Can a Virginia legislator raise money for Super PACs and federal party accounts during the General Assembly session?

Plain-English summary

In July 2013, Delegate Scott Surovell asked the AG for a comprehensive read on what kinds of campaign fundraising a Virginia legislator could do during the General Assembly's regular session. The session-fundraising ban in § 24.2-954 is one of the strictest in the country, but its reach matters: legislators have to know whether they can raise money for out-of-state candidates, federal PACs, party committees, and "Super PACs" (the colloquial name for independent-expenditure-only committees, or IEOCs).

The AG ran through four buckets and answered yes on all of them, with caveats:

1. Out-of-state candidates. Same logic as the 2012 opinion on federal candidates: § 24.2-954's prohibition reaches only campaigns for state offices in Virginia. § 24.2-101 defines "candidate" by reference to seeking "an office of the Commonwealth or one of its governmental units," which does not include candidates in other states. So fundraising for candidates running for office in Maryland, Texas, or any other state was permissible.

2. Federal political action committees. § 24.2-945.1(A) expressly excludes "federal political action committee" from the definition of "political committee" that triggers § 24.2-954. So § 24.2-954's prohibition on soliciting for political committees did not apply to federal PACs.

3. Federal accounts of political party committees. The analysis here was more involved. State and local political parties often maintain separate federal and non-federal accounts because they are subject to both state and federal campaign finance laws. Federal accounts hold contributions that comply with FECA limits and restrictions and are used for federal election activity. The AG concluded that federal preemption under FECA, supported by a persuasive Eleventh Circuit precedent and an FEC advisory opinion involving a similar Georgia statute, removed federal-fund solicitations from § 24.2-954's reach. So solicitations for the federal account of a state, congressional district, or county/city political party committee were permitted, provided the contributions were federal-compliant and went into the federal account.

A caveat: a legislator who solicited a contribution that exceeded FECA limits, came from a source prohibited by FECA, or ended up deposited into a non-federal account, would violate § 24.2-954.

4. Super PACs (independent expenditure only committees). The opinion explained that "Super PACs" were not created by federal or Virginia statute, and that the FEC does not call them that; the agency recognizes and regulates them as "independent expenditure only committees" (IEOCs). An IEOC can take unlimited contributions but makes only independent expenditures (no contributions to candidates, no coordination). The AG concluded that whether § 24.2-954 reached a particular Super PAC turned on whether it fit § 24.2-945.1(A)'s definition of "federal political action committee" ("any political action committee registered with the Federal Election Commission that makes contributions to candidates or political committees registered in Virginia"). Super PACs also cannot qualify as "out-of-state political committees" because that exclusion requires the committee not to have express advocacy as its primary purpose, and IEOCs by definition make expenditures that expressly advocate. So the case-by-case analysis turns on whether a particular Super PAC has made contributions to Virginia-registered candidates or committees.

The opinion warned that the dual state-federal regulatory structure was complex, and that legislators should adopt procedural safeguards to ensure they did not inadvertently slip into prohibited territory.

Currency note

This opinion was issued in 2013. 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

The session-fundraising ban in § 24.2-954 is one piece of Virginia's larger Campaign Finance Act of 2006. It prohibits General Assembly members and statewide officials, and their campaign committees, from soliciting or accepting contributions for state-office campaign committees or political committees from the first day of a regular session through adjournment sine die. § 24.2-954(B) symmetrically bars persons and political committees from making or promising contributions during the same window.

§ 24.2-945.1(A) defines critical terms. "Political committee" excludes "federal political action committee" and "out-of-state political committee," among others. "Federal political action committee" means "any political action committee registered with the Federal Election Commission that makes contributions to candidates or political committees registered in Virginia." "Out-of-state political committee" must not have express advocacy as its primary purpose.

The Federal Election Campaign Act of 1971 (FECA) and FEC regulations govern federal election fundraising. The opinion notes that FECA includes a clear statement that its provisions supersede and preempt state law with respect to election to federal office, and that FEC regulations specifically provide that federal law supersedes state law on contribution and expenditure limits for federal candidates and committees. The AG relied on a persuasive Eleventh Circuit precedent and an FEC advisory opinion addressing a similar Georgia statute to conclude that state session-fundraising statutes are preempted as applied to federal candidates.

FEC regulations require state, district, and local political party committees to maintain separate federal and non-federal accounts when they engage in federal election activity. Federal funds (those complying with FECA) go in federal accounts; non-federal funds (those allowed under state law but not federal law) go in non-federal accounts. Mixing the two is prohibited.

