FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

Noah Bookbinder 

Executive Director 

Citizens for Responsibility and Ethics In Washington 

455 Massachusetts Avenue, NW 

Sixth Floor 

Washington, DC 20001 

Melanie Sloan 

4 1229 Independence Ave., SE 

3 Washington, DC 20003 

SENT VIA HRST CLASS AND ELECTRONIC MAIL 

October 19,2016 

RE; MUR6589R 

American Action Network 

Dear Mr. Bookbinder and Ms. Sloan: 

On October 12,2016, the Federal Election Commission notified you of the reopening of 

this matter involving allegations that American Action Network violated the Federal Election 

Campaign Act of 1971, as amended. 

On October 18,2016, the Commission considered the matter and there was an 

insufficient number of votes to find reason to believe that American Action Network violated 

52 U.S.C. §§ 30102,30103, and 30104. Accordingly, the Commission closed its file in this 

matter. A Statement of Reasons explaining the basis for the decision is enclosed. 

Documents related to the case will be placed on the public record today. See Statement 

of Policy Regarding Disclosure of Certain Documents in Enforcement and Other Matters, 81 

Fed. Reg. 50,702 (Aug. 2,2016). 

The Federal Election Campaign Act allows a complainant to seek judicial review of the 

Commission's dismissal of this action. See 52 U.S.C. § 30109(a)(8). If you have any questions, 

please contact Peter Reynolds, the attorney assigned to this matter, at (202) 694-1650. 

Sincerely, 

Kathleen Guith 

Acting Associate General Counsel 

for Enforcement 

Enclosure 

Statement of Reasons 
i 

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of ) 

) MUR6589R 

American Action Network ) 

STATEMENT OF REASONS OF 

CHAIRMAN MATTHEW S. PETERSEN AND 

COMMISSIONERS CAROLINE C. HUNTER AND LEE E. GOODMAN 

This Statement of Reasons sets forth our reasons for voting to find no reason to believe 

that American Action Network ("AAN") violated the Federal Election Campaign Act of 1971, as 

amended (the "Act"). It is issued in accordance with the U.S. District Court's Order and 

Memoriandum Opinion dated September 19,2016 in Citizens for Responsibility and Ethics in 

Washington v. Federal Election Commission, No. l:14-cv-01419 (CRC), 2016 WL 5107018 

(D.D.C. Sept. 19,2016) {"CREW v. FEC). 

The underlying enforcement matter at issue arose from a complaint filed in 2012 by 

Citizens for Responsibility and Ethics in Washington and Melanie Sloan ("CREW") alleging that 

AAN—a tax-exempt section 501(c)(4) organization—^violated the Act by foiling to register and 

report as a political committee. In 2014, we concluded that AAN did not have as its major 

purpose the nomination or election of a candidate and, thus, voted against finding reason to 

believe that AAN violated the Act.' Consequently, the matter was dismissed. As the 

Commissioners whose votes controlled the disposition of this matter, we issued a statement of 

reasons explaining the basis for our decision,^ 

CREW challenged the dismissal under 52 U.S.C. § 30109(a)(8)(A).' On September 19, 

2016, the U.S. District Court for the District of Columbia held that the dismissal was contrary to 

law, finding that our statement of reasons adopted erroneous standards for determining (1) which 

spending indicated a "major purpose" of nominating or electing a candidate, and (2) the relevant 

time period for evaluating a group's spending. The court, therefore, remanded the case to the 

Commission for proceedings consistent with the opinion. 

' MUR 6589 (AAN ), Certification (June 24,2014). 

^ MUR 6589 (AAN), Statement of Reasons of Chairman Lee E. Goodman and Commissioners Caroline C. 

Hunter and Matthew S. Petersen (Jul. 30,2014). 

^ Under this provision, "[a]ny party aggrieved by an order of the Commission dismissing a complaint filed 

by such party ... may file a petition with the United States District Court for the District of Columbia." 
MUR 6S89R (American Action Network) 

Statement of Reasons 

Page 2 0(19 

Consistent with the court's instructions and guidance, we reconsidered the administrative 

record in this matter. In the course of this review, we examined in detail each of AAN's 

electioneering communications to determine which ones are indicative of a major purpose to 

nominate or elect a candidate. Applying the Commission's case-by-case, fact-intensive standard 

for determining political committee status,^ we conclude that AAN was not a political committee 

under the Act and Commission regulations because it did not have as its major purpose the 

nomination or election of candidates. This conclusion is based on the totality of the 

circumstances, including AAN's mode of organization, official statements, and the fact that less 

than half of its spending was devoted to communications and activities designed to elect or 

nominate federal candidates. Accordingly, we could not vote to find that AAN violated the Act 

by failing to register and report as a political committee.^ Our reasoning is set forth below. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

4 

^ The full factual and procedural history of the underlying enforcement matter, as well as a 

fuller treatment of the major purpose test and our reasoning for our original votes, is included in 

our Statement of Reasons issued on July 30,2014, and we incorporate by reference that analysis 

and discussion on all points except for aspects deemed contrary to law by the court. A brief 

summary of the relevant background is set forth below! 

A, Commission Disposition of CREWs Complaint Against AAN 

AAN — which describes itself as an "action tank," the mission of which is to "create, 

encourage, and promote center-right policies based on the principles of freedom, limited 

government, American exceptionalism, and strong national policy"® — was founded in 2009 and 

is recognized by the Internal Revenue Service as a section 501(c)(4) social welfare organization. 

As a tax-exempt organization, AAN is required to file annually a public financial disclosure 

report with the Internal Revenue Service on Form 990. 

i 

* Political Committee Status, Supplemental Explanation and Justification, 72 Fed. Reg. 5,595 (Feb. 7,2007) 

("2007 Supplemental E&J"). An organization's registration as a "political committee" triggeia an ongoing reporting 

requirement for all fmancial activity until the organization terminates. It also biggers more invasive disclosure 

requirements than event-triggered disclosure (such as fiir independent expenditures and electioneering 

communications) because political committees must identify all contributors who give more than a nominal amount, 

regardless of the purpose of their contributions or the organization's activities. For these reasons. Congress 

established two different disclosure schemes and the Supreme Court &shioned the "major purpose" test to capture • 

only those organizations that should be subjected to regular, ongoing disclosure, which entails higher compliance 

costs than event-specific disclosure. 

' MUR 6589R (AAN), Certification (Oct. 17.2016). 

