el 

Counsel

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

MEMORANDUM 'HFHPEHU23

TO: Patricia C. Orrock 

Chief Compliance Officer 

Dayna C. Brown 

Assistant Staff Director 

Audit Division 

FROM: Neven Stipanovic 

Associate General Counsel 

Policy Division 

Lorenzo Holloway 

Assistant General Couns 

Compliance Advice 

Danita Alberico 

Attorney 

SUBJECT: Draft Final Audit Report on the Democratic Party of Arkansas (LRA 1153) 

I. INTRODUCTION 

The Office of the General Counsel has reviewed the Draft Final Audit Report (“DFAR”) 

on the Democratic Party of Arkansas (“Committee”). The DFAR contains four findings: (1) 

Reporting of Debts and Obligations; (2) Recordkeeping for Employees; (3) Reporting of 

Apparent Independent Expenditures; and (4) Disclosure of Loans and Loan Repayments. We 

comment on Finding 3, and otherwise concur with the findings. If you have any questions, 

please contact Danita Alberico, the attorney assigned to this audit. 

II. REPORTING OF APPARENT INDEPENDENT EXPENDITURES (Finding 3) 

The DFAR concludes that disbursements totaling $22,803, reported by the Committee as 

Federal Election Activity1

 paid entirely with federal funds, should have been reported instead as 

“Federal Election Activity” includes specific types of activities engaged in by a state party committee 

during specific time frames, public communications containing specific content, or activities consuming more than a 

1 
 

 

 

Comments on the Draft Final Audit Report 

Democratic Party of Arkansas (LRA 1153) 

Page 2 

independent expenditures because the communications expressly urged the election of a clearly 

identified federal candidate. 11 C.F.R. §§ 100.16, 100.22(a). These disbursements were for 

direct mail pieces through Resonance Campaigns totaling $18,423.97 and printed materials 

(characterized by the Committee as door hangers) totaling $4,378.53. 

In response to the Interim Audit Report (“IAR”), which contained the same conclusion, 

the Committee disagrees with the classification of both the Resonance Campaign direct mailer 

and the door hangers as independent expenditures, asserting that it fully coordinated its activities 

with respect to these expenditures with the candidate. Despite this conceded coordinated 

activity, and specifically with respect to the door hangers, the Committee also contends that the 

door hangers nevertheless do not qualify as coordinated party expenditures because door hangers 

are not a “public communication” as that term is defined in 11 C.F.R. § 100.26.2

 Finally, the 

Committee states that in any event the door hangers were distributed by volunteers, that the 

production and preparation of the Resonance Campaign direct mailers included substantial 

volunteer participation, and therefore that both qualify for the volunteer materials exemption 

(“VME”). The Committee submitted a declaration from its executive director, in which she 

recalls that the door hangers and Resonance Campaign direct mailers involved volunteer activity 

in accordance with the pertinent regulatory requirements. The declaration is submitted “under 

penalty of perjury.” 

Commission regulations define an “independent expenditure,” in pertinent part, as an 

expenditure for a communication that expressly advocates the election or defeat of one or more 

candidates for federal office that is not made in cooperation, consultation, or concert with, or at 

the request or suggestion of, a candidate. 11 C.F.R. § 100.16(a). A communication is “made in 

cooperation, consultation, or concert with, or at the request or suggestion of, a candidate” if it is 

a coordinated communication under 11 C.F.R. § 109.21 or a party coordinated communication 

under 11 C.F.R. § 109.37. Id. In no event, however, may a communication be an independent 

expenditure “if the person making the expenditure allows a candidate, a candidate’s authorized 

committee, or their agents . . . to become materially involved in decisions regarding the 

communication . . . or [to share] financial responsibility for the costs of production or 

dissemination with any such person.” Id. § 100.16(c). 

Given the Committee’s assertion that it fully coordinated the distribution of the door 

hangers and the Resonance Campaign direct mailers with the candidate, we do not believe that 

the door hangers and direct mailers may continue to be classified as independent expenditures. 

