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      FEC Record: Advisory opinions
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      AO 2013-06 – Provisions apply equally to same-sex spouses

FEC Record: Advisory opinionsAO 2013-06 – Provisions apply equally to same-sex spousesAugust 1, 2013 The Democratic Senatorial Campaign Committee (DSCC) may follow the same FEC regulations for legally married same-sex couples as it follows for spouses in an opposite-sex marriage. Specifically, the Commission concluded that: The DSCC may attribute joint contributions under 11 CFR 110.1(i) to each same-sex spouse, even if only one has income;
    A candidate legally married to a same-sex spouse may use jointly owned assets under the same conditions as a candidate married to an opposite-sex spouse; and
    DSCC representatives may appear at restricted class events at which legally married same-sex spouses of members of the restricted class attend.  **Background** The DSCC filed an advisory opinion request asking the Commission three questions about how the terms “spouse” and “family” apply to same-sex couples under the Federal Election Campaign Act of 1971, as amended (“FECA”), and Commission regulations.
        The DSCC’s request followed the Supreme Court’s ruling June 26 in *United States v. Windsor* that struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.  The DSCC wanted to know if it could attribute a contribution as being from each member of a legally married same-sex couple even if the money originated from the income of just one of the spouses. Secondly, it asked whether a Senate candidate who is legally
    married to a same-sex spouse may utilize joint assets under the same provisions as a Senate candidate who is married to an opposite-sex spouse. Finally, it asked if DSCC representatives may appear at restricted class events at which legally married
    same-sex spouses are present as family members of corporate/labor executive and administrative employees, stockholders and members.  **Analysis** The term “spouse” is not defined in FECA or Commission regulations, but was previously limited by section 3 of DOMA to apply only “to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7.  Now that the Supreme Court has found
        section 3 of DOMA unconstitutional, the Commission has concluded that same-sex couples married under state law are “spouses” for purposes of the FECA and Commission regulations.  Commission regulations allow campaigns and other federal committees to accept “contributions made by each spouse even if only one spouse has income.” 11 CFR 110.1(i). Thus, a spouse with no separate income may make a contribution in his or her own name
    through the checking account of the other spouse. AO  1980-11 (Phillips).  DSCC may apply the spouse contribution rule at 11 CFR 110.1(i) to contributions from
    same-sex couples married under state law. Similarly, a Senate candidate who is legally married to a same-sex spouse may utilize “jointly owned assets” under 11 CFR 100.33(c) and 100.52(b)(4) under the same conditions as a Senate candidate who is married to an opposite-sex spouse. Finally, DSCC representatives may appear at restricted-class events, pursuant to 11 CFR 114.3(c)(2), at which legally married same-sex spouses are present as “families” of restricted class members under 11 CFR 114.1(j). Date issued: July 25, 2013; Length: 6 pages. **Resources:** Advisory Opinion 2013-06 [PDF]
    Commission discussion of AO 2013-06
    Supreme Court decision in *United States v. Windsor* [PDF] **Related opinions** Advisory Opinion 2013-07 (Winslow II) [PDF]
        Record article
    Commission discussion of AO 2013-07
 Author
          Alex  Knott


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This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


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