I. Factual Background

Cantor for Congress ("the Committee"), the primary campaign committee for former 

House Majority Leader Eric Cantor, raised nearly $2 million in contributions designated for the 

2014 General Election. 1 Prior to the 2014 primary election, Cantor for Congress spent almost 

$230,000 on disbursements for "indisputably general election expenses,"2 as it was legally 

permitted to do.3 On June 10, 2014, Representative Cantor unexpectedly lost his primary 

election. Following that defeat, his committee redesignated, reattributed, or refunded all but 

roughly $230,000 in contributions received for the general election - i.e., the money already 

spent prior to the primary. 4 The Commission's Reports Analysis Division ("RAD") advised the 

Committee that this was not enough - that the Committee needed to redesignate, reattribute, or 

refund all of the contributions received for the general election. 5

FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463 

STATEMENT OF COMMISSIONER LEE E. GOODMAN ON 

LRA 980 REQUEST FOR CONSIDERATION OF A LEGAL QUESTION 

SUBMITTED BY CANTOR FOR CONGRESS 

In this matter, a campaign committee exercised its legal right to raise and spend general 

election contributions on general election expenses incurred prior to the date of the primary 

election. The campaign lost the primary election. Having spent a small percentage of its general 

election funds, the committee was unable to refund 100 percent of its general election funds to its 

general election contributors. Therefore, the committee asked the Commission to determine 

whether a campaign committee that spends general election funds on general election expenses 

as permitted by law nevertheless breaks the law as a result of its inability to refund 100 percent 

of general election contributions after losing a primary. Because I do not believe the law should 

place a campaign committee in an impossible catch-22, I voted to read two regulations in pari 

materia to provide for refunds of general election funds on hand less general election funds spent 

on general election expenses. 

LRA 980 (Cantor for Congress), Request for Consideration of a Legal Question by the Commission at 2 

(Dec. 23, 2014). 

2 Id. at 2-3. 

See 11 C.F.R. § 102.9(e)(2); Advisory Opinion 1986-17 (Green). 

4 LRA 980 (Cantor for Congress), Request for Consideration of a Legal Question by the Commission at 2-3 

(Dec. 23, 2014). 

LRA 980 (Cantor for Congress), Request for Consideration ofa Legal Question by the Commission at 3-4 

(Dec. 23, 2014) (describing a series of communications between RAD and the Committee). 
LRA 980 (Cantor for Congress) 

Using a procedure first adopted 2011 and updated in 2013 providing an avenue for 

Committees to request Commission input on important legal questions when corrective action is 

requested by RAD, the Committee brought this matter to the attention of the Commission.6 In 

response to this request, the Commission determined (by a vote of five to one) that the 

Committee was required to refund all general election contributions it accepted before the 

primary election, including general election contributions it expended on advance expenditures 

relating to the anticipated general election.7 I disagree with this outcome and the Commission's 

logic in reaching it, and write separately to note how this result places committees in an 

impossible catch-22. 

II. Legal Background

Under the Federal Election Campaign Act of 1971, as amended ("the Act"), the term 

"contribution" means "any gift, subscription, loan, advance, or deposit of money or anything of 

value made by any person for the purpose of influencing any election for Federal office."8 No 

person may make contributions to a candidate or his/her authorized committee that in aggregate 

exceed certain limits.9 A "candidate" is any "individual who seeks nomination for election ... to 

federal office" and makes or receives contributions or expenditures of $5,000 or more.10 The 

term "election" means "a general, special, primary, or runoff election." 11 For the purposes of the 

Act's contribution limits, a primary election and a general election are considered separate 

"elections," each with a separate limit.12

Commission regulations recognize that candidates may receive contributions designated 

for a general election prior to the date of the primary election, provided that they "use an 

acceptable accounting method to distinguish between contributions received for the primary 

6 Id.; see generally Policy Statement Regarding a Program for Requesting Consideration of Legal Questions 

by the Commission, 78 Fed. Reg. 63203 (Oct. 23, 2013) superseding Policy Statement Regarding a Program for 

Requesting Consideration of Legal Questions by the Commission, 76 Fed. Reg. 45798 (Aug. 1, 2011). 

