1 

FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) MUR 7790 

John James; John James for Senate and ) 

Timothy Caughlin in his official capacity ) 

as treasurer ) 

 

STATEMENT OF REASONS OF CHAIRMAN ALLEN DICKERSON AND

COMMISSIONERS SEAN J. COOKSEY AND JAMES E. “TREY” TRAINOR, III

The Complaint in this matter alleges that John James—then the Republican candidate for 

U.S. Senate from Michigan in the 2020 election—and his principal campaign committee, John 

James for Senate and Timothy Caughlin in his official capacity as treasurer, violated the softmoney ban of the Federal Election Campaign Act of 1971, as amended (the “Act”), by releasing 

an internal campaign memorandum to the news organization Politico. According to the Complaint, 

the memorandum solicited expenditures supporting his campaign from outside organizations, in 

violation of 52 U.S.C. § 30125(e)(1). The Respondents denied the allegations. 

All six Commissioners agreed that the Complaint’s allegations should be dismissed.1 But 

in reaching that conclusion, Commissioners relied on different legal reasoning, and we publish this 

statement to explain the basis for our votes. 

I. Factual Background

In August 2020, the website Politico published as part of a news story a confidential James 

campaign memorandum addressed to the campaign’s finance and steering committees.

2 The memo 

provided the recipients with an update on the state of the race and focused on James’s recent 

fundraising numbers and cash on hand. It also touted recent public and internal polls showing the 

race between James and his opponent to be close.3 

1

 Certification (June 23, 2022), MUR 7790 (John James, et al.). 

2

 Complaint at 2 n.8 (Sept. 8, 2020), MUR 7790 (John James, et al.) (linking to John James for Senate, 

Memo Re: CONFIDENTIAL Two polls show MI Senate Race Tighten to Just Outside Margin of Error (Aug. 17, 

2020), https://www.politico.com/f/?id=00000173-fdf9-d721-a57f-fffb38060000) (“James Campaign Mem.”)); 

Response at 1 (Sept. 29, 2020), MUR 7790 (John James, et al.) (“On August 17, 2020, the James campaign sent an 

internal memorandum, titled ‘CONFIDENTIAL: Two polls show MI Senate Race Tighten to Just Outside Margin of 

Error’ to the John James for Senate Steering and Finance Committees ... This memo was subsequently leaked to and 

published by Politico.”).

3

 James Campaign Mem. 

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2 

The memorandum further observed the presence of outside groups making expenditures in 

the race, noting that an organization called “Duty and Honor” was spending $1.6 million against 

James “with no corresponding conservative ally on the air against Gary Peters.”4 The final 

paragraph of the memorandum stated: 

John James is in a strong position to win this race. James has 

strong poll numbers, outstanding messaging, fantastic fundraising, 

solid cash on hand, and is a tremendous candidate. With the proper 

resources, John James is poised to become the next U.S. Senator 

from Michigan.5

The Complaint generally argues that the memorandum violates 52 U.S.C. § 30125(e)(1)

because it is a solicitation for “proper resources” from an outside organization—meaning that the 

campaign wanted others to make expenditures in support of the campaign or against its opponent.6

It further argues that the campaign made the solicitation because it must have intentionally leaked

the memo to the media to communicate the request.7 The Respondents argue that the Complaint 

fails to properly allege a soft-money violation, that the memo does not make a solicitation, and 

that there is no evidence the campaign intentionally provided the memorandum to Politico.

8

II. Legal Analysis 

The Act prohibits federal candidates, federal officeholders, their agents, and entities 

established, financed, maintained, or controlled by federal candidates or officeholders from 

soliciting or directing funds outside “the limitations, prohibitions, and reporting requirements” of 

the Act in connection with a federal election.9 For purposes of the soft-money prohibition, an 

“agent” of a federal candidate or officeholder is “any person who has actual authority, either 

express or implied,” to engage in any of the following activities on behalf of that candidate or 

officeholder: “solicit[ing], receiv[ing], direct[ing], transfer[ing], or spend[ing] funds in connection 

with any election.”10

The Complaint’s theory of a soft-money solicitation is wrong for at least three reasons. 

First, the memorandum does not meet the legal requirements of a solicitation. Under Commission 

regulations, “to solicit means to ask, request, or recommend, explicitly or implicitly, that another 

person make a contribution, donation, transfer of funds, or otherwise provide anything of value.”11

4

 Id. 

