FEDERAL ELECTION COMMISSION

Washington, DC 20463 

August 24, 2022 

MEMORANDUM

TO: The Commission

FROM: Lisa J. Stevenson 

Acting General Counsel

Neven F. Stipanovic 

Associate General Counsel

Robert M. Knop 

Assistant General Counsel

Cheryl A. Hemsley

Attorney 

Subject: Draft AO 2022-16 (DSCC/DNC) Draft A

Attached is a proposed draft of the subject advisory opinion. 

Members of the public may submit written comments on the draft advisory opinion. We 

are making this draft available for comment until 12:00 pm (Eastern Time) on August 30, 

2022. 

Members of the public may also attend the Commission meeting at which the draft will 

be considered. The advisory opinion requestor may appear before the Commission at this

meeting to answer questions. 

For more information about how to submit comments or attend the Commission meeting,

go to https://www.fec.gov/legal-resources/advisory-opinions-process/.

Attachment

AGENDA DOCUMENT NO. 22-40-A

AGENDA ITEM 

For meeting of August 31, 2022 
1 ADVISORY OPINION 2022-16

2

3

4 Graham M. Wilson, Esq. 

5 Jacquelyn K. Lopez, Esq. 

6 Johnathan A. Peterson, Esq. DRAFT A

7 Andrea T. Levien, Esq. 

8 Zachary P. Morrison, Esq. 

9 Elias Law Group 

10 10 G Street NE, Suite 600 

11 Washington, DC 20002

12

13 Dear Counsel:

14 We are responding to your advisory opinion request on behalf of the Democratic 

15 Senatorial Campaign Committee and the Democratic National Committee Services 

16 Corporation/Democratic National Committee (collectively, the “Committees”),

17 concerning the application of the Federal Election Campaign Act, 52 U.S.C. §§ 30101-45

18 (the “Act”), and Commission regulations to the Committees’ proposed retention and use 

19 of contributions that were untimely deposited into the Committees’ bank accounts by the 

20 Committees’ “contribution caging vendor” (the “Vendor”).

21 The Commission concludes that the Committees may retain and use the late22 deposited contributions because the delay in depositing them resulted from events that 

23 were outside of the Committees’ and the Vendor’s control, the Committees took prompt 

24 remedial action after discovering the untimely deposits, and there was no evidence of ill 

25 intent on the part of the Vendor. 

26 Background

27 The facts presented in this advisory opinion are based on your letter received on

28 June 28, 2022.
AO 2022-16 

Draft A 

Page 2

The Committees are national party committees.1 1 For over 12 years, the 

Committees have each contracted with and received services from the “Vendor”.2 2 Under 

the Committees’ contracts with the Vendor,3 3 the Vendor directly receives and processes

4 contributions designated for the Committees and electronically deposits them into the 

5 Committees’ designated bank accounts. The contracts further require the Vendor to 

6 comply with the Act and Commission regulations, including the requirement to deposit 

all contributions within 10 days of receipt.4 7 The contracts contain safeguards designed to 

8 ensure the Vendor’s timely deposit of the Committees’ contributions. The Vendor is 

9 required to check the Committees’ designated mailbox every business day and to deposit 

10 all contributions promptly, for which service the Committees pay the Vendor “premium 

rates.”5 11 

12 Over the course of their working relationship, the Committees say they regularly 

13 engaged with the Vendor’s personnel to ensure the Vendor met its legal and contractual 

14 obligations. The Committees assert that they closely monitored the timing of the 

15 Vendor’s deposits of their contributions and “took every reasonable step” to ensure 

timeliness.6 16 According to the Committees, “over the many years that the Committees 

1

 See DSCC current Statement of Organization (FEC Form 1) (July 1, 2022)

202207019517782620.pdf (fec.gov) and DNC current Statement of Organization (FEC Form 1) (June 20, 

2022) 202206209515068550.pdf (fec.gov) (last visited July 18, 2022,

 2

 Advisory Opinion Request (“AOR”) at AOR001.

3

 “The relevant terms of the agreements between (1) DSCC and Vendor and (2) DNC and Vendor 

are identical for purposes of this request.” Id.

4

 11 C.F.R. § 103.3(a).

5

 AOR001, 6. 

