New FEC advisory opinion impacts state officeholders’ Super PACs

The Federal Elections Commission (FEC) recently issued a ruling that limits expenditures by certain Super PACs established, maintained and controlled by a state representative. South Carolina State Representative Nancy Mace asked the FEC if she could establish a Super PAC which, among other things, would pay for communications that promote or support clearly identified federal candidates. Rep. Mace proposed setting up the Super PAC by transferring the remaining funds from her federal campaign committee from a previous federal race. The Super PAC also intended to raise funds from individuals and corporations, without limitations. It was anticipated that the Super PAC would remain under Rep. Mace’s direct control.

The FEC examined federal election laws that prohibit state or local candidates and officeholders from paying for any public communication that supports or opposes a clearly identified federal candidate except with funds that are subject to the limitations, prohibitions and reporting requirements of federal law. The federal prohibition also extends to agents of the state or local candidates/officeholders.

The FEC found that an “agent” of a state or local candidate/officeholder is “any person who has actual authority, either express or implied” to spend funds on behalf of the state or local candidate/officeholder. Because Rep. Mace planned to exercise exclusive decision-making authority over the Super PAC, the FEC concluded that the Super PAC would be Rep. Mace’s agent in making public communications. As such, when making public communications related to federal candidates, the Super PAC must pay for such communications exclusively with federal funds.