FEDERAL ELECTION COMMISSION 

Washington, DC 

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT: 

The Commission 

Office of the Commission Secretary VFV

November 1, 2023

AO 2023-06 (Texas Majority PAC) Comment

Attached is a comment received from Elias Law Group regarding AO 2023-06 

This matter is on November 2, 2023 Open Meeting Agenda.

 

Attachment
250 Massachusets Ave NW, Suite 400 | Washington, DC 20001

November 1, 2023 

Federal Election Commission

Office of the General Counsel

Federal Election Commission

1050 First Street, NE 

Washington, DC 20463

ao@fec.gov

Re: Advisory Opinion Request 2023-6 

Dear Acting General Counsel Stevenson: 

We write on behalf of Texas Majority PAC (“TMP”) regarding Drafts A and B in response to 

Advisory Opinion Request 2023-6. We appreciate the Federal Election Commission's 

(“Commission’s”) careful consideration of TMP’s request and agree with most of the legal 

framework set forth in Draft A. 

However, the Commission should reconsider its classification of certain Paid Canvassing 

expenses as non-communication expenditures.1

 

First, the proposed classification of “hiring and training paid canvassers” and managing paid 

canvassers as non-communication expenditures conflicts with the Commission’s precedents and 

its current reporting instructions. Because these expenditures are necessary to efficiently

distribute the canvassing communications, they qualify as core distribution costs. They are 

directly tied to particular communications and cannot be repurposed for any non-communicative 

use. They are plainly “direct inputs or components” of that communication. Not recognizing 

them as such in this context would open the door for distribution costs (e.g., payments to 

television ad buyers) to be classified as non-communication expenditures (contributions) in other 

contexts as well – most notably, other communications (e.g., non-express advocacy 

communications) that fail the content prong. That would upend the regulated community’s 

longstanding reliance on Section 109.21 as the arbiter of how communications are regulated. 

Second, Draft A’s additional proposed classifications – for “hiring vendor consultants” and 

“creating and managing a canvass questionnaire” – appear to assume facts that are not in TMP’s 

request or supplemental materials. Due to the lack of detail about which expenses comprise these 

1 We incorporate the same definition of “Paid Canvass” from our Advisory Opinion Request herein.
November 1, 2023

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broader categories, TMP cannot discern from Draft A which expenses would qualify as noncommunication expenditures (contributions) and which would qualify as communication 

expenditures (not contributions). To the extent the Commission needs additional itemization of 

the paid canvassing vendor’s expenses to render an opinion, TMP is happy to provide that 

additional detail and allow the Commission additional time to consider the request. We recognize 

that there are novel aspects to this request and it is important to spend the time to get it right.

I. The costs necessary to efficiently distribute a canvassing communication are direct 

inputs or components of the canvassing communication.

We agree with most of the legal framework set forth in Draft A. 

For twenty years, the Commission has drawn a clear line between the communications it 

regulates and the communications it does not. It did so by promulgating 11 C.F.R. § 109.21 and, 

led by the Office of General Counsel and defended by Commission majorities, adhering closely 

to the principle (set forth in the regulation’s Explanation and Justification) that 11 C.F.R. § 

109.20 “addresses expenditures that are not made for communications but that are coordinated 

with a candidate, authorized committee, or political party committee.”2 Section 109.21, in turn, 

carefully distinguishes between electoral speech and nonelectoral speech, eliminating the 

uncertainty that plagued the regulated community during the Christian Coalition era and 

replacing it with a relatively clear set of rules.

The defense of Section 109.21 as the regulation governing coordinated communications has 

rested on two pillars: (1) distinguishing between public communications and other 

communications; and (2) defining communication expenditures with sufficient breadth to allow 

speakers to produce effective communications and efficiently distribute them to voters. 

Draft A is consistent with the first pillar. For the reasons set forth in our request and 

supplemental materials, we agree with Draft A’s conclusion that the Paid Canvass does not 

involve “public communications,” does not satisfy the content prong of the coordinated 

communications test, and is not a “coordinated communication.” Draft B, in our view, diverges 

sharply from the text of the Commission’s regulations and its longstanding precedents in finding 

that canvassing communications are “public communications.” We also agree with Draft A’s 

conclusion that “TMP seeks to make expenditures ... for canvassing communications.”

