FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

 ) 

In the Matter of ) 

 ) MUR 8062 

Andrew Garbarino, et al. ) 

 ) 

STATEMENT OF REASONS OF VICE CHAIRMAN SEAN J. COOKSEY AND 

COMMISSIONERS ALLEN J. DICKERSON AND JAMES E. “TREY” TRAINOR, III

In this matter, we declined to support the Office of the General Counsel’s (“OGC”)

recommendations to find reason to believe that Representative Andrew Garbarino and his federal 

and state campaign committees violated the soft-money restrictions in the Federal Election 

Campaign Act of 1971, as amended (the “Act”), in connection with various fundraising, 

disbursements, and transfers made by Garbarino’s state committee during the 2020 calendar year.

1

We voted against OGC’s recommendations, in part, because of significant and unresolved 

concerns we have regarding the application of the Act’s dual-candidate exception—both to the 

facts of this case and in general. This statement explains those concerns and their impact on our 

vote in this matter. 

I. Overview of the Act’s Dual-Candidate Exception

The Act proscribes federal candidates and officeholders, and any entities that are 

established, financed, maintained, or controlled by them, from soliciting, receiving, or spending

any funds in connection with a federal or non-federal election, unless such funds comply with the 

Act’s contribution limits, source prohibitions, and reporting requirements.

2 However, the Act 

includes an exception to the general prohibition against raising or spending non-federal funds (that 

is, “soft money”) in circumstances where a federal candidate or officeholder “is or was also a 

candidate for State or local office.”3 The dual-candidate exception permits a federal candidate or 

officeholder who is or was a state or local office candidate to solicit, receive, or spend non-federal

funds if the solicitation, receipt, or spending: (1) is “solely in connection with such election for 

1

 Certification (Aug. 8, 2023), MUR 8062 (Andrew Garbarino, et al.). 

2

 52 U.S.C. § 30125(e)(1); 11 C.F.R. §§ 300.61, 300.62. 

3

 52 U.S.C. § 30125(e)(2). 

MUR806200090
2 

State or local office”; (2) “refers only” to him- or herself, to other candidates for the state or local 

office, or both; and (3) is permitted under applicable state law.4

 

The Commission has explained that the purpose of the dual-candidate exception is “to 

provide an equitable basis for a Federal officeholder or candidate to conduct his or her campaign 

for non-Federal office so that he or she is not financially disadvantaged when competing with a 

non-Federal opponent who may raise and spend funds without the same restrictions that section 

[30125(e)] imposes on Federal candidates and officeholders.”5 Despite the laudable intentions

behind the exception, it remains an underdeveloped part of the soft-money regime. This is at least 

partially attributable to the Commission’s regulation implementing the dual-candidate exception, 

which fails to adhere to the plain language of the Act and greatly curtails the exception’s scope. 

Moreover, the relatively small number of advisory opinions and enforcement cases in which the 

Commission has previously considered the dual-candidate exception offer little practical guidance 

on when candidates are eligible for the exception. 

II. The Commission’s Dual-Candidate Regulation Deviates from the Act 

One of the greatest sources of confusion about the dual-candidate exception is the 

incongruity between the regulation and the underlying statute. The Commission’s regulation 

implementing the dual-candidate exception, 11 C.F.R. § 300.63, contains a small but critical 

difference from the wording used in the Act. The regulation states that the Act’s soft-money 

restrictions do not apply to the solicitation, receipt, or spending of non-federal funds by “a Federal 

candidate or individual holding Federal office who is a candidate for State or local office, if the 

solicitation, receipt or spending of funds is permitted under State law; and refers only to that State 

or local candidate, to any other candidate for that same State or local office, or both.”6 But in the 

Act, the dual-candidate exception extends to a federal candidate or officeholder “who is or was

also a candidate for a State or local office . . . .”7 Thus, the omission of “was” in the Commission’s 

regulation improperly limits the dual-candidate exception to concurrent federal and state 

candidacies, in contravention of “the unambiguously expressed intent of Congress” in the Act.

