AO 2007-28: Federal candidates/officeholders fundraising for ballot measure committees

Representatives Kevin McCarthy and Devin Nunes may, in addition to soliciting funds that are from federally permissible sources and do not exceed the contribution limits for individuals and political committees, solicit funds from individuals, subject to a $20,000 per calendar year limit, for one or more independently run ballot measure committees in connection with the qualification and passage of a redistricting initiative.

Background

U.S. Representatives McCarthy and Nunes are candidates for re-election in 2008. They will both appear on California's primary ballot and will, if they win their party's nomination, also appear on the November 4, 2008, general election ballot.

Representatives McCarthy and Nunes would like to support the qualification and adoption of a proposed ballot initiative. Specifically, they intend to raise funds for the People's Advocate Initiative Committee (PAIC), which is attempting to qualify, for either the primary or the general election ballot in California, a ballot initiative regarding the redistricting of California state and Congressional districts. PAIC is not registered as a political committee under the Act and is not directly or indirectly established, financed, maintained or controlled by either Representative. None of the funds raised by Representatives McCarthy and Nunes will be used for public communications that refer to them, and they will not participate in, or coordinate with PAIC regarding, other publications paid for by PAIC.

Analysis

Under the Federal Election Campaign Act (the Act) and Commission regulations, federal candidates and officeholders, or entities established, financed, maintained or controlled by them or acting on their behalf, may not raise funds in connection with a federal election, including funds for federal election activity, unless the funds are within the Act's limits, prohibitions and reporting requirements. 2 U.S.C. §441i(e)(1)(A) and 11 CFR 300.61. Federal candidates and officeholders may not raise or spend funds in connection with a nonfederal election unless those funds are from federally permissible sources and do not exceed the contribution limits for individuals and political committees. 11 CFR 300.62. See 2 U.S.C. §§441a(a)(1), (2) and (3).

In this case the Commission concluded that Representatives McCarthy and Nunes may solicit up to $20,000 during any calendar year from individuals on behalf of PAIC or other similar ballot initiative committees not directly or indirectly established, financed, maintained or controlled by, or acting on behalf of, either officeholder. The Commission was unable to agree on a single rationale for this decision.

Concurring Opinions

Chairman Mason and Commissioner von Spakovsky issued a concurring opinion on December 18, 2007.

Commissioners Lenhard, Walther and Weintraub issued a concurring opinion on December 31, 2007.

AO 2007-28: Date Issued: December 20, 2007; length: 3 pages.