The S T R A T E G I S T

July 2011

Eliminating unreasonable burdens on grassroots speech


On behalf of our client, Western Representation PAC, DB Capitol Strategies has today filed an Advisory Opinion Request with the FEC (available HERE) that seeks to lift the factually impossible burden of 24- and 48-hour reporting of emailed Independent Expenditures during the 2012 presidential primaries.

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DB Capitol Strategies

and Dan Backer, Esq.


DB Capitol Strategies PLLC provides legal, strategic & operational guidance to political organizations with a focus on PAC treasury and FEC reporting and compliance through its principal attorney, Dan Backer.  Mr. Backer holds a BA in Political Science from the University of Massachusetts Amherst, a JD from George Mason University School of Law, and the Professional Lobbying Certification (PLC) from the American League of Lobbyists.


Mr. Backer is admitted to practice law in Virginia and Washington DC, and before the U.S. District Courts for the Eastern & Western Districts of Virginia and Washington, DC.  Most recently, Mr. Backer is lead counsel in Carey v FEC, which seeks to allow all non-connected PACs to engage in both candidate contributions from amount & source limited funds; and Independent Expenditures from unlimited  individual, corporate, or union contributions.


Mr. Backer has previously served as a legal policy analyst & subject matter expert in military and overseas voting for the Department of Defenses' Federal Voting Assistance Program (FVAP). Mr. Backer has extensive experience with public policy & advocacy programs, grassroots organizations, and Political Action Committees, and is Treasurer, Assistant Treasurer, or Counsel to numerous PACs.





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The burden of 24- and 48- hour reporting of emailed Independent Expenditures


Western Representation PAC, like many grassroots organizations, conducts much of its advocacy online - including extensive use of email to its audience. Heading into the 2012 presidential primaries, the PAC plans to call for the election, or defeat, of clearly identified candidates in the Republican primaries through Independent Expenditures. The cost of each individual Independent Expenditure would need to be tracked to determine if and when they trigger applicable 24- and 48-hour reporting requirements across more than 2-dozen different primary dates.


This complexity is magnified by the factual impossibility of determining the cost of any given email when using an email service provider that bills monthly. If an email service provider charges a fixed monthly fee, the cost of each Independent Expenditure email can only be determined at the end of each month when all emails have been sent (including those that are Independent Expenditures and those that are not). For example, if a provider charges $3,000 per month and the PAC sends 10 emails that month, each costs $300. If only 3 emails are sent, each costs $1000. If a PAC sends different numbers of emails each month, or the size of its email list shrinks or grows into different pricing thresholds, then the price changes further. The date any given email is sent could trigger 24-hour reporting for one set of primaries, but not another. If your head isn't spinning yet, the AOR includes a number of dizzying - but entirely plausible - examples.


This unintended consequence results from the ubiquity of email & its use in everyday - political - communications, coupled with the emergence of a stunning number of new grassroots organizations engaged in political discourse. The factual and legal impossibility of complying with this antiquated reporting burden in the face of new technologies & a new political reality could place many PACs in the position of having to choose between violating the law as written, or being unconstitutionally silenced in their political speech.


Faced with this clear dilemma, Western Representation PAC is seeking an exemption to the 24- and 48-hour reporting requirements as relates to the cost of its Independent Expenditure emails. This exemption is not without precedent - as discussed in the AOR - and if granted would remove one of the most significant reporting burdens from the backs of many grassroots political action committees.


DB Capitol Strategies recognizes one of our Legal Research Fellows, George Mason University Law Student Julio Columba, for his exceptional research & contributions in preparing this Advisory Opinion Request.


Thank you for reading The Strategist.  This information is not intended as legal advice, which turns on specific facts. Seek specific legal advice before acting with regard to the subjects mentioned herein.  For more information, visit our website at


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