AO 2010-27: Transfers between authorized committees

The principal campaign committee for a presidential ticket may transfer general election funds to retire debts from the vice presidential nominee’s presidential primary campaign. 

Background 

Former Senator Joseph Biden was a candidate in 2008 for the Democratic nomination for President. His principal campaign committee, Biden for President (“BFP”), received public financing for his campaign for the presidential nomination. On January 3, 2008, former Senator Biden ended his campaign for the presidential nomination. 

On August 27, 2008, the Democratic Party nominated former Senator Barack Obama for President and former Senator Biden for Vice President for the upcoming general election. In September 2008, the Obama for America (“OFA”) campaign committee amended its Statement of Organization to list the former Senators as the candidates on whose behalf it would operate. OFA did not elect to receive public financing for the 2008 Presidential primary or general elections. 

Following the 2008 presidential election, the Commission conducted a mandatory audit of BFP pursuant to the rules at 26 U.S.C. § 9038(a) and 11 CFR 9038.1. The Commission approved findings requiring BFP to make $133,105 in payments to the U.S. Treasury within 30 days of issuance of the Final Audit Report (“FAR”) and to make a payment to the U.S. Treasury for $85,900 in stale-dated checks, which has not yet occurred. The Commission has not yet issued the Final Audit Report. BFP does not have enough cash on hand to pay its outstanding debts and obligations, including the expected payments to the U.S. Treasury. 

BFP and OFA asked the Commission whether OFA may transfer $138,000 to BFP pursuant to 11 CFR 110.3(c)(4), or in the alternative, may OFA pay BFP’s debts. The requestors also asked whether the Commission would toll the running of BFP’s 30-day deadline to make payments to the U.S. Treasury. 

Analysis 

The Commission concluded that OFA may transfer funds to BFP pursuant to 11 CFR 110.3(c)(4) to cover BFP’s net debts, including its expected payments to the U.S. Treasury. The Commission noted that the Federal Election Campaign Act (“the Act”) does not limit the transfers of funds between principal campaign committees of a candidate seeking nomination or election to more than one federal office so long as: (1) such a transfer is not made when the candidate is actively seeking nomination or election to both such offices; (2) the contribution limits are not exceeded by such a transfer; and (3) the candidate has not elected to receive public financing. 2 U.S.C. §441a(a)(5)(C). Commission regulations provide two sets of rules for transfers between a federal candidate’s authorized federal campaign committees. 

The Commission determined that the rules at 110.3(c)(5) concerning dual-candidacy transfers do not apply since former Senator Biden’s candidacies were not concurrent. He withdrew from the presidential race on January 3, 2008 and his vice presidential candidacy did not begin until August 27, 2008. The Commission noted that former Senator Biden’s principal campaign committee for his 2008 Senate candidacy is not at issue because he does not seek to transfer funds to or from Citizens for Biden. 

The Commission found that the transfer rules at 110.3(c)(4), which permit unlimited transfers between previous and current federal campaign committees or between two previous federal campaign committees, would apply. The Commission noted that both BFP and OFA would fulfill the definition of previous federal campaigns as they were organized to further former Senator Biden’s campaigns for the 2008 presidential nomination and vice presidency, respectively. 11 CFR 110.3(c)(4)(i). 

Since OFA was former Senator Biden’s principal campaign committee for the 2008 Presidential general election, OFA must be able to demonstrate that the transferred funds consist only of general election funds. OFA must also be able to demonstrate that they do not include contributions made in violation of the Act. 11 CFR 110.3(c)(4).

Finally, the Commission noted that the transferred funds do not need to be aggregated with contributions to BFP from the same contributor and would not be aggregated for purposes of the contribution limits at 11 CFR 110.1, 110.2. However, under the rules at 110.3(c)(4) (iii), contributions that make up the transferred funds would still need to be aggregated with contributions from the same contributor for the next election unless the contributions were designated for another election, and the candidate has net debts outstanding for the election so designated. 

Since OFA may transfer funds to BFP, the Commission found the requestors’ question about OFA paying BFP’s debts moot. The Commission also found the question on tolling the 30 day deadline moot as the FAR has not been issued. 

AO 2010-27: Date issued: November 18, 2010; Length: 6 pages.