'·- ~ ·~ ,,: . L....; FEDERAL ELECTION COMMISSION 

WASHINCTON, D.C. 2046l 

SENSITIVE 

MEMORANDUM 

TO: The Commission 

FROM: Adav Noti Af( 

Associate General Counsel 

Policy Division 

Lorenzo Holloway (tJ · 

Assistant General Counsel 

Compliance Advice 

Danita Alberico i( (J /(, cf Ct.­

Attorney 

SUBJECT: Request for Consideration of a Legal Question Submitted by David Vitter for U.S. 

Senate (LRA 1 027) 

I. REQUEST FOR CONSIDERATION OF A LEGAL QUESTION: 

MAY THE COMMITTEE RETAIN GENERAL ELECTION 

CONTRIBUTIONS 

On August 17. 2016, the Commission received a Request for Consideration of a Legal 

Question ("Request") from counsel on behalf of David Vitter for U.S. Senate (the "Committee"), 

the principal campaign committee of Louisiana Senator David Vitter ("Candidate"). 1 See 

Attachment. 

The Request addresses a determination by the Reports Analysis Division, based on 

informal guidance provided by the Office of General Counsel, that the Committee must refund 

certain contributions designated for the general election that it accepted and spent before the date 

ofthe primary election. The Candidate filed a Statement of Candidacy on June 9. 2011 seeking 

reelection to the U.S. Senate during the 2010-16 election cycle. On November 21.2015, 

however. the Candidate announced that he would no longer seek reelection to the U.S. Senate in 

2016. 

At least two Commissioners agreed to consider this Request pursuant to the Policy Statement Regarding a 

Program for Requesting Consideration of Legal Questions by the Commission. 81 Fed. Reg. 29861 (May 13. 20 16). 
Memorandum to Commission 

David Vitter for U.S. Senate - LRA I 027 

Page 2 of 4 

The Committee received $319,650 in contributions designated for the 2016 general 

election prior to the primary election. 2 The Committee did not refund these general election 

contributions. Instead, the Committee contends that it properly spent the funds on allowable 

expenses and that it is not required to refund the general election contributions because Senator 

Vitter was a candidate in the 2016 general election at the time the funds were expended. 

We considered the Committee's arguments and the law that governs this area, and we 

recommend that the Commission conclude that the Committee is required to refund all general 

election contributions that it received, including those it spent on general election expenses. 

II. THE COMMITTEE MUST REFUND ALL GENERAL ELECTION 

CONTRUBTIONS BECAUSE THE CANDIDATE DID NOT PARTICIPATE IN 

THE GENERAL ELECTION 

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

Commission regulations implementing the Act. no person may make contributions to candidates 

and their authorized political committees with respect to any election that, in the aggregate, 

exceed certain limits. See 52 U.S.C. § 30116(a)(l)(A); 11 C.F.R. § 110.1(b)(l). A primary 

election and a general election are each considered a separate "election" for the purpose of 

applying these limits. See 52 U.S.C. § 30101(1)(A); 11 C.F.R. §§ 100.2, 110.1(j)(l). 

Pursuant to section 102. 9( e), candidates and their authorized committees may accept 

contributions designated for the general election before the date of the primary election. 11 

C .F .R. § 102. 9( e)( 1 ). If a committee or its candidate does so, it must use an acceptable 

accounting method to distinguish the primary election contributions from the general election 

contributions. I d. Regardless of the accounting method used. the committee's records must 

show that at all times before the primary election. the committee's recorded cash on hand 

equaled or exceeded the difference between the total amount of general election contributions 

received and the total amount of general election disbursements made. 11 C.F.R. § 102.9(e)(2). 

If a candidate does not participate in the general election, his committee must refund all 

contributions designated for the general election for which it was unable to obtain written 

redesignations within 60 days after the withdrawal. 11 C.F.R. § 102.9(e)(3); Advisory Opinion 

2015-16 (Niger Innis for Congress); Advisory Opinion 2008-04 (Dodd for President). If. 

however, a candidate campaigns as a general election candidate and incurs expenses but 

withdraws prior to the date of the general election, then the candidate may retain general election 

contributions made before his withdrawal. Advisory Opinion 1994-31 (Gallo). 