Although the Committee does not elaborate on the nature of the coordination involved, its 

statement that the door hangers and direct mailers were “fully coordinated” with the candidate 

implies that the candidate was materially involved in the decision-making process regarding the 

specific percentage of an employee’s time in a given month. 52 U.S.C. § 30101(20); 11 C.F.R. § 100.24. A state 

party committee must pay for the costs of such activities exclusively with federal funds, subject to certain 

exceptions. 52 U.S.C. § 30125(b); 11 C.F.R. § 300.32(a)(2). 

A “public communication”, in pertinent part, means “a communication by means of any broadcast, cable, 

or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to 

the general public, or any form of general public political advertising.” 11 C.F.R. § 100.26. See also 52 U.S.C. 

§ 30101(22). 

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Comments on the Draft Final Audit Report 

Democratic Party of Arkansas (LRA 1153) 

Page 3 

door hangers and direct mailers. 11 C.F.R. § 100.16(c). We therefore recommend that the Audit 

Division revise Finding 3 to state that the disbursements for the door hangers and Resonance 

Campaign direct mailers should not be classified as independent expenditures. See 

Memorandum from Erin Chlopak to Patricia C. Orrock, Draft Final Audit Report on the 

Democratic Party of South Carolina (LRA 1054), at 2 (Apr. 18, 2018) (arriving at identical 

conclusion). 

We also agree with the Committee that the door hangers at issue in the finding cannot be 

classified as a coordinated communication under 11 C.F.R. § 109.21 or as a party coordinated 

communication under 11 C.F.R. § 109.37. To qualify as a coordinated communication or a party 

coordinated communication, a communication must, among other things, be either an 

electioneering communication or a public communication as that term is defined in 11 C.F.R. § 

100.26. 11 C.F.R. §§ 109.21(c)(1), 109.37(a)(2). The door hangers are not an electioneering 

communication because they are not a broadcast, cable, or satellite communication. 52 U.S.C. § 

30104(f)(3)(A); 11 C.F.R. § 100.29(a). 

With respect to the question of whether door hangers may be a public communication, we 

previously concluded in the negative and we reiterate the rationale and conclusion from that 

previous audit here. See Memorandum from Erin Chlopak to Patricia C. Orrock, Draft Final 

Audit Report on the Democratic Party of South Carolina (LRA 1054), at 3 (Apr. 18, 2018) (palm 

cards and door hangers). In those comments, we noted that the subject palm cards and door 

hangers were not distributed by any of the means set forth in 11 C.F.R. § 100.26. Id. Further, 

the Commission has explained that the various means of mass communication encompassed by 

the public communication definition all lend themselves to the distribution of content through an 

entity ordinarily owned or controlled by another person. See Internet Communications, 71 Fed. 

Reg. 18,589, 18,594 (Apr. 12, 2006) (“Thus, for an individual to communicate with the public 

using any of the forms of media listed by Congress, he or she must ordinarily pay an 

intermediary (generally a facility owner) for access to the public through that form of media each 

time he or she wishes to make a communication.”). Distribution of a door hanger by hand does 

not require payment to an intermediate facility owner each time communication with an audience 

is sought (though payment to a printer for the creation of the door hanger may be required), but 

rather may be accomplished independently by the communicator. A door hanger is therefore 

more akin to a printed slate card, handbill, brochure, or bumper sticker than it is to any of the 

communication modalities enumerated in the definition of public communication.3 

At the same time, we note that the Commission has been inconsistent in its treatment of 

door hangers in previous enforcement matters. In several matters, the Commission concluded 

that door hangers should be treated as public communications. See MUR 6778 (David Hale for 

Congress), Factual and Legal Analysis, at 3 (undated, circa Nov. 5, 2015); MUR 6924 (Andrew 

Winer), Factual and Legal Analysis, at 5 n.26 (Aug. 21, 2017). See also MUR 4643 (Democratic 

See, e.g., 11 C.F.R. §§ 100.140 (slate card exemption), 100.147 (VME for party committees), which 

expressly distinguish communications covered by the exemption from modes of public communication that are not. 

