FEDERAL ELECTION COMMISSION

Washington, DC 20463 

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

) 

Hickenlooper for Colorado, et al. ) MUR 7760

) 

STATEMENT OF REASONS OF CHAIR DARA LINDENBAUM

AND COMMISSIONERS SHANA M. BROUSSARD AND ELLEN L. WEINTRAUB

The Complaint in this matter alleged that SMP and Rebecca Lambe in her official 

capacity as treasurer (“SMP”) violated the Federal Election Campaign Act of 1971, as amended 

(the “Act”), and Commission regulations by republishing Hickenlooper for Colorado (the 

“Hickenlooper Committee”)’s campaign materials in a coordinated communication, resulting in 

the making of excessive contributions and reporting violations. The Complaint further alleged 

that the Hickenlooper Committee violated the Act by using coded language to request such an 

advertisement. On November 29, 2022, the Commission voted to dismiss the allegations 

concerning SMP in an exercise of prosecutorial discretion.1 The Commission further found no 

reason to believe the Hickenlooper Committee violated the Act or Commission regulations.2 At 

that time, the Commission directed the Office of General Counsel to draft Factual and Legal 

Analyses consistent with these findings.3 

On January 24, 2023, the Commission approved a Factual and Legal Analysis for the 

Hickenlooper Committee.4 We also voted to adopt the Factual and Legal Analysis for SMP as 

revised by our Office of General Counsel, which was not adopted by the Commission.5

 We

attach here the proposed Factual and Legal Analysis for SMP that we supported, which provides 

our explanation for this vote.6

 

1 Heckler v. Chaney, 470 U.S. 821 (1985); Certification at 3 (Nov. 29, 2022) (Chair Lindenbaum, Vice Chair 

Cooksey, and Commissioners Broussard, Dickerson, Trainor, and Weintraub voted in favor). 2 Certification at 3 (Nov. 29, 2022) (Chair Lindenbaum, Vice Chair Cooksey, and Commissioners Broussard, 

Dickerson, and Trainor voted in favor; Commissioner Weintraub dissented). 3 Id. 4 Certification at 1 (January 24, 2023) (Chair Lindenbaum, Vice Chair Cooksey, and Commissioners 

Broussard, Dickerson, and Trainor voted in favor; Commissioner Weintraub dissented). 5 Id. at 2. 6 Attachment A. As noted, this version was not adopted by the Commission.

MUR776000115
MUR 7760 (Hickenlooper for Colorado, et al.) 

Statement of Reasons of Chair Lindenbaum and Commissioners Broussard and Weintraub

Page 2 of 2 

_______________________ __________________________ 

Date Dara Lindenbaum 

Chair

_______________________ __________________________ 

Date Shana M. Broussard

Commissioner

_______________________ __________________________ 

Date Ellen L. Weintraub 

Commissioner

March 1, 2023

March 1, 2023

March 1, 2023

MUR776000116
Attachment A

MUR776000117
PROPOSED F&LA

Attachment A 

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1 FEDERAL ELECTION COMMISSION

2 FACTUAL AND LEGAL ANALYSIS

3 RESPONDENT: SMP and Rebecca Lambe in her official MUR 7760 

4 capacity as treasurer

5 I. INTRODUCTION

6 The Complaint alleges that SMP and Rebecca Lambe in her official capacity as treasurer 

7 (“SMP”) violated the Federal Election Campaign Act of 1971, as amended (the “Act”), and 

8 Commission regulations when SMP republished Hickenlooper for Colorado (the “Hickenlooper 

9 Committee”)’s campaign materials in a coordinated communication. The allegations concern the 

10 Hickenlooper Committee’s operation of a website, getthefacts.co (“Get the Facts Website”), 

11 which, according to the Complaint, used “code language” to signal to outside groups that they 

12 should run advertisements using the messages and themes detailed on the website. The 

13 Complaint alleges that SMP republished talking points the Hickenlooper Committee placed on 

14 the Get the Facts Website using the title “Coloradans Need to Know,” as well as B-roll from an 

15 earlier Hickenlooper Committee advertisement, in a television advertisement entitled “Honest 

16 Mistake.”

17 SMP argues that no republication occurred because “Honest Mistake” only used brief 

18 clips of publicly available footage of John Hickenlooper, shared themes from the Get the Facts 

19 Website, and incorporated SMP’s own message. As discussed below, under the circumstances of 

20 this matter, the Commission exercises its prosecutorial discretion and dismisses the allegations 

21 that SMP violated 52 U.S.C. § 30116(a)(1)(A) and 11 C.F.R. § 110.1(b)(1) by making an 

22 excessive in-kind contribution to the Hickenlooper Committee and violated 52 U.S.C. 

