FEDERAL ELECTION COMMISSION WASHINGTON, D.C. 20463

 October 2, 2019 

 

MEMORANDUM

TO: Patricia C. Orrock 

 Chief Compliance Officer

FROM: Neven F. Stipanovic 

Associate General Counsel

Policy Division

 Lorenzo Holloway 

 Assistant General Counsel

 Compliance Advice 

Joshua Blume 

Attorney 

SUBJECT: Draft Final Audit Report on Mississippi Republican Party (LRA 1077) 

I. INTRODUCTION 

 The Audit Division has submitted for our review the Draft Final Audit Report (“DFAR”) 

for the Mississippi Republican Party. The DFAR has three findings: Misstatement of Financial 

Activity (Finding 1), Reporting of Debts and Obligations (Finding 2), and Reporting of Apparent 

Independent Expenditures (Finding 3). We comment on Finding 3, and otherwise agree with the 

DFAR. If you have any questions, please contact Joshua Blume, the attorney assigned to this 

audit. 

II. REPORTING OF APPARENT INDEPENDENT EXPENDITURES (Finding 3).

Finding 3 discusses eight mailers and explains why each mailer contains express 

advocacy as this term is defined in 11 C.F.R. § 100.22. The Committee opposes this finding on 

several grounds and we address its arguments and provide further comments on certain aspects 

of the finding. First, we address the Committee’s general argument that the mailers cannot be 

classified as independent expenditures because they served a fundraising, rather than an 
LRA 1077 (Mississippi Republican Party) 

DFAR Legal Comments

Page 2 of 7 

electoral, purpose. Second, we address the Committee’s argument that the mailers do not 

contain express advocacy. We agree with the Audit Division’s classification of all eight mailers 

as express advocacy communications. In several instances, however, we disagree whether a 

particular mailer contains express advocacy under section 100.22(a) or 100.22(b). We also 

recommend that the Audit Division include a ninth mailer in the DFAR because the mailer 

contains express advocacy. Finally, we discuss how the Committee’s failure to file 24-hour 

reports of independent expenditures as required by 11 C.F.R. § 104.4(c) should be addressed in 

light of the evidence currently available to the Audit Division. 

A. Communications Containing Express Advocacy are Independent 

Expenditures Regardless of Whether Their Primary Purpose is to Solicit 

Contributions. 

 The Committee argues that none of its disbursements for these communications should be 

classified as independent expenditures because its primary purpose for creating and 

disseminating communications was to raise funds for its operations and not to advocate the 

election or defeat of candidates. It states that any identification of candidates in the 

communications was incidental to this fundraising purpose. The Committee also argues that the 

communications’ “calls to action” are solicitations of contributions or exhortations to register to 

vote, rather than explicit directives to vote for or against a clearly identified federal candidate. 

We disagree with the Committee’s arguments.

Commission regulations define an “independent expenditure” as “an expenditure by a 

person for a communication expressly advocating the election or defeat of a clearly identified 

candidate . . .”. 11 C.F.R. § 100.16(a); see also 52 U.S.C. § 30101(17). On several occasions 

the Commission has concluded that a solicitation was an independent expenditure because it was 

a communication containing express advocacy even though the solicitation’s purpose was to 

raise funds. See, e.g., Final Audit Report on National Campaign Fund, at 9, 12-13 (approved 

Oct. 22, 2012); Final Audit Report on Legacy Committee Political Action Committee (“Legacy 

PAC”), at 8, 10 (approved Jul. 31, 2012); Final Audit Report on Freedom’s Defense Fund, at 11-

13 (Dec. 6, 2017) and Final Audit Report on Conservative Majority Fund, at 16, 18 (Dec. 6, 

2017).1

 See also Express Advocacy; Independent Expenditures; Corporate and Labor 

Organization Expenditures, 60 Fed. Reg. 35292, 35294 (Jul. 6, 1995) (“exhortations to contribute 

time or money to a candidate would also fall within the revised definition of express advocacy.”) 