7 See LRA 980 (Cantor for Congress), Certification (March 17, 2015); see also LRA 980 (Cantor for 

Congress), Memorandum Regarding Request for Consideration ofa Legal Question Submitted by Cantor for 

Congress (Jan. 27, 2015) (recommending that the Commission require a refund of 100 percent of general election 

funds). 

52 U.S.C. § 30101(8)(A)(i) (formerly 2 U.S.C. § 431(8)(A)(i)); see also 11 C.F.R § 100.52. 

9 52 U.S.C. § 30116(a)(l)(A) (formerly 2 U.S.C. § 44l a(a)(l)(A)); see also 11 C.F.R. § 110.l (b)(l). 

Further, under Commission regulations committee treasurers are responsible for examining all contributions for 

evidence of illegality and to ascertain whether, when aggregated with other contributions from the same contributor, 

they exceed the contribution limits. 11 C.F.R. § 103.3(b). As part of this duty, treasurers must return any excessive 

contribution that cannot be redesignated or reattributed within sixty days. 11 C.F.R. § 103.3(b)(3). 

10 52 U.S.C. § 30101(2) (formerly 2 U.S.C. § 431(2)); see also 11 C.F.R. §§ 100.3, 100.72, 100.131, 101.3. 

11 52 U.S.C. § 30101(1)(A) (formerly 2 U.S.C. § 43 l(l)(A)); see also 11 C.F.R. §§ 100.2, 110.l(j). 

12 52 U.S.C § 30116(a)(6) (formerly 2 U.S.C. § 441a(a)(6)); see also 11 C.F.R. § 110.l(j)(l ). 

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LRA 980 (Cantor for Congress) 

1 election and contributions received for the general election." 3 Candidates may spend money

prior to the primary election on "general election disbursements," provided that their records 

"demonstrate that, prior to the primary election, recorded cash on hand was at all times equal to 

or in excess of the sum of general election contributions received less the sum of general election 

14 disbursements made." Finally, "[i]f a candidate is not a candidate in the general election, any 

contributions made for the general election shall be refunded to the contributors, redesignated ... 15 or reattributed " as appropriate. 

Within these regulatory provisions lurks a potential conflict. On the one hand, the 

regulation expressly permits a candidate committee to spend general election contributions to 

pay bona fide general election expenses (e.g., fundraising and accounting expenses) before the 

date of the primary election. On the other hand, the regulation requires the committee to refund 

all general election contributions if the candidate loses the primary election. How can a 

campaign committee spend and refund the same dollar? In the past, the Commission has 

attempted to reconcile these two provisions of the same regulation in the most ponderous 

manner: permit the campaign committee to spend general election contributions before the 

16 primary date at the risk of violating the law if the candidate loses the primary election. But 

there is a reasonable alternative way to harmonize the two regulatory provisions: read them in 

para materia to require refunds of general election funds on hand net of the general election 

17 funds already spent.

III. The Commission's Approach Is Illogical, Unfair, And Impractical

Here, the Commission determined that the Committee must refund 100 percent of its 

general election contributions, including those it spent on expenses necessary to prepare for the 

anticipated general election. In so concluding, the Commission reasoned that a "general election 

contribution limit does not exist for a candidate who does not participate in the general election, 

and a committee's spending cannot create a legal contribution limit where one would otherwise 

18 not exist."

This reasoning is illogical on its face. The Commission reasons that because there is no 

general election candidacy, there is no contribution limit. Because there is no contribution limit, 

13 11 C.F.R. § 102.9(e)(l). 

14 11 C.F.R. § 102.9(e)(2). 

15 11 C.F.R. § 102.9(e)(3). 

16 See, e.g., Advisory Opinion 1986-17 (Green). 

17 There may be other regulatory approaches affecting the expenditure side of this regulatory scheme that 

might assist in accomplishing a rational approach, but this is a subject beyond the scope of the present critique of the 

flaws in the Commission's current approach. 

