In 2024, the Federal Election Commission (FEC) issued an advisory opinion (AO) that created a new, legally indefensible loophole in federal campaign finance law permitting federal candidates to outsource and conceal millions of dollars in spending on canvassing coordinated with supposedly “independent” groups.
This unlawful opinion disregarded Congress’s explicit statutory directive on what constitutes a campaign contribution and allows outside groups — like super PACs and section 501(c)(4) social welfare nonprofits — to spend millions effectively underwriting campaign expenses of the candidates they support, with much of that spending going undisclosed.
Campaigns and super PACs immediately took note, with Elon Musk’s America PAC reportedly spending hundreds of millions of dollars supporting Trump’s 2024 campaign, including substantial amounts on coordinated canvassing.
In a new lawsuit, Campaign Legal Center, alongside Citizens for Responsible Ethics in Washington (CREW) as co-counsel, is calling on the courts to step in and immediately declare this AO unlawful and set it aside, in order to uphold coordination restrictions and transparency requirements that prevent corruption in our elections and ensure voters are properly informed about who is spending big money to influence their votes.
This FEC advisory opinion broke federal campaign finance law.
For a democracy to be effective, candidates and elected officials have to answer to their constituents — not wealthy special interests.
Campaign contribution limits play an important protective role in our democracy; they reduce the undue influence of wealthy donors over politics, thereby guarding against political corruption and ensuring that our officeholders are accountable to all citizens.
Under the law, a contribution includes both a direct donation of money to a federal candidate or political party, as well as the coordination of political spending with and on behalf of a candidate or party.
The U.S. Supreme Court has recognized and reinforced that an expenditure “coordinated” with a candidate is functionally the same as a contribution given directly to the candidate. If a contributor coordinates expenditures on behalf of a candidate, it is just as valuable — and poses the same corruption risks — as cutting a check to the candidate directly.
For these reasons, outside groups, like super PACs and 501(c)(4)s, which are supposed to operate independently from the candidates they support, are prohibited both from making direct contributions to candidates and from coordinating their spending with the candidates they support.
These groups are permitted to raise and spend unlimited amounts to influence elections precisely because that spending cannot be coordinated with the candidates they support.
This independence — as the Supreme Court reasoned in its 2010 Citizens United decision — guards against the corruption concerns implicated by massive contributions being given directly to, or spent in coordination with, candidates for federal office.
But the FEC carved a massive loophole out of these legal safeguards in the spring of 2024 when the agency responded to an inquiry by a Texas state PAC, which asked whether payments for certain canvassing-related activities counted as coordinated expenditures on behalf of a federal candidate when these activities were coordinated with the candidate.
The law provides a clear answer to this question: Goods and services purchased on behalf of a candidate’s campaign, that are coordinated with said campaign, are coordinated expenditures under the Federal Election Campaign Act (FECA).
The FEC ignored the law and instead issued an opinion concluding that coordinating spending for canvassing efforts does not qualify as coordinated expenditures under FECA.
Now, outside groups can spend limitless amounts on valuable coordinated campaign activities, directly contrary to the independent status that is supposed to distinguish these groups from others allowed to contribute directly within applicable amount limits.
Compounding the problem, the FEC’s opinion also creates a disclosure loophole that enables this coordinated canvassing to go undisclosed.
The FEC’s advisory opinion had huge implications for the 2024 election.
The results of the FEC’s unlawful AO were immediate. Candidates, political parties and third-party groups immediately seized on this new means of supercharging their federal campaigns while evading FECA contribution restrictions and disclosure requirements.
News reports cited a leaked letter from Trump’s 2024 presidential campaign describing how the campaign planned to leverage the new AO “to collaborate more effectively” with outside groups.
America PAC, a federal super PAC primarily funded by Trump’s largest megadonor Elon Musk, proceeded to spend hundreds of millions to support the Trump campaign, much on coordinated canvassing efforts.
Turning Point Action, a 501(c)(4) tax exempt corporation that is not required to disclose its donors and has not registered as a political committee, was another outside group that publicly acknowledged coordinating with the Trump campaign post-FEC opinion.
Yet it did not report any of its over $100 million door-knocking operation to the FEC, nor was that spending on behalf of the campaign reported in the campaign’s FEC reports.
We must prevent wealthy special interests from corrupting our elections.
Federal law leaves no question that a campaign expenditure coordinated with and conducted on behalf of a federal candidate is a coordinated expenditure. The FEC’s unlawful AO not only violates the law; it creates new opportunities for dark money and corruption to undermine our democracy.
Because of the new loophole created by this unlawful AO, outside groups can now take those limitless contributions and channel them to canvassing efforts, providing a massive service to the candidates of their choice — a service that often goes entirely undisclosed.
The courts must act and reverse the FEC’s unlawful interpretation of campaign finance law. Weakening contribution and transparency rules has historically made our elections more susceptible to the massive spending of special interests, and in turn, less responsive to the interests of voters.
Campaign Legal Center has been demanding solutions for over a decade, fighting to uphold campaign finance law in court and calling on the FEC to remain steadfast in its mission to enforce those very laws. Join us today.