The State of Campaign Finance Policy:
Recent Developments and Issues for Congress
R. Sam Garrett
Specialist in American National Government
April 30, 2015
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 supporting 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. Thus far during the
114th Congress, only H.R. 412, which would terminate the presidential public financing program,
has advanced beyond introduction.
Post-Citizens United, debate over disclosure and deregulation have been recurring themes in
Congress and beyond. Legislation to require additional information about the flow of money
among various donors, the DISCLOSE Act, passed the House during the 111th Congress and was
reintroduced during subsequent Congresses (as H.R. 430 and S. 229 in the 114th Congress).
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. The debate over whether or how additional disclosure is
needed has also extended to the Federal Election Commission—and congressional oversight of
the agency—and the courts.
During the same period, statutory changes eased some contribution limits. These developments,
too, are affected by courts and regulatory agencies. Most recently, the Supreme Court invalidated
aggregate contribution limits in April 2014 (McCutcheon v. FEC). Also in 2014, Congress and
President Obama terminated public funding for presidential nominating conventions (P.L. 113-
94). Congress responded by including language in the FY2015 omnibus appropriations law (P.L.
113-235) that increased limits for some contributions to political party committees, including for
conventions. The 113th Congress also advanced legislation (which was not enacted) to curtail the
presidential public financing program (H.R. 94; H.R. 95; H.R. 1994), designate campaign-
spending authority after a candidate’s death (H.R. 186), require Senate political committees to file
campaign finance reports electronically (S. 375), and amend the Constitution to permit additional
campaign finance regulation (S.J.Res. 19). It enacted bills to extend the FEC’s Administrative
Fine Program (P.L. 113-72) and prevent political-spending information from being required in the
federal contracting process (P.L. 113-76).
This report considers these and other developments in campaign finance policy and comments on
areas of potential conflict and consensus. This report emphasizes issues that appear to be most
prominently before the 114th Congress. It also discusses major elements of campaign finance
policy. This report will be updated occasionally to reflect major developments.
Congressional Research Service
The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Contents
Introduction ...................................................................................................................................... 1
Development of Modern Campaign Finance Law ........................................................................... 2
Policy Background .................................................................................................................... 2
The Federal Election Campaign Act (FECA) ............................................................................ 3
The Bipartisan Campaign Reform Act (BCRA) and Beyond .................................................... 4
Major Issues: What Has Changed Post-Citizens United and What Has Not ............................. 5
What Has Changed .............................................................................................................. 5
What Has Not Changed ..................................................................................................... 10
Potential Policy Considerations and Emerging Issues for Congress ............................................. 14
Recent Legislative Activity ..................................................................................................... 14
112th Congress ......................................................................................................................... 17
Emerging or Ongoing Policy Issues in Brief ........................................................................... 18
Regulation and Enforcement by the FEC or Through Other Areas of Policy and
Law................................................................................................................................. 18
IRS Notice of Proposed Rulemaking Concerning Certain 501(c) Entities ....................... 19
Litigation About Electioneering Communications Disclosure .......................................... 20
Federal Communications Commission Rules on Political Advertising Disclosure .......... 21
Revisiting Disclosure Requirements ................................................................................. 22
Revisiting Contribution Limits .......................................................................................... 22
Revisiting Coordination Requirements ............................................................................. 23
Conclusion ..................................................................................................................................... 23
Tables
Table 1. Major Federal Contribution Limits, 2015-2016 ............................................................... 12
Table 2. Legislation Related to Campaign Finance that Advanced Beyond Introduction,
113th Congress ............................................................................................................................ 14
Contacts
Author Contact Information........................................................................................................... 24
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. The most notable recent statutory changes occurred in 2014, when
Congress eliminated public financing for presidential nominating conventions and increased
limits for some contributions to political parties.
Some of the most recent notable campaign finance developments beyond Congress have occurred
at the Supreme Court. The 2010 Citizens United ruling spurred substantial legislative action
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), Robert
E. Mutch, Buying the Vote: A History of Campaign Finance Reform (New York: Oxford University Press, 2014),
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
during the 111th Congress and continued interest during subsequent Congresses.3 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.”4
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. As in the past, this version of the report contains both
additions of new material and deletions of old material compared with previous versions.5 This
update emphasizes those topics that appear to be most relevant for Congress, while also providing
historical background that is broadly applicable. This report will be updated occasionally as
events warrant.