Section 102. 9( e) applies slightly differently here than in most congressional elections 

because Louisiana uses an election system that defines primary and general elections differently 

from how those terms are generally used in Commission rules and Federal law governing 

elections for Federal offices. Louisiana uses an ·'open primary"' election system. Under this 

The Committee also received contributions totaling$ 1.800 for the 2016 runoff election but refunded these 

contributions within 60 days of the Candidate's announcement that he was not seeking reelection. 
Memorandum to Commission 

David Vitter for U.S. Senate- LRA 1027 

Page 3 of 4 

open primary system, any qualified elector may qualify as a candidate, regardless of party, and 

run for office. La. Rev. Stat. Ann. §18:461 (2015). All eligible voters may cast a vote in an 

election. La. Rev. Stat. Ann. § 18:401. The candidate obtaining the majority vote wins the 

election contest. La. Rev. Stat. Ann. § 18:511. Although this election, which includes 

Congressional candidates, is held on the same day in November when all other states hold their 

general elections, Louisiana law identifies the election held on that day as its primary election. 

La. Rev. Stat. Ann. § 18:402. If a single candidate does not receive a majority vote during 

Louisiana's primary election, then the top two candidates participate in a run-off election held in 

December ofthe same election year. !d.; see La. Rev. Stat. Ann §18:511. Louisiana identifies 

the December run-off election as its general election. La. Rev. Stat. Ann. § 18:481. 

To address this election system, the Commission treats Louisiana's open primary 

election as the general election for purposes ofF ederal campaign finance law. Advisory Opinion 

2000-29 (Louisiana Congressional Delegation). The Commission considers the primary election 

date to be the last day to file with the Louisiana Secretary of State to gain ballot access for the 

general election. !d. 

Senator Vitter was not a candidate in the general election because he withdrew from the 

U.S. Senate race prior to the date the Commission considers as the primary election date for 

Louisiana· s Congressional candidates. Advisory Opinion 2008-04 (Dodd for President). 

Senator Vitter withdrew from the Senate race in November 2015 (when he lost the Louisiana 

gubernatorial election), eight months before the primary election for the U.S. Senate, which was 

July 22, 2016. At no point after November 2015 did Senator Vitter reinstate or reactivate his 

U.S. Senate candidacy. and he did not qualify for the 2016 general election ballot. To the 

contrary, the Committee had donated 89% of its funds (including its general election funds) to a 

state political committee supporting Senator Vitter's gubernatorial campaign in November and 

December 2014 and 50% of its remaining funds to the same state political committee in July 

2015. 2014 Year End Report, 2015 October Quarterly Report. The Committee received no 

contributions in 2016. 2016 April Quarterly Report, 2016 July Quarterly Report. Given these 

facts, we conclude that Senator Vitter did not participate in the 2016 general election. 

The Commission has made clear that the requirement to refund, redesignate, or reattribute 

general election contributions when a candidate does not participate in the general election 

applies even where the committee has expended the general election contributions for advance 

payments for the general election. Since 1986, the Commission has allowed candidates and their 

authorized committees to use general election contributions accepted before the date of the 

primary election ·'exclusively for the purpose of influencing the prospective general election in 

those limited circumstances where it is necessary to make advance payments or deposits to 

vendors for services that will be rendered. or goods that will be provided, to [the] committee 

after [the candidate has] established [his or her] candidacy with respect to the general election.'' 

Advisory Opinion 1986-17 (Green). However, in so permitting. the Commission emphasized the 

following: 

[T]he Commission concludes that if you do not establish your 

candidacy with respect to the general election, your committee 

must refund within a reasonable time contributions designated for 
Memorandum to Commission 

David Vitter for U.S. Senate - LRA I 027 

Page 4 of 4 

the general election, whether or not your committee has made any 

expenditure from these contributions. since a separate contribution 

limitation will not be available to these contributors with respect to 

the general election. See 11 C[.]F[.]R[.] [§] 103.3(b): Advisory 

Opinion 1986-123 

!d. (emphasis added). 