B. The Communications Contain Express Advocacy as Defined in 11 C.F.R. 

 § 100.22. 

The Committee also argues that the mailers do not contain express advocacy and thus the 

cost of the mailers cannot be independent expenditures. 

 

1

 These publicly available audit reports also belie the Committee’s contention that it and similarly situated 

entities lacked adequate advance notice of the Commission’s conclusion that a fundraising purpose does not 

immunize a communication otherwise containing express advocacy from classification as an independent 

expenditure.
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 Under Commission regulations, a communication expressly advocates the election or 

defeat of a clearly identified federal candidate if it uses phrases such as “vote for the President,” 

“re-elect your Congressman,” “support the Democratic nominee,” “cast your ballot for the 

Republican challenger for U.S. Senate in Georgia,” “Smith for Congress,” “Bill McKay in ’94,” 

“vote Pro-Life” or “vote Pro-Choice” accompanied by a listing of clearly identified candidates 

described as Pro-Life or Pro-Choice, “vote against Old Hickory,” “defeat” accompanied by a 

picture of one or more candidate(s), “reject the incumbent” or communications of campaign 

slogan(s) or individual word(s), which in context can have no other reasonable meaning than to 

urge the election or defeat of one or more clearly identified candidate(s), such as posters, bumper 

stickers, advertisements, etc. which say “Nixon’s the One”, “Carter ‘76”, “Reagan/Bush” or 

“Mondale!” 11 C.F.R. § 100.22(a). 

 Under Commission regulations, a communication also constitutes express advocacy if, 

when taken as a whole and with limited reference to external events, such as the proximity to the 

election, it could only be interpreted by a reasonable person as containing advocacy for the 

election or defeat of one or more clearly identified candidate(s), because: (1) the electoral 

portion of the communication is unmistakable, unambiguous, and suggestive of only one 

meaning; and (2) reasonable minds could not differ as to whether it encourages actions to elect or 

defeat one or more clearly identified candidate(s) or encourages some other kind of action. 11 

C.F.R. § 100.22(b). 

In the chart immediately below, we outline the Committee’s arguments respecting each 

of the mailers2 and our view respecting the classification of the mailers as express advocacy 

under section 100.22.3

 

2

 The chart includes a ninth mailer not discussed in the DFAR, which possesses different content from that of 

the other eight mailers that are discussed in the report. We recommend that this ninth mailer be added to the

discussion section of the DFAR. The Committee may then have the opportunity to contest the classification of this 

mailer should it wish to do so, and to argue that the cost attributable to the mailer should be subtracted from the 

overall amount of Finding 3, if it is able to separate the costs in this manner. It is our understanding that the cost of 

this ninth mailer is already incorporated into the overall cost of mailer 4 and that the Audit Division lacks a clear 

means for attributing a portion of the cost of mailer 4 to this ninth mailer. The Committee should be given an 

opportunity to show whether this is feasible.

3

 The Committee argues that the Commission should disregard express advocacy conclusions based upon 

section 100.22(b) because certain Commissioners have in the past expressed skepticism regarding whether section 

100.22(b) is a lawful criterion for finding that a communication contains express advocacy. See, e.g., Statement of 

Reasons of Chairman Lee E. Goodman and Commissioners Caroline C. Hunter and Matthew S. Petersen in the 

matter of Checks and Balances for Economic Growth, MUR 6729, at 3 n.14 (Oct. 24, 2014). Section 100.22(b) is, 

however, a valid regulation, which we are not at liberty to decline to apply.
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Mailer Committee’s 

Argument(s)

OGC 

determination 

as 100.22(a) or 

(b)

Basis for OGC determination and Comments

1 The 

statement 

used for the 

determination

merely 

identifies the 

Committee’s 

goal and it 

should be 

read in the 

broader 

context of the 

letter’s 

enumeration 

of issues.

