Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
October 20, 2000
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2000-29
Honorable W. J. "Billy" Tauzin
United States House of Representatives
2183 Rayburn House Office Building
Washington, DC 20515-1803
Dear Mr. Tauzin:
This responds to your letter dated September 25, 2000,
wherein you and eight other Members of Congress from the
State of Louisiana request an advisory opinion concerning
the application of the Federal Election Campaign Act of
1971, as amended ("the Act"), and Commission regulations to
the determination of the number of elections to Federal
office that will be held this year in Louisiana. Those
Members joining in this request are Senators John Breaux and
Mary Landrieu, and U.S. Representatives Richard H. Baker,
John Cooksey, Jim McCrery, David Vitter, William Jefferson
and Chris John.
The request explains that all Federal candidates in
Louisiana received a letter from the Commission on or about
July 26, 2000, apprising them of the Commission's
interpretation that the 2000 Federal election cycle in
Louisiana will include the general election on November 7
and a contingent runoff election on December 9, but only in
those Congressional districts where no candidate in the
November 7 election receives over 50% of the vote. The
letter further indicated the Commission's understanding that
there will be no primary elections for these Federal offices
in 2000.
The request states that under this interpretation, "all
individual Louisiana federal candidates are being denied
equal legal treatment enjoyed by all other 526 Members of
Congress." It further explains that, based on your research
and that of legal counsel, the Louisiana Members of Congress
believe that November 7, 2000, is "in actuality, our primary
election date" and that December 9, 2000 is the date of "a
run-off or general election . . . Therefore, we have two
established election cycles and are entitled to two separate
contribution limits." You request that the Commission
review the above interpretation.
General election date
There can be no doubt in fact or in law that November
7, 2000 is the date of the general election for Federal
offices in Louisiana as it is in the other 49 States of the
United States.1 It is prescribed by Federal statute, 2
U.S.C. 7, as the national election date, and Commission
regulations have adhered to that statutory definition since
1977 because there is no other credible and legally
justified alternative.2 11 CFR 100.2(b)(1).3 The United
States Supreme Court affirmed this interpretation in Foster
v. Love, 522 U.S. 67 (1997) [holding that Louisiana's
election schedule for Federal offices, allowing the final
election of Federal officeholders before the national
election day in early November, conflicted with the Federal
statute and was invalid]. Federal court decisions in 1998
provided a remedy consistent with the cited Supreme Court
decision, scheduling a final Federal election in Louisiana
for November 3, 1998, and a runoff in December (but not
reinstating the pre-1978 closed primary system). Love v.
Foster, No. 95-788-B-M (M.D. La. May 21, 1998); aff'd, 147
F.3d 383 (5th Cir. 1998).
Given that the general election in Louisiana will be
November 7, 2000, it follows that each Congressional
candidate in this general election may accept otherwise
lawful contributions made with respect to that election in
amounts not exceeding $1,000 per donor, or $5,000 if the
donor is a qualified multicandidate committee. 2 U.S.C.
441a(a)(1)(A), 441a(a)(2)(A); see 11 CFR 110.1(b) and
110.2(b).4
Contingent runoff election date
The further question arises as to what other Federal
elections may occur, or have already occurred, this year in
Louisiana. Pursuant to the cited judicial decisions, the
Louisiana Secretary of State ("Secretary") has published a
2000 regular elections schedule indicating that a
"CONGRESSIONAL RUNOFF/TIE" election may be held on December
9, 2000. See website
http://www.sec.state.la.us/elections/elec2000.htm. The
Commission understands that this runoff election would be
held, if at all, only in each Congressional district where
no candidate receives more than 50% of the vote in the
November 7 general election, and it would be restricted to
the two candidates who receive the highest number of votes
in the November election.
Commission regulations provide that the term "election"
includes a runoff election that is held after a general
election and prescribed by applicable State law as the means
for deciding which candidate should be certified as an
officeholder elect. 11 CFR 100.2(d)(2).5 Therefore, any
Congressional candidate in Louisiana who qualifies to
participate in a December 9, 2000, runoff election will be a
candidate with respect to that election. Such a candidate
may accept and retain contributions designated, in writing,
by the donors as made with respect to the runoff election if
the contributions are otherwise lawful under the Act. 2
U.S.C. 441a(a)(1)(A), 441a(a)(2)(A). However, if the
December 9 runoff election will not be held, any
contributions designated for the runoff must be refunded to
the donors within 60 days after November 7 (in other words,
not later than January 6, 2001). See, by analogy, 11 CFR
102.9(e). They may not be redesignated for any other
election because the contribution redesignation option is
only available under Commission regulations with respect to
contributions made for an election that has already been
held or that is certain to occur. See 11 CFR
110.1(b)(3)(i), 110.2(b)(3)(i); see also 11 CFR
110.1(b)(5)(i)--(5)(iii) and 110.2(b)(5)(i)--(iii). In the
circumstances presented here, the December 9 runoff is, at
most, a contingent possibility and by no means certain or
even likely to become necessary.6
Primary election date
Having concluded that there is a general election
contribution limit for all candidates in the November 7
general election, and the possibility of a separate
contribution limit for candidates who qualify to enter a
December 9 runoff election (if needed), the remaining
question is whether any primary election for Federal office
has occurred this year in Louisiana.
