Can a Virginia state legislator raise funds for a federal candidate during the General Assembly session?

Plain-English summary

In January 2012, Senator Jeffrey McWaters asked the AG whether a Virginia state legislator could raise funds for a federal candidate (someone else's federal campaign) during the General Assembly's regular session. A previous AG opinion had already concluded that a legislator could solicit funds for his own federal campaign during session; this opinion answered the parallel question for other federal candidates and reached the same answer: yes, no Virginia or federal restriction applied.

The Virginia statute at issue, § 24.2-954, prohibits certain session fundraising. The prior opinion read its restrictions as "expressly limited to campaigns for state offices," reasoning that the General Assembly meant to bar session fundraising "by persons running for state office," that is, persons seeking or campaigning "for an office of the Commonwealth or one of its governmental units." A candidate for President, or for any federal office, is not seeking such an office, so the statute does not reach federal-candidate fundraising whether the candidate is the legislator or someone else.

The AG noted that § 24.2-954 had not been amended to include federal candidates or campaigns since the prior opinion, and again concluded the statute did not prohibit fundraising for any federal candidate during session.

The analysis did not end there, because federal law regulates federal campaigns. The Federal Election Campaign Act of 1971 (FECA) provides that "the provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office." Federal Election Commission regulations confirm that "[f]ederal law supersedes State law concerning the . . . [l]imitation on contributions and expenditures regarding Federal candidates and political committees." The AG found no federal restriction that would prevent a member from soliciting or accepting contributions during a regular session.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia's session-fundraising prohibition, § 24.2-954, restricts certain fundraising during a regular session of the General Assembly. The prior AG opinion read it as limited to campaigns for state offices, that is, persons seeking or campaigning "for an office of the Commonwealth or one of its governmental units." Federal candidates do not seek state offices, so they fall outside the statute.

Federal preemption rests on the Federal Election Campaign Act of 1971 (FECA), which Congress enacted to regulate federal elections. FECA preempts "any provision of State law with respect to election to Federal office," and FEC regulations confirm that federal law supersedes state law on the limitation of contributions and expenditures regarding federal candidates and political committees.

Common questions

Q: Can a Virginia state legislator solicit funds for a federal candidate during the General Assembly session?
A: Per this opinion, yes. § 24.2-954's ban reaches state-office campaigns only, and federal law would preempt any broader Virginia restriction.

Q: Does it matter whether the federal candidate is the legislator themselves or someone else?
A: No. The 2010 AG opinion covered the legislator's own federal candidacy; this 2012 opinion covered raising funds for other people's federal campaigns. Both fall outside § 24.2-954.

Q: Could the General Assembly tighten § 24.2-954 to cover federal candidates?
A: The opinion suggests not effectively. FECA preempts state law "with respect to election to Federal office," so federal-election contribution rules are governed by federal, not state, law.

Q: Is the legislator's exposure different for state-office fundraising during session?
A: Yes. The opinion treats § 24.2-954 as reaching campaigns for state offices. Federal candidates are the carve-out; the statute's prohibition is aimed at state-office session fundraising.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/12-001_McWaters.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 25, 2012

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Jeffrey L. McWaters
Member, Senate of Virginia
1207 Laskin Road
Virginia Beach, Virginia 23451

Dear Senator McWaters:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether, during the General Assembly legislative session, a member of the General Assembly may continue to raise funds for a candidate for federal office.

Response

It is my opinion that a member of the General Assembly is not precluded from raising funds for a candidate for federal office while the General Assembly is in session.

Applicable Law and Discussion

As you note, a previous opinion of this Office addressed the question of whether a member of the General Assembly could solicit funds for his own campaign for federal office. You ask whether a member may solicit funds for another candidate for federal office.

The prior opinion concluded that the restrictions imposed by § 24.2-954 of the Code of Virginia are expressly limited to campaigns for state offices. Neither the opinion nor the statute makes reference to nor distinguishes whether the member's solicitation is on behalf of his own campaign or that of another candidate for federal office. Rather, applying the plain language of the statute, this Office concluded "[i]n enacting § 24.2-954[], the intent of the General Assembly was to prohibit fundraising during a regular session of the General Assembly by persons running for state office. The General Assembly did not prohibit all fundraising. Instead, it targeted specific fundraising activities . . . " related to persons seeking or campaigning "for an office of the Commonwealth or one of its governmental units." Clearly, a candidate for President of the United States, or for any federal office, whether a member of the General Assembly or not, is not seeking "an office of the Commonwealth or one of its governmental units." Thus, the logic of the previous opinion applies to the situation you present as well. Given that, since issuance of the prior opinion, § 24.2-954 has not been amended to include candidates or campaigns for federal office, I again conclude that the statute does not prohibit fundraising for any candidate for federal office while the General Assembly is in session.

As the previous opinion also noted, however, the analysis does not end with § 24.2-954 because federal law regulates campaigns for federal office. The Federal Election Campaign Act of 1971 ("FECA") provides that "the provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office." The Federal Election Commission ("FEC") has promulgated regulations that address fundraising, specifically providing that "[f]ederal law supersedes State law concerning the . . . [l]imitation on contributions and expenditures regarding Federal candidates and political committees." I continue to find no restriction under federal law that would prevent a member of the General Assembly from soliciting or accepting contributions during a regular session of the General Assembly.

Conclusion

Accordingly, it is my opinion that a member of the General Assembly is not precluded from raising funds for a candidate for federal office while the General Assembly is in session.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General