(a) “We must elect a Republican as the 45th President of the United States”

This statement is a direct exhortation to elect a Republican presidential 

candidate and is nearly identical to the phrase “re-elect your 

Congressman” in section 100.22(a). Cf. Advisory Opinion 2003-23 

(WE LEAD) (Undetermined candidate “clearly identified” for 

earmarking purposes where specific office, party affiliation and 

election cycle identified. Definition of “earmarked” (11 C.F.R. 

§ 110.6(b)(1)) and of express advocacy (11 C.F.R. § 100.22(a)) use 

phrase “clearly identified candidate”, defined in 11 C.F.R. § 100.17.) 

2 The 

statement 

used for the 

determination 

used is a 

political 

statement 

lacking an 

electoral call 

to action.

(a) “If we unite to support Donald Trump, we still have a chance to save 

our country for the future” 

This statement urges the reader to “support Donald Trump”, and 

therefore is express advocacy under section 100.22(a) (“support the 

Democratic nominee” is express advocacy). 

3 The 

statement 

used for the 

determination

should be 

interpreted in 

the context of 

the 

observation 

that ObamaClinton 

policies 

weakened the 

nation’s 

world 

standing.

(a) “Stop Hillary!”; “STOP HILLARY from becoming President of the 

United States”; “support Donald Trump”

The statement “stop Hillary” closely resembles the phrase “reject the 

incumbent” that constitutes express advocacy in section 100.22(a). 

“Support Donald Trump” also is nearly identical to the phrase “support 

the Democratic nominee” in section 100.22(a). 

4 This 

statement 

used for the 

determination 

is not express 

advocacy, but 

only a 

statement of 

how a 

contribution 

(a) “... you can make a difference to support Donald Trump and stop 

Hillary Clinton from moving back into the White House” 

This statement urges the reader to “support Donald Trump” and “stop 

Hillary Clinton from moving back into the White House”, and therefore 

qualifies as express advocacy under section 100.22(a) (phrases “support 

the Democratic nominee” and “reject the incumbent” are express 

advocacy). 
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DFAR Legal Comments

Page 5 of 7 

would be 

used. The 

letter also 

calls upon the 

reader to 

register to 

vote.

5 The

statement

used for the 

determination

in no way 

constitutes 

electoral 

speech.

(b) “Donald Trump ... will nominate Supreme Court Justices who will 

protect the Constitution .... I’m asking you to please stand up in 

defense of the our Constitution by making a contribution today . . .”; 

“The Mississippi Republican Party has been hard at work not only to 

ensure that Donald Trump wins Mississippi by a wide margin, but also 

that he wins swing states such as Florida and Ohio”; Your generous 

contribution today will help keep Trump from losing the presidency. . 

.”

The mailing is express advocacy under section 100.22(b). It contains a 

clear, unmistakable and unambiguous reference to the upcoming 

presidential election in its first sentence, linking the election to the 

protection of constitutional rights. 100.22(b)(1). Reasonable minds 

could not differ about whether it encourages actions to elect Donald 

Trump, because only if Donald Trump were elected President would he 

be able to nominate Supreme Court justices committed to protecting the 

Constitution. The additional statements that the Committee is hard at 

work to ensure that the candidate wins certain states and that a 

contribution will help keep the candidate from being defeated is 

additional evidence of a call for electoral action. 100.22(b)(2).

6 The 

statement 

used for the 

determination 

merely 

explains the 

Committee’s 

role and how 

it will use 

potential 

contributions.

(b) “I am asking you to please contribute $100 to make sure that Donald 

Trump’s message of Making America Great Again can be delivered 

untainted by the media to undecided voters here in Mississippi and in 

key battleground states.” 

The mailer refers to the final presidential debate between the candidates 

and makes several unambiguous references to the election (“these final 

days before the election”; “as November 8th draws nearer”). . 

