Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
August 30, 2006
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2006-26
Jan Witold Baran, Esquire
D. Mark Renaud, Esquire
1776 K Street, N.W.
Washington, D.C. 20463
Dear Messrs. Baran and Renaud:
We are responding to your advisory opinion request on behalf
of Texans for Henry Bonilla ("the Bonilla Committee") concerning
the application of the Federal Election Campaign Act of 1971, as
amended (the "Act"), and Commission regulations to the
contribution limits that apply to the 23rd congressional district
after a court order altered its boundaries in the middle of a
general election period. Specifically, you ask whether the
contribution limits for the newly scheduled November 7, 2006,
special general election are separate and distinct from the
contribution limits that applied to the now-cancelled November 7
regular general election in the 23rd congressional district.
The Commission concludes that the contributions for the
newly scheduled special general election are separate and
distinct from the contribution limits that applied to the now-
cancelled November 7 regular general election, and the Bonilla
Committee may accept contributions for the newly scheduled
special election, as described below.
Background
The facts presented in this advisory opinion are based on
your letter received on
August 17, 2006.
The Bonilla Committee is the principal campaign committee of
Representative Henry Bonilla who is seeking re-election to the
House of Representatives from the 23rd congressional district of
Texas. He ran unopposed in the March 7, 2006, primary.
On August 4, 2006, a three-judge panel of the U.S. District
Court for the Eastern District of Texas, on remand from the U.S.
Supreme Court,1 ordered new boundaries for five congressional
districts in Texas, including the 23rd district. See League of
United Latin American Citizens v. Perry, Civil No. 2:03-CV-354
(E.D. Tex Aug. 4, 2006). The court also ordered that special
general elections for the House seats in these districts be held
on November 7, 2006, in conjunction with the general election for
other Federal and non-Federal offices in Texas.2 These special
general elections will be held instead of the previously
scheduled regular general elections for the House seats in these
five districts. The special general elections will be open to
all who qualify for the ballot in accordance with the court-
ordered filing deadlines, and will not be limited to the primary
winners from earlier in 2006. If no candidate receives a
majority of votes in any of the five districts, a runoff election
for the seat between the two candidates receiving the most votes
in that district's election will be held on a date to be
determined later.
As a result of the court order, Representative Bonilla is no
longer his party's nominee but will be, instead, a candidate in
the special general election in the 23rd district, which may
involve other candidates of his party as well as multiple
candidates from other parties.
Question Presented
Are the contribution limits for the newly scheduled November
7, 2006, special general election separate and distinct from the
contribution limits that applied to the now-cancelled November 7
regular general election in the 23rd congressional district?
Legal Analysis and Conclusions
Yes, the limits on contributions to the Bonilla Committee
that would apply with respect to the newly scheduled special
general election will be separate and distinct from the limits on
contributions with respect to the now cancelled regular general
election.
In Advisory Opinions 1996-36 (Representatives Sheila Jackson
Lee, Martin Frost, Ken Bentsen, Gene Green, and Eddie Bernice
Johnson) and 1996-37 (Kevin Brady), the Commission addressed
similar requests from candidates for the House of Representatives
who had been nominated in Texas primaries or primary runoffs held
earlier in 1996. Both advisory opinions involved an August 5,
1996, Federal court order redrawing the boundaries of thirteen
congressional districts in Texas.3 The court order set special
general elections in those districts that were open to all
candidates who qualified for the ballot for the special election,
and were not limited to those who had been nominated earlier in
the year. If no candidate captured a majority of votes in one of
these special elections, then a runoff similar to the one ordered
by the district court in 2006 would have been held. Both of
these 1996 advisory opinions addressed the question you ask here
and concluded that the regular general election and the new
special general election were separate elections for the purposes
of the Act's limitations.4
The Commission considers Representative Bonilla's situation
to be materially indistinguishable from the situations presented
by the previously nominated candidates in Advisory Opinions 1996-
36 and 1996-37. Like those candidates, Mr. Bonilla was running
in a general election as his party's nominee from March 8, 2006,
until August 4, 2006. The August 4 district court decision,
while not voiding the holding of the March primary for the
purposes of the Act's contribution limitations, nullified the
results of the March primary. After August 4, Representative
Bonilla was placed in a new electoral situation created by the
district court, whereby he was no longer his party's nominee but
was, instead, a candidate in an election that could involve other
candidates of the same party as well as other parties. The
effect of the district court's decision, therefore, was to create
a new general election contest, beginning on August 5, 2006, and
running through November 7, 2006; the decision created, in
effect, a different election campaign period from the one that
began on March 8 and ended on August 4, 2006.
