FEC Roundup

The Federal Election Commission (FEC) had a busy fall season, beginning with the announcement of two new appointments, and culminating in the consideration of several important matters. The following summary represents a few highlights:

New FEC Membership Announced

Lee E. Goodman and Ann M. Ravel assumed roles as Commissioners of the Federal Election Commission. President Obama nominated Commissioners Ravel and Goodman on June 21, 2013, and the United States Senate confirmed their nominations on September 23, 2013. Commissioner Goodman was also elected as Vice Chairman of the FEC.

No Opinion Issued on Whether Bitcoins are Considered a New Form of Political Campaign Currency

Following a request by the Conservative Action Fund (CAF) to issue guidance on the permissibility of using Bitcoins for political campaign contributions and expenditures, the FEC considered four separate draft Advisory Opinions but was unable to garner the requisite four affirmative votes to issue a final opinion.

Bitcoins are a form of virtual, peer-to-peer currency that can be exchanged online for goods and services anywhere in the world without using a bank or third party financial institution to host the transaction. Once a merchant or individual has received a transfer, the value is calculated by a constantly fluctuating currency conversion rate. Bitcoins differ from traditional online payments because they are regulated by software and user agreements and cannot be regulated by governments, banks or any other central authority. Instead, the transactions are managed collectively by the community of Bitcoin users.

While the Commissioners were unable to agree on official guidance, the Commission did discuss the possibility of developing an interim policy and commencing a rulemaking to address the issues raised in the Advisory Opinion request.

Draft Interpretive Rule on NY Primary Elections Announced

The Commission introduced a draft Interpretive Rule that clarifies the Commission’s interpretation of its rule for determining the date of a special primary election as the rules apply to nominations for federal office conducted under New York Election Law. Consistent with state law, which vests the power in party committees, the Commission clarified that the date of a special primary election is the date of the party committee’s nomination vote. The Commission directed the Office of General Counsel to make the draft available for solicitation of public comments before a vote by the Commission.

FEC Fails to Rule on Tea Party Request

The Commission considered two drafts responding to an Advisory Opinion request from the Tea Party Leadership Fund (TPLF), but it was unable to reach agreement by four affirmative votes in order to issue a formal Advisory Opinion. In its request, TPLF sought an exemption from the regulations requiring reporting to the Commission of contributors to the TPLF and of recipients of TPLF disbursements.

Important Reminder Regarding Holiday Greetings

The same disclaimer rules that apply to campaign-related mailings also apply to all holiday greeting cards, even if the communication does not solicit funds or contain express advocacy. If a federal campaign sends out more than 500 holiday greetings, (which constitutes a mass mailing) it must include a box on the card to inform recipients that it was paid for by the campaign committee. A PAC or party committee that sends a holiday mass mailing must also include a box on the card that lets recipients know the committee paid for it, identifies the committee’s full name and street address, phone number or web address, and states that the communication is not authorized by any candidate or candidate’s committee. For additional information, see the Commission’s brochure: Special Notices on Political Ads and Solicitations.


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.