On November 8, 2018, State Representative Nancy Mace filed a complaint for injunctive and declaratory relief in the U.S. District Court for the District of Columbia. The suit challenges a provision of the Federal Election Campaign Act (the Act) that requires state officeholders to use federally-permissible funds to pay for certain public communications.
Under 52 U.S.C. § 30125(f)(1), a state candidate or officeholder (or an agent of that candidate or officeholder) may only spend funds permissible under the Act to pay for public communications that promote or support clearly identified federal candidates.
On April 5, 2018, State Representative Mace submitted an advisory opinion (AO) request to the FEC concerning her proposal to form a Super PAC. Super PACs may finance independent expenditures using unlimited contributions from individuals, corporations, labor organizations and other political committees. The Commission held that the proposed Super PAC would be acting as the state representative’s agent in making the proposed public communications and, therefore, it must pay for such expenditures with funds that are subject to the Act’s source and amount limitations.
Mace’s complaint includes both a facial challenge to section 30125(f)(1) and a constitutional challenge to its application to Super PACs created by state officeholders. Mace also claims that since section 30125(f)(1) is an expenditure limitation, it must be subject to strict scrutiny. She has also asked that a three-judge panel consider her complaint, pursuant to section 403 of the Bipartisan Campaign Reform Act.