AO 2018-07: State officeholder’s independent expenditure-only political committee must use federally permissible funds for certain public communications
An independent expenditure-only committee (commonly referred to as a “Super PAC”) established, maintained, and controlled by a state representative may not use funds raised outside the limits and source prohibitions of federal law to finance public communications that promote, support, attack or oppose clearly identified federal candidates.
Background
Nancy Mace is a State Representative from South Carolina who is running for re-election to her seat. She plans to establish, maintain, and control a Super PAC. The committee will pay for public communications that promote or support clearly identified candidates for federal office. Initially the committee will be funded by transferring the remaining funds from Representative Mace’s campaign committee for the 2014 U. S. Senate race. The committee plans to solicit contributions from individuals in excess of $5,000 and from small businesses (including incorporated entities). The committee will be under Representative Mace’s control and any expenditures that the committee makes will be the result of Representative Mace’s direct decision and action.
Analysis
The Federal Election Campaign Act (the Act) prohibits candidates for state or local office, state or local officeholders, and agents of such individuals from paying for a public communication that promotes, attacks, supports, or opposes a clearly identified candidate for federal office except with funds that are subject to the limitations, prohibitions, and reporting requirements of the Act.
An agent of a state or local candidate or officeholder is “any person who has actual authority, either express or implied” to spend funds for a public communication on behalf of the state or local candidate or officeholder. Under Commission regulations, a “person” includes an individual, political committee, and any other organization, or group of persons. The Commission concludes that, as Representative Mace will exercise exclusive decision-making authority over the committee, including over any public communications made by the committee, the committee will have actual authority to make public communications on behalf of Representative Mace, and thus the committee will be acting as Representative Mace’s agent in making such public communications.
Because the committee will be acting as Representative Mace’s agent in making public communications that promote, attack, support, or oppose a clearly identified candidate for federal office, it must pay for such public communications with funds that are subject to the Act’s source and amount limitations.
Date issued: May 24, 2018; Length: 6 pages
Citations
Regulations
11 CFR 300.2(b)(4)
Definition of “agent”
11 CFR 300.71
Federal funds required for certain public communications