FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO: The Commission

 Staff Director

 Acting General Counsel

 

FROM: Office of the Commission Secretary

DATE: February 16, 2024

SUBJECT: Statement for Advisory Opinion 2024-02 (Citizens 

for Waters) – Vice Chair Ellen L. Weintraub and 

Commissioner Shana M. Broussard

The attached Statement for Advisory Opinion 2024-02 is 

circulated for information. 

Attachment
 

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

STATEMENT OF VICE CHAIR ELLEN L. WEINTRAUB AND COMMISSIONER SHANA 

M. BROUSSARD REGARDING ADVISORY OPINION 2024-02 (WATERS) 

On February 15, 2024, the Commission approved Advisory Opinion 2024-02 (Waters). In that 

request, Congresswoman Maxine Waters and her principal campaign committee, Citizens for 

Waters, stated that they intended to “design, publish and mail brochures featuring her endorsements 

of federal and non-federal candidates”1

 and asked, in part, whether Citizens for Waters could 

receive reimbursements from non-federal candidates and committees, including state candidate 

committees and state independent expenditure-only committees, for each non-federal candidate’s 

share of the costs to design, publish, and mail the brochure. Although the request stated that 

Citizens for Waters would require these non-federal candidates and committees to attest that their 

payments were from funds that do not exceed the Act’s contribution limits or source prohibitions,2

the requestors stated that they did not intend to ask the non-federal committees to attest that the 

payments were from funds that complied with the Act’s reporting requirements.3

 

The draft approved by our colleagues states that “the Act does not require non-federal candidates 

and committees to separately report their reimbursement of a federal candidate for their pro-rata 

share of” a communication that features endorsements of federal candidates. Mysteriously, the 

advisory opinion does not acknowledge the existence of the Act’s provisions stating that “a 

candidate for State or local office may not spend any funds” for a public communication that 

promotes, supports, attacks, or opposes a clearly identified candidate for federal office, “regardless 

of whether a candidate for State or local office is also mentioned or identified” in the 

communication.4 The approved draft further appears to assert that funds that are not subject to the 

reporting requirements of the Act will nonetheless satisfy the Act’s requirement that they be 

“subject to the reporting requirements of the Act.”5

 Such circular logic essentially renders the Act’s 

mandate that a federal candidate and her principal campaign committee “shall not solicit [or] 

receive funds in connection with an election for Federal office... unless the funds are subject to the 

 

1

 Advisory Opinion Request (“AOR”) at AOR001. 

2

 AOR002. 

3

 Advisory Opinion Request Supplement (February 7, 2024). 

4

 52 U.S.C. § 30125(f)(1); see also 52 U.S.C. § 30101(20)(A)(iii). 

5

 Advisory Opinion 2024-02 (Waters) at 4. 
Advisory Opinion 2024-02 (Waters) 

Statement of Vice-Chair Ellen L. Weintraub and Commissioner Shana M. Broussard

limitations, prohibitions, and reporting requirements of the Act” meaningless and directly 

contradicts how the Commission has applied that provision in past enforcement matters.6 

We supported Draft B, attached. For the reasons set out in Draft B and because our colleagues’ 

draft fails to engage with the statutory language passed by Congress in BCRA, we voted against the 

draft adopted today. 

February 15, 2024 ____________________________

Date Ellen L. Weintraub 

Vice-Chair

February 15, 2024 ____________________________

Date Shana M. Broussard 

Commissioner

6 52 U.S.C. § 30125(e)(1)(A). See also Factual & Legal Analysis at 5-6, MUR 7337 (Lesko) (Aug. 13, 2019) 

(stating “the nature of the funds and the funds being subject to the Act’s reporting requirements are separate 

requirements, and the failure to comply with any one aspect is sufficient to comprise a violation.”); Factual & Legal 

Analysis at 14-15, MUR 5646 (Cohen for New Hampshire) (Mar. 3, 2005); Factual & Legal Analysis at 4, MUR 5426 

(Dale Schultz for Congress, et al.) (Feb. 17, 2005); Factual & Legal Analysis at 4, MUR 6253 (Trey Gowdy for 

Congress, et al.) (Oct. 1, 2010); Factual & Legal Analysis at 3, MUR 6219 (Kuhl for Congress, et al.) (Oct. 21, 2009). 

