The State of Campaign Finance Policy:
Recent Developments and Issues for Congress
R. Sam Garrett
Specialist in American National Government
June 23, 2014
Congressional Research Service
7-5700
www.crs.gov
R41542
The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Summary
Major changes have occurred in campaign finance policy since 2002, when Congress
substantially amended campaign finance law via the Bipartisan Campaign Reform Act (BCRA).
The Supreme Court’s 2010 ruling in Citizens United and a related lower-court decision,
SpeechNow.org v. FEC, arguably represent the most fundamental changes to campaign finance
law in decades. Citizens United lifted a previous ban on corporate (and union) independent
expenditures advocating election or defeat of candidates. SpeechNow permitted unlimited
contributions to such expenditures and facilitated the advent of super PACs. Although campaign
finance policy remains the subject of intense debate and public interest, there have been few
legislative or regulatory changes to respond to the 2010 court rulings. This report considers these
and other developments in campaign finance policy and comments on areas of potential conflict
and consensus. In another recent major change, the Supreme Court invalidated aggregate
contribution limits in April 2014 (McCutcheon v. FEC).
Legislative activity to respond to the rulings has focused on the DISCLOSE Act, which passed
the House during the 111th Congress, and was reintroduced during the 112th and 113th Congresses
(H.R. 148). Recent alternatives, which include some elements of DISCLOSE, include 113th
Congress bills such as Senators Wyden and Murkowski’s S. 791, or proposals that would require
additional disclosure from certain 501(c) groups.
Two campaign finance bills have become law during the 113th Congress. In December 2013,
President Obama signed H.R. 3487. The law extends Federal Election Commission (FEC)
authority to conduct the Administrative Fine Program. In April 2014, President Obama signed
H.R. 2019, which terminates public financing for presidential nominating conventions. Other bills
have been the subject of hearings, markups, or both in the House or Senate. H.R. 94 and H.R. 95
would repeal part or all of the presidential public financing program. H.R. 1994 would repeal the
Election Assistance Commission and return some functions to the FEC. S. 375 would require
Senate political committees to electronically file campaign finance reports with the FEC. Two
appropriations measures contain provisions related to campaign finance. H.R. 2786 would
prohibit disclosure of certain political spending as a condition of the government-contracting
process. S. 1371 would require electronic filing of Senate campaign finance reports. S.J.Res. 19
proposes a constitutional amendment permitting additional regulation of campaign-related money.
A hearing is scheduled on H.R. 186, which would permit candidates to designate someone other
than the campaign treasurer to disburse funds if the candidate died.
Debate has also continued at federal agencies and in the courts. Debate in Congress and
elsewhere has continued over the FEC’s enforcement practices. Amid apparent stalemate at the
FEC, some observers have called for an increased role for federal agencies, such as the Federal
Communications Commission, Internal Revenue Service, or Securities and Exchange
Commission in policy areas related to campaign finance policy—a topic that remains
controversial. In addition, on September 23, 2013, the Senate confirmed two nominees to the
Federal Election Commission.
This version of the report includes updated material that emphasizes the issues most prominently
before the 113th Congress. It also discusses foundational information about major elements of
campaign finance policy. Some issues discussed in previous versions of the report, which appear
to be less timely than they were in the past, have been excluded from this version. This report will
be updated occasionally to reflect major developments.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Contents
Introduction ...................................................................................................................................... 1
Development of Modern Campaign Finance Law ........................................................................... 3
Policy Background .................................................................................................................... 3
The Federal Election Campaign Act (FECA) ............................................................................ 4
The Bipartisan Campaign Reform Act (BCRA) and Beyond .................................................... 5
What Has Changed Most Recently and What Has Not? ........................................................... 6
What Has Changed .............................................................................................................. 7
What Has Not Changed ..................................................................................................... 11
Potential Policy Considerations and Emerging Issues for Congress ............................................. 15
Activity Thus Far During the 113th Congress .......................................................................... 15
112th Congress ......................................................................................................................... 18
Emerging or Ongoing Policy Issues in Brief ........................................................................... 18
Disclosure to Agencies Other than the FEC ...................................................................... 18
Revisiting Disclosure Requirements ................................................................................. 19
Revisiting Contribution Limits .......................................................................................... 22
FEC Issues ......................................................................................................................... 23
Public Financing Issues ..................................................................................................... 25
IRS Notice of Proposed Rulemaking Concerning Certain 501(c) Entities ....................... 26
Authority to Disburse Campaign Funds ............................................................................ 27
Conclusion ..................................................................................................................................... 28
Tables
Table 1. Federal Contribution Limits, 2013-2014 ......................................................................... 13
Table 2. Legislation Related to Campaign Finance that Has Advanced Beyond
Introduction, 113th Congress ....................................................................................................... 15
Table 3. Current Members of the Federal Election Commission ................................................... 24
Contacts
Author Contact Information........................................................................................................... 29
Congressional Research Service
The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Introduction
Federal law has regulated money in elections for more than a century.1 Concerns about limiting
the potential for corruption and informing voters have been at the heart of that law and related
regulations and judicial decisions. Restrictions on private money in campaigns, particularly large
contributions, have been a common theme throughout the history of federal campaign finance
law. The roles of corporations, unions, interest groups, and private funding from individuals have
attracted consistent regulatory attention. Congress has also required that certain information about
campaigns’ financial transactions be made public. Collectively, three principles embodied in this
regulatory tradition—limits on sources of funds, limits on contributions, and disclosure of
information about these funds—constitute ongoing themes in federal campaign finance policy.
Throughout most of the 20th century, campaign finance policy was marked by broad legislation
enacted sporadically. Major legislative action on campaign finance issues remains rare. Since the
1990s, however, momentum on federal campaign finance policy, including regulatory and judicial
action, has arguably increased. Congress last enacted major campaign finance legislation in 2002.
The Bipartisan Campaign Reform Act (BCRA) largely banned unregulated soft money2 in federal
elections and restricted funding sources for pre-election broadcast advertising known as
electioneering communications. As BCRA was implemented, regulatory developments at the
Federal Election Commission (FEC), and some court cases, stirred controversy and renewed
popular and congressional attention to campaign finance issues. Since BCRA, Congress has also
continued to explore legislative options and has made comparatively minor amendments to the
nation’s campaign finance law.
Some of the most recent notable campaign finance developments have occurred at the Supreme
Court. On April 2, 2014, the Court invalidated aggregate contribution limits in McCutcheon v.
1 The 1907 Tillman Act (34 Stat. 864), which prohibited federal contributions from nationally chartered banks and
corporations, is generally regarded as the first major federal campaign finance law. The 1925 Federal Corrupt Practices
Act (43 Stat. 1070) was arguably the first federal statute combining multiple campaign finance provisions, particularly
disclosure requirements first enacted in 1910 and 1911 (36 Stat. 822 and 37 Stat. 25). An 1867 statute barred requiring
political contributions from naval yard workers (14 Stat. 489 (March 2, 1867)). This appears to be the first federal law
concerning campaign finance. The Pendleton Act (22 Stat. 403), which created the civil service system is also
sometimes cited as an early campaign finance measure because it banned receiving a public office in exchange for a
political contributions (see 22 Stat. 404). For additional historical discussion of the evolution of campaign finance law
and policy, see Anthony Corrado et al., The New Campaign Finance Sourcebook (Washington, DC: Brookings
Institution Press, 2005), pp. 7-47. See also, for example, Kurt Hohenstein, Coining Corruption: The Making of the
American Campaign Finance System (DeKalb, IL: Northern Illinois University Press, 2007), Robert E. Mutch,
Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law (New York: Praeger, 1988),
Raymond J. La Raja, Small Change: Money, Political Parties, and Campaign Finance Reform (Ann Arbor, MI:
University of Michigan Press, 2008), pp. 43-80, and Money and Politic$, ed. Paula Baker (University Park, PA: The
Pennsylvania State University Press, 2002).
2 Soft money is a term of art referring to funds generally believed to influence federal elections but not regulated under
federal election law. Soft money stands in contrast to hard money. The latter is a term of art referring to funds that are
generally subject to regulation under federal election law, such as restrictions on funding sources and contribution
amounts. These terms are not defined in federal election law. For an overview, see, for example, David B. Magleby,
“Outside Money in the 2002 Congressional Elections,” in The Last Hurrah? Soft Money and Issue Advocacy in the
2002 Congressional Elections, ed. David B. Magleby and J. Quin Monson (Washington: Brookings Institution Press,
2004), pp. 10-13.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
FEC. “Base” limits capping the amounts that donors may give to individual candidates still
apply.3
An arguably more consequential ruling occurred four years earlier in Citizens United v. Federal
Election Commission.4 In its highly anticipated January 21, 2010, Citizens United ruling, the
Court lifted the long-standing Federal Election Campaign Act (FECA) prohibition on
corporations—and, implicitly, unions—using their general treasury funds for political
advertisements known as independent expenditures and electioneering communications.
Independent expenditures explicitly call for election or defeat of political candidates (known as
express advocacy), may occur at any time, and are usually (but not always) broadcast
advertisements. They must also be uncoordinated with the campaign in question.5 Electioneering
communications are defined only as broadcast advertising, are aired during specific pre-election
windows, and might discuss a candidate, but do not explicitly call for election or defeat (known
as issue advocacy).6 Additional discussion appears later in this report.
The Citizens United ruling spurred substantial legislative action during the 111th Congress and
continued interest during the 112th and 113th Congresses.7 The ruling was, however, only the
latest—albeit perhaps the most monumental—shift in federal campaign finance policy to occur in
recent years. In another 2010 decision, SpeechNow.org v. Federal Election Commission, the U.S.
Court of Appeals for the District of Columbia held that contributions to political action
committees (PACs) that make only independent expenditures cannot be limited—a development
that led to formation of “super PACs.”8 Campaigns, parties, and other groups must adapt to these
new realities, just as Congress and federal agencies must decide how or whether to respond. In
addition, Congress, courts, the FEC, and other administrative agencies continue to examine
various other campaign finance policy matters.
As Congress considers how to proceed, it may be appropriate to take stock of the current
landscape and to examine what has changed, what has not, and which policy issues and options
might be relevant. This report provides a resource for that discussion. It includes an overview of
selected recent events in campaign finance policy and comments on how those events might
affect future policy considerations. The most prominent issues are directly related to Citizens
United and SpeechNow. Others, such as public financing and FEC matters, would be timely
regardless of recent litigation. Historical themes of limiting potential corruption and promoting
3 For additional policy discussion, as well as citations to other CRS products that cover legal issues, see CRS Report
R43334, Campaign Contribution Limits: Selected Questions About McCutcheon and Policy Issues for Congress, by R.
Sam Garrett.
4 130 S. Ct. 876 (2010). For legal analyses of the case, see CRS Report R41045, The Constitutionality of Regulating
Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC, by L. Paige
Whitaker; and CRS Report R41096, Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues,
by L. Paige Whitaker et al.
