AO 2013-02 – DOMA limits application of spouse contribution rules

The Defense of Marriage Act (DOMA) prohibits a candidate’s principal campaign committee from applying the spousal contribution rule to contributions it accepts from same-sex couples married under state law. However, the Commission said it would revisit this issue if the Supreme Court finds DOMA to be unconstitutional.  

Background

Dan Winslow, a Senate candidate for the Massachusetts special primary on April 30, asked the Commission whether his campaign may apply the spouse contribution rule in 11 CFR 110.1(i) to contributions his campaign receives from same-sex couples married under state law.

Specifically, the campaign wanted to know if it could attribute a contribution as being from each member of the couple even though the money originated from the income of just one of them.

Analysis

The Commission determined that campaigns may not apply the spouse contribution rule to contributions from same-sex couples married under state law because it would violate DOMA.

The Federal Election Campaign Act of 1971, as amended (“FECA”), provides that “[n]o person shall make a contribution in the name of another person or knowingly permit his name to be used to affect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person.” 2 U.S.C. § 441f; see also 11 CFR 110.4(b).

An exception to this law states that “limitations on contributions ... shall apply separately to contributions made by each spouse even if only one spouse has income.” 11 CFR 110.1(i). Thus, a spouse with no separate income may make a contribution in his or her own name through the checking account of the other spouse. AO 1980-11 (Rufus C. Phillips III).

The term “spouse” is not defined in FECA or the Commission’s regulations. DOMA, however, provides that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various ... agencies of the United States, ... the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. §7. That definition requires the Commission to conclude that the Committee may not apply the spouse contribution rule to contributions from spouses who are not “of the opposite sex.”

The Commission noted that several courts have found DOMA to be unconstitutional, but the legal effect of those decisions has been stayed pending the Supreme Court’s consideration DOMA in United States v. Windsor, No. 12-307 (S. Ct.) (argued Mar. 27, 2013). If DOMA is held to be unconstitutional by the Supreme Court – or is otherwise modified or repealed – the Commission will, upon request, revisit this issue.

Date issued: April 25, 2013; Length: 4 pages

Resources:

• Advisory Opinion 2013-02 [PDF; 4 pages]
• Commission discussion of AO 2013-02
• Concurring opinion (Weintraub) [PDF; 2 pages]