Thus, while candidates may choose to spend some or all of the general election 

contributions they collect before the primary election takes place, they do so at the risk that if 

they do not participate in the general election, they will be required to refund the general election 

contributions. 4 Here, Senator Vitter withdrew his candidacy during the primary election period. 

Therefore, he is not entitled to retain contributions under the general election contribution limit. 5 

See 11 C.F.R. § 102.9(e)(3), 11 C.F.R. § 110.1(b)and.110.2(b);Advisory0pinions2015-16 

(Niger Innis for Congress), 2009-15 (Bill White for Congress), 2008-04 (Dodd for President), 

1992-15 (Russo), and 2003-18 (Smith). 6 

III. RECOMMENDATION 

For the reasons noted above, we recommend that the Commission conclude that the 

Committee is required to refund all general election contributions it accepted. 

Attachment- Request for Legal Consideration from David Vitter for U.S. Senate, dated 

August 17, 2016 

Advisory Opinion 1986-12 (Ferraro) also concluded that contributions to a candidate with respect to an 

election in which she does not participate as a candidate must be refunded to the contributors. 

The Commission has similarly determined in matters involving special elections that a candidate who had 

both accepted and spent contributions designated for an anticipated special election that was not ultimately called 

was required to refund, redesignate or reattribute all such contributions. See Advisory Opinion 2009-15 (Bill White 

for Texas): Certification In the Matter of Request for Commission Consideration of a Legal Question b.v the Michael 

Wil/iamsfor US Senate Committee (LRA # 872) (April12. 2012): Certification In the Matter of Request for 

Commission Guidance on the Michael Williams for U.S Senate Committee (LRA # 872) (Feb. 7. 20 12): see also 

Office of General Counsel Memorandum to Commission on Request for Commission Consideration of a Legal 

Question by the Michael Williams for U.S. Senate Committee (LRA # 872). at 5 (Mar. 19. 20 12) (discussing 

Advisory Opinion 2009-15 (Bill White for Texas)). 

The Committee could have redesignated the contributions in accordance with II C.F.R. § IIO.I(b)(5). or 

reattributed them in accordance with II C.F.R. § II 0.1 (k)(3). as appropriate. if it had done so within the permissible 

time frame. II C.F.R. § 102.9(e)(3): II C.F.R. § IJO.I(b)(3). 

The Request asserts that committees in Louisiana might have difficulty segregating primary and general 

election contributions due to the uniqueness of Louisiana ·s election system. However. as the authorities cited above 

demonstrate. the Commission has repeatedly explained how the Act and Commission regulations- including the 

accounting requirements of II C.F.R. § 102.9(e). see Advisory Opinion 2009-29 (Louisiana Congressional 

Delegation)- apply to Louisiana candidates. 
David Vitter for U.S. Senate- LRA 1027 

CLARK HILL 

Clark H1ll PLC 

601 Pennsylvan1a Avenue NW 

North Bu1ld1ng, Su1te 1 000 

Washmgton, DC 20004 

Charles R. Sp1es T 202.772.0909 

T 202.572.8663 F 202.772.0919 

F 202.572.8683 

Ema1l: csples@clarkhill.com clarkhill.com 

August 17.2016 

VIA E-MAIL: LEGALREQUESTPROGRAM@FEC.GOV 

Chairman MatthewS. Petersen: Vice Chair Steve T. Walther: and Commissioners Ellen L. 

Weintraub. Caroline C. Hunter. Lee E. Goodman. and Ann M. Ravel 

Federal Election Commission 

c/o Ms. Shawn Woodhead Werth. Secretary 

999 E Street NW 

Washington, DC 20463 

RE: Request for Consideration of Legal Question by the Commission 

Dear Commissioners: 

We represent David Vitter for U.S. Senate (the ''Committee"). On behalf of the Committee. we 

request Commission consideration of a determination by the Reports Analysis Division ("RAD'') 

that the Committee return contributions it received for the 2016 general election. 