* MUR 6589 (AAN), Complaint at Exhibit A (Form 990: Return of Organization Exempt from income Tax 

2009); MUR 6589 (AAN), Supplemental Response (Form 990: Return of Organization Exempt from Income Tax 

2010). 
MUR 6S89R (American Action Network) 

Statement of Reasons 

Page 3 of 19 

In the two fiscal years following its establishment, AAN publicly disclosed spending over 

$27 million to advance its ideological mission.' Of this amount, roughly $4 million consisted of 

independent expenditures (i.e., communications expressly advocating the election or defeat of a 

federal candidate), while another $13.7 million was for electioneering communications.® 

In its complaint against AAN, CREW alleged that "AAN made expenditures aggregating 

in excess of $1,000 during 2010"' and that "[a]s demonstrated by its extensive spending on 

federal campaign activity, AAN's major purpose between July 23,2009 and June 30,2011 was . 

the nomination or election of federal candidates."'" According to the complaint, AAN's 

"extensive spending on federal campaign activity" categorically included all electioneering 

communications sponsored by AAN from 2009 to 2011, regardless of their content or discussion 

of policy or legislation." 

The Commission did not find reason to believe that AAN failed to register as a political 

jS committee, because AAN did not have as its "major purpose" the "nomination or election of a 

y candidate."" In voting against finding "reason to believe," we constituted the controlling group 

2 

with respect to the matter's disposition and, thus, issued a statement of reasons in which we 

applied the Commission's case-by-case analysis for determining political committee status." 

^ MUR 6589 (AAN), Supplemental Response (Form 990: Return of Organization Exempt from Income Tax 

2010). 

' An "electioneering communication" is defined as any broadcast, cable, or satellite communication which 

(a) refers to a clearly identified candidate for federal office, (b) is publicly distributed within 60 days before a 

general election or 30 days before a primary election, and (c) is targeted to the relevant electorate. 52 U.S.C. 

§ 30104(f)(3 ); 11 C.F .R. § 100.29. Electioneering communications by definition do not expressly advocate the 

election or defeat of candidates; any such communication would be a separately reportable independent expenditure. 

11 C.F.R § 100.29(c)(3). A communication is "targeted to the relevant electorate" when it can be received by 

50,000 or more persons in the congressional district the candidate seeks to represent. 11 C.F.R. § I00.29(b)(5Xi). 

No other content, such as praise or criticism, is required for an ad to be deemed an electioneering communication. 

» MUR 6589 (AAN), Complaint at 6. 

W.at7. 

" Id. 

" In Bvckley v. Valeo, 424 U.S. 1,79 (1976), the Supreme Court narrowly construed the defmition of 

"political committee" to encompass only groups that both (1) receive contributions or make expenditures in excess 

of $ 1,000 and (2) have as their major purpose the nomination or election of a federal candidate. 

" When the Commission first considered this matter, we performed the case-by-case analysis called for in the 

Commission's 2007 Supplemental E&J. Thus, we decided that the most relevant factors in determining AAN's 

political committee status — but not the only factors that could be considered — were AAN's central organizational 

purpose as articulated in its public and non-public statements and AAN's spending on campaign activities versus its 

spending on other activities. In analyzing AAN's spending, we used First Amendment jurisprudence and judicial 

decisions distinguishing campaign speech from issue advocacy as a guide. See, e.g., FEC v. Wis. Right to Life, Inc., 

551 U.S. 449 (2007); FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986); Wis. Right to Life, Inc. v. Borland, 751 

F.3d 804 (7"' Cir. 2014). We believed this approach to be reasonable. See Van Hollen, Jr. v. Fed. Election Comm'n, 

811 F.3d 486,499, 501 (D.C. Cir. 2016) (recognizing that, "more than other agencies whose primary task may be 

limited to administering a particular statute, every action the FEC takes implicates fundamental rights" and referring 
0 

MUR 6589R (American Action Network) 

Statement of Reasons 

Page 4 of 19 

CREW brought a case in United State District Court under 52 U.S.C. § 30109(a)(8)(A) 

challenging our basis for dismissal. 

B. The District Court's Opinion and Order 

The District Court granted CREW's motion for summary judgment. In its opinion, the 

court addressed CREW's three objections to our statement of reasons: (1) "that only 

expenditures on express advocacy — and no expenditures on electioneering communications — 

were deemed relevant to the 'major purpose' inquiry"; (2) that a group's activities were 

evaluated over its entire existence, rather than in a single calendar year; and (3) that "a group's 

campaign-related spending [must] constitute at least 50% of total spending before concluding 

that such spending indicated the entity's 'major purpose.'"'" 

As to the first objection, the court held that our Statement of Reasons contained an 

."erroneous understanding that the First Amendment effectively required the agency to exclude 

from its consideration all non-express advocacy in the context of disclosure."'® However, the 

court rejected CREW's argument that the Commission must consider "all electioneering 

communications as indicative of a purpose to nominate or elect a candidate."'® Instead of 

establishing its own bright-line rule, the court instructed the Commission to reconsider this 

question under "the EEC's judicially approved case-by-case approach to adjudicating political 

committee status."" 

As for the proper time period for evaluating a group's activities, the court concluded that 

"[gjiven the EEC's embrace of a totality-of-the-circumstances approach to divining an 

organization's 'major purpose,' it is not per se imreasonable that the Commissioners would 

consider a particular organization's full spending history as relevant to its analysis."'* Thus, 

according to the court, the Commission is not limited to considering a group's spending in a 

single calendar year when conducting a "major purpose" inquiry. However, the couit concluded 

that a "lifetime-only rule" is contrary to law when it "tends to ignore crucial facts indicating 

to the FEC's "unique prerogative to safeguard the First Amendment when implementing its congressional 

directives"). Furthermore, we understood that our decision regarding AAN's political committee status was not a 

choice between non-disclosure and disclosure but, rather, a choice between two altemative and statutorily distinct 

disclosure regimes: event-specific disclosure versus registiation as a political committee with the ongoing reporting 

obligations and other burdens that that would entail. Although several federal circuit court decisions have addressed 

the outer constitutional limits of state disclosure laws, we did not understand those decisions to compel us to go to 

the same outer limits in implementing the Act's disclosure regimes. 

CREW'V. FEC, 2016 WL 517018 at *7. 

W. at*ll. 

Id. (citations and internal quotations omitted). 

Id. at *11 (citations omitted). 

Id. 
MUR 6589R (American Action Network) 

Statement of Reasons 

Page 5 of 19 

whether an organization's major purpose has changed."'® Therefore, under the court's holding, 

the Commission may, when examining major purpose, consider a group's full spending history 

provided it also considers whether the group's major purpose has changed as evidenced by its 

recent spending activity. 

