AO 2015-16: Unsuccessful primary campaign may not spend general election contributions

A federal candidate who lost his primary election may not spend contributions designated for the general election, because he did not participate in that election.

The Commission was unable to reach an agreement by the required four affirmative votes on whether the campaign may donate to charity general election contributions it was unable to refund.

Background

Niger Innis’s principal campaign committee (the Committee) is winding down following the congressional candidate’s primary election loss on June 10, 2014.

The Committee states that it issued full refunds to all general election contributors in a timely manner. Some of those contributors, reportedly, did not cash their refund checks, despite repeated efforts by Mr. Innis and Committee staff.

These general election contributions -- totaling $8,000 from four individuals -- have caused the Committee to incur certain “unique” transaction-specific fees and legal, accounting, and compliance costs. Because these costs are “a product of the general election contributions themselves,” the Committee asked if it could use a portion of the remaining general election contributions to pay for these costs, under the Federal Election Campaign Act (the Act) and Commission regulations.

The Committee also asked if it is prohibited from donating to charity the general election contributions it was unable to refund.

Analysis

The Act’s federal candidate contribution limitations apply separately with respect to each election. 52 U.S.C. §30116(a)(1)(i); 11 CFR 110.1(b)(2). Commission regulations provide that a candidate or authorized committee may, prior to a primary election, accept contributions designated by the contributor for use in connection with the general election. 11 CFR 102.9(e), 110.1(b)(2), 110.2(b)(2). However, if the candidate does not participate in the general, contributions made for that election must be refunded to the contributors, redesignated or reattributed. 11 CFR 102.9(e)(3); see also 11 CFR 110.1(b)(3)(i).

This refund obligation applies to all general election contributions, including those the campaign had already spent on general election expenses prior to losing the primary. It also precludes the campaign from spending additional general election funds, as proposed in the request.

The Commission was unable to agree to an opinion by the required four affirmative votes as to whether the campaign may donate uncashed refunds of general election contributions to a charity, rather than disgorging those funds to the U.S. Treasury.

Date issued: 02/25/2016; 5 pages

Resources:

• Advisory opinion 2015-16 [PDF]