I. Factual Background 

Through filings with the Commission and other statements and documents, Senator Vitter 

announced several years ago his candidacy for reelection to the U.S. Senate in 2016. Consistent 

with the Federal Election Campaign Act of 1971. as amended (the ''Act") and Commission 

regulations, the Committee solicited and received contributions from individuals and political 

committees designated for the 2016 primary. generaL and runoff elections. 

Then. in 2014. Senator Vitter announced his candidacy for Governor of Louisiana, a Louisiana 

state election in the fall of 2015. At no time prior to or while running for governor did Senator 

Vitter announce that he would not run for the U.S. Senate in 2016 should he not be elected 

governor. 

In 2014. while Senator Vitter was still a candidate for the U.S. Senate. the Committee properly 

and legally contributed $823.000 to the Fund for Louisiana's Future, a political committee 

established to independently support Senator Vitter in all of his political endeavors. including his 

gubernatorial campaign. 

ATTACHMENT 

Page 1 of4 
David Vitter for U.S. Senate- LRA 1027 

August 17, 2016 

Page 2 

On November 21. 2015. Senator Vitter was defeated in his bid for governor. At that point and for 

the first time. he announced that he would no longer seek reelection to the U.S. Senate in 2016. 

On April 12. 2016. the Committee received a Request for Additional Information ("RF AI") from 

RAD stating: ·'Since the candidate is not seeking office and will not participate in the general and 

runoff elections. any contribution received for the general and runoff elections must be returned 

to the donors. in accordance with II CFR § 110.1 (b )(3 )." 

On May 17. 2016. the Committee filed a response notifying RAD that all contributions for the 

runoff election, which all along had been properly segregated pursuant to the Commission's 

guidelines. were refunded once Senator Vitter announced that he would not run for reeleection. 

However. the Committee disagreed with RAD's position regarding the general election funds 

because those funds had been spent on fully legal and allowable expenses while Senator Vitter 

was a candidate for the 2016 U.S. Senate election. Unlike runoff funds. the Commission has 

never directed or suggested in any way that general election funds must be segregated and only 

spent after a particular date. 

On July 27. 2016. RAD notified the Committee by telephone that the Office of General Counsel 

("OGC') supported RAD's determination that the Committee was required to refund 

contributions designated for the 2016 general election. Due to the unique nature of Louisiana's 

election laws and the fact that RAD is pursuing a "segregation of general election funds'' 

position for the first time ever regarding Louisiana elections, the Committee brings this request 

pursuant to the Program for Requesting Consideration of Legal Questions by the Commission. 1 

II. Legal Analysis 

Under Louisiana law, ''[p]rimary and general elections are held to elect persons to Congress and 

to all the elective offices in this state. except the office of presidential elector.''2 For 

congressional races, the primary election is ''held on the first Tuesday after the first Monday in 

November of an election year." and the general election is "held on the fifth Saturday after the 

first Tuesday after the first Monday in November of an election year. 

3 A candidate who receives 

a majority of the vote in the primary election wins the election and no general election is held for 

that office.4 If no candidate receives a majority of the vote. the two candidates who received the 

highest number of votes will proceed to the general election. 5 In other words. the November 

general election is. under Louisiana law. the primary election. If no candidate receives more 

1

See Fed. Election Comm'n. Policy Statement Regarding a Program for Requesting Consideration of Legal 

Questions by the Commission. 78 Fed. Reg. 63203 (Oct. 23. 2013). 2 R.S. § 18:401.1. 3 R.S. § 18:402. 4 R.S.§l8:511. 

5 R.S. § 18:481. 

ATTACHMENT 

Page 2 of4 
David Vitter for U.S. Senate- LRA 1027 

August 17. 2016 

Page 3 

than 50% of the vote, the top two candidates. regardless of party. run in a general election or 

.. runoff' election in December. 

