April 26, 2013
Yesterday, the Federal Election Commission (FEC) issued an opinion ruling on an aspect of election law that relies on Section 3 of the federal Defense of Marriage Act to determine whether a married couple can contribute to political campaigns jointly. The FEC generally allows married couples to donate jointly to campaigns, so that the amount doesn’t exceed the cap on individual contributions imposed by federal law. But they were asked to determine if same-sex married couples may legally do the same thing, and their decision says that no, same-sex married couples can’t do this until Section 3 of DOMA is repealed or struck down as unconstitutional by the Supreme Court (a possibility given that they’re reviewing United States v. Windsor now and a decision is expected by late June.
The opinion noted that the FEC doesn’t define “spouse” itself and its standard practice is to rely on state law to determine whether a couple is legally married. However, the point of Section 3 of DOMA was to provide a uniform definition of “marriage” and “spouse” that has the same application for all federal laws. So, as the FEC is obligated to follow DOMA’s restrictive definition of “spouse”, it has to interpret the federal regulation at issue differently. Instead of simply allowing for joint contributions, with DOMA in place, the same-sex couple would be considered to have made “a contribution in the name of another person”, which is illegal.
So, for now, the FEC has to follow DOMA, but the issue will probably be reconsidered after the Supreme Court issues its decision in Windsor:
The FEC’s ruling cited the Defense of Marriage Act’s definition of ‘spouse’ — being only between one man and one woman — as the determining factor that would preclude same-sex couples from recognition under federal regulations. Pointing to the upcoming Supreme Court decision, the FEC intends to revisit the question once the high court rules later this year.
The request from Winslow came as an olive branch to independent-minded Massachusettsians, who may warm up to his campaign following a more open social values platform. Compared to his Republican competitors: Gabriel Gomez, a former Navy SEAL turned politician, is in favor of same-sex marriage whereas Michael Sullivan, a former U.S. attorney, recently shifted his stance on the issue.
Former FEC officials had filed an amicus brief in the Windsor case pointing out how Section 3 of DOMA affects, and sometimes infringes on, free speech. The brief addressed this issue, along with others that affect campaign financing and federal election practices. Citizens for Responsibility and Ethics in Washington (CREW) filed its own amicus brief in the case: CREW is a Congressional ethics watchdog group, and its brief pointed out the myriad ways in which DOMA’s restrictive definition of marriage interferes with enforcing ethics laws and regulations.
The FEC makes a point to say that the issue will be addressed again after Windsor, and a footnote in the opinion also suggests that the Supreme Court’s resolution of Hollingsworth v. Perry, the Prop 8 case, could affect the FEC’s approach to enforcing federal election regulations in the context of same-sex marriage. The decision in Perry is also expected in June.