1

FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of )

) MUR 7299

Wexton for Congress and Joan Kowalski )

in her official capacity as treasurer; )

Wexton for State Senate; Jennifer Wexton )

)

STATEMENT OF REASONS OF COMMISSIONERS 

SEAN J. COOKSEY AND JAMES E. “TREY” TRAINOR, III

This matter asks what constitutes “spending” under the Commission’s dual-candidate 

exception to the soft-money ban. The Complaint centers on Congresswoman Jennifer Wexton’s 

2018 campaign for the U.S. House of Representatives, during which she was also a sitting member 

of the Virginia State Senate running for reelection. It claims that her state campaign committee 

improperly spent non-federal funds in connection with Wexton’s congressional campaign by 

making contributions to other state-level committees in Virginia.

1 For the reasons set out below, 

however, we disagreed with the Complaint’s alleged violation and concluded, with minor 

exceptions, that Wexton’s state-level conduct falls within the dual-candidate exception for 

candidates simultaneously running for federal and state offices. Accordingly, we voted to find no 

reason to believe a violation occurred.2

I. Factual Background

In 2017, Jennifer Wexton was the sitting state senator for Virginia’s 33rd Senate District.3

She was also a declared candidate for reelection to that seat for Virginia’s 2019 election, and 

Wexton for State Senate (the “State Committee”) was her authorized state-level campaign

committee.4 On April 20, 2017, Wexton filed a Statement of Candidacy to simultaneously run in

the 2018 election for the U.S. House of Representatives in Virginia’s 10th Congressional District, 

and she designated Wexton for Congress (the “Federal Committee”) as her authorized federal 

1 Complaint (Dec. 5, 2017), MUR 7299 (Wexton for Congress, et al.).

2 Certification (July 15, 2021), MUR 7299 (Wexton for Congress, et al.).

3 Response at 1 (Jan. 16, 2018), MUR 7299 (Wexton for Congress, et al.).

4 First General Counsel’s Report at 1–2 (Oct. 31, 2018), MUR 7299 (Wexton for Congress, et al.).

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campaign committee.5 She subsequently won the primary and general elections for that 

congressional seat.6

Both before and after Wexton declared her federal candidacy, the State Committee 

continued to operate in furtherance of Wexton’s state-level reelection campaign. From January 1, 

2016, through June 30, 2018, the State Committee received $77,825 in itemized contributions.7

The State Committee also continued to make state-level expenditures and contributions. In the 

period after Wexton became a federal candidate, the State Committee made $58,202 in 

disbursements, including two $1,000 contributions to the Federal Committee and twenty-two

contributions totaling $34,900 to various Virginia state and local candidate and party committees.

8

The Complaint alleges that the State Committee’s $34,900 in contributions to other statelevel committees violated the soft-money prohibitions of the Federal Election Campaign Act of 

1971, as amended (the “Act”).

9 The Respondents counter that the State Committee’s activity is 

subject to the Act’s dual-candidate exception and therefore not a soft-money violation.10

The Office of General Counsel (“OGC”) agreed with the Complaint. OGC recommended 

finding reason to believe that the Respondents violated the Act’s soft-money prohibitions based 

on the State Committee’s contributions.

11 But for the reasons that follow, we concluded that the 

State Committee’s contributions to other state-level committees fell under the dual-candidate 

exception. Consequently, the Commission failed to agree with OGC’s recommendations by the 

required four votes, and subsequently voted to close the file.12

II. Legal Analysis

Under the Act’s soft-money prohibition, federal candidates and officeholders may not 

“solicit, receive, direct, transfer, or spend funds” in connection with any federal or non-federal 

election, unless the funds are subject to federal limitations, prohibitions, and reporting 

requirements.13 The Commission’s regulations correspondingly prohibit “[t]ransfers of funds or 

5

Id.

