While Hamstrung By DOMA, Federal Election Commission Still Opens Door To Joint Political Contributions From Same-Sex Couples

by Perkins Coie

The Federal Election Commission (FEC) this week became the latest government agency to grapple with the impact of the Defense of Marriage Act (DOMA) on the federal rights of legally married same-sex couples.  At issue was whether same-sex spouses, like other married couples, may make joint political contributions.

Federal campaign finance law limits the amount that each person may contribute to various political committees during a period of time.[1]  An FEC regulation expressly provides that each spouse enjoys a separate contribution limit, even if only one of them has income.[2]

DOMA creates uncertainty as to whether same-sex couples may contribute in federal elections on this same basis.  DOMA provides that the word "spouse," when used in a federal law or regulation, "refers only to a person of the opposite sex who is a husband or a wife."[3]  The FEC’s own regulations do not define the term "spouse," and until this week, the FEC had not addressed whether same-sex spouses enjoy separate contribution limits under federal law, as spouses generally do.

Earlier this month, the Dan Winslow for U.S. Senate Committee reported to the FEC that the campaign had received contribution checks from same-sex couples married under Massachusetts law.  In each case, the contribution was drawn from a single bank account and included instructions that the contribution was to be attributed separately and equally between the two spouses.  The Winslow campaign asked the FEC whether it could allow both individuals to contribute from the shared assets or whether it must refund any amount over the limit for a single individual.[4]

In an advisory opinion responding to the Winslow campaign's request, the FEC held that DOMA’s definition of "spouse" limited the agency's interpretation of the rules.[5]  As long as DOMA remains in effect, the FEC reasoned, no federal election rule containing the word "spouse" may apply to same-sex spouses.[6]

However, the FEC opened the door for same-sex couples to give under separate limits from joint accounts, even when only one spouse is the "breadwinner."  Under a different campaign finance rule that avoids using the word "spouse," two people may contribute from a shared account and instruct the campaign to attribute the donation between them.[7]  According to the FEC, "same-sex couples (whether married under state law or not) may as joint account holders make contributions" under this provision and achieve the same result as if the definition of "spouse" in the separate regulation included same-sex spouses.[8]

Going forward, same-sex couples who wish to make political contributions out of shared assets may take advantage of their separate, individual contribution limits simply by giving from a joint account and instructing the campaign to attribute the donation between the two contributors.

The FEC also said it would revisit the question presented by the Winslow campaign if the U.S. Supreme Court holds DOMA unconstitutional in the United States v. Windsor case, which is set for a decision in the coming months.[9]  The Perkins Coie Political Law group will continue to monitor these developments and plans to provide future Client Updates regarding any changes in the law. 

[1] 2 U.S.C. § 441a(a)(1).

[2] 11 C.F.R. § 110.1(i).

[3] 1 U.S.C. § 7.

[4] Fed. Election Comm’n Advisory Op. Request 2013-02 (Apr. 5, 2013).

[5] Fed. Election Comm’n Advisory Op. 2013-02 (Apr. 25, 2013).

[6] Id.

[7] 11 C.F.R. § 110.1(k).

[8] Fed. Election Comm’n Advisory Op. 2013-02, at 2 n.2.

[9] Oral argument on the case was held in March 2013.  Transcript of Oral Argument, United States v. Windsor, ___ S. Ct. ___ (Mar. 27, 2013) (No. 12-307), 2013 WL 1232726.


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