5 On the definition of independent expenditures, see 2 U.S.C. 431 §17.
6 On the definition of electioneering communications, see 2 U.S.C. 434 §(f)(3).
7 For additional discussion of activity during the 111th Congress, see CRS Report R41054, Campaign Finance Policy
After Citizens United v. Federal Election Commission: Issues and Options for Congress, by R. Sam Garrett; and CRS
Report R41264, The DISCLOSE Act: Overview and Analysis, by R. Sam Garrett, L. Paige Whitaker, and Erika K.
Lunder.
8 For additional discussion of SpeechNow, see CRS Report RS22895, 527 Groups and Campaign Activity: Analysis
Under Campaign Finance and Tax Laws, by L. Paige Whitaker and Erika K. Lunder. On super PACs, see CRS Report
R42042, Super PACs in Federal Elections: Overview and Issues for Congress, by R. Sam Garrett.
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transparency underlie the debate on each of these issues and on campaign finance policy as
a whole.
Before proceeding, explaining the report’s boundaries may help readers. This report is intended to
provide an accessible overview of major policy issues facing Congress. Citations to other CRS
products, which provide additional information, appear where relevant. The report discusses
selected litigation to demonstrate how those events have changed the campaign finance landscape
and affected the policy issues that may confront Congress, but it is not a constitutional or legal
analysis. Finally, this version of the report contains both additions of new material and deletions
of old material compared with previous versions. This update emphasizes those topics that appear
to be most relevant for the 113th Congress, while also providing historical background that is
more broadly applicable.
Development of Modern Campaign Finance Law
Policy Background
Dozens or hundreds of campaign finance bills have been introduced in each Congress since the
1970s. In fact, more than 1,000 campaign finance measures have been introduced since the 93rd
Congress (1973-1974).9 Nonetheless, major changes in campaign finance law have been rare. A
generation passed between FECA and BCRA, the two most prominent campaign finance statutes
of the past 50 years. Federal courts and the FEC played active roles in interpreting and
implementing both statutes and others. The Citizens United and SpeechNow decisions appear to
represent the next chapter in campaign finance policy and are the focus of recent attention in
Congress and elsewhere.
Over time and in all facets of the policy process, anti-corruption themes have been consistently
evident. Specifically, federal campaign finance law seeks to limit corruption or apparent
corruption in the lawmaking process that might result from monetary contributions. Campaign
finance law also seeks to inform voters about sources and amounts of contributions. In general,
Congress has attempted to limit potential corruption and increase voter information through two
major policy approaches:
• limiting sources and amounts of financial contributions and
• requiring disclosure about contributions and expenditures.
Another hallmark of the nation’s campaign finance policy concerns spending restrictions.
Congress has occasionally placed restrictions on the amount candidates can spend, as it did
initially through FECA. Today, as discussed later in this report, candidates and political
9 This figure is a CRS estimate and may understate the total number of relevant bills. This estimate is based on a search
of the Legislative Information System (LIS) for bills introduced between the 93rd and 113th Congresses that included
the terms “campaign finance” or “Federal Election Campaign Act” in the bill title or summary. The search was limited
to measures referred to the Committee on House Administration or Senate Committee on Rules and Administration.
Other bills not reflected here may also be relevant, just as some of the bills included here are not principally related to
campaign finance. The bills are also not all unique; some include identical legislative language introduced in multiple
Congresses and in both chambers.
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committees can generally spend unlimited amounts on their campaigns, as long as those funds are
not coordinated with other parties or candidates.10
The Federal Election Campaign Act (FECA)
Modern campaign finance law was largely shaped in the 1970s, particularly through FECA.11
First enacted in 1971 and substantially amended in 1974, 1976, and 1979, FECA remains the
foundation of the nation’s campaign finance law.12 As originally enacted, FECA subsumed
previous campaign finance statutes, such as the 1925 Corrupt Practices Act, which, by the 1970s,
were largely regarded as ineffective, antiquated, or both.13 The 1971 FECA principally mandated
reporting requirements similar to those in place today, such as quarterly reporting of a political
committee’s receipts and expenditures. Subsequent amendments to FECA played a major role in
shaping campaign finance policy as it is understood today. In brief:
• Among other requirements, the 1974 amendments, enacted in response to the
Watergate scandal, placed contribution and spending limits on campaigns. The
1974 amendments also established the FEC.
• After the 1974 amendments were enacted, the first in a series of prominent legal
challenges (most of which are beyond the scope of this report) came before the
Supreme Court of the United States.14 In its landmark Buckley v. Valeo (1976)
ruling, the Court declared mandatory spending limits unconstitutional (except for
publicly financed presidential candidates) and invalidated the original
appointment structure for the FEC.
• Congress responded to Buckley through the 1976 FECA amendments, which
reconstituted the FEC, established new contribution limits, and addressed various
PAC and presidential public financing issues.
• The 1979 amendments simplified reporting requirements for some political
committees and individuals.
To summarize, the 1970s were devoted primarily to establishing and testing limits on
contributions and expenditures, creating a disclosure regime, and constructing the FEC to
administer the nation’s campaign finance laws.
Despite minor amendments, FECA remained essentially uninterrupted for the next 20 years.
Although there were relatively narrow legislative changes of FECA and other statutes, such as the
10 Political committees include candidate committees, party committees, and PACs. See 2 U.S.C. §431(4).
11 FECA is 2 U.S.C. §431 et seq. Congress first addressed modern campaign finance issues in the 1970s through the
1971 Revenue Act, which established the presidential public financing program. The 1970s are primarily remembered,
however, for enactment of and amendments to FECA. For additional discussion of presidential public financing,
including an initial 1960s public financing program that was quickly repealed, see CRS Report RL34534, Public
Financing of Presidential Campaigns: Overview and Analysis, by R. Sam Garrett.
12 On the 1971 FECA, see P.L. 92-225. On the 1974, 1976, and 1979 amendments, see P.L. 93-443, P.L. 94-283, and
P.L. 96-187 respectively.
13 The Corrupt Practices Act, which FECA generally supersedes, is 43 Stat. 1070.
14 For additional discussion, see CRS Report RL30669, The Constitutionality of Campaign Finance Regulation:
Buckley v. Valeo and Its Supreme Court Progeny, by L. Paige Whitaker.
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1986 repeal15 of tax credits for political contributions, much of the debate during the 1980s and
early 1990s focused on the role of interest groups, especially PACs.16
The Bipartisan Campaign Reform Act (BCRA) and Beyond
By the 1990s, attention began to shift to perceived loopholes in FECA. Two issues—soft money
and issue advocacy (issue advertising)—were especially prominent. Soft money is a term of art
referring to funds generally perceived to influence elections but not regulated by campaign
finance law. At the federal level before BCRA, soft money came principally in the form of large
contributions from otherwise prohibited sources, and went to party committees for “party-
building” activities that indirectly supported elections. Similarly, issue advocacy traditionally fell
outside FECA regulation because these advertisements praised or criticized a federal candidate—
often by urging voters to contact the candidate—but did not explicitly call for election or defeat
of the candidate (which would be express advocacy).
In response to these and other concerns, BCRA specified several reforms.17 Among other
provisions, the act banned national parties, federal candidates, and officeholders from raising soft
money in federal elections; increased most contribution limits; and placed additional restrictions
on pre-election issue advocacy. Specifically, the act’s electioneering communications provision
prohibited corporations and unions from using their treasury funds to air broadcast ads referring
to clearly identified federal candidates within 60 days of a general election or 30 days of a
primary election or caucus.
After Congress enacted BCRA, momentum on federal campaign finance policy issues arguably
shifted to the FEC and the courts. Implementing and interpreting BCRA were especially
prominent issues. Noteworthy post-BCRA events include the following:
• The Supreme Court upheld most of BCRA’s provisions in a 2003 facial challenge
(McConnell v. Federal Election Commission).18
• Over time, the Court held aspects of BCRA unconstitutional as applied to
specific circumstances. These included a 2008 ruling related to additional
fundraising permitted for congressional candidates facing self-financed
opponents (the “Millionaire’s Amendment,” Davis v. Federal Election
Commission) and a 2007 ruling on the electioneering communication provision’s
restrictions on advertising by a 501(c)(4) advocacy organization (Wisconsin Right
to Life v. Federal Election Commission).19
15 See P.L. 99-514 §112. Congress repealed a tax deduction for political contributions in 1978. See P.L. 95-600 §113.
16 See, for example, Robert E. Mutch, Campaigns, Congress, and Courts: The Making of Federal Campaign Finance
Law (New York: Praeger, 1988); and Risky Business? PAC Decisionmaking in Congressional Elections, ed. Robert
Biersack, Clyde S. Wilcox, and Paul S. Herrnson (Armonk, NY: M.E. Sharpe, 1994).
17 BCRA is P.L. 107-155; 116 Stat. 81. BCRA amended FECA, which appears at 2 U.S.C. §431 et seq. BCRA is also
known as McCain-Feingold.
18 For additional discussion, see CRS Report RL32245, Campaign Finance Law: A Legal Analysis of the Supreme
Court Ruling in McConnell v. FEC, by L. Paige Whitaker; and CRS Report RL30669, The Constitutionality of
Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny, by L. Paige Whitaker.
19 For additional discussion, see CRS Report RS22920, Campaign Finance Law and the Constitutionality of the
“Millionaire’s Amendment”: An Analysis of Davis v. Federal Election Commission, by L. Paige Whitaker; CRS Report
RS22687, The Constitutionality of Regulating Political Advertisements: An Analysis of Federal Election Commission v.
(continued...)
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• Since 2002, the FEC has undertaken several rulemakings related to BCRA and
other topics. Complicated subject matter, protracted debate among
commissioners, and litigation have made some rulemakings lengthy and
controversial.20
• Congress has also enacted some additional amendments to campaign finance law
since BCRA. Most notably, the 2007 Honest Leadership and Open Government
Act (HLOGA) placed new disclosure requirements on lobbyists’ campaign
contributions (certain bundled contributions) and restricted campaign travel
aboard private aircraft.21
What Has Changed Most Recently and What Has Not?
Congress most recently considered major campaign finance legislation in response to the 2010
Citizens United decision. The Senate declined to amend federal campaign finance law in response
to the decision, although the DISCLOSE Act passed the House during the 111th Congress
(discussed below). Neither chamber passed changes to campaign finance law during the 112th
Congress. The 113th Congress has also witnessed relatively little legislative action beyond
introduction on campaign finance matters, although how or whether to address the post-Citizens
United environment continues to be a major area of emphasis among those pursuing legislation,
oversight, or both. As noted below, congressional attention to FEC matters and pending litigation
also appears to be on the horizon during the 113th Congress.
