FEC: DOMA Limits Political Donations By Gay Married Couples

By Peter Overby

Published April 26, 2013 at 10:14 AM CDT

Republican U.S. Senate candidate Dan Winslow of Massachusetts wants same-sex married couples to have the same right to pool their money for political donations as other married couples. But the Federal Election Commission says the Defense of Marriage Act won't allow it. The constitutionality of DOMA is now before the Supreme Court.

Maybe it's not your first thought after saying "I do," but federal election law gives married couples some advantages in making political contributions. The Federal Election Commission tried Thursday to make those same breaks available to couples in same-sex marriages — but commissioners said they're thwarted by the federal Defense of Marriage Act.

True, President Obama's Justice Department no longer defends DOMA, and the Supreme Court is weighing whether to get rid of it. But the FEC didn't want to get too far out in front. The vote was a reluctant 5-0.

The request came from Dan Winslow; he's a Republican running for the Massachusetts Senate seat vacated by Secretary of State John Kerry. The party primaries are Tuesday, with the Democratic and Republican winners facing off in a June 25 special election.

Massachusetts legalized same-sex marriage starting in 2004. Winslow told the FEC his campaign was hindered by the inability of same-sex couples to pool their money for contributions.

None of the commissioners argued against Winslow's request. They only said DOMA blocked the change to contribution rules.

Winslow's lawyer, Craig Engle, said, "Sometimes what's right isn't lawful — yet."

The commission also tiptoed past the growing debate over donor disclosure, approving the renewal of a highly unusual exemption from disclosure for a political party.

While the Democratic and Republican national committees file monthly reports listing their donors (at least those of more than $200), the Socialist Workers Party long ago won an exemption from disclosure at the Supreme Court. The FEC periodically reviews the exemption.

The Socialist Workers Party argues that it is so far outside the mainstream of American politics that its donors are subject to harassment, threats and even violence. The high court agreed. The justices also said the party was small, with little political impact, and consequently posed minimal risk of governmental corruption by big money. The corruption rationale is one of the constitutional justifications for mandating disclosure by the major parties and candidates.

The Socialist Workers case is sometimes cited by the conservative critics of disclosure laws, who point to harassment of wealthy Republican donors and supporters of ballot initiatives opposing same-sex marriage.

Just how small and inconsequential is the Socialist Workers Party? The FEC's Ellen Weintraub had this tally: "Only 118 people contributed to the committee in 2012, which was even fewer than the 243 people who contributed in 2008."