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DOMA Decision May Bring Request for FEC to Reconsider

The Federal Election Commission may be asked to reconsider an advisory opinion it issued in February in light of last week’s Supreme Court’s invalidation of the Defense of Marriage Act.

The commission had issued advisory opinion AO 2013-2 to Dan Winslow, a U.S. Senate primary candidate in Massachusetts, indicating that campaigns may not apply the spouse contribution rule to contributions from same-sex couples married under state law because it would violate DOMA. However, the advisory opinion stated that if DOMA was found to be unconstitutional by the Supreme Court, the FEC would reconsider the ruling, if requested. Asked whether a request would be forthcoming, campaign finance expert Craig Engle, of Arent Fox LLP, who filed the original advisory opinion request, said the “decision is pending.”

Two law firms active in campaign finance law have issued statements regarding the DOMA impact on the Federal Election Campaign Act.

Julius Chen of Covington & Burling LLP wrote a column indicating the “DOMA invalidation will likely impact federal contributions limits.” Since there is no definition of “spouse” in the FEC or FEC regulations, the DOMA definition had prevailed up until now. Without DOMA, state definitions of “spouse” would appear to apply.

Trevor Potter of Caplan & Drysdale commented that “Presumably, the Federal Election Commission will now interpret the word “spouse” to include all legally married couples where it appears in federal campaign finance law.”

7/2 Update: The Washington Post reported that the Democratic Senatorial Campaign Committee filed such an advisory opinion request with the FEC on Monday. 
View AOR 2013-06.

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