The Louisiana elections schedule for 2000, as published
by the Secretary, indicates that an "OPEN PRIMARY" would be
held on October 7, but no Congressional offices are listed
for that ballot; only 34 non-federal offices. http://www.
sec.state.la. us/cgibin/?rqstyp=CNDMS&rqsdta=100700.7
Commission regulations include multiple definitions of the
term "primary election," including the most typical form;
namely, an election "held prior to a general election, as a
direct result of which candidates are nominated, in
accordance with applicable State law, for election to
Federal office in a subsequent" election. 11 CFR
100.2(c)(1).8 Since the Louisiana primary election of
October 7 did not include any candidates for Federal office,
it clearly would not qualify as a "primary election" for
purposes of the Act and Commission regulations.
Another definition, though, addresses candidates who
seek Federal office as "independent candidates" or "without
nomination by" either of the two major political parties
(Democratic or Republican). 11 CFR 100.2(c)(4). The
regulation provides that an independent candidate or one
that seeks election without nomination by a major political
party may choose one of three possible dates as his/her
"primary election" date. One of the options for a primary
election date is the last day, prescribed by State law, to
qualify for a position on the general election ballot. 11
CFR 100.2(c)(4)(i).9
The Commission concludes that, pursuant to 11 CFR
100.2(c)(4), the candidates who are entered in the Louisiana
Congressional general election this year must be treated as
candidates who also had a primary election on August 18,
2000, which was the last day to file for the general
election ballot. The salient circumstances are that such
candidates had no opportunity under Louisiana statutes to
seek nomination in a Congressional primary election, and
there was no alternative political party nomination process
in effect by either of the two major political parties in
Louisiana that those candidates could have entered this
year. Therefore, all such candidates are "seeking federal
office . . . without nomination by a major party" and are
entitled to consider August 18, 2000, as their primary
election date. See 11 CFR 100.2(c)(4).
Contribution designation and limitation issues
As indicated above, Commission regulations apply the
contribution limits on a per contributor and per election
basis and make distinctions between contributions that are
designated in writing by a contributor for a specific
election and those that are not so designated. 11 CFR
110.1(b)(1)--(6), 110.2(b)(1)--(6). The Commission had
earlier (about July 26, 2000) apprised the Louisiana
Congressional candidates in the 2000 cycle that there would
not be a primary election this year, and those candidates
have reported receiving contributions for the 2000 cycle
both before and after July 26. Having herein concluded that
there was a "primary election" on August 18 for those
candidates, it is necessary for the Commission to address
how the Louisiana Congressional candidates should treat
contributions received before and after the issuance of this
opinion for purposes of the contribution limits which are
now deemed available.
Because of the unique circumstances here, contributions
(otherwise lawful) that were received at any time up to the
issuance of this advisory opinion and that are within the
combined limits of either $2000 per donor (or $10,000 for a
multicandidate committee donor), will be regarded as within
the Act's limits. Only contributions received after the
date of this opinion must be governed by designation rules
at 11 CFR 110.1(b)(1)-(6) and 110.2(b)(1)-(6) and the rules
relating to receipt and possible return of contributions for
the December 9 conditional runoff referred to on page 3,
supra.
Reporting periods and filing dates
The political committee reporting periods and filing
dates remain unchanged as a result of this opinion. In
part, this means that a report covering the period from July
1 through September 30, 2000 must be filed no later than
October 15, 2000. A 12 day pre-general election report must
be filed no later than October 26, 2000, with coverage dates
from October 1 through October 18, 2000. Post general
election reports are also required on December 7, as is a
year end report with a filing date of January 31, 2001.
Other reports will be required from candidates' committees
who participate in a December 9 runoff, if held. The Act
also requires other reports and 48 hour contribution notices
at the prescribed dates within the 2000 Federal election
cycle. See generally, 2 U.S.C. 434(a)(2) and (a)(6).
Because the August 18 "primary election" date has passed and
was not determined to be a primary election until this
opinion was issued, and because the contributions and
expenditures within that time frame will be disclosed on the
report due October 15, 2000, the Commission will not require
the filing of a deferred 12 day pre-election report covering
the period that would normally be specified for such a
report.
This response to your request that the Commission
review its interpretation of the application of the Act and
its regulation to the Louisiana Federal electoral system may
have raised questions about whether candidates in the 2002
and 2004 Federal election cycles in Louisiana may rely upon
this opinion pursuant to section 437f(c)(1)(B). Assuming
that the Louisiana Congressional electoral system remains
the same, candidates in those election cycles may rely on
this opinion and accept otherwise lawful contributions for
the primary or the general election. Until the last day to
qualify for the general election ballot (a date not yet
determined for the 2002 and 2004 elections), contributions
to a candidate that are not designated for a particular
election will be deemed contributions for the primary
election. After such date, any undesignated contributions
will be deemed contributions for the general election. See
11 CFR 110.1(b)(2)(i)-(ii) and 11 CFR 100.2(c)(4).
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.
