Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
September 22, 2005
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2005-12
Mr. Neil Reiff
Sandler, Reiff & Young, P.C.
50 E Street, S.E., Suite 300
Washington, D.C. 20003
Dear Mr. Reiff:
We are responding to your advisory opinion request
dated August 4, 2005, on behalf of U.S. Representative Chaka
Fattah, concerning the application of the Federal Election
Campaign Act of 1971, as amended (the "Act"), and Commission
regulations to fundraising and spending by Representative
Fattah and his exploratory committee for the 2007
Philadelphia mayoral election.
For the reasons set forth below, Representative Fattah
and his exploratory committee may raise and spend funds that
are in excess of the amount limits contained in the Act in
connection with his candidacy for mayor of Philadelphia, so
long as their activities refer only to Representative Fattah
as a candidate for mayor of Philadelphia, to other
candidates for that same office, or both, and so long as the
amounts and sources of the funds are consistent with State
law.
Background
The facts of this request are presented in your letter
received on August 4, 2005.
Representative Fattah represents the Second
Congressional District of Pennsylvania and intends to seek
re-election to that office in November 2006. Following the
Congressional election, Representative Fattah may decide to
announce his candidacy for the Democratic nomination for
mayor of Philadelphia. The primary election for the mayoral
office is scheduled to take place on May 15, 2007.
Although Representative Fattah does not plan to
formally announce his candidacy for Philadelphia mayor until
after the November 2006 Congressional election, he does
intend to establish an exploratory committee for the mayoral
election prior to that time. Moreover, he intends to raise
and spend funds that are in excess of the amount limits
contained in the Act for his exploratory committee. You
state that these funds would be raised and spent
"exclusively in connection with his potential candidacy for
mayor and would not, in any way, be used in connection with
any candidacy for Federal office" nor used "in any way to
influence any election other than that of Representative
Fattah's potential candidacy for mayor of Philadelphia."
Additionally, you state that by establishing the exploratory
committee, Representative Fattah will meet the definition of
a "candidate" under Pennsylvania state law.1
Question Presented
May Representative Fattah and his exploratory committee
raise and spend funds in excess of the amount limits
contained in the Act exclusively in connection with his
candidacy for mayor of Philadelphia?
Legal Analysis and Conclusion
Yes, Representative Fattah and his exploratory
committee may raise and spend funds in excess of the amount
limits contained in the Act so long as their activities
refer only to Representative Fattah as a candidate for mayor
of Philadelphia, to other candidates for that same office,
or both, and so long as the amounts and sources of the funds
are consistent with State law.
Under the Act, as amended by the Bipartisan Campaign
Reform Act of 2002, Public Law 107-155, 116 Stat. 81 (2002),
Federal candidates and officeholders may not raise or spend
funds in connection with an election for Federal office,
unless the funds are subject to the limitations,
prohibitions, and reporting requirements of the Act. See
2 U.S.C. 441i(e)(1)(A); 11 CFR 300.61. Additionally,
Federal candidates and officeholders may not raise or spend
funds in connection with an election other than an election
for Federal office, unless the funds do not exceed the
amounts permitted with respect to contributions to
candidates and political committees under 2 U.S.C.
441a(a)(1), (2), and (3), and do not come from sources
prohibited under the Act. See 2 U.S.C. 441i(e)(1)(B); 11
CFR 300.62. With respect to non-Federal elections,
Commission regulations also require that such funds be in
amounts and from sources that are consistent with State law.
11 CFR 300.62.
However, a limited exception applies to Federal
candidates and officeholders who also seek State or local
office. Specifically, the restrictions of 2 U.S.C.
441i(e)(1) do not apply to any Federal candidate or
officeholder who is also a candidate for a State or local
office so long as the solicitation, receipt or spending of
funds: (1) is solely in connection with his State or local
campaign; (2) refers only to him as a State or local
candidate, to other candidates for that same office, or
both, and (3) is permitted under State law. 2 U.S.C.
441i(e)(2), 11 CFR 300.63; see also Advisory Opinions 2005-
05 and 2005-02.2
Representative Fattah is both a Federal candidate and a
Federal officeholder. Additionally, Representative Fattah's
mayoral exploratory committee will be an entity that is
directly established, financed, maintained, and controlled
by him. However, under the facts posited in the request, he
also will be a candidate for local office. Thus, his and
his exploratory committee's fundraising activities would be
covered by the exception contained in 2 U.S.C. 441i(e)(2). 3
Accordingly, once his mayoral exploratory committee is
established, Representative Fattah and his exploratory
committee may raise and spend funds in excess of the amount
limits contained in the Act exclusively in connection with
his candidacy for mayor of Philadelphia, so long as their
activities refer only to Representative Fattah as a
candidate for mayor of Philadelphia, to other candidates for
that same office, or both, and so long as the amounts and
sources of the funds are consistent with State law.
This response constitutes an advisory opinion
concerning the application of the Act and Commission
regulations to the specific transaction or activity set
forth in your request. See 2 U.S.C. 437f. The Commission
emphasizes that, if there is a change in any of the facts or
assumptions presented, and such facts or assumptions are
material to a conclusion presented in this advisory opinion,
then the requestor may not rely on that conclusion as
support for its proposed activity.
Sincerely,
(signed)
Scott E. Thomas
Chairman
Enclosures (Advisory Opinions 2005-05 and 2005-02)
_______________________________
1 Under the Pennsylvania Election Code, a "candidate"
includes "any individual who . . . has given his consent
for any other person or committee to receive a contribution
or make an expenditure . . . whether or not the individual
has made known the specific office for which he or she will
seek nomination or election at the time the contribution is
received or the expenditure is made." 25 P.S. 3241(a)(1).
2 Although the exception in 2 U.S.C. 441i(e)(2) permits
Federal candidates and officeholders who are also candidates
for State or local office to raise and spend funds outside
the restrictions of 2 U.S.C. 441i(e)(1), these candidates
are still prohibited from soliciting or receiving funds from
national banks, corporations organized by authority of
Congress, and foreign nationals. 2 U.S.C. 441b and 441e.
3Although neither 2 U.S.C. 441i(e)(2) nor 11 CFR 300.63
contains an express allowance for fundraising or spending by
a committee established by a Federal officeholder or
candidate, the Commission has previously concluded that, in
view of the kinds of activities that all campaigns normally
engage in, the exception described in 2 U.S.C. 441i(e)(2)
and 11 CFR 300.63 applies to all individuals described in
2 U.S.C. 441i(e)(1) and 11 CFR 300.60, and hence applies to
the activities of agents and to entities established,
financed, maintained, or controlled by, or acting on behalf
of, the Federal officeholder or candidate. See Advisory
Opinion 2005-02, footnote 3.