Fundraising by federal candidates and officeholders for other candidates and committees

Federal candidates, officeholders (and agents acting on behalf of either) are prohibited from soliciting, receiving, transferring, disbursing, or otherwise spending funds in connection with any election (including both federal and nonfederal elections) unless those funds are subject to the Federal Election Campaign Act’s (the Act) limitations and prohibitions. As explained in more detail below, certain exceptions exist if the federal candidate or officeholder is also a candidate for state or local office. Federal candidates and officeholders are also permitted to appear or speak at fundraising events where nonfederal funds are raised, subject to certain conditions.

Fundraising for state or local candidates and elections

A federal candidate, officeholder or his or her agents, and any entity directly or indirectly established, financed, maintained or controlled by, or acting on behalf of, one or more federal candidates or officeholders, may raise funds in connection with nonfederal elections (such as soliciting on behalf of candidates who are running for governor or for state legislature), but only in amounts consistent with state law and that do not exceed the Act’s contribution limits or come from prohibited sources. For example, even in a state that permits corporate or labor union contributions, a federal candidate may not solicit funds from corporate or union sources, because those contributions are not permissible under the Act (i.e., “federally permissible”).

For example, if a federal officeholder were to sign a solicitation letter on behalf of a gubernatorial candidate, that solicitation would have to be limited to only federally permissible funds (i.e., no more than $2,700 per individual, per election, and no more than $5,000 per election from multicandidate parties and PACs). Any funds solicited by the federal officeholder should also comply with any state contribution limits.

Nonfederal fundraising events

A federal candidate or officeholder may also attend, speak, or be a featured guest at a nonfederal fundraiser (including events for state/district/local political parties, PACs, or nonfederal candidates). A candidate or officeholder is free to solicit funds at the fundraising event, provided that the solicitation for funds is both within the limitations and prohibitions of the Act and consistent with state law. Such solicitations should be explicitly limited by either of the following ways:

• Displaying at the fundraiser a clear and conspicuous written notice; or
  
• Making a clear and conspicuous oral statement:
  

that any solicitation by the federal candidate at the fundraiser is not for nonfederal funds (or Levin funds, when applicable) and does not seek funds in excess of federally permissible amounts or from corporations, labor organizations, national banks, federal government contractors or foreign nationals.

If the federal candidate or officeholder chooses to make an oral statement, it need only be made once. For example, an acceptable oral statement by the candidate or officeholder who is speaking at a fundraising event for a state candidate would be, “I am asking only for individual contributions of up to $2,700 per election, per individual, and up to $5,000 per election from multicandidate PACs. I am not asking for donations from corporations, labor organizations, national banks, federal contractors, or foreign nationals.”

Publicity for nonfederal fundraising events

Commission regulations address the publicity for nonfederal fundraisers that use a federal candidate or officeholder’s name or likeness including, but not limited to, ads, announcements or pre-event invitation materials, regardless of format or medium of the communication.

If the publicity does not contain a solicitation or solicits only federally permissible funds, then the federal candidate or officeholder (or agent of either) is free to consent to the use of his or her name or likeness in any manner for the nonfederal fundraiser.

Several examples of permissible pre-event publicity are below. 

Example 1:

PERMISSIBLE. This invitation contains no solicitation. In publicity that doesn’t solicit funds, federal candidates/officeholders may be identified in any role or manner (A). Since there is no solicitation here, no additional language is required in the federal disclaimer. This example includes a typical federal disclaimer contained in a box (B).

Example 2:

PERMISSIBLE. This invitation solicits contributions to the FEC Party’s nonfederal account that comply with federal limitations and source prohibitions (B). As a result, the federal candidate/officeholder may be identified in a manner specifically related to fundraising, i.e., “Honorary Chair” (A), and no additional language is required in the disclaimer (C).

However, if the publicity contains a solicitation for funds outside the limitations or prohibitions of the Act, or is soliciting Levin funds, then the federal candidate’s or officeholder’s name or likeness may appear in the publicity, only if:

• The federal candidate or officeholder is identified in a manner not specifically related to fundraising, such as a featured guest, honored guest, special guest, featured speaker or honored speaker; and
• The publicity includes a clear and conspicuous oral or written disclaimer that the solicitation is not being made by the federal candidate or officeholder. Examples of disclaimers are provided at 11 CFR 300.64(c)(3)(iv).