The FEC has not issued new rules to implement the 2010 SpeechNow and Citizens United
decisions. After disagreement throughout 2011, in December 2011 FEC commissioners approved
a notice of proposed rulemaking (NPRM) posing questions about some aspects of what form
post-Citizens United rules should take.22 The agency held a hearing on the NPRM in March 2012.
A final rulemaking calendar is unclear. Whatever the rulemaking outcome, Citizens United makes
clear that corporations and unions may now make unlimited IEs supporting or opposing particular
candidates and ECs that refer to those candidates during pre-election periods. In addition, in July
2010, the FEC approved two relevant advisory opinions (AOs). Afterward, some corporations and
other organizations began making previously prohibited expenditures or raising previously
prohibited funds for electioneering communications or independent expenditures. Discussion of
other ongoing agency matters appears in the “FEC Issues” section of this report.
Following these developments (especially Citizens United), some have suggested that campaign
finance policy has been fundamentally altered. As the following discussion shows, some major
(...continued)
Wisconsin Right to Life, Inc., by L. Paige Whitaker; and CRS Report RL34324, Campaign Finance: Legislative
Developments and Policy Issues in the 110th Congress, by R. Sam Garrett.
20 For example, rulemakings on various BCRA provisions resulted in a series of at least three lawsuits covering six
years. These are the Shays and Meehan v. Federal Election Commission cases.
21 For additional discussion, see CRS Report R40091, Campaign Finance: Potential Legislative and Policy Issues for
the 111th Congress, by R. Sam Garrett. HLOGA is primarily an ethics and lobbying statute. For additional discussion,
see, for example, CRS Report R40245, Lobbying Registration and Disclosure: Before and After the Enactment of the
Honest Leadership and Open Government Act of 2007, by Jacob R. Straus.
22 Federal Election Commission, “Independent Expenditures and Electioneering Communications by Corporations and
Labor Organizations,” 248 Federal Register 80803, December 27, 2011.
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historical provisions have been invalidated. Other hallmarks of campaign finance policy remain
unchanged.
What Has Changed
Unlimited Corporate and Union Spending on Independent Expenditures and
Electioneering Communications
In January 2010, the Supreme Court issued a 5-4 decision in Citizens United v. Federal Election
Commission.23 In brief, the opinion invalidated FECA’s prohibitions on corporate and union
treasury funding of independent expenditures and electioneering communications.24 As a
consequence of Citizens United, corporations and unions are now free to use their treasury funds
to air political advertisements explicitly calling for election or defeat of federal or state candidates
(independent expenditures) or advertisements that refer to those candidates during pre-election
periods, but do not necessarily explicitly call for their election or defeat (electioneering
communications). Previously, such advertising would generally have had to be financed through
voluntary contributions raised by PACs affiliated with unions or corporations.
In the 111th Congress, the House and Senate considered various legislation designed to increase
public availability of information (disclosure) about corporate and union spending following
Citizens United. Most congressional attention responding to the ruling focused on the DISCLOSE
Act (H.R. 5175; S. 3295; S. 3628). The House of Representatives passed H.R. 5175, with
amendments, on June 24, 2010, by a 219-206 vote. By a 57-41 vote, the Senate declined to
invoke cloture on companion bill, S. 3628, on July 27, 2010.25 A second cloture vote failed (59-
39) on September 23, 2010.26 No additional action on the bill occurred during the 111th Congress.
Three largely similar versions of the DISCLOSE Act were introduced in the 112th Congress. On
March 29, 2012, the Senate Committee on Rules and Administration held a hearing on the first-
introduced Senate bill, S. 2219 (Whitehouse). On July 10, 2012, Senator Whitehouse introduced a
second version of the bill, S. 3369. The Senate debated a motion to proceed to the measure in July
2012 but declined (by a 53-45 vote) to invoke cloture.27 Representative Van Hollen’s House
companion version of the DISCLOSE Act, H.R. 4010, was referred to the Committees on House
Administration and Judiciary. The bill was not the subject of additional action, although
23 130 S. Ct. 876 (2010). For additional discussion, see CRS Report R41054, Campaign Finance Policy After Citizens
United v. Federal Election Commission: Issues and Options for Congress, by R. Sam Garrett; CRS Report R41045,
The Constitutionality of Regulating Corporate Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens
United v. FEC, by L. Paige Whitaker; CRS Report R41096, Legislative Options After Citizens United v. FEC:
Constitutional and Legal Issues, by L. Paige Whitaker et al.; and CRS Report R41264, The DISCLOSE Act: Overview
and Analysis, by R. Sam Garrett, L. Paige Whitaker, and Erika K. Lunder.
24 As noted elsewhere in this report, BCRA instituted the electioneering communication provision. BCRA amended
FECA. See CRS Report RL30669, The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its
Supreme Court Progeny, by L. Paige Whitaker.
25 “DISCLOSE Act—Motion to Proceed,” Senate vote 220, Congressional Record, daily edition, vol. 156 (July 27,
2010), p. S6285.
26 “DISCLOSE Act—Motion to Proceed—Resumed,” Senate vote 240, Congressional Record, daily edition, vol. 156
(September 23, 2010), p. S7388.
27 “DISCLOSE Act—Motion to Proceed—Continued,” Rollcall vote 180, Congressional Record, daily edition, vol.
158 (July 17, 2012), p. S5072.
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Representative Van Hollen filed a discharge petition on the measure.28 He re-introduced the
DISCLOSE Act as H.R. 148 during the 113th Congress.29 As of this writing, the measure does not
have a Senate companion.
Unlimited Contributions to Independent-Expenditure-Only Political Action
Committees (Super PACs)
Another notable development concerns contributions to a new category of PACs. In brief, on
March 26, 2010, the U.S. Court of Appeals for the District of Columbia held in SpeechNow.org v.
Federal Election Commission30 that contributions to PACs that make only independent
expenditures—but not contributions—could not be constitutionally limited. As a result, these
entities, commonly called super PACs, may accept previously prohibited amounts and sources of
funds, including large corporate, union, or individual contributions used to advocate for election
or defeat of federal candidates. Existing reporting requirements for PACs appear to apply to super
PACs, meaning that contributions and expenditures would have to be disclosed to the FEC.
Additional discussion of super PACs appears in another CRS product.31
Unlimited Contributions to Certain Non-Connected Political Action
Committees (PACs)
As the ramifications of Citizens United and SpeechNow continued to unfold, other forms of
unlimited fundraising were also permitted. In October 2011 the FEC announced that, in response
to an agreement reached in a case brought after SpeechNow (Carey v. FEC),32 the agency would
permit nonconnected PACs—those that are unaffiliated with corporations or unions—to accept
unlimited contributions for use in independent expenditures. The agency directed PACs choosing
to do so to keep the independent expenditure contributions in a separate bank account from the
one used to make contributions to federal candidates.33 As such, nonconnected PACs that want to
raise unlimited sums for independent expenditures are now able to create a separate bank account
and meet additional reporting obligations rather than forming a separate super PAC. Super PACs
have, nonetheless, continued to be an important force in American politics because only some
traditional PACs would qualify for the Carey exemption to fundraising limits.34 Approximately 50
28 Discharge petitions with signatories are available on the Clerk of the House website. In this case, see petition no.
0004, 112th Cong., 2nd Sess., July 12, 2012, http://clerk.house.gov/112/lrc/pd/petitions/DisPet0004.xml.
29 CRS congressional distribution memoranda providing additional comparison of current and previous versions of the
DISCLOSE Act are available to House and Senate requesters from the author of this report. See Comparison of
Selected Versions of the DISCLOSE Act, by R. Sam Garrett, various dates, CRS congressional distribution memoranda.
See also Comparison of Current Law with Selected Versions of the DISCLOSE Act and the Follow the Money Act,
August 20, 2013, by R. Sam Garrett, Erika Lunder, and L. Paige Whitaker. These memoranda were prepared for
distribution to multiple congressional offices.
30 599 F.3d 686 (D.C. Cir. 2010).
31 See CRS Report R42042, Super PACs in Federal Elections: Overview and Issues for Congress, by R. Sam Garrett.
On their role in presidential elections, see also CRS Report R42139, Contemporary Developments in Presidential
Elections, by Kevin J. Coleman, R. Sam Garrett, and Thomas H. Neale.
32 Civ. No. 11-259-RMC (D.D.C. 2011).
33 Federal Election Commission, “FEC Statement on Carey v. FEC: Reporting Guidance for Political Committees that
Maintain a Non-Contribution Account,” press release, October 5, 2011, http://www.fec.gov/press/Press2011/
20111006postcarey.shtml.
34 In particular, the exemption only applies to nonconnected PACs (i.e., those that exist independently as PACs and are
(continued...)
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
nonconnected PACs filed notice with the FEC that they planned to raise unlimited funds during
the 2012 election cycle.35
Some Funding for Publicly Financed State-Level Candidates
On June 27, 2011, the Supreme Court of the United States issued a 5-4 opinion in the
consolidated case Arizona Free Enterprise Club’s Freedom Club PAC et al. v. Bennett and
McComish v. Bennett.36 The decision invalidated portions of Arizona’s public financing program
for state-level candidates.37 The majority opinion, authored by Chief Justice Roberts, held that the
state’s use of matching funds (also called trigger funds, rescue funds, or escape hatch funds)
unconstitutionally burdened privately financed candidates’ free speech and did not meet a
compelling state interest.38
The decision has been most relevant for state-level public financing programs, as a similar
matching fund system does not operate at the federal level. It could, however, affect policy
options for updating the presidential public financing program or proposals to publicly finance
House and Senate campaigns.
U.S. District Court Opinion on Electioneering Communications Disclosure
One of the most controversial elements of campaign finance disclosure concerns identifying
donors to organizations that make electioneering communications and independent
expenditures.39 Although FECA requires that those giving more than $200 “for the purpose of
furthering” IEs must be identified in political committees’ disclosure reports filed with the FEC,
the “purpose of furthering” language does not appear in the portion of FECA covering ECs. FEC
regulations, however, also use the “purpose of furthering” language as a threshold for identifying
donors to corporations or unions making ECs.40 As a result, some contend that the EC regulations
improperly permit those contributing to ECs to avoid disclosure by making unrestricted
contributions (i.e., not “for the purpose of furthering” ECs).41 On the basis of that argument and
others, Representative Van Hollen sued the FEC in 2011. On March 30, 2012, Judge Amy
Berman Jackson, of the U.S. District Court for the District of Columbia, ruled in Van Hollen v.
(...continued)
not affiliated with a parent organization, such as an interest group or labor union).
35 This information is available on the FEC website at http://www.fec.gov/press/press2011/
2012PoliticalCommitteeswithNon-ContributionAccounts.shtml.
36131 S.Ct. 2806 (2011). The slip opinion is available at http://www.supremecourt.gov/opinions/10pdf/10-238.pdf.
37 For additional discussion of state-level public financing, see the “State Experiences with Public Financing” section of
CRS Report RL33814, Public Financing of Congressional Campaigns: Overview and Analysis, by R. Sam Garrett.