Finally, the court rejected CREW's argument that applying a 50-percent spending 

threshold was legally eiToneous. According to the court, the Commission is entitled to deference 

on the question of spending thresholds, and it concluded that "[a] reasonable application of a 

50%-plus rule would not appear to be arbitrary and capricious."^® 

The court thus remanded die case to the Commission with instructions to act in 

accordance with its declaration. Having reopened the MUR, notified the complainant and 

respondents, received a supplemental response from AAN, and reconsidered the matter in full by 

reviewing the record anew and scrutinizing the ads in light of the court's decision, we again 

voted not to find reason to believe the respondent AAN violated the Act by failing to register as a 

political committee. 

II. ANALYSIS 

In conformance with the court's remand order and pursuant to the Commission's 

judicially sanctioned case-by-case, fact-intensive approach to evaluating political committee 

status, below we examine AAN's electioneering communications — on which AAN spent a total 

of $13.7 million — to determine whether they support a conclusion that AAN's "major purpose 

is Federal campaign activity (i.e., the nomination or election of a Federal candidate.)"^' 

A. Analytical Framework for Evaluating Electioneering Communications 

As noted above, the court identified as legal error in our Statement of Reasons "the 

erroneous understanding that the First Amendment effectively required the agency to exclude 

from its consideration all non-express advocacy in the context of disclosure."^^ Thus, in 

conformance with the court's declaration, we consider AAN's electioneering communications — 

which by definition do not contain express advocacy — in our analysis. The court, however, did 

not prescribe a rule or standard by which we must conduct this analysis but instead deferred to 

the Commission's expertise in applying its judicially approved case-by-case, fact-intensive 

approach to determining whether AAN is a political committee. 

In evaluating major purpose, our starting point is the language of the communication 

itself. In other words, we look at the ad's specific language for references to candidacies. 

" W.at*12. 

Id. 

2007 Supplemental E&J at 5597. 

" C/t£:»'v.F£C,2016WL517018at»ll. 
1 

MUR 6589R (American Action Network) 

Statement of Reasons 

Page 6 of 19 

elections, voting, political parties, or other indicia that the costs of the ad should be counted 

towards a determination that the organization's major purpose is to nominate or elect candidates. 

We also examine the extent to which the ad focuses on issues important to the group or merely 

on the candidates referenced in the ad.^^ Additionally, we consider information beyond the 

content of the ad only to the extent necessary to provide context to understand better the message 

being conveyed. Finally, we ascertain whether the communication contains a call to action and, 

if so, whether the call relates to the speaker's issue agenda or, rather, to the election or defeat of 

federal candidates.^'* 

In conducting this analysis, we are mindful of the essential need for objectivity, clarity, 

and consistency in administering and enforcing the Act and providing meaningful guidance to 

the regulated community about which factors will be deemed relevant in a major purpose 

inquiry.We avoid speculating about the subjective motivations of a speaker, since doing 

otherwise could lead to identical communications being treated differently based on perceptions 

of intent. We are also mindful of &e fact that electioneering communications, by definition, 

must refer to a clearly identified federal candidate; such references, by themselves, do not make 

the communications electoral.^® 

B. Ad-by-Ad Analyses 

Consideration of the context in vdiich the electioneering communications were run allows 

for better understanding and more accurate assessments of them. At the time, not only was a 

federal midterm election in the ofOng, but it was also widely anticipated that Congress would 

meet in a post-election "lame duck" session in November 2010 to consider several pieces of 

major legislation,^' many involving policy issues of great importance to AAN. Congress was 

" For example, a sharp critique of a candidate's position on legislation or public policy differs markedly from 

a critique of the candidate's personal behavior. The former would be consistent with an attempt to influence the 

candidate's position on the legislation or policy at issue, while the latter may indicate a purpose of nominating or 

electing a candidate. The "Yellowtail" ad discussed in McComell v. FEC is a paradigmatic example of the latter 

approach. 124 S.Ct. 619, 689 n.78. That ad accused candidate Bill Yellowtail of hitting his wife, skipping child 

support payments, and being a convicted felon. The Court stated that "the notion that this advertisement was 

designed purely to discuss the issue of &mily values strains credulity." Id. Thus, ads like the Yellowtail ad may 

evidence an electoral purpose. 

24 «[T]he major purpose doctrine requires a fact-intensive analysis of a gioup's campaign activities compared 

to its activities unrelated to campaigns...." 2007 Supplemental E&J at 5601. 

^ "Any organization can look to the public files for the Political Committee Status Matters and odier closed 

enforcement matters, as well as advisory opinions and filings in civil enforcement cases, for guidance as to how the 

Commission has applied the statutory definition of 'political committee' together with the major purpose doctrine." 

2007 Supplemental E&J at 5604. 

^ 52 U.S.C. 30104(f)(4)(A)(i)(l). 

" See, e.g., Alexander Bolton, Democrats to Stuff 20 Bills Into Post-election Lame-duck Session, The Hill, 

Sept. 28,2010, httD://thehill.comyhomenevys/senate/121223-dems-stuff-lame-duck. 
MUR 6589R (American Action Network) 

Statement of Reasons 

Page7ofI9 

expected to address inter alia the expiring Bush-era tax cuts,^* federal spending,^' health care,^° 

and energy (including potential cap-and-trade bills).^' Due to the possibility that party control of 

Congress could change as a result of the 2010 midterm elections, it was generally believed that 

there would be attempts to pass controversial legislation before the swearing-in of a new 

Congress in January 2011.^^ Thus, in the lead-up to the elections, there was great interest in, and 

much speculation about, the legislative proposals that Congress would take up during the lameduck session. 

It is worth noting that Congress did, in fact, meet in lame-duck session in November and 

2 December of 2010 At least one publication deemed the session "the most productive of the 

6 

§ See, e.g., id ("The highest-profile item for November and December is the tax cuts of2001 and 2003, 

passed under President George W. Bush, which expire at year's end."); Jackie Calmes, Obama is Against a 

Compromise on Bush Tax Cuts, N.Y. Times, Sept. 7,2010, 

http://www.nvtimes.com/2010/09/08/us/Dolitics/08obama.html C'President Obama on Wednesday will make clear 

that he opposes any compromise that would extend the Bush-era tax cuts for the wealthy beyond this year .... [T]he 

administration acknowledges that its blueprint might not pass before Election Day, or even in the lame-duck 

Congress afterward."). 

During the lame-duck session, Congress was set to address the Fiscal Year 2011 appropriations process, 

since the federal government was operating under a continuing resolution (H.R. 3081) that passed on September 30, 

2011, and expired on December 3,2011. In addition. President Obama proposed in the fall of 2010 a controversial 

infi'astructure spending package that was expected to be taken up during the iame-duck session. Meredith Shiner, 

Bennet Bucks Obama's SSOB Plan, Politico, Sept. 8,2010, http://www.politico.com/storv/2010/Q9/bennet-bucksobamas-SOb-plan-041887. 

