Sen. Lee Can Keep $450K Raised for Primary That Didn’t Happen

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By Kenneth P. Doyle

Sen. Mike Lee’s (R-Utah) campaign committee will get to keep more than $450,000 in contributions raised last year for a Republican primary that didn’t occur, according to a new FEC ruling.

Lee received the Republican nomination at a state party convention last year and then was re-elected to the Senate. He raised campaign money under two separate contribution limits of $2,700 per contributor for both the convention and a state primary, in addition to a general election contribution limit of $2,700.

Utah’s situation of scheduling both a convention and a primary last year allowed Lee to raise a total of $8,100 per contributor last year, while most congressional candidates are limited to raising a total of $5,400 for a primary and general election. Utah’s Republican primary for the U.S. Senate was canceled, however, after Lee was the only candidate with enough petition signatures to appear on the ballot.

Newly released FEC documents showed Lee’s campaign asked the agency if it could keep an additional $453,583.78 in primary contributions received due to the additional contribution limit. The FEC general counsel’s office recommended that the money be given back to contributors, but the FEC commissioners unanimously overrode the counsel’s recommendation, according to an Aug. 1 letter.

FEC Cites `Unique Facts’ of Case

The FEC concluded that Lee’s campaign could retain the contributions designated for the primary election “because of the unique facts in this case,” the letter said. The commission determined that the campaign “had no choice but to prepare for both the primary election and the party convention at the same time because of the short time frame between the party convention and the primary election.”

The FEC letter was addressed to attorney Cleta Mitchell of the firm Foley & Lardner, who represented Lee’s campaign committee, Friends of Mike Lee. Mitchell told Bloomberg BNA in an email that the campaign was pleased with the FEC’s decision but felt it could have come sooner. She said the Lee campaign requested a formal legal ruling from the commissioners under a little-used process after receiving an FEC “request for additional information—known as an RFAI—about its contributions listed in a disclosure report.

Mitchell noted that all candidates in Utah were advised to seek ballot access in two ways—through a primary and through a party nominating convention. Lee’s campaign spent money both on gathering petition signatures for the primary and building support for the party convention.

“These were parallel tracks and separate but equally significant processes,” Mitchell said. “There would be absolutely no way for any candidate to choose one over the other, which is what the Lieutenant Governor said publicly in writing in January 2016,” she added, referring the Utah Lt. Gov. Spencer Cox (R), whose responsibilities included election oversight.

Mitchell said the FEC issued an advisory opinion in 2004 (AO 2004-20) dealing with an “identical situation” that arose in Connecticut, where state law provided for a nominating process potentially involving both a party convention and a primary. The advisory opinion concluded that the primary and convention constituted separate elections, calling for separate contribution limits under federal campaign finance law.

Counsel’s Office Said No

Despite Mitchell’s arguments, the FEC general counsel’s office concluded in a memo sent to the commissioners in May that Lee’s campaign couldn’t keep money it raised for the primary that didn’t happen.

“As a general legal matter, we agree that Utah’s nominating convention and its primary election are two separate elections, but we conclude that the Committee cannot retain the contributions that the contributors designated for the primary election because the primary election was cancelled,” said the memo signed by Lisa Stevenson, the FEC’s acting general counsel.

The memo cited recent legal rulings by the FEC, including an opinion issued in 2015 to the campaign of former House Majority Leader Eric Cantor (R-Va.). Cantor suffered a surprise loss in a Republican primary race in 2014 to now-Rep. Dave Brat (R-Va.) and was required to refund money that he had raised for the general election that year. In Cantor’s case, the FEC commissioners voted 5-1 to support an analysis and recommendation from the general counsel’s office saying that any general-election contributions collected by a candidate who loses a primary must be refunded in full.

The FEC majority ruled that the Cantor campaign was required to refund all general election contributions accepted before the primary, including money that had already been spent on anticipated general election expenses. The FEC said $230,000 of Cantor’s unrefunded contributions at issue could be treated as excessive primary contributions, which could be retired either by personal contributions from Cantor or contributions from other eligible primary contributors.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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