Development of Modern Campaign Finance Law
Policy Background
Dozens or hundreds of campaign finance bills have been introduced in each Congress since the
1970s. Nonetheless, major changes in campaign finance law have been rare. A generation passed
between the Federal Election Campaign Act (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. 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
3 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.
4 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.
5 Congressional requesters may contact the author for additional information.
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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.6
The Federal Election Campaign Act (FECA)
Modern campaign finance law was largely shaped in the 1970s, particularly through FECA.7 First
enacted in 1971 and substantially amended in 1974, 1976, and 1979, FECA remains the
foundation of the nation’s campaign finance law.8 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.9 The 1971 FECA principally mandated
reporting requirements similar to those in place today, such as quarterly disclosure 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.10 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.
6 Political committees include candidate committees, party committees, and PACs. See 52 U.S.C. §30101 (previously
codified at 2 U.S.C. §431(4), as explained later in this report).
7 FECA is 52 U.S.C. §30101 et seq. (previously codified at 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.
8 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.
9 The Corrupt Practices Act, which FECA generally supersedes, is 43 Stat. 1070.
10 For additional discussion, see CRS Report R43719, Campaign Finance: Constitutionality of Limits on Contributions
and Expenditures, by L. Paige Whitaker.
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Despite minor amendments, FECA remained essentially uninterrupted for the next 20 years.
Although there were relatively narrow legislative changes to FECA and other statutes, such as the
1986 repeal11 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.12
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.13 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.14
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).15
• 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
11 See P.L. 99-514 §112. Congress repealed a tax deduction for political contributions in 1978. See P.L. 95-600 §113.
12 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).
13 BCRA is P.L. 107-155; 116 Stat. 81. BCRA amended FECA, which appears at 52 U.S.C. §30101 et seq. (previously
codified at 2 U.S.C. §431 et seq.) BCRA is also known as McCain-Feingold.
14 On the definition of electioneering communications, see 52 U.S.C. §30104 (previously codified at 2 U.S.C. §434
(f)(3)).
15 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 R43719, Campaign Finance:
Constitutionality of Limits on Contributions and Expenditures, by L. Paige Whitaker.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
restrictions on advertising by a 501(c)(4) advocacy organization (Wisconsin Right
to Life v. Federal Election Commission).16
• 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.17
• Congress enacted some additional amendments to campaign finance law since
BCRA. 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.18 In
2014, as discussed below, Congress raised some limits for contributions to
political parties.
Major Issues: What Has Changed Post-Citizens United and What
Has Not
The following discussion highlights those topics that appear to be enduring and significant in the
current policy environment. This includes substantial changes to aggregate and party contribution
limits in 2014. The discussion begins with changes directly affected by Citizens United because
those developments most fundamentally altered the campaign finance landscape.
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.19 In brief, the opinion invalidated FECA’s prohibitions on corporate and union
treasury funding of independent expenditures and electioneering communications. As a
16 For additional discussion, see CRS Report R43719, Campaign Finance: Constitutionality of Limits on Contributions
and Expenditures, by L. Paige Whitaker; 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. 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.
17 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.
18 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.
19 130 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.
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consequence of Citizens United, corporations and unions are free to use their treasury funds to air
political advertisements and make related purchases 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).20 Previously, such advertising would generally have had
to be financed through voluntary contributions raised by PACs affiliated with unions or
corporations.
DISCLOSE Act Consideration Following Citizens United. Since Citizens United, the House and
Senate have considered various legislation designed to increase public availability of information
(disclosure) about corporate and union spending. Particularly in the immediate aftermath of the
decision, during the 111th Congress, 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, 2010.21 A second cloture vote
failed (59-39) on September 23, 2010.22 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. 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.23 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
Representative Van Hollen filed a discharge petition on the measure.24 He re-introduced the
DISCLOSE Act as H.R. 148 during the 113th Congress. In July 2014, the Senate Rules and
Administration Committee held a hearing on Senate companion S. 2516. (S. 791 in the 113th
Congress proposed an alternative to DISCLOSE; it did not advance beyond introduction.) The
DISCLOSE Act is H.R. 430 and S. 229 in the 114th Congress.
20 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. On the definition of independent expenditures, see 52 U.S.C. §30101 (previously
codified at 2 U.S.C. 431 §17). As noted previously, electioneering communications refer to clearly identified
candidates during pre-election periods but do not contain express advocacy.
