FEDERAL ELECTION COMMISSION

Washington, DC 

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) 

Common Defense Action Fund, et al. ) MUR 7495

 

STATEMENT OF REASONS OF CHAIR DARA LINDENBAUM, VICE CHAIRMAN SEAN J.

COOKSEY, AND COMMISSIONERS ALLEN J. DICKERSON

AND JAMES E. “TREY” TRAINOR, III

The Complaint1 in this Matter alleged that, in the 2018 election cycle, Common Defense

Action Fund (an independent expenditure only committee, “Common Defense”) and 

Lancaster Stands Up (an unincorporated association of residents of Lancaster, Pennsylvania, 

“Lancaster”) failed to properly report independent expenditures supporting Jess King, a 

candidate for Pennsylvania’s 11th Congressional District, and opposing King’s opponent.2

The Complaint further alleged that Facebook ads by Common Defense and Lancaster did not 

contain disclaimers required by the Federal Election Campaign Act (“FECA”) and 

Commission regulations.3

Because the record indicates that Common Defense paid for the complained-of activity 

undertaken by Lancaster, the Office of General Counsel (“OGC”) did not recommend 

enforcement against Lancaster.4 We agreed.5 We address the disclaimer and independentexpenditure-reporting allegations against Common Defense in turn.

A. Disclaimers 

FECA and Commission regulations require “public communications” made by a political 

committee and “public communications” expressly advocating the election or defeat of a 

clearly identified candidate to include a disclaimer setting forth specified information about 

the person who paid for the communication.6 “Public communications” include “general 

public political advertising,”7 which, by Commission regulation, includes “communications 

1 This Matter arose from a Complaint and a Supplemental Complaint, which are collectively referred 

to as the “Complaint” herein. 

2 First General Counsel’s Report (“FGCR”) at 2.

3 Id. The Commission’s Office of General Counsel (“OGC”) did not recommend enforcement on the other 

allegations in the Complaint. Because we agreed that the record does not support a reason-to-believe 

finding on these allegations, we do not address them here. 4 Id. at 14-15.

5 See Certification, MUR 7495 (Common Defense Action Fund, et al.) (Dec. 15, 2022). 6 52 U.S.C. § 30120(a); 11 C.F.R. § 110.11(a)(1)-(2), (b)-(d).

7 52 U.S.C. § 30101(22).

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placed for a fee on another person’s Web site.”8 Commission regulations also contain certain 

exceptions to these general disclaimer requirements, including for small items9 and for 

circumstances where including a required disclaimer would be impracticable.10 

Common Defense’s Response stated that its Facebook ads were “so small in size that a 

disclaimer could not conveniently fit within them,” and therefore it “understood them to fall 

within the [small items] exceptions of 11 C.F.R. [§] 110.11(f)(1)(i).”11 Common Defense further

stated that, in placing its Facebook ads, it relied upon Advisory Opinion 2010-19 (Google), 

where the Commission concluded that a short text ad that linked to a website with a 

disclaimer needn’t include a disclaimer on the ad itself.12 Notably, in Google, the Commission 

was unable to agree on a rationale for its conclusion by the required four votes.13 Common 

Defense maintained that, “[c]onsistent with the facts of AO 2010-19, all of Common Defense’s 

Facebook ads link to a website (www.lancasterstandsup.org) that includes a disclaimer 

meeting the requirements of 11 C.F.R. § 110.11 on every page.”14

OGC disagreed, concluding that, “as communications placed for a fee on another person’s 

website by a political committee,” Common Defense’s Facebook ads “are all subject to the 

disclaimer requirement,” and “lacked the required disclaimers.”15 OGC argued that this 

Matter is less like Advisory Opinion 2010-19 (Google), and more akin to Advisory Opinion 

2017-12 (Take Back Action Fund). There, the Commission concluded that a requestor had to 

include a complete disclaimer on proposed Facebook Image and Video advertising, but—like 

in Google—did not adopt a consensus rationale explaining that conclusion.16

Based on its analysis, OGC recommended that the Commission find reason to believe that 

Common Defense and Perry O’Brien, in his official capacity as treasurer, violated 52 U.S.C. 

§ 30120 and 11 C.F.R. § 110.11 by failing to include proper disclaimers on public 

communications in the form of paid Facebook ads.17

Plainly, when Common Defense placed the Facebook ads at issue, the Commission had 

not provided clear guidance on how the disclaimer requirements and exceptions apply to

many types of internet communications. The Commission took a step to rectify that shortly 

before it considered this Matter. On December 1, 2022, the Commission voted to adopt “final 

rules to amend its regulations concerning disclaimers on public communications on the 

8 11 C.F.R. § 100.26.