By the fall of 2010, numerous bills had been introduced in Congress to repeal or substantially modify the 

Affordable Care Act. See Paul Jenks, Health Overhaul Celebrations Continue, CQ Healthbeat, Sept. 22,2010. 

" See, e.g., Bolton, supra note 27 ("Sen. Jay Rockefeller (D-W. Va.) says he intends to hold Majority Leader 

Harry Reid (D-Nev.) to a promise to schedule a vote on legislation that would bar the Environmental Protection 

Agency from taking action to curb carbon gas emissions for two years."); Robin Bravender, Cap-and-Trade 

Prospects Shaky in Lame Dude, N.Y. Times, Jul. 29,2010, 

http://www.nytimes.eom/cwiTeh010/07/29/29climatewire-cap-and-trade-prospects-shaky-in-lame-duck-38854.html 

C'[M]any climate advocates have turned their hopes to slipping cap and trade into a House and Senate conference 

bill after the elections ...."). 

^ See, e.g., John Fund, "The Obama-Pelosi Lame Duck Strategy," Wall St. J., Jul. 9,2010, 

http://www.wsi.eom/articles/SB10001424052748704293604575343262629361470 ("Democratic House members 

are so worried about the fall elections they're leaving Washington on July 30, a full week earlier than normal.... 

[T]here have been signs in recent weeks that party leaders are planning an ambitious, lame-duck session to muscle 

through bills in December they don't want to defend before November."); Charles Krauthammer, Beware the Lame 

Duck. Wash. Post. Jul. 23.2010. http://wvyw.washingtonpost.com/wpdvn/content/article/2010/07/22/AR2010072204029.html ("Leading Democrats are already considering [a lame-duck 

Congress] as a way to achieve even more liberal measures that many of their members dare not even talk about, let 

alone enact, on the eve of an election in which they face a widespread popular backlash to the already enacted 

elements of the Obama-Pelosi-Reid agenda. That backlash will express itself on Election Day and result, as most 

Democrats and Republicans currently expect, in major Democratic losses."). 

" Liz Halloran, Congress Braces for Hectic Lame-Duck Session, NPR, Nov. 14,2010, 

expected to be dominated by debate over the fate of the Bush tax cuts of 2001 and 2003 ...."). 
MUR 6589R (American Action Network) 

Statement of Reasons 

Page 8 of 19 

lame duck Congressional sessions eyer."^" Among the matters taken up by Congress were a "tax 

cut compromise extending the Bush tax cuts, creating new Obama tax cuts and extending 

unemployment insurance."^' With that context in mind, we proceed to consider each of AAN's 

electioneering communications, grouping them by subject matter and listing the cost of each. 

1. Bush Tax Cuts 

During the 60-day electioneering communications window, AAN spent approximately 

$3.37 million on ads focused on the pending expiration of the Bush-era tax cuts, which was 

I considered the most prominent issue of the lame-duck session.'® Congress ultimately took up the 

g issue during the session, resulting in the tax cuts being reauthorized in their entirety." 

^ The following five AAN advertisements favor reauthorizing the tax cuts and urge viewers 

4 to lobby the named officeholders — all of whom would participate in the lame-duck session — 

4 to support the position advanced by AAN: 

(a) Ouch ($652,584.69): 

During her eighteen years in Washington, Patty Murray voted for the largest tax increase 

in histoi-y, and repeatedly against tax relief. But this November, Murray promises to vote 

for a huge tax hike on small businesses. Ever heard of helping small businesses, Patty? 

Tell Senator Murray "ouch!" We can't afford more tax hikes. [Superimposed text: "Call 

Senator Patty Murray. Say vote NO on any tax increase. (202)224-2621."] 

(b) ($177,310): 

He was our district economic development director when we lost jobs and unemployment 

skyrocketed. Mark Critz. He supports the Obama-Pelosi agenda that's left us fourteen 

trillion in debt. Mark Critz. And instead of extending tax cuts for Pennsylvania families 

£md businesses, he voted with Nancy Pelosi to quit working and leave town. Mark Critz. 

Tell Congressman Critz that Pennsylvania families need tax relief this November, not 

more government. [Ends with superscript over photo: "Tell Congressman Critz vote to 

cut taxes this November. Yes on H.R. 4746 (202)224-3121."] 

Garance Franke-Ruta, The Most Productive Lame Duck Since WWII—and Maybe Ever, The Atlantic, Dec. 

22,2010, http://www.theatlantic.eom/politics/archive/2010/12/the-most-productive-laine-duck-since-wwii-andmaybe-ever/68442/. 

" Id.; see also CNN, Not Such a Lame-Duck Session: What Congress Passed, Obama Sigfsed in Week, Dec. 

23,2010, httD://news.blo^.cnn.com/2010/12/23/not-such-a-lame-duck-session-what-congress-passed-obamasiened-in-week/. 

See Bolton, supra note 27 ("The highest-profile item for November and December is the tax cuts of2001 

and 2003, passed under President George W. Bush, which expire at year's end."). 

37 See Franke-Ruta, supra note 34. 
MUR 6589R (American Action Network) 

Statement of Reasons 

Page 9 of 19 

(c) Ridiculous ($505,000): 

Ridiculous stimulus! Courtesy of Charlie Wilson and Nancy Pelosi. Three million for a 

turtle tunnel. Two hundred thousand for Siberian lobbyists. Plalf a million to study 

Neptune. Two million to photograph exotic ants and one htmdred fifty thousand to watch 

monkeys on drugs. The only thing Wilson and Pelosi's stimulus didn't do? Fix Ohio's 

economy. Call Charlie Wilson. Tell him to keep the tax cuts, ditch the stimulus. 

[Superimposed text: "Call Charlie Wilson. Tell him in November keep the tax cuts. 

Ditch the Stimulus." Phone number "(202)225-5705" and "VOTE FOR H.R. 4746."] 

1 (d) JoxM ($435,000): 

y Congressman Mark Gritz. We know he opposes repealing Obamacare, which means five 

^ hundred billion in new job-killing taxes. Now Congressman Critz wants to raise taxes on 

4 small businesses, a devastating blow to a weak economy. Congressman Critz even voted 

to delay extending child tax credits for families. Tell Congressman Mark Critz to vote to 

extend the tax cuts in November. 