38 For a discussion of Court treatment of campaign finance issues since Buckley, see CRS Report RL30669, The
Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny, by L. Paige
Whitaker.
39 See, for example, the “Potential Policy Questions and Issues for Consideration” section in CRS Report R42042,
Super PACs in Federal Elections: Overview and Issues for Congress, by R. Sam Garrett.
40 11 C.F.R. §104.20(c)(9).
41 The same argument is made concerning IE disclosure, although the absence of the “purpose of furthering” language
is unique to EC provisions in FECA.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
FEC that the agency had exceeded its authority by “narrow[ing] the disclosure requirement
[enacted by Congress] through agency rulemaking.”42
Although a legal analysis of the case is beyond the scope of this report, the decision appeared to
require disclosure of the identity of all contributors of at least $1,000 to an entity making ECs,
unless the ECs were made from a segregated account, in which case only those contributors who
donated at least $1,000 to that account would be disclosed.43 On July 27, 2012, the FEC
announced that, pending resolution of an appeal from defendant-intervenors or issuance of new
regulations, those making ECs should report “the name and address of each donor who donated
an amount aggregating $1,000 or more to the person making the disbursement, aggregating since
the first day of the preceding calendar year.”44 The requirement was retroactive to March 30,
2012, the day of Judge Berman Jackson’s ruling. However, on September 18, 2012, the U.S.
Court of Appeals for the District of Columbia Circuit reversed the District Court judgment and
remanded the case, with instructions to refer the matter back to the FEC. On October 4, 2012, the
commission notified the District Court that it would not initiate a rulemaking and would continue
to defend the regulation.45 The case remains pending before the district court.
The potential for additional legal or regulatory action surrounding Van Hollen remains unclear.
Members of the commission issued competing public statements expressing their disagreement
over whether the decision should have been appealed and whether it provides sufficient guidance
to those seeking to comply with the law.46 This development, in addition to other “deadlocked”
votes on some controversial, recent matters, suggests that reaching agreement among at least four
commissioners—as required by FECA—to amend commission rules to implement the Van Hollen
ruling could be difficult.47
Federal Communications Commission Rules on Political Advertising Disclosure
The Federal Election Commission has primary regulatory responsibility for civil enforcement of
campaign finance law. As discussed elsewhere in this report, other agencies also play roles in
some aspects of campaign finance regulation. Telecommunications law administered by the
Federal Communications Commission (FCC)—a topic that is otherwise beyond the scope of this
report—has implications for elements of political advertising transparency.
42 Van Hollen v. FEC, 2012 U.S. Dist. LEXIS 44342 (D.D.C. March 30, 2012).
43 2 U.S.C. §434(f)(2)(E),(F).
44 Federal Election Commission, “FEC Statement on Van Hollen v. FEC,” press release, July 27, 2012,
http://www.fec.gov/press/press2012/20120727_VanHollen_v_FEC.shtml.
45 For a brief overview, see Federal Election Commission, “Van Hollen v. FEC,” Record newsletter, November 2012,
http://www.fec.gov/pages/fecrecord/2012/november/vhvfec.shtml.
46 See Statement of Vice Chair [Ellen] Weintraub and Commissioner [Cynthia] Bauerly regarding the Commission’s
decision not to appeal the decision in Van Hollen v. FEC, Federal Election Commission, Washington, DC , April 27,
2012, http://www.fec.gov/members/statements/ELW_CLB_statement_on_VH_appeal.pdf; and Statement on Van
Hollen v. FEC. Chair Caroline C. Hunter and Commissioners Donald F. McGahn and Matthew S. Petersen, Federal
Election Commission, Washington, DC, n.d., http://www.fec.gov/members/statements/Van_Hollen_statement-
Hunter_McGahn_Petersen.pdf.
47 For an overview of commission voting requirements, see CRS Report RS22780, The Federal Election Commission
(FEC) With Fewer than Four Members: Overview of Policy Implications, by R. Sam Garrett.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
In BCRA, Congress required broadcasters to place information about, among other matters,
political advertising prices and purchases in a “political file” available for public inspection.48
Partially in response to Citizens United, in 2011 the FCC revisited rulemaking proceedings the
agency began in 2007 to consider whether broadcasters should be required to make information
from the political file available on the Internet rather than only through paper records at
individual television stations. On April 27, 2012, the FCC approved new rules to require
television broadcasters affiliated with the ABC, CBS, Fox, and NBC networks in the top 50
designated market areas (DMAs) to post political file information on the commission’s website.49
These rules took effect on August 2, 2012. Stations outside the top 50 DMAs or unaffiliated with
the top four networks must comply as of July 2014.50
The implications of the new rules remain to be seen. The rules do not require that new
information be made public, but the requirement to place ad-contract data online is a change in
the status quo. The new requirements could enhance transparency by making “ad buy” data more
quickly available and easily accessible. Drawing broad conclusions from the data, however, could
be challenging. Broadcasters are required to post their political file information online, not to
aggregate total costs or otherwise summarize advertising purchases in ways typically used by
researchers and policy makers. It also appears that no standard file format is required.51
What Has Not Changed
Federal Ban on Corporate and Union Treasury Contributions
Corporations and unions are still banned from making contributions in federal elections.52 PACs
affiliated with, but legally separate from, those corporations and unions may continue to
contribute to candidates, parties, and other PACs. As noted elsewhere in this report, corporations
and unions may now use their treasury funds to make electioneering communications,
independent expenditures, or both, but this spending is not considered a contribution under
FECA.53
48 The relevant provision appears in §504 of BCRA (P.L. 107-155). Although BCRA primarily amended FECA (2
U.S.C. §431 et seq.), the “political file” requirement amended the 1934 Communications Act. See 47 U.S.C. §315.
49 Federal Communications Commission, Second Report and Order, In the Matter of Standardized and Enhanced
Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, MM Docket No. 00-168,
Washington, DC, April 27, 2012, http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0427/FCC-12-
44A1.pdf. See also Federal Communications Commission, “Standardized and Enhanced Disclosure Requirements for
Television Broadcast Licensee Public Interest Obligations,” 77 Federal Register 27631, May 11, 2012.
50 See ibid and Federal Communications Commission, “Media Bureau Reminds Television Broadcasters of July 1,
2014 Online Political File Deadline,” press release, April 4, 2014, http://transition.fcc.gov/Daily_Releases/
Daily_Business/2014/db0404/DA-14-464A1.pdf.
51 In addition to the rulemaking document cited above, see, for example, Justin Elliott, “FCC-Required Political Ad
Data Disclosures Won't Be Searchable,” ProPublica online, April 27, 2012, http://www.propublica.org/article/fcc-
required-political-ad-data-disclosures-wont-be-searchable.
52 2 U.S.C. §441b.
53 On the definition of contribution, see, in particular, 2 U.S.C. §431(8)(A) and 2 U.S.C. §441(b)(b)(2).
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Federal Ban on Soft Money Contributions to Political Parties
The prohibition on using soft money in federal elections remains in effect. This includes
prohibiting the pre-BCRA practice of large, generally unregulated contributions to national party
committees for generic “party building” activities.
Some Contribution Limits Remain Intact
Pre-existing base limits on contributions to campaigns, parties, and PACs generally remain in
effect. Post-McCutcheon, however, aggregate limits no longer apply. Therefore, although
individuals are, for example, still prohibited from contributing more than $2,600 per candidate,
per election during the 2014 cycle, the total amount of such giving is no longer capped. Table 1
below and the table notes provide additional information, as do other CRS products.54
Despite Citizens United’s implications for independent expenditures and electioneering
communications, the ruling did not affect the prohibition on corporate and union treasury
contributions in federal campaigns. As noted above, SpeechNow permitted unlimited
contributions to independent-expenditure-only PACs (super PACs). The FEC has not issued rules
regarding super PACs per se. In July 2011 the commission issued an advisory opinion stating that
federal candidates (including officeholders) and party officials could solicit funds for super PACs,
but that those solicitations were subject to the limits established in FECA and discussed below.55
Also as noted elsewhere in this report, the FEC announced in October 2011, per an agreement
reached in Carey v. FEC, nonconnected PACs would be permitted to raise unlimited amounts for
independent expenditures if those funds are kept in a separate bank account.
In BCRA, Congress required that most contribution limits be biennially adjusted for inflation.
However, Congress chose not to require adjustment of the PAC limits for inflation. Limits for the
2014 election cycle appear in Table 1.
54 For additional discussion, see CRS Report R43334, Campaign Contribution Limits: Selected Questions About
McCutcheon and Policy Issues for Congress, by R. Sam Garrett; CRS Report WSLG546, Supreme Court To Hear
Constitutional Challenge To Aggregate Contribution Limits, by L. Paige Whitaker; and CRS Report WSLG363, The
Supreme Court, Citizens United, and Further Challenges to Campaign Finance Law: Aggregate Contribution Limits,
by L. Paige Whitaker.
55 This matter was AO 2011-12 (Majority PAC and House Majority PAC). Majority PAC was formerly known as
Commonsense Ten, noted above.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Table 1. Federal Contribution Limits, 2013-2014
(additional limits appear in the table notes)
Recipient
Multicandidate
Principal
Committee (most
National Party
State, District,
Campaign
PACs, including
Committee
Local Party
Contributor
Committee
leadership PACs)
(DSCC; NRCC, etc.)
Committee
Individual $2,600
per
$5,000 per year
$32,400 per year*
$10,000 per year
election*
(combined limit)
Principal Campaign
$2,000 per
$5,000 per year
Unlimited transfers to
Unlimited
Committee
election
party committees
transfers to party
committees
Multicandidate
$5,000 per
$5,000 per year
$15,000 per year
$5,000 per year
Committee (most
election
(combined limit)
PACs, including
leadership PACs)a
State, District, Local
$5,000 per
$5,000 per year
Unlimited transfers to
Unlimited
Party Committee
election
(combined limit)
party committees
transfers to party
(combined limit)
committees
National Party
$5,000 per
$5,000 per year
Unlimited transfers to
Unlimited
Committee
election
party committees
transfers to party
committees
Source: CRS adaptation from FEC, “Contribution Limits for 2013-2014,” http://www.fec.gov/info/
contriblimitschart1314.pdf.
Notes: The table assumes that leadership PACs would qualify for multicandidate status. The original source,
noted above, includes additional information and addresses non-multicandidate PACs (which are relatively rare).
Limits marked with an asterisk (*) are adjusted biennially for inflation. In addition to the invalidated limits noted
in the table, McCutcheon v. FEC invalidated the following aggregate limits: (1) For individuals, a special biennial limit
of $123,200 ($48,600 to al candidate committees and $74,600 to party and PAC committees) also applied.