9 Id. § 110.11(f)(1)(i) (exception to disclaimer requirements for ‘‘[b]umper stickers, pins, buttons, pens, 

and similar small items upon which the disclaimer cannot be conveniently printed”).

10 Id. § 110.11(f)(1)(ii) (exception to disclaimer requirements for “[s]kywriting, water towers, wearing 

apparel, or other means of displaying an advertisement of such a nature that the inclusion of a 

disclaimer would be impracticable”). 

11 Common Defense Resp. at 3 (Oct. 12, 2018). 12 Id.; Advisory Op. 2010-19 (Google) at 2.

13 Advisory Op. 2010-19 (Google) at 2. 14 Common Defense Resp. at 3. 

15 FGCR at 17.

16 Advisory Op. 2017-12 (Take Back Action Fund) at 1 & n.1.

17 FGCR at 26.

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internet.”18 The new rules were adopted “in light of technological advances since the 

Commission last revised its rules governing internet disclaimers in 2006, and to address

questions from the public about the application of those rules to internet communications.”19

The new rules not only reflect a change in the law in this area, but also emphasize a lack of 

clarity when the conduct at issue here occurred. 

This lack of clarity counsels in favor of dismissing the disclaimer allegations in this 

Matter as an exercise of our prosecutorial discretion under Heckler v. Chaney.20 After all, due 

process forecloses post hoc application of a new regulation for the same reason that it bars

enforcement based on conduct that occurred when the applicable rule was unclear. Moreover, 

the record indicates that Common Defense considered the guidance the Commission had 

provided at the time and attempted to comply with the law.21 Accordingly, we voted to dismiss 

the disclaimer allegations against Common Defense in this Matter as an exercise of 

prosecutorial discretion.22

B. Independent-Expenditure Reporting

FECA and Commission regulations require persons including nonconnected political 

committees to report independent expenditures,23 i.e., any expenditure for a communication 

that expressly advocates the election or defeat of a clearly identified federal candidate that 

is not coordinated with the candidate or their authorized committee.24 Nonconnected 

committees must itemize each independent expenditure which exceeds $200 or which, when 

added to previous independent expenditures made on behalf of (or in opposition to) the same 

candidate, aggregates over $200 during a calendar year.25

It is undisputed that Common Defense initially misreported $7,863 in independent 

expenditures as operating expenses, and that it corrected this error in subsequent reports.26

Based on this, OGC recommended that the Commission find reason to believe that Common 

Defense and Perry O’Brien, in his official capacity as treasurer, violated 52 U.S.C. § 30104(b) 

and 11 C.F.R. § 104.4(b) by misreporting independent expenditures.27 Accordingly, OGC 

recommended that the Commission enter into pre-probable-cause conciliation with Common 

Defense with a modest opening settlement offer.28

Given our decision to dismiss the disclaimer allegations, the small penalty amount at 

issue, and the fact that Common Defense corrected the reporting error, we do not consider it 

18 Internet Communication Disclaimers and Definition of “Public Communication,” 87 Fed. Reg. 77467 

(Dec. 19, 2022). 

19 Id.

20 470 U.S. 821 (1985). 21 See, e.g., Common Defense Resp. at 2, 3. 22 Certification, MUR 7495 (Common Defense Action Fund, et al.).

23 52 U.S.C. § 30104(b); 11 C.F.R. § 104.4. 24 52 U.S.C. § 30101(17).

25 Id. § 30104(b)(6)(B)(iii). 26 FGCR at 15.

27 Id. 11 C.F.R. § 104.4(b) governs “[r]eports of independent expenditures made at any time up to and 

including the 20th day before an election.”

28 FGCR at 25.

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a prudent use of the Commission’s limited resources to pursue enforcement on the 

independent-expenditure-reporting violation alone. Accordingly, we voted to dismiss this 

Matter in its entirety as an exercise of our prosecutorial discretion under Heckler v. Chaney.29

 

_________________________________ January 17, 2023

Dara Lindenbaum Date

Chair

_________________________________ January 17, 2023

Sean J. Cooksey Date

Vice-Chairman 

______________________________ January 17, 2023

Allen Dickerson Date

Commissioner

_________________________________ January 17, 2023

James E. “Trey” Trainor, III Date

Commissioner

29 470 U.S. 821.

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