Draft A’s proposed analytical framework is consistent with the second pillar: to ask whether 

expenses are “for canvassing communications themselves” or are “sufficiently direct inputs or 

components of the canvassing communications to be considered part of those communications.” 

But where Draft A errs – and, in our view, errs with significant potential consequences for the 

regulated community – is in expressly classifying “hiring and training paid canvassers” and 

implicitly classifying the managing of paid canvassers as non-communication expenditures. That 

2 Coordinated and Independent Expenditures, 68 Fed. Reg. 421, 425 (Jan. 3, 2023) (emphasis added).
November 1, 2023

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undermines the second pillar that has undergirded the Commission’s regulatory scheme: defining 

communication expenditures with sufficient breadth to allow speakers to produce effective 

communications and efficiently distribute them to voters. 

A. Distribution costs are direct inputs or components of the canvassing communication.

Communication expenditures fall into two general categories: production costs and distribution 

costs. The cost of a television or radio ad includes the amounts paid to the media consultant to 

create and produce the ad; it also includes the amounts paid to television stations to place it and 

to the buyer for managing the distribution process. The cost of a mailer includes the amounts 

paid to the mail vendor to create and produce the mail piece; it also includes the amounts paid to 

the U.S. Postal Service (“USPS”) to deliver it and to the mail vendor for managing that 

distribution process. Every medium of communication – whether public communication or nonpublic communication – follows this pattern.

The Commission’s electioneering communications regulation mirrors this two-part cost 

construct, defining the “[d]irect costs or producing or airing electioneering communications” to 

include “(i) [c]osts charged by a vendor, such as studio rental time, staff salaries, costs of video 

or audio recording media, and talent” (production costs) and “[t]he cost of airtime on broadcast, 

cable or satellite radio and television stations, studio time, material costs, and the charges for a 

broker to purchase the airtime” (distribution costs).3 The Commission’s Form 5 and Form 9 

instructions likewise instruct the regulated community to report production costs and distribution 

costs.4 And to the extent that Commission regulations exempt a particular type of 

communication from the definition of “contribution” or “expenditure,” that exemption typically 

covers both production and distribution costs. For example, Commission regulations exempt 

“[t]he payment by a State or local committee of a political party of the costs of preparation, 

display, or mailing or other distribution incurred by such committee with respect to a printed 

slate card ....”5

In a recent case involving the activities of Correct the Record, the Commission and federal courts 

have grappled with defining when production costs associated with an exempt communication

are sufficiently direct to be treated as communication expenditures. In resolving the Correct the 

Record matter at the administrative level, a controlling group of Commissioners relied largely on 

3 11 C.F.R. § 104.20(a)(2)(i) – (ii). 4 See FEC Form 5 Reporting Instructions, available at https://www.fec.gov/resources/cmscontent/documents/policy-guidance/fecfrm5i.pdf (requiring disclosure of “purchases of radio/television 

broadcast/cable time, print advertisements and related production costs.”); FEC Form 9 Reporting Instructions, 

available at https://www.fec.gov/resources/cms-content/documents/fecfrm9i.pdf (requiring speakers to disclose “(1) 

costs charged by a vendor (e.g., studio rental time, staff salaries, costs of video or audio recording media and talent) 

or (2) costs of airtime on broadcast, cable and satellite radio and television stations, studio time, material costs and 

the charges for a broker to purchase the airtime.”).

5 11 C.F.R. § 100.80.
November 1, 2023

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the principle – articulated in a 2013 matter involving Congressman Akin and unpaid Internet 

communications – that “[t]he Commission has narrowly interpreted the term Internet 

communication ‘placed for a fee,’ and has not construed that phrase to cover payments for 

services necessary to make an Internet communication.”6

But the court adjudicating the Commission’s administrative dismissal found the Akin matter to 

be inapposite. In remanding the Correct the Record matter to the Commission for resolution, the 

court warned that such an exemption must be “meaningfully bounded” to avoid abuse.7 It was 

insufficient, in the court’s view, for an expense to merely be an “input” to an exempt

communication; instead, such expenses must be “themselves communications or sufficiently 

direct components of communications to be exempt.”8 Across multiple opinions, the court then 

articulated two principles to guide the Commission on remand. First, the court noted that the 

expenses in the matter before it “are far broader categories of expenses, and far less directly 

connected to a specific unpaid internet communication, than email-list rentals and donationprocessing software purchased to enable email blasts.”9 Second, the court warned against 

exempting production expenses that “can just as easily be used to produce [nonexempt] versus 