These amounts were adjusted biennial y for inflation; (2) The national party committee and the national party
Senate committee (e.g., the DNC and DSCC or RNC and NRSC) shared a combined per-campaign limit of
$45,400, which is adjusted biennial y for inflation.
a. Multicandidate committees are those that have been registered with the FEC (or, for Senate committees, the
Secretary of the Senate) for at least six months; have received federal contributions from more than 50
people; and (except for state parties) have made contributions to at least five federal candidates. See 11
C.F.R. §100.5(e)(3). In practice, most PACs attain this status automatical y over time.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Reporting Requirements
As noted above, developments resulting from the Van Hollen case and recent FCC rules require
additional reporting surrounding EC donors and political advertising purchases (respectively).
Nonetheless, disclosure requirements enacted in FECA and BCRA remain intact.56 In general,
political committees must regularly57 file reports with the FEC58 providing information about
• receipts and expenditures, particularly those exceeding an aggregate of $200;
• the identity of those making contributions of more than $200, or receiving more
than $200, in campaign expenditures per election cycle; and
• the purpose of expenses.
Those making independent expenditures or electioneering communications, such as party
committees and PACs, have additional reporting obligations. Among other requirements:
• Independent expenditures aggregating at least $10,000 must be reported to the
FEC within 48 hours; 24-hour reports for independent expenditures of at least
$1,000 must be made during periods immediately preceding elections.59
• The existing disclosure requirements concerning electioneering communications
mandate 24-hour reporting of communications aggregating at least $10,000.60
Donor information must be included for those who designated at least $200
toward the independent expenditure, or $1,000 for electioneering
communications.61
• If 501(c) or 52762 organizations make independent expenditures or electioneering
communications, those activities would be reported to the FEC.63
56 This excludes requirements that were subsequently invalidated, such as reporting associated with the now-defunct
Millionaire’s Amendment (which required additional reporting for self-funding above certain levels and for receipt of
contributions in response to such funding). For additional discussion, see CRS Report RS22920, Campaign Finance
Law and the Constitutionality of the “Millionaire’s Amendment”: An Analysis of Davis v. Federal Election
Commission, by L. Paige Whitaker; and CRS Report RL34324, Campaign Finance: Legislative Developments and
Policy Issues in the 110th Congress, by R. Sam Garrett.
57 Reporting typically occurs quarterly. Pre- and post-election reports must also be filed. Non-candidate committees
may also file monthly reports. See, for example, 2 U.S.C. §434 and the FEC’s Campaign Guide series for additional
discussion of reporting requirements.
58 Unlike other political committees, Senate political committees (e.g., a Senator’s principal campaign committee) file
reports with the Secretary of the Senate, who transmits them to the FEC. See 2 U.S.C. §432(g).
59 See, for example, 2 U.S.C. §434(g).
60 2 U.S.C. §434(f).
61 Higher thresholds apply if the expenditures are made from a designated account. For additional summary
information, see Table 1 in CRS Report R41264, The DISCLOSE Act: Overview and Analysis, by R. Sam Garrett, L.
Paige Whitaker, and Erika K. Lunder. Donor information is reported in regularly filed financial reports rather than in
independent expenditure reports.
62 As the term is commonly used, 527 refers to groups registered with the Internal Revenue Service (IRS) as political
organizations that seemingly intend to influence federal elections. By contrast, political committees (which include
candidate committees, party committees, and political action committees) are regulated by the FEC and federal election
law. There is a debate regarding which 527s are required to register with the FEC as political committees. For
additional discussion, see CRS Report RS22895, 527 Groups and Campaign Activity: Analysis Under Campaign
Finance and Tax Laws, by L. Paige Whitaker and Erika K. Lunder.
63 For additional discussion of these groups, see CRS Report RS21716, Political Organizations Under Section 527 of
(continued...)
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Potential Policy Considerations and Emerging
Issues for Congress
Activity Thus Far During the 113th Congress
As shown in Table 2 below, as of this writing, nine bills in the House and Senate have advanced
beyond introduction during the 113th Congress. Two became law. H.R. 3487 reauthorized the
FEC’s Administrative Fine Program (AFP) until 2018. The bill also permits the commission to
apply the program, which sets standard penalties for late campaign finance filings, to additional
kinds of reports, such as those for independent expenditures. Another enacted bill, H.R. 2019,
repealed public financing for presidential nominating conventions but does not affect
appropriated security funding. The Senate Subcommittee on Crime and Terrorism held an April 9,
2013, hearing on enforcement of campaign finance law. On June 3, 2014, the Senate Judiciary
Committee held a hearing on a proposed constitutional amendment (S.J.Res. 19) that, as
introduced, would permit the states and Congress to regulate “money and in-kind equivalents
with respect to Federal elections.” On June 18, the Judiciary Committee’s Subcommittee on the
Constitution, Civil Rights and Human Rights marked up S.J.Res. 19. By a 5-4 rollcall vote, the
subcommittee favorably reported the measure with subcommittee chairman Durbin’s amendment
in the nature of a substitute (ANS). Unlike the original bill, the ANS would permit Congress and
the states to “regulate and set reasonable limits on the raising and spending of money by
candidates and others to influence elections.” As noted elsewhere in this report, the Senate also
considered nominations to the FEC, and a Committee on House Administration hearing is
scheduled on H.R. 186. That bill would permit candidates to designate someone other than the
campaign treasurer to disburse campaign funds if the candidate died.
Table 2. Legislation Related to Campaign Finance that Has Advanced Beyond
Introduction, 113th Congress
Most Recent
Bill Number
Short Title
Primary Sponsor
Brief Summary
Major Action
H.R. 94
—
Rep. Cole
Would eliminate
Committee on
Presidential Election
House
Campaign Fund
Administration
(PECF) convention
markup held; bill
funding
ordered reported
favorably 06/04/2013
(voice vote);
reported 12/12/2013
(H.Rept. 113-291)
(...continued)
the Internal Revenue Code, by Erika K. Lunder; CRS Report R40183, 501(c)(4)s and Campaign Activity: Analysis
Under Tax and Campaign Finance Laws, by Erika K. Lunder and L. Paige Whitaker and CRS Report RS22895, 527
Groups and Campaign Activity: Analysis Under Campaign Finance and Tax Laws, by L. Paige Whitaker and Erika K.
Lunder.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Most Recent
Bill Number
Short Title
Primary Sponsor
Brief Summary
Major Action
H.R. 95
—
Rep. Cole
Would eliminate
Committee on
PECF and transfer
House
balance to the
Administration
general fund of the
markup held; bill
U.S. Treasury for
ordered reported
use in deficit
favorably 06/04/2013
reduction
(voice vote);
reported 12/12/2013
(H.Rept. 113-292)
H.R. 1994
Election Assistance
Rep. Harper
Would eliminate
Committee on
Commission
Election Assistance
House
Termination Act
Commission and
Administration
assign specific
markup held; bill
National Voter
ordered reported
Registration Act
favorably 06/04/2013
(NVRA) functions to (voice vote);
the FEC
reported 12/12/2013
(H.Rept. 113-293)
H.R. 2019
Gabriel a Miller Kids
Rep. Harper
Relevant provisions
Became law
First Research Act
of amended version
4/3/2014 (P.L. 113-
of bill would
94)
eliminate PECF
convention funding
and convert
amounts to “10-Year
Pediatric Research
Initiative Fund," with
some amounts
available to National
Institutes of Health;
contains health-
research provisions
unrelated to this
reporta
H.R. 2786; see also
Financial Services
Rep. Crenshaw
FY2014 Financial
House
H.R. 3547
and General
Services and General Appropriations
Government
Government (FSGG) Committee
Appropriations Act,
bill; Title V and §735
reported as original
2014; see also
would prohibit
measure (H.Rept.
FY2014
reporting certain
113-172); placed on
Consolidated
political
Union Calendar
Appropriations Act
contributions or
07/23/2013; see also
expenditures as a
§735, H.R. 3547 (P.L.
condition of the
113-76)
government-
contracting process
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Most Recent
Bill Number
Short Title
Primary Sponsor
Brief Summary
Major Action
H.R. 3487
—
Rep. Candice Miller
Extended until 2018
Became law
FEC authority to
12/26/2013 (P.L.
conduct the
113-72)
Administrative Fine
Program, and
expand program
coverage to include
additional reporting,
such as non-
candidate
committees and
independent
expenditures
S. 375
Senate Campaign
Sen. Tester
Would require
Senate Rules and
Disclosure Parity
Senate political
Administration
Act
committees to file
Committee markup
reports
held; reported
electronically and
favorably without
directly with the
written report
FEC
07/24/2013
S. 1371
Financial Services
Sen. Tom Udal
FY2014 Financial
Senate
and General
Services and General Appropriations
Government
Government (FSGG) Committee
Appropriations Act,
bill; §621 would
reported as original
2014
require Senate
measure (S.Rept.
political committees
113-80); placed on
to file reports
Union Calendar
electronically and
07/25/2013
directly with the
FEC
S.J.Res. 19
—
Sen. Tom Udall
Proposed
Subcommittee on
constitutional
the Constitution,
amendment that
Civil Rights and
would permit
Human Rights
Congress and the
markup held,
states to regulate
ordered favorably
“money and in-kind
reported (5-4 vote)
equivalents with
06/18/2014;
respect to Federal
elections”
Senate Judiciary
Committee hearing
held
06/03/2014
Source: CRS analysis of bill texts.
Notes: The table excludes provisions in the Financial Services and General Government (FSGG) legislation
regarding FEC appropriations and other provisions in the bill that might arguably be relevant, such as provisions
concerning IRS training regarding political activities and requirements concerning reimbursement for political
events hosted at the White House. Other measures tangential y related to campaign finance might also be
relevant but are excluded from the table, which focuses on major provisions related to campaign finance issues.
a. For additional information on health-research provisions in the bill, congressional requesters may contact
CRS Analyst Judith Johnson at x77077.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
112th Congress
No major legislation primarily affecting campaign finance policy became law during the 112th
Congress. The House passed two bills, H.R. 359 and H.R. 3463 (similar to H.R. 94 and H.R. 95
respectively in the 113th Congress), that would have repealed part or all of the presidential public
financing program. Language in the 2012 Senate-passed farm bill (S. 3240) also would have
repealed convention financing, but it was not included in the House version of the bill.64 The
House also passed H.R. 406, which would have permitted candidates to name someone other than
the treasurer to disburse campaign funds if the candidate died. In addition, hearings were held on
Citizens United; to oversee the FEC; on legislation to publicly finance congressional campaigns
and to abolish the EAC and transfer some functions to the FEC; and on a draft executive order
that might require additional disclosure of government contractors’ political spending.
