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AO 2013-06 – Provisions Apply Equally to Same-Sex Spouses

The Democratic Senatorial Campaign Committee (DSCC) may follow the same FEC regulations for legally married same-sex couples as it follows for spouses in an opposite-sex marriage. Specifically, the Commission concluded that:

  • The DSCC may attribute joint contributions under 11 CFR 110.1(i) to each same-sex spouse, even if only one has income;
  • A candidate legally married to a same-sex spouse may use jointly owned assets under the same conditions as a candidate married to an opposite-sex spouse; and
  • DSCC representatives may appear at restricted class events at which legally married same-sex spouses of members of the restricted class attend.

Background
The DSCC filed an advisory opinion request asking the Commission three questions about how the terms “spouse” and “family” apply to same-sex couples under the Federal Election Campaign Act of 1971, as amended (“FECA”), and Commission regulations. The DSCC’s request followed the Supreme Court’s ruling June 26 in United States v. Windsor that struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.

The DSCC wanted to know if it could attribute a contribution as being from each member of a legally married same-sex couple even if the money originated from the income of just one of the spouses. Secondly, it asked whether a Senate candidate who is legally married to a same-sex spouse may utilize joint assets under the same provisions as a Senate candidate who is married to an opposite-sex spouse. Finally, it asked if DSCC representatives may appear at restricted class events at which legally married same-sex spouses are present as family members of corporate/labor executive and administrative employees, stockholders and members.

Analysis
The term “spouse” is not defined in FECA or Commission regulations, but was previously limited by section 3 of DOMA to apply only “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 purposes of the FECA and Commission regulations.

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).  DSCC may apply the spouse contribution rule at 11 CFR 110.1(i) to contributions from same-sex couples married under state law.

Similarly, a Senate candidate who is legally married to a same-sex spouse may utilize “jointly owned assets” under 11 CFR 100.33(c) and 100.52(b)(4) under the same conditions as a Senate candidate who is married to an opposite-sex spouse.

Finally, DSCC representatives may appear at restricted-class events, pursuant to 11 CFR 114.3(c)(2), at which legally married same-sex spouses are present as “families” of restricted class members under 11 CFR 114.1(j).

Date Issued: July 25, 2013; 6 pages.

(Posted 8/1/13; 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