§ 30104(b) and 11 C.F.R. § 104.3(b) by failing to report an in-kind contribution.1 23 

1

 See Heckler v. Chaney, 470 U.S. 821 (1985).

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MUR 7760 (SMP) 

PROPOSED Factual and Legal Analysis

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Attachment A

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1 II. FACTUAL BACKGROUND

John Hickenlooper was a 2020 candidate for the U.S. Senate in Colorado.2 2 Hickenlooper 

for Colorado is his principal campaign committee.3 3 SMP is an independent expenditure-only 

political committee registered with the Commission.4 4 Hickenlooper’s opponent in the general 

election was then-incumbent U.S. Senator Cory Gardner.5 5 During the 2020 election cycle, SMP 

6 reported making $229,911,901 in independent expenditures, including $7,836,779 in opposition 

to Gardner and $2,700,142 in support of Hickenlooper.6 7 

8 On August 22, 2019, Hickenlooper and the Hickenlooper Committee released a 90-

second advertisement, entitled “Not Done Fighting,” announcing his U.S. Senate campaign.7 9 

10 “Not Done Fighting” included six seconds of footage of Hickenlooper interacting with customers 

2

 John W. Hickenlooper, Amended Statement of Candidacy (Oct. 15, 2020), https://docquery.fec.gov/

pdf/382/202010159294211382/202010159294211382.pdf. Hickenlooper won the 2020 general election. COLO.

SEC’Y OF STATE, 2020 ABSTRACT OF VOTES CAST 103-04 (2020), https://www.sos.state.co.us/pubs/elections/

Results/Abstract/2020/2020BiennialAbstractBooklet.pdf. 

3

 Hickenlooper for Colo., Amended Statement of Organization at 2 (Dec. 3, 2020), https://docquery.fec.gov/

pdf/062/202012039341617062/202012039341617062.pdf. 

4

 SMP, Amended Statement of Organization at 1-2 (Mar. 20, 2022), https://docquery.fec.gov/pdf/450/

202203209494096450/202203209494096450.pdf. SMP was formerly known as Senate Majority PAC, and, 

originally, Commonsense Ten. See Commonsense Ten, Statement of Organization at 1 (June 11, 2010), 

https://docquery.fec.gov/pdf/921/10030344921/10030344921.pdf; Senate Majority PAC, Amended Statement of 

Organization at 1 (Mar. 8, 2013), https://docquery.fec.gov/pdf/709/13940341709/13940341709.pdf (indicating a 

name change); SMP, Amended Statement of Organization at 1 (Nov. 15, 2017), https://docquery.fec.gov/pdf/

356/201711169086695356/201711169086695356.pdf (same); see also Compl. at 1 n.1 (July 9, 2020).

5

 Cory Gardner, Amended Statement of Candidacy (Jan. 27, 2015), https://docquery.fec.gov/pdf/070/

15020035070/15020035070.pdf. 

6

 See SMP: Spending, FEC.GOV, https://www.fec.gov/data/committee/C00484642/?tab=spending&

cycle=2020 (last visited Oct. 20, 2022).

7

 Compl. at 4 n.9. “Not Done Fighting” is available on Hickenlooper’s YouTube Channel. John 

Hickenlooper, Not Done Fighting: John Hickenlooper Is Running for U.S. Senate, YOUTUBE (Aug. 22, 2019) 

[hereinafter Not Done Fighting Video], https://www.youtube.com/watch?v=-63689Ahyuk. 

MUR776000119
MUR 7760 (SMP) 

PROPOSED Factual and Legal Analysis

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Attachment A

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inside a restaurant and interacting with employees in a factory (the “Video Footage”).8 1 There is 

2 no available information indicating that “Not Done Fighting” or the Video Footage ever 

3 appeared on the Get the Facts Website.