Here are a couple of examples of permissible pre-event publicity.

Example 3

PERMISSIBLE. This invitation solicits contributions to the FEC Party’s nonfederal account that exceed the federal contribution limits (B). While the party itself may make the solicitation, the federal candidate/officeholder cannot. As a result, Representative Doe is identified in a role or manner that is not specifically related to fundraising i.e., “Featured guest” (A). Additionally, to be permissible, the invitation must include a clear and conspicuous statement that the solicitation is being made by the party and not by the federal candidate/officeholder (C).

Example 4:

PERMISSIBLE. This invitation solicits contributions to a nonfederal candidate that are outside federal amount limitations (B). While the nonfederal candidate can make this solicitation, the federal candidate/officeholder cannot. As a result, Representative Doe is identified in a manner not specifically related to fundraising, i.e., “Featured guest” (A). To be permissible, the disclaimer must clearly state that the solicitation is being made by Mary Jones’ gubernatorial campaign and not by Representative Doe (C). Additionally, any disclaimers required by state law must be placed outside of the box that contains the federal disclaimer (D).

A federal candidate or officeholder (or agent of either) may not agree to the use of his or her name or likeness in publicity that contains a solicitation of funds outside the limitations and prohibitions of the Act or of Levin funds if the federal candidate or officeholder:

• Is identified as serving in a manner specifically related to fundraising, such as honorary chairperson or member of a host committee;
  
• Is identified in the publicity as extending the invitation to the event; or
  
• If he or she signs the communication.
  

These restrictions apply even if the publicity contains one of the disclaimers described above. In addition, the federal candidate or officeholder is prohibited from disseminating publicity for nonfederal fundraisers that contains a solicitation of funds outside the limitations or prohibitions of the Act or of Levin funds.

Here is an example of a nonfederal fundraising solicitation that is impermissible, because the candidate is identified in a manner specifically related to fundraising for a solicitation that requests funds that exceed the federal limitations.

Example 5:

IMPERMISSIBLE. This invitation solicits contributions to a nonfederal candidate in excess of the federal contribution limits (B). Although the invitation notes that all solicitations are being made by the gubernatorial campaign and not by the federal candidate/officeholder (C), Representative Doe is identified as serving in a position related to fundraising, i.e., “Host Committee Chair” (A). The impermissible solicitation cannot be cured by including the disclaimer stating the solicitation is not being made by Representative Doe (C) since he is identified in a role specifically related to fundraising. Again, any disclaimers required by state law should be separate from the federal disclaimer (D).

Candidates running for both federal and nonfederal office

Commission regulations provide a limited exception for federal candidates and officeholders who seek state or local office. The restrictions on raising and spending funds outside the Act’s limitations and prohibitions do not apply to any federal candidate or officeholder who is or was also a candidate for state or local office so long as the raising or spending of funds:

• Is solely in connection with his or her state or local campaign;
  
• Refers only to him or her or to other candidates for that same state or local office; and
  
• Is permitted under state law.
  

If the candidate or officeholder is simultaneously running for both federal and state or local offices, then the candidate and his or her agents may only raise and spend funds within the limits, prohibitions and reporting requirements of the Act for the federal election.

In several advisory opinions, the Commission has clarified activities that federal candidates and officeholders may engage in when winding down their previous nonfederal campaign committee. In AO 2007-01 (McCaskill), the Commission permitted a federal officeholder to continue to raise funds not subject to the Act’s limitations and prohibitions, subject to certain conditions including those noted above, for the sole purpose of retiring debt in connection with the federal officeholder’s state campaign committee.

Supporting Super PACs

Political committees that make only independent expenditures (commonly referred to as “Super PACs”) may solicit and accept unlimited contributions from individuals, corporations, labor organizations and other political committees. Super PACs may not accept contributions from foreign nationals, federal contractors, national banks or federally chartered corporations. Such committees must register with the Commission and comply with all applicable disclosure requirements of the Act.

In AO 2011-12 (Majority PAC), the Commission determined that federal candidates and officeholders may raise funds on behalf of Super PACs so long as they only solicit funds subject to the Act’s amount limitations and source prohibitions—i.e., up to $5,000 from individuals per calendar year (and any other source not prohibited by the Act from making a contribution to a political committee). Additionally, federal candidates and officeholders may attend, speak at and be featured guests at fundraisers for Super PACs at which unlimited individual, corporate and labor organization contributions are solicited, so long as they restrict any solicitation they make to funds subject to the limitations, prohibitions and reporting requirements of the Act.

