Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
March 22, 2007
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2007-01
Mr. Marc E. Elias, Esq.
Ms. Caroline P. Goodson, Esq.
Perkins Coie LLP
607 Fourteenth Street, N.W.
Washington, D.C. 20005-2011
Dear Mr. Elias and Ms. Goodson:
We are responding to your advisory opinion request on
behalf of Senator Claire McCaskill and McCaskill for Auditor
(the "Committee"), concerning the application of the Federal
Election Campaign Act of 1971, as amended (the "Act"), and
Commission regulations to the soliciting, receiving, and
spending of funds for the sole purpose of retiring the
Committee's debt remaining from previous State campaigns.
For the reasons set forth below, the Committee and its
agents may solicit, receive, and spend funds that are in
excess of the amount limits contained in the Act and from
sources prohibited by the Act to retire debts from Senator
McCaskill's previous campaigns for State offices, if their
activities refer only to Senator McCaskill or other
candidates for the State offices she sought, and the amounts
and sources of the funds are consistent with State law. The
Commission also concludes that solicitations referring to
"Senator McCaskill" are permissible under the Act and
Commission regulations, so long as they meet certain
conditions set forth below.
Background
The facts presented in this advisory opinion are based
on your letter received on December 27, 2006 and your email
communication received on January 9, 2007.
Senator McCaskill is a United States Senator from
Missouri and is a candidate for re-election to the United
States Senate in 2012.1 Prior to her election to the United
States Senate, she was a candidate for Governor in 2004 and
State Auditor for Missouri in 1998 and 2002.
The Committee was established under Missouri law in
preparation for Senator McCaskill's re-election campaign for
State Auditor. Debts previously owed by Friends of
McCaskill, the non-Federal committee for Senator McCaskill's
candidacies for Governor and State Auditor, were transferred
to the Committee. The Committee and its agents, including
Senator McCaskill, wish to raise funds in accordance with
Missouri State law for the sole purpose of retiring the
Committee's debt, including debt owed to Senator McCaskill,
remaining from these State campaigns.
Questions Presented
1. May the Committee and its agents, including Senator
McCaskill, solicit, receive, and spend funds in accordance
with Missouri State law for the sole purpose of retiring the
Committee's debts that remain from her previous candidacies
for State offices?
2. In the alternative, may McCaskill for Auditor and its
agents raise funds from federally permissible sources in
amounts of up to $2,100?
3. What restrictions apply to the content of solicitations
for the Committee's debt retirement?
a. Would solicitations that refer to "Senator McCaskill"
meet the requirements of 2 U.S.C. 441i(e)(2), provided that
they do not refer to her as a Federal candidate?
b. Would the solicitations be subject to 2 U.S.C.
441i(f)'s restrictions on promoting or supporting Senator
McCaskill? If so, would references to Senator McCaskill's
successful candidacy for State Auditor be permissible,
provided no references to her Federal candidacy will be made
in the solicitations?
c. Would the solicitations be exempt from the definition
of "coordinated communication" under the safe harbor for
certain solicitations by Federal candidates set forth in 11
CFR 109.21(g)(2)?
d. What other restrictions, if any, would apply to the way
that the solicitations refer to Senator McCaskill?
Legal Analysis and Conclusions
Question 1. May the Committee and its agents,
including Senator McCaskill, solicit, receive, and spend
funds in accordance with Missouri State law for the sole
purpose of retiring the Committee's debts that remain from
her previous candidacies for State offices?
Yes, the Committee may solicit, receive, and spend
funds in accordance with Missouri State law for the sole
purpose of retiring the Committee's debts that remain from
Senator McCaskill's previous candidacies for State offices.
Under the Act, as amended by the Bipartisan Campaign
Reform Act of 2002,2 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.
The Act provides a limited exception for 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 or was 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 or
her State or local campaign; (2) refers only to him or her,
to other candidates for that same State or local 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 2005-12 (Fattah), 2005-5 (LaHood), 2005-2
(Corzine), and 2003-32 (Tenenbaum).3
Senator McCaskill is both a Federal candidate and
officeholder, and the Committee is an entity that is
directly established, financed, maintained, and controlled
by her. Thus, both Senator McCaskill and the Committee are
subject to the restrictions of 2 U.S.C. 441i(e)(1).
However, soliciting, receiving and spending funds solely to
retire Committee debts outstanding from Senator McCaskill's
previous candidacies for Governor and State Auditor are
actions that are solely in connection with those elections
to State offices. Cf. FEC v. Ted Haley Congressional Comm.,
852 F.2d 1111, 1115 (9th Cir. 1988) (stating with respect to
Federal elections, "funds raised after an election to retire
election campaign debts are just as much . in connection
with the election as are those contributions received before
the election," quoting AO 1983-2 (Citizens for Emery
Committee)). Therefore, the proposed activities will
satisfy the first criterion of the limited exception set
forth in section 441i(e)(2). If the proposed activities
refer only to Senator McCaskill, to other candidates for the
same State offices, or both, they will satisfy the second
criterion. To the extent the proposed activities will
comply with
Missouri law,4 they will satisfy the third criterion and
therefore come within the exception set forth in
section 441i(e)(2).5
Accordingly, under these circumstances, Senator
McCaskill and the Committee may solicit, receive, and spend
funds in excess of the amount limits contained in the Act
and from sources prohibited by the Act, to retire Committee
debts outstanding from her previous candidacies for Governor
and State Auditor.