6

 AOR006. 
AO 2022-16

Draft A

Page 3

1 have worked with [the] Vendor, there has never previously been a significant issue of 

late-deposited contributions.”7 2 

3 Beginning in April 2022, however, the Vendor began experiencing “severe 

delays” in processing and depositing the Committees’ contributions.8 4 As a result, the 

5 Vendor deposited many contributions in the Committee’s bank accounts more than 10 

days after receipt.

9 6 The Committees assert that these “late deposits occurred without 

[the] Committees’ authorization.”10 7

8 Upon learning of the issue, the Committees acted “promptly” to assess and correct 

the problem.11 9 They frequently communicated with the Vendor’s personnel and engaged 

10 counsel in order to ensure that the Vendor complies with its contractual and legal 

obligations12 11 The Committees assert that the Vendor is no longer processing or 

12 depositing the Committee’s contributions more than 10-days after receipt. In addition, 

13 the Committees have segregated the late-deposited contributions to prevent their being 

14 used pending the Commission’s decision in this advisory opinion. 

15 According to the Committees, the Vendor attributed its late deposit of their 

16 contributions to a variety of factors over which the Committees had no control. These 

17 factors included turnover in the Vendor’s staff, Vendor staff unavailability due to Covid7 AOR002.

8 Id.

9 Id. The Committees state that all such contributions were deposited within 32 days after receipt.

10 Id.

11 Id.

12 Id.
AO 2022-16

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1 19 infections, and a significant increase in the Vendor’s contribution-processing 

workload for its other clients “due to global events (e.g. the war in Ukraine).”13 2 The 

3 Committees state that they “did not have adequate notice from [the] Vendor of the[se]

issues.”14 4 

5 Question Presented

6 “May [the] Committees retain and use the contributions that the Vendor failed to 

7 deposit within 10 days of receipt when the delay was not the responsibility or fault of 

[the] Committees under the circumstances presented here?”15 8

9 Legal Analysis and Conclusions

10 Yes, the Committees may retain and use the contributions that the Vendor failed 

11 to deposit within ten days of receipt under the circumstances presented here. 

12 Commission regulations require all receipts by a political committee to be 

13 deposited in an account established by the committee at its campaign depository within 

10 days of receipt by the committee’s treasurer.

16 14 Political committees may also return 

contributions within ten days of receipt without depositing them.

17 15

13 Id.

14 Id. 

15 AOR003.

16 11 C.F.R. § 103.3(a). See also 52 U.S.C. § 30102(h)(1). Because in this case the Vendor received 

the contributions on behalf of the Committees, the 10-day deposit period began to run at the time of receipt 

by the Vendor. See, e.g., Advisory Opinion 1989-21 (Create-a-Craft) (concluding that an entrepreneur 

contracted to receive contributions on behalf of several committees must deposit all contributions within 10 

days of receipt).

17 11 C.F.R. § 103.3(a).
AO 2022-16

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1 The Commission has considered the 10-day deposit timeframe in several advisory 

2 opinions in which contributions were not timely deposited for various reasons. In certain 

3 situations, the Commission has interpreted the Act and Commission regulations as 

4 allowing political committees to deposit and use such contributions. 

5 For example, in Advisory Opinion 1999-23 (Arkansas Bankers) and Advisory 

6 Opinion 1992-42 (Lewis for Congress), the Commission concluded that two political 

7 committees that had been prevented from receiving or depositing contribution checks 

8 because the checks had been lost in the mail could obtain and deposit replacement checks 

9 and, further, should report them as if the original contribution checks had been timely 

10 received and deposited. Similarly, in Advisory Opinion 1993-05 (Fields for Congress), 

11 the Commission concluded that a political committee that had been prevented from 

12 timely depositing contribution checks because postal service personnel had removed the 

13 checks from the committee’s post office box without notifying the committee could, after 

14 obtaining possession of the checks, deposit and report the checks as having been timely 

15 received and deposited. In these cases, the committees were prevented from complying 

16 with the regulatory 10-day deposit requirement by circumstances beyond their control, 

and they acted reasonably promptly to remedy the noncompliance after discovering it.18 17 

18 In two other advisory opinions, even though the late-deposited contributions were 

19 in the control of the requestors or their separate segregated fund (“SSF”), the 

20 Commission allowed the requestors to acquire replacement checks but required them to 

18 See also Advisory Opinion 2001-11 (Democratic Party of Virginia) (concluding that state party 

committee could timely transfer funds from its non-federal account to its federal account to cover allocable 

expenses after committee’s bank failed to comply with timely instructions to transfer funds, even though 

transfer occurred after regulatory deadline).
AO 2022-16

Draft A

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1 take the remedial action of amending all previously filed FEC reports and include an 

2 explanation and a reference to the advisory opinion. In Advisory Opinion 1999-33 

3 (MediaOne PAC), a branch office retained payroll deduction contributions on its general 

4 ledger instead of forwarding them to the corporation’s SSF. Two years later when the 

5 error was discovered, the Commission stated that the funds were entirely under the 

6 control of the corporation or its regional offices and concluded that the requestor must 

7 take remedial action. 