6 See Virginia 10th Congressional District Election, 2018, BALLOTPEDIA, available at https://ballotpedia.org

/Virginia%27s_10th_Congressional_District_election, 2018.

7 First General Counsel’s Report at 2–3 (Oct. 31, 2018), MUR 7299 (Wexton for Congress, et al.).

8

Id.

9 Complaint (Dec. 5, 2017), MUR 7299 (Wexton for Congress, et al.).

10 Response at 2 (Jan. 16, 2018), MUR 7299 (Wexton for Congress, et al.).

11 First General Counsel’s Report at 8 (Oct. 31, 2018), MUR 7299 (Wexton for Congress, et al.).

12 See Certification (July 15, 2021), MUR 7299 (Wexton for Congress, et al.). All Commissioners agreed that 

there was reason to believe the Respondents violated 11 C.F.R. § 110.3(d) based on the State Committee’s two 

contributions to the Federal Committee totaling $2,000. The Commission could not, however, agree to proceed with 

enforcement on that violation alone. Id.

13 52 U.S.C. § 30125(e)(1); 11 C.F.R. §§ 300.61, 300.62.

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assets from a candidate’s campaign committee or account for a nonfederal election to his or her 

principal campaign committee or other authorized committee for a federal election.”14

At the same time, the Act and Commission regulations also provide an exception to this

prohibition for candidates who are simultaneously running for federal and state offices.15 This socalled dual-candidate exception states:

[The soft-money prohibition] does not apply to the solicitation, receipt, or spending 

of funds by [a federal candidate or officeholder] who is or was also a candidate for 

a State or local office solely in connection with such election for State or local 

office if the solicitation, receipt, or spending of funds is permitted under State law 

and refers only to such State or local candidate, or to any other candidate for the 

State or local office sought by such candidate, or both.16

The dual-candidate exception’s purpose 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 [the Act] imposes on Federal candidates and 

officeholders.”17 In other words, while the soft-money prohibition is intended to prevent a state 

committee from unduly benefiting a federal campaign, the dual-candidate exception’s intent is to 

avoid the opposite problem: unduly burdening a state campaign because of a simultaneous federal 

candidacy or office.

Consider, for example, a congresswoman who declares her candidacy for her state’s office 

of attorney general. Suppose it is a state, like Oregon,18 that imposes no limits on campaign 

contributions to state-level candidate committees and that allows corporate contributions to 

candidates. Under the Act’s soft-money prohibition, the congresswoman would be barred from 

raising state campaign funds outside of federal contributions limits and prohibitions. Her 

opponents, by contrast, would be free to solicit and accept contributions outside of federal amount 

and source limitations. The disadvantage to the congresswoman’s state campaign would be 

enormous. Consequently, the dual-candidate exception seeks to avoid this handicap by exempting 

the state campaigns of federal candidates and officeholders from the soft-money prohibition, so 

long as the state campaign’s fundraising and spending is “solely in connection” with the state

election, consistent with state law, and refers only to the state candidacy.

The Respondents invoke this exception in defense of the State Committee’s contributions 

to other Virginia state committees, and we agree that it applies. First, the contributions were a kind 

of spending covered by the dual-candidate exception. “Spending” is not a defined term under the 

Act or Commission regulations, but the word’s plain meaning and the context of its use throughout 

14 11 C.F.R. § 110.3(d). 

15 52 U.S.C. § 30125(e)(2); 11 C.F.R. § 300.63.

16 52 U.S.C. § 30125(e)(2).

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

18 Or. Rev. Stat. §§ 260.160–260.174.

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the Act make apparent that it encompasses all sorts of campaign committee disbursements.19 Not 

only do expenditures for goods and services by a state committee constitute “spending,” but so do

a state committee’s contributions or donations of campaign funds. 

Second, the available information indicates the contributions were “solely in connection” 

with Wexton’s reelection campaign for the Virginia State Senate.