8 If 

the regulation were challenged under the Administrative Procedure Act, a reviewing court would 

likely not give deference to the Commission regulation’slimited construction of the dual-candidate 

exception.9

4

 52 U.S.C. § 30125(e)(2); Advisory Op. 2016-25 (Mike Pence for Indiana) at 2 . 

5

 Advisory Op. 2007-26 (Schock) at 6. 

6

 11 C.F.R. § 300.63 (emphasis added). 

7

 52 U.S.C. § 30125(e)(2) (emphasis added). 

8

 Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842–44 (1984).

9

 While the First General Counsel’s Report did reference the Act’s broader construction of the 

dual-candidate exception, OGC did not consider whether Garbarino’s past status as a candidate for New 

York State Assembly, including most recently in 2018, was relevant to determining the lawfulness of the 

disbursements at issue. See First General Counsel’s Report at 8–9, 10–11 (May 2, 2023), MUR 8062 

(Andrew Garbarino, et al.). 

MUR806200091
3 

This difference in the dual-candidate exception’s scope may have significant legal 

consequences for committees, including the Respondents in this matter. Garbarino was, at a 

minimum, a former state candidate and officeholder, and his state committee used non-federal 

funds for “campaign consultant,” “campaign literature,” “fundraising,” and “print ads.”10 Indeed, 

the First General Counsel’s Report points out that the state committee had previously made

payments to one of the same major vendors for “fundraising” in 2018 and 2019, during and 

immediately after Garbarino’s last reelection campaign for New York State Assembly, “which 

could suggest that the 2020 payments were related to Garbarino’s state office.”11

III. The Commission Has Not Formulated a Workable Standard for Determining Who

is a State or Local Candidate Under the Dual-Candidate Exception 

While the Respondents did not put forth evidence to substantiate that Garbarino was 

running for state or local office at the time of the disbursements at issue, their insistence that 

“nothing [] precluded State Representative Garbarino from getting his name on the ballot to retain 

his state seat” highlights another ambiguity in the dual-candidate exception:

12 Neither the Act nor 

the Commission regulations define when someone is a candidate for state or local office eligible

for the exception. In past enforcement cases, the Commission has largely relied on state-law

definitions of candidacy to determine whether an individual was a candidate for state or local 

office. Yet there are significant differences in how the 50 states, along with numerous local 

jurisdictions, define the term “candidate.”13 A case-by-case approach that hinges on state law 

creates wide variations in the scope and application of the exception, and poses practical 

difficulties as the Commission, lacking expertise in state law, works to fairly and consistently 

evaluate whether a person is seeking a state or local office. 

For example, in MURs 7106 and 7108 (Chappelle-Nadal for Congress, et al.), the 

Commission essentially accepted at face value the respondent’s assertion that she was a stateoffice candidate in Missouri, and thus eligible for the dual-candidate exception, because she had 

amended her state committee’s registration in January 2015 to indicate that she was running for an

unspecified “statewide office” in the 2020 election, which was more than five years away at the 

10 Id. at 17. 

11 Id. at 18; see also Final Results of General Election on Tuesday, November 6, 2018, Suffolk 

County Board of Elections, https://apps2.suffolkcountyny.gov/boe/eleres/18ge/default.htm. 

12 Response at 2 (Nov. 22, 2022), MUR 8062 (Andrew Garbarino, et al.). 

13 E.g., compare Md. Code Ann., Elec. Law § 1-101(l)(1) (defining “candidate” as “an individual 

who files a certificate of candidacy for a public or party office.”), with Wash. Rev. Code § 42.17A.005(8) 

(defining “candidate” as “any individual who seeks nomination for election or election to public office,” 

and providing further that “[a]n individual seeks nomination or election when the individual first: (a) 

Receives contributions or makes expenditures or reserves space or facilities with intent to promote the 

individual's candidacy for office; (b) Announces publicly or files for office; (c) Purchases commercial 

advertising space or broadcast time to promote the individual's candidacy; or (d) Gives consent to another 

person to take on behalf of the individual any of the actions in (a) or (c) of this subsection.”). 

