Return to News Jun 05, 2023

TO: Interested Parties

FROM: Elias Law Group LLP

RE: Receiving Email Addresses for Free May Break the Law, According to Federal Court Decision

Last week, the federal district court in Washington, D.C. issued a decision in Ready for Ron v. FEC, No. 1:22-cv-03282 (RDM) (D.D.C. filed Oct. 27, 2022), involving Ready for Ron (“RFR”), a hybrid political committee that wanted to give Governor Ron DeSantis a signed petition containing email addresses and phone numbers of individuals encouraging him to run for president. In its 60-page decision, the court concluded that the petition was a “contact list” and therefore a “thing of value” that, if accepted by DeSantis, would necessarily mean that he was either a candidate for president or testing the waters, both of which require that contributions comply with federal campaign finance laws. Because RFR created the list using, in part, money not subject to the source restrictions and contribution limits (“soft money”) and the value of the list was in excess of the contribution limits from a PAC to a candidate, the proposed arrangement is an excessive and impermissible in-kind contribution.

This decision potentially has broad implications for when email addresses received from vendors, consultants, and other committees may qualify as in-kind contributions subject to the source restrictions and amount limitations of the act.

The litigation stemmed from an advisory opinion request that RFR filed with the FEC in which RFR described its plan to spend money to gather potentially hundreds of thousands of signatures, email addresses, and phone numbers to include with a petition to give to DeSantis to encourage him to run for and remain a candidate for president.1 RFR admitted that the market value of the petition exceeded $2,900 (the then-applicable limit).2 It asked the FEC whether it could provide the petition to DeSantis and, if so, whether it could do so either before he began testing the waters or before he became a candidate.3 The FEC unanimously concluded that RFR could not give DeSantis the petition with contact information free of charge if DeSantis became a candidate or began testing the waters on the basis that it would exceed the contribution limits and violate the receipt of soft money ban.4 However, the Commission divided on whether it could provide the list to DeSantis before he began testing the waters.

RFR then filed suit in federal court and sought an injunction asking the court to prevent the FEC from bringing an enforcement action related to its plan. RFR argued that the petition was not a contribution subject to regulation by the FEC.5 The court rejected this argument, concluding that the contact list was indistinguishable from a mailing list or other well-established “things of value” and that giving it to DeSantis without charge constitutes a contribution.6 The court also rejected RFR’s arguments that it should be treated as a conduit—that is, it is merely passing the individuals’ name and contact information along to DeSantis.7

Finally, the court held that there was no scenario in which RFR could provide the list to DeSantis without him becoming a candidate or testing the waters, despite the FEC’s inability to reach a conclusion on this point.

Notably, the court raised the possibility that providing email addresses to committees without charge may constitute in-kind contributions to those committees. Specifically, the court noted that there is “at least a fair question” as to whether ActBlue’s practice of passing along email addresses to recipient committees without separate payment is lawful.

Committees should consult with counsel for further information about the opinion and its impact on any specific activities, including with respect to the receipt of contact information and contact lists from vendors, consultants, and other committees.

1 Advisory Opinion Request at 1-3 (Ready for Ron).

2 Id. at 7-8.

3 Id. at 4-5.

4 See Advisory Opinion 2022-12 & Certification 2022-12 (Sept. 27, 2022).

5 See Memorandum Opinion and Order at 15, Ready for Ron v. FEC, No. 22-3282 (RDM).

6 Id. at 10.

7 Id. at 27-28.