___________________

Sh M B d
 

1 ADVISORY OPINION 2024-02 

2 

3 Leilani Beaver, Esq. 

4 Beaver Legal Corporation DRAFT B

5 220 S. Pine St, Suite 109 

6 Sisters, OR 97759 

7 

8 Dear Ms. Beaver: 

9 

10 We are responding to your advisory opinion request on behalf of Congresswoman 

11 Maxine Waters and Citizens for Waters (collectively, “Requestors”), concerning the 

12 application of the Federal Election Campaign Act, 52 U.S.C. §§ 30101-45 (the “Act”), 

13 and Commission regulations to Requestors’ proposal to solicit and receive reimbursement 

14 from non-federal sources of Requestors’ costs to design, print, and mail certain 

15 brochures. The Commission concludes that the Act and Commission regulations would 

16 prohibit Requestors from soliciting or receiving reimbursement of funds from the non17 federal sources as proposed in the request because although the Requestors represent that 

18 the funds will comply with the Act’s source prohibitions and amount limitations, the 

19 Requestors do not represent that the funds will comply with the Act’s reporting 

20 requirements. 

21 Background 

22 The facts presented in this advisory opinion are based on your letter received on 

23 January 25, 2024, and your emails received on February 1, 2024 and February 7, 2024. 

24 Congresswoman Maxine Waters represents California’s 43rd District in the 

25 United States House of Representatives. Citizens for Waters is her principal campaign 

26 committee. 

27 Requestors intend to design, publish, and mail brochures featuring 

28 Congresswoman Waters’s endorsements of federal and non-federal candidates, together 
AO 2024-02 (Waters) 

Draft B 

Page 2 

1 with her positions of support for or opposition to ballot measures to be voted on the 

2 March 5, 2024, California primary ballot. Citizens for Waters will pay for the costs of 

3 designing, publishing, and mailing the brochures. The brochures will use the same 

4 design and layout as those described in Advisory Opinion 2004-37 (Waters). The space 

5 devoted to each candidate and ballot measure and its prominence on the brochure will be 

6 determined by the candidate’s or ballot measure’s prominence on the primary election 

7 ballot. As in Advisory Opinion 2004-37 (Waters), Requestors anticipate distributing at 

8 least 500 pieces of each version of their proposed brochure by U.S. Mail. 

9 Requestors state that they will use only federally permissible funds to pay for the 

design, publishing, and mailing of the brochures.1 10 Requestors propose to solicit and 

11 receive reimbursement from several types of non-federal sources: (1) the featured non12 federal candidates’ personal funds, (2) the non-federal candidates’ committees; (3) state 

13 independent expenditure-only political committees supporting or opposing the non14 federal candidates; and (4) ballot measure committees supporting or opposing the 

15 featured ballot measures (collectively, “non-federal sources”). Requestors will seek 

16 reimbursement from non-federal sources for the portion of the brochures devoted to each 

1

 Requestors state that the term “federally permissible funds” as used in their request means “funds 

that do not exceed the applicable contribution limitations of the Act and from sources that would not be 

prohibited under the Act from contributing directly to Congresswoman Waters.” Advisory Opinion 

Request (“AOR”) at AOR002 n. 3. The Commission understands that with respect to the funds used by 

Citizens for Waters to pay for the brochures, these funds will also have been reported subject to the Act’s 

reporting requirements. 
AO 2024-02 (Waters) 

Draft B 

Page 3 

1 non-federal candidate and ballot measure, as determined by the candidate’s or ballot 

measure’s pro rata share of the costs to design, publish, and mail the brochure.2 2 

3 Citizens for Waters will invoice the non-federal sources for their pro rata share of 

4 the brochures’ costs. Each invoice will state that Requestors are soliciting and will 

5 accept only “federally permissible funds.” The non-federal sources that reimburse 

6 Citizens for Waters will be required to submit signed invoices attesting that their 

7 payments are from “funds that do not exceed the applicable contribution limits of the Act 

8 and from sources that would not be prohibited under the Act from contributing directly to 

Congresswoman Waters.”3 9 Citizens for Waters further states that it will not ask the nonfederal sources about reporting under the Act.4 10 Citizens for Waters will not accept any 

11 reimbursements that exceed the non-federal candidate’s or committee’s pro rata share of 

12 the costs. Congresswoman Waters will not establish, finance, maintain, or control any of 

13 the non-federal sources reimbursing Citizens for Waters. 