Amendments adopted during consideration of unrelated bills (H.R. 1540, H.R. 2017, H.R. 2219,
H.R. 2055, and H.R. 2354)65 had implications for the contracting-disclosure debate. Two bills
containing restrictions on contractor disclosure became law (H.R. 1540 and H.R. 2055).66
Emerging or Ongoing Policy Issues in Brief
Despite ongoing debate about whether or how to respond to Citizens United, there has been
relatively little legislative momentum surrounding campaign finance since the 111th Congress
(2010-2011). Various issues, nonetheless, remain prominent in Congress, the courts, at the FEC,
or elsewhere in the policy community. This section briefly addresses those topics not discussed
above but which appear to remain actively under consideration in Congress or at administrative
agencies. Unless otherwise noted, this version of the report does not devote substantial attention
to issues that appear not to be a major focus during the 113th Congress.
Disclosure to Agencies Other than the FEC
In addition to calls for regulation by the FEC, some lawmakers and interest groups have proposed
that those making certain expenditures—particularly for political advertising—report to other
agencies. Brief discussion appears below.
• Some Members of Congress have proposed providing additional information to
shareholders if the companies in which they hold stock choose to make ECs or
IEs.67 Examples of legislation in the 113th Congress requiring shareholder notice
of or approval for such expenditures include H.R. 1115, H.R. 1116 (Grayson),
H.R. 1734 (Capuano), and S. 824 (Menendez). Other Members, however, oppose
such proposals. As noted elsewhere in this report, appropriations measures have
been used in previous Congresses to prohibit additional disclosures to the SEC.
64 For additional discussion of convention financing, see CRS Report RL34630, Federal Funding of Presidential
Nominating Conventions: Overview and Policy Options, by R. Sam Garrett and Shawn Reese. For additional discussion
of the Senate-passed farm bill, see CRS Report R42552, The 2012 Farm Bill: A Comparison of Senate-Passed S. 3240
and the House Agriculture Committee’s H.R. 6083 with Current Law, coordinated by Ralph M. Chite.
65 See §§823, 713, 10015, 743, and 624 of the bills respectively.
66 See §§823 and 743, respectively.
67 For additional discussion, see CRS Report WSLG530, Controversy about SEC’s Being Asked to Require Disclosure
of Political Donations, by Michael V. Seitzinger.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Some “stand-alone” legislation also proposes to do so, such as H.R. 1626
(Wagner). In late 2013, the Securities and Exchange Commission (SEC) dropped
plans to consider additional corporate disclosure of political spending.68
• In July 2010, citing Citizens United, the SEC issued new “pay-to-play” rules—
which are otherwise beyond the scope of this report—to prohibit investment
advisers from seeking business from municipalities if the adviser made political
contributions to elected officials responsible for awarding contracts for advisory
services.69 The rules do not appear to have significantly affected federal
campaign finance policy. It is possible, however, that they could have
implications for local or state-level officials seeking federal offices from certain
financial-sector fundraising.70 During the spring of 2011, media reports indicated
that the Obama Administration was considering a draft executive order to require
additional disclosure of government contractors’ political spending.71
Implications of such an order would depend on final contents, if the order is
issued. A draft of the order, however, generated attention in Congress and
beyond. The House Committee on Oversight and Government Reform and
Committee on Small Business held a joint hearing on the topic on May 12, 2011.
As noted previously, provisions in an FY2014 appropriations bill, among other
legislation, would prohibit such disclosure as a condition of the contracting
process.
Revisiting Disclosure Requirements
Historically, disclosure aimed at reducing the threat of real or apparent conflicts of interest and
corruption has received bipartisan support. In fact, disclosure typically has been regarded as one
of the least controversial aspects of an otherwise often-contentious debate over the nation’s
campaign finance policy. Disclosure, then, could yield opportunities for cooperation among
members of both major parties and across both chambers. On the other hand, some recent
disclosure efforts have generated controversy. Particularly since the 111th Congress consideration
of the DISCLOSE Act, some lawmakers raised concerns about whether the legislation applied
fairly to various kinds of organizations (e.g., corporations versus unions) and how much
information those airing independent messages rather than making direct candidate contributions
should be required to report to the FEC. Revised versions of the legislation, introduced in the
68 In 2012, the SEC’s contribution to the Office of Information and Regulatory Affairs (OIRA) “Unified Agenda”
(formally the Unified Agenda of Regulatory and Deregulatory Actions) indicated that the agency was considering
developing a rule requiring disclosure of certain corporate political spending. The version of the Unified Agenda
published in the fall of 2013 explained that the SEC was “withdrawing” the proposal but that future action was
possible. On the Unified Agenda, see http://www.reginfo.gov/public/do/eAgendaMain. For brief additional discussion
of the proposed rule, see, for example, Kenneth P. Doyle, “Disclosure of Corporate Political Spending Left Off SEC
Agenda for New Regulations,” Daily Report for Executives, December 3, 2013, p. A-1; and Dina ElBoghdady, “SEC
Drops Disclosures of Corporate Political Spending from its Priority List,” The Washington Post, December 1, 2013, p.
A-8.
69 See Securities and Exchange Commission, “Political Contributions by Certain Investment Advisers,” 75 Federal
Register 41018-41071, July 14, 2010.
70 See, for example, Jake Bernstein, “How an Obscure Federal Rule Could Be Shaking Up Presidential Politics,”
ProPublica, August 28, 2012, http://www.propublica.org/article/how-an-obscure-federal-rule-could-be-shaking-up-
presidential-politics.
71 See, for example, Kenneth P. Doyle, “Anticipated Obama Order Would Require Disclosure of Contractors’ Political
Money,” Daily Report for Executives, April 21, 2011, pp. A-6.
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112th and 113th Congresses, do not contain spending restrictions, although some observers have
questioned whether required reporting could inhibit spending.
Post-Citizens United legislative activity among those who favor additional disclosure has
generally emphasized the DISCLOSE Act, but, as noted elsewhere in this report, some have also
proposed reporting particular kinds of spending to agencies such as the IRS or the SEC. As 501(c)
tax-exempt organizations’ spending has received attention, measures proposing somewhat similar
reporting as DISCLOSE, with additional tax implications (most of which are beyond the scope of
this report) have also emerged. In the 113th Congress, one prominent example includes Senators
Wyden and Murkowski’s Follow the Money Act (S. 791). The bill has not been the subject of
legislative action beyond introduction.72
Other key questions could be which type of disclosure should be required, if any, and of whom
should that disclosure be required. Particularly for those organizations that do not typically have
to report to the FEC (e.g., 527s or for-profit corporations), the House and Senate could require
parity across all those receiving and spending funds affecting elections—even if those entities are
not political committees or explicitly engaging in calls to elect or defeat candidates. Such an
approach could be consistent with the historical emphasis on transparency in modern campaign
finance policy, as noted throughout this report. Requiring additional reporting, however, could
also raise questions about which entities should be regulated as political committees subject to
federal election law—questions that have been controversial in the past.
Additional disclosure poses the advantage of making it easier to track the flow of political money.
Disclosure, however, does not guarantee complete information, nor does it necessarily guard
against all forms of potential corruption. For example, current requirements generally make it
possible to identify which people or organizations were involved in a political transaction. This
information promotes partial transparency, but does not, in and of itself, provide detailed
information about what motivates those transactions or, in some cases, where the funds in
question originated. Additional disclosure requirements from Congress, the FEC, or the IRS could
provide additional clarity.
The Current Disclosure Process: How Reporting and Data Could Affect Policy
Options and Considerations
Due in part to the disclosure requirements discussed above, some information about campaign
fundraising and spending remains publicly unavailable. A variety of practical ramifications
resulting from those requirements also affects availability of campaign finance information. If
Congress chooses to revisit transparency in campaign funding and spending, attention to how
these requirements operate in practice can shed light on which information is available, which is
not, and why. The following selected ramifications, and others, of the current disclosure process
could be relevant as Congress considers what policy problems exist and whether or how those
problems should be addressed.
72 For additional information, see Comparison of Current Law with Selected Versions of the DISCLOSE Act and the
Follow the Money Act, August 20, 2013, by R. Sam Garrett, Erika Lunder, and L. Paige Whitaker; available to
congressional requesters from the authors. The memorandum was prepared for distribution to multiple congressional
offices.
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• Unless meeting the criteria for disclosure,73 corporate or union funds given to an
intermediary (such as a trade association) for use in IEs or ECs do not have to be
publicly reported. Accordingly, the total sources or amounts of corporate or union
funds in federal elections remains unknown.
• Details about campaign spending are often unclear. For example, although
campaign finance reports must contain itemized data providing general
information about the nature of authorized committees’ expenses greater than
$200, political committees have wide latitude to characterize the expenses as
long as the descriptions are not overly vague.74
• Political committees that file regular reports with the FEC do not have to provide
information on spending in the final weeks of the campaign until 30 days after
the general election. Some expenses might carry over to year-end reports. After
reports are filed, additional time is required for the commission or outside
researchers to adjust the data for amended filings and conduct analysis,
particularly concerning individual transactions and fundraising and spending
patterns. In some cases, “final” data are unavailable for several weeks or months.
Paper filing of Senate reports, discussed elsewhere in this report, can also foster
delay (although summary information is generally available within a few days).
• Recent initiatives to enhance the FEC website have made some campaign finance
data far easier to access and analyze (especially for 2010 and later). However,
accessing historical data can remain challenging. In particular, the FEC’s
Disclosure Data Catalog75 provides easier access to data and more complete
documentation than in the past. By contrast, much of the pre-2010 data have not
yet been converted to the new formats and can require substantial time and
technical expertise to access and interpret.
• Estimates (such as those appearing in some media accounts) that rely on partial
data can be valuable and often provide more timely information than complete
filings. However, estimates also require making assumptions that do not
necessarily reflect technical distinctions in the data and among organizations.
These differences may be unimportant for general summaries about which parties
or groups raised or spent funds. More complete data, however, may be more
likely to reflect important legal or regulatory distinctions among groups, account
for amended filings, or address the details of particular transactions, including
transfers among various organizations.
• Estimates sometimes report corporate and union activity differently. In particular,
estimates about union spending might or might not report communications to
members versus independent expenditures or electioneering communications.
Similarly, estimates about corporate spending often include “corporations” as the
73 For additional discussion, see CRS Report R40183, 501(c)(4)s and Campaign Activity: Analysis Under Tax and
Campaign Finance Laws, by Erika K. Lunder and L. Paige Whitaker.
74 For example, listing the purpose of disbursement as “polling” is acceptable, but “outside services” is insufficient. See
11 C.F.R. §104.3(b)(3); 11 C.F.R. §104.3(b)(4). “Polling,” in and of itself, however, does not explain the nature of the
poll, whether the payee conducted the poll, analyzed the data, etc.
75 The catalog is available at http://www.fec.gov/data/.
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term is commonly understood, but do not necessarily include incorporated tax-
exempt organizations or political committees.