21 “DISCLOSE Act—Motion to Proceed,” Senate vote 220, Congressional Record, daily edition, vol. 156 (July 27,
2010), p. S6285.
22 “DISCLOSE Act—Motion to Proceed—Resumed,” Senate vote 240, Congressional Record, daily edition, vol. 156
(September 23, 2010), p. S7388.
23 “DISCLOSE Act—Motion to Proceed—Continued,” Rollcall vote 180, Congressional Record, daily edition, vol.
158 (July 17, 2012), p. S5072.
24 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.
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Unlimited Contributions to Independent-Expenditure-Only Political Action
Committees (Super PACs)
On March 26, 2010, the U.S. Court of Appeals for the District of Columbia held in
SpeechNow.org v. Federal Election Commission25 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
apply to super PACs, meaning that contributions and expenditures must be disclosed to the FEC.
Additional discussion of super PACs appears in another CRS product.26
Unlimited Contributions to Certain Nonconnected 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),27 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.28 As such, nonconnected PACs that want to
raise unlimited sums for independent expenditures may 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.29 Approximately 50
nonconnected PACs filed notice with the FEC that they planned to raise unlimited funds during
the 2012 election cycle, a figure that increased to approximately 100 such groups during the 2014
cycle.30
FEC Rules Implementing Parts of Citizens United
Implementing Citizens United and SpeechNow fell to the FEC. The commission issued advisory
opinions (AOs) within a few months of the rulings recognizing corporate independent
25 599 F.3d 686 (D.C. Cir. 2010).
26 See CRS Report R42042, Super PACs in Federal Elections: Overview and Issues for Congress, by R. Sam Garrett;
and CRS Legal Sidebar WSLG170, The Legal and Constitutional Birth of the “Super PAC”, by L. Paige Whitaker 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.
27 Civ. No. 11-259-RMC (D.D.C. 2011).
28 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.
29 In particular, the exemption only applies to nonconnected PACs (i.e., those that exist independently as PACs and are
not affiliated with a parent organization, such as an interest group or labor union).
30 Information for the 2012 cycle is available on the FEC website at http://www.fec.gov/press/press2011/
2012PoliticalCommitteeswithNon-ContributionAccounts.shtml. FEC staff provided 2014-cycle figures to CRS.
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expenditures and super PACs. Afterward, some corporations, unions, and other organizations
began making previously prohibited expenditures or raising previously prohibited funds for
electioneering communications or independent expenditures.31
Despite progress on post-Citizens United AOs, agreement on final rules took years. A December
2011 Notice of Proposed Rulemaking (NRPM) posing questions about what form post-Citizens
United rules should take32 remained open until late 2014, reflecting an apparent stalemate over
the scope of the agency’s Citizens United response. In October 2014, the commission approved
rules essentially to remove portions of existing regulations that Citizens United had invalidated,
such as spending prohibitions on corporate and union treasury funds.33 The 2014 rules did not
require additional disclosure surrounding independent spending, which some commenters had
urged, but which others argued were beyond the agency’s purview.34
Aggregate Caps on Individual Campaign Contributions
On April 2, 2014, the Supreme Court invalidated aggregate contribution limits in McCutcheon v.
FEC. “Base” limits capping the amounts that donors may give to individual candidates still
apply.35 For 2013-2014—pre-McCutcheon—individual contributions could total no more than
$123,200. Of that amount, $48,600 could go to candidates, with the remaining $74,600 to parties
and PACs. Following McCutcheon, individuals may contribute to as many candidates as they
wish provided that they adhere to the $2,700 per-candidate, per-election limits ($5,400 for the
entire 2016 election cycle).36 Additional discussion appears in another CRS product.37
Higher Contribution Limits and New Accounts for Political Party Committees
For the first time since enacting BCRA in 2002, Congress raised the statutory limit on some
campaign contributions in December 2014. Specifically, the FY2015 omnibus appropriations law,
P.L. 113-235, increased contribution limits to national political party committees. Most
prominently, these party committees include the Democratic National Committee (DNC),
31 Perhaps most notably, the FEC issued AOs 2010-09 (Club for Growth) and 2010-11 (Commonsense Ten),
recognizing corporate independent expenditures and super PACs. For additional discussion, see CRS Report R42042,
Super PACs in Federal Elections: Overview and Issues for Congress, by R. Sam Garrett. AOs provide an opportunity
to pose questions about how the Commission interprets the applicability of FECA or FEC regulations to a specific
situation (e.g., a planned campaign expenditure). AOs apply only to the requester and within specific circumstances,
but can provide general guidance for those in similar situations. See 52 U.S.C. § 30108 (previously codified at 2 U.S.C.