A "Super PAC," in the opinion's account, is the colloquial name for what the FEC recognizes and regulates as an "independent expenditure only committee." Such a committee can solicit and accept unlimited contributions from individuals, political committees, corporations, and labor organizations, but may make only independent expenditures.

Common questions

Q: Can a Virginia state legislator raise money for a Super PAC during the General Assembly session?
A: It depends on whether the particular Super PAC fits § 24.2-945.1(A)'s definition of "federal political action committee," which requires the PAC to make contributions to Virginia-registered candidates or political committees. If it does, then yes. If it does not (and most pure Super PACs do not), the analysis is more complex and the AG did not endorse a clean yes.

Q: Can a Virginia state legislator raise money for a federal political party committee during session?
A: Yes, for the federal account, per this opinion. Federal preemption under FECA removes the federal side from § 24.2-954's reach. But the contributions must be federal-compliant (within FECA limits, from FECA-permitted sources) and must go into the federal account.

Q: What about candidates running for governor of another state?
A: Yes. Other-state candidates are not seeking "an office of the Commonwealth," so § 24.2-954 does not apply. The same logic that exempts federal candidates exempts out-of-state state-office candidates.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-014_Surovell.pdf

Original opinion text

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

July 12, 2013

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 Scott A. Surovell
Member, House of Delegates
Post Office Box 289
Mount Vernon, Virginia 22121

Dear Delegate Surovell:

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

Issues Presented

You inquire whether a member of the Virginia General Assembly may solicit or accept contributions during a regular session of the General Assembly on behalf of any of the following: (1) statewide or legislative candidates for public office in states other than Virginia; (2) federal political action committees; (3) federal accounts maintained by state or local political party committees; and/or (4) what you refer to as "the new 'Super-PAC's'" or "independent expenditure organizations" that are tax exempt pursuant to Section 527 of the Internal Revenue Code ("IRC").

Response

It is my opinion that a member of the General Assembly is not precluded from soliciting or accepting contributions during a regular session of the General Assembly on behalf of the following: (1) candidates for public office in states other than Virginia; (2) federal political action committees; (3) federal accounts maintained by state, congressional district, or county or city political party committees pursuant to federal campaign finance laws; and (4) independent expenditure only committees (commonly referred to as "Super PACs") if they are considered "federal political action committees" under § 24.2-945.1(A).

Applicable Law and Discussion

Section 24.2-954 is the provision of the Code of Virginia that governs the fundraising activities of members of the General Assembly while the legislature is in session. It provides:

A. No member of the General Assembly or statewide official and no campaign committee of a member of the General Assembly or statewide official shall solicit or accept a contribution for the campaign committee of any member of the General Assembly or statewide official, or for any political committee, from any person or political committee on and after the first day of a regular session of the General Assembly through adjournment sine die of that session.

B. No person or political committee shall make or promise to make a contribution to a member of the General Assembly or statewide official or his campaign committee on and after the first day of a regular session of the General Assembly through adjournment sine die of that session.

As you note, a previous opinion of this Office, in addressing whether a member of the General Assembly may raise funds during the legislative session for a candidate for federal office, concluded that the restrictions imposed by § 24.2-954 are limited to campaigns for state office. Rules of statutory construction require that § 24.2-954 be read together with the Campaign Finance Act of 2006 ("2006 Act") and other related sections in Title 24.2, rather than in isolation. Section 24.2-945.1(A) of the 2006 Act defines a "campaign committee" as "the committee designated by a candidate to receive all contributions and make all expenditures for him or on his behalf in connection with his nomination or election." Section 24.2-101 defines a "candidate" as "a person who seeks or campaigns for an office of the Commonwealth or one of its governmental units . . . ." Applying the plain language of the statute, the opinion reasoned that because a candidate seeking 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" a member of the General Assembly is not precluded from raising funds for such a candidate while the General Assembly is in session. Similarly, statewide or legislative candidates for public office in states other than Virginia are not seeking "an office of the Commonwealth or one of its governmental units." Therefore, the prohibitions of § 24.2-954 do not apply to fundraising activities for a candidate seeking a statewide or legislative office in a state other than Virginia.

Section 24.2-954 forbids, under certain circumstances, the solicitation and acceptance of contributions for or from political committees. In defining "political committee," the General Assembly expressly has provided that the term "shall not include: (i) a federal political action committee or out-of-state political committee . . . ." Consequently, the prohibition on a member of the General Assembly soliciting or accepting contributions for political committees during a regular session does not apply to federal political action committees.