18 LRA 980 (Cantor for Congress), Memorandum Regarding Request for Consideration ofa Legal Question 

Submitted by Cantor for Congress at 3 (Jan. 27, 2015); see also LRA 980 (Cantor for Congress), Certification 

(March 17, 2015). 

3 
LRA 980 (Cantor for Congress) 

a former candidate - retroactively- was prohibited from accepting contributions. This syllogism 

treats the contribution limit as government permission to raise money for a potential candidacy -

permission that can be revoked when the candidacy does not materialize. It is the First 

Amendment that affords that right, not the contribution limit. The contribution limit is a 

narrowly drawn restriction on the First Amendment right that applies only when a candidacy 

materializes in a federal election. 

Additionally, there is no basis in the Act for the Commission's conclusion. The 

Commission can only "administer, seek to obtain compliance with, and formulate policy with 

respect to" the Act.19 The Act prescribes specific limitations applicable to specific circumstances

- when a person is spending money to influence a federal election. When money is given

outside of these circumstances, the Commission has no authority to impose new limits or

prohibitions. If anything, after a candidate ceases to be a candidate, the government's interest in

imposing any contribution limit at all that dissipates because there is no longer any potential to

corrupt a federal candidate or officeholder.

Even accepting the Commission's once and continuing jurisdiction over a non-candidate 

who lost his primary election, however, the Commission's interpretation of its regulations places 

candidate committees in an impossible catch-22. Commission regulations, prior advisory 

opinions, and even OGC's memorandum in this matter all acknowledge candidates may legally 

raise and spend general election funds prior to the date of the primary election. 20 If a candidate 

wins, there is no problem - any contributions received prior to the primary date count against the 

general election contribution limit and may be spent just like any other funds raised for the 

general election. However, if the candidate, despite all efforts to win, loses the primary election 

the exercise of this legal right becomes illegal. If a candidate loses the primary the campaign 

committee is trapped by the Commission's interpretation requiring the committee to refund all of 

the funds raised for the general election within sixty days, regardless of whether or not it spent 

funds on bona fide general election expenses.21 When it fails to refund 100 percent of its general 

election contributions - i.e., funds already spent on necessary general election expenses - it has 

broken the law. 

This approach is unfair because candidates have no way of knowing whether or not it will 

be legal to dip into their general election funds for general election expenses ex ante. Thus, a 

candidate's campaign committee must either forgo exercising its right to spend general election 

funds on general election expenses and devote primary election contributions to pay for such 

expenses, or run the risk of breaking the law if its candidate unexpectedly loses the primary 

19 52 U.S.C. § 30106(b)(l) (formerly 2 U.S.C. § 437c(b)(l)). 

20 See generally 11 C.F.R. § 102.9(e)(2); Advisory Opinion 1986-17 (Green); LRA 980 (Cantor for 

Congress), Memorandum Regarding Request for Consideration ofa Legal Question Submitted by Cantor for 

Congress (Jan. 27, 2015). 

21 See 11 C.F.R. § 103 .3(b )(3); see generally Advisory Opinion 1986-17 (Green) ( describing the types of 

expenses that may be paid with general election funds prior to the date of the primary election). 

4 
LRA 980 (Cantor for Congress) 

election. In the realm of political speech, "[t]his 'heads I win, tails you lose' approach cannot be "22 correct. 

The unfairness of this regulatory approach is compounded because the same law prohibits 

campaign committees from remedying the situation. The premise of the Commission's 

interpretation stipulates that because the candidate is not running in the general election, the 

candidate's campaign committee may not raise new general election contributions to cover any 

shortfalls, such as that experienced by the Committee. As noted above, a candidate's campaign 

committee may only accept a contribution designated for a prior election after the date of that 

election "to the extent that the contribution does not exceed net debts outstanding.from such

23 election." Any outstanding general election expenditures or refund obligations are by 

definition general election debts that are not outstanding from the primary election. Moreover, 

even were a losing committee permitted to raise contributions to pay its general election refund 

debt, the Commission's rule would require the committee to refund those contributions too.24 In

sum, unless committees have sufficient primary election funds remaining to provide refunds to 

all general election contributors, they have a legal obligation to refund money that they have 

already spent and no way to raise additional funds. 