20 As an incumbent state senator, 

an important part of campaigning for reelection includes supporting, and earning the support of, 

other state-level committees and candidates by making contributions to them. There is no 

allegation or evidence that these contributions were made in furtherance of Wexton’s federal 

candidacy or that her federal campaign directly received anything of value in exchange for the 

contributions from her State Committee.

Finally, the State Committee’s contributions were consistent with the statute and 

regulation’s other requirements. They were permitted under Virginia state law.

21 And because the 

spending was in the form of contributions—as opposed to an expenditure for public 

communications or other advertising—it does not implicate the requirement that it refer only to 

Wexton’s state candidacy.22

Moreover, permitting dual candidates to make state-level contributions through their state 

committees furthers the purpose of the dual-candidate exception: to avoid rendering the candidate 

“financially disadvantaged when competing with a non-Federal opponent.”23 Contributing to other 

committees is a critical component of state retail politics, and it is a common practice by candidates 

to gain access, favor, and support from local and state party organizations. To bar one candidate 

from being able to make such contributions as part of a state campaign, while his or her non-federal 

opponents are free to do so, would place the candidate at a severe electoral disadvantage. Such a 

rule would create a substantial barrier to candidates attempting to run at both the state and federal 

level, and it would impose a particularly heavy burden in jurisdictions like Virginia, where state 

elections do not neatly align with federal election cycles.24 Consequently, we concluded that the 

dual-candidate exception should apply here, and that the State Committee’s contributions to other 

state-level committees did not violate the Act’s soft-money prohibition.

OGC reasoned that the dual-candidate exception should not apply and recommended that 

the Commission pursue enforcement against Wexton. Specifically, relying on several of the 

19 See Statement of Reasons of Vice Chair Dickerson and Commissioners Sean J. Cooksey and James E. “Trey”

Trainor III at 2–4, MUR 7243 (CITGO Petroleum Corp., et al.) (relying on the plain meaning of the Commission’s 

regulatory text).

20 Cf. Advisory Op. 2009-06 (Risch) at 3 (concluding that a federal candidate’s solicitations to retire state-level 

campaign committee debts are “solely in connection” with state candidacy); Advisory Op. 2007-01 (McCaskill) at 4 

(same).

21 See Va. Code §§ 24.2-945–24.2-953.5.

22 Advisory Op. 2016-25 (Mike Pence for Indiana) at 3 (reasoning that spending on legal and accounting 

expenses does not “refer” to any candidate). 

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

24 See Va. Code §§ 24.2-210, 24.2-214–24.2-215 (setting off-year elections for statewide and legislative 

offices); see also, e.g., La. Rev. Stat. § 18:402(A) (establishing off-year elections for governor and other officials).

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Commission’s past advisory opinions, OGC concluded that a state candidate committee’s 

contributions to other state candidates and to political party organizations are not “in connection 

with” the candidate’s own state election.25

But those advisory opinions—in addition to being inappropriately used as the basis for 

enforcement26—do not support that conclusion. In Advisory Opinion 2005-02 (Corzine II), for 

example, the question at issue was whether a dual candidate could engage in fundraising on behalf 

of other state-level candidates and committees—something the Commission concluded was not 

“solely in connection” with then-Senator John Corzine’s own state-level candidacy.27 Similarly, 

in Advisory Opinion 2006-38 (Casey State Committee), Senator Robert Casey asked whether or 

how his former state committee could contribute excess funds. But there, the Commission did not 

analyze how the dual-candidate exception applied because Senator Casey was not a dual 

candidate—he was seeking to spend money raised during his past state campaigns, not one he was 

currently running in.

28

Finally, OGC relies on Advisory Opinion 2007-26 (Schock), where the Commission 

advised that Representative Aaron Schock could not transfer state-committee funds to other statelevel committees under the dual-candidate exception. But Representative Schock was not, in fact, 

running for state-level office at the time he was considering making the contributions, and so he 

was not a true dual candidate entitled to the exception.

