FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of ) 

 ) 

 Freedom Vote, et al. ) MUR 7465 

CONCURRING STATEMENT OF COMMISSIONER CAROLINE C. HUNTER† 

The Commission’s test for political committee status consists of two elements. First, a 

group must exceed the contribution or expenditure threshold under the Federal Election 

Campaign Act of 1971, as amended (the “Act”). Second, the “major purpose” of the group must 

be the nomination or election of federal candidates. Freedom Vote met the statutory expenditure 

threshold in 2014 when it reported spending $174,607 on independent expenditures. As 

described in the Factual and Legal Analysis (“F&LA”), the Commission determined that 

Freedom Vote also may have had the major purpose of nominating or electing federal 

candidates.1 I submit this statement to highlight several important aspects of the Commission’s 

decision. 

First, under federal tax law a 501(c) group’s spending on what is commonly called 

“political campaign activity” or “political campaign intervention” by definition cannot 

simultaneously be categorized for “program services.” In other words, money spent on “political 

campaign activity” cannot also be “program services,” and vice versa. But Freedom Vote’s 

reported spending on “program services,” combined with its reported pending on “political 

campaign activities” exceeded its total reported expenses for its 2014, 2016, and 2017 fiscal 

years. Clearly, something was not right. Thus, it was impossible for the Commission to credit 

the assertion that Freedom Vote’s SuperPAC contributions during its 2016-2017 fiscal years — 

already admitted to be just under 50% of total expenses — never exceeded 50% for those fiscal 

years. That fact, when combined with Freedom Vote’s admitted spending on independent 

                                                            

† Because of my impending departure from the Commission, I believe it necessary to articulate my views on 

this matter now despite the fact that the Commission’s investigation remains ongoing. 

1

 The complainant CREW also alleged that an advertisement titled “Third Largest” constituted an unreported 

independent expenditure because it expressly advocated for the defeat of a candidate under Commission regulation 

11 C.F.R. § 100.22(b). MUR 7465, Complaint at ¶¶ 44, 48. The Commission’s Office of General Counsel (“OGC”) 

agreed. MUR 7465 (Freedom Vote, et al.), FGCR at 19-20. But in a June 8, 2018 complaint to the IRS, CREW 

took the opposite position, stating that the same ad was not express advocacy. See Letter from Noah Bookbinder, 

Exec. Director, Citizens for Responsibility and Ethics in Washington, to Hon. David J. Kautter, Acting 

Commissioner of Internal Revenue Service at 5 (June 8, 2018), 

https://s3.amazonaws.com/storage.citizensforethics.org/wp-content/uploads/2018/06/12194741/Freedom-Vote-IRScomplaint-6-8-18.pdf (arguing “Third Largest” “likely” could be defined as “political activity” under the IRS’s 

“facts and circumstances” test even though it “stop[s] short of expressly advocating”). Having made contradictory 

claims to different federal agencies on the same day, CREW itself demonstrates that “Third Largest” cannot be 

interpreted only as advocating for the electoral defeat of a clearly identified candidate. I agree that the ad is not 

express advocacy. 

MUR746500239
MUR 7465 (Freedom Vote, et al.) 

Concurring Statement of Commissioner Caroline C. Hunter 

Page 2 of 4 

expenditures in fiscal year 2014 (comprising 64.4% of expenses), persuaded me to find reason to 

believe in this matter. 

Second, the Commission correctly employed a multi-fiscal year analysis of Freedom 

Vote’s spending. Thus, the F&LA is yet another example of the Commission avoiding an 

arbitrary single calendar year as the only timeframe for determining a group’s major purpose.2

 

Instead, the Commission’s reason to believe determination properly hinged on Freedom Vote’s 

campaign activity over a multi-fiscal year timespan: 2014 through 2017. 

Third, unlike several recent enforcement recommendations,3

 the Commission (by a 4-0 

vote) applied a properly tailored major purpose analysis to include only Freedom Vote’s 

payments for express advocacy communications and contributions to groups that only make 

express advocacy communications. These payments fall squarely within the bright-line category 

of “campaign-related” spending the Supreme Court described in Buckley and FEC v. 