[exempt] communications.”10 Stated affirmatively, the costs must bear a direct connection to a 

specific communication and should not be easily repurposed for a non-communicative use.

Notably, the Correct the Record matter involved production costs rather than distribution costs.

The distinction is significant and one not acknowledged in Draft A. Unlike production costs –

which can be repurposed for a non-communicative purpose – distribution costs are necessarily

“directly connected to a specific ... communication.” The buying of a 30-second commercial 

block is directly connected to the 30-second television ad that airs in the block; the purchase of 

postage to send a mailer is directly connected to the mailer on which the postage is affixed; and 

the payment to individuals to deliver canvassing literature and the organization’s message is 

directly connected to those canvassing communications. There can be no re-purposing of such 

expenses for non-communicative use. That is why, to our knowledge, neither the Commission 

nor any federal court has questioned whether the expenses associated with distributing a 

communication are “sufficiently direct components of communications” to be exempt. And the 

regulated community, until now, has relied on that presumption in structuring its communication 

programs.

B. The costs of hiring, training, and managing canvassers is a core distribution cost that 

is a sufficiently direct input or component of the canvassing communications.

6 Factual and Legal Analysis, FEC Matter Under Review 6657 (Akin for Senate) (Sept. 17, 2013), at 3-4. 7 Campaign Legal Ctr. v. Fed. Election Comm'n, 646 F. Supp. 3d 57, 64 (D.D.C. 2022) (“CLC V”). 8 Id.

9 Campaign Legal Ctr. v. Fed. Election Comm'n, 466 F. Supp. 3d 141, 157 (D.D.C. 2020) (“CLC II”), on 

reconsideration in part, 507 F. Supp. 3d 79 (D.D.C. 2020) (“CLC III”), rev'd and remanded, 31 F.4th 781 (D.C. Cir. 

2022) (“CLC IV”). 10 CLC V, 646 F. Supp. at 65. 
November 1, 2023

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As Draft A acknowledges, the Paid Canvass includes expenditures for canvassing 

communications. To put a finer point on it, the Paid Canvass includes two such communications: 

(1) the literature that individual canvassers physically deliver to voters, and (2) the oral message 

that canvassers verbally deliver to voters. The canvasser distributes both canvassing 

communications. Therefore, the costs associated with the canvassers (along with any costs to 

transport the literature and the canvasser) are the distribution costs associated with any 

canvassing communications. They are analogous to the cost of television or radio airtime, 

advertising space in a newspaper or magazine, USPS postage for a mail piece, and payments to 

vendors to manage the distribution process. All such expenses are necessary to distribute the 

underlying communication. All such expenses are directly connected to specific 

communications. And such expenses cannot be repurposed for non-communicative use.

Despite this, Draft A concludes that the costs of “hiring and training paid canvassers” are 

“supportive expenses” that “are not for canvassing communications themselves” and are “not 

sufficiently direct inputs or components of the canvassing communications to be considered part 

of those communications.” Draft A does not directly address whether the compensation of paid 

canvassers is a communication expenditure or a non-communication expenditure. If it falls into 

the latter category, however, the Commission is effectively concluding that no cost associated 

with distributing a canvassing communication is a communication expenditure. Such a ruling 

would contradict every Commission precedent that we have identified – all of which 

acknowledge that communications have distribution costs – and the Commission’s reporting 

instructions on Forms 5 and 9.

