AO 2022-20: Text message links to split-it fundraising pages do not constitute in-kind contributions
A principal campaign committee may send short code text messages containing links to split-it fundraising pages without the associated costs amounting to in-kind contributions to the other federal political committees listed on the fundraising pages.
Background
Maggie for NH (the committee), the principal campaign committee of Senator Maggie Hassan, maintains a short code texting program to send text messages to supporters and to solicit contributions. The committee only sends messages to those who have affirmatively opted in to receive them. The committee plans to text supporters links to split-it fundraising pages on ActBlue.com, which allow users to make contributions to multiple committees simultaneously. Split-it pages allow users to enter the total amount they wish to contribute and will automatically calculate the share allocated to each committee, or users can change the amounts allocated to each political committee or decide not to contribute to a listed committee. There is no additional cost to create or use a split-it page, and no new account or entity is created when setting up a split-it page.
The committee will create and administer split-it pages that list Maggie for NH and other federal political committees, and will solicit contributions through them, including text messages to its supporters. The committee will do so without the involvement of or coordination with other political committees, though it expects to possess non-public information on the plans, projects, activities and/or needs of the other listed committees.
Analysis
The Commission concluded that the costs associated with sending the text messages described in the request are not in-kind contributions to other federal political committees listed on the split-it fundraising pages.
FEC regulations provide for a three-pronged test to determine whether a communication is coordinated between the payor and a candidate or political party committee. A communication must satisfy all three prongs of the test to be considered a coordinated communication (and as a result, an in-kind contribution to the candidate or political party committee).
The three prongs of the test consider:
- The source of payment (payment prong)
- The subject matter of the communication (content prong)
- The interaction between the person paying for the communication and the candidate or political party committee (conduct prong)
Under Commission regulations, a communication is coordinated only if it is an electioneering communication or a public communication. Since the proposed text messages are not electioneering communications, they could only be coordinated communications if the text messages are public communications.
A public communication is “a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.”
The term “general public political advertising” is not defined by the Federal Election Campaign Act (the Act) or Commission regulations. However, the Commission interprets each term listed in the definition of public communication as a specific example of one form of general public political advertising. The Commission found that the listed forms of general public political advertising share several common elements, one of which is that they typically require the person making the communication to pay to use a third party’s platform to gain access to the third party’s audience. According to the request, the committee’s supporters must affirmatively opt in to receive the short code text messages and have therefore sought out the speaker and speech through a forum controlled by the speaker. The Commission contrasted this with traditional forms of paid advertising where a speaker pays to disseminate a message through a medium controlled, and to an audience established, by a third party.
The Commission found the short code text messages described in the request do not constitute a form of general public political advertising and are therefore not public communications. Thus, the Commission determined the text messages do not satisfy the content prong of the coordinated communications test and are therefore not in-kind contributions to the other political committees listed on the split-it fundraising pages.
Date Issued: October 4, 2022; Length: 6 pages