At the FEC’s May 1 open meeting, the Commission voted 4-1 to approve a draft advisory opinion requested by Nevadans for Reproductive Freedom (“NFRF”) that authorizes federal candidates and officeholders to solicit unlimited funds, at any time, from individuals, corporations, labor unions, and other organizations for state ballot initiative committees. NFRF is a 501(c)(4) tax-exempt nonprofit organization that is also registered as a state ballot committee in Nevada, and is currently gathering signatures to qualify a state ballot initiative for the 2024 general election. NFRF sought FEC approval for federal candidates and officeholders to solicit funds on behalf of NFRF outside of the federal amount limitations and source prohibitions.

By voting to approve this request, the FEC clarifies two decades of guidance concerning state ballot measure activity. In previous advisory opinions dating back to 2003, the FEC divided on the basic question of whether state ballot initiatives, measures, and referenda are “elections” for purposes of federal campaign finance law, and drew distinctions between ballot initiatives based on whether they had qualified for the ballot and whether federal candidate elections would appear on the same ballot. Now, with the approval of AO 2024-05, a majority of the FEC has declared that state ballot initiatives are not “elections” under federal campaign finance law because that term refers only to candidate elections. In addition, the distinction between a ballot measure’s pre- and post-qualification period has been eliminated.

Going forward, federal candidates and officeholders may make solicitations for state ballot initiative committees without regard to the “soft money” restrictions regardless of whether a ballot initiative has qualified for the ballot or a federal candidate election will appear on the same ballot. Note, however, that any applicable state restrictions on ballot measure committee funding, such as state laws prohibiting foreign national contributions, still apply. In addition, it is important to remember that Members of Congress are subject to U.S. House and Senate Ethics Committee restrictions and preapproval for making solicitations for a Section 501(c)(4) organization may be required. Federal candidates and officeholders should continue to consult experienced counsel before soliciting any funds for a state ballot measure committee.