The Federal Election Commission is likely to vote Thursday to allow married same-sex couples to make joint political donations from an individual bank account, a privilege that has long been afforded to straight married couples.
If the FEC does alter its rules regarding donations from same-sex married couples, as expected, it would be one of the many changing federal regulations attributable to last month’s landmark Supreme Court ruling striking down the federal Defense of Marriage Act.
The FEC last examined the question of donations from married gay couples in April, when it issued an advisory opinion that concluded same-sex couples married under state law could not make joint political donations from an individual bank account. That advisory opinion was based on Section 3 of the Defense of Marriage Act. In that opinion, the FEC noted it could change its position if there was a Supreme Court ruling on DOMA.
“If DOMA is held to be unconstitutional by the Supreme Court – or is otherwise modified or repealed – the Commission will, upon request, revisit this issue,” the opinion said.
In that case, a same-sex couple, members of the gay-friendly Log Cabin Republicans, wanted to donate to the special election campaign of Massachusetts Senate candidate Dan Winslow, a pro-marriage-equality Republican. The couple had been married in Massachusetts.
Greg T. Angelo, the executive director of the Log Cabin Republicans, told TPM the group viewed this as a freedom of speech issue since, unlike straight married couples, same-sex couples with one income source could not make the maximum donation to a campaign.
“From our perspective, this was a limit of freedom of speech of, certainly the two gentlemen, Log Cabin members who were interested in supporting the Winslow campaign, but also for any gay couple in the U.S. who value their freedom of speech and supporting the candidates of their choice,” Angelo said.
Though Winslow was defeated in the Republican primary for the Massachusetts Senate race in May, his campaign is still paying its debts. Therefore, soon after the Supreme Court ruling striking down the Defense of Marriage Act on June 26, Craig Engle, an attorney with Arent Fox who advised the Winslow campaign on campaign finance matters, sent a request for a new advisory to the FEC.
On Friday, the FEC published a draft advisory opinion that concluded married same-sex couples can now joint political donations from an individual bank account in light of the Supreme Court decision.
“The Commission concludes same-sex couples married under state law are ‘spouses’ for the purpose of Commission regulations,” the draft opinion said.
The draft advisory opinion, which was authored by FEC chairman Ellen Weintraub and multiple FEC attorneys, has now been posted on the commission’s website where it is available for public comment until noon on Wednesday. At Thursday’s meeting, the FEC will vote on whether to approve the draft.
The FEC describes advisory opinions as “official Commission responses to questions regarding the application of Federal campaign finance law to specific factual situations.”
Though there is a chance the FEC could vote not to approve the draft advisory opinion, Engle and Angelo are confident it will be approved given the language in the initial advisory opinion issued in April that noted a Supreme Court ruling striking down DOMA would change the situation. Furthermore, the FEC often releases multiple drafts ahead of a meeting and there is only one draft opinion on this question.
“It wouldn’t be unprecedented, but it certainly is unexpected,” Engle said of the possibility the FEC would not approve the draft opinion
The meeting where the FEC will vote on the draft advisory opinion on donations from same-sex couples will be held Thursday at 10 a.m. ET. It can be watched live on the FEC website.