Question 2: In the alternative, may McCaskill for
Auditor and its agents raise funds from federally
permissible sources in amounts of up to $2,100?
Yes, in the alternative, Senator McCaskill and her
agents may raise funds from federally permissible sources in
amounts of up to $2,100.
Question 3. What restrictions apply to the content of
solicitations for the Committee's debt retirement?
a. Would solicitations that refer to "Senator
McCaskill" meet the requirements of 2 U.S.C. 441i(e)(2),
provided that they do not refer to her as a Federal
candidate?
Yes, solicitations to retire the Committee's debt that
refer to "Senator McCaskill," without mentioning her current
status as a Federal candidate, would meet the requirements
of the exception in 2 U.S.C. 441i(e)(2) under the
circumstances presented here.6
For the same reasons and under the same conditions
discussed in the answer to question 1 above, solicitations
that seek funds solely to satisfy debts from State
candidacies, that comply with Missouri law, and that refer
to Senator McCaskill only as a former State candidate
without mentioning her current status as a Federal
candidate, would qualify for the section 441i(e)(2)
exception. Referring to Senator McCaskill as "Senator"
serves only to identify her.
b. Would the solicitations be subject to 2 U.S.C.
441i(f)'s restrictions on promoting or supporting Senator
McCaskill? If so, would references to Senator McCaskill's
successful candidacy for State Auditor be permissible,
provided that no references to her Federal candidacy will be
made in the solicitations?
No. The restrictions in 2 U.S.C. 441i(f) are not
applicable in circumstances where the more specific
provisions of 2 U.S.C. 441i(e) apply. Section 441i(e)
(headed "Federal candidates") specifically permits a Federal
candidate or officeholder to raise and spend funds in
connection with a non-Federal election in which the Federal
officeholder is or was a candidate, as permitted under State
law. 2 U.S.C. 441i(e)(2).
The provisions of section 441i(f) (headed "State
candidates") prohibit State candidates from paying for
public communications that promote, support, attack or
oppose Federal candidates with funds not subject to Federal
limits and reporting requirements. This serves as an anti-
circumvention measure analogous to the identical funding
restrictions placed on State party committees. The limited
exception found at section 441i(f)(2) is necessary to ensure
that an individual running for State office against a
current Federal officeholder is subject to the same funding
rules as the Federal officeholder herself. The conduct of
the Federal officeholder who is or was a State candidate,
however, is governed by the more specific provisions of
section 441i(e)(2), and not section 441i(f). See, e.g.,
Fourco Glass Co. v. Transmirra Prod. Corp., 353 U.S. 222,
228 (1957) (stating: "However inclusive may be the general
language of a statute, it will not be held to apply to a
matter specifically dealt with in another part of the same
enactment").
c. Would the solicitations be exempt from the
definition of "coordinated communication" under the safe
harbor for certain solicitations by Federal candidates set
forth in 11 CFR 109.21(g)(2)?
Commission regulations set forth a three-prong test to
determine whether a payment for a communication becomes an
in-kind contribution as a result of coordination between the
person making the payment and a candidate. See 11 CFR
109.21(a)(1)-(3). Under the first prong of the "coordinated
communication" definition, a communication is only subject
to the regulations if it "is paid for by a person other than
that candidate, an authorized committee, political party
committee, or agent of any of the foregoing."
11 CFR 109.21(a)(1). In these circumstances, the candidate
and her agents are paying for these communications, so the
payment prong is not met and the "coordinated communication"
definition is not applicable.
d. What other restrictions, if any, would apply to the
way that the solicitations refer to Senator McCaskill?
Other than the restrictions already discussed above,
the Commission concludes that the Act and Commission
regulations place no additional restrictions on the way that
the solicitations refer to Senator McCaskill.
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. All cited advisory
opinions are available on the Commission's website at
www.fec.gov.
Sincerely,
(signed)
Robert D. Lenhard
Chairman
_______________________________
1 On January 8, 2007, Senator McCaskill filed a Statement of
Candidacy for re-election to the United States Senate.
2 Pub. L. No. 107-155, 116 Stat. 81 (Mar. 27, 2002).
3 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.
4 Currently, Missouri law does not limit the amount that may
be donated to candidates for Governor or State Auditor.
5 Although neither 2 U.S.C. 441i(e)(2) nor 11 CFR 300.63
contains an express allowance for soliciting, receiving, or
spending by a committee established by a Federal
officeholder or candidate, the Commission has previously
concluded that 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 Opinions 2005-12 (Fattah) and 2005-02
(Corzine).
6 Although your request inquired about solicitations
referring to "Senator-Elect McCaskill" and "Senator
McCaskill," this advisory opinion only addresses references
to "Senator McCaskill." While the advisory opinion request
was pending, Senator McCaskill was sworn in as a United
States Senator, and the Commission assumes that any
solicitations made by the Committee and its agents after the
issuance of this advisory opinion would refer to "Senator
McCaskill" rather than "Senator-Elect McCaskill."