MUR806200092
4 

time.

14 Meanwhile, New York appears to offer at least three distinct routes for candidates to obtain 

ballot access in its state and local elections, including through independent nominating petitions,

party nominating petitions, and party primaries or caucuses.

15 The Respondents in this matter 

argued that Garbarino could still have qualified for the ballot in New York state elections in the 

event that he lost his federal primary in June 2020, and the Commission lacked the requisite

familiarity with New York’s election laws and procedures to verify or refute that assertion.

16

To avoid these kinds of tricky questions of state law, and to better ensure the uniform 

treatment of respondents in similar enforcement matters going forward, the Commission needs to

devise its own objective standard so that it can independently and reliably ascertain when an 

individual is a state or local office candidate for purposes of the dual-candidate exception. 

IV. The Commission Has Not Squarely Defined Permissible “Spending” under the 

Dual-Candidate Exception

 Although the Commission has approved disbursements by federal candidates and 

officeholders for a variety of purposes related to non-federal elections under the dual-candidate 

exception,17 the Commission has sent mixed signals about whether federal officeholders and 

candidates who are also seeking state or local office may contribute to other state or local 

committees using state-committee funds. As we have explained elsewhere, many of the 

Commission’s past advisory opinions involve different questions or facts that do not squarely 

address the issue.18 In at least one advisory opinion, however, the Commission seemed to indicate 

that contributions to state and local candidates and party committees may be permitted under the 

dual-candidate exception. Advisory Opinion 2005-05 (LaHood) addressed how a former state 

14 First General Counsel’s Report at 3–4 (Jan. 31, 2017), MURs 7106 & 7108 (Chappelle-Nadal for 

Congress, et al.). The First General Counsel’s Report also disclaimed, in a footnote, that “To any extent 

that the Complaints are alleging that Chappelle-Nadal acted wrongfully in declaring her intent to run for 

statewide office, without specifying which position she is seeking, that is a matter of Missouri law and 

outside the Commission's jurisdiction.” Id. at 4 n.5. 

15 See Running for Office, New York State Board of Elections, 

https://www.elections.ny.gov/RunningOffice.html. 

16 See First General Counsel’s Report at 19 n.78 (May 2, 2023), MUR 8062 (Andrew Garbarino, et 

al.) (outlining New York’s candidate-nominating procedures). 

17 See, e.g., Advisory Op. 2016-25 (Mike Pence for Indiana) (concluding that federal officeholder 

may use non-federal funds remaining in state campaign account to pay for storage of state campaign’s 

assets, and for legal and accounting expenses necessary to comply with state disclosure requirements and 

to wind down state campaign); Advisory Op. 2007-01 (McCaskill) (concluding that federal candidate may 

solicit non-federal funds to retire debts of prior state campaign); Advisory Op. 2005-12 (Fattah)

(concluding that federal officeholder and his exploratory committee for local office may raise and spend 

non-federal funds in connection with local candidacy). 

18 See Statement of Reasons of Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III, at 

4–5 (Apr. 14, 2022), MUR 7299 (Wexton for Congress, et al.); see also Advisory Op. 2007-26 (Schock)

at 6 (concluding that dual-candidate exception does not permit a federal candidate who was formerly a 

candidate for state office to donate state campaign’s non-federal funds to “successor Republican party 

candidate” for state office). 

MUR806200093
5 

candidate and current federal officeholder could spend excess funds in his state committee’s 

account, specifically asking whether the state committee’s funds could be contributed to other state 

or local candidates and parties or to charitable organizations.19 Although the requestor maintained 

that all his state-committee funds were federally permissible, the Commission noted that, 

notwithstanding this representation, “the Act specifically provides an exception that permits 

Federal candidates or officeholders who are also candidates for a State or local office to solicit, 

receive, and spend funds outside the limitations and prohibitions of the Act if the funds are 

solicited, received and spent solely in connection with their State or local campaigns and refer only 

to themselves, their opponents, or both.”20 This observation suggests that the Commission viewed 

the dual-candidate exception as further grounds for allowing the requestor to make the 

contemplated contributions to state and local candidates and parties. 