Recognizing its own regulatory conundrum, the Commission engaged in legal gymnastics 

to afford the Committee an escape route. The Commission invented from whole cloth a legal 

fiction: that the Committee can, if it so chooses, treat its unrefunded general election 

contributions as excessive 25 primary election contributions. In theory, this legal fiction provides 

the Committee an avenue to raise additional funds: convince new contributor Jones to make a 

contribution in order to pay a refund to old contributor Smith a year after the Committee ceased 

political activity. In practice, this is highly impractical. Committees have only sixty days to 

refund excessive contributions. Thus, losing primary candidates have sixty days to raise money 

that people were not willing to provide during a heated primary campaign for the sole purpose of 

transferring that money to other contributors as a refund. If a losing campaign committee is 

unable to find a sufficient number of new contributors willing to pay refunds to old contributors, 

then the campaign committee is right back where it started: breaking the law by doing 

something that was perfectly legal at inception. Here, the Cantor Committee is long past its sixty 

day refund window, so choosing to assume a fictitious primary debt still places the Committee 

into a precarious legal position. 

Furthermore, committees with significant outstanding debts are not permitted to 

26 terminate. Thus, committees are trapped in a perpetual limbo - they have no money to pay

22 FECv. Wis. Right to Life, Inc., 551 U.S. 449,471 (2007). 

23 11 C.F.R. § 110.l(b)(3)(i) (emphasis added). 

24 While payments or loans from candidates to their campaign committees are unlimited, they are considered 

contributions under the Act, and thus would likewise be prohibited under these circumstances. 

25 LRA 980 (Cantor for Congress), Certification (Mar. 17, 2015). 

26 See 11 C.F.R. §§ 102.3, 116.7. 

5 
LRA 980 (Cantor for Congress) 

their debts and no plausible way to raise additional funds, yet they have no way to terminate and 

are obligated to continuously file reports with the Commission. When they fail to do so, they 

face additional fines and incur more debts that they have no way of repaying. All the while they 

incur additional administrative expenses to address their ongoing existence for hollow regulatory 

purposes. 

At first blush the Commission's effort to provide committees an escape remedy may have 

seemed fair, but the legal contortions actually reflect the Commission's effort to absolve itself of 

its own irrational quagmire. At some point, the Commission should simply admit its error in 

logic and afford campaign committees a rational regulatory interpretation. 

IV. The Commission's Refund Requirement Is Not Necessary

A defunct committee's solicitation of a contribution from a new contributor to pay a 

refund to an old contributor seems like a pointless exercise, so it begs the question: What public 

policy objective does that kind of post-campaign fundraising exercise achieve? Because the 

Commission's dogmatic refund requirement drives the regulatory result, it is illuminating to take 

a step back and consider what is so necessary about a refund requirement for losing primary 

campaigns in the first instance. Does the refund requirement serve a compelling policy purpose 

that justifies the regulatory contortions we see here? The answer is no. One can scarcely be 

conjured, and certainly no anti-corruption purpose is advanced. 

To begin, the refund requirement is not necessary to maintain per election contribution 

limits. Commission regulations already provide that general election funds may only be spent on 

bona fide general election purposes. 27 This restriction is sufficient to maintain the per election 

contribution limit under other circumstances, including when a candidate wins their primary 

race, and is sufficient to do so in cases such as this, when a candidate loses. 

Money given to a primary candidate designated for the general election is like money 

given to a candidate who is testing the waters. In both cases, a donor gives money with the hope 

that the recipient will become a candidate, and that the funds given will be used to help influence 

a federal election. However, with testing the waters the Commission has no jurisdiction until a 

person becomes a candidate. It is only at that point that donations are considered contributions, 

and subjected to the Act's reporting requirements. If a person never becomes a candidate, there 

is no obligation to report donations, let alone refund supporters.28 That is simply a risk 

contributors readily understand and choose to take in supporting a potential candidacy that may 

never materialize for any number of reasons or circumstances. 

