Advisory opinion 2007-01: Federal officeholder may raise nonfederal funds to retire state campaign debt

A U.S. Senator may solicit, receive and spend funds that are in excess of federal limitations and are from sources prohibited under federal law in order to retire existing debt incurred in connection with her campaigns for Governor and State Auditor. Any solicitation for these purposes that refer to "Senator McCaskill" are permitted under the Act, subject to certain conditions. The Senator may also solicit and receive federally permissible funds for the same purpose.

Background

Senator Claire McCaskill of Missouri was elected to the U.S. Senate in 2006 and is currently a candidate for reelection in 2012. Prior to her election as a U.S. Senator, she was a candidate for Governor in 2004 and State Auditor of Missouri in 1998 and 2002. Debts previously owed by Friends of McCaskill, the nonfederal committee for Senator McCaskill's candidacies for Governor and State Auditor, were transferred to McCaskill for Auditor, the Senator's committee for reelection to State Auditor.

Analysis

The Federal Election Campaign Act (the Act) prohibits federal candidates and officeholders from raising or spending funds in connection with an election for federal office unless those funds are subject to the limitations and prohibitions set forth within the Act. 2 U.S.C. 441i(e)(1)(A); 11 CFR 300.61. The Act also prohibits federal candidates and officeholders from raising or spending funds in connection with an election other than an election for federal office unless the funds are subject to the limitations and prohibitions of the Act. 2 U.S.C. 441i(e)(1)(B); 11 CFR 300.62.

The Act, however, provides a limited exception for federal candidates and officeholders who seek state or local office. The Act's restrictions do not apply to any federal candidate or officeholder who is or was also a candidate for state or local office so long as the raising or spending of funds is 1) solely in connection with his or her state or local campaign; 2) refers only to him or her or to other candidates for that same state or local office; and 3) is permitted under state law. 11 CFR 300.63.

The Commission has previously concluded that funds raised after an election to retire campaign debt are as much in connection with the election for that office as contributions received by the committee before the election. Therefore, the first criterion is satisfied if funds raised by Senator McCaskill are in connection with debt retirement for her state office. The second criterion is satisfied if the solicitations refer only to Senator McCaskill or other candidates for the same state or local office. The final criterion is satisfied if the proposed activities comply with relevant Missouri law.

Senator McCaskill is also permitted to raise federally permissible funds to retire her state committee's debt, assuming those funds would comply with state law.

In addition, Senator McCaskill, as a current federal officeholder who was previously a candidate for state office, is not subject to the Act's provisions that prohibit state candidates from paying for public communications that promote, support, attack or oppose federal candidates with funds not subject to federal limits and reporting requirements.

AO 2007-01; Date Issued: March 22, 2007; Length: 8 pages