The Commission concludes, therefore, that one election limit
applies to contributions made before August 5, 2006, to the
Bonilla Committee for the regular general election and a
separate, special general election limit applies to contributions
made after August 4 to the Bonilla Committee.5 Thus, any lawful
contribution made to the Bonilla Committee before August 5, 2006,
with respect to the regular general election will not count
toward the separate limit that will apply to contributions for
the November 7 special general election. The applicable limits
are $5,000 per election for contributions from multicandidate
committees and $2,100 per election for contributions from persons
other than multicandidate committees. See 2 U.S.C. 441a(a)(1)(A)
and (2)(A); 11 CFR 110.1(b)(1) and 110.2(b)(1).
With respect to the treatment of campaign debt for these
elections, the Commission adopts the analysis used in Advisory
Opinion 1996-36, given that the situations presented here and in
that advisory opinion are materially indistinguishable. A
candidate's authorized committees may determine their net debts
outstanding with respect to the November 7, 2006, special general
election and accept contributions after November 7 that are
designated by the contributor for the special general election,
so long as such contributions do not exceed the committee's net
debts outstanding from that election. See 11 CFR 110.1(b)(3) and
110.2(b)(3). A candidate's authorized committees may not,
however, determine their net debts outstanding as of August 4 and
collect any contributions after that date that are designated for
the regular general election. Id.
The Commission also notes, as in Advisory Opinions 1996-36
and 1996-37, that a contribution received by the Bonilla
Committee for the March primary does not have to be aggregated
with any contribution received for the regular general election
or the special general election, but remains subject to the
limits of 2 U.S.C. 441a(a).6 In addition, any unused
contributions lawfully made to the Bonilla Committee for the
March 2006 primary election, and any unused contributions
lawfully made to the Bonilla Committee for the regular general
election as of August 4, 2006, do not have to be redesignated by
the contributors for the special general election.7 See 11 CFR
110.3(c)(3).
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)
Michael E. Toner
Chairman
Enclosures (Advisory Opinions 1996-37 and 1996-36)
_______________________________
1 See League of United Latin American Citizens v. Perry, __U.S.
__, 126 S. Ct. 2594 (2006).
2 Although the district court's order refers to the newly
scheduled election only as a "special election," the election is
a "special general election" under Commission regulations. See
11 CFR 100.2(b)(1) and (2); see also 11 CFR 100.2(f).
3 See Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex. 1996).
4 Advisory Opinion 1996-36 also addressed additional questions,
including those pertaining to the application of the annual (now
biennial) aggregate limits at 2 U.S.C. 441a(a)(3), the
establishment of a separate account for a possible runoff
election, and the application of the party coordinated
expenditure limits at 2 U.S.C. 441a(d).
5 A contribution is considered "made" when the contributor
relinquishes control over the contribution. For contributions
mailed to a political committee, the postmark date on the
envelope is the date the contribution is made. 11 CFR
110.1(b)(6) and 110.2(b)(6); see also 11 CFR 110.1(l)(4).
6 Contributions received for the March primary include
contributions made before the March primary and not specifically
designated for another election, and contributions made after the
March primary and specifically designated by the contributor for
primary debt retirement (if there were net debts outstanding from
the primary). See 11 CFR 110.1(b)(2) and (3), 110.2(b)(2) and
(3).
7 You have not asked any questions pertaining to the application
of the Millionaires' Amendment, which was added to the Act by the
Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116
Stat. 81 (2002). See 2 U.S.C. 441a-1; 11 CFR Part 400. Thus,
the Commission is not addressing the application of the
Millionaires' Amendment.