FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

STATEMENT OF REASONS OF COMMISSIONERS

SHANA M. BROUSSARD AND ELLEN L. WEINTRAUB

In 2018, a federal district court struck down a Commission regulation permitting groups 

like Heritage Action for America (“Heritage Action”), a 501(c)(4) nonprofit organization, to skirt 

donor disclosure rules while making independent expenditures.1 The decision was a victory for 

enforcing the law as written by Congress. The Commission issued guidance on the impact of the 

decision on October 4, 2018.2 This guidance was issued on a consensus basis, with the input of all 

then-sitting commissioners. It was thorough and closely followed the requirements of the law as 

interpreted by the federal courts. It explained who needed to report what, when, and how to do so. 

In that guidance, the Commission noted that it would exercise prosecutorial discretion for 

the quarterly reports due October 15, 2018 and detailed how it would do so.

3 The Commission thus 

made clear the reporting rules for independent expenditures made on or after September 18, 2018, 

the effective date of the court’s decision.

4

1 CREW v. Fed. Election Comm’n, 316 F. Supp. 3d 349 (D.D.C. 2018) (CREW I). This decision was later affirmed 

the D.C. Circuit, Crossroads GPS v. CREW, 971 F.3d 340 (D.C. Cir. 2020) (CREW II), and the decision went into 

effect September 18, 2018. See also 52 U.S.C. § 30101(17) (defining “independent expenditure” as an expenditure 

by a person “expressly advocating the election or defeat of a clearly identified candidate ...that is not made in 

concert or cooperation with or at the request or suggestion of such candidate, the candidate’s authorized political 

committee, or their agents, or a political committee or its agents”). 

2 See Press Release, FEC Provides Guidance Following U.S. District Court Decision in CREW v. FEC, 316 F. Supp. 

3d 349 (D.D.C. 2018) (Oct. 4, 2018), available at https://www.fec.gov/updates/fec-provides-guidance-following-usdistrict-court-decision-crew-v-fec-316-f-supp-3d-349-ddc-2018/. 

3

Id.

4

Id.

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of

Heritage Action for America

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 MUR 7516

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MUR 7516 (Heritage Action for America) 

Statement of Reasons of Commissioners Broussard and Weintraub 

Page 2 of 4 

This matter turns on whether Heritage Action was required to report its donors when 

making independent expenditures on or after September 18, 2018. An examination of the Federal 

Election Campaign Act, as amended (the “Act”) and the related judicial decisions presents a clear 

answer on that question: Heritage Action was required to report its donors. It did not. For that 

reason, our nonpartisan Office of General Counsel recommended finding reason to believe that 

Heritage Action violated the law.5 We agreed and voted to authorize an investigation.6

Unfortunately, our Republican colleagues voted against moving forward and the Commission once 

again was unable to enforce the law.7 

The Act requires a person (other than a political committee) who makes independent 

expenditures to report certain information about their contributors. The specific statutory 

requirements are as follows: 

• 52 U.S.C. § 30104(c)(1) requires every person (other than a political committee)

reporting independent expenditures in excess of $250 to disclose the information

required under section 30104(b)(3)(A) “for all contributions received by such

person.” (emphasis added)

• 52 U.S.C. § 30104(b)(3)(A) requires the identification of each person (other than a

political committee) who makes a contribution to the reporting committee during

the reporting period aggregating in excess of $200 within the calendar year, along

with the date and amount of any such contribution.

• 52 U.S.C. § 30104(c)(2)(C) requires that every person reporting independent

expenditures must also identify “each person who made a contribution in excess of

$200 . . . which was made for the purpose of furthering an independent

expenditure.” (emphasis added)

In short, for any reporting period in which anyone (other than a political committee) makes more 

than $250 in independent expenditures, section 30104(c)(1) requires that person to report the 

5 First Gen. Counsel’s Rpt., MUR 7516 at 2 (Heritage Action for America), dated Feb. 19, 2021. OGC 

recommended moving forward with a reason to believe finding and investigation of Heritage Action’s reported 

independent expenditures specifically related to the organization’s second and significant tranche of independent 

expenditures captured on the organization’s 2018 Year-End Report, which disclosed $1,559,319.71 in independent 

expenditures without disclosing a single donor. Id. at 6.

6 See Certification, MUR 7516 (Heritage Action for America), dated Apr. 23, 2021. 

7

Id. Not satisfied with refusing to enforce the law in this particular matter, the Republican commissioners have put 

out a statement announcing their intent to continue to defy the court’s decision requiring enhanced disclosure by 

refusing to enforce the law unless and until the Commission adopts a rule to their liking,. Not surprisingly, they have 

indicated that such a rule would dramatically narrow the scope of the statute as adopted by Congress and interpreted 

by the courts. See Pol’y Stmt. of Chairman Allen Dickerson, & Comm’rs Sean J. Cooksey & James E. “Trey” 

Trainor, III Concerning the Application of 53 U.S.C. § 30104(c) (June 8, 2022),

CREW_contributions_earmarked_political_purposes_Dickerson_Cooksey_Trainor_06082022.pdf (fec.gov).

