FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO: 

FROM: 

DATE: 

SUBJECT: 

The Commission 

Office of the Commission Secretary VFV

September 12, 2022

AO 2022-19 (Maggie for NH) Comment

Attached is a comment memo on AO 2022-19 (Maggie for 

NH).

Attachment
September 9, 2022

Federal Election Commission

1050 First Street, NE

Washington, DC 20463 

Re: Advisory Opinion Request 2022-19

Dear Commissioners,

The undersigned counsel submit the following comments on Advisory Opinion Request 

2022-19 (Maggie for NH) on behalf of the NRSC. 

Requestor’s counsel originally asked if a campaign committee’s text messages to 

supporters that provide a link to a “split-it” fundraising page would be subject to the 

Commission’s joint fundraising rules. Through a series of follow-up questions, counsel 

confirmed that there would be nothing whatsoever “joint” about any aspect of its proposal. 

Based on those representations, the answer to counsel’s question was entirely obvious and we 

doubt we are the only ones who wondered why counsel would feel compelled to ask the question 

in the first place. 

The Commission proposed a draft response, to be voted on tally today, that answered 

Requestor’s question consistent with Commission precedent. Advisory Opinion 2014-13 

provides the answer, although perhaps not in the explicit detail counsel requires. In 2014, the 

Commission wrote: “ActBlue asks whether use of the Split It box on a contribution form would 

trigger these joint fundraising requirements when the solicitation at issue would otherwise not be 

considered joint fundraising. The Commission concludes it would not.” Advisory Opinion 

2014-13 at 5. In the pending request, the proposed text messages are “the solicitation at issue” 

and counsel represents that those text messages would be produced and distributed solely by 

Maggie for NH without any other committee’s involvement and that there are absolutely no other 

indicia of joint fundraising present. The pending request falls squarely within ground already 

covered by Advisory Opinion 2014-13. 

The requestor’s counsel reveals an awareness of the stakes at issue, explaining that 

“[t]reating text messages that promote split-it pages as joint fundraising would subject many of 

these campaigns and organizations – and their millions of supporters – to the expensive and 

onerous process of establishing a new joint fundraising committee, executing a new joint 

fundraising agreement, establishing a new depository, and so forth, merely on the basis of 

embedding an existing form for another campaign on an existing fundraising page.” Advisory 

Opinion Request 2022-19 at 4. This is all correct – counsel asks for the Commission to bless a 

widespread practice that has existed for years on solid legal ground, and has already been blessed 

by the Commission in Advisory Opinion 2014-13. Why that blessing is needed again now is 
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unclear as no new developments or technologies have emerged that might change the legal 

calculus. Nevertheless, counsel placed the broad, unquestioned consensus upon which both 

parties’ main fundraising platforms are built up for debate.

In its draft response, the Commission answered the Requestor’s question exactly as it 

should. However, requestor now complains that the Commission did not address an additional 

question and asks the Commission to determine whether potentially coordinated text messages 

should be treated as in-kind contributions, or whether they are not subject to such analysis 

because they do not qualify as public communications. The question presented in Requestor’s 

comment, however, is not what was presented in their original request. The original Request 

presented the entire proposal as an independent effort, yet now, for reasons that are utterly 

inexplicable, counsel says there may have been collaboration in some regard with respect to 

other efforts so their text messages may be coordinated after all. 

In Part B of the original Request, counsel seeks to relitigate a failed advisory opinion 

request from last year in what seems to be a concerted effort to turn an easy win into a loss. 

Despite the Commission’s response in Advisory Opinion 2014-13 being key to the pending 

request, and despite that opinion being extremely important to the broader fundraising operations 

of both major political parties, counsel nevertheless proposes this alternative approach. The 

header of Part B reads, “Even if the use of a ‘split-it’ fundraising page were to constitute an 

‘agreement to fundraise jointly’ ....” Advisory Opinion Request 2022-19 at 5. We certainly 

hope counsel did not mean to suggest that the Commission should reconsider a central piece of 

modern political fundraising, but if that is what counsel is inviting, the Commission should 

continue to decline that invitation. 

Counsel’s proposal in Part B assumes the proposed activity “could constitute joint 

fundraising,” Advisory Opinion Request 2022-19 at 8, and calls for the Commission to 

reconsider an issue that divided it last year. Neither part of this is a good idea. In Advisory 

Opinion 2021-11, some of the same lawyers, representing the DSCC and DCCC, asked the 

Commission to conclude that text messages are not public communications. The implications 

were unstated in the request, but fairly obvious. Quite predictably, the Commission divided on 

the question and issued a close-out letter. Now, counsel would apparently have the Commission 

set aside the unanimously decided Advisory Opinion 2014-13, upon which the entire federal 

fundraising community relies, for the sake of rehashing the debate from Advisory Opinion 2021-

11. This is a bad idea and terrible strategy, and does a tremendous disservice to everyone who 

relies heavily on the very precedent counsel now asks the Commission to revisit, and who do so 

without needing to incur attorneys’ fees to confidently move forward. And this appears to be a 

deliberate strategy, as the Elias Group has now submitted nearly 37% of the Commission’s AO 

requests this year, most requesting unnecessary clarification on well-established precedent. 

We express no opinion here on the substance of counsel’s public communication 

arguments. Counsel’s main question – whether the proposed text messages are subject to the 

joint fundraising rules – was answered by the Commission years ago, and can be answered 

(again) here, hopefully unanimously, without addressing counsel’s alternate theory that assumes 

the proposed texts are subject to the joint fundraising rules. They are not, so there is no need to 
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indulge the hypothetical assumption in order to reach a question that is certain to divide the 

Commission.

*****

Counsel’s comment appears to be a bait-and-switch tactic. The original question 

presented in Part A is easily answered based on counsel’s original representations. Counsel’s 

comment, however, undermines those original representations and throws a new factor into the 

mix at the last minute.

If the Commission intends to vote on tally today, we urge it to answer the question 

originally presented in Part A as reflected in the existing draft response, and to avoid in any way 

suggesting that Advisory Opinion 2014-13 has been reconsidered or superseded. The 

Commission should not indulge whatever game counsel is playing with Part B of the request and 

its latest comment. If the requestor insists on pressing the questions raised in Part B and its 

comment, those questions should be part of a separate request that can be addressed on the basis 

of a separately developed fact pattern that has not been changed by counsel at the very end of the 

process. 

Sincerely,

Jessica F. Johnson

Michael Bayes

Counsel to NRSC