5

 Id. (emphasis in original). 

6

 Complaint at 2–5 (Sept. 8, 2020), MUR 7790 (John James, et al.).

7

 Id. at 3.

8

 Response at 1–3 (Sept. 29, 2020), MUR 7790 (John James, et al.).

9

 52 U.S.C. § 30125(e)(1).

10 11 C.F.R. § 300.2(b)(3).

11 11 C.F.R. § 300.2(m). 

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The same regulation goes on to state that “[a] solicitation does not include mere statements of 

political support or mere guidance as to the applicability of a particular law or regulation.”12 The 

Commission’s understanding of solicitation is further informed by background principles of 

criminal law for the same offense.13

Nothing in the memorandum asks, requests, or recommends that anyone contribute or 

spend money. Taken as a whole, the memo instead provides a brief descriptive update to inform 

key supporters about the state of the campaign, focusing especially on fundraising numbers and

two recent polls showing a neck-and-neck race.14 The ultimate paragraph on which the Complaint 

focuses contains nothing that can be reasonably construed as a request for financial support, but 

only declarative statements or predictions: “With the proper resources, John James is poised to 

become the next U.S. Senator from Michigan”15 is a categorically different sentence than a 

solicitation like, “Please donate today to help John James win this election.”16 And nothing else 

about the memorandum, such as the fact that it was sent to the James campaign’s own finance and 

steering committees, causes these statements to be reasonably construed as solicitations. Without 

the necessary element of an ask or request, the memo is not a solicitation, and the Complaint’s 

theory fails. 

Second, even if the memorandum were a solicitation, it is not a solicitation of soft money. 

The internal memo was directed to members of the campaign—many of them presumably hardmoney donors to James already. The Complaint’s assertion that the memorandum “states that the 

James campaign wants a ‘corresponding conservative ally’”17 is wrong—the memorandum does 

not explicitly say that. The use of the term “proper resources” does not necessarily refer to

contributions or spending outside the limitations, prohibitions, and reporting requirements of the 

Act, nor does any part of the memorandum mention or gesture at a request for soft money.

18

Consequently, even if one concluded that the memo was a solicitation, the plainest reading is that 

it was a lawful one to campaign supporters. 

Third, even assuming arguendo that the memorandum constituted a solicitation, there is no 

evidence it was communicated by James, the campaign, or an agent thereof, which is necessary to 

substantiate a violation of § 30125(e).19 The memorandum was marked as confidential, and as the 

12 Id.

13 See Factual & Legal Analysis for Great America PAC at 8 & n.23 (Mar. 2, 2021), MURs 7165 and 7196 

(Great America PAC).

14 James Campaign Mem. 

15 Id. 

16 See, e.g., 11 C.F.R. § 300.2(m)(2)(i) (providing the example “Please give $100,000 to Group X” as a 

statement constituting a solicitation). 

17 Complaint at 5 (Sept. 8, 2020), MUR 7790 (John James, et al.).

18 James Campaign Mem.

19 See 11 C.F.R. § 300.2(m) (“[T]o solicit means to ask, request, or recommend, explicitly or implicitly, that 

another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.”) (emphasis 

added). 

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Respondents correctly point out, nothing in the record indicates how Politico obtained the memo.20

Without evidence that a covered individual actually conveyed the message at issue, there is no 

“communication” and thus no solicitation. Like writing a letter but never putting it in the mail, a 

request that is never delivered is not a completed solicitation under the Act, and there is no liability 

under the Act for attempted violations.21

Any one of the foregoing reasons independently defeats the Complaint’s allegations of a 

soft-money solicitation. For all three reasons, we voted to dismiss the Complaint’s allegations.22

__________________________________ July 21, 2022 

Allen Dickerson Date

Chairman

_________________________________ July 21, 2022 

Sean J. Cooksey Date

Commissioner

_________________________________ July 21, 2022 

James E. “Trey” Trainor, III Date

Commissioner

20 James Campaign Mem.; Response at 3 (Sept. 29, 2020), MUR 7790 (John James, et al.).

21 See FEC v. Swallow, 304 F. Supp. 3d 1113, 1115–16 (D. Utah 2018) (holding that the Commission 

exceeded its statutory authority in promulgating a regulation imposing secondary liability for aiding and abetting 

contributions in the name of another).

22 Certification (June 23, 2022), MUR 7790 (John James, et al.). 

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