The question of marriage equality for same-sex couples became a campaign finance issue on Thursday, as Federal Election Commission members addressed the application of a little-known rule that allows someone to contribute to a federal campaign from the checking account of his or her spouse.
That way, a spouse with the lion's share of the income can effectively double his or her contribution without hitting the cap on how much individuals can give to each candidate.
Federal election commissioners at today's regular open meeting denied the request from Massachusetts Senate candidate, Dan Winslow, to treat donations from same-sex couples the same as opposite sex couples. The commissioners cited the Defense of Marriage Act, which defines a spouse as being of the opposite sex. The constitutionality of DOMA is currently being reviewed by the Supreme Court.
However, the commissioners noted that the same-sex couples have another avenue to contribute just as much money to candidates as opposite-sex couples — they just have to set up joint checking accounts, something that has been allowed by election law since 1987. Contributions from a joint account can be attributed to each member of the couple regardless of whether they are married or not, the commissioners noted.
Winslow's attorney said he appreciated the FEC's quick response to his request and said he will be back for a different answer if the Supreme Court overturns DOMA.
"There is a great, great question of equity here," said Winslow's lawyer Craig Engle at the hearing. It would be unfortunate, he said, for donors to have to "reorganize their money" to donate as other spouses do.
Chairwoman Ellen Weintraub agreed with that sentiment, and said she hopes he will return to the FEC with the request after the high court rules, but said her hands were tied by current law.
“Mr. Engle, sometimes the law’s an ass," she said.
Socialist Workers Party exemption renewed
In a separate request, the commission also unanimously approved a request by the Socialist Workers Party to extend the exemption it has from disclosing its campaign donors, based on the likelihood that SWP supporters would be harassed.
The request means that the relatively small number of donors who give to the SWP do not have to be disclosed to the public, nor do its contributions to other committees.
A 1979 court decision first provided the exemption, which has been periodically renewed by the FEC in advisory opinions.
In making its decision, Weintraub said, the commission must weigh the danger of violence and harrassment to donors against the government interest in obtaining information about contributors and expenditures.
In this case, the information lost to the public is "very, very, very small," and there is a long history of harassment and violence against SWP members, she said. She noted that the party has had very little impact on elections and only had 118 contributors in 2012, raising about $16,000.
The harassment alleged by the SWP includes 45 incidents, including firings and alleged workplace intimidation and hostility from law enforcement officials.
The lawyer for the SWP differentiated the party from other groups that have requested donor anonymity, such as supporters of California's Proposition 8, which defined marriage as between a man and a woman. Proposition 8 supporters got over 7 million votes, he said, meaning the movement cannot be characterized as a "minor party" or representing views "out of the mainstream."
Rules on electronic giving
And in an attempt to update regulations to bring the FEC into the Internet age, commissioners decided to ask the public whether they should write new rules on how committees can receive all forms of electronic contributions, such as text messages. After the notice of proposed rulemaking is published in the Federal Register, the public has 30 days to submit comments to the commission.
The proposal comes after the commission has issued six separate advisory opinions on contributions via text message. As a result, interested candidates or other parties have to sift through audits and opinions to figure out how to comply with campaign finance law, Commissioner Donald McGahn said at the hearing. The point of the rulemaking would be so committees can to look at "one book, not a series of books," he said.