AO 2009-04: Recount and election contest funds

A national party committee may establish a recount fund subject to the Federal Election Campaign Act’s (the Act) amount limits, source prohibitions and reporting requirements to pay expenses incurred in connection with recounts and election contests of federal elections.

Background

Al Franken was the Democratic candidate for the U.S. Senate for Minnesota in 2008, facing Republican Senator Norm Coleman. The close outcome of the general election led to a mandatory recount that gave a 225-vote lead to Mr. Franken. In January 2009, Mr. Coleman filed a lawsuit to contest the recount, which has resulted in a protracted legal battle with no final winner yet being determined or seated in the Senate.

The Democratic Senatorial Campaign Committee (DSCC), a national committee of the Democratic Party, wishes to establish a recount fund, separate from its other accounts and subject to a separate limit on amounts received, to pay expenses incurred in connection with the 2008 Senatorial recount and election contest in Minnesota. Donations to the proposed separate recount fund would be subject to the limits, prohibitions and reporting requirements of the Act.

In addition, Mr. Franken’s principal campaign committee, Al Franken for U.S. Senate (the Committee), established a recount fund to pay for expenses incurred in connection with the recount, and has used the fund for expenses related to the election contest. The Committee wishes to establish a separate election contest fund that would be subject to the Act’s limits, prohibitions and reporting requirements, but would have a limit separate from its recount fund on amounts received. This proposed fund would be used to pay expenses incurred only in connection with the election contest.

Analysis

In AO 2006-24, the Commission concluded that “because election recount activities are in connection with a Federal election, any recount fund established by either a Federal candidate or the State Party must comply with the amount limitations, source prohibitions, and reporting requirements of the Act.” The advice provided by AO 2006-24 applies to a national party committee as well. Thus, the DSCC may establish a recount fund subject to the Act’s amount limits, source prohibitions and reporting requirements to be used for expenses incurred in connection with recounts and election contests of federal elections, such as the 2008 Senatorial recount and election contest in Minnesota. The contribution limits for a national party committee for 2009 ($30,400 per calendar year from an individual and $15,000 per calendar year from a multicandidate political action committee) apply for any recounts and election contests during 2009. Donations to recount funds are not aggregated with contributions from those same individuals for purposes of the calendar-year and aggregate biennial contribution limits of 2 U.S.C. §§441a(a)(1)(B) and (a)(3).

The Commission could not approve a response by the required four affirmative votes with regard to whether Al Franken for U.S. Senate may establish an election contest fund, separate from its existing recount fund, and subject to a separate donation limit.

AO 2009-04: Date issued: March 20, 2009; Length: 4 pages.