4 On June 13, 2020, the Hickenlooper Committee posted talking points to the Get the Facts 

5 Website, which it operated separate from its official campaign website, using the header 

6 “Coloradans Need to Know the Facts About the Republican Attacks Against John 

Hickenlooper.”9 7 The header was followed by a one-paragraph message, dated June 13, 2020: 

8 Republicans have attacked John Hickenlooper for his trips to bring 

9 business to Colorado, here is what voters need to know if they do 

10 so again: 95 of their 97 allegations were dismissed and the Denver 

11 Post called the other two “relatively minor,” an “honest mistake.” 

12 He testified fully. They call him “an ethical public servant.” But 

13 the Republicans are attacking Hickenlooper because they know 

14 he’s the only one who can beat Cory Gardner, who stands with 

Trump 100% of the time — not Colorado.10 15 

16 The message was followed by the heading “Get the facts” and summaries of news reports and 

17 Colorado’s Independent Ethics Commission documents primarily concerning ethics allegations 

against Hickenlooper, as well as information about Gardner.

11 18 The Get the Facts Website 

8

 Not Done Fighting Video. The Video Footage appears at 0:45 to 0:51 in “Not Done Fighting.” The Video 

Footage was also the subject of a separate enforcement complaint filed by the same Complainant. Compl. at 4 n.9; 

First Gen. Counsel’s Rpt. (“First GCR”) at 3-4, MUR 7670 (Hickenlooper for Colorado, et al.). The Complaint in 

MUR 7670 alleged that the Hickenlooper Committee received a prohibited transfer of an asset — the Video Footage 

— when it incorporated footage originally created for Hickenlooper’s 2014 gubernatorial campaign in “Not Done 

Fighting.” Compl. at 4 n.9; First GCR at 4-5, MUR 7670 (Hickenlooper for Colorado, et al.); see also Certification 

(“Cert.”) ¶ 2 (Sept. 30, 2022), MUR 7670 (Hickenlooper for Colorado, et al.) (dismissing the allegations against the 

Hickenlooper Committee and Hickenlooper’s state campaign committee). 

9

 Compl. at 2-3; see Coloradans Need to Know the Facts About the Republican Attacks Against John 

Hickenlooper, GET THE FACTS (June 13, 2020) [hereinafter Get the Facts Website Archive],

https://www.getthefacts.co/ [https://web.archive.org/web/20200618144429/https://www.getthefacts.co/].

10 Get the Facts Website Archive; see Compl., Ex. A (copy of the Get the Facts Website as it appeared on 

July 1, 2020). The “Coloradans Need to Know” header remained on the Get the Facts Website as late as July 11, 

2020, but included a different message dated July 2, 2020. Coloradans Need to Know the Facts About the 

Republican Attacks Against John Hickenlooper, GET THE FACTS (July 2, 2020), https://www.getthefacts.co/

[https://web.archive.org/web/20200711001353/https://www.getthefacts.co/]. 

11 Get the Facts Website Archive; Compl., Ex. A. 

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PROPOSED Factual and Legal Analysis

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Attachment A

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1 consisted of a single page containing the above-referenced information, without additional tabs 

2 or menus, and displayed a boxed disclaimer at the bottom stating that it was “Paid for by 

3 Hickenlooper for Colorado” along with a link to the Hickenlooper Committee’s official website, 

https://hickenlooper.com/.12 4 The Get the Facts Website is no longer accessible as of the date of 

5 the Commission’s findings in this matter. 

6 On June 10, 2020, Melissa Miller, a Hickenlooper Committee staffer, tweeted: “Get the 

7 facts about the dark money attack on @Hickenlooper,” and included a link to the Get the Facts 

Website.13 8 On June 13, 2020, Lauren Passalacqua, Democratic Senatorial Campaign Committee

9 (“DSCC”) communication director, also tweeted a link to the Get the Facts Website with the 

12 Get the Facts Website Archive; Compl., Ex. A. 

13 Melissa Miller (@Meliss1001), TWITTER (June 10, 2020, 8:15 PM), https://twitter.com/Meliss1001/status/

1270872176338460672; Compl. at 3. It appears that Hickenlooper Committee campaign staff publicized the Get the 

Facts Website as early as June 1, 2020, but it is unclear whether the version available on that date included the 

“Coloradans Need to Know” language. See, e.g., Melissa Miller (@Meliss1001), TWITTER (June 1, 2020, 

11:05 AM), https://twitter.com/Meliss1001/status/1267472396992172033. 

