October 20, 2008

Thomasenia Duncan, Esq.

General Counsel

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20463

Re: Complaint against Roger Wicker and Wicker for Senate

Dear Ms. Duncan:

Pursuant to 2 U.S.C. § 437g(a)(1), I submit the following as a Complaint against Roger Wicker and Wicker for Senate, his principal campaign committee ("Wicker campaign").  Roger Wicker is a United States Senator from the State of Mississippi and is currently running for reelection in a special election to take place on November 4, 2008.

The record demonstrates that the Wicker campaign has accepted contributions in excess of the limits established by law from both individual contributors and political action committees ("PACs").  The majority of the excess contributions were originally designated for a potential runoff election that would have been held had none of the three original candidates in the special election obtained more than fifty percent of the vote.  However, the third candidate in the race, former United States Representative Ronnie Shows, withdrew on April 17, 2008, removing the potential for a runoff election.  The Wicker campaign continues to hold the funds collected for the runoff election, and has not notified the contributors of those funds that they are entitled to a refund or attempted to obtain a reattribution or redesignation of their contributions as required by law. 

The remaining contributions at issue in this complaint are simply in excess of the legal limits established for individuals and PACs.  As with the excess funds designated for the runoff election, the Wicker campaign is required to seek a redesignation or reattribution of these funds from the contributor, or to refund the excess.  It has not done so.  The Commission should act immediately to investigate this matter and to enjoin future violations of the law.

Roger Wicker is currently running against former governor Ronnie Musgrove for a seat in the United States Senate in a special election to take place on November 4, 2008.  Originally, three candidates filed to run for this senate seat, which was vacated by Trent Lott in December of 2007.  These were Roger Wicker, Ronnie Musgrove, and Ronnie Shows.   In the event that none of these three candidates obtained more than fifty percent of the vote in the special election on November 4, 2008, a runoff election would have been held between the two candidates with the greatest number of votes. 

In preparation for this potential runoff election, the Wicker campaign accepted contributions from some contributors in excess of the $2,300 limit for individuals and the $5,000 limit for PACs and simply designated or requested the contributor designate the excess as being held for the runoff election.  However, Shows withdrew from the race on April 17, 2008, removing the potential for a runoff election.  According to its first quarter financial disclosure and the amendment thereto, its second quarter financial disclosure and the amendment thereto, and its third quarter financial report, the Wicker campaign still holds approximately $209,100 designated for the runoff election.

Additionally, the Wicker campaign has accepted contributions designated solely for the special election that exceed the $2,300 limit for individuals and the $5,000 limit for PACs.  According to its first quarter financial disclosure and the amendment thereto, its second quarter financial disclosure and the amendment thereto, and its third quarter financial report, the Wicker campaign currently holds approximately $10,100 in excess contributions that it has not sought to redesignate, reattribute, or refund, as required by law.

ARGUMENT

A federal candidate is allowed to receive contributions of up to $2,300 per election from individuals and non-prohibited groups.  11 C.F.R. § 110.1(a), (b)(I).  A candidate is also allowed to receive contributions of up to $5,000 per election from multicandidate political action committees.  11 C.F.R. § 110.2(a), b(I).  Both the special election and potential runoff election at issue in this complaint are subject to these limits. 

When a candidate receives a contribution in excess of the limits set forth by law, the candidate may remedy the problem by refunding the excessive amount within 60 days.  11 C.F.R. § 103.3(b)(3).  The candidate may also remedy the problem by seeking a redesignation or reattribution of the excessive contribution from the contributor within 60 days.  See 11 C.F.R. § § 103.3(b)(3), 110.1(b)(5)(ii)(B), (k)(2), (k)(3)(ii)(B).  The redesignation or reattribution process also requires notice to the contributor that they are entitled to a refund of the part of their contribution that exceeds the limits established by law. 11 C.F.R. § 110.1(b)(5).

The Wicker campaign was, or should have been, on notice as of the date of Shows' withdrawal from the race, April 17, 2008, that contributions received from individual donors and PACs whose combined totals for the special election and runoff election exceeded $2,300 and $5,000, respectively, were in excess of the limits set by law.  Accordingly, within 60 days of Shows' withdrawal, the Wicker campaign was required to either (a) request that those contributors whose combined totals for the special election and runoff election exceeded legal limits redesignate or reattribute their excess funds, and notify them that they were entitled to a refund; or (b) simply refund the excess funds to those contributors.  The Wicker campaign filed its second quarter financial report on July 15, 2008, more than 60 days after Shows' withdrawal from the race.  It amended its second quarter financial report on September 18, 2008.  It filed its third quarter report on October 14, 2008.  Nothing in those reports indicates that the Wicker campaign has attempted to refund, redesignate, or reattribute the excessive contributions collected for the runoff election.  The Wicker campaign is therefore in violation of the relevant administrative and federal law.