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MUR 7516 (Heritage Action for America) 

Statement of Reasons of Commissioners Broussard and Weintraub 

Page 3 of 4 

names of those who gave more than $200 in that reporting period and the dates and amounts of 

those contributions. That requirement holds “regardless of any connection to IEs eventually 

made.”8In addition, section 30104(c)(2)(C) requires the identification of any person who 

contributed more than $200 for the purpose of furthering any independent expenditure. 

The Commission’s regulation at 11 C.F.R. § 109.10(e)(1)(vi), however, impermissibly narrowed 

the scope of the statute’s mandated disclosure by requiring only “[t]he identification of each person 

who made a contribution in excess of $200 to the person filing such report,” when the “contribution 

was made for the purpose of furthering the reported independent expenditure.”9 

On August 3, 2018, the District Court for the District of Columbia vacated 11 C.F.R. § 

109.10(e)(1)(vi) because it conflicted with 52 U.S.C. § 30104(c)(1) and (c)(2)(C). Specifically, the 

Court observed that “those donors funding the not-political committee’s political activities to 

influence a federal election—by, for example, making contributions to candidates, political 

committees, or political parties or by financing independent expenditures—must be identified to 

inform the electorate on the sources of funding of participants in the electoral process.”10 After a 

brief stay, the vacatur of this regulation took effect on September 18, 2018. In affirming the district 

court’s ruling in 2020, the D.C. Circuit noted that groups (like Heritage Action) making 

independent expenditures would “be required, as a result of the district court’s judgment, to 

disclose nearly all contributions it receives during any reporting period in which it makes 

[independent expenditures].”11

Throughout the 2018 election cycle, Heritage Action publicly shared its plan to make 

independent expenditures. In fact, Heritage announced its plan to fund independent expenditures 

less than a week after the CREW decision.12

While Heritage Action could have continued on with their spending strategy following the 

CREW decision and complied with the law by simply disclosing its donors pursuant to the statutory 

requirement, it appears to have remained on course with the same spending and non-disclosure 

strategy. The record shows that on August 8, 2018, five days after the district court issued the 

CREW decision, Heritage Action issued a press release stating its intent to “spend $2.5 million and 

back 12 candidates this November.”13 Heritage Action’s press release, as well as press coverage 

of the announcement of the group’s planned spending, identified the twelve congressional 

candidates by name and district and stated that the group planned to engage in a “combined digital, 

8 CREW II, 971 F.3d at 350-51.

9 11 C.F.R. § 109.10(e)(1)(vi) (vacated) (emphasis added). 

10 First Gen. Counsel’s Rpt. at 10 (citing CREW I, 316 F. Supp. 3d at 401).

11 CREW II, 971 F.3d at 347. 

12 See First Gen. Counsel’s Rpt. at 2. 

13 Id. at 3 (citing Press Release, Heritage Action for America, Heritage Action to spend $2.5 million and back 12 

candidates this November (Aug. 8, 2018), https://heritageaction.com/press/heritage-action-to-spend-2-5-millionand-back-12-candidates-this-november)). 

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MUR 7516 (Heritage Action for America) 

Statement of Reasons of Commissioners Broussard and Weintraub 

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print, and TV advertising campaign.”

14 Heritage Action Executive Director Tim Chapman stated 

on the same day as the press release, “What we’re telling donors is, every dollar we raise over our 

budget we can effectively pour more into these races.”15 Heritage Action told their donors that the 

money it was raising would be used to fund independent expenditures on behalf of a specific 

group of candidates. And to give credit where credit is due, Heritage Action kept its promise. 

Heritage Action disclosed over $1,933,496 for independent expenditures during the 2018 

general election. Nearly 94% of those independent expenditures supported the same twelve 

candidates Heritage Action had announced it planned to support.16 The disclosure reports for this 

activity did not include any donor information. 

The law is clear today, and it was clear when the funds in question were spent: The D.C. 

Circuit held that the law requires IE-makers to disclose “nearly all” contributions received during 

a reporting period when IEs were made. Heritage Action disclosed none. And once again, 

Republican FEC commissioners have deprived the American people of information about the 

sources of political spending, information that Congress and the courts have determined the public 

is entitled to know. 

____________________ __________________________

Date Shana M. Broussard 

Commissioner

____________________ __________________________

Date Ellen L. Weintraub 

Commissioner

14 Id.

15 Id. (citing Katie Glueck, Conservative DC Group Throws Money to McGrath’s Opponent, 11 Other Republicans, 

MCCLATCHY (Aug. 8, 2018), https://www.mcclatchydc.com/news/politics-government/article216227855.html)). 

16 This included $1,811,736.87 in independent expenditures supporting the same twelve candidates, with 

$374,177.20 in independent expenditures supporting those twelve candidates reported on the October 2018 

Quarterly Report and $1,437,559.67 in independent expenditures supporting those same twelve candidates reported 

on Heritage Action’s 2018 Year-End Report. First Gen. Counsels Rpt. at 12. Neither report contained any donor 

information.

July 7, 2022

July 7, 2022

MUR751600081