The Federal Election Commission quietly issued an advisory opinion last week allowing candidates to raise unlimited money for issue advocacy groups working on ballot measures in elections where those candidates are on the ballot.
The opinion, issued in response to a request from a Nevada-based abortion rights group, could significantly change the picture in the fall in terms of the ability of candidates aligned with these groups to help them raise money.
The decision applies to all federal candidates, but with the presidential election taking place in six months, most attention will fall on this race. If Biden can request money for abortion rights ballot measures, he could increase the existing fundraising advantage his team currently has over Trump.
The decision, publicly announced last week but little noticed, could affect turnout in swing states like Nevada, where razor-thin margins will determine the election. In Arizona, an abortion advocacy group said it had the number of signatures needed to put a referendum on the ballot. Florida — a state that has voted reliably Republican in recent presidential contests — has a similar measure on the ballot.
The advisory opinion means that both Biden and former President Donald J. Trump can raise money for outside groups promoting ballot measures. Following the repeal of Roe v. Wade, the landmark 1973 U.S. Supreme Court ruling, abortion ballot measures are expected to be a main focus for Democrats this fall.
“I think it’s quite significant,” said Adav Noti of the nonpartisan Campaign Legal Center, calling it a huge change from the prohibitions implemented by the landmark 2002 McCain-Feingold campaign finance bill.
The opinion was issued May 1 in response to a question from lawyers representing the group Nevadans for Reproductive Freedom, which hopes to put a referendum on the ballot in the fall. Several lawyers, including veteran Democratic election law attorney Marc Elias, represent the group.
The opinion concluded that federal candidates and officeholders can raise funds for group entities without being limited by dollar amounts or sources.
Recognizing how the parties could view the opinion, the National Republican Senate Committee challenged a draft of the measure the day before its formalization. Objections included that such coordination between a candidate and an outside group would translate into a vote-getting effort for Democrats in the Nevada effort.
The commission also warned about the potential for an influx of foreign money into states, since only a small number of states prohibit such contributions to ballot measures.
According to the project, the commission’s lawyers wrote, “the risk of corruption inherent in direct contributions from foreign citizens to candidates would simply metastasize in the context of the electoral initiative, with the same deleterious effect.” The NRSC’s concerns were ignored.
Of the six FEC commissioners, three Republicans and one Democrat agreed with the opinion.
A spokesperson for the Biden campaign and a spokesperson for the Democratic National Committee declined to comment.
RNC chief counsel Charlie Spies was removed from his post after just two months, in the midst of a retreat for the committee’s donors in Palm Beach, Florida. A Trump team spokeswoman did not immediately respond to a question about whether Spies’ departure was in any way connected to the advisory opinion.
But Chris LaCivita, a top Trump adviser who now helps run the RNC as his chief of staff, described the development as an opening.
“We will seize every available opportunity, including new ones, to defeat corruption and the failure of the Democratic machine,” LaCivita said.
Noti said the bloc of commissioners recently presented other opinions of significant impact, including expanding the capabilities of super PACs.
“The combined effect of these decisions is having a really significant and demonstrable effect on the way campaigns are run, and it’s all for the worse,” he said.
