April 25, 2013 •
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”.