Massachusetts Citizens for Life, Inc. Thus, the Commission’s categorization of Freedom Vote’s 

independent expenditures (by definition express advocacy communications) and contributions to 

SuperPACs (i.e., independent expenditure-only committees) as being indicative of having the 

major purpose of nominating or electing federal candidates was entirely consistent with Buckley, 

MCFL, and appellate court interpretations of the major purpose test.4 The F&LA does not adopt 

                                                            

2

 See, e.g., MUR 5751 (The Leadership Forum) (2002 through 2006); MUR 5365 (Club for Growth, Inc.) 

(2000 to 2004); MUR 3669 (Christian Coalition) (1990 through 1994); MUR 2804 (AIPAC) (1983 to 1992); see 

also CREW v. FEC, 209 F. Supp. 3d 77,94 (D.D.C. 2016) (reasonable for the Commission to consider organization’s 

“full spending history”); Akins v. FEC, 736 F. Supp. 2d 9, 20 (D.D.C. 2010) (considering organization’s “focus on 

lobbying for more than forty years”); FEC v. Malenick, 310 F. Supp. 2d 230, 233 (D.D.C. 2004); FEC v. GOPAC, 

917 F. Supp. 851, 862-66 (D.D.C. 1996). 

3

 See, e.g., MUR 7513 (Community Issues Project), First Gen. Counsel’s Rpt. (“FGCR”) at 9, 14; MUR 

7479 (KAIRC PAC), FGCR at 14 n.57; MUR 7465 (Fighting for Ohio Fund, et al.), FGCR at 11 n.35. 

4

 MUR 7465 (Freedom Vote, Inc.), F&LA at 9-10. See, e.g., Wisconsin Right to Life, Inc. v. Barland, 751 

F.3d 804, 811 (7th Cir. 2014) (“campaign-finance regulation must be precise, clear, and may only extend to speech 

that is “unambiguously related to the campaign of a particular federal candidate.”) (quoting Buckley v. Valeo, 424 

U.S. 1 (1976)); id. at 839 (“Buckley held that independent groups not engaged in express election advocacy as their 

major purpose cannot be subjected to the complex and extensive regulatory requirements that accompany the PAC 

designation.”); Real Truth About Abortion v. FEC, 681 F.3d 544, 557 (4th Cir. 2012) (Commission’s assessment of 

relevant spending not foreclosed from including only those communications that expressly advocate as weighing in 

favor of political committee status); New Mexico Youth Organized v. Herrera, 611 F.3d 669, 676 n.4 (10th Cir. 

2010) (defendant-appellant “argued that the Supreme Court in its recent decision in [Citizens United] abandoned this 

‘unambiguously campaign related’ standard. Although that opinion left many issues unresolved, we believe that 

requirement—that for a regulation of campaign related speech to be constitutional it must be unambiguously 

campaign related standard—as it pertains to this case [involving construction of New Mexico’s political committee 

statute] has not been changed.”); North Carolina Right to Life v. Leake, 525 F.3d 274, 281-82 (4th Cir. 2008) (“To 

date, the Court has only recognized two categories of activity that fit within Buckley’s unambiguously campaign 

related standard”); id. at 280-90 (4th Cir. 2008) (statute defining “political committee” to require having the “major 

purpose” to “support or oppose” the nomination or election of candidates was unconstitutional because it “extends 

beyond both ‘express advocacy’ and its ‘functional equivalent’”); North Carolina Right to Life, Inc. v. Bartlett, 168 

F.3d 705, 708, 712 (1999) (interpreting Buckley’s formulation of nominating, electing, or defeating specific 

candidates as being synonymous with express advocacy). Recently however, one district court held that spending 

on “electioneering communications” is presumptively campaign related, and articulated a new multifactor test for 

MUR746500240
MUR 7465 (Freedom Vote, et al.) 

