The Federal Election Commission (FEC) issued a unanimous Advisory Opinion concluding same-sex couples married under state law are precluded from making joint federal political contributions from an individual bank account.

A same-sex couple married under Massachusetts law sought to make a political contribution to Dan Winslow, a candidate for the United States Senate.

The contribution check included instructions to attribute the contribution separately and equally between both individuals, even though the check was drawn from one of the individual’s bank account.

11 C.F.R. 110.1(i) provides spouses a legal exception to the prohibition on making a contribution in the name of another person. However, the term “spouse” is not defined in the Federal Election Campaign Act of 1971 or the Commission’s regulations.

The Commission relied the Defense of Marriage Act (DOMA) interpretation of spouse referring “only to a person of the opposite sex who is a husband or a wife”.

In AO 2013-02, the FEC concluded DOMA prohibits applying the exception under 11 C.F.R. 110.1(i). The Commission distinguished a contribution made from a joint account, rather than an individual account, in a footnote to the opinion, noting, “Same-sex couples (whether married under state law or not) may as joint account holders make contributions in a manner similar to that afforded spouses under 11 C.F.R. 110.1(i).”

The Commission concluded its analysis and conclusions “may be affected by subsequent developments in the law including, but not limited to, statutes, regulations, advisory opinions, and case law”.

The Tennessee House of Representatives struck down a bill removing the prohibition on contributions from insurance companies and raising the contribution limits for party caucuses. House Bill 643 came up just two votes shy, collecting only 48 of the needed 50 votes to pass. The bill did however receive a majority of the votes, 48-41, so the bill is not technically dead.

Currently, Tennessee law prohibits insurance companies from making a contribution for political purposes. Under the bill, insurance companies would have had the ability to make contributions and would have had the same contribution limits as multicandidate political campaign committees.

The bill also would have allowed party caucuses to contribute $500,000 for statewide races, instead of the current limit of $374,300. It also would have doubled the amount the caucuses could contribute to senate and house candidates.

The bill was not defeated on a strict party line vote, as 13 Republicans voted against and another nine Republicans did not cast votes on the bill. It remains to be seen whether the House will bring the bill up for a second vote.

Photo of the Tennessee State Capitol House Chamber by Ichabod on Wikipedia.

The United States Supreme Court has decided to hear a case challenging the aggregate federal limits for a person making contributions to candidates, party committees, and PACs. The case, McCutcheon v. Federal Election Commission (FEC), is expected to be argued and decided during the Court’s next term, which begins in October, 2013.

The plaintiff, Shaun McCutcheon, is an Alabama businessman who regularly makes political contributions to Republican candidates and the Republican National Committee (RNC). Mr. McCutcheon wishes to contribute $26,200 more to candidates and committees than the aggregate ceiling would allow. However, he is not challenging the limits on contributions to individual candidates and entities. Mr. McCutcheon wants to give to more candidates and political entities. The RNC is also a plaintiff in the suit.

Federal law imposes two types of limits on individual political contributions, base limits and biennial limits.

Base limits restrict the amount an individual may contribute to:

• A candidate committee;
• A national party committee;
• A state, local, and district party committee; and
• A political action committee.

Biennial limits restrict the aggregate amount an individual may contribute biennially, using the 2011-2012 election cycle limits argued against in the lawsuit, as follows:

• $46,200 to candidate committees; and
• $70,800 to all other committees, of which no more than $46,200 may go to non-national party committees (e.g., state parties and PACs).

The plaintiffs are only challenging the overall limits (the biannual limits) and not the base limits.

The attorneys for McCutcheon and the RNC argue the two-year ceilings federal law sets on what an individual can contribute during a campaign are unconstitutional. Specifically, they assert the limits on contributions violate a contributor’s right to free speech; the limits for biennial contributions are too low; and the distinction between contributions and expenditures articulated in the 1976 US Supreme Court case Buckley v. Valeo are no longer applicable because of the changes in campaign finance laws over the last 30 years. Buckley v. Valeo allowed for government regulation of contributions to prevent political corruption and prohibited government regulation of expenditures because of First Amendment protections.

Unlike Citizens United v FEC, which concerned political expenditures, McCutcheon v. FEC addresses contribution limits. Additionally, this case does not involve the political contributions or expenditures of corporations.

Q. I am interested in making a political contribution in Puerto Rico. What are the current political contribution limits? Am I required to disclose my contribution?

A. In Puerto Rico, individuals and PACs may make contributions.  Direct corporate contributions are prohibited. Puerto Rico has recently raised the annual political contribution limits. In response to the Federal Election Commission raising the federal contributions limits in 2 U.S.C. §441a(a)(1)(A),  the Oficina del Contralor Electoral (OCE) issued Circulated Letter OCE-CC-2013-02. The circulated letter raises the individual and PAC contribution limits to $2,600 per candidate per year, with an aggregate contribution limit of $13,000.  In an election year, the limits are modified to $2,600 per candidate per election, and $13,000 in the aggregate per election. These contribution limits do not apply to independent expenditures.

There are no reporting requirements for individuals making contributions in Puerto Rico.  PACs, however, have a quarterly disclosure requirement for any quarter in which contributions were received or expenditures were made.  PACs established and registered in a jurisdiction other than Puerto Rico have separate reporting requirements under the campaign finance regulations issued by the OCE.

For specific guidance on making contributions in Puerto Rico, please contact Sarah Kovit.

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