The Supreme Court’s decision today invalidating the Defense of Marriage Act will impact campaign finance laws as well, probably nowhere more clearly than in casting doubt on the FEC’s February decision advising a candidate for the special U.S. Senate Primary Election in Massachusetts that he could not treat contributions from a same-sex couple married under state law as coming from a “spouse” under the FEC’s regulations. The regulation at issue, 11 C.F.R. § 110.1(i) provides that “[t]he limitations on contributions of this section shall apply separately to contributions made by each spouse even if only one spouse has income.” The FEC concluded that as long as DOMA’s definition of “spouse” remains in effect, § 110.1(i) could not be applied to contributions by same-sex couples married under state law.
Now that DOMA has been relegated to the dustbin because it “singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty,” what should we make of § 110.1(i)? The language of the Advisory Opinion gives several clues.
First, the Advisory Opinion notes that “spouse” is not defined in the Federal Election Campaign Act or the Commission’s regulations, but it was defined in DOMA to refer “only to a person of the opposite sex who is a husband or a wife.” This definition therefore controlled.
Second, the Advisory Opinion strongly suggested that, absent DOMA, state law definitions of “spouse” would control. It agreed with the requestor that “the Commission has previously relied on state law to supply the meaning of terms not explicitly defined in FECA or Commission regulations.” And in a concurring opinion, Chair Ellen Weintraub made clear that she could “think of no practical reason not to give these [same-sex marriage] families the benefit of section 110.1(i) on the same terms as we apply the regulation to contributions by individuals married to someone of a different sex.”
Third, the Advisory Opinion expressly noted that “[i]f DOMA is held to be unconstitutional by the Supreme Court . . . the Commission will, upon request, revisit this issue.” While every advisory opinion cautions that the advice is specific to the requestor’s circumstances, this statement foreshadowed how ephemeral the Commission’s conclusion would be.
More broadly, today’s ruling in Windsor may affect more than just § 110.1(i). As detailed in an amicus brief filed by former FEC officials, DOMA had the potential to affect a number of provisions of FECA, including a candidate’s use of “personal funds” when they include assets jointly held by a “spouse,” and the scope of the restricted class for corporation or union communications. These are simply some of the federal campaign finance law issues that are affected by the invalidation of DOMA.