AO 2010-07: Members of Congress may solicit funds for state ballot measure

Members of Congress may solicit funds on behalf of a state ballot measure in the state of California outside the amount limitations and source prohibitions of the Federal Election Campaign Act (the Act) during the period before the initiative qualifies for the ballot. After the initiative qualifies for the ballot, Members of Congress may solicit funds within the amount limitations and source prohibitions of the Act and may also solicit up to $20,000 from individuals on behalf of the state ballot measure. The Commission was unable to agree on whether, during the post-qualification period, Members of Congress may solicit donations of more than $20,000 and from persons other than individuals. 

Background 

Yes on FAIR is a ballot measure committee in the state of California that has applied to the Internal Revenue Service for recognition as a section 501(c)(4) organization under Title 26 of the Internal Revenue Code. Karen Bass, who is currently a federal candidate (and state officeholder), is identified in Yes on FAIR’s official name. [FN1] However, the requestor maintains that Yes on FAIR was not directly or indirectly established by, and is not financed, maintained or controlled by, any federal candidate or officeholder. 

The requestor represents that Yes on FAIR’s sole purpose is to support the qualification and passage of the Financial Accountability In Redistricting Act (FAIR Act), a proposed ballot initiative, for the statewide November 2, 2010, general election ballot. 

Once the ballot initiative has qualified for the general election ballot in California, Yes on FAIR intends to engage in “an extensive campaign to promote the FAIR Act’s passage,” including, among other things, get-out-the vote programs specifically designed to get the measure’s supporters to the polls on election day. Yes on FAIR maintains that their campaign advertisements will not promote, support, attack or oppose any federal candidate or result in coordinated communications under Commission rules. 

Analysis 

Members of Congress may solicit funds outside the amount limitations and source prohibitions of the Act and Commission regulations on behalf of Yes on FAIR during the period before the initiative qualifies for the November ballot. The Act prohibits federal candidates and officeholders, their agents and entities directly or indirectly established, financed, maintained or controlled by them or acting on their behalf from raising and spending funds in connection with an election unless the funds are consistent with the limitations and prohibitions contained in the Act. 2 U.S.C. § 441i(e)(1) and 11 CFR 300.61 and 300.62. The Commission concludes under the facts of this advisory opinion that 2 U.S.C. § 441i(e)(1) does not apply to solicitations on behalf of the initiative before it qualifies for the ballot. 

Members of Congress may also solicit funds within the limitations and prohibitions of the Act on behalf of Yes on FAIR after the initiative qualifies for the ballot. However, the Commission is unable to agree on whether Members of Congress may solicit funds outside the Act’s limits and prohibitions. 

Finally, the Commission concludes that Members of Congress may solicit up to $20,000 from individuals on behalf of Yes on FAIR after the initiative has qualified for the ballot.[FN2] However, as discussed above, the Commission is unable to agree on whether Members of Congress may solicit funds outside the Act’s limitations and prohibitions after the initiative qualifies for the ballot. 

AO 2010-07: Date issued: June 14, 2010; Length: 4 pages 

FOOTNOTES

1 The requestor’s full name is Yes on FAIR, a coalition of entrepreneurs, working people, Karen Bass, and other community leaders devoted to eliminating bureaucratic waste of taxpayer dollars on the political game of redistricting committee (“Yes on FAIR”). The requestor represents that California state law requires that the official name of a ballot initiative committee identify state officeholders who have contributed $50,000 or more to the committee. Ms. Bass is a California State legislator, and state political committees associated with her have made two contributions to Yes on FAIR totaling $50,000. Subsequently, Ms. Bass decided to run for election to the U.S. House of Representatives from California. 

2 The Act contains an exception to the limitations of 2 U.S.C. § 441i(e)(1) that applies to solicitations for specific types of federal election activity on behalf of certain tax exempt organizations, provided that the solicitations are made only to individuals and do not seek more than $20,000 per individual. 2 U.S.C. § 441i(e)(4) and 11 CFR 300.65.