14 Question Presented 

15 May Citizens for Waters receive reimbursements from individuals, non-federal 

16 candidate committees, state independent expenditure-only political committees, and 

17 ballot measure committees to appear in the brochure using funds that do not exceed the 

18 applicable contribution limitations of the Act and from sources that would not be 

19 prohibited under the Act from contributing directly to Congresswoman Waters? 

2

 Pro rata shares will be determined according to the “space or time” method described in 11 C.F.R. 

§ 106.1(a). 

3

 AOR002 n.3. 

4

 Advisory Opinion Request Supplement (February 7, 2024) (“AOR Supp.”) at 1. 
AO 2024-02 (Waters) 

Draft B 

Page 4 

1 Legal Analysis 

2 Citizens for Waters may not solicit and receive reimbursements from non-federal 

3 candidates, non-federal candidate committees, state independent expenditure-only 

4 political committees, and ballot measure committees to appear in the proposed brochures 

5 because, although the Requestors represent that the funds will comply with the Act’s 

6 source prohibitions and amount limitations, the Requestors do not represent that the funds 

7 will comply with the Act’s reporting requirements. 

8 Under the Act, federal candidates and their committees may not “solicit, receive, 

9 direct, transfer, or spend funds in connection with an election for Federal office, 

10 including funds for any Federal election activity, unless the funds are subject to the 

[amount] limitations, [source] prohibitions, and reporting requirements of [the] Act.”5 11 

12 The term “federal election activity” includes “a public communication that refers to a 

13 clearly identified candidate for Federal office (regardless of whether a candidate for State 

14 or local office is also mentioned or identified) and that promotes or supports a candidate 

15 for that office, or attacks or opposes a candidate for that office (regardless of whether the 

communication expressly advocates a vote for or against a candidate).”6 16 The term 

17 “public communication” includes a “communication by means of any . . . mass mailing, 

. . . or any other form of general public political advertising.”7 18 A “mass mailing” is “a 

5

 52 U.S.C. § 30125(e)(1)(A) (emphasis added). 

6

 52 U.S.C. § 30101(20)(A)(iii); see also 11 C.F.R. § 100.24 (b)(3). 

7

 11 C.F.R. § 100.26. 
AO 2024-02 (Waters) 

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1 mailing by United States mail or facsimile of more than 500 pieces of mail matter of an 

identical or substantially similar nature within any 30-day period.”8 2 

3 Here, Requestors state that they anticipate distributing at least 500 pieces of each 

4 version of their proposed brochure by U.S. Mail. Such a distribution would be a “mass 

mailing” and, therefore, a public communication.9 5 Moreover, the brochures for which 

6 Requestors propose to obtain reimbursement would refer to and contain Congresswoman 

7 Waters’s endorsements of certain clearly identified candidates, including federal 

candidates.10 8 As such, the brochures would be public communications that refer to and 

9 promote or support clearly identified federal candidates. Accordingly, the brochures 

would be “federal election activity” under the Act and Commission regulations.11 10 

11 As noted above, the only funds that federal candidates and officeholders and their 

12 committees may spend and receive for federal election activity are those “subject to” the 

Act’s contribution limitations, source prohibitions, and reporting requirements.12 13 The 

8

 Id. § 100.27. 

9

 See Advisory Opinion 2004-37 (Waters) at 6. 

10 AOR001-2. 

11 Compare Advisory Opinion 2003-25 (Weinzapfel). There, the Commission considered a public 

communication that referred to both a federal candidate and a non-federal candidate, but only endorsed the 

non-federal candidate. The Commission concluded that the communication was not federal election 

activity because it did not promote, support, attack, or oppose the federal candidate. In contrast, here the 

proposed brochures would both refer to and endorse one or more federal candidates in addition to the nonfederal candidates. 