(e) WaUpapei^' ($1,600,000): 

Congressman Kurt Schrader is wallpapering Washington with our tax money. Schrader 

spent nearly eight hundred billion on the wasteful stimulus that created few jobs but 

allowed big executive bonuses. He thi^ew nearly a trillion at Pelosi's health care takeover 

and voted to raise the national debt to over fourteen trillion. Now Congress wants to 

raise taxes. Call Congressman Schrader. Tell him to vote for a tax cut this November to 

stop wallpapering Washington with our tax dollars. [Superimposed text: "Call 

Congressman Schrader this November. Vote to cut taxes. Yes on H.R. 4746. (202)224-

3121."] 

None of the above ads refers to candidacies or the upcoming election, nor do they contain 

other campaign-related indicia. The only content in the ads that is arguably election-related is 

the mention of November — the month in which the midterm election took place. However, the 

word "November" is used only in calls to take specific legislative actions. As mentioned above, 

a lame-duck session was widely expected to take place in November and, in fact, did begin on 

November 15,2010.^' Thus, the use of "November" in the ads is best understood as a reference 

to the time period in which the lame-duck session would commence. 

Each of the ads above focuses on government spending and tax cuts and calls on viewers 

to contact the named officeholders to urge them to take specific legislative actions — namely, 

"[V]ote NO on any tax increase" (Ouch); "[V]ote to cut taxes" (Quit Critz); "[K]eep the tax cuts" 

" A AN ran five versions of this advertisement. The text provided is from a representative version that 

referenced Congressman Kurt Schrader. 

See CNN, Lame Duck Congress Convenes, Nov. 15,2010, 

httD://wvyw.cnn.com/20iO/POLITICS/ll/15/lame.duck.congress/. 
MUR 6589R (American Action Network) 

Statement of Reasons 

Page 10 of 19 

(Ridiculous); "[VJote to extend the tax cuts" (Taxes); and "[V]ote for a tax cut" (Wallpaper). 

Three of the ads — "Quit Critz," "Ridiculous," and "Wallpaper" — even identify the specific 

bill (H.R. 4746) that AAN wanted the named officeholders to support. Furthermore, the action 

being advocated by the ads is consistent with and furthered AAN's tax-related initiatives.'"' 

While the ads criticize past legislative positions taken by the named officeholders (and, in 

the case of Critz, his prior public service), the express point of that criticism — as demonstrated 

by the calls to action — is to marshal public sentiment to persuade the officeholders to alter their 

voting stances. Merely criticizing an officeholder's past positions on legislative issues important 

to the organization sponsoring the ad does not, on its own, indicate a purpose of nominating or 

g electing a candidate, especially where the calls to action have an express legislative focus. 

Q In short, the above ads are more indicative of grassroots lobbying (/. e., exhorting 

^ constituents to contact their representatives about specific policy proposals) than of election4 influencing activity. Accordingly, we conclude that these ads are not indicative of a major 

^ purpose to nominate or elect federal candidates. 

2. Federal Spending 

AAN spent roughly $3.8 million on five electioneering communications concerning 

federal spending. As noted above, in the fall of 2010, several federal spending packages were 

being considered, including an infrastructure spending proposal that was described by its critics 

as a second stimulus bill.^' Moreover, it was expected that Congress would not act before it 

recessed at the end of September and would take up these spending bills in the lame-duck 

session,''^ which is what happened."^ 

The following five advertisements advanced AAN's position that Congress should curtail 

federal spending and encouraged viewers to contact the named officeholders to advocate for this 

position: 

(a) Back Pack i$l,210,000): 

See, e.g., Getting America Back to Work, 

https://americanactionnetwork,orB/category/economy/#axzz4M3KftahJ ("We believe in a job creating economy 

unfettered from Washington's detrimental regulations and punishing tax code."). 

See Sheryl Gay Stolberg & Mary Williams Walsh, Obama Offers a Transit Plan to Create Jobs, N.Y. 

Times, Sept. 6,2010, http://www.nvtimes.comy2010/09/07/us/Dolitic5/07obama.html: Meredith Shiner, Bainel 

Bucks Obama's S50B Plan, Politico, Sept. 8,2010, http://www.Dolitico.com/storv/2010/09/bennet-bucks-obamas50b-plan-041887. 

See Russell Chaddock, Congress adjourns, but spending bills and Bush lax cuts still loom. Christian 

Science Monitor, Sept. 30,2010, http.7/www.csmonitor.com/USAPolitics/2Q 1 Q/0930/Congress-adloums-butspending-bills-and-Bush-tax-cuts-still-loom. 

See David Rogers, Dems concede budget fight to GOP, Politico, Dec. 16,2010, 

http://www.politico.com/storv/2010/12/dems-concede-budget-fight-to-goP-046S20. 
MUR 6S89R (American Action Network) 

Statement of Reasons 

Page 11 of 19 

There's a lot on the backs of our kids today, thanks to Congressman [Gerry 

Connolly/Tom Perriello/Tim Walz]. [Connolly/Perriello/Walz] loaded our kids up with 

nearly eight hundred billion in wasteM stimulus spending. Then added nearly a trillion 

more for Pelosi's health care takeover. A debt of fourteen trillion. Now Congress wants 

to pile on more spending. How much more can our children take? Call 

Congressman [Connolly/Perriello/Walz], Tell him to vote to cut spending this 

November. It's just too much. 

(b)JVafterf ($2,092,975): 

[Announcer:] How can you tell the taxpayers in Congressman Gerry Connolly's district? 

We're not so tough to spot. Connolly stripped us with a wasteful stimulus, spent the 

shirts off our backs. [On-Screen Text:] $14 Trillion Debt. [Announcer:] Connolly is 

taking money from our pockets to put in Washington's pockets. [Actor:] "Now I don't 

have any pockets." [Announcer:] Now, Congress wants to strip us bare with more 

spending. Call Congressman Connolly. Tell him: vote to cut spending this November. 

[Superimposed text: "Call Congressman Connolly. Vote to cut spending this November. 

Yes to H.R. 5542 (202)224-3121"] 

(c) Promise 

Spending in Washington is out of control... Representative Hodes promised he'd fight 

wasteful spending. Hodes hasn't kept that promise. He voted for Pelosi's Stimulus bill. 

... For the auto bailout... For massive government-iain health care. Trillions in new 

spending. As New Hampshire families struggle ... Paul Hodes continues the wastefW 

spending spree with oui- tax dollars. Tell Congressman Hodes to stop voting for reckless 

spending. 

(d) FPiwterf ($231,000): 

America is thirteen trillion in debt yet Congresswoman Herseth Sandlin keeps on 

spending, voting for the eight hundred billion stimulus they promised would create jobs. 

Instead, oui' money was wasted upgrading offices for DC bureaucrats, studying African 

ants, and building road crossings for turtles. Now they want to do it again. Tell 

Congresswoman Herseth Sandlin to vote "no" on a second, wasteful stimulus in 

November. 