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MUR 7760 (SMP) 

PROPOSED Factual and Legal Analysis

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Attachment A

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1 caption: “GOP has attacked Hickenlooper for trips to bring business to Colorado. Here’s what 

voters need to know.”14 2 

3 On or around June 25, 2020, SMP started airing a television advertisement entitled 

“Honest Mistake.”15 4 “Honest Mistake” is 30 seconds long, approximately six seconds of which 

5 feature the Video Footage from the Hickenlooper Committee’s earlier “Not Done Fighting” 

advertisement.16 6 On-screen text and audio defend Hickenlooper against alleged lies regarding 

7 ethics complaints, stating that “95 of the 97 Republican charges were dismissed” and quoting 

The Denver Post saying that Hickenlooper made an “honest mistake.”17 8 Between June 15 

14 Lauren Passalacqua (@laurenvpass), TWITTER (June 13, 2020, 2:39PM), https://twitter.com/laurenvpass/

status/1271874926052589580; Compl. at 3.

15 SMP Resp. at 2 (Sept. 1, 2020); see Senate Majority PAC, Honest Mistake, ADMO CREATIVE ALERT

[hereinafter Honest Mistake Video], https://host2.advertisinganalyticsllc.com/admo/viewer/2339525 (last visited 

Oct. 20, 2022); Compl. at 3-4 & n.4.

16 Compare Honest Mistake Video at 0:24-0:30, with Not Done Fighting Video at 0:45-0:51. See Compl. at 

4-5 (including screenshots from “Not Done Fighting” and “Honest Mistake” side-by-side); see also SMP Resp. at 8 

(“[‘Honest Mistake’] only contains short snippets of candidate [B]-roll footage . . . which were shown on screen for 

a total of [six] seconds.”). 

17 See Honest Mistake Video. 

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MUR 7760 (SMP) 

PROPOSED Factual and Legal Analysis

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Attachment A

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1 and 29, 2020, SMP reported making $2,697,141.57 in independent expenditures in support of 

2 Hickenlooper, including four disbursements totaling $48,945.64 for “Media Production,” and six 

disbursements totaling $2,648,195.93 for “Media Buy[s],” or “Digital Ad Buy.”18 3 The available 

4 information is not clear regarding which disbursements or portions thereof correspond to 

“Honest Mistake.”19 5 

6 The Complaint alleges that SMP republished the Hickenlooper Committee’s campaign 

materials in “Honest Mistake.”20 7 Specifically, the Complaint alleges that SMP republished the 

8 Video Footage from “Not Done Fighting” and the talking points from the Get the Facts Website 

in “Honest Mistake.”21 9 SMP asserts that “Honest Mistake” contained SMP’s own words, 

18 FEC Independent Expenditures: Filtered Results, FEC.GOV, https://www.fec.gov/data/independentexpenditures/?committee_id=C00484642&data_type=processed&q_spender=C00484642&is_notice=false&most_re

cent=true&candidate_id=S0CO00575&candidate_id=S4CO00395&min_date=06%2F01%2F2020&max_date=07%

2F01%2F2020 (last visited Oct. 20, 2022) (reflecting 10 independent expenditure disbursements by SMP in support 

of Hickenlooper or in opposition to Gardner in June 2020); SMP, 2020 July Monthly Report at 3504-06, 3511-14, 

3517 (July 20, 2020), https://docquery.fec.gov/pdf/213/202007209260163213/202007209260163213.pdf#

navpanes=0. 