Political party committees often are active participants in both state and federal elections and, consequently, are subject to both state and federal campaign finance laws. Under federal law, a state, district or local political party committee must register with, and send periodic campaign finance disclosure reports to, the Federal Election Commission ("FEC") when it receives or spends funds in connection with a federal election in excess of a specific threshold.

As I have noted previously, it is my opinion that the preemption doctrine, grounded in the Supremacy Clause of the Constitution of the United States, operates to preempt § 24.2-954 to the extent that this state law strays into the field of regulation of federal elections occupied by federal campaign finance laws. The Federal Election Campaign Act of 1971 ("FECA") includes a clear statement that its provisions supersede and preempt any provision of state law with respect to election to federal office. FEC regulations specifically provide that "[f]ederal law supersedes State law concerning the . . . [l]imitation on contributions and expenditures regarding Federal candidates and political committees." While no court to date has ruled on whether § 24.2-954 has been preempted by FECA in the context of campaign finance limitations for federal candidates and federal political committees, a persuasive precedent from the Eleventh Circuit and an FEC advisory opinion regarding a similar statute in Georgia leave little doubt that it has been.

FEC regulations require each state, district, and local party committee receiving or expending funds for federal election activity to establish one or more separate non-federal accounts and federal accounts. Funds deposited into a non-federal account are governed by state law. Funds deposited into a federal account are governed by federal law, because only contributions that comply with the federal contribution limits, prohibitions and reporting requirements of FECA ("federal funds") may be deposited into a federal account, regardless of whether the funds are for use in connection with federal or non-federal elections.

Federal preemption removes from the reach of § 24.2-954 the solicitation or acceptance of contributions of federal funds to be deposited into the federal account of a state, district, or county or city political party committee. Thus, a member of the General Assembly is not precluded during a regular session from soliciting or accepting federal funds for a political party committee so long as those funds are deposited into the federal account of that committee. A note of caution is warranted, however, in light of the dual nature of campaign finance regulation of state and local political party committees. A state officeholder subject to the restrictions of § 24.2-954 would be in violation of that section if a contribution the officeholder solicited or accepted for a political party committee during a regular session exceeds the limits of the FECA, or comes from a source prohibited by the FECA, or is deposited into a non-federal account of the political party committee.

Whether or not the restrictions found in § 24.2-954 apply to fundraising activities for "Super PACs" requires more discussion. "Super PACs" were not created or authorized by federal or Virginia statutes, nor are they called Super PACs by the FEC. The term "Super PAC" is a common expression for what the FEC recognizes and regulates as "independent expenditure only committees" ("IEOC").

IEOCs can make only independent expenditures. An independent expenditure is an expenditure that expressly advocates the election or defeat of a clearly identified candidate and is not made in coordination with the candidate, the candidate's authorized political committee or its agents, or a political committee or its agents. The FEC has ruled that an IEOC could solicit and accept unlimited contributions from individuals, political committees, corporations, and labor organizations to fund its independent expenditures.

Although § 24.2-954 prohibits a member of the General Assembly from soliciting on behalf of a "political committee" associated with a Virginia campaign during the legislative session, § 24.2-945.1(A) specifically excludes "federal political action committee" and "out-of-state political committee" from the definition of "political committee." An "out-of-state political committee," however, must not "have as its primary purpose expressly advocating the election or defeat of a clearly identified candidate." Because IEOCs make expenditures that expressly advocate the election or defeat of a clearly identified candidate, they likely cannot qualify as "out-of-state political committees." "Federal political action committee means any political action committee registered with the Federal Election Commission that makes contributions to candidates or political committees registered in Virginia." Whether or not a Super PAC qualifies as a "federal political action committee" under § 24.2-945.1(A) can only be determined on a case-by-case basis. If it does qualify, then the restrictions contained in § 24.2-954 would not apply to solicitations made on its behalf.

Conclusion

Accordingly, it is my opinion that a member of the General Assembly is not precluded from soliciting or accepting contributions during a regular session of the General Assembly on behalf of the following: (1) candidates for public office in states other than Virginia; (2) federal political action committees; (3) federal accounts maintained by state, congressional district, or county or city political party committees pursuant to federal campaign finance laws; and (4) independent expenditure only committees (commonly referred to as "Super PACs") if they are considered "federal political action committees" under § 24.2-945.1(A).

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General