29 None of these advisory opinions answers

the specific question in this case, which is whether a current dual candidate may make 

contributions to other state-level committees in furtherance of her state campaign. 

In a statement of reasons, our colleagues rely on MUR 7106 (Citizens for Maria ChappelleNadal) as a precedent for finding reason to believe in this matter.30 First, it is noteworthy that OGC 

did not see fit to rely on that case in its First General Counsel’s Report. But more importantly, the 

factual differences and doubtful reasoning in that matter undermine any precedential value it may 

carry. Much like the requestors in the advisory opinions discussed above, Maria Chappelle-Nadal 

was not actually a dual candidate. While she had a state committee and had indicated plans to run 

for an unnamed statewide office sometime in the future, she had not declared her candidacy for 

25 First General Counsel’s Report at 5 (Oct. 31, 2018), MUR 7299 (Wexton for Congress, et al.).

26 See, e.g., 1996 Presidential Audits, Statement of Reasons of Vice Chairman Darryl R. Wold and 

Commissioners Lee Ann Elliott, David M. Mason, and Karl J. Sandstrom at 3 (“Where the law is of uncertain 

application, advisory opinions cannot be used as a sword of enforcement.”); Statement of Reasons of Chairman 

Matthew S. Petersen and Commissioners Caroline C. Hunter and Donald F. McGahn at 2, n.3 (May 14, 2010), MUR 

5625 (Aristotle International, Inc.) (“Of course, it is well-established that advisory opinions cannot be used as a sword,

but instead merely a shield from burdensome Commission enforcement action.”).

27 Advisory Op. 2005-02 (Corzine II) at 3–4 (answering whether then-Senator Corzine may raise funds “for the 

campaigns of other New Jersey State and local candidates, State PACs, and the non-Federal accounts of State and 

local party committees”). 

28 Advisory Op. 2006-38 (Casey State Committee) at 2–5.

29 Advisory Op. 2007-26 (Schock) at 6 (advising that Rep. Schock may not rely on the dual-candidate exception 

to contribute his state committee funds to another candidate’s campaign for Schock’s former state-level office). 

30 Statement of Reasons of Chair Shana M. Broussard and Commissioner Ellen L. Weintraub at 4 (Sept. 3,

2021), MUR 7299 (Wexton for Congress, et al.).

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any specific office or election at the time of the spending at issue.31 As a result, it was not necessary 

for the Commission to decide—and it did not directly analyze—whether contributions may be

“solely in connection” with a candidate’s ongoing state campaign.

32 Any general statements about 

that issue therefore appear to be dicta. That stands in contrast to this matter, where the Commission 

considered a true dual candidate simultaneously running for two discrete offices at the state and 

federal levels, and whose State Committee spending was more directly in furtherance of her state 

race. 

Consequently, we believe it is better to rely on the Act’s and regulation’s texts, which 

reflect the underlying purpose of the dual-candidate exception. Both support finding no reason to 

believe in this case. What’s more, even if the question were more uncertain, regulatory ambiguity 

around the scope of the dual-candidate exception should be interpreted in favor of candidates’ 

rights to engage in political speech and association.

33 For all the foregoing reasons, we voted 

accordingly, and after the Commission failed to find reason to believe any violation occurred by 

the necessary four votes, we voted to close the file.34

_________________________________ April 14, 2022

Sean J. Cooksey Date

Commissioner

_________________________________ April 14, 2022

James E. “Trey” Trainor, III Date

Commissioner

31 Factual & Legal Analysis at 1–2 (Apr. 24, 2018), MUR 7106 (Citizens for Maria Chappelle-Nadal, et al.). 

32 Id. at 6.

33 See FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 474 (2007) (“Where the First Amendment is implicated,

the tie goes to the speaker.”). 

34 See Certification (July 15, 2021), MUR 7299 (Wexton for Congress, et al.).

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