• In general, fundraising and spending that is devoted only to issue advocacy is not
publicly disclosed. As such, issue advocacy that arguably affects elections is
often excluded from financial estimates. On the other hand, estimates that mix
issue advocacy and express advocacy can inflate the amount of fundraising or
spending that is truly dedicated to electoral politics.
• Currently, unlike all other federal political committees (except those raising or
spending less than $50,000 annually), Senate campaign committees, party
committees, and PACs are not required to file campaign finance reports
electronically.76 The lack of electronic filing leads to additional delay and cost in
making complete Senate data publicly available. Electronic filing per se is
generally non-controversial, although, in recent Congresses, there has been
debate about whether “stand alone” electronic disclosure measures should be
advanced or whether they should also address other issues.77 Requiring electronic
filing of Senate campaign finance reports might be an area of potential agreement
in disclosure policy. The issue precedes Citizens United and other recent
developments. As such, it is arguably a narrower policy concern, but also
potentially a comparatively modest reform. As noted previously, during the 113th
Congress, the Senate Committee on Rules and Administration held a markup on,
and ordered favorably reported, S. 375, which would require Senate political
committees to file their reports electronically and directly with the FEC rather
than with the Secretary of the Senate, as is the current practice. The measure
appears to have bipartisan support, but previous efforts to mandate electronic
filing of Senate campaign finance reports have become embroiled in controversy
surrounding unrelated amendments. Previously, some Senators also objected, as a
matter of institutional prerogative, to changing the place of filing to the FEC.78
Each of the preceding points could be addressed as individual policy questions (e.g., through
targeted legislation), but may also be a factor in any campaign finance proposal that would
broadly affect disclosure policy. In either case, a potential policy question for Congress is whether
the implications of the current reporting requirements represent “loopholes” that should be closed
or whether existing requirements are sufficient. If additional information is desired, Congress, the
FEC, IRS, or all three could revisit campaign finance law or regulation to require greater clarity
about financial transactions that affect campaigns. As with disclosure generally, the decision to
revisit specific reporting requirements will likely be affected by how much detail is deemed
necessary to prevent corruption or accomplish other goals.
Revisiting Contribution Limits
After Citizens United, one potential concern is how candidates will be able to field competitive
campaigns amid potentially unlimited corporate or union expenditures. One option for providing
76 11 C.F.R. §104.18(a).
77 See, for example, CRS Report R40091, Campaign Finance: Potential Legislative and Policy Issues for the 111th
Congress, by R. Sam Garrett.
78 For historical discussion of the most recent previous debate over electronic filing, from the 111th Congress, see CRS
Report R40091, Campaign Finance: Potential Legislative and Policy Issues for the 111th Congress, by R. Sam Garrett.
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additional financial resources to candidates, parties, or both, would be to raise or eliminate
contribution limits. However, particularly if contribution limits were eliminated, corruption
concerns that motivated FECA and BCRA could reemerge. Raising contribution limits does not
appear to have been actively considered in Congress since BCRA. Another option, which
Congress has occasionally considered in recent years, would be to raise or eliminate current limits
on coordinated party expenditures.79 Coordinated expenditures allow parties to buy goods or
services on behalf of a campaign—in limited amounts—and to discuss those expenditures with
the campaign.80
In a post-Citizens United and post-McCutcheon environment, additional party-coordinated
expenditures could provide campaigns facing increased outside advertising with additional
resources to respond. Permitting parties to provide additional coordinated expenditures may also
strengthen parties as institutions by increasing their relevance for candidates and the electorate. A
potential drawback of this approach is that some campaigns may feel compelled to adopt party
strategies at odds with the campaign’s wishes in order to receive the benefits of coordinated
expenditures.81 Those concerned with the influence of money in politics may object to any
attempt to increase contribution limits or coordinated party expenditures, even if those limits were
raised in an effort to respond to labor- or corporate-funded advertising. Additional funding in
some form, however, may be attractive to those who feel that greater resources will be necessary
to compete in the modern era, or perhaps to those who support increased contribution limits as a
step toward campaign deregulation.
FEC Issues
Federal Election Commission (FEC) matters have been the subject of prominent media attention,
and some legislative activity, during the 113th Congress. Three items appear to be particularly
noteworthy, as discussed below.
• During the summer of 2013, the Senate considered two nominations to the
commission. Both were confirmed by unanimous consent, en bloc with two
unrelated nominations, on September 23, 2013.82 Both commissioners were
sworn in and assumed office in late October.83 As shown in Table 3, Ann Ravel
(D) replaced former Commissioner Bauerly, who resigned from the agency
79 This option would not provide campaigns with additional funding per se, but it could ease the financial burden on
campaigns for those purchases that parties make on the campaign’s behalf.
80 Coordinated party expenditures are subject to limits based on office sought, state, and voting-age population (VAP).
Exact amounts are determined by formula and updated annually by the FEC. For additional discussion, see CRS Report
RS22644, Coordinated Party Expenditures in Federal Elections: An Overview, by R. Sam Garrett and L. Paige
Whitaker; and CRS Report R41054, Campaign Finance Policy After Citizens United v. Federal Election Commission:
Issues and Options for Congress, by R. Sam Garrett.
81 The long-running debate about relationships between parties and candidates is well documented. For a brief
overview, see, for example, Marjorie Randon Hershey, Party Politics in America, 12th ed., pp. 65-83; and Paul S.
Herrnson, Congressional Elections: Campaigning at Home and in Washington, 4th ed., pp. 86-128.
82 Sen. Reid, “Unanimous Consent Request—Executive Calendar,” remarks in the Senate, Congressional Record, daily
edition, vol. 159 (September 23, 2013), p. S6673.; and Sen. Reid, “Executive Calendar,” remarks in the Senate,
Congressional Record, daily edition, vol. 159 (September 23, 2013), p. S6674. The Senate Committee on Rules and
Administration had ordered the nominations favorably reported by voice vote on September 17, 2013.
83 Federal Election Commission, “Two New FEC Commissioners Assume Office; Will Hold Open Meeting on October
31,” press release, October 28, 2013, http://www.fec.gov/press/press2013/news_releases/20131028release.shtml.
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effective February 1, 2013. Lee Goodman (R) replaced former Commissioner
McGahn, whose resignation was effective September 20, 2013.
Table 3. Current Members of the Federal Election Commission
Commissioner
Term Expires/Expired
Date Confirmed
Party Affiliation
Lee E. Goodman
04/30/2015
09/23/2013
Republican
Caroline C. Hunter
04/30/2013
06/24/2008 Republican
(remains in holdover status)
Matthew S. Petersen
04/30/2011
06/24/2008 Republican
(remains in holdover status)
Ann M. Ravel
04/30/2017
09/23/2013
Democrat
Steven T. Walther
04/30/2009
06/24/2008 Independent
(remains in holdover status)
Ellen L. Weintraub
04/30/2007
03/12/2003 Democrat
(remains in holdover status)
Source: Legislative Information System nominations database. Legislative Information System nominations
database. CRS added party affiliation based on the seating chart distributed at FEC meetings.
• During the 113th Congress, FEC enforcement and transparency issues have
attracted attention in Congress and beyond. In the House, the Committee on
House Administration has continued to request documents from the agency about
its enforcement practices. Major attention to the matter appears to have begun in
November 2011, when the Committee on House Administration, Subcommittee
on Elections, held an FEC oversight hearing—the first in almost a decade.
Negotiations between the committee and commission appear to have resulted in
the ongoing effort to approve and publicly release a new FEC enforcement
manual. During the summer of 2013, controversy developed concerning an
Office of General Counsel (OGC) draft of the manual and proposed revisions to
that draft from Republican commissioners. A major source of controversy
appeared to be the extent to which OGC staff should be permitted to initiate
investigations or share information with other agencies (particularly the Justice
Department) without specific commission authorization. Although the manual
was scheduled for consideration at FEC open meetings at least as early as June
2013, it was held over due to disagreements among commissioners about whether
a vote should be held, and if so, when. At a September 12, 2013, open meeting,
commissioners held a lengthy and sometimes acrimonious discussion about when
the manual would be considered and whether a vote to approve a final document
should be held while nominees were pending in the Senate. As of this writing, the
issue remains unresolved. It is also unclear how new commissioners might affect
the debate.
• The commission has issued ad hoc guidance and advisory opinions about
Citizens United and related litigation, but has not yet issued new regulations (or
repealed old ones). The commission held a hearing on a notice of proposed rules
in March 2012, but it is unclear when or whether new rules will be issued. Doing
so would require agreement from at least four of six commissioners, something
that has been difficult for the current commission on some recent, high-profile
issues.
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Public Financing Issues
At the federal level, public financing is limited to presidential campaigns. Additional detail is
available in other CRS products.84 Some supporters of publicly financed elections have suggested
that this option could be a response to Citizens United in various kinds of campaigns. Regardless
of whether public financing is pursued as a Citizens United or SpeechNow response, the
presidential public financing program is widely regarded as needing restructuring if the system is
to remain viable.85 Some argue that the program should be eliminated either partially or entirely.
As this section explains, recent public financing matters before Congress concern efforts to repeal
or amend the presidential public financing program and those to create a congressional public
financing program. On a related note, a 2011 Supreme Court decision (McComish) primarily
affects state-level programs but may be relevant for considerations of federal public financing
options. Of these three areas, the presidential public financing program has received the most
congressional attention recently.
Attempts in the 113th Congress to repeal or restructure the presidential public financing program
mirror similar efforts from other recent Congresses. As noted in Table 2, Congress recently
enacted, and the President signed, legislation repealing federal funding for presidential
nominating conventions.86 The Committee on House Administration has also reported related
measures favorably (H.R. 94; H.R. 95; H.R. 1994). During the 112th Congress, the House passed
a bill (H.R. 359) to repeal the presidential public financing program. Almost a year later, on
December 1, 2011, the House again passed legislation (H.R. 3463) to end the public financing
program. The latter bill combined the approach first passed in H.R. 359 with proposals to
terminate the Election Assistance Commission (EAC). In the Senate, an amendment (containing
text from S. 3257; see also H.R. 5912) to the 2012 Senate-passed farm bill, S. 3240, would have
eliminated the convention funding portion of the presidential public financing program.87 House
measure H.R. 5912 would have also done so, as would Senate bill S. 3312. Another House bill,
H.R. 6448, proposed to modernize the public financing program, but also would have eliminated
convention funding.
In addition to efforts to repeal part or all of the public financing program, some Members have
introduced proposals to restructure the program in an effort to make it more attractive to
candidates. In general, recent proposals to revise the program would include increasing the match
rate for primary contributions from the current 100% to at least 400% of small contributions.
These and similar proposals could provide substantially greater resources to publicly financed
candidates. This approach assumes that sufficient funds would be available in the PECF to cover
the additional match, and that candidates would be willing to participate. Recent debate has also
focused on whether or how the public financing program should maximize small contributions
(e.g., those of less than $200).
