or a 

political party committee or its agents.” 52 U.S.C. § 30101(17). 

43 See 52 U.S.C. § 30104(g)(1)(A). Political committees and other persons must file 24-hour notices by 

11:59 p.m. on the day following the date on which the independent expenditure communication is publicly 

distributed. See 11 C.F.R. §§ 104.4(c), 109.10(d).

44 See MUR 7532 Compl. at 1-2; MUR 7537 Compl. at 1. 

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MUR 7537 (Unknown Respondents)

Factual and Legal Analysis 

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1 the Commission finds reason to believe that Unknown Respondents violated 52 U.S.C. 

2 § 30104(g) with respect to the Paulsen and Wagner communications. 

MUR753700060