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HOME / RECENT DEVELOPMENTS / OVERVIEW: NONFEDERAL FUNDRAISING BY FEDERAL CANDIDATES/OFFICEHOLDERS

Overview: Nonfederal Fundraising by Federal Candidates

Background

The Federal Election Campaign Act, as amended by the Bipartisan Campaign Reform Act of 2002 (“the Act”), provides that Federal candidates and officeholders may not “solicit, receive, direct, transfer or spend” funds in connection with an election for Federal office or any non-Federal election unless the funds comply with the Act’s amount limitations and source prohibitions.*  See 2 U.S.C. § 441i(e)(1)(A), (B); 11 C.F.R. 300.61, 300.62. Notwithstanding these restrictions, the Act also states that Federal candidates and officeholders are permitted to “attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party.”  See 2U.S.C.§ 441i(e)(3); 11 C.F.R. 300.64. Part of the Commission’s rules implementing this latter provision was challenged in court and ultimately rejected by the United States Court of Appeals for the District of Columbia Circuit in Shays v. Federal Election Commission, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III”).

On April 29, 2010, the Commission adopted new rules that address the Shays III decision and offer comprehensive guidance for Federal candidates’ and officeholders’ participation in all “non-Federal fundraising events” – events at which funds outside the Act’s amount limitations and source prohibitions are solicited – in connection with an election for Federal office or any non-Federal election. Such events include, for example, events for State and local candidates and political party committees, as well as events for entities such as 527 and, in some cases, certain 501(c) organizations.

The new rules supersede those portions of prior advisory opinions that address Federal candidates’ and officeholders’ participation in non-Federal fundraising events that are in connection with an election.

The Rule

Event Participation

Event Publicity

Publicity that does not contain a solicitation:

  • Federal candidates and officeholders may be identified in event publicity that does not contain a solicitation. No additional Federal disclaimer is required for such publicity.

Publicity that contains a solicitation limited to Federally permissible funds:

  • Federal candidates and officeholders may be identified in event publicity that contains a solicitation for funds that comply with the Act’s limits and prohibitions. No additional Federal disclaimer is required for such publicity.

Publicity containing a solicitation for funds outside the Act’s limits and prohibitions:

  • Federal candidates and officeholders may be identified in publicity containing a solicitation for funds outside the Act’s limits and prohibitions in a role or manner not specifically related to fundraising, such as “featured guest,” “honored guest,” “special guest,” “featured speaker,” or “honored speaker,” so long as the publicity includes a proper disclaimer:
    • Written publicity must contain a clear and conspicuous disclaimer that the solicitation is not being made by the Federal candidate or officeholder.
    • Non-written publicity (such as phone calls) that is recorded, follows any form of written script, or is conducted according to a structured or organized program, must include a spoken disclaimer that the solicitation is not being made by the Federal candidate or officeholder.
  • Federal candidates and officeholders may NOT be identified in publicity that contains a solicitation of funds outside the Act’s limitations and prohibitions if the Federal candidate or officeholder is identified in a role or manner specifically related to fundraising, such as “honorary chairperson” or member of a “host committee,” or if the Federal candidate or officeholder extends an invitation to the event or signs the communication.  This prohibition cannot be cured by adding a disclaimer.
  • Federal candidates, officeholders, and their agents may NOT disseminate any publicity or information about a non-Federal fundraising event that contains a solicitation of funds outside the Act’s limitations and prohibitions. By contrast, Federal candidates, officeholders, and their agents may disseminate publicity that contains a solicitation of only Federally permissible funds (or does not contain any solicitation).

Examples

The examples that follow illustrate the requirements associated with the candidate solicitation rules. Depending upon the specifics of each communication, additional (or fewer) disclaimers may be required. For example, under the Internal Revenue Service Code (26 U.S.C. §6113),  certain tax-exempt organizations that are not eligible to receive tax deductible charitable contributions, and whose gross annual receipts normally exceed $100,000, must disclose in an "express statement (in a conspicuous and easily recognizable format)" that contributions to the organization are not deductible for Federal income tax purposes as charitable contributions. For more information, contact the IRS at (800) 829-3676, (202) 622-7352.

For additional information concerning FEC disclaimer requirements, consult our Special Notices on Political Ads and Solicitations brochure or call the Information Division at (800) 424-9530.

invitation to party fundraiser without solicitation

party solicitation by federal candidate

nonfederal solicitation by federal candidate

state candidate solicitation

incorrect solicitation by federal candidate
 

 


FOOTNOTES:

* Funds that are solicited, received, directed, transferred, or spent in connection with an election for Federal office also must comply with the Act’s reporting requirements.