Advisory opinion 2006-25: 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.

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. (The threshold amounts for each state are listed on the FEC's web site at http://sers.fec.gov/fosers/showpdf.htm?docid=5770.) These thresholds apply separately to the primary and general elections.

Senator John Kyl is a Republican candidate for reelection to the U.S. Senate from Arizona. Senator Kyl's potential Democratic opponent in the general election, Jim Pederson, has disclosed personal contributions of $4.5 million to his own campaign. The Kyl for U.S. Senate campaign committee claims that more than $3.7 million of that sum has been spent. Mr. Pederson is unopposed in the Democratic primary. Senator Kyl and his committee estimate that at least $1.5 million of the spending occurred before the September 12, 2006, primary on research about Senator Kyl and advertising criticizing Senator Kyl. If both candidates receive their parties' nominations, they will face each other in the general election on November 7, 2006.

Analysis

Under the Millionaires' provisions, all personal expenditures Mr. Pederson makes prior to the primary election will be considered expenditures in connection with the primary election, not the general election. See AOs 2006-6 and 2006-21. Since Senator Kyl is not running against Mr. Pederson in the Democratic primary, Mr. Pederson's expenditures will not trigger the Millionaires' provisions for Senator Kyl's campaign in that election, regardless of whether Mr. Pederson is unopposed in the primary or is spending funds to criticize the Senator.

However, if Senator Kyl faces Mr. Pederson in the general election, any personal funds contributed by the candidates to their campaign committees during the primary that are available for use in the general election will count towards the personal spending thresholds for the general election. Each campaign must use a reasonable accounting method to determine the amount of transferred funds. See 11 CFR 110.3(c)(4); AO 2006-6 andAO 2006-21.

AO 2006-25; Date: August 31, 2006; length: 6 pages