As we recently predicted the Supreme Court’s decision in United States v. Windsor striking down part of the Defense of Marriage Act is prompting the FEC to reconsider, and likely revise, its decision in an earlier Advisory Opinion, 2013-02 (“Winslow I”), that the definition of “spouse” under federal election law did not apply to same-sex couples married under state law.

In two days, the FEC will consider a draft opinion, “Winslow II,” which would reverse the FEC’s earlier position.  The specific issue addressed in Winslow II is whether both partners in a married couple can contribute up to the limit even if only one spouse has an income.  The answer in Winslow I was “yes”—if the married couple consists of a man and a woman.  Under Winslow I, however, a same-sex couple married under the law of their state would be at risk of violating a criminal prohibition against contributing in the name of another if both contributed and only one spouse had an income.

Winslow II would clarify that, in the absence of DOMA, the term “spouse,” as used in 11 C.F.R. § 110.1(i), would be defined based on state law.  As a result, both partners in a same-sex marriage would be permitted to make campaign contributions even if only one partner had an income.  The draft advisory opinion is open for written comment until 12:00 pm Eastern on July 24, 2013.

As we previously noted, the Supreme Court’s decision may impact more than contributions by spouses, including the scope of the restricted class for corporate or union communications.  If the FEC adopts the position in the draft Winslow II opinion, there are other aspects of federal election law that may be updated to account for the demise of DOMA.