FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

February 5, 2024

AOR 2024-01 (Texas Majority PAC) Comment from CLC

Attached is AOR 2024-01 (Texas Majority PAC) Comment

from Campaign Legal Center. 

Attachment 
 February 2, 2024 

Lisa J. Stevenson, Esq. 

Acting General Counsel 

Federal Election Commission 

1050 First St. NE 

Washington, DC 20463 

ao@fec.gov 

Re: Advisory Opinion Request 2024-01 (Texas Majority PAC) 

Dear Ms. Stevenson: 

Campaign Legal Center (“CLC”) respectfully submits this comment on advisory 

opinion request (“AOR”) 2024-01, submitted to the Federal Election Commission (the 

“FEC” or “Commission”) by Texas Majority PAC (“TMP”), a nonfederal committee.1 

TMP proposes to pay for canvasses in coordination with federal candidates and 

campaigns. Specifically, TMP plans to pay vendors to “design and produce 

canvassing literature” and hire and train individuals to knock on voters’ doors, read 

a script, and hand out the literature.2 The literature and scripts will refer to federal 

candidates and include express advocacy.3 TMP contends that although it will 

“consult with federal candidates . . . on these paid canvassing programs,”4 this 

activity cannot be treated as coordinated expenditures—i.e., in-kind contributions—

to the participating candidates and campaigns.5

In reaching this faulty conclusion, TMP’s convoluted analysis ignores the simple fact 

that exempting entire categories of spending coordinated with federal candidates 

and campaigns from regulation as in-kind contributions fundamentally undermines 

the statutory text and purposes of the Federal Election Campaign Act (“FECA”), as 

1 See AOR 2024-01 (TMP) (Jan. 12, 2024), https://www.fec.gov/files/legal/aos/2024-

01/202401R_1.pdf (“AOR”). 

2 Id. at 2. 

3 Id. at 3. 

4 Id. 

5 See generally id. 
2

supported by the FEC’s longstanding regulatory framework for coordinated election 

spending. TMP’s proposed analytical framework also conflicts with a federal district 

court’s decision in Correct the Record (CLC v. FEC), and, moreover, TMP’s request 

arrives at its errant legal conclusion by misconstruing Commission precedent. For 

all of these reasons, as further explained below, the Commission should explicitly 

reject TMP’s invitation to effectively recognize a new and unregulated category of 

coordinated electoral spending that evades the contribution limits set forth in FECA. 

The Commission should conclude that at least some of the costs of TMP’s proposed 

“paid canvass” activity are in-kind contributions to the candidates and campaigns 

with which that activity is coordinated. 

TMP’s Request Contravenes FECA’s Text and Foundational Purposes 

FECA includes “anything of value” in its definition of “expenditure,”6 and it treats as 

contributions all “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.”7 Congress recognized the necessity of treating 

coordinated expenditures as contributions because to do otherwise would allow 

candidates and committees to circumvent FECA’s contribution limits and risk quid 

pro quo corruption.8 As the Supreme Court explained in Buckley v. Valeo, Congress 

carefully designed FECA to block “attempts to circumvent the Act through 

prearranged or coordinated expenditures amounting to disguised contributions.”9

TMP’s assertion that paid canvasses cannot be treated as coordinated expenditures 

thus conflicts with FECA’s unambiguous goal of treating all coordinated election 

spending as contributions. While FECA includes a few narrow exemptions for goods 

or services that cannot be treated as “contributions” or “expenditures,” there is no 

exemption for paid canvasses—and the Commission cannot create such an 

exemption when there is no basis in the statutory text, particularly when doing so 

would allow groups to make the sort of “disguised contributions” that Congress was 

concerned with policing.10 

A federal district court underscored this very conclusion in the Correct the Record 

litigation, rejecting the Commission’s position that all spending in support of 

“unpaid online communications” is exempt from treatment as coordinated 

expenditures: 

To state the obvious: the Commission’s opinion would 

create a loophole . . . through which a truck could drive. 

Its self-described “bright-line rule” excluding from 

6 52 U.S.C. § 30101(9)(A)(i). 

7 Id. § 30116(a)(7)(B)(i). 

8 See Shays v. FEC, 414 F.3d 76, 97 (D.C. Cir. 2005) (“Without a coordination rule, 

politicians could evade contribution limits and other restrictions by having donors finance 

campaign activity directly.”). 

9 Buckley v. Valeo, 424 U.S. 1, 47 (1976). 

10 See id. 
3

regulation any input to an unpaid online communication 

would seemingly allow any coordinated expenditure to 

escape treatment as a contribution, so long as that 

expenditure somehow informs a blog post or improves a 

tweet. This massive expansion . . . that essentially 

swallows the rule cannot stand.11

The same reasoning would clearly apply to TMP’s proposal; if one were to replace 

“unpaid online communication” with “canvass,” and “blog post” and “tweet” with 

“door knock” and “flier,” it is obvious that the court would reject TMP’s request to 

bundle a wide variety of coordinated expenditures as an unregulated 

communication. A canvass openly coordinated with a candidate is precisely the type 

of “wholesale coordinated [] operation” that Correct the Record warned must be 

treated as an in-kind contribution.12 TMP’s request completely ignores the 

animating principle of FECA as explained in the Correct the Record decision: whole 

categories of expenses cannot simply be removed from the purview of FECA’s 

coordination framework. 