11 C.F.R. §§ 100.140 (exception shall not apply to costs incurred respecting listings made on broadcasting stations, 

newspapers, magazines, and similar types of general public political advertising), 100.147(a) (exemption not 

applicable to broadcasting, newspaper, magazine, billboard, direct mail, or similar type of general public 

communication or political advertising). 

3 
Comments on the Draft Final Audit Report 

Democratic Party of Arkansas (LRA 1153) 

Page 4 

Party of New Mexico), Letter to Allen Weh from Jonathan Bernstein (June 23, 2005) (advising 

of Commission’s entry into Consent Judgment with respondent and enclosing Order and 

Judgment, United States District Court of New Mexico, Civil No. 02-0372 MCA/RHS (Apr. 29, 

2005), Paragraph A of which notes disbursements from non-federal account for “public 

communications;” communications at issue in enforcement matter included some door hangers). 

In another enforcement matter, however, the Commission concluded that a door hanger was not a 

public communication because it qualified as a handbill subject to the “coattails exemption” (11 

C.F.R. § 100.148). See MUR 6673 (Lee), Factual and Legal Analysis, at 5 (Sept. 13, 2013).4 

Considering the above history, we recommend that the Audit Division raise the question 

of whether the door hangers are a public communication in the cover memorandum that will 

accompany the transmission of the DFAR to the Commission. 

Regarding the VME and the sufficiency of the declaration, we note that the Commission 

has divided over the question of whether unsworn written assertions suffice in the absence of 

documentation of the nature and extent of volunteer involvement. See Final Audit Report on 

Nebraska Democratic Party, at 19-20 (approved Oct. 23, 2014). Here, as noted above, the 

declaration of the director of operations was submitted under penalty of perjury. It is therefore 

somewhat stronger insofar as it may carry the same weight as a sworn statement. 28 U.S.C. § 

1746 (unsworn declaration subscribed as true under penalty of perjury supports matter “with like 

force and effect” as sworn declaration or affidavit). However, in that the declaration is not 

accompanied by documentation of the nature and extent of volunteer involvement, it is arguably 

akin to the unsworn statement at issue in the Nebraska Democratic Party audit. Further, the basis 

upon which the director of operations’ recollection is premised, whether upon personal 

knowledge or not, is not clear. We have recommended in the past that even affidavits bearing 

such uncertainties be raised for Commission consideration. See Memorandum from Lisa J. 

Stevenson to Patricia C. Orrock, Draft Final Audit Report on the New York Republican Federal 

Campaign Committee (LRA 1038), at 4 (July 7, 2017); Memorandum from Adav Noti to Patricia 

C. Orrock, Draft Final Audit Report on the Illinois Republican Party (LRA 1006), at 4-5 (Jan. 

31, 2017). We therefore do so again here, recommending that the question be raised in the cover 

memorandum that will accompany the transmission of the DFAR to the Commission. 

4 

 The Commission has also divided over the question of whether the broader category of “door to door 

canvassing” constitutes a public communication. See, e.g., MUR 5564 (Alaska Democratic Party), Statement of 

Reasons of Chairman Robert D. Lenhard, at 3-4 (Dec. 31, 2007) and Statement of Reasons of Vice Chairman David 

M. Mason and Commissioner Hans A. von Spakovsky, at 8-10 (Dec. 21, 2007); Advisory Opinion 2016-21 (Great 

America PAC), at 4 n.3 (Commission could not agree on whether door to door canvassing is public communication); 

Advisory Opinion 2016-21 (Great America PAC), Concurring Statement of Vice Chair Caroline C. Hunter and 

Commissioners Lee E. Goodman and Matthew S. Petersen (concluding door to door canvassing not public 

communication). See also MUR 7521 (Swing Left), Factual and Legal Analysis, at 7 n.34 (Oct. 6, 2021) 

(unnecessary to decide whether door to door canvassing is public communication considering minimal cost of 

communication at issue).