§ 437f).
32 Federal Election Commission, “Independent Expenditures and Electioneering Communications by Corporations and
Labor Organizations,” 248 Federal Register 80803, December 27, 2011.
33 Federal Election Commission, “Independent Expenditures and Electioneering Communications by Corporations and
Labor Organizations,” 79 Federal Register 62797, October 21, 2014.
34 Some Senators filed comments calling for additional donor disclosure. See Letter from Sen. Jeanne Shaheen et al. to
Commissioner Caroline Hunter, Chair, FEC, February 21, 2012. The document may be obtained from the FEC
rulemaking comments search function at http://sers.fec.gov/fosers/.
35 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.
36 This assumes one maximum contribution of $2,700 in the primary election and another during the general election.
37 See CRS Report R43334, Campaign Contribution Limits: Selected Questions About McCutcheon and Policy Issues
for Congress, by R. Sam Garrett.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Democratic Congressional Campaign Committee (DCCC), Democratic Senatorial Campaign
Committee (DSCC), Republican National Committee (RNC), National Republican Congressional
Committee (NRCC), and the National Republican Senatorial Committee (NRSC). The new law
also permits these committees to establish new accounts, each with separate contribution limits,
to support party conventions,38 facilities, and recounts or other legal matters.
Overall political and policy implications from the new limits remain to be seen. Additional detail
appears in another CRS product.39 The FEC could clarify precise implications with future
rulemakings or other guidance. In practice, it appears that an individual’s contributions to a
national party could increase from at least $97,200 annually to at least $777,600. For a two-year
election cycle, an individual could give twice that amount, or more than $1.5 million.40 Under
inflation adjustments announced in February 2015, it appears that an individual may contribute at
least $801,600 to a national party committee in 2015.41 Political action committees (PACs) may
also make larger contributions to parties. For multicandidate PACs—the most common type of
PAC—contributions to a national party appear to have increased from $45,000 to at least
$360,000 annually. Unlike limits for individual contributions, those for PACs are not adjusted for
inflation.
Some Public Financing Issues
Two notable public financing changes have occurred since 2010, although neither is directly
related to Citizens United. Most relevant for federal campaign finance policy, P.L. 113-94,
enacted in April 2014, terminated public financing for presidential nominating conventions.
Barring a change in the status quo, the 2016 conventions will be the first since 1972 funded
entirely with private money. Additional discussion appears in other CRS products.42
The second major development occurred in 2011 and primarily affects state-level candidates but
also has implications for federal policy options. On June 27, 2011, the Supreme Court 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.43 The decision invalidated portions of Arizona’s public
financing program for state-level candidates.44 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. The decision has been most relevant for state-level public
38 As noted elsewhere in this report, only the “headquarters” committees (e.g., the DNC or RNC) could collect
additional funds for conventions.
39 See CRS Report R43825, Increased Campaign Contribution Limits in the FY2015 Omnibus Appropriations Law:
Frequently Asked Questions, by R. Sam Garrett.
40 The exact amount is $1,555,200. Most amounts in this report appear to be eligible for future inflation adjustments.
41 The inflation adjustments appear in Federal Election Commission, “Price Index Adjustments for Contribution and
Expenditure Limitations and Lobbyist Bundling Disclosure Threshold,” 80 Federal Register 5750, February 3, 2015.
42 See CRS Report R43976, Funding of Presidential Nominating Conventions: An Overview, by R. Sam Garrett and
Shawn Reese; CRS Report RL34630, Federal Funding of Presidential Nominating Conventions: Overview and Policy
Options, by R. Sam Garrett and Shawn Reese; and CRS Report R41604, Proposals to Eliminate Public Financing of
Presidential Campaigns, by R. Sam Garrett.
43131 S.Ct. 2806 (2011). The slip opinion is available at http://www.supremecourt.gov/opinions/10pdf/10-238.pdf.
44 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.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
financing programs, as a similar matching fund system does not operate at the federal level.
However, the decision also appears to preclude rescue funds in future federal proposals to
restructure the existing presidential public financing program or create a congressional public
financing program.
