FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

October 11, 2022

AOR 2022-21 (DSCC, et al.) CLC Comment

Attached is AOR 2022-21 (DSCC, et al.) CLC Comment.

Attachment 
Federal Election Commission 

1050 First Street, NE 

Washington, DC 20463 

ao@fec.gov 

RE: Advisory Opinion Request 2022-21 (DSCC, et al.) 

Dear Commissioners, 

Campaign Legal Center (“CLC”) respectfully submits this comment regarding 

Advisory Opinion Request 2022-21 (DSCC, et al.). The DSCC, a national 

congressional campaign committee, states that it plans to use restricted funds 

in a special purpose account for recounts and other legal proceedings to pay for 

television ads soliciting donations to that account — including ads that will 

expressly advocate for or against the election of federal candidates.1 

The Commission should either dismiss the DSCC’s submission as an invalid 

advisory opinion request, or, alternatively, make clear that national party 

committees cannot used the restricted funds in a special purpose “legal 

proceedings” account to make expenditures. 

The Submission Is Not a Valid Advisory Opinion Request 

As a threshold matter, the DSCC’s submission “do[es] not qualify as [an] 

advisory opinion request” because it clearly pertains to “the activities of third 

parties.”2 As publicly reported, CLC and End Citizens United have filed a 

complaint with the Commission alleging there is reason to believe the DSCC’s 

Republican counterpart, the NRSC, has violated the Federal Election 

Campaign Act (“FECA”) by making disbursements for campaign expenses from 

a special purpose account for recounts and other legal proceedings. 3 This 

1 Advisory Op. Request 2022-21 at 1-2 (DSCC, et al.) (“AOR”). 

2 11 C.F.R. § 112.1(b). 

3 Shane Goldmacher and Reid J. Epstein, Watchdog Group Accuses Senate G.O.P. 

Campaign Arm of Breaking the Law, N.Y. Times (Sept. 21, 2022), https://www.nytimes.com 

/2022/09/21/us/politics/fec-complaint-republican-campaign-finance.html; Compl., MUR 8071 
2

complaint and the DSCC’s submission both stem directly from the NRSC’s 

conduct.4 Indeed, the DSCC’s counsel appears to have indicated as much to the 

New York Times, which published quotes from the DSCC’s submission before 

the Commission had even made it public.5 And surely it is not a coincidence 

that the DSCC claims it intends to engage in virtually identical conduct to the 

NRSC’s. In sum, the DSCC is asking the Commission to immediately opine on 

the legality of the NRSC’s activity. 

We are not unsympathetic to the situation in which the DSCC finds itself. A 

competitor has broken the law, and the DSCC seeks redress. But FECA and 

Commission regulations provide an avenue for such redress: the enforcement 

process, including the availability of judicial review in the event the 

Commission fails to act or acts unlawfully. Commission regulations wisely do 

not allow the advisory opinion process to be used to circumvent FECA’s 

statutory enforcement scheme, at least in part because doing so could evade 

judicial review of Commission action, inaction, or deadlock. 

We also recognize that election season is in full swing, and an advisory opinion 

would surely provide an answer (or deadlock) more quickly than the results of 

the pending NRSC complaint and any subsequent litigation. But the 

Commission is charged with protecting American voters by administering and 

enforcing FECA, and has no freestanding power or obligation to level the 

partisan playing field by diverting one party’s lawbreaking into an inapposite 

procedure that might benefit the other party, but lacks crucial procedural 

safeguards for the public. The utterly inadequate speed of the Commission’s 

enforcement process must be addressed through the judicial and congressional 

processes, not through ad hoc circumvention. 

The requestors are transparently attempting to misuse the Commission’s 

advisory opinion process, and the Commission should not take the bait. 

FECA Prohibits the Use of Restricted Funds in “Legal Proceedings” 

Accounts to Make Expenditures

Should the Commission nevertheless decide to issue an advisory opinion in 

response to this request, we respectfully urge the Commission to make 

abundantly clear that national party committees cannot use funds in a special 

purpose account for recounts and other legal proceedings to pay for public 

(Sept. 19, 2022), available at https://campaignlegal.org/sites/default/files/2022-09/NRSC%20 

Complaint%20%28Final%29.pdf.

4 See Compl., MUR 8071; Shane Goldmacher, How a Record Cash Haul Vanished for 

Senate Republicans, N.Y. Times (Sept. 3, 2022), https://www.nytimes.com/2022/09/03/us/pol 

itics/senate-republican-committee-funds.html. 

5 Compare Goldmacher & Epstein, supra (dated Sept. 21, 2022), with AOR 2022-21 at 1 

(finalized Sept. 26, 2022). 
3

communications containing express advocacy, or indeed for anything that 

would result in an expenditure under FECA. 

The Consolidated and Further Continuing Appropriations Act of 2015 allowed 

national party committees, like the NRSC and DSCC, to establish special 

purpose accounts that may accept up to 300% of the otherwise applicable 

annual contribution limits.6 Although the Commission has, for the past seven 

years, failed to enact regulations implementing these statutory provisions,7

both the legislative history of the 2015 Act and subsequent Commission 

precedents plainly indicate that these special purpose accounts may not be 

used “for the purpose of influencing” federal elections — i.e., to make 

“expenditures.”8 As such, the question before the Commission is whether any 

of the requestors’ proposed activities would result in expenditures. 

That question answers itself: television ads that expressly advocate for or 

against federal candidates are obviously “for the purpose of influencing” a 

federal election and thus the payments for those ads are, by definition, 

expenditures.9 Accordingly, national party committees cannot lawfully make 

such payments using restricted funds in a special purpose account for recounts 

and other legal proceedings. 

Should the Commission decide to respond to this request, we respectfully urge 

the Commission to confirm what is already clear in the statute by 

unequivocally stating that committees cannot use these accounts to make 

campaign expenditures. 

 Sincerely, 

 /s/ Saurav Ghosh 

Saurav Ghosh 

Erin Chlopak 

Campaign Legal Center 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

6 See 52 U.S.C. § 30116(a)(9). 

7 See 52 U.S.C. § 30116(a)(9)(C). 

8 52 U.S.C. § 30101(9)(A) (defining “expenditure”); see Factual and Legal Analysis at 7, 

MUR 7390 (RNC); Advisory Op. 2019-02 at 3-4 (Nelson) (citing 160 Cong. Rec. H9286 (daily 

ed. Dec. 11, 2014) (statement of Rep. Boehner); 160 Cong. Rec. S6814 (daily ed. Dec. 13, 

2014) (statement of Sen. Reid)). 

9 See 52 U.S.C. § 30101(17) (defining “independent expenditure”); 11 C.F.R. § 100.22 

(defining “expressly advocating”).