(e) Bucket {$290,395): 

We send tax money to Washington and what does Russ Feingold do with it? Eight 

hundred billion dollars for the jobless stimulus. Two point five trillion for a healthcare 

plan that hurts seniors. A budget that forces us to borrow nine trillion dollars. And when 

he had a chance at reform, he voted against the Balanced Budget Amendment. Russ 

Feingold and our money. What a mess. [Superimposed text: Russ Feingold. What a 

mess.] 
1 

MUR 6589R (American Action Network) 

Statement of Reasons 

Page 12 of 19 

Like the ads pertaining to the Bush tax cuts, the use of "November" in AAN's federal 

spending ads appears to refer to the upcoming lame-duck session. Otherwise, these ads contain 

no references to elections, candidacies, or the campaign process. Instead, they address the 

federal spending debate occurring in 2010 and (other than the "Bucket" ad) ask viewers to 

contact the named officeholders and tell them to "vote to cut spending" (Back Pack and Naked); 

"stop voting for reckless spending" (Promise); and "vote 'no' on a second, wasteful stimulus" 

(Wasted). The "Naked" ad specifically references a bill that AAN wants the named officeholder 

to support. 

The criticisms directed toward the named officeholders focus on past actions related to 

g federal spending increases and, in nearly every ad, culminate in calls for the ofKceholdere to 

change then- voting behavior in the upcoming lame-duck session. Because their content and calls 

to action are focused on legislative issues likely to arise in the lame-duck session, we conclude 

that "Back Pack," "Naked," "Promise," and "Wasted" do not indicate a major purpose to 

nominate or elect federal candidates. 

"Bucket," by contrast, contains no call to take a particular legislative action. Rather, it • 

begins with policy-based criticisms of then-Senator Feingold's voting record and then concludes 

with; "Russ Feingold. What a mess." Although this ad could be viewed as an issue ad because 

it does not reference Mr. Feingold's candidacy, the upcoming election, or any electoral actions 

that the viewer could take, and it focuses on policy issues and past votes, for purposes of this 

analysis we will deem the ad to be indicative of the purpose to nominate or elect a federal 

candidate. We make this decision because the ad does not urge Mr. Feingold to take a particular 

legislative action, ask viewers to contact Mr. Feingold to urge him to take action or provide 

contact information for viewers to contact Mr. Feingold on their own initiative, nor does it 

reference a particular bill or proposal pending in Congress. In sum, the ad's purpose appears to 

be more about creating a negative impression of Mr. Feingold in the mind of the viewer than on 

changing Mr. Feingold's legislative behavior. Therefore, we conclude that "Bucket" is 

indicative of a major purpose to nominate or elect federal candidates. 

3. Healthcare 

In the fall of 2010, Congress was engaged in a lengthy debate over efforts to repeal the 

Affordable Care Act. By September of that year, 15 bills had been introduced in Congress to 

repeal or revise the law.'*'' AAN described itself as "strongly opposed" to the Affordable Care 

Act. During the ongoing debate, AAN spent about $3.58 million on six advertisements 

advocating its position and urging viewers to lobby their congressional representatives to fix or 

repeal the law: 

(1) Leadership ($146,135): 

[Announcer:] Herseth Sandlin on health care: [Herseth Sandlin:] "I stood up to my party 

leadership and voted no." [Announcer:] The truth is Herseth Sandlin supports keeping 

See Jenks, supra note 30. 
f 

MUR 6S89R (American Action Network) 

Statement of Reasons 

Page 13 of 19 

Obamacare, a trillion dollar health care debacle, billions in new job-killing taxes. It cuts 

five hundred billion from Medicare for seniors then spends our money on health care for 

illegal immigrants. Tell Congresswoman Herseth Sandlin to vote for repeal in 

November. [Superimposed text: "Tell Congresswoman Herseth Sandlin to vote for 

repeal in November H.R. 4903 (202)225-2801"]. 

(2) Mess ($137,900): 

A government health care mess thanks to Nancy Pelosi and Chris Murphy. Five hundred 

billion in Medicare cuts, fi:ee health care for illegal immigrants, thousands of new IRS 

agents, jail time for anyone without coverage, and now a forty-seven percent increase in 

Connecticut health care premiums. Forty-seven percent! Call Chris Murphy. Tell him to 

repeal his government health care mess. [Superimposed text: "Call Chris Murphy. In 

November, tell him to repeal his government healthcare mess. Vote for H.R. 4903.'T 

(3) Read This ($1,065,000): 

[On-screen text:] Congress doesn't want you to read this. Just like [Charlie Wilson/Jim 

Himes/Chris Muiphy]. [Charlie Wilson/Jim Himes/Chris Murphy] & Nancy Pelosi 

rammed through government healthcare. Without Congress reading all the details. $500 

billion in Medicare cuts. Free healthcare for illegal immigrants. Even Viagra for 

convicted sex offenders. So tell [Charlie Wilson/Jim Himes/Chris Murphy] to read this: 

In November, fix the healthcare mess Congress made. 

(4) ($435,000): 

Obamacare. A trillion-dollar health care debacle. Yet Congressman Critz says he 

opposes repealing it. It means five hundred billion in new job-killing taxes. Cuts billions 

from Medicare for seniors. And spends our tax dollars on health insurance for illegal 

immigrants. Yet Congressman Critz says he wants to keep it. Tell Congressman Mark 

Critz to vote for repeal in November. [Superimposed text: "Tell Congressman Critz, 

Vote for Repeal in November. H.R. 4903. (202)225-2065"]. 

(5) ($370,000): 

Remember this? [PELOSI:] "We have to pass the bill so that you can, uh, find out what 

is in it." Now we know what Pelosi and Mark Schauer were hiding. A trillion-dollar 

health care debacle. Billions in new job-killing taxes. They cut five hundred billion fi-om 

Medicare for seniors, then spent our money on health insurance for illegal immigrants. In 

November, tell Congressman Mark Schauer to vote for repeal. [Superimposed text: "In 

November, tell Schauer to vote for repeal H.R. 4903 (202)225-6276"]. 
? 

MUR 6589R (American Action Network) 

Statement of Reasons 

Page 14 of i9 

(6) Skype^^ ($1,430,000): 

Person 1: Hey, what's up? 

Person 2: Hey. You have to check out the article I just sent you. Apparently, convicted 

rapists can get Viagra paid for by the new health care bill. 

Person 1: Are you serious? 

Person 2: Yep. I mean, Viagra for rapists? With my tax dollars? And Congressman 

Perlmutter [Congresswoman Titus] voted for it. 