Concurring Statement of Commissioner Caroline C. Hunter 

Page 3 of 4 

a facts-and-circumstances-like test for counting spending indicative of being for the purpose of 

nominating or electing federal candidates. Nor does the F&LA approve of sweeping all 

“political” spending as determined by the IRS5

 into the Commission’s jurisdiction via analysis of 

a group’s “major purpose.”6

 

 Fourth, the F&LA correctly points out that “the Commission’s major purpose analysis 

has always focused on the proportion of its spending related to ‘Federal campaign activity’ (i.e., 

the nomination or election of a Federal candidate) . . . rather than its amount.”7 The F&LA’s 

analysis of Freedom Vote’s campaign spending makes clear that the requisite proportion must 

exceed fifty percent in order to be considered the group’s major purpose.8 That analysis is 

consistent with multiple federal court decisions interpreting Buckley’s major purpose test.9 

                                                            

assessing the “rare exception” when “under Buckley” such spending is not “election-related.” See CREW v. FEC, 

299 F. Supp. 3d 83, 97 (D.D.C. 2018). When the Commission found reason to believe in this matter, however, the 

record did not involve electioneering communications, and in any event I have already articulated the reasons why I 

believe the district court’s decision — which has not yet had the chance for appellate review— was in error. See 

Statement of Chair Caroline C. Hunter and Commissioner Matthew S. Petersen on CREW v. FEC, No. 16-CV02255, https://www.fec.gov/resources/cms-content/documents/3117_001_v2.pdf. 

5

 The IRS utilizes a non-exhaustive multifactor test for determining what counts as “political campaign 

intervention.” See Rev. Rul. 2007-41; Rev. Rul. 2004-6. 

6

 Over and over again, the Commission has been prohibited from using vague facts and circumstances-like 

tests to regulate individuals and groups engaged in political speech. Compare Citizens United v. FEC, 558 U.S. 310, 

334-336 (2010) (citing FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007) (“First Amendment standards 

must eschew the open-ended rough-and-tumble of factors, which invit[es] complex argument in a trial court and a 

virtually inevitable appeal.”)(internal quotations omitted)), with Rev. Rul. 2007-41; Rev. Rul. 2004-6 (“All the facts 

and circumstances must be considered to determine whether an expenditure for an advocacy communication relating 

to a public policy issue is for an exempt function [political campaign activity] under § 527(e)(2).”); see also Political 

Committee Status, 72 Fed. Reg. 5595, 5598 (Feb. 7, 2007) (“[t]he IRS ‘facts and circumstances’ test, if applied to 

FECA, clearly would violate the Supreme Court’s Constitutional parameters established in Buckley, and reiterated in 

MCFL and McConnell, that campaign finance rules must avoid vagueness”). See generally Laura W. Murphy, 

Director, and Marvin J. Johnson, Legislative Counsel, ACLU Letter to the IRS Expressing Concerns About Revenue 

Ruling 2004-6 with Regard to Political Speech and the Definition of What Is or Is Not an “Exempt Function”, 

https://www.aclu.org/letter/aclu-letter-irs-expressing-concerns-about-revenue-ruling-2004-6-regard-political-speechand (last visited June 25, 2020) (“[T]he ‘facts and circumstances’ test . . . is neither easily understood nor objectively 

determinable. . . . [a]s an ‘easily understood and objectively determinable’ alternative, we urge the IRS to use the 

‘express advocacy’ test”). 

7

 F&LA at 9 (emphasis added). 

8

 See id. (Commission could not credit FV’s assertions “that it never again crossed the 50% threshold”). 

9

 See Leake, 525 F.3d at 303 (4th Cir. 2008) (rejecting major purpose standard that could impose political 

committee burdens when the “majority of [a group’s] activity is not election related”); CREW v. FEC, 209 F. Supp. 

3d 77, 95 (D.D.C. 2016) (upholding application 50%-plus rule for determining group’s major purpose). 

MUR746500241
MUR 7465 (Freedom Vote, et al.) 

Concurring Statement of Commissioner Caroline C. Hunter 

Page 4 of 4 

* * * 

Because the F&LA in this matter applies an appropriately limited test for determining 

political committee status, I voted to support it. 

 July 2, 2020 

Caroline C. Hunter Date 

Commissioner 

MUR746500242