On the other hand, perhaps Draft A is drawing a distinction between compensating paid 

canvassers (communication expenditure) and hiring and training paid canvassers (noncommunication expenditure). But this distinction, too, finds no support in the Commission’s 

regulations or precedents. One cannot pay a canvasser without first hiring the canvasser; and it 

costs money to hire canvassers. And while TMP could theoretically send untrained canvassers to 

deliver their canvassing communications, no reasonable (or responsible) organization would

willingly do so. TMP’s trainings will be specific to the Paid Canvass and will train canvassers on

messaging: specifically, on TMP’s philosophy, the candidates it supports, and the most effective 

way to deliver messaging to TMP’s targets. The trainings serve no purpose other than facilitating

and effectuating TMP’s canvassing communications. They cannot be re-purposed for a noncommunicative use.

Draft A also concludes that paying a canvassing vendor is a non-communication expenditure. 

But the principal role of a canvassing vendor is to hire, train, and manage the paid canvassers. 

Retaining a canvassing firm is analogous to a political organization retaining a broker to 

purchase television airtime. The organization could buy the time itself but it chooses to retain a 

professional that specializes in the relevant communication or medium to more effectively 

manage the communication distribution process. Likewise, TMP could hire, train, and manage 
November 1, 2023

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paid canvassers itself but it instead prefers to outsource this task to an experienced vendor. The 

Commission’s regulations treat “the charges for a broker to purchase the airtime” as a “direct 

cost” of airing an electioneering communication.

11 There is no reasonable basis for the 

Commission to treat charges paid to a canvassing firm any differently.

II. Draft A classifies certain expenses as non-communication expenditures without 

sufficient information in the record to render such an opinion.

Draft A also concludes that the expenses associated with “hiring vendor consultants” and

“creating and managing a canvass questionnaire” are non-communication expenditures. As noted 

above, the principal role of a canvassing vendor is to hire, train, and manage the paid canvassers. 

To the extent the Commission has concerns regarding other responsibilities that a paid 

canvassing vendor may have – and any other compensation received for such duties – that 

information is not currently in the record. Likewise, TMP’s request makes no reference to a 

separate expense for “creating and managing a canvass questionnaire” and it is not standard for a 

canvassing firm to charge separately for it.

As the final paragraph of all Commission opinions note, the Commission’s response “constitutes 

an advisory opinion concerning the application of the Act and Commission regulations to the 

specific transaction or activity set forth in your request.” The current draft does not provide 

sufficient clarity on which expenses qualify as communication expenditures and which qualify as 

non-communication expenditures. To the extent that the Commission needs additional 

itemization of the paid canvassing vendor’s expenses to render an opinion, TMP is happy to 

provide that additional detail and allow the Commission additional time to consider the request.

III. Conclusion

It is important that the Commission get this opinion right. Prior to its promulgation of 11 C.F.R. 

§ 109.21, the Commission – and, by extension, the regulated community – struggled to define 

which types of communications qualify as “coordinated communications.” By adhering to a clear 

distinction between communication expenditures and non-communication expenditures, the 

Commission has provided clear guidance to the regulated community about what is regulated 

and what is not. While the class of communication expenditures must be “meaningfully 

bounded” to avoid abuse,12 its confines should not be so cramped to weaken Section 109.21’s 

primacy in regulating coordinating communications.

The current version of Draft A would fundamentally change the ability of the regulated 

community to rely on Section 109.21, opening the door for a future Commission or court to find 

that expenses associated with distributing an exempt communication are “non-communication 

11 11 C.F.R. § 104.20(a)(2)(ii). 12 CLC V, 646 F. Supp. 3d at 64.
November 1, 2023

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expenditures” governed by Section 109.20. For example, if an organization airing coordinated, 

non-express advocacy ads more than 90 days before a congressional election hires a broker to 

purchase airtime, must that organization worry whether the broker costs will be deemed 

“coordinated expenditures”? What if the same organization hires a consultant to manage digital 

ad inventory more efficiently for a similar program more than 120 days before a presidential 

election – would those expenses be deemed “coordinated expenditures”? 

How the Commission defines communication expenditures in this context will affect how future 

Commissions and courts will interpret the same term in other contexts. It will also meaningfully 

change how the regulated community currently understands Commission rules and structures its 

communication programs. 

Yours truly,

Jonathan Berkon

Courtney Weisman

Sarah Mahmood

Counsel for Texas Majority PAC