100.22(b)(1). Further, while on its face the call to action is to help the 

candidate deliver a message free of media distortion, the message 

consists of the candidate’s campaign slogan and it is to be directed to 

undecided voters. Reasonable minds could not disagree, therefore, that 

the action involves helping to persuade undecided voters to elect the 

candidate. 100.22(b)(2).

7 The

statement

used for the 

determination

merely 

explains the 

Committee’s 

role and how 

it will use 

potential 

contributions.

(b) “The Mississippi Republican Party is working hard to make sure 

Republicans in Mississippi turn out to vote and send Donald Trump to 

a landslide victory here. And the Party is doing the same thing in the 

critical battleground state of Florida. . . Will you please contribute $50, 

$75, $100 or more to enable our Party to do everything it can in these 

last days to turn out Republican voters in Mississippi and Florida?” 

This is express advocacy under section 100.22(b). The mailer contains 

a clear, unmistakable and unambiguous electoral portion, referring to 

“Our last chance to shape the outcome of this election”, and poses the 

question whether we will elect Donald Trump or Hillary Clinton. 

100.22(b)(1). Further, the call to contribute is a call to help the party 

turn out voters who will send Donald Trump to a landslide victory; 
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DFAR Legal Comments

Page 6 of 7 

reasonable minds could not disagree that this is a call for electoral 

action. 100.22(b)(2).

8 This mailing 

is styled as a 

presidential 

preference 

poll. The 

sentence 

“Here is the 

candidate I 

support as 

our 

Republican 

nominee for 

President” is 

the donor’s 

rather than 

the 

Committee’s.

(a) “We must elect a Republican President in 2016”

This phrase is nearly identical to “re-elect your Congressman” in 

section 100.22(a). As in mailer #1, although the nominee is not named, 

the mailer clearly identifies a federal candidate by office, party 

affiliation and election cycle. AO 2003-23 (WE LEAD).

9 [Not 

discussed in 

Interim Audit 

Report, 

therefore no 

Committee 

argument 

regarding it]

(b) “Recent polls suggest the presidential election is dead even and that’s 

good news for Donald Trump and Mike Pence as they build momentum 

to win the White House ... NOW is the time for a final surge in the 

momentum. Will you help make sure that happens?” 

The mailer contains a clear, unmistakable and unambiguous electoral 

portion, referring to the election’s being four weeks away, with time 

running out to make an impact on the outcome. 100.22(b)(1). The 

quoted statements ask the reader to help propel the candidates’ surge in 

momentum to win the White House. Reasonable people could 

therefore not disagree that this constitutes a call to help elect the 

candidates. 100.22(b)(2).

C. The Conclusion of Finding 3 Respecting the Filing of 24-Hour Reports 

Should be Based Upon the Ship Date Appearing on the Invoice for each Mailer. 

 In addition to concluding that the Committee failed to report disbursements for the 

communications discussed above as independent expenditures, the DFAR also concludes that the 

Committee failed to file 24-hour reports of those expenditures that must be filed under 11 C.F.R. 

§ 104.4(c). Political committees must report independent expenditures totaling $1,000 or more 

that were made less than 20 days but more than 24 hours before an election on the day following 

the date on which the communication is publicly distributed or disseminated. 11 C.F.R. 
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§ 104.4(c). In this case, the Committee has not provided information regarding the 

dissemination or distribution dates of the mailers.

 

 In the absence of the information on the dissemination date, we believe it is reasonable 

for the Audit Division to use the ship date that appears on the invoice to determine whether the 

Committee met the filing requirement for the mailer associated with that invoice.4 The DFAR, 

however, does not state that the Audit Division is using the ship date as the date of 

dissemination. We, therefore, recommend that the Audit Division revise the DFAR to indicate 

that the ship date appearing on the associated invoices is the basis for this conclusion. 

 

 

4

 The Committee has clarified that the ship date is the date on which its mail vendor delivered mailers to the 

post office.