Federal Election Commission Main Page
September 25, 1992
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1992-35
George Cochran
The University of Mississippi
Law Center
University, MS 38677
Dear Mr. Cochran:
This responds to your letter dated September 6, 1992, on
behalf of Jon Khachaturian concerning the application of the
Federal Election Campaign Act of 1971, as amended ("the
Act"), to the proposed acceptance of excessive contributions.
You represent Jon Khachaturian, an independent candidate
for the United States Senate in Louisiana in the October 3,
1992, open primary. You state that, on August 20, 1992,
Mr. Khachaturian "qualified" in Louisiana as a candidate for
the Senate by paying a filing fee of $600. The candidate's
name appears on the primary ballot. In addition,
Mr. Khachaturian submitted a Statement of Candidacy and his
principal campaign committee submitted a Statement of
Organization, which were received by the Secretary of the
Senate on September 10, 1992.
In an affidavit enclosed with your letter,
Mr. Khachaturian states that he needs to raise $250-300,000
to mount an effective campaign against the Democratic
incumbent. Mr. Khachaturian states that he can make a
personal contribution of $50,000 and that he has 15
contributors willing to donate contributions aggregating
$200,000, if permitted by law.1/ Mr. Khachaturian states
that the $1,000 limit [at 2 U.S.C. §441a(a)(1)(A)]
"eliminates [him] as a serious candidate" and renders the
incumbent unbeatable. He also states that, although "party
candidates" are subject to the same limit, they "have greater
access to political action committees (PACs) which can
contribute up to $5,000" and are eligible for substantial
party coordinated expenditures.
You describe Mr. Khachaturian as "an independent
candidate who clearly demonstrates that the [section 441a]
restriction precludes the mounting of an effective campaign
against party candidates," and ask whether those limits
should be applicable to him. You enclose a memorandum of law
challenging the statutory limit as applied to the candidate;
you argue that there is an unequal impact, with advantages
extending to major party candidates, and that the First
Amendment rights of Mr. Khachaturian may be impaired.
Section 441a(a)(1)(A) of Title 2 was enacted in 1974 as
an amendment to the Act, which the Commission is required to
administer and enforce. 2 U.S.C. §437c(b). The wording of
section 441a(a)(1)(A) applies to all candidates and makes no
exceptions. Generally, Federal administrative agencies are
without power or expertise to pass upon the constitutionality
of legislative action. Spiegel, Inc. v. Federal Trade
Commission, 540 F.2d 287, 294 (7th Cir. 1976). See Johnson
v. Robison, 415 U.S. 361, 368 (1974). Therefore, even if the
Commission were persuaded as to the merits of your position,
it could not accede to Mr. Khachaturian's request and
conclude that the limit is inapplicable.
Moreover, the Commission notes that the
constitutionality of 2 U.S.C. §441a(a)(1)(A) has been upheld
in Buckley v. Valeo, 424 U.S. 1 (1976). The Court concluded
that the $1,000 limitation was constitutionally justified
because of the need "to limit the actuality and appearance of
corruption resulting from large individual financial
contributions." 424 U.S. at 26. The Court determined not to
question the amount of the limit established by Congress and
concluded that a possible lack of "fine tuning" by Congress
as to the amount did not constitute an infringement, as
overbreadth, of First Amendment rights. 424 U.S. at 30. The
Court admitted that the charge of discrimination against
minor party and independent candidates is more troubling than
a similar charge with respect to major party challengers.
Nevertheless, the Court, in viewing the situation of minor
party and independent candidates in general, referred to such
countervailing factors as the resultant inability of major
party candidates to receive large contributions (i.e.,
contributions they were more likely to receive), and the fact
that minor party and independent candidates may have a
substantial impact on the outcome of elections. 424 U.S. at
33-35. See Goland v. United States, 903 F.2d 1247, 1258 (9th
Cir. 1990).
Based on the foregoing analysis, the Commission
concludes that the limits of 2 U.S.C. §441a(a)(1)(A) are
applicable to Mr. Khachaturian. His campaign may not accept
contributions in excess of $1,000 from any individual with
respect to the October 3 open primary.
This response constitutes an advisory opinion concerning
application of the Act, or regulations prescribed by the
Commission, to the specific transaction or activity set forth
in your request. See 2 U.S.C. §437f.
Sincerely,
(signed)
Scott E. Thomas
Vice-Chairman for the
Federal Election Commission
ENDNOTES
1/ You have enclosed copies of fifteen letters from
contributors stating their willingness to contribute $5,000
or $10,000 (and, in one case, $75-100,000) if it becomes
legally permissible or if the candidate can obtain a ruling
or a change in the law permitting it. You have also enclosed
a campaign plan drawn up by a consultant illustrating the
need for substantial funding.