In the alternative, since the runoff election is now an impossibility, the situation of the Wicker campaign with regard to the funds designated for the runoff election is substantially similar to that faced by a hypothetical candidate who loses in a primary but has already raised and designated funds for the general election.  In such a case, that hypothetical candidate must refund the contributions raised for the general election to their contributors within 60 days of the primary.  See 11 C.F.R. § § 102.9(e), 110.1(b)(3)(i).  By analogy, in the current case, the Wicker campaign was placed in substantially same position with regard to the money it has raised for the runoff election when Shows withdrew from the race as the hypothetical candidate who loses a primary.  Both received contributions for elections in which they can no longer participate.  In the case of the Wicker campaign, the election cannot even occur under any set of circumstances.  Accordingly, the Wicker campaign should have simply refunded any funds it collected and designated for the runoff election within 60 days of Shows' withdrawal from the race.

Finally, the Wicker campaign has accepted contributions from individuals and PACs that exceed legal limits and that have been designated exclusively for the special election.  As with the excess funds collected for the runoff election, within 60 days of receipt, the Wicker campaign was required to (a) request that those contributors whose combined totals for the special election exceeded legal limits redesignate or reattribute their excess funds, and notify them that they were entitled to a refund; or (b) refund the excess funds to their respective contributors.  The Wicker campaign has not done so, and is therefore in violation of the relevant administrative and federal law.

The contributors whose combined contributions to the Wicker campaign for the runoff election and the special election currently exceed legal limits are set forth below:

Name of PAC	Total Amount Given For Both Elections	Amount Over Contribution Limit of $5,000
Battle Born PAC	$10000	$5000.00
BanCorp South PAC	$10000	$5000.00
Next Century Fund	$10000	$5000.00
Tallahatchee Creek PAC	$10000	$5000.00
Americans for Competition in Aerospace	$10000	$5000.00
National Restaurant Association PAC	$10000	$5000.00
Defend America PAC	$10000	$5000.00
Freedom Fund	$10000	$5000.00
Bluegrass Committee PAC	$10000	$5000.00
National Cable & Telecommunications PAC	$10000	$5000.00
Campaign For Americas Future	$10000	$5000.00
America General Contractor Association (AGC) PAC	$10000	$5000.00
Commerce Hope Innovation & Progress PAC	$10000	$5000.00
Senate Majority Fund	$10000	$5000.00
Responsibility & Freedom Work PAC	$10000	$5000.00
Employees of Northrop Grumman PAC	$10000	$5000.00
Tenn PAC	$10000	$5000.00
Senate Victory Fund	$10000	$5000.00
EADS	$10000	$5000.00
AT&T Federal PAC	$7000	$2000.00
Total Excessive Donations from PACs		$97,000

Individual Name	Total Amount Given for Both Elections	Amount Over Limit ($2,300)
Ann Wortley Lavin	$4,600	$2,300.00
Anne Wood	$4,600	$2,300.00
Barry Bridgforth	$4,600	$2,300.00
Bessie Linn Crane	$4,600	$2,300.00
Bill Hudson	$4,600	$2,300.00
Bobby Wood	$4,600	$2,300.00
C Wayne Roberts	$4,600	$2,300.00
Chip Crane	$4,600	$2,300.00
Cyd Dunlap	$4,600	$2,300.00
Donna Barksdale	$4,600	$2,300.00
FE Holladay	$4,600	$2,300.00
Hollis Cheek	$4,600	$2,300.00
James Barksdale	$4,600	$2,300.00
Jan Mounger	$4,600	$2,300.00
Jean Ellmore	$4,600	$2,300.00
Jenny Crane	$4,600	$2,300.00
Joe Sanderson	$4,600	$2,300.00
Joel Dunnagin	$4,600	$2,300.00
John Palmer	$4,600	$2,300.00
Johnny Crane	$4,600	$2,300.00
Katherine Sanderson	$4,600	$2,300.00
Kathleen Mansour	$4,600	$2,300.00
L Herbert Stumberg	$4,600	$2,300.00
Larry Johnson	<