Unlike Louisiana law. the Commission has consistently stated that the November general 

election date ''is the date ofthe general election for Federal offices in Louisiana as it is in the 49 

States of the United States:·6 Thus. while Louisiana law describes the November election as a 

.. primary .. election. the Commission has concluded that the November election is. in fact, the 

general election. and the potential December election is a runoff. Based on this interpretation, 

the Commission has concluded that there is .. a general election contribution limit" for candidates 

who participate in the November election. and an additional contribution limit for those 

candidates who participate in a runoff election. 7 

As part ofthis unique construct, the Commission designated a fictional primary election date 

whereby congressional candidates would treat the last day to file for the general election ballot as 

the date of the primary election.8 Thus, Louisiana congressional candidates could raise separate 

amounts for a fictional primary election. for the general election held in November. and for a 

runoff election in December if necessary. 

In creating this fictional primary election. the Commission has never stated that primary and 

general election funds must be segregated, or that general election funds can only be expended 

after a certain date. This is in stark contrast to the Commission's long-standing position that 

runoff contributions must be segregated and can only be spent after the general election if a 

runoff is necessary. 

As a practical matter, Louisiana campaigns do not have primary expenses, beyond the qualifying 

fee. 9 Rather. all expenses incurred by Louisiana campaigns are general election expenses, 

regardless of whether they are incurred before or after the filing deadline. 10 Because all 

candidates appear on the general election ballot in November. the campaign committees for those 

candidates invariably spend general election funds prior to the designated primary election day 

because the expenses that are incurred are almost exclusively for the general election. Thus. in 

practice. Louisiana campaigns do not segregate primary and general contributions. 

6 See FEC AO 2000-29 at 2. See also FEC AO 1978-79 and 1984-54. This interpretation was affirmed by the 

United States Supreme Court in Foster v. Love, 522 U.S. 67 ( 1997). 7 See FEC AO 2000-29. 8 Id at 5. See II C.F.R. §100.2(c)(4). 9 By way of comparison, even candidates who run unopposed in a traditional primary election incur primary 

expenses. such as fundraising expenses to deter potential primary opponents, voter registration. and voter 

identification in connection with the primary. Moreover. failure to qualify for the general election ballot is 

immaterial because the moment a Louisiana candidate announces they are running for federal office all efforts 

thereafter are in connection with the November general election. 1

° For example. a Louisiana campaign will retain consultants and staff specifically for the November general 

election. which is the only certain election. from the first day of the campaign. There may be provisions or 

contingencies if the candidate proceeds to a runoff. but there is no primary election so all expenses from the first day 

of the campaign are for the November general election. 

ATTACHMENT 

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David Vitter for U.S. Senate- LRA 1027 

August 17. 2016 

Page 4 

Contributions to the runoff election are treated quite differently. Pursuant to clear Commission 

guidance. runoff contributions are segregated. They can only be legally spent after the general 

election. and they must be refunded if a runoff is not required or if a candidate does not 

participate in the runoff. As noted above, Senator Vitter complied with this requirement. 

We respectfully request that the Commission consider the unique circumstances candidates and 

campaigns in Louisiana encounter. As soon as an individual becomes a candidate in Louisiana, 

he or she is a candidate for the November general election. and should be permitted to spend 

general election funds at the outset of the campaign. 

This has been the consistent practice in Louisiana. The Commission has never stated or 

suggested in any way that general election funds must be segregated and cannot be legally spent 

until after a certain date. Therefore, we request that the Commission instruct RAD that the 

Committee is not required refund contributions designated for the 2016 general election. 

Should the Commission hold otherwise. this will have major implications for all Louisiana 

federal campaigns. It will mean that the great majority of these campaigns are out of compliance 

since they do not segregate general election funds or ensure that they are only spent after a 

certain date. 

Respectfully submitted. 

Charles R. Spies 

Elizabeth Beacham White 

ATTACHMENT 

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