Sincerely,
(signed)
Darryl R. Wold
Chairman
Enclosures (AOs 1992-35, 1984-54 and 1978-79)
cc: Senators John Breaux and Mary Landrieu
Representatives Richard H. Baker, John Cooksey, Jim
McCrery, David Vitter, William Jefferson,
and Chris John
_______________________________
1 The Commission has consistently advised Congressional
candidates in Louisiana of this position, first in 1978 and
again in 1984. See Advisory Opinions 1978-79 and 1984-54.
2 In 1984, the Commission addressed the schedule for
Federal elections in Louisiana and concluded, as it did in
1978, that, for purposes of the Act, the general election
for Federal office in Louisiana would occur on the same
November date as the general election date in all other
States. Advisory Opinion 1984-54. The Commission did
recognize that the 1984 Federal candidates in Louisiana were
seeking office in an earlier election (an open primary
election under LA statutes) which preceded the November
general election, and that the earlier election was a
separate election for purposes of the Act. As a result of
the United States Supreme Court decision in Foster v. Love,
cited above, this open primary election is no longer held
for Federal offices. Accordingly, Advisory Opinion 1984-54
is superseded as to its discussion of the application of the
Act to the Louisiana open primary election process for
nomination (or conclusive election) to Federal office since
it was based upon what is no longer a correct description of
the Federal election schedule in Louisiana. In addition,
the conclusion of Advisory Opinion 1992-35 that an
independent candidate for the U.S. Senate in Louisiana had a
separate contribution limit for the October 3, 1992, "open
primary" is no longer valid since, as a result of the cited
court decisions, Louisiana no longer includes Congressional
offices on its open primary election ballots. See
discussion below.
3 Commission regulations also provide that a "general
election" may occur in the context of a special election
that is held to fill a vacancy in a Federal office. 11 CFR
100.2(b)(2), 100.2(f). That is obviously not the situation
presented here. The most recent special election in
Louisiana was held in May 1999 to fill a vacancy in the
First Congressional District.
4 A general election contribution limit is available to
these candidates even if they have no opponent in the
general election. 11 CFR 110.1(j)(2), 110.2(i)(2).
5 The cited regulations also provide that a runoff election
may be held after a primary election in order to decide
which candidate should be certified as a political party's
nominee. 11 CFR 100.2(d)(1). This regulation is not
applicable here since, as explained above, the runoff in
this instance would be held, if at all, after the November
general election.
6 The most recent Congressional election outcomes in
Louisiana suggest that a December runoff is not likely. In
the 1998 election cycle, all of the Federal elections in
Louisiana were decided at the November 3, general election.
Furthermore, the current ballot listings of Congressional
candidates provided by the Secretary indicate that only one
candidate of either the Democratic or Republican party will
appear on the ballot in the 2nd, 3rd, and 7th Congressional
Districts. http://www.sec.state.la.us/cgibin/ In the other
four Districts the incumbent Members will appear on the
ballot, and the ballot in each of them includes at least
one other candidate who is identified as either a Democrat
or Republican. However, the non-incumbent candidates in
those four districts have not filed reports of financial
activity with the Commission; this is also the case for the
independent candidates who have filed in all seven
districts. This may indicate that those individuals have
not qualified as candidates under the Act; that is, they
have not received or expended over $5,000 in their
campaigns. See 2 U.S.C. 431(2).
7 The Secretary's published ballot list for the
Congressional elections on November 7 includes all seven
Congressional Districts and the candidates who have filed
with the Secretary for those offices. http://www.
sec.state.la.us/cgibin/?rqstyp=CNDMS&rqsdta=110700.
8 The cited regulations also include two types of primary
elections that only occur in the presidential primary
process. 11 CFR 100.2(c)(2), (c)(3). They also include a
"primary election" definition for cases where a major party
candidate is unopposed for nomination within his or her
political party and who is thus certified to appear as that
party's nominee on the general election ballot. As
indicated by the discussion above, this is not the case in
Louisiana this year. Two candidates of the same party have
qualified for the November 7 general election ballot in two
Congressional districts, and there is no indication that any
Congressional candidate was previously nominated by the
political party with which they claim affiliation or
affinity, for ballot listing purposes.
9 This subsection also offers independent or non-major
party candidates an option to choose a primary election date
that corresponds to the last major party primary held in the
State, or the date of the candidate's actual nomination by
his political party. 11 CFR 100.2(c)(4)(ii), (4)(iii).
Neither of those options are pertinent here since the two
major political parties in Louisiana did not hold any
primary election for Congressional candidates in 2000 and do
not have any other party process for nominating one
candidate to seek each Congressional office as the party's
nominee in the November general election.
The history and underlying purpose of this subsection of
the election definitions was "to be neutral as between party
affiliated and independent candidates" and to treat non-
major party candidates "the same as
independent candidates. This was done because non-major
parties usually do not have actual primary elections and
spend a great deal of effort to secure a ballot position."
Federal Election Commission Regulations, Explanation and
Justification, House Document No. 95-44, at 40, 41(1977).