FEC Issues Two Advisory Opinions in Light of US v. Windsor

Yesterday, the Federal Election Commission (“FEC”) became one of the first federal government agencies to take action in accordance with the Supreme Court’s decision in United States v. Windsor. During an open meeting, the FEC unanimously approved two advisory opinions recognizing equal treatment under the Federal Election Campaign Act between legally married same-sex couples and their opposite-sex counterparts.

In response to a request submitted on behalf of the Democratic Senatorial Campaign Committee, the FEC found that a same-sex spouse with no separate income may make a contribution in his or her own name from the account of his or her income-producing spouse to the same extent as opposite- sex spouses. Secondly, a legally married same-sex Senate candidate may utilize his or her share of assets jointly owned with a same-sex spouse for his campaign without being considered a contributor. Furthermore, a same-sex spouse of a candidate may co-sign a loan under the same circumstances as an opposite-sex spouse. Lastly, the Commission held “family” in regard to a corporation’s or labor organization’s restricted class, includes same sex spouses, thus allowing same-sex spouses and opposite-sex spouses to appear at restricted-class events to the same extent as allowed by law.

The second opinion expressly overturns an earlier advisory opinion decided before the Court’s decision in Windsor. The Commission previously held that Section 3 of the Defense Against Marriage Act precluded same-sex spouses from making campaign donations in their own name if the funds came from his or her income-making spouse’s account. Responding to a request to reconsider after Windsor, the FEC found the definition of “spouse” to be supplied by state law. Therefore, for the second time today, the Commission opined that any lawfully married same-sex spouse without an income could make a donation using his or her income-making spouse’s account.

Kelly Brennan, a summer associate at Genova Burns, assisted in the preparation of this post.