84 See CRS Report RL34534, Public Financing of Presidential Campaigns: Overview and Analysis, by R. Sam Garrett;
CRS Report R41604, Proposals to Eliminate Public Financing of Presidential Campaigns, by R. Sam Garrett; and
CRS Report RL34630, Federal Funding of Presidential Nominating Conventions: Overview and Policy Options, by R.
Sam Garrett and Shawn Reese. Ongoing litigation, which is beyond the scope of this report, has placed some aspects of
state-level programs in question.
85 For additional discussion of proposals to publicly finance congressional campaigns, see CRS Report RL33814,
Public Financing of Congressional Campaigns: Overview and Analysis, by R. Sam Garrett.
86 Appropriated security funding is unaffected.
87 The Coburn conventions amendment, no. 2214, passed 95-4; roll call vote no. 162.
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In the 113th Congress, Representative Price reintroduced his 112th Congress bill, H.R. 6448, as
H.R. 270. H.R. 270 is one of three bills introduced in the 113th Congress that would expand
public financing for federal candidates. In addition to reforming the presidential public financing
program, the Price legislation also proposes a new program to publicly finance House campaigns.
Three other 113th Congress bills, H.R. 268 (Sarbanes), H.R. 20 (Sarbanes, which appears intended
to supersede H.R. 268), and H.R. 269 (Yarmuth), offer different proposals to publicly finance
House campaigns, but do not substantially address presidential public financing.
Finally, as noted previously, in March 2011, the Supreme Court of the United States heard oral
arguments in two consolidated cases (Arizona Free Enterprise Club’s Freedom Club PAC et al. v.
Bennett and McComish v. Bennett). In McComish, the Court held that Arizona’s matching fund
system was unconstitutional.88 The opinion is most relevant for state public financing programs in
Arizona and elsewhere.89 The presidential public financing program, which uses matching funds
but does not base their award on opponents’ or outside groups’ spending, was not an issue in
Bennett. The opinion suggests that policy mechanisms that attempt to “level the playing field” (a
historic goal in some public financing proposals) could be unfeasible. Although some recent
congressional public financing proposals have included funding based on opponents’ activities,
the legislation pending in the 113th Congress (discussed above) would award matching funds—at
the presidential and congressional levels—based only on the publicly financed candidate’s
fundraising.
IRS Notice of Proposed Rulemaking Concerning Certain 501(c) Entities
In November 2013, the Internal Revenue Service (IRS) and the Treasury Department announced a
notice of proposed rulemaking (NPRM) that could significantly affect how some tax-exempt
organizations engage in campaign activity. As of this writing, it appears that the proposed rules
will be superseded by a new proposal to be released in the future. This section retains material on
the November 2013 NPRM for historical reference and in case the material remains relevant. This
section will be updated as additional information about the expected new IRS proposal becomes
available.
The November 2013 NPRM focused on 501(c)(4) groups, although the document also solicited
input about whether 501(c)(5) labor unions and 501(c)(6) trade associations should also be
addressed. Other CRS products that focus on tax law provide additional detail, much of which is
beyond the scope of this report.90
• The draft rules are potentially important for campaign finance policy because the
NPRM borrows key terms from federal election law and because those favoring
additional regulation of 501(c) entities generally call for a closer alliance
between tax policy and law and campaign finance policy and law. Currently,
because 501(c) organizations are not political committees as defined in FECA,
88 131 S.Ct. 2806 (2011).
89 See CRS Report RL33814, Public Financing of Congressional Campaigns: Overview and Analysis, by R. Sam
Garrett. This report does not attempt to determine Bennett’s applicability in other states.
90 See CRS Report R40183, 501(c)(4)s and Campaign Activity: Analysis Under Tax and Campaign Finance Laws, by
Erika K. Lunder and L. Paige Whitaker; CRS Report WSLG168, 501(c)(4)s and Campaign Activity: How Much Is Too
Much?, by Erika K. Lunder; and CRS Report WSLG519, What Does the Law Say About 501(c)(4)s and Campaign
Activity?, by Erika K. Lunder.
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they do not fall under FEC or FECA requirements unless they make ECs or IEs.91
Nonetheless, many such groups engage in activity that might influence
campaigns. In recent years, debate has developed about whether such activity
should be subject to additional regulation.
• In its NPRM, the IRS proposes a new concept, “candidate-related political
activity,” to replace its current facts-and-circumstances-based determination of a
group’s primary purpose. Under the draft rules, various election-related
activities—such as advocating the election or defeat of candidates during pre-
election periods, get-out-the-vote (GOTV) activities, or preparing voter guides—
would not qualify as promoting social welfare, which is supposed to be 501(c)(4)
groups’ primary purpose. The draft rules do not specify “how much” candidate-
related political activity would be permitted. It is unclear precisely what form
final rules will take or when they might be issued.
• In April 2014, IRS Commissioner John Koskinen stated in prepared remarks that
the agency had received more than 150,000 comments on the proposed rules, that
the agency might revise the draft guidance in response to those comments, and
that the rulemaking was unlikely to be completed by the end of 2014.92
• On June 18, 2014, the Center for Public Integrity reported that, in an interview
with the organization, Commissioner Koskinen said that the IRS “will propose
new and specific rules defining how much money ‘social welfare’ nonprofits may
spend on political campaigns.” The new proposal is expected “by early 2015.”93
Authority to Disburse Campaign Funds
The Committee on House Administration has announced a June 25, 2014, hearing to consider
H.R. 186 (Jones). The bill would permit candidates to designate to the FEC an individual to direct
campaign spending following the candidate’s death. That designation would supersede the
campaign treasurer’s normal spending responsibilities, but would not affect the treasurer’s
reporting responsibilities. A backup could also be identified if the designee died, became
incapacitated, or were unable or unwilling to carry out his or her responsibilities. The bill also
permits candidates to specify their wishes about how funds would be disbursed.
The House has passed three substantially similar measures, also sponsored by Representative
Jones, in recent Congresses. As noted previously, this included H.R. 406, which passed the House
in September 2012. In addition, on April 22, 2009, H.R. 749 passed the House by voice vote and
under suspension of the rules. H.R. 749 was virtually identical to H.R. 3032, which the House
passed on July 15, 2008, also under suspension of the rules and by voice vote. The House passed
91 If the groups had an affiliated super PACs, the super PAC would report to the FEC as a political committee.
92 John Koskinen, Commissioner, Internal Revenue Service, Prepared Remarks of Commissioner of Internal Revenue
Service John Koskinen before the National Press Club, Internal Revenue Service, IR-2014-42, Washington, DC, April
2, 2014, http://www.irs.gov/uac/Newsroom/Prepared-Remarks-of-Commissioner-of-Internal-Revenue-Service-John-
Koskinen-before-the-National-Press-Club. See also, for example, Josh Hicks, “IRS Firm on Exemption Reforms,”
Washington Post, April 17, 2014, p. A13.
93 Julie Patel, “IRS Chief Promises Stricter Rules for ‘Dark Money’ Nonprofit Groups,” Center for Public Integrity,
June 18, 2014, http://www.publicintegrity.org/2014/06/18/14960/irs-chief-promises-stricter-rules-dark-money-
nonprofit-groups.
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all three bills with bipartisan support and minimal debate. The Senate took no action on any of
these bills.
As Congress considers H.R. 186, it may be useful to consider how FECA currently addresses
campaign-spending authority. FECA assigns campaign treasurers primary responsibility for filing
FEC reports and ensuring that political committees comply with the act.94 Treasurers—not
candidates—are legally responsible for disbursing campaign funds.95 In fact, FECA does not
specify a role for candidates in campaign financial decisions. Of course, as a practical matter,
however, candidates may exert substantial informal influence over campaign spending.
The proposal contained in H.R. 186 and its predecessors could alleviate the potential for asset
disputes following candidate deaths—a topic about which some Members have raised concern.
That outcome, however, depends on designees adhering to candidate wishes, and assumes that
designees would be more faithful to candidate wishes than would be treasurers.
Because FECA is currently silent on candidate-spending authority, H.R. 186 could create different
levels of candidate authority over spending in life than in death. Although H.R. 186 would
provide a mechanism for circumventing the treasurer after a candidate dies, the bill would not
provide additional remedies for such action while the candidate is living. This may be a minor
distinction due to candidates’ de facto influence over their campaigns, despite FECA’s general
silence on the issue. Nonetheless, if Congress chose to enact the bill and felt it were important to
create parity in candidates’ abilities to direct campaign spending, it could amend FECA to create a
clearer candidate role over campaign funds regardless of whether the candidate is living or dead.
Congress might also provide explicit permission in FECA for candidates to hire and fire
campaign treasurers.
Conclusion
Some elements of federal campaign finance policy have substantially changed in recent years;
others have remained unchanged. Enactment of BCRA in 2002 marked the culmination of efforts
to limit soft money in federal elections and place additional regulations on political advertising
airing before elections. BCRA was an extension of efforts begun in the 1970s, with enactment of
FECA, to regulate and document the flow of money in federal elections. BCRA’s soft-money ban
and some other provisions remain in effect; but Citizens United, SpeechNow, and other litigation
since BCRA have reversed major elements of modern campaign finance law. In particular,
corporate and union spending that is now permissible has not previously been allowed in modern
elections.
The changes discussed in this report suggest that the nation’s campaign finance policy may be a
continuing issue for Congress. Disclosure requirements, a hallmark of federal campaign finance
policy, remain unchanged. Additional information would be required to fully document the
sources and rationales behind all political expenditures. For some, such disclosure would improve
94 See, for example, 2 U.S.C. §432(a). On treasurer responsibilities, see 2 U.S.C. §434(a)(1); 2 U.S.C. §432(c); and 2
U.S.C. §432(d).
95 See, for example, 11 C.F.R. §102.7(c). Other designees, such as assistant treasurers, may also perform treasurer
duties. See also Federal Election Commission, Committee Treasurers, brochure, Washington, DC, March 2007,
http://www.fec.gov/pages/brochures/treas.shtml.
Congressional Research Service
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
transparency and discourage corruption. For others, additional disclosure might be viewed with
suspicion and as a potential sign of government intrusion. Particularly in recent years, tension has
also developed between competing perspectives about whether disclosure limits potential
corruption or stigmatizes those who might choose to support unpopular candidates or groups.
Fundraising, spending, and reporting questions have been at the forefront of recent debates in
campaign finance policy, but they are not the only issues that may warrant attention. Even if no
legislative changes are made, additional regulation and litigation are likely, as is the constant
debate over the role of money in politics. Although some of the specifics are new, these themes
discussed throughout this report have been present in campaign finance policy for decades.
Author Contact Information
R. Sam Garrett
Specialist in American National Government
rgarrett@crs.loc.gov, 7-6443
Congressional Research Service
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