Septembe 20, 2006
Please note this is being provided to FBU members for informational purposes only and is not intended to be legal advice or counsel. This is also not intended to seek participation in any election activities, nor is it an indication that AIF is engaging in such activities. This is merely information that our members may find useful for their companies. This document should not be relied upon as legal advice, and you should consult your attorney for any legal questions regarding specific situations or scenarios that may be contemplated by the information contained herein..
We have been asked by several members a specific question on campaign contributions who had no primary race but does have an opponent in the general election. The following is an opinion provided to us by John French, Esquire, one of the state’s leading election law experts. Mr. French, Special Election Counsel to AIF, has prepared the summary below.
A candidate has an opponent in the General Election but did not have an opponent in the Primary, and a donor contributed the $500 maximum to the candidate in the Primary.
Question: May that Donor now contribute another $500 to that candidate after the Primary but before the General notwithstanding the fact that the candidate did not have a Primary opponent?
Answer: Clearly and unequivocally YES.
The relevant statutory provision that imposes the $500 limit on contributions is found in s.106.08(1)(a), F.S. Paragraph (c) of that same subsection reads as follows:
(c) The contribution limits of this subsection apply to each election. For purposes of this subsection, the primary election and general election are separate elections so long as the candidate is not an unopposed candidate as defined in s. 106.011(15).
In other words, the period before the Primary and between the Primary and the General are separate "giving intervals" for purposes of the $500 limit as long as the candidate is "not unopposed" as defined by the cited statute. This is where the confusion often arises...
Subsection 106.011(15) defines "unopposed candidate"as follows:
(15) "Unopposed candidate" means a candidate for nomination or election to an office who, after the last day on which any person, including a write-in candidate, may qualify, is without opposition in the election at which the office is to be filled or who is without such opposition after such date as a result of any primary election or of withdrawal by other candidates seeking the same office...
A candidate thus becomes "unopposed" per this definition and thus for purposes of the $500 limit when (1) he qualifies without an opponent, or (2) when he wins his contested Primary but does not have an opponent in the General. However, he is NOT "unopposed" per this definition if he still has an opponent in the General regardless of whether he had one in the Primary. In sum, the test is whether he still has a contested race to run as opposed to whether he was opposed in an earlier race.
The confusion arises in that the legal term-- "unopposed candidate" differs from the common meaning of the term. Someone who doesn't pick up the difference by referring to and understanding the statutory definition could conclude that the limit only applies once due to the "unopposed" primary. However, the proper application of the definition to the law makes it clear that whether the candidate had Primary opposition is irrelevant for purposes of the limits as long as he still faced a candidate in the General.
Please note that this has been the law in Florida since its inception in 1953 and there is no real dispute as to its interpretation among those charged with enforcing it. Please further note that this interpretation is entirely consistent with the 1992 Opinion by the Division of Elections notwithstanding the fact that there is no longer a Second Primary.
In sum, a donor who contributes the $500 maximum to a candidate before the Primary may legally contribute another $500 to that candidate after the Primary and before the General as long as that candidate has an opponent in the General and regardless of whether the candidate had an opponent in the Primary.