AO 2009-15: Candidate committee may accept contributions for potential special election

An authorized committee of a candidate may accept contributions that may be used for a special or emergency election or runoff in 2009 or 2010, even though an election has not been scheduled and may not occur.

Background

Bill White is the current mayor of Houston, Texas, and also a candidate for election to the U.S. Senate from Texas in 2012. Bill White for Texas (White Committee) is Mayor White’s Senatorial campaign committee registered with the FEC. Currently, Senator Kay Bailey Hutchison holds the Senate seat that will be contested in the 2012 primary and general elections. However, Senator Hutchison has indicated that she will not be a candidate for reelection in 2012, and she has formed a committee under Texas law to raise funds in order to run for Governor of Texas in 2010. Senator Hutchison has publicly discussed the possibility of resigning from her Senatorial seat during the course of the gubernatorial campaign.

Under Texas law, if Senator Hutchison were to resign from the Senate before her term expires, a special election to fill that seat may be scheduled for November 3, 2009, May 8, 2010, or November 2, 2010, depending on the timing of her resignation. However, the Governor of Texas may schedule an “emergency election” on another date to fill the vacancy if the Governor determines that an emergency exists. The Governor has considerable discretion in deciding whether to call an emergency election.

Regularly scheduled primary and general elections for the Senate seat will be held in 2012. In those elections, if no candidate receives a majority in the party primary elections, a runoff will be held. In that case, it is possible that Mayor White could be a candidate in up to five elections for the same U.S. Senate seat between now and November 2012: a special election in 2009 or 2010; a runoff for that election; the 2012 Democratic party primary; a primary runoff for that election; and a general election in November 2012. The White Committee requests guidance concerning how it may raise funds for these potential and future elections.

Analysis

Undesignated contributions

Commission regulations permit the White Committee to use undesignated contributions for a Senate special election that is called after the contribution is made. The Federal Election Campaign Act (the Act) and Commission regulations permit individuals to contribute up to $2,400 “with respect to any election.” Under Commission regulations, “with respect to any election” means: (1) in the case of a contribution designated in writing by the contributor for a particular election, the election so designated; and (2) in the case of a contribution not designated in writing by the contributor, the next election for the federal office after the contribution is made. 11 CFR 110.1(b)(2).

Under the circumstances presented in the advisory opinion, a special election that has been called would be the next federal election after the undesignated contribution is made by the contributor. Therefore, the undesignated contribution may be used for that election, but subject to the reporting requirements described below under “Reporting.”

Contributions designated by the contributor

Contributors may alternatively designate up to $2,400 for a special Senate election if one is held, or for the 2012 primary election if there is no special Senate election. Additionally, contributors may alternatively designate up to $2,400 for either a runoff election following the special Senate election if a runoff is held, or to the 2012 general election if there is no such runoff.

Commission regulations allow designation of contributions by a contributor for “a particular election.” 11 CFR 110.1(b)(2), (3) and (4). The Commission concludes that designations for the special election and for the runoff would qualify as being designated for “a particular election,” because the Governor is required by law to call a special election and the likelihood of the occurrence of a special or election is sufficiently real in this situation. Although the designations present these particular elections in the alternative (i.e. (1) the special election if held before 2012 and, if a special election is not held, the 2012 primary; or (2) the special election runoff if held before 2012 and, if a special election and runoff are not held, the 2012 general election), the specific use of the contribution will be clear to both the White Committee and the contributor.

The White Committee should use an acceptable accounting method to distinguish between the contributions received for each of the two elections, for example, by designating accounts for each election or maintaining separate books and records for each election. 11 CFR 102.9(e)(1).

If Senator Hutchison were to announce her resignation and a special election was called, the designations that the White Committee had received for the special election would be treated as designations for the special election or runoff. At that point, the contributions designated for the special election could no longer be considered to be designated for the 2012 regularly scheduled elections. After the end of any pre-2012 elections (special or runoff) in which Mayor White actually participates as a candidate, the White Committee may use surplus funds for the 2012 primary election. 11 CFR 110.3(c)(4).

Redesignations

With respect to a contribution to the White Committee that exceeds $2,400 and that is made before a special election is called, the Committee may use a form that states that $2,400 would be used for the first election and $2,400 “for any subsequent election.”

If at the time the contribution is made Senator Hutchison has not resigned (and therefore no special or runoff election is called), current contributors must conclude that the “first election” referenced in the form means the 2012 primary and that the second election would mean the 2012 general election. Accordingly, barring any further instruction from a contributor, the first $2,400 contributed would be designated for the 2012 primary election and any remaining amount up to $2,400 would be considered designated for the 2012 general election.

Contributions that are already designated must be redesignated by obtaining a written instruction from the contributor; simply issuing a notice to the contributor informing him or her of the redesignation will not suffice. Therefore, if the White Committee wishes to use contributions that have been designated for the 2012 primary and general elections for a 2009 or 2010 special election or runoff once the special election is called, the White Committee must first obtain written contributor redesignations for the special election or runoff in accordance with Commission regulations. See 11 CFR 110.1(b)(5)(ii)(A)(1) and (2).

Contributions designated for a Special or Runoff Election that does not occur

If the White Committee raises money for a special election and the special election does not occur, Commission regulations require those contributions to be refunded to the contributor within 60 days of the last date that a special election may be scheduled under Texas law, unless the White Committee receives a written redesignation or combined redesignation and reattribution from the contributor. 11 CFR 110.1(b) (3)(i)(C). Likewise, although the Committee may accept contributions designated for the runoff once it is apparent that a special election will occur, it may not use those contributions unless Mayor White participates in the runoff as a candidate. Contributions that are designated for an election that does not occur, or in which a person is not a candidate, must be refunded, redesignated or reattributed accordingly.

Reporting

If a contributor designates a contribution to be made with respect to a particular special or runoff election and a particular 2012 election, the White Committee should indicate on Schedule A either a “Primary” contribution or a “General” contribution for the 2012 elections and include a memo text stating either (1) “Designated for special or emergency election if scheduled before 2012” or (2) “Designated for special or emergency election runoff if scheduled before 2012.” Such reporting reflects the use of the contributions as they are intended by the contributor at the time the contribution is made.

If Senator Hutchison announces her resignation, and Mayor White becomes a candidate in a special election called by the Governor, the White Committee must inform the Commission that the contributions are considered to be designated for the special election or the runoff election. Under the current circumstances, where the White Committee is attempting to deal with uncertainty as to the proper way to designate contributions in an unusual electoral situation, the Commission considers it to be sufficient for the White Committee to file amended reports, simply indicating the proper designations of the contributions. The Commission recommends that to avoid any confusion, the White Committee include a memo text specifically referencing this advisory opinion.

In the case of undesignated contributions, in the event that a special election is called, the White Committee should similarly file amended reports for these contributions.

AO 2009-15: Date issued: July 29, 2009; Length: 9 pages.