Commission Precedent Does Not Support TMP’s Position 

that Paid Canvassing is Not a “Public Communication” 

TMP’s request also misreads Commission precedent to arrive at a flawed legal 

conclusion. The request argues that canvassing literature and scripts are not “public 

communications” based largely on Advisory Opinion 2022-20 (Maggie for NH), which 

TMP wrongly claims established “a three-part test” for determining whether a 

communication is “general public political advertising”13—the last of the enumerated 

types of “public communication” set forth in FECA.14 It asserts that, pursuant to the 

test, a communication is “general public political advertising” if an “intermediary” 

distributes the communication, and then provides a detailed explanation of why a 

political committee’s vendor—as an agent of the committee—does not meet the 

specific definition of the term “intermediary.”15 However, the Commission never 

even used the specific term “intermediary” in Advisory Opinion 2022-20, nor did the 

opinion set out “a three-part test” for general public political advertising;16 all of this 

is just TMP’s gloss on the opinion. 

Indeed, Advisory Opinion 2022-20 simply states that “the listed forms of ‘general 

public political advertising’ [in FECA] share several common elements, one of which 

is that they typically require the person making the communication to pay to use a 

third party’s platform to gain access to the third party’s audience,” using as an 

illustrative example “when a political committee places an advertisement in a 

11 CLC v. FEC, 646 F. Supp. 3d 57, 64 (D.D.C. 2022). 

12 See id. at 65. 

13 See AOR at 5–6. 

14 52 U.S.C. § 30101(22); see 11 C.F.R. § 100.26. 

15 AOR at 5–6. 

16 See Advisory Op. 2022-20 (Maggie for NH).
4

newspaper[.]”17 The Commission determined that the activities at issue in Advisory 

Opinion 2022-20—text messages sent to a list of voters who affirmatively opted-in to 

receive those messages—did not constitute “general public political advertising” and 

thus were not “public communications.”18 It stated that the text messages were 

similar to communications posted on a committee’s own website, which the 

Commission had previously declared were not “public communications,” and that the 

common thread between these “non-public communications” is that the audience 

“sought out the speaker and speech through a forum controlled by the speaker.”19 

TMP’s proposed canvass program clearly involves paying a third party (the vendor 

providing the canvassing service) to distribute the messages contained in the 

canvassing literature and script to an audience who “may have little to no interest in 

receiving the communication.”20 A canvass, where people are showing up to voters’ 

doors without the voters’ prior consent, is markedly different from opted-in text 

messages and communications on a committee’s own website, and is thus more like 

a paid ad in a newspaper or digital medium. Accordingly, Advisory Opinion 2022-20 

does not support TMP’s position that a canvass should be included among the types 

of communicative activity that are not “public communications.” 

TMP’s Position on Bundling “Input Costs” Related to 

a Communication Contravenes Correct the Record 

TMP also errs in arguing that all expenses related to a communication must be 

bundled together and analyzed under 11 C.F.R. § 109.21.21 Indeed, the federal 

district court in Correct the Record rejected that very argument, explaining that 

FECA would have no teeth if “political committees could avoid reporting (and 

therefore limiting) almost any coordinated expenditure merely by” making a 

communication “that purports to rely on that expenditure as an ‘input cost.’”22 A 

more recent court case, Common Cause Georgia v. FEC, also implicitly rejected that 

bundling framework.23 TMP’s proposal would sweep in as an “input cost” almost 

every conceivable expense attending a communication and would therefore lead to 

the same outcome that one federal district court has already declared unlawful and 

another has refused to embrace. 

17 Id. at 4. 

18 Id. at 5. 

19 Id.

20 See id. 

21 See AOR at 8–12. 

22 CLC, 646 F. Supp. 3d at 64. 

23 See Mem. Op., Common Cause Ga. v. FEC, Case No. 22-cv-3067 (Sep. 29, 2023), 2023 WL 

6388883, https://www.fec.gov/resources/cms-content/documents/usdcdc-mem-opinion-09-29-

2023.pdf. The court concluded that it was unreasonable for a controlling bloc of the 

Commission to conclude that a nonprofit group’s “election integrity” program, which included 

expenditures for “a voter hotline, ballot-curing support, signature verification training, [and] 

absentee ballot drop box monitoring,” was not coordinated with a political party. Id. at *2, 

*7–*8. The court did not exempt any of those activities because the “election integrity” 

program involved some communications with voters. See id. 
5

Finally, TMP’s request is conspicuously silent on how staff salaries must be 

categorized in connection with its staffers’ work on the proposed coordinated 

canvassing program. TMP explicitly states that its “paid staff” will “manage” the 

vendors hired to design and produce the canvassing literature and to recruit and 

train the canvassers.24 The paid staff will also select the voters whose homes the 

canvassers will visit.25 But under Correct the Record, staff salaries are an input cost 

that must be analyzed separately under 11 C.F.R. § 109.20; the court specifically 

listed “salaries” as one of the “far broader categories of expenses” that is “far less 

directly connected to a specific . . . communication” to be bundled together with the 

costs of the communication.26 As such, any staff salary expense supporting TMP’s 

coordinated canvassing program must be analyzed under section 109.20, resulting in 

an allocated in-kind contribution to the candidate or committee that the canvass is 

coordinated with. 

Conclusion 

TMP’s analysis is severely flawed, and its desired outcome undermines FECA’s text 

and basic purposes. Exempting entire categories of coordinated activity from 

treatment as in-kind contributions is plainly contrary to law. The fact that a federal 

district court reached the same conclusion in a similar context makes that 

conclusion all the more obvious. TMP plans to pay for a series of expenses to produce 

and print fliers, and hire and train canvassers, and it wants to do so in open 

coordination and consultation with federal candidates and campaigns. Any 

reasonable reading of FECA and the federal judicial opinions interpreting it must 

conclude that at least some of those expenses are coordinated expenditures and thus 

in-kind contributions to the candidates. 

Respectfully submitted, 

 /s/ Saurav Ghosh 

Saurav Ghosh 

Campaign Legal Center 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

24 AOR at 2. 

25 Id. 

26 CLC v. FEC, 466 F. Supp. 3d 141, 157 (D.D.C. 2020).