FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

February 15, 2024

AOR 2024-02 (Waters) Draft C Comment from CLC

Attached is AOR 2024-02 (Waters) Draft C Comment

from Campaign Legal Center. 

Attachment 
 February 15, 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 2024-02 (Waters) – Draft C 

Dear Ms. Stevenson: 

Campaign Legal Center (“CLC”) respectfully submits this comment on Draft C in 

response to advisory opinion request (“AOR”) 2024-02, which was submitted to the 

Federal Election Commission (the “FEC” or “Commission”) by Rep. Maxine Waters 

and Citizens for Waters (“CFW”), her principal campaign committee (collectively, 

“Requestors”).1 

Requestors propose to create and disseminate brochures that feature Rep. Waters 

endorsing federal and non-federal candidates, and state that CFW will pay for these 

brochures using funds that comply with the prohibitions, limitations, and reporting 

requirements of the Federal Election Campaign Act (“FECA”).2 Requestors state 

that the federal and non-federal candidates featured in the brochures will, in turn, 

reimburse CFW for their allocated, “pro-rata share of the costs” for the brochures, 

and such reimbursements will be made from “federally permissible funds,”3 which 

Requestors define as “funds that do not exceed the applicable contribution 

limitations of the Act and from sources that would not be prohibited under the Act 

from contributing directly to Congresswoman Waters.”4

The activity proposed in the AOR meets FECA’s definition of “federal election 

activity” (FEA), which, among other things, includes:

1 See AOR 2024-02 (Waters) (Jan. 26, 2024), https://www.fec.gov/files/legal/aos/2024-

02/202402R_1.pdf (“AOR”). 2 Id. at 1-2.

3 Id. at 2. 4 Id. at 2 n.3.
2

[A] public communication that refers to a clearly 

identified candidate for Federal office (regardless of 

whether a candidate for State or local office is also 

mentioned or identified) and that promotes or supports a 

candidate for that office, or attacks or opposes a 

candidate for that office (regardless of whether the 

communication expressly advocates a vote for or against 

a candidate).5

FECA provides that a federal candidate or officeholder, like Rep. Waters, or their 

campaign committees, like CFW, cannot “solicit, receive, direct, transfer, or spend 

funds in connection with an election for Federal office, including funds for any 

Federal election activity, unless the funds are subject to the limitations, 

prohibitions, and reporting requirements of [FECA].”6

Drafts A, B, and D responding to this AOR explicitly recognize this foundational 

premise, namely that the activity proposed in the AOR is FEA, and that because 

funds used to pay for FEA must comply with FECA’s requirements, only FECAcompliant funds may be used by federal and nonfederal candidates to reimburse 

CFW for their allocated share of the brochure costs.7 Draft C, however, implicitly 

rejects that premise—it makes no mention of FEA at all, and erroneously compares 

the reimbursement of allocated costs for the brochures to “receipts from certain 

transactions [that] are not ‘contributions’ or ‘donations’ and may be deposited in a 

committee’s federal account” as “other receipts,” such as “income from the rental of a 

committee’s mailing list” and “income from the sale of office furniture.”8

Draft C’s errant approach appears to align with a comment by Neil P. Reiff received 

by the Commission on February 12, 2024, which asserts what Mr. Reiff

characterizes as a “plausible argument” that the FEC rule governing FEA was not 

intended to apply to the activity proposed in the AOR, and that such activity should 

therefore be evaluated solely on whether it results in a “contribution” under FECA.9

Mr. Reiff cites zero supporting authority for this “alternative legal approach,” 

relying instead on his personal “belief that the concept of ‘federal election activity’ 

was not intended to be applicable to communications disseminated directly by and 

paid for by an authorized committee of a federal candidate.”10 Mr. Reiff infers, again 

without any authority, that Congress added FEA to the statute “solely to define 

5 52 U.S.C. § 30101(20)(A)(iii).

6 Id. § 30125(e)(1)(A).

7 See, e.g., Draft D at 5, https://www.fec.gov/files/legal/aos/2024-02/202402_3.pdf (“[T]he 

brochures would be public communications that refer to and promote or support clearly 

identified federal candidates. Accordingly, the brochures would be ‘federal election activity’ 

under the Act and Commission regulations[, and] federal candidates may solicit, receive or 

spend funds for [FEA] only if the funds comply with the Act’s contribution limitations, source 

prohibitions, and reporting requirements.”).

8 Draft C at 4 (citing Advisory Op. 2002-14 (Libertarian Nat’l Comm.) and Advisory Op. 

2003-19 (DCCC)), https://www.fec.gov/files/legal/aos/2024-02/202402_2.pdf. 9 Comment on AOR 2024-02 (Waters) from Neil P. Reiff (Feb. 12, 2024), 

https://www.fec.gov/files/legal/aos/2024-02/202402C_1.pdf (“Reiff Comment”).

10 Id. at 1. 
3

activities undertaken by a specific universe of groups,” namely “state or local 

political party committees and, in certain circumstances, activities undertaken by 

other outside non-party, nonfederal groups and candidates.”11

In fact, FECA’s definition of FEA contains no such condition or limit, and the 

activity proposed in the AOR squarely meets the statutory definition of FEA. 

Mr. Reiff’s comment purports to read into the law a limiting condition that is simply 

not there, and the Commission has no authority to narrow or otherwise revise 

FECA’s definition of FEA, whether through the advisory opinion process or any 

other administrative action.

As such, the Commission should reject Draft C’s analytic approach, which depends 

on the flawed premise that the activity proposed in the AOR is not FEA, and results 

in a legally erroneous and problematic conclusion that the reimbursement of 

allocated expenses is not a contribution or donation.12 That conclusion not only is 

wrong, but it carries with it the concerning implication that reimbursements for the 

type of activity proposed in this AOR may be paid with funds that do not comply 

with FECA’s requirements; indeed, Mr. Reiff suggests that very argument.13

Finally, to the extent that Requestors have attempted to moot this problem by 

stipulating that CFW will only solicit and accept reimbursements made with 

federally permissible funds,14 Draft C’s approach is nevertheless problematic, 

because other similarly situated committees may seek to rely on it as permission to 

reimburse their allocated costs for similar public communications with funds that do 

not comply with FECA’s requirements. In other words, Draft C’s analysis may be 

relied on as support for misusing “soft money”—e.g., funds which come from FECAprohibited sources or which exceed FECA’s contribution limits—to pay for activity 

that meets the definition of FEA. That outcome would fundamentally undermine the 

statutory framework established by the Bipartisan Campaign Reform Act (“BCRA”)

to foreclose the use of soft money in connection with federal elections.

11 Id. at 1-2. 12 Draft C at 4; see Reiff Comment at 3 (“Applying the same analysis to the facts in this 

request, each non-federal committee who provided funds for their pro-rata share of a mailing

would not make a ‘contribution’ to the Waters committee.”).

13 Reiff Comment at 4 (“Commissioner Weintraub posed the question as to whether

reimbursements to the Waters Committee would be subject to the prohibitions and

limitations of the Act. . . . an argument can be made that the reimbursements would not be 

subject to the prohibitions and limitations of the Act.”). 14 AOR at 2.
4

Accordingly, we respectfully urge the Commission to reject the flawed analysis in 

Draft C, and reaffirm that the proposed activity in this AOR is FEA that must be 

paid for with funds that comply with FECA’s requirements.

Respectfully submitted,

 /s/ Saurav Ghosh 

Saurav Ghosh

Shanna (Reulbach) Ports

Campaign Legal Center

1101 14th St. NW, Suite 400

Washington, DC 20005