Advisory Opinion 2007-05: officeholder's chief of staff raising nonfederal funds as chairman of State Party committee

Erik Iverson, Chief of Staff to U.S. Representative Dennis Rehberg, may raise and spend nonfederal funds as Chairman of the Montana Republican State Central Committee (State Committee) so long as he refrains from raising or spending nonfederal funds as an agent of Congressman Rehberg.

Background

Mr. Iverson serves as the Chief of Staff to Congressman Rehberg of Montana. While Mr. Iverson has attended campaign events, he has never been employed by the Congressman's campaign committee, nor has he ever raised or spent campaign funds for the Congressman. Mr. Iverson intends to run for election to the position of Chairman of the State Committee. The State Committee has both federal and nonfederal accounts and solicits donations for its nonfederal account in amounts and from sources that are prohibited by federal law, including donations in unlimited amounts from individuals. As Chairman of the State Committee, Mr. Iverson's actions would be undertaken exclusively on behalf of the State Committee and not on behalf of Congressman Rehberg or his campaign. Mr. Iverson asked the Commission whether he may raise and spend nonfederal funds as Chairman of the State Committee:

• While holding his position as the Congressman's Chief of Staff; and
• If he becomes a fundraising agent of Congressman Rehberg.

Analysis

The Act prohibits federal candidates, officeholders and their agents from soliciting, receiving, directing, transferring or spending funds outside the limits and prohibitions of federal law in connection with nonfederal elections. 2 U.S.C. 441(e)(1)(B); 11 CFR 300.62. Agents of federal candidates and officeholders are prohibited from engaging in these activities when acting on behalf of a federal candidate or officeholder. 11 CFR 300.60(c). The Commission has defined "agent" to mean any person who has actual authority, either express or implied, "to solicit, receive, direct, transfer, or spend funds in connection with any election." 11 CFR 300.2(b)(3). Actual authority is created through the candidate/officeholder's express or implied consent, thereby bestowing the authority to act on the candidate or officeholder's behalf.

Activities of an individual who is not an agent. Under his current duties and activities, Mr. Iverson is not an agent of the Congressman for purposes of 2 U.S.C. 441i(e). As Chief of Staff, Mr. Iverson's responsibilities pertain only to the Congressman's official duties. The Congressman has not expressly instructed Mr. Iverson to act on his behalf for fundraising purposes, nor has his conduct indicated that Mr. Iverson is his agent for fundraising purposes. Mr. Iverson's role as Chief of Staff does not entail actual authority, express or implied, to raise or spend campaign funds, and he is not a fundraising agent of Congressman Rehberg under 11 CFR 300.2(b)(3). Therefore, Mr. Iverson may solicit, direct, receive, transfer or spend nonfederal funds as Chairman of the State Committee while continuing to serve as Congressman Rehberg's Chief of Staff.

Activities of an agent. If Congressman Rehberg grants Mr. Iverson actual authority to solicit and receive contributions, then Mr. Iverson will become an "agent" of a federal candidate or officeholder under 11 CFR 300.2(b)(3). In that event, Mr. Iverson would be required to refrain from raising or spending nonfederal funds when acting on the Congressman's behalf. Mr. Iverson's status as an agent of the Congressman would not preclude him from also serving as the Chairman of the State Committee. The Commission has explained that the purpose of the requirement that an agent act on behalf of an officeholder or candidate to be subject to the prohibitions in 2 U.S.C. 441i(e) was "to preserve an individual's ability to raise funds for multiple organizations." 71 FR 4979 n.9. Accordingly, the Act does not prohibit individuals who are "agents" from raising nonfederal funds for other political parties or groups.

This issue was addressed in Advisory Opinion 2003-10 (Reid), in which the Commission permitted Rory Reid, the son of Senator Harry Reid of Nevada, to raise nonfederal funds for a State party committee even though he had previously been an "agent" of Senator Reid's campaign and anticipated being an agent again in the future. The Commission deemed this permissible so long as Rory Reid solicited nonfederal funds in his own capacity on behalf of the state party and not on the authority of any federal candidate or officeholder.

Consistent with the conclusion in Advisory Opinion 2003-10, the Commission concluded in this case that Mr. Iverson may raise and spend funds on behalf of the State Committee, even if he becomes an agent of Congressman Rehberg for fundraising purposes, as long as Mr. Iverson solicits nonfederal funds in his own capacity and exclusively on behalf of the State Committee and not on the authority of any federal candidate or officeholder, including Congressman Rehberg.

The Commission expressed no opinion regarding the application of the rules of the House of Representatives to the proposed activities because those questions are not within the Commission's jurisdiction.

AO 2007-05: Date: April 25, 2007; Length: 7 pages