19 The Complaint alleges that “Honest Mistake” started airing on June 25, 2020, but SMP’s Response states 

only that SMP ran the advertisement in June 2020. Compl. at 3; SMP Resp. at 2. Federal Communications 

Commission filings do not contain sufficient information to identify the advertisement connected to each filing in 

order to ascertain the exact air dates or the exact amount spent for “Honest Mistake.” See About Public Inspection 

Files, FED. COMMC’NS COMM’N, https://publicfiles.fcc.gov/about (last visited Oct. 20, 2022). The available 

information indicates that “Honest Mistake” started airing shortly before the Colorado primary election held on 

June 30, 2020, but it appears that SMP may have aired more than one advertisement during that timeframe. See 

Reid Wilson & Gabby Birenbaum, Democrats Spend Big to Bolster Struggling Hickenlooper, HILL (June 23, 2020, 

8:07 PM), https://thehill.com/homenews/campaign/504217-democrats-spend-big-to-bolster-struggling-hickenlooper

(reporting that SMP planned to spend $2.2 million “defending Hickenlooper in the two weeks before Colorado 

voters cast their ballots”); Greg Giroux (@greggiroux), TWITTER (June 25, 2020, 9:28 AM), https://twitter.com/

greggiroux/status/1276145224079814657 (discussing newly released advertisements, including “Honest Mistake,” 

for the Colorado Senate race). SMP ran a different advertisement beginning on or about June 17, 2020, with similar 

content to “Honest Mistake,” but that advertisement did not include the Video Footage. Greg Giroux 

(@greggiroux), TWITTER (June 17, 2020, 7:17 PM), https://twitter.com/greggiroux/status/1273394409833463814.

20 Compl. at 7-8. 

21 Id. at 4-8 & n.9. The Complaint calculates that, “[w]hen the messaging and video are examined together,” 

25 seconds out of the 30 seconds of runtime in “Honest Mistake” republished the Hickenlooper Committee’s 

campaign materials. Id. at 4-6. In support of this analysis, the Complaint includes a side-by-side comparison of 

“Honest Mistake” and “Not Done Fighting,” displaying three frames of the republished Video Footage. Id. at 5. 

Additionally, the Complaint includes a side-by-side comparison of the narration and text from both advertisements

to demonstrate their similarities, asserting that “60% of the messaging narration” was taken from the Get the Facts 

Website. Id. at 4.

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MUR 7760 (SMP) 

PROPOSED Factual and Legal Analysis

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Attachment A

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1 content, and message and that brief incorporation of short snippets and clips of B-roll footage 

2 and use of similar themes are insufficient to establish republication under Commission 

precedent.22 3 SMP acknowledges that “Honest Mistake” contains six seconds of B-roll video 

footage featuring Hickenlooper but does not state from where it obtained that footage.23 4 

5 III. LEGAL ANALYSIS

6 A. Relevant Law 

7 The Act prohibits any person from making, and any candidate or committee from 

knowingly accepting, an excessive contribution.24 8 Independent expenditure-only political 

9 committees are prohibited from making contributions to candidates and their authorized 

committees.25 10 Committee treasurers are required to disclose the identification of each political 

11 committee that makes a contribution to the reporting committee during the reporting period, 

22 SMP Resp. at 5-8. Additionally, SMP contends that the Complaint’s side-by-side comparison of the 

narration and text from both advertisements further demonstrates that “Honest Mistake” expresses SMP’s own 

views because the two advertisements contain different phrasing and content. Id. at 6-7.

23 See id. at 2.

24 52 U.S.C. § 30116(a), (f); 11 C.F.R. §§ 110.1(b)(1), 110.9.

25 Advisory Opinion 2017-10 at 2 (Citizens Against Plutocracy) (“An independent expenditure-only political 

committee ‘may not make contributions to candidates or political party committees, including in-kind contributions 

such as coordinated communications.’” (quoting Advisory Opinion 2016-21 at 3-4 (Great America PAC))); Factual 

& Legal Analysis (“F&LA”) at 6, MUR 7813 (Iowa Democratic Party, et al.) (“Independent expenditure-only 

political committees . . . are prohibited from making contributions to candidates and their authorized committees.”); 

F&LA at 4, MUR 7168 (Catherine Cortez Masto, et al.) (“Super PACs are prohibited from making contributions to 

candidates and their authorized committees.”); F&LA at 8, MUR 7124 (Katie McGinty for Senate, et al.) 

(“[Independent expenditure-only political committees] and nonprofit corporations are prohibited from making 

contributions to candidates and their authorized committees.”); see also Advisory Opinion 2010-11 at 2-3 

(Commonsense Ten) (stating that independent expenditure-only committees may receive unlimited funds and funds 

from corporations and labor organizations).

