Federal Election Commission Main Page
May 12, 1978
AO 1978-25 (Part A)
Honorable Bob Packwood
Chairman
National Republican Senatorial Committee
227 Massachusetts Avenue, N.E.
Washington, D.C. 20002
Dear Chairman Packwood:
This refers to your letter of April 5, 1978,
requesting an advisory opinion as to whether various
state party conventions and primary runoff elections
would be considered separate elections for purposes
of the Federal Election Campaign Act of 1971,
as amended ("the Act"). You have requested that
the question concerning receipt of contributions
to be held in escrow for a primary runoff election
be answered before your other questions, if answers
to the other questions require additional preparation
time.
By letter dated April 18, 1978, James F.
Schoener, Counsel to the National Republican Senatorial
Committee ("NRSC"), identified those Senate
candidates on whose behalf your request is submitted
and clarified the basis on which NRSC has standing
under 2 U.S.C. SS 437f and Part 112 of the Commission's
regulations to request an advisory opinion on the
questions posed in your April 5 letter. As you
recognize, the special, combined $17,500 limit
on contributions made to Senate candidates by the
NRSC and the Republican National Committee applies
to all elections including the primary, runoff,
and general elections. 2 U.S.C. SS 441a(h) and 11 CFR
110.2(c). Thus the number of elections for particular
Senate candidates presents a factual situation
involving the NRSC only to the extent it is the
authorized agent of those candidates. See 11 CFR
112.1(a).
With respect to the primary runoff situation,
the Commission understands that on behalf of Congressman
Cochran of Mississippi and Senator Helms of North
Carolina you ask whether a primary runoff election
is considered a separate election for purposes
of 2 U.S.C. SS 441a. Your question poses the issue
of whether a Senate candidate who is not on the
ballot in a primary runoff election may nevertheless
have the benefit of a separate contribution limit
with respect to a runoff election which is required
between other Senate candidates opposing each
other for the nomination of another political party.
Assuming an affirmative answer to this issue you
ask whether contributions with respect to a potential
runoff election may be received and held in escrow
to be spent after the primary or returned to the
contributors if no runoff occurs and the contributors
would exceed SS 441a limits.
The contribution limits in 2 U.S.C. SS 441a(a)
apply to contributions made "to any candidate and
his authorized political committees with respect
to any election for Federal office." Each limitation
of SS 441a(a) as to a Senate candidate applies separately
with respect to each election. 2 U.S.C. SS 441a
(a) (6). The term "election" is defined in 2 U.S.C.
SS 431(a) (1) to mean "a general, special, primary,
or runoff election;". Commission regulations at
11 CFR 100.6(c) further explain that:
"Runoff election" means the election
held after a
(1) Primary election, and prescribed
by applicable State law as the means
for deciding which candidate(s)
should be certified as a nominee
for the Federal office sought.
The language of the regulation indicates that
the Commission regards a runoff election as the
method prescribed by State law for deciding upon
the candidate who should be certified as the nominee
of a particular political party for Federal office
in the succeeding general election. In addition,
the definition of "candidate" in 2 U.S.C. SS 431(b)
refers to an individual seeking nomination for
election, or election, to Federal office. Once
nominated for election to Federal office a candidate
is no longer seeking nomination and therefore
is not regarded as a candidate with respect to
any runoff election prescribed by applicable State
law to select another nominee for the same Federal
office. Accordingly, contributions to such a candidate
may not be made with respect to a runoff election
which, as to that candidate, is obviously immaterial
to his or her selection as a nominee for the general
election.
In view of the foregoing conclusion, it follows
that contributions to a Senate candidate who is
not required to seek nomination through a runoff
election may not be made or accepted with respect
to a runoff election on an escrow or any other
basis at any time. In this regard it is significant
that Commission regulations at 11 CFR 101.2(d)
provide for receiving general election contributions
before the primary but do not provide for receiving
runoff election contributions before the necessity
of a runoff is determined. See also Commission
regulations defining the phrase "with respect to
any election." 11 CFR 110.1(a)(2)
An advisory opinion responding to your questions
concerning whether State party conventions in Colorado
and Minnesota are separate elections for purposes
of 2 U.S.C. SS 441a will be issued in the near future.
This response constitutes an advisory opinion
concerning the application of a general rule of
law stated in the Act, or prescribed as a Commission
regulation, to the specific factual situation set
forth in your request. See 2 U.S.C. SS 437f.