FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

CONCURRING STATEMENT OF CHAIR ELLEN L. WEINTRAUB		

IN ADVISORY OPINION 2013‐02

	 Today	the	Commission	provided	a	response	to	the	Advisory	Opinion	Request	filed	

by	Dan	Winslow,	a	candidate	for	the	United	States	Senate	in	Massachusetts.		Mr.	Winslow	

asked	whether	his	campaign	could	apply	11	C.F.R.	§	110.1(i)	to	contributions	from	lawfully	

married	same‐sex	couples.		Unfortunately,	Section	3	of	the	so‐called	Defense	of	Marriage	

Act	(“DOMA”)	denies	same‐sex	married	couples	this	protection	(and	many	others).1		

Because	Mr.	Winslow	expressly	limited	his	request	to	this	narrow	issue,	I	very	reluctantly	

voted	to	answer	his	question	in	the	negative.		Regardless	of	my	personal	views	of	DOMA,	I	

must	adhere	to	the	law	until	it	is	repealed	by	Congress	or	invalidated	by	the	Supreme	

Court.2		I	write	separately	to	emphasize	that	my	vote	today	was	in	no	way	intended	to	

endorse	the	discriminatory,	irrational	burden	that	DOMA	places	on	political	participation	

by	individuals	in	same	sex	marriages.	

Section	110.1(i)	provides	extra	protection	to	spouses	who	do	not	work	outside	the	

home.		It	makes	clear	that	federal	contribution	limits	“shall	apply	separately	to	

contributions	made	by	each	spouse	even	if	only	one	spouse	has	income.”		In	millions	of	

American	families,	one	person	contributes	all	or	most	of	the	family’s	financial	resources.		

Often	these	families	have	decided	that	one	spouse	or	partner	will	be	a	full‐time	homemaker	

–	or	they	have	had	that	choice	made	for	them	in	these	difficult	economic	times.		Section	

110.1(i)	ensures	that	spouses	who	are	not	their	families’	primary	breadwinners	

nevertheless	have	an	equal	right	to	use	family	resources	to	participate	in	the	political	

process.	

 

1	The	relevant	provision	of	DOMA,	section	3,	states	that	“[i]n	determining	the	meaning	of	any	Act	of	Congress,	

or	of	any	ruling,	regulation,	or	interpretation	of	the	various	administrative	bureaus	and	agencies	of	the	United	

States,	the	word	‘marriage’	means	only	the	legal	union	between	one	man	and	one	woman	as	husband	and	

wife,	and	the	word	‘spouse’	refers	only	to	a	person	of	the	opposite	sex	who	is	a	husband	or	a	wife.”		1	U.S.C.	§	

7.			

2	A	number	of	federal	courts,	including	two	Circuit	Courts	of	Appeals,	have	already	ruled	that	section	3	of	

DOMA	is	unconstitutional.		See, e.g., United States v. Windsor,	699	F.3d	169	(2d	Cir.	2012),	cert granted,	133	S.	

Ct.	786	(2012);	Massachusetts v. U.S. Dep’t of Health and Human Servs.,	682	F.3d	1	(1st	Cir.	2012)	

(“Massachusetts v. HHS”);	Pedersen v. OPM,	881	F.	Supp.	2d	294	(D.	Conn.	2012);	Golinski v. OPM,	824	F.	Supp.	

2d	968	(N.D.	Cal.	2011).		The	Windsor case	is	currently	pending	before	the	United	States	Supreme	Court.		The	

rulings	of	the	other	lower	courts	have	been	stayed	pending	the	outcome	of	this	case.	
Page 2 of 2 

A	growing	number	of	states	afford	lesbian	and	gay	families	the	rights	and	

responsibilities	of	civil	marriage.3		A	significant	number	of	these	families,	like	their	

heterosexual	counterparts,	subsist	primarily	on	one	spouse’s	income.4		I	can	think	of	no	

practical	reason	not	to	give	these	families	the	benefit	of	section	110.1(i)	on	the	same	terms	

as	we	apply	the	regulation	to	contributions	by	individuals	married	to	someone	of	a	

different	sex.		The	objective	of	the	regulation	is	entirely	unrelated	to	the	gender	of	the	

spouses.			

Nevertheless,	DOMA	requires	us	to	limit	the	word	“spouse”	in	the	text	of	the	

regulation	to	people	in	heterosexual	marriages.		This	is	but	one	of	several	disparate	and	

seemingly	unjustified	burdens	that	DOMA	places	on	the	political	expression	and	

association	rights	of	married	same‐sex	couples.5		And	these	disadvantages	are	but	a	few	of	

the	over	1000	federal	rights,	benefits,	and	responsibilities	affected.6			

	 Fortunately,	as	noted	by	more	than	one	Commissioner,	the	practical	effect	of	today’s	

Advisory	Opinion	should	be	relatively	limited.		Federal	contribution	limitations	apply	

separately	to	every	individual,	and	contributions	from	any	couple,	married	or	not,	who	

share	a	bank	account	may	be	attributed	to	each	of	them	under	the	Commission’s	existing	

regulations.7			

	 My	preference	would	still	have	been	to	give	same‐sex	married	couples	the	

additional	benefit	of	section	110.1(i).		Ultimately,	however,	it	is	not	for	me,	as	an	FEC	

Commissioner,	to	disregard	provisions	of	the	law	based	on	my	personal	views	of	their	

wisdom	or	constitutionality.		For	this	reason,	I	very	reluctantly	voted	to	adopt	Advisory	

Opinion	2013‐02.	

 

3	Nine	states	and	the	District	of	Columbia	currently	allow	same‐sex	couples	to	marry.		Nine	more	permit	them	

to	enter	into	civil	unions	or	domestic	partnerships	that	provide	all	or	substantially	all	the	rights	and	

obligations	of	marriage.		But	for	DOMA,	I	would	favor	interpreting	the	word	“spouse”	in	our	regulations	to	

include	all	married	individuals	and	those	in	civil	unions,	domestic	partnerships,	or	other	similar	legal	

arrangements.	

4	According	to	analysis	of	census	data	by	UCLA’s	Williams	Institute,	almost	20%	of	individuals	in	same‐sex	

couples	nationwide	are	not	currently	participating	in	the	paid	labor	force	(as	compared	to	just	over	30%	of	

individuals	in	heterosexual	couples).		See Gary	J.	Gates,	The	Williams	Institute,	UCLA	School	of	Law,	Same‐sex	

and	Different‐sex	Couples	in	the	American	Community	Survey,	February	2013,	at	3‐4,	available at

http://williamsinstitute.law.ucla.edu/wp‐content/uploads/ACS‐2013.pdf.	

5	An	amicus	brief	filed	in	Windsor	by	a	bipartisan	group	of	former	Commission	officials	notes	several	other	

examples.		See generally Brief	of	Amici Curiae	of	Former	Federal	Election	Commission	Officials	Supporting	

Respondent	Edith	Schlain	Windsor	on	the	Merits,	United States v. Windsor,	No.	12‐307	(Mar.	1,	2013).			

6 Massachusetts v. HHS,	682	F.3d	at	6.	

7 See 11 C.F.R. § 110.1(k).