Ballot initiatives

The Commission has permitted candidates to raise federally permissible funds in connection with state ballot initiatives and referenda. However, in certain limited circumstances, federal candidates and officeholders may also raise funds outside of the Act’s limitations and prohibitions in connection with those activities. For example, in AO 2010-07 (Yes on FAIR), the Commission concluded that Members of Congress could solicit funds outside the Act's limits and prohibitions on behalf of a California ballot initiative committee during the time before the initiative qualified for the ballot, and afterward could solicit up to $20,000 from individuals on behalf of the committee. Similarly, in AO 2005-10 (Berman and Doolittle), the Commission concluded that two federal officeholders could solicit funds in connection with several ballot measure committees that would support or oppose various ballot initiatives in an election that was to be held on a date separate from any federal election.

However, in AO 2006-04 (Tancredo for Congress), the Commission concluded that ballot measure committees that were established, financed, maintained, or controlled by a federal candidate or officeholder were subject to the Act’s limitations and prohibitions.

Fundraising for certain 501(c) tax-exempt organizations

A federal candidate, officeholder or his or her agents may make solicitations for certain tax-exempt organizations. The regulations regarding solicitation for tax-exempt organizations differ depending on whether the funds solicited will be used for certain federal election activities and whether the organization’s principal purpose is to conduct federal election activity.

General solicitations

A federal candidate or officeholder (or individual acting on behalf of either) may make a general solicitation on behalf of a 501(c) tax-exempt organization, or an organization that has applied for this tax status, without limits on the source or amount of funds, if:

• The organization does not engage in activities in connection with elections, or
  
•  It is not the principal purpose of the organization to conduct election activities, including certain federal election activity, and
  
• The solicitation is not to obtain funds for activities in connection with an election, including certain federal election activity.
  

Specific solicitations for Federal Election Activity

A federal candidate or officeholder (or individual acting on behalf of either) may also make a specific solicitation explicitly to obtain funds to pay for certain federal election activities conducted by or for a tax-exempt organization whose principal purpose is to undertake such activities. The federal election activities for which such a specific solicitation may be made are limited to:

• Voter registration activity during the period that begins 120 days before the date of a regularly scheduled federal election and ends on the day of that election; and
  
• Voter identification, get-out-the vote or generic campaign activity conducted in connection with an election in which a federal candidate appears on the ballot (regardless of whether a state or local candidate also appears on the ballot).
  

When making specific solicitations for a tax-exempt organization, the candidate may solicit only individuals and may solicit no more than $20,000 per calendar year from each contributor.

Federal law permits solicitations by federal candidates and officeholders only for the specific federal election activities listed above; these individuals must not make any solicitations on behalf of a 501(c) organization, or an organization that has applied for this tax status, for any other types of election activities, such as public communications promoting, supporting, attacking or opposing federal candidates.

Safe harbor

To confirm that a 501(c) organization’s principal purpose is not to conduct election activities, a federal candidate or officeholder or their agent may obtain and rely upon a written certification, signed by an officer or other authorized representative of the organization with knowledge of the organization’s activities. That certification must state that:

• It is not the organization’s principal purpose to engage in election activities, including the types of election activity described above; and
  
• The organization does not intend to pay debts incurred from expenditures or disbursements in connection with an election for federal office (including for federal election activities) in a prior election cycle.
  

If the federal candidate or officeholder (or an agent of either) has actual knowledge that the certification is false, then the certification may not be relied upon.

Citations:

Regulations:

11 CFR 300.61
(Fundraising by federal candidates and officeholders) Federal elections

11 CFR 300.62
(Fundraising by federal candidates and officeholders) Nonfederal elections

11 CFR 300.64
Participation by federal candidates and officeholders at nonfederal fundraising events

11 CFR 300.65
Exceptions for certain tax-exempt organizations

Resources:

• Candidates: Fundraising for other candidates, committees and organizations
  
• Candidates: Supporting tax-exempt organizations
  
• Party committees: Federal candidates' participation in nonfederal fundraising
  
• PACs: Fundraising for Super PACs by federal candidates