8 Further, in Advisory Opinion 2000-11 (Georgia-Pacific), the corporation collected 

9 and timely forwarded payroll deductions to its SSF. Upon the arrival of a new treasurer 

10 at the SSF, it was found that some two-to-three-year-old checks had not been deposited. 

11 The previous treasurer had no explanation as to why they had not been deposited, as she 

12 had regularly done earlier during her several-year tenure as treasurer. Most of the 

13 missing checks were found after searching her office. After discovering the undeposited 

14 checks, Georgia-Pacific conducted an internal audit of the SSF’s accounts, resulting in 

15 comprehensive amendments to the SSF’s reports to be filed with the Commission. The 

16 SSF also promptly adopted policies of conducting an annual audit, monthly reporting to 

17 senior management of the corporation and the SSF’s board, requiring all documents to be 

18 reviewed and approved by the treasurer and the assistant treasurer, and requested an 

19 advisory opinion. The Commission concluded that the failure to deposit the contributions 

20 in a timely manner did not appear to be intentional, stating that “although the treasurer 

21 must have known that she had received checks and they were supposed to be deposited in 
AO 2022-16

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1 the PAC’s account, her failure to deposit does not appear to have been for the purpose of 

self-enrichment or any other improper disposition.”19 2

3 According to the request, the Committees’ noncompliance with the 10-day 

4 contribution deposit requirement was due to several factors, including turnover in the 

5 Vendor’s staff, Vendor staff unavailability due to Covid-19 infections, and a significant 

6 increase in the Vendor’s contribution-processing workload on behalf of its other clients. 

7 Each of these causes was outside of the Committees’ and the Vendor’s control.

8 Further, the Committees had taken reasonable precautions to ensure that their 

9 contributions would be deposited in a timely manner, including by contractually requiring 

10 the vendor to check the Committees’ mailboxes each business day and to process and 

11 deposit their contributions promptly. The Committees also monitored the Vendor’s 

12 actions and the timing of their deposits.

13 Additionally, the Committees acted promptly to avoid future noncompliance after 

14 learning about the Vendor’s untimely deposits. The Committees maintained frequent 

15 contact with the Vendor’s personnel, engaged counsel, and segregated the late-deposited 

16 contributions to prevent their being used pending the Commission’s decision in this 

advisory opinion.

20 17 

18 Under these circumstances, and consistent with its prior advisory opinions, the 

19 Commission concludes that the Committees may retain and use the contributions in 

20 question. The Committees should report them as if the original contribution checks had 

21 been timely received and deposited and should amend any previously filed reports 

19 Advisory Opinion 2000-11 (Georgia-Pacific), note 4. 20 AOR002. 
AO 2022-16

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1 affected by the late deposits based on the dates of receipt and add an explanation and 

2 reference to this advisory opinion. 

3 This response constitutes an advisory opinion concerning the application of the 

4 Act and Commission regulations to the specific transaction or activity set forth in your 

request.21 5 The Commission emphasizes that, if there is a change in any of the facts or 

6 assumptions presented, and such facts or assumptions are material to a conclusion 

7 presented in this advisory opinion, then the requestors may not rely on that conclusion as 

8 support for their proposed activity. Any person involved in any specific transaction or 

9 activity which is indistinguishable in all its material aspects from the transaction or 

10 activity with respect to which this advisory opinion is rendered may rely on this advisory 

opinion.22 11 Please note that the analysis or conclusions in this advisory opinion may be 

12 affected by subsequent developments in the law including, but not limited to, statutes, 

13 regulations, advisory opinions, and case law. Any advisory opinions cited herein are 

14 available on the Commission’s website.

15

16 On behalf of the Commission,

17

18

19

20

21 Allen J. Dickerson

22 Chairman

21 See 52 U.S.C. § 30108.

22 See id. § 30108(c)(1)(B).