12 See 11 C.F.R. § 300.61 (“No person described in 11 CFR 300.60 shall solicit, receive, direct, 

transfer, spend, or disburse funds in connection with an election for Federal office, including funds for any 

Federal election activity as defined in 11 CFR 100.24, unless the amounts consist of Federal funds that are 

subject to the limitations, prohibitions, and reporting requirements of the Act.”); see also 11 C.F.R. 

§ 300.2(g) (defining “Federal funds”). 
AO 2024-02 (Waters) 

Draft B 

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1 Act thus requires that any funds, before they are tendered to Citizens for Waters, “must 

2 not have been received by the [non-federal sources] in amounts in excess of those 

3 permitted with respect to contributions to Federal candidates” or from sources prohibited 

by the Act, and they must have been federally reported.13 4 

5 Moreover, a federal candidate’s solicitation or receipt of funds in connection with 

6 an election for Federal office that fail to comply with any one of the Act’s amount 

7 limitations, source prohibitions, or reporting requirements, on the other, “is sufficient to 

comprise a violation.”14 8 The Commission has repeatedly found reason to believe the Act 

9 was violated where the funds in question were subject to the Act’s amount limitations and 

10 source prohibitions but “[n]evertheless, none of the funds were subject to the Act’s 

reporting provisions as required by Section [30125](e)(1)(A)[.]”15 11 

12 Here, Requestors state that Citizens for Waters will invoice the non-federal 

13 sources featured in the brochures for their pro rata shares of the costs to design, publish, 

14 and mail the brochures, and that these invoices will state that Congresswoman Waters 

15 and Citizens for Waters will accept only “federally permissible funds.” In addition, 

16 Requestors propose to require the non-federal sources reimbursing Citizens for Waters to 

13 Advisory Opinion 2007-26 (Schock) at 4. In that request, the provision at issue was 52 U.S.C. 

§ 30125(e)(1)(B). Nonetheless, the Commission’s application of the language in that provision informs its 

application of the nearly identical language in § 30125(e)(1)(A) in this instance. 

14 Factual & Legal Analysis at 5-6, MUR 7337 (Lesko) (Aug. 13, 2019) (stating “the nature of the 

funds and the funds being subject to the Act’s reporting requirements are separate requirements, and the 

failure to comply with any one aspect is sufficient to comprise a violation.”). 

15 Factual & Legal Analysis at 14-15, MUR 5646 (Cohen for New Hampshire) (Mar. 3, 2005). See 

also Factual & Legal Analysis at 4, MUR 5426 (Dale Schultz for Congress, et al.) (Feb. 17, 2005); Factual 

& Legal Analysis at 4, MUR 6253 (Trey Gowdy for Congress, et al.) (Oct. 1, 2010); Factual & Legal 

Analysis at 3, MUR 6219 (Kuhl for Congress, et al.) (Oct. 21, 2009). 
AO 2024-02 (Waters) 

Draft B 

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1 submit signed invoices attesting that their payments are made with “federally permissible 

2 funds.” Requestors explain that the term “federally permissible funds” as used in their 

3 request means “funds that do not exceed the applicable contribution limitations of the Act 

4 and from sources that would not be prohibited under the Act from contributing directly to 

Congresswoman Waters.”16 5 Based on these representations, the Commission assumes for 

6 purposes of this advisory opinion that the non-federal sources’ reimbursement funds will 

7 comply with the Act’s source prohibitions and amount limitations. 

8 The only remaining question, then, is whether any funds solicited and accepted by 

9 Citizens for Waters from the non-federal sources for reimbursement, as proposed, must 

10 comply with the Act’s reporting requirements. The Commission concludes that they 

11 must. As explained above, satisfying the Act’s reporting requirements under 52 U.S.C. 

12 § 30125(e)(1)(A) is a separate requirement that must be met when the federal candidate 

13 solicits or receives funds in connection with an election for Federal office, even if the 

14 funds are otherwise from permissible sources and within the federal contribution limits. 

15 Requestors propose soliciting and accepting funds from several types of non-federal 

16 sources. The first two, non-federal candidates and their committees, are separately 

17 subject to reporting under the Act if they pay for communications, such as those 

18 described in the request, that promote, support, attack, or oppose a federal candidate, 

even if the communication also mentions a state or local candidate.17 19 

16 AOR002 n.3. 

17 52 U.S.C. § 30125(f)(1) (prohibiting a candidate for state or local office, or an agent of such a 

candidate or individual, form spending “any funds for a communication described in [52 U.S.C. 