FECA Editorial Reclassification
The Office of Law Revision Counsel, which maintains the United States Code, moved FECA and
other portions of federal election law to a new Title 52 of the U.S. Code in September 2014.45
Previously, FECA and most other relevant campaign finance law were housed in Title 2 of the
U.S. Code. This editorial change does not affect the content of the statutes. Nonetheless, it is a
major change for those who need to search or cite federal election law. Unless otherwise noted,
FECA citations throughout this report have been changed to reflect the new Title 52 location.
What Has Not Changed
Federal Ban on Corporate and Union Treasury Contributions
Corporations and unions are still banned from making contributions in federal elections.46 PACs
affiliated with, but legally separate from, those corporations and unions may contribute to
candidates, parties, and other PACs. As noted elsewhere in this report, corporations and unions
may use their treasury funds to make electioneering communications, independent expenditures,
or both, but this spending is not considered a contribution under FECA.47
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.
As noted elsewhere in this report, in December 2014, Congress enacted legislation, which
President Obama signed (P.L. 113-235), permitting far larger contributions to political parties
than had been permitted previously. These funds are not soft money, in that they are subject to
contribution limits and other FECA requirements (e.g., disclosure). Nonetheless, some might
contend that the spirit of the newly permissible contributions is consistent with soft money
characteristics. Others contend that the increased limits allow parties to compete with newly
empowered groups, such as super PACs, that are not subject to contribution limits.48
45 For background on the reclassification, see Office of Law Revision Counsel, Editorial Reclassification,
http://uscode.house.gov/editorialreclassification/reclassification.html. For a table comparing old and new citations, see
http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_52.pdf.
46 52 U.S.C. § 30118 (previously codified at 2 U.S.C. §441b).
47 On the definition of contribution, see, in particular, 52 U.S.C. §30101 and 52 U.S.C. §30118 (previously codified at
2 U.S.C. §431(8)(A) and 2 U.S.C. §441(b)(b)(2)).
48 For additional discussion, see CRS Insight IN10205, The Most Significant Statutory Change Since BCRA? Increased
Limits for Contributions to Political Parties, by R. Sam Garrett.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Some Contribution Limits Remain Intact
Pre-existing base limits on contributions to campaigns, parties, and PACs generally remain in
effect.49 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.
Also as noted elsewhere in this report, the FEC announced in October 2011, per an agreement
reached in Carey v. FEC, that nonconnected PACs would be permitted to raise unlimited amounts
for independent expenditures if those funds are kept in a separate bank account.
Although major contribution limits remain in place, as noted above, some party contribution
limits have increased. More consequentially, post-McCutcheon aggregate contribution limits no
longer apply. Therefore, although individuals are, for example, still prohibited from contributing
more than $2,700 per candidate, per election during the 2016 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.50
49 In addition to these developments, a recent Supreme Court ruling on judicial elections may also be relevant. On April
29, 2015, the Court issued a decision in Williams-Yulee v. Florida Bar. The majority opinion upheld a Florida ban on
personal solicitations of campaign contributions by judicial candidates. The case appears to be most relevant for state-
level judicial elections. Implications for federal campaign finance policy, if any, remain to be seen. The Williams-Yulee
slip opinion is available at http://www.supremecourt.gov/opinions/14pdf/13-1499_d18e.pdf.
50 For additional discussion, see CRS Report R43334, Campaign Contribution Limits: Selected Questions About
McCutcheon and Policy Issues for Congress, by R. Sam Garrett; and CRS Report R43719, Campaign Finance:
Constitutionality of Limits on Contributions and Expenditures, by L. Paige Whitaker.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Table 1. Major Federal Contribution Limits, 2015-2016
See table notes below for additional information.
Recipient
Multicandidate
Principal
Committee (most
National Party
State, District,
Campaign
PACs, including
Committee
Local Party
Contributor
Committee
leadership PACs)
(DSCC; NRCC, etc.)
