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AO 2019-11: PAC’s draft fund proposal is permissible –

Pro-Life Democratic Candidate PAC, a nonconnected political committee, may operate a draft fund to collect contributions for a yet-unnamed Democratic candidate for President who meets certain experience and endorsement criteria. All contributions to the draft fund would be attributable only to the original contributors.


Pro-Life Democratic Candidate PAC (the Committee) proposes to accept contributions earmarked for the first Democratic presidential candidate who files a Statement of Candidacy with the Commission; is a current or former Member of Congress, a current or former Governor, a retired General or Admiral, a former cabinet-level administration official, or a state legislator holding office as of 2019; and receives the endorsement of Democrats for Life of America. If no candidate meets these criteria by September 29, 2019, all contributions collected will be forwarded to Dan Lipinski for Congress. The draft fund’s web page where contributions are made informs contributors of the criteria and the default recipient for the funds.

The Committee has no role in Democrats for Life of America’s endorsement process, and Democrats for Life of America and the Committee do not have overlapping board members or paid or unpaid staff.


Under the Federal Election Campaign Act and Commission regulations, if a person makes a contribution that is earmarked or otherwise directed to a candidate through an intermediary or conduit, it is a contribution from that person to the candidate. If an intermediary or conduit “exercises any direction or control” over the choice of the recipient candidate, then the contribution is made by both the original contributor and the intermediary or conduit.

In previous advisory opinions, the Commission has concluded that an intermediary exercises no direction or control over the choice of recipient when all of the following conditions are met:

  1. The funds were disbursed after an objective, easily determinable condition outside the control of the intermediary or conduit was triggered;
  2. The intermediary or conduit specified a date certain by which the condition must be met;
  3. The intermediary or conduit would refund or otherwise lawfully distribute the funds if the triggering condition was not met; and
  4. The intermediary or conduit clearly communicated all of the information regarding the first three conditions to contributors.

The Commission concluded that the Committee’s proposal meets these four conditions, so all contributions collected would be attributable only to the original contributors and not to the Committee.

The Committee’s proposal is also consistent with previous advisory opinions that have permitted an intermediary or conduit to forward contributions to a pre-selected default recipient if no candidate meets the criteria to receive the earmarked contributions. In this case, the Committee will inform donors up front that Dan Lipinski for Congress is the default recipient. If funds are forwarded to Dan Lipinski for Congress, they remain attributable to the original contributors and will count against the contributors’ per-election limit on contributions to Dan Lipinski for Congress.

Date issued: July 25, 2019; Length: 6 pages



11 CFR 110.6
Earmarked contributions


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