AO 2005-10: Federal candidates and officeholders fundraising for ballot initiative committees

U.S. Representatives Howard L. Berman and John T. Doolittle are not subject to the restrictions on federal candidates and officeholders of the Federal Election Campaign Act (the Act) when they solicit funds for ballot measure committees formed solely to support or oppose ballot initiatives on the California special election ballot. These ballot measure committees are not directly or indirectly established, financed, maintained or controlled by Representative Berman or Representative Doolittle, by anyone acting on their behalf or by any political party committee.

Background

On November 8, 2005, California will hold a statewide special election. Neither Representative Berman nor Representative Doolittle, nor any other federal candidate, will appear on the ballot for this election. However, the election will present ballot initiatives that represent major issues facing the constituents of Representatives Berman and Doolittle and touch on matters frequently before Congress.

Representatives Berman and Doolittle plan to raise funds for ballot measure committees formed solely to support or oppose these initiatives. These committees are not directly or indirectly established, financed, maintained or controlled by either of the Representatives or by any national, state, district or local party committee. Representatives Berman and Doolittle will fundraise for these ballot measure committees in their individual capacities and not on behalf of any party committee. They will not raise funds for public communications that would refer to either of them and that would be distributed in their respective congressional districts.

Analysis

Under the Act, federal candidates and officeholders, such as Representatives Berman and Doolittle, may not raise or spend funds in connection with an election for federal office, unless the funds are subject to the limitations, prohibitions and reporting requirements of the Act. 2 U.S.C. §441i(e)(1)(A) and 11 CFR 300.61. In addition, federal candidates and officeholders may not raise or spend funds in connection with an election other than an election for federal office, unless the funds are within the contribution limits to candidates and political committees and from permissible sources under the Act. 2 U.S.C. §441i(e)(1)(B) and 11 CFR 300.62. See 2 U.S.C. §§441a(a)(1), (2), and (3). These restrictions on federal candidates and officeholders do not apply to the fundraising activities of Representatives Berman and Doolittle in the circumstances described above.

Concurring and dissenting opinions

Chairman Thomas issued a dissenting opinion on September 2. Vice-Chairman Toner and Commissioner Mason issued a concurring opinion on August 29. Commissioners Weintraub and McDonald issued a concurring opinion on September 2.

AO 2005-10: Date issued: August 22; Length: 3 pages.