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
In Advisory Opinion 2024-14, the FEC considered a request from the DSCC and Senator Rosen’s principal campaign committee to produce so-called “hybrid advertisements” which “equally promote Senator Rosen’s candidacy for the U.S. Senate (either through advocacy for her or against her opponent) and generic candidates of the Democratic party (either through advocacy for generic Democratic candidates or against generic Republican candidates).” First deployed in the 2004 presidential election, hybrid advertisements are paid for in part by a candidate and in part by a party committee and feature distinct candidate and party segments within the advertisement. The request also asked whether certain content in a hybrid ad would count as candidate advocacy that may be allocated to the candidate committee or as generic party advocacy that is allocable to the political party committee. The requestors acknowledged that hybrid ads have been run by both political parties “in every election cycle since 2004,” and comments submitted by Holtzman Vogel on behalf of the NRCC highlighted the extensive history of hybrid advertisements.
By a vote of five to zero, with one Commissioner abstaining, the FEC approved an advisory opinion explicitly allowing party committees and federal candidates to produce and split the costs of hybrid television ads whose content is equally divided between a clearly identified federal candidate and generically referenced candidates of the political party. Despite such television advertisements existing for 20 years, this was the first time a majority of Commissioners agreed that they are permissible. The FEC also determined that portions of a hybrid ad which feature a federal candidate or are narrated by the same federal candidate must be treated as candidate advocacy and allocated to the candidate’s principal campaign committee, no matter what topics are being discussed during the portions of the ad in which the candidate’s image or voice are used.
The FEC was evenly divided on two additional questions that probed whether certain content could be allocated to the party committee. Again, the Commissioners declined to impose new restrictions on advertising sought by the DSCC, and the split vote preserves the status quo.
FEC Expands Permissible Use of Campaign Funds to Pay for Dependent Care Expenses
Finally, in Advisory Opinion 2024-09, Congresswoman Nanette Barragán and Barragán for Congress submitted a request for the Congresswoman’s campaign to pay for caregiving costs related to care for her elderly mother while Congresswoman Barragán is engaged in certain activities related to her campaign or duties as a federal officeholder. Previously, the FEC has approved the use of campaign funds to cover childcare expenses that arise as a direct result of the candidate’s own campaign activity.
The FEC concluded that “consistent with the Commission’s conclusions in [its previous] childcare advisory opinions … Congresswoman Barragán may use campaign funds to pay the additional eldercare expenses that she incurs to the extent that the expenses are the direct result of campaign activities for her own campaign, because those expenses would not exist irrespective of her campaign.” The advisory opinion also allows campaign funds to be used to pay for “caregiving [expenses] that arise when Congresswoman Barragán travels for a CODEL or to cast votes in Congress” because such travel “is directly connected to her duties as a Federal officeholder.”
