Interpretative Opinion 2019-01
August 12, 2019
VIA E-MAIL AND FIRST-CLASS MAIL
Jordan M. Grossman
910 M Street, NW
Washington, DC 20001
Re: Loans and contributions to candidates from “immediate family members” under the Fair Elections Act of 2018
Dear Mr. Grossman
This responds to your request for an opinion regarding the following issues:
Whether the aggregate contribution amount of $2,500 for a candidate for the Council that immediate family members may contribute or loan candidates who are seeking certification or participating in the Fair Elections Program represents the total for each family member or the total for all family members who choose to make contributions in excess of the $50.00 Qualified Small Dollar contribution; and
Whether candidates or immediate family members may divide contributions between Qualified small dollar contributions and the Personal funds contributions under the Fair Elections Program.
D.C. Official Code §1-1163.32(f) (a) states in pertinent part that: “Personal funds of the candidate and the candidate’s immediate family in the form of a contribution or loan that does not exceed, in the aggregate:
(A) For a candidate for Mayor, $5,000; or
(B) For a candidate for Attorney General, Chairman of the Council, member of the Council elected at-large or by ward, or member of the State board of Education elected at-large or by ward, $2,500.”
The Fair elections Act, effective March 12, 2018, and made applicable November 7, 2018, established the new Fair Elections Program in the Office of Campaign Finance. The Agency, in its administration of the Program, may be required on a case by case basis to revisit the provisions of the Act to ensure its proper interpretation and application. This was such an instance.
you were previously informed that each immediate family member could contribute or loan personal funds which did not exceed the amount of $2,500, in the aggregate, to a candidate for the Office of Member of the Council, further examination of the Fair Elections act and its legislative history , when viewed as a whole does not support such an interpretation, See the Committee Report of the Committee on the Judiciary and Public Safety on B22-0192, the “fair Elections Amendment act of 2017”, dated December 13, 2017, at pages 14 and 16-17. To conclude otherwise, would be incompatible with the intent of the legislative body to amplify the voice of the small contributor and diversify the candidate pool by providing public financing as an option to those candidates who may not have access to “vast personal wealth”.
Therefore, the aggregate amount that all immediate family members combined may contribute or loan to a candidate for the Council who is seeking certification or participating in the Fair Elections Program is $2,500.
Regarding whether candidates who are seeking certification or participating in the Fair Elections Program and their immediate family members may divide their contributions between the Qualified Small Dollar amount which may not exceed $50 for candidates for the Council (Ward) and any additional amount under the provisions governing “personal funds”, D.C. Official Code §1-1163.32(f)(a) states “Except as provided in subsection (d)(2) of this section, a candidate seeking certification and a participating candidate shall not receive or expend any contribution in the election cycle other than:
Qualified small-dollar contributions;
Contributions from non-District resident individuals that comply with the limitations in D.C. Official Code §1-1163.32(b)(a);
Contributions from Fair Elections Committees that do not exceed$1,500 per Fair Elections Committee per election cycle; provided, that Fair Elections Committees established, financed, maintained, or controlled by substantially the same group of individuals shall be treated as a single Fair Elections Committee and their contributions aggregated;
Base amount payments under D.C. Official Code §1-1163.32(d);
Matching payments under D.C. Official Code §1-1163.32(e); and
Personal funds of the candidate and the candidate’s immediate family in the form of a contribution or loan that does not exceed, in the aggregate… For a candidate for Attorney General, Chairman of the Council, member of the Council elected at-large or by ward, or member of the State board of Education elected at-large or by ward, $2,500”
As indicated above, there are six distinct categories of contributions from which candidates seeking certification or participating in the Fair Elections Program may receive contributions. However, only categories (4) Base amount payments and (5)
Matching payments may be combined with another contribution category in accordance with D.C. Official Code §1-1163.32(d); and D.C. Official Code §1-1163.32(e). Moreover, both categories of contributions include funds provided by the District of Columbia government pursuant to candidates meeting the applicable Qualified small dollar contribution requirements and in the case of eligibility for the total amount of the Base amount payments, candidates in a contested election are also required to achieve ballot access.
Consequently, there is no provision within the Fair Elections Act that permits contributions form an individual contributor to be divided between two contribution categories.
Accordingly, candidates and immediate family members may not divide contributions between Qualified small dollar contributions and the Personal fund contributions.
The foregoing is an Interpretative Opinion of the Director of the Office of Campaign Finance. Pursuant to D.C. Official Code §1-1163.06, you are entitled to request an Advisory Opinion from the Board of Elections on this transaction or activity.
Should you have any additional questions, please contact William O. SanFord, General Counsel, at (202) 671-0550.