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PROPOSED Factual and Legal Analysis

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Attachment A

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along with the date and amount of any such contribution.26 1 If a committee makes a contribution, 

it shall disclose the name and address of the recipient and the contribution amount.27 2 

3 Under the Act, “the financing by any person of the dissemination, distribution, or 

4 republication, in whole or in part, of any broadcast or any written, graphic, or other form of 

5 campaign materials prepared by the candidate, his campaign committees, or their authorized 

agents shall be considered to be an expenditure.”28 6 The Commission has previously concluded 

7 that “campaign materials” include any material belonging to or emanating from a campaign, 

including video footage.29 8 Commission regulations further provide that the republication of 

9 campaign materials “shall be considered a contribution for the purposes of [the Act’s] 

contribution limitations and reporting responsibilities of the person making the expenditure.”30 10 

11 Under Commission regulations, however, the candidate who prepared the materials is not 

12 considered to have received an in-kind contribution and is not required to report an expenditure 

13 unless the dissemination, distribution, or republication of campaign materials is a coordinated 

communication or a party coordinated communication.31 14 

26 52 U.S.C. § 30104(b)(3)(B); 11 C.F.R. § 104.3(a).

27 52 U.S.C. § 30104(b)(6)(B)(i); 11 C.F.R. § 104.3(b).

28 52 U.S.C. § 30116(a)(7)(B)(iii); see 11 C.F.R. § 109.23(a). Expenditures made by any person in 

cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political 

committees, or their agents, shall be considered to be a contribution to such candidate. 52 U.S.C. 

§ 30116(a)(7)(B)(i).

29 See, e.g., F&LA at 6-7, MUR 6535 (Restore Our Future, Inc.) (determining that video footage from an 

advertisement produced and distributed by Mitt Romney’s 2008 presidential campaign committee was “campaign 

materials” for the purpose of republication); see also F&LA at 4-6, MUR 6783 (Indian Ams. for Freedom, NFPC, et 

al.) (finding reason to believe based on republication of identical text from a campaign committee advertisement); 

First GCR at 8, MUR 5743 (Betty Sutton for Congress, et al.) (concluding multicandidate political committee made 

an in-kind contribution by republishing pictures from a candidate committee’s website in its own mailers); Amended 

Cert. ¶ 2 (Dec. 5, 2006), MUR 5743 (Betty Sutton for Congress, et al.) (exercising prosecutorial discretion and

dismissing republication allegation and sending an admonishment letter). 

30 11 C.F.R. § 109.23(a).

31 Id.; see also id. § 109.21 (coordinated communications); id. § 109.37 (party coordinated communications). 

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MUR 7760 (SMP) 

PROPOSED Factual and Legal Analysis

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Attachment A

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1 B. The Commission Exercises Its Prosecutorial Discretion and Dismisses the 

2 Allegations SMP Made and Failed to Report an Excessive In-Kind 

3 Contribution to the Hickenlooper Committee by Republishing Campaign 

4 Materials

5 The available information indicates that SMP incorporated six seconds of the Video 

6 Footage that previously appeared in the Hickenlooper Committee’s “Not Done Fighting” 

advertisement into “Honest Mistake.”32 7 This campaign material constituted approximately one8 fifth of the visual content in “Honest Mistake.” Under these circumstances, taking into account 

9 the extent of the alleged republication as well as the Commission resources that would be needed 

10 to further pursue the allegations, in light of other Commission priorities, the Commission 

11 exercises its prosecutorial discretion and dismisses the allegations that SMP violated 

12 52 U.S.C. § 30116(a)(1)(A) and 11 C.F.R. § 110.1(b)(1) by making an excessive in-kind 

13 contribution to the Hickenlooper Committee and violated 52 U.S.C. § 30104(b) and 11 C.F.R. 

§ 104.3(b) by failing to report an in-kind contribution.33 14 

32 Compare Honest Mistake Video at 0:24-0:30, with Not Done Fighting Video at 0:45-0:51. See Compl. at 

4-5 (including screenshots from “Not Done Fighting” and “Honest Mistake” side-by-side); supra note 16. 

33 See Heckler v. Chaney, 470 U.S. 821 (1985).

MUR776000126