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AO 2013-07 – Same-Sex Spouses Receive Equal Treatment

A federal candidate’s campaign committee may attribute joint contributions to each spouse in a legally married same-sex couple, even if only one spouse has income.

Background
Dan Winslow was a Senate candidate in the April 30 Massachusetts special primary. He asked the Commission whether his campaign could apply the spouse contribution rule at 11 CFR 110.1(i) to contributions it receives from lawfully married same-sex couples. Specifically, the campaign wanted to know if it could attribute a contribution as being from each member of a lawfully married same-sex couple even if only one of them had income.

In April 2013, the Commission denied the Winslow campaign’s initial request (Advisory Opinion 2013-02), citing the Defense of Marriage Act (DOMA), which limited the definition of spouses to married couples “of the opposite sex.”  The Commission indicated it would revisit the issue if DOMA were held unconstitutional by the Supreme Court or otherwise modified or repealed.

On June 26, 2013, the Supreme Court struck down DOMA as unconstitutional, and Mr. Winslow submitted a new AO request on July 3. (See United States v. Windsor.)

Analysis
Commission regulations allow campaigns and other federal committees to accept “contributions made by each spouse even if only one spouse has income.” 11 CFR 110.1(i). Thus, a spouse with no separate income may make a contribution in his or her own name through the checking account of the other spouse. AO 1980-11(Phillips).

The term “spouse” is not defined in the Federal Election Campaign Act of 1971, as amended (“FECA”), or the Commission’s regulations but was previously limited by section 3 of DOMA to only apply “to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. §7. Now that the Supreme Court has found section 3 of DOMA unconstitutional, the Commission has concluded that same-sex couples married under state law are “spouses” for the purpose of FECA and Commission regulations.  The Winslow campaign may therefore apply the spouse contribution rule at 11 CFR 110.1(i) to contributions from same-sex couples married under state law.

AO 2013-02 (Winslow I), which reached the opposite conclusion on this issue, is superseded in relevant part.

Date Issued: July 25, 2013; 6 pages

(Posted 8/1/2013; By: Alex Knott)

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The FEC Record is produced by the Information Division, Office of Communications. Toll free 800-424-9530; Local 202-694-1100; Email info@fec.gov. Greg Scott, Director; Alex Knott, Senior Writer/Editor; Dorothy Yeager, Production Manager