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Interpretative Opinion 00-07: Recordkeeping Requirements

October 25, 2000

The Honorable Jim Graham
Council Member, Ward One
Council of the District of Columbia
One Judiciary Square, Suite 718
441 4th Street, NW
Washington, DC 20009

Dear Council Member Graham:

This responds to your request by letter dated October 6, 2000, for an interpretative opinion concerning the reporting requirements of a disbanded exploratory committee where the subject of that committee declares candidacy but forms a new committee for the campaign. You query whether the disbanded exploratory committee, under these circumstances, would be required to disclose the names of donors and the amounts of donations, as well as refund amounts in excess of the limits on campaign contributions.

In general, “exploratory, draft, or testing the waters committees” (exploratory committees), formed solely for the purpose of determining the feasibility of an individual’s candidacy for public office, are not required to register with the Office of Campaign Finance, and file financial reports. See 3 DCMR, Sections 3000.9(b) and 3001.3 (June 1998).

The District of Columbia Campaign Finance Reform and Conflict of Interest Act (the Campaign Finance Act), 88 Stat. 447, Pub. L. 93-376 (August 14, 1974), as codified in DC Code, Sections 1-1401 et seq. (1999 Repl. Vol.), regulates the registration and filing of reports of receipts and expenditures by political committees organized for the purpose of promoting the nomination or election of an individual to office. See DC Code, Sections 1-1401(5), 1-1414(a), and 1-1416(a). Reports of Receipts and Expenditures must disclose, amongst other things, individual contributions made to or for such committee or candidate during the respective reporting period.

DC Code Section 1-1401(6)(B)(vi) excludes from the term “contribution”: “Services of an informational or polling nature, and related thereto designed to seek the opinion(s) of voters concerning the possible candidacy of qualified electors…. becoming a candidate as provided in this chapter”.  Consistent therewith, an exploratory committee is not required to register and report its receipts with this Office, as long as its purpose remains to determine political support for a potential candidacy through activities geared towards eliciting such views. See 3 DCMR Section 3001.3.

In the event the subject of the exploratory committee becomes a candidate who designates the exploratory committee as the principal campaign committee, all funds previously raised and expended become contributions and expenditures which must be reported under the Campaign Finance Act.

At the declaration of candidacy, the Campaign Finance Act implicitly prohibits the further use of any exploratory committee to amass campaign funds to support the candidacy, unless the committee registers as a political committee, and reports the funds as contributions, subject to the limitations prescribed by DC Code Section 1-1441.1.  Further, the expenditure of funds to support the candidacy would again suggest the activities of a political committee, subject to the requirements of the Campaign Finance Act.

Therefore, it is the opinion of this Office that a disbanded exploratory committee would not be required to comply with the disclosure requirements of the Campaign Finance Act unless it is designated as the principal campaign committee of the individual whose potential candidacy it explored, or is otherwise engaged in activities designed to advocate the election of the individual who has now decided to become a candidate for office.