There are few things as seductive in politics today as good data, and few things as challenging for commercial firms as the statutory bar on the use of FEC data for commercial purposes.  That came to a head yesterday, when the FEC was unable to reach a decision on an advisory opinion request on use of the FEC’s donor data to, among other things, confirm the identity and score potential donors in a client’s existing database.  The case highlights the gap between the regulated community and where a majority of FEC Commissioners may soon take the law.

Aluminate, a commercial vendor that helps clients – often colleges and universities – refine their donor data to more accurately identify and target fundraising and outreach programs, asked the FEC for permission to use the FEC’s donor data when screening their clients’ databases.  The company did not want to use the FEC data to build contact information or to convey to clients specific information about particular individual’s donor history.  Instead, it intended to use the FEC data to better identify the interests of those in the database and score those more likely to respond to particular ‘asks’ the client might have. AO Request.

The initial draft opinion concluded that this was in conflict with the statute’s prohibition on data submitted to the agency being “sold or used by any person for the purpose of soliciting contributions or for commercial purposes…”  52 U.S.C. 30111(a)(4).  FEC AO 2021-01 Draft A This conclusion was met with a fervent cry from Perkins Coie’s political law group – writing as practitioners rather than for any particular client – that such practices were already common and are consistent with the FEC’s precedent on the use of its data.  Perkins Comments.  This was shortly followed by a competing draft response that concluded the request was entirely permissible.  FEC AO 2021-01 Draft B.

Some of what followed was entirely predictable to those who have followed the FEC over the past decade.  The three Commissioners associated with the Democratic Party (Chair Broussard and Commissioners Walther and Weintraub) voted for the original draft prohibiting the conduct.  Two Commissioners associated with the Republican Party (Commissioners Cooksey and Trainor) voted for the draft permitting the conduct.  The most noteworthy feature of the day was the decision of Vice Chair Dickerson to abstain.

In comments at the hearing, Vice Chair Dickerson said that he had concluded that the Commission’s prior decisions on this question had been overly permissive, and had drifted away from a fair reading of Congress’ intent in passing the law.  He emphasized that this data – reflecting citizens’ association with political candidates and causes – brought with it a significant privacy interest that prior FEC decisions had failed to accurately weigh.  His concern with fair notice and the regulated community’s reasonable reliance on prior decisions prevented him from voting to roll back those decisions in this case, but he was unwilling to proceed down a path of legal analysis that he thought was “a wrong turn.”  Consequently, he abstained and the matter failed 3-2.

This matter is important for those who would like to use FEC data in modeling for a commercial purpose or as a tool for solicitations.  The law did not change yesterday, but certainly a flag was raised that this is an area in which practitioners should not assume that precedent teaches them where the FEC will land in future cases.  This particular matter is only partially instructive, for it also highlighted the advantage of using experienced FEC counsel: the facts were at times obscured in a way that increased Commissioners’ suspicions, arguments were raised that were certain to fall on deaf ears, and helpful precedent was ignored.  But that said, Vice Chair Dickerson is a student of this area of law, and if he has concerns that prior decisions are misguided in an area of constitutional importance, everyone interested in how FEC data can be used should be alert to that concern and any statements he may issue later on this issue.

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