Remedying an excessive contribution
When a committee receives an excessive contribution—one which exceeds the contributor’s limit or the campaign’s net debts outstanding for an election—the committee may remedy the violation by refunding the excessive amount or by seeking a redesignation or reattribution of it within 60 days.
With a redesignation, the contributor instructs the committee to use the excessive portion of a contribution for an election other than the one for which the funds were originally given. For example, the contributor may redesignate the excessive portion of a contribution made for the primary election so that it counts against their limit with respect to the general election (provided the contributor has not already contributed the maximum for the general election).
When requesting a redesignation, the committee must inform the contributor that they may, alternatively, request a refund of the excessive amount.
Presumptive redesignation by committee
Under certain circumstances, the committee may make a presumptive redesignation of an excessive contribution. When an individual or a non-multicandidate committee makes an excessive contribution to a candidate’s authorized committee, the campaign may presumptively redesignate the excessive portion to the general election if the contribution:
- Is made before that candidate’s primary election;
- Is not designated in writing for a particular election;
- Would be excessive if treated as a primary election contribution; and
- As redesignated, does not cause the contributor to exceed any other contribution limit.
Also, the excessive portion of an undesignated contribution made after the primary, but before the general election, may be automatically applied to the primary if the campaign’s net debts outstanding from the primary equal or exceed the amount redesignated. Note that a contribution that is designated in writing for a particular election may not be presumptively redesignated to another election. In this case, the committee must request a written redesignation.
The committee is required to notify the contributor in writing of the presumptive redesignation within 60 days of the treasurer’s receipt of the contribution, and must offer the contributor the option to receive a refund instead.
It is important to note that presumptive redesignations may be made only within the same election cycle. Also, presumptive redesignation is not an option when the contributor is a multicandidate committee.
With a reattribution, the contributor instructs the committee in writing to attribute the excessive portion of a joint contribution to another individual. For example, if the committee receives an excessive contribution drawn on a joint checking account, but signed by only one account holder, the committee may seek a reattribution signed by each contributor of the excessive amount to the other account holder. (A joint contribution may also be reattributed so that a different amount is attributed to each contributor.) Note that a joint contribution must represent the personal funds of each contributor because contributions made in the name of another are prohibited.
When requesting reattributions, the committee must also inform contributors that they may, alternatively, ask for a refund of the excessive portions of their contributions.
Presumptive reattribution by committee
When a committee receives an excessive contribution made via a written instrument with more than one individual’s name imprinted on it, but only one signature, the committee may attribute the permissible portion to the signer. The committee may make a presumptive reattribution of the excessive portion to the other individual whose name is imprinted on the written instrument, without obtaining a second signature, so long as the reattribution does not cause the contributor to exceed any other contribution limit.
The committee is required to notify the contributors in writing of the presumptive reattribution within 60 days of the treasurer’s receipt of the contribution, and must offer the contributors the option to receive a refund if it was not intended to be a joint contribution.
When to request redesignations and reattributions
In many circumstances, the committee will be able to presumptively redesignate or reattribute contributions. For all other circumstances, contributions can be redesignated or reattributed only by the individual contributor.
A committee may ask a contributor to redesignate and/or reattribute a contribution. For example, when the committee receives:
- A designated or undesignated contribution that exceeds the donor’s limit.
- A designated or undesignated contribution for an election in which the candidate is not running. For example, a contribution that was designated for the general but was received before the primary may be redesignated for a future primary if the candidate loses the primary or otherwise does not run in the general election.
- A contribution that is designated for, but made after, an election and that exceeds the campaign’s net debts outstanding for that election.
- An undesignated contribution (which normally applies to the candidate’s upcoming election) that the committee wants to use to retire debts of a previous election. Note that, if it is redesignated, the contribution then counts against the donor’s contribution limits for that previous election.
Procedures for obtaining redesignations and reattributions from contributors
The committee treasurer is the person ultimately responsible for complying with the procedures outlined in this section.
- Step 1: Deposit contribution
A committee must deposit contributions within 10 days of the treasurer’s receipt. (If a contribution is not deposited, it must be returned to the contributor within 10 days of receipt.)
- Step 2: Determine whether excessive
The committee must determine whether a contribution exceeds the donor’s limit or the campaign’s net debts outstanding. The Commission encourages committees to make this determination within 30 days of receiving the contribution. This allows a committee sufficient time to request and receive a redesignation and/or reattribution within the 60-day limit, as explained in the next step.
- Step 3: Be prepared to make refund
When a committee deposits contributions that may exceed the limits or net debts outstanding for an election, the committee must not spend the funds because they may have to be refunded. To ensure that the committee will be able to refund the contribution in full, the committee may either maintain sufficient funds in its regular campaign depository or establish a separate account used solely for the deposit of possibly illegal contributions. Furthermore, the committee must keep a written record noting the reason a contribution may be excessive and must include this information when reporting the receipt of the contribution.
- Step 4: Request redesignation and/or reattribution
When requesting a redesignation, the committee asks the contributor to provide a written, signed redesignation of the contribution for another election. The request must also state that the donor may receive a refund of the excessive portion of the contribution if they do not wish to redesignate it. Redesignations may be made electronically provided that the method offers a sufficient degree of assurance of the contributor’s identity and intent to redesignate, and the committee retains a record of the redesignation in a manner consistent with the recordkeeping requirements.
When requesting a reattribution, the committee asks the contributor whether the contribution was intended to be a joint contribution from more than one person. Alternatively, if the original contribution was a joint contribution, the committee requests that the contributors adjust the amount attributable to each. In either case, the committee should inform the contributors that they must each sign the reattribution. The request must notify each contributor that, instead of reattributing the contribution, they may seek a refund of the portion of the contribution that exceeds the limits or the campaign’s net debts outstanding.
- Step 5: Redesignation/reattribution made or make refund within 60 days
Within 60 days after the date of the committee’s receipt of the contribution either the contributor must provide the committee with a redesignation or reattribution, or the committee must refund the excessive portion of the contribution.
A contribution is properly redesignated if, within the 60-day period, the contributor provides the committee with a written, signed statement redesignating the contribution for a different election.
A contribution is properly reattributed if, within the 60-day period, the contributors provide the committee with a written statement reattributing the contribution. The statement must be signed by all contributors and must indicate the amount attributable to each donor. (If the contributors do not specify how to divide the contribution, the committee must attribute the contribution equally among the contributors.)
- Step 6: Keep records and report
The committee must keep documentation for each redesignation and reattribution to verify that it was received within the 60-day time limit. Documentation for a redesignation or reattribution must include one of the following:
- A copy of the postmarked envelope bearing the contributor’s name, return address or other identifying code;
- A copy of the signed statement redesignating or reattributing the contribution with a date stamp showing the date of the committee’s receipt; or
- A copy of the written redesignation or reattribution dated by the contributor.
The documentation relating to a redesignation or reattribution must be retained for three years.