Person 1: Perlmutter [Titus] voted for it? 

Person 2: Yep. I mean, what is going on in Washington? 

Person 1: [In November] We need to tell Perlmutter [Titus] to repeal it in November. 

[Superimposed text: "Tell Congresswoman Titus to vote for repeal in November. Vote 

Yes on H.R. 4903. (202)225-3252"] 

Each of these ads criticizes provisions of the Affordable Care Act and advocates for its 

repeal. Five of the six ads specifically identify H.R. 4903, which called for repeal of the entire 

Affordable Care Act, and urge viewers to lobby theii- representatives to vote for it. None of these 

ads makes any reference to candidacies or the election. Similar to the ads discussed above, the 

references to "November" in the healthcare ads relate to officeholders participating in the lameduck session of Congress. The criticisms contained in the ads ai'e couched in terms of past votes 

taken by the named officeholders and are accompanied by calls to action designed to influence 

the officeholders' votes in the lame-duck session. And regardless of whether they won 

reelection, every named officeholder would be participating in the lame-duck session. For these 

reasons, we conclude that these ads do not indicate a major purpose to nominate or elect federal 

candidates. 

As the court suggested, a close call among these ads is "Read This." The ad criticizes not 

only the policy judgment of the named officeholders but also the officeholders' role in the 

process by which the Affordable Care Act was enacted. And one could argue that the call to 

action — "fix the healthcare mess Congress made" — could be read to ask viewers (rather than 

the named officeholders) to act "[i]n November." However, in light of the ongoing debate in 

Congress regarding the Affordable Care Act and the fact that Congress would meet in 

November, we conclude that this ad is best understood as a call to action to motivate viewers to 

contact the named officeholders and tell them to "fix the healthcare mess" during the lame-duck 

session. Nevertheless, as explained further below, even if the spending for this ad were 

considered indicative of a major purpose to nominate or elect federal candidates, AAN's overall 

spending still would not trigger the major purpose threshold. 

^ The text below was from the version that identified Congressman Perlmutter with brackets around text that 

differed in the version that identified Congresswoman Titus. 
MUR 6S89R (American Action Network) 

Statement of Reasons 

Page 15 of 19 

4. Energy 

In 2009, the House of Representatives passed a cap-and-trade bill that quickly generated 

considerable controversy.''® Presumably because of the politically charged debate surrounding 

cap-and-trade, the Senate did not take up the House bill before going into recess prior to the 

election,^^ leading to speculation that Congress might attempt to vote on it during the lame-duck 

session.''® It is against this background that AAN spent $711,000 on two ads opposing the capand-trade legislation, which was consistent with the group's position on energy issues in 

general.*" 

I (a) Read This (Boucher) ($226,000); 

^ [On screen text] Rick Boucher wants to keep you in the dark. About his Washington Cap 

4 and Trade deal. Boucher sided with Nancy Pelosi. For billions in new energy taxes. 

4 That will kill thousands of Virginia jobs. But Rick Boucher didn't just vote for Cap and 

Trade. The Sierra Club called Boucher the "linchpin" of the entire deal. Call Rick 

Boucher. [Phone number at top of screen] Tell him no more deals. 

(b) New Hampshire ($484,999): 

Winter's here soon. Guess Congressman Hodes has never spent nights sleepless, unable 

to pay utility bills. Why else would he vote for the cap-and-trade tax? Raise electric 

rates by ninety percent? Increase gas to four dollars? Cost us another two million jobs? 

Kelly Ayotte would stop the cap-and-trade tax. Cold. 

"Read This (Boucher)" contains no references to candidacies or the election. Rather, it 

criticizes the cap-and-trade bill and Mr. Boucher's role in its passage. It ui-ges viewers to call 

Mr. Boucher to "[tjell him no more deals." Thus, the c^ill to action focuses on altering Mr. 

Boucher's voting stance rather than encoure^ing viewers to defeat Mr. Boucher in the election. 

The House passed the American Clean Energy and Security Act of2009 (H,R. 2454) on June 26,2009 by a 

vote of 219-212. httDs://www.govtrack.us/coneress4)ills/l 1 l/hr24S4. 

During the summer of 2010, The Hill reported that "[o]ne issue that apparently won't creep back onto the 

agenda is legislation to impose a cap on greenhouse gas emissions. 'It doesn't appear so at this stage,' [then-Senate 

Majority Leader Harry] Reid said when asked whether a cap-and-trade plan could be revived. 'It doesn't have the 

traction that a lot of us wish it had.'" Ben Geman, Reid Puts Renewables Mandate in f/qy, Eyes Lame-Duck Energy 

Bill, The Hill, Aug. 31,2010, http://thehill.com/Dolicv/energv-environment/116633-reid-put-renewables-mandateback-in-plav-eves-lame-duck-energy-bill. 

** Id. C'Reid also suggested passing energy legislation could be more likely during a lame-duck session"). 

^ Empowering American-Made Energy, 

https://americanactionnetwork.Org/categoiv/energv/#axzz4M3Kftah] ("America is blessed with abundant energy 

resources—oil, natural gas, wind, solar, water and more. Along with clean energy technologies, our economy 

should be fiieled by an all-of-the-above policy—not choked by detrimental Washington regulations and energy 

bans."). 
4 

4 

4 

MUR 6S89R (American Action Network) 

Statement of Masons 

Page 16 of 19 

Considering the possibility that cap-and-trade legislation would be considered by Congress 

during the lame-duck session, Mr. Boucher's participation in the debate on cap-and-trade if it 

were to be considered, and AAN's position on this issue, we conclude that "Read This" is best 

categorized as a grassroots lobbying ad. 

Similar to "Read This (Boucher)," "New Hampshire" also contains criticisms of a sitting 

officeholder's past votes on cap-and-trade legislation. However, it does not contain a call to 

action. And while the ad contains no express references to candidacies or the election, it 

contrasts Mr. Hodes' position with that of Kelly Ayotte, who was Mi'. Hodes' opponent in the 

2010 U.S. Senate race held in New Hampshire. This contrast may indicate an electoral purpose. 

Accordingly, the funds spent on "New Hampshire" will be added to the amounts AAN spent on 

independent expenditures for purposes of determining the group's major purpose. 

5. Miscellaneous 

The following two ads do not have a specific issue-oriented focus but rather assess 

several different policy positions taken by the named individuals. Since neither individual 

mentioned in the ads was a sitting officeholder at the time the ads ran, the prospect of a lameduck session in November 2010 is an irrelevant factor when evaluating their content. 

