FEC Advisory Opinion Requests: Fundraising, Election Advertisements and Use of Campaign Funds for Dependent Care Expenses

By: Michael Bayes, Jessica Furst Johnson, Matthew Petersen, Andrew D. Watkins, and Andrew Pardue

Today, the Federal Election Commission (“FEC”) considered three advisory opinion requests that will have a tremendous impact on fundraising efforts, election advertisements, and the use of campaign funds to pay for childcare and other dependent care expenses.

FEC Declines to Impose New Restriction on Joint Fundraising Committee Television Solicitations 

In Advisory Opinion Request 2024-13, the DSCC and the campaign committees for the Democratic candidates for U.S. Senate in Montana and Arizona asked the FEC whether joint fundraising committees (“JFCs”) may distribute fundraising solicitations in the form of television ads which include express advocacy supporting or opposing an identified candidate and “a solicitation for the applicable Joint Fundraising Committee.” The request also asked whether a JFC could allocate the cost of such television solicitations under the FEC’s joint fundraising regulation which provides that fundraising expenses must be paid in proportion to the funds raised for each participating committee. Finally, the request asked whether the JFC was required to display the full joint fundraising notice onscreen during the television solicitation, or whether it could display a QR code during the final four seconds that a viewer could follow to view the full notice online.

The request was widely understood as an effort by the DSCC to impose new restrictions on the activities at issue. As was noted by several comments filed in this matter—including separate comments filed by Holtzman Vogel on behalf of the NRCC and by attorneys in Holtzman Vogel’s campaign finance practice group—the proposed JFC solicitation activity is consistent with FEC regulations and previous advisory opinions and indistinguishable from routine joint fundraising solicitations which have been used by both political parties since at least 2016. Nevertheless, an evenly divided FEC failed to approve an advisory opinion answering this question. All Republican Commissioners voted for a draft response that permitted the proposed activity to be conducted under the joint fundraising regulations and in a manner consistent with past practice, while all Democrat Commissioners voted for a response that would have effectively ended the existing practice.

We expect the FEC’s deadlocked vote on this advisory opinion request will be interpreted as a green light because it demonstrates that there would not be four votes to find a violation in an enforcement matter addressing similar conduct since half of the Commissioners believe it is permissible. Additionally, at least one Democrat Commissioner signaled that she might approve a request where a fundraising solicitation link appears on-screen for at least half of the solicitation, rather than only during the final four seconds. In light of the FEC’s implicit approval of JFC solicitations in the form of television advertisements, we anticipate that these solicitations will become even more prevalent across the country.

 

FEC Expressly Authorized Candidate-Party Committee Hybrid Television Advertisements

 

FEC Expands Permissible Use of Campaign Funds to Pay for Dependent Care Expenses