Likewise, losing campaigns often close with surplus funds, yet the Commission does not 

require them to refund contributors. The law provides that campaign committees may dispose of 

surplus funds by donating to charity, political parties, other campaigns, or "any other lawful 

27 See 11 C.F.R. § 102.9( e )(2); Advisory Opinion 1986-17 (Green). 

28 See generally 11 C.F.R. §§100.72; 100.131; 101.3. 

6 
LRA 980 (Cantor for Congress) 

purpose."29 The only absolute prohibition is converting surplus funds to the personal use of the 

candidate to prevent corruption. 30

As both testing the waters and losing candidates illustrate, refunds are often not required 

under similar circumstances. Simply put, there is nothing sacrosanct about the Commission's 

refund requirement. 

V. The Commission Should Read Its Regulations In Pari Materia

Having extended its jurisdiction over these funds, the Commission could have decided 

that candidates may not raise and spend general election money before the date of the primary 

election. It wisely did not.31 Instead, having decided to require refunds, the Commission 

compounded its error by adopting an interpretation that runs counter to basic statutory 

interpretation. Statutory interpretation counsels verba cum effectu sunt accipienda - where 

possible, every word and provision is to be given effect.32 The Commission's interpretation 

effectively nullifies section 102.9(e)(2)'s recognition that candidates can spend general election 

funds prior to the primary date. In doing so, the Commission reduces section 102.9( e )(2) to a 

redundancy - mere belt and suspenders supporting the accounting methods at section 

102.9(e)(l). As the Court has made clear, this type ofreading is disfavored.33

The Commission must at minimum interpret its regulations "as a symmetrical and 

coherent regulatory scheme"34 that fits "all parts into an harmonious whole."35 One reasonable 

way to do so is to read subsections 102.9( e )(2) and ( e )(3) in pari materia by requiring 

committees to refund, redesignate, or reattribute the net amount of all general election 

contributions minus general election disbursements. This approach satisfies the purpose of the 

regulations by providing the same safeguards against subsidizing a primary election with general 

election funds, gives effect to all of the words in the Commission's regulations, and avoids 

placing committees in a lose-lose situation or putting them through purposeless post-election 

fundraising exercises to pay off fictitious primary election debts. 

29 11 C.F.R. § 113.2. 

30 11 C.F.R. § 113.l(g). 

31 We need not decide here whether a broad temporal prohibition on general election expenditures - i.e. 

speech - would be constitutional. If it were unconstitutional, then punishing a campaign for doing it under a catch22 regulatory scheme, as here, would be equally unconstitutional. 

32 See generally Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 

(2012 Thomson/West). 

33 See Kungys v. United States, 485 U.S. 759, 778 (1988) (It is a "cardinal rule of statutory interpretation that 

no provision should be construed to be entirely redundant."). 

34 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Gustafson v. Alloyd Co., 

513 U.S. 561, 569 (1995)). 

35 Jd. (quoting FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)). 

7 
�/ 2-o, 2-0,(""

Date 

LRA 980 (Cantor for Congress) 

VI. Conclusion

The Commission's approach fails to give full effect to all of the words of the 

Commission's regulations, is unfair, and creates serious practical problems for Committees 

seeking to comply with the law. Because there is a better way to interpret the law to avoid these 

difficulties - requiringpro rat a refunds of net general election contributions on hand - I cannot 

join my colleagues' interpretation of our regulations in this matter.36

Commissioner 

8 

36 Emerson visited Thoreau in jail and asked, "Henry, what are you doing in there?" Thoreau replied, "Waldo, 

the question is what are you doing out there?" W. McElroy, "Henry Thoreau and 'Civil Disobedience,"' (The 

Thoreau Reader, University oflowa, 2009), available at www.thoreau.eserver.org/wendy.