On the other hand, MURs 7106 and 7108 (Chappelle-Nadal for Congress, et al.) provided 

some guidance in the other direction, but that matter too is marred by ambiguity because of the 

equivocal candidate-status of the respondent. There, the Commission found reason to believe that 

a federal candidate, who also had filed to run as a candidate for an unspecified statewide office in 

Missouri, along with her state committee, violated 52 U.S.C. § 30125(e)(1)(B) by making over 

$104,006 in disbursements from her state committee’s funds, including $91,300 in direct 

contributions, for the benefit of other state and local candidates and political party organizations.

21

But because the candidate had organized a state committee and filed a statement of organization

to run for an unnamed statewide office in the 2020 election and had not actually declared her 

candidacy for any particular office at the time of the disbursements in question, her status as a 

genuine “dual candidate” is debatable.22

A narrow reading of the dual-candidate exception, in addition to being in serious tension 

with First Amendment principles,

23 fails to take into account that contributing to like-minded 

campaigns and committees at the state and local level advances the very purpose of the dualcandidate exception⸺ to provide “an equitable basis” for federal officeholders and candidates to

run for state or local office without disadvantaging them vis-a-vis their opponents in non-federal 

races.

24 As we have said previously, “an important part of campaigning . . . includes supporting, 

and earning the support of, other state-level committees and candidates by making contributions 

19 See Advisory Op. 2005-05 (LaHood) at 2. 

20 Id. at 2 n.2.

21 See Certification (Mar. 6, 2018), MUR 7106 (Citizens for Maria Chappelle-Nadal, et al.); Factual 

& Legal Analysis at 5 (Apr. 24, 2018), MUR 7106 (Citizens for Maria Chappelle-Nadal, et al.). 

22 Factual & Legal Analysis at 6 (Apr. 24, 2018), MUR 7106 (Citizens for Maria Chappelle-Nadal, 

et al.). 

23 See, e.g., McCutcheon v. FEC, 572 U.S. 185, 203 (2014) (“[T]he First Amendment safeguards an 

individual’s right to participate in the public debate through political expression and political association. 

When an individual contributes money to a candidate, he exercises both of those rights: The contribution 

‘serves as a general expression of support for the candidate and his views’ and ‘serves to affiliate a person 

with a candidate.’”) (citation omitted). 

24 Advisory Op. 2007-26 (Schock) at 6.

MUR806200094
6 

to them.” 25 To deny some candidates equal financial footing in a state election on the basis of 

their status as a federal candidate or officeholder therefore undermines the principal aim of the 

dual-candidate exception. 

* * * 

The dual-candidate exception is a sorely underdeveloped feature of federal campaignfinance law. The Commission has failed to draft an implementing regulation that adheres to the 

Act, and it has compounded that problem by offering at best ambiguous guidance on when and 

under what circumstances the exception applies. This lack of clarity creates significant risk for 

inconsistent and arbitrary enforcement against respondents, like Representative Garbarino, who 

are entitled to due process and fair notice about the limits of permissible conduct prior to civil 

enforcement—not after. For those reasons, we could not support a finding of reason to believe in 

this matter. 

_________________________________ September 13, 2023 

Sean J. Cooksey Date

Vice Chairman

__________________________________ September 13, 2023 

Allen J. Dickerson Date

Commissioner

_________________________________ September 13, 2023 

James E. “Trey” Trainor, III Date

Commissioner

25 Statement of Reasons of Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III, at 4

(Apr. 14, 2022), MUR 7299 (Wexton for Congress, et al.). 

MUR806200095