Advisory opinion 2006-21: Millionaires' rules apply separately to primary and general elections

A candidate's expenditures from personal funds made before the primary election will not trigger the Millionaires' Amendment for a general election opponent. However, any personal funds donated before the primary that the campaign retains for use in the general election will count towards the general election personal funds expenditure threshold.

Background

Under the so-called Millionaires' Amendment, a candidate whose opponent's personal campaign spending exceeds certain threshold amounts may qualify for increased limits on individual contributions and, during the general election, increased coordinated party expenditures, as well.

For Senate candidates, the personal spending thresholds that trigger the Millionaires' provisions vary by state, based on the voting age population. These thresholds apply separately to the primary and general elections.

Senator Maria Cantwell is a Democratic candidate for reelection to the U.S. Senate from Washington state. She and her principal campaign committee, Cantwell 2006, believe that Michael McGavick, a Republican candidate for the Senate seat, will spend personal funds in excess of the applicable threshold amount for "communications attacking Senator Cantwell" prior to the state's September 19 primary. If the two candidates win their respective primaries, they will face each other in the general election on November 7, 2006.

Analysis

Under the Millionaires' provisions, all personal expenditures Mr. McGavick makes prior to the primary election will be considered expenditures in connection with the primary election, not the general election. Since Senator Cantwell is not running against Mr. McGavick in the Republican primary, his expenditures will not trigger the Millionaires' provisions for her campaign in that election. However, if Senator Cantwell faces Mr. McGavick in the general election, any personal funds he contributed to his campaign committee during the primary that are available for use in the general election will count towards the personal spending threshold for the general election. (Naturally, the same would hold true for personal contributions Senator Cantwell may have made to her own campaign.)

Campaigns must use a reasonable accounting method to determine how much of the candidate's personal funds were transferred from the primary election campaign to the general election campaign. See AO 2006-06. One example of a "reasonable accounting method" is that the campaign's cash-on-hand consists of the funds most recently received. See 11 CFR 110.3(c)(4).

AO 2006-21; Date Issued: August 29, 2006; length: 7 pages