AO 2010-01: State party activity on behalf of presumptive nominee

Payments by the Nevada State Democratic Party (the State Party) for campaign materials may be exempt from the definitions of “contribution” and “expenditure” if the materials are distributed by volunteers on behalf of the State Party’s presumptive nominees.

Background

The State Party plans to purchase campaign materials to be used in connection with volunteer activities on behalf of candidates seeking to become the State Party’s nominees in the general election. Specifically, the State Party plans to have volunteers distribute campaign materials on behalf of federal candidates whom the State Party believes will either run unopposed in the Nevada primary election, or whom the State Party believes are “assured of winning the nomination.” The State Party asked whether these proposed disbursements will be exempt from the Federal Election Campaign Act’s (the Act’s) definitions of “contribution” and “expenditure.”

Analysis

Under the Act and Commission regulations, certain disbursements by a state or local committee of a political party are exempt from the definitions of “contribution” and “expenditure” when they are made in connection with volunteer activities. 2 U.S.C. §§ 431(8)(B)(ix) and (9)(B)(viii); 11 CFR 100.87 and 100.147. This “volunteer materials exemption” is limited in several respects. In this instance, the most important limitation is that the materials purchased by the state or local party committee must be used in connection with volunteer activities “on behalf of nominees of such party.” 2 U.S.C. §§ 431(8)(B)(ix) and (9)(B)(viii); 11 CFR 100.87, 100.147.

Although neither the Act nor Commission regulations define the term “nominee,” the Commission has previously determined that the volunteer materials exemption may apply before the nominee is formally selected through the primary process if the party is able to identify its nominee “as both a matter of fact and as a matter of state law.” See Matter Under Review (MUR) 4471.

Under Nevada law, a candidate of a major political party must be nominated in the primary election. In 2010, the Nevada primary will be held on June 8th. However, the the period to file as a candidate in the primary closes on March 12, 2010, in effect closing the ballot and establishing the field of candidates seeking major party nominations. At this point, any candidate of the State Party who is on the state ballot and has no primary opponent will be the State Party’s presumptive nominee. Any candidate who does have an opponent in the primary will not be the State Party’s presumptive nominee.

Therefore, payments made by the State Party Committee, for materials that are used in connection with volunteer activities on behalf of candidates not facing primary challengers, will qualify for the volunteer exemption if those activities take place after March 12. These payments will not count against the State Party’s coordinated party expenditure limit or $5,000 per candidate contribution limit. 2 U.S.C. § 441a(a) and § 441a(d). By contrast, payments made by the State Party, for materials that are used in connection with volunteer activities on behalf of candidates, will not qualify for the volunteer materials exemption if those activities take place before March 12, 2010. Such payments would either count against the State Party’s contribution limit or its coordinated party expenditure limit, if the expenditures are in connection with the general election.

AO 2010-01: Date issued: March 1, 2010; Length: 5 pages