§ 30101(20)(A)(iii)] unless the funds are subject to the limitations, prohibitions, and reporting requirements 
AO 2024-02 (Waters) 

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1 The Act does not impose any reporting requirements on the other types of non2 federal sources from which the Requestors plan to solicit reimbursement, state 

3 independent expenditure-only political committees supporting or opposing the non4 federal candidates and ballot measure committees supporting or opposing the featured 

5 ballot measures. Nevertheless, the Requestors propose to use the solicited funds to pay 

6 for federal election activity, and thus, any funds solicited or accepted must comply with 

the Act’s reporting requirements.18 7 Funds raised, reported, and maintained by a non8 federal entity in a federal account pursuant to the requirements of the Act and 

Commission regulations, for example, would satisfy this requirement.19 9 

10 The funds that Requestors propose to solicit and receive from non-federal sources 

11 are intended to reimburse Requestors’ costs to produce and distribute their brochures, 

which will promote, support, attack, or oppose federal candidates.20 12 Accordingly, the 

of this Act”); 11 C.F.R. § 300.71; see also 52 U.S.C. § 30101(20)(A)(iii) (defining “federal election 

activity” to include “a public communication that refers to a clearly identified candidate for Federal office 

(regardless of whether a candidate for State or local office is also mentioned or identified) and that 

promotes or supports...or attacks or opposes a candidate for that office.”) (emphasis added). 

18 By contrast, if the brochure did not promote, support, attack, or oppose any federal candidates, 

then the brochure would not be federal election activity under 52 U.S.C. § 30101(20)(A)(iii). Accordingly, 

a federal candidate’s solicitation or receipt of funds as reimbursement for such brochures would be 

governed under 52 U.S.C. § 31025(e)(1)(B), which does not include a requirement that the funds be subject 

to the Act’s reporting requirements. See also 52 U.S.C. § 30125(f)(2) (providing an exception for 

communications solely in connection with a state or local election from the requirement that a state or local 

candidate use funds subject to the amount limitations, source prohibitions, and reporting requirements of 

the Act); 11 C.F.R. § 300.72. 

19 See, e.g., 11 C.F.R. §§ 102.5, 300.36. 

20 Although the Commission concluded in Advisory Opinion 2004-37 (Waters) that reimbursements 

to Congresswoman Waters’s authorized committee for costs relating to similar brochures were not 

contributions to the committee, the restrictions of section 30125(e) extend beyond contributions to a federal 

candidate’s committee, covering all funds that the candidate solicits, receives, directs, transfers, or spends 

in connection with an election for Federal office, including funds for any Federal election activity. 
AO 2024-02 (Waters) 

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1 Commission concludes that Citizens for Waters may not solicit or receive funds for the 

2 brochures described in the request because the Requestors do not represent that the funds 

3 solicited and received from non-federal sources will have been reported to the 

4 Commission, as required by the Act and Commission regulations. 

5 The Commission does not address the potential application of any state or local 

6 laws to Requestors’ proposed activities because such matters do not fall within the 

7 Commission’s jurisdiction. 

8 This response constitutes an advisory opinion concerning the application of the 

9 Act and Commission regulations to the specific transaction or activity set forth in your 

request.21 10 The Commission emphasizes that, if there is a change in any of the facts or 

11 assumptions presented, and such facts or assumptions are material to a conclusion 

12 presented in this advisory opinion, then the requestor may not rely on that conclusion as 

13 support for its proposed activity. Any person involved in any specific transaction or 

14 activity which is indistinguishable in all its material aspects from the transaction or 

15 activity with respect to which this advisory opinion is rendered may rely on this advisory 

opinion.22 16 Please note that the analysis or conclusions in this advisory opinion may be 

17 affected by subsequent developments in the law including, but not limited to, statutes, 

18 

21 See 52 U.S.C. § 30108. 

22 See id. § 30108(c)(1)(B). 
AO 2024-02 (Waters) 

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1 regulations, advisory opinions, and case law. Any advisory opinions cited herein are 

2 available on the Commission’s website. 

3 On behalf of the Commission, 

4 

5 Sean J. Cooksey, 

6 Chairman