(a) Orrfer ($225,000): 

[On screen text;] If Nancy Pelosi gave an order... would you follow it? Mike Oliverio 

would. Oliverio says he would support Pelosi in Washington. After all, Oliverio voted 

himself a 33% pay raise. Oliverio voted for higher taxes. Even on gas. And Oliverio 

won't repeal Obama's $500 billion Medicare cuts. So what will Mike Oliverio do in 

Washington? Whatever Nancy Pelosi tells him to. 

(b) Extreme ($875,000): 

[On screen text:] Nancy Pelosi is not extreme. Compared to Annie Kuster. Kuster 

supported the trillion dollar government Healthcare takeover. But says it didn't go far 

enough. $525 billion in new taxes for government Healthcare. Now, Kuster wants $700 

billion in higher taxes on families and businesses. And $846 billion in job killing taxes 

for cap and trade. Nancy Pelosi is not extreme. Compared to Annie Kuster. 

Neither ad contains a call to action, nor do they focus on changing the voting behavior or 

policy stances of the named individuals now or in the future. Thus, they do not appear to be 

grassroots lobbying communications. In fact, the subtext of both ads is that neither individual is 

likely to change since, in the case of Mr. Oliverio, he will do "[wjhatever Nancy Pelosi tells him 

to," while in the case of Ms. Kuster, she is more extreme than Nancy Pelosi. And though there is 

no express election-related content in either ad, "Order" criticizes what Mr. Oliverio would "do 

in Washington" — namely, "support Nancy Pelosi — while "Extreme" criticizes Ms. Kuster's 

positions on federal policies. The ads thus appear to be untethered to an issue and may 
MUR 6589R (American Action Network) 

Statement of Reasons 

Page 17 of 19 

reasonably support an inference that their cost may count toward a determination that AAN's 

major purpose was the nomination or election of federal candidates. 

C. Spending Analysis Conclusion 

From its founding in July 2009 through June 2011, AAN reported spending $27,139,009. 

Of that amount, AAN spent approximately $4,096,910 on independent expenditures (15% of its 

overall spending).^" As explained above, we add to this dollar figure the spending associated 

with the "Bucket," "New Hampshire," "Order," and "Extreme" ($1,875,394) ads, which yields a 

total of $5,972,304 or 22% of AAN's overall spending. Even if we were to add in the costs for 

the "Read This" ad ($1,065,000),^' AAN's total outlay on ads indicating a purpose to nominate 

or elect federal candidates would still constitute only 26% — well under half — of its overall 

spending.^^ 

III. CONCLUSION 

The Supreme Court has held that the Commission may regulate entities as "political 

committees" within the meaning of the Act only if they have as their major purpose the 

nomination or election of a candidate. Our judicieilly approved case-by-case approach to 

determining political conimittee status involves a fact-intensive analysis of an organization's 

"overall conduct" to determine "whether its major purpose is Federal campaign activity the 

nomination or election of a candidate)."^^ According to the 2007 Supplemental E&J, "[ajpplying 

the major purpose doctrine ... requires the flexibility of a case-by-case analysis of an 

organization's conduct that is incompatible with a one-size-fits-all rule."®^ 

As noted above, the Court here refrained fixjm establishing a "bright-line rule" of its 

own.^® The Court found that "the FEC's choices regarding the timeframe and spending amounts 

relevant in applying the major purpose test are implementation choices within the agency's 

sphere of competence, and therefore waiTant deference.®' The Court also acknowledged that the 

'® MUR 6589 (AAN), Supplemental Response (Form 990: Return of Organization Exempt from Income Tax 

2010). 

For the reasons discussed above, we conclude that this ad is better categorized as a grassroots lobbying 

communication. 

" Even if we considered AAN's spending solely in a single year (the July 1,2010 to June 30,2011 fiscal year 

disclosed on its 2010 IRS Form 990), the amount of its spending that indicates a purpose to nominate or elect federal 

candidates would constitute less than 28% of its total spending in that time period (^,037,304 of $25,692,334). 

R«cWey,424U.S.,at79. 

''' Supplemental E&J at 5597. 

» W. at 5601. 

« CRElFv. FEC. 2016 WL 5107018 at *10. 

" Id at *7. 
1 

I 

VTUR 6589R (American Action Network) 

Statement of Reasons 

Page 18 of 19 

Commission's "adjudicative, case-by-case approach" to determining a group's political 

committee status is "an implementation choice which has been litigated, scrutinized, and 

ultimately validated by a fellow court in this District."®' 

Accordingly, we have endeavored to implement our case-by-case approach in conformity 

with the analytical standards addi-essed in the Court's opinion to adjudicate AAN's political 

committee status. This entailed a holistic analysis, incorporating a fact-intensive comparison of 

organizational documents, activities, and communications in the administrative record.®' We 

relied heavily on our expertise and experience regulating political activities and non-political 

committees, while remaining mindful of the challenges we face when administering and 

enforcing the Act's requirements against a broad range of groups and political activities, and in 

consideration of the public's need and right to understand prospectively the law and regulatory 

consequences of its political speech. 

One aspect of an organization's "overall conduct" that we evaluate is its spending on 

communications that clearly manifest the purpose to nominate or elect a federal candidate. 

When we first considered this matter,- we concluded that AAN's electioneering communications 

at issue in this matter were issue ads that did not contain express advocacy and, therefore, did not 

count towards the amount of its spending that could indicate that its major purpose was the 

nomination or election of candidates. On remand, we considered all electioneering 

communications on an ad-by-ad basis. We counted the costs of those that communicated a clear 

purpose of nominating or.electing federal candidates and compared those expenditures to AAN's 

overall spending. In this case, sUch spending totaled no more than 26% of AAN's overall 

spending. 

In sum, upon conducting our fact-intensive case-by-case analysis, which included 

consideration of AAN's mode of organization, official statements, and the fact that less than half 

of its spending indicates a major purpose of nominating or electing candidates, we conclude that 

there is no reason to believe that AAN violated the Act by failing to register with the 

Commission as a political committee. 

» W.at *2 (citing S/iqys v. FEC. 424 F.Supp.2d 100 (D.D.C. 2006); Shays v. FEC, 511 F.Supp.2d 19,30 

(D.D.C.2007)). 

" MUR 6589 (American Action Network), Statement of Reasons of Chairman Lee E. Goodman and 

Commissioners Caroline C. Hunter and Matthew S. Petersen at 17-20. 
MUR 6S89R (American Action Network) 

Statement of Reasons 

Page 19 of 19 

4 

4 

4 

? 

Phr. H JZOIU 

Date ^ 

Qr^-i>Lcx- /?. '^/(a 

3ate 

Matthei^S. Petersen 

Chairman 

Lee Bf Goodman 

Commissioner 

ine C. Hunter 

Commissioner