Committee
Individual
$2,700 per election*
$5,000 per year
$33,400 per year*
$10,000 per year
(combined limit)
Additional $100,200 limit
for each special party
account†*
Principal Campaign
$2,000 per election
$5,000 per year
Unlimited transfers to
Unlimited
Committee
party committees
transfers to party
committees
Multicandidate
$5,000 per election
$5,000 per year
$15,000 per year
$5,000 per year
Committee (most
(combined limit)
PACs, including
Additional $45,000 limit
leadership PACs)a
for each special party
account†
State, District,
$5,000 per election
$5,000 per year
Unlimited transfers to
Unlimited
Local Party
(combined limit)
(combined limit)
party committees
transfers to party
Committee
committees
National Party
$5,000 per election
$5,000 per year
Unlimited transfers to
Unlimited
Committee
party committees
transfers to party
committees
Source: CRS adaptation from FEC, “Contribution Limits for 2015-2016 Federal Elections,” http://www.fec.gov/
info/contriblimitschart1516.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).
The national party committee and the national party Senate committee (e.g., the DNC and DSCC or RNC and
NRSC) shared a combined per-candidate limit of $46,800, which is adjusted biennially for inflation.
* These limits are adjusted biennially for inflation.
† As noted elsewhere in this report, national party committees may accept these contributions for separate
accounts for (1) presidential nominating conventions (headquarters committees (e.g., DNC; RNC) only); (2)
recounts and other legal compliance activities; and (3) party buildings. For additional discussion, see CRS Report
R43825, Increased Campaign Contribution Limits in the FY2015 Omnibus Appropriations Law: Frequently Asked
Questions, by R. Sam Garrett.
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
Other recent developments notwithstanding, disclosure requirements enacted in FECA and BCRA
remain intact.51 In general, political committees must regularly52 file reports with the FEC53
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.54
• The existing disclosure requirements concerning electioneering communications
mandate 24-hour reporting of communications aggregating at least $10,000.55
Donor information must be included for those who designated at least $200
toward the independent expenditure, or $1,000 for electioneering
communications.56
• If 501(c) or 52757 organizations make independent expenditures or electioneering
communications, those activities would be reported to the FEC.58
51 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.
52 Reporting typically occurs quarterly. Pre- and post-election reports must also be filed. Non-candidate committees
may also file monthly reports. See, for example, 52 U.S.C. §30104 (previously codified at 2 U.S.C. §434) and the
FEC’s Campaign Guide series for additional discussion of reporting requirements.
53 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 52 U.S.C. §30102 (previously codified at
2 U.S.C. §432(g)).
54 See, for example, 52 U.S.C. §30104 (previously codified at 2 U.S.C. §434(g)).
55 52 U.S.C. §30104 (previously codified at 2 U.S.C. §434(f)).
56 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.
57 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.
58 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
Recent Legislative Activity
Thus far during the 114th Congress, only one bill, H.R. 412, which would terminate the
presidential public financing program, has advanced beyond introduction. That bill has been
ordered reported by the Committee on House Administration.59 As in recent Congresses, a House
Democratic task force has announced that it will pursue campaign finance legislation addressing
topics such as expanded disclosure requirements and a constitutional amendment to permit
additional regulation of political money.60
As shown in Table 2 below, 11 bills in the House and Senate advanced beyond introduction
during the 113th Congress. In addition, the Senate Subcommittee on Crime and Terrorism held an
April 9, 2013, hearing on enforcement of campaign finance law.
Table 2. Legislation Related to Campaign Finance that Advanced
Beyond Introduction, 113th Congress
Most Recent
Bill Number
Short Title
Primary Sponsor
Brief Summary
Major Action
H.R. 83
Consolidated and
Rep. Christensen
Relevant provisions
Became law
Further
increased limits for
12/13/2014
Appropriations Act,
certain contributions
2015
to political party
(P.L. 113-235)
committees;
prohibited
disclosure of certain
political spending as
a condition of the
federal contracting
process
(...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.
59 For brief additional discussion, see CRS Report R41604, Proposals to Eliminate Public Financing of Presidential
Campaigns, by R. Sam Garrett.
60 See, for example, Office of the House Democratic Leader, “Pelosi Remarks at Press Conference Unveiling the House
Democrats’ Democracy Task Force,” press release, April 22, 2015, http://www.democraticleader.gov/newsroom/
pelosi-remarks-at-press-conference-unveiling-the-house-democrats-democracy-task-force/.
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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. 94
—
Rep. Cole
Would have
Committee on
eliminated
House
Presidential Election
Administration
Campaign Fund
markup held; bill
(PECF) convention
ordered reported
funding
favorably 06/04/2013
(voice vote);
reported 12/12/2013
(H.Rept. 113-291)
H.R. 95
—
Rep. Cole
Would have
Committee on
eliminated PECF and
House
transferred balance
Administration
to the general fund
markup held; bill
of the U.S. Treasury
ordered reported
for use in deficit
favorably 06/04/2013
reduction
(voice vote);
reported 12/12/2013
(H.Rept. 113-292)
H.R. 186
—
Rep. Walter Jones
Would have
Committee on
permitted candidate
House
to name someone
Administration
other than the
hearing held,
campaign treasurer
06/25/2014
to disburse funds if
the candidate died
H.R. 1994
Election Assistance
Rep. Harper
Would have
Committee on
Commission
eliminated Election
House
Termination Act
Assistance
Administration
Commission and
markup held; bill
assigned specific
ordered reported
National Voter
favorably 06/04/2013
Registration Act
(voice vote);
(NVRA) functions to reported 12/12/2013
the FEC
(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-
eliminated PECF
94)
convention funding
and converted
amounts to “10-Year
Pediatric Research
Initiative Fund," with
some amounts
available to National
Institutes of Health;
contained health-
research provisions
unrelated to this
reporta
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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. 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 have
measure (H.Rept.
FY2014
prohibited reporting
113-172); placed on
Consolidated
certain 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
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 have
Senate Rules and
Disclosure Parity
required Senate
Administration
Act
political committees
Committee markup
to file 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 have reported as original
2014
required Senate
measure (S.Rept.
political committees
113-80); placed on
to file reports
Union Calendar
electronically and
07/25/2013
directly with the
FEC
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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
S.J.Res. 19
—
Sen. Tom Udall
Proposed
Subcommittee on
constitutional
the Constitution,
amendment would
Civil Rights and
have permitted
Human Rights
Congress and the
markup held,
states to regulate
amendment in the
“money and in-kind
nature of a
equivalents with
substitute ordered
respect to Federal
favorably reported
elections”
(5-4 vote)
06/18/2014;
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.
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.61 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 have required 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)62 had implications for the contracting-disclosure debate. Two bills
containing restrictions on contractor disclosure became law (H.R. 1540 and H.R. 2055).63
61 For additional discussion of convention financing, see CRS Report R43976, Funding of Presidential Nominating
Conventions: An Overview, by R. Sam Garrett and Shawn Reese; and 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.
62 See §§823, 713, 10015, 743, and 624 of the bills respectively.
63 See §§823 and 743 respectively.
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The State of Campaign Finance Policy: Recent Developments and Issues for Congress
Emerging or Ongoing Policy Issues in Brief
Despite some specific changes and 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. This section generally does not reference legislation unless a bill
advanced beyond introduction. Of course, Congress, the courts, or administrative agencies might
choose to consider these or other issues. This section will be updated as developments warrant.
Regulation and Enforcement by the FEC or Through Other Areas of Policy and
Law
• During the 113th Congress, FEC enforcement and transparency issues attracted
attention in Congress and beyond. As noted previously, the Senate Judiciary
Subcommittee on Crime and Terrorism held a 2013 hearing on enforcement of
campaign finance law. In addition, in the House, the Committee on House
Administration 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. Debate over the matter continued at the FEC, sometimes including
acrimonious meetings among commissioners. Apparent disagreement continued
thereafter until at least late 2014.64 The issue remains pending.
• The FEC has civil responsibility for enforcing FECA. The Department of Justice
(DOJ) enforces the act’s criminal provisions, and the FEC may refer suspected
criminal violations to DOJ.65 Throughout its history, FEC enforcement has been
controversial, partially because the commission’s six-member structure as
established in FECA sometimes produces stalemates in enforcement actions.66
Some have argued that DOJ should pursue more vigorous enforcement of
campaign finance law, both on its own authority and in lieu of FEC action.
• Some Members of Congress have proposed providing additional information to
shareholders if the companies in which they hold stock choose to make
electioneering communications or independent expenditures.67 These proposals
are sometimes referred to as “shareholder protection” measures, although the
extent to which they would benefit shareholders or companies is subject to
64 See, for example, Kenneth P. Doyle, “Goodman Resurrects Long-Dormant Plan to Limit Enforcement Actions of
FEC Staff,” Daily Report for Executives, December 8, 2014, pp. A-17.
65 52 U.S.C. § 30109.
66 For additional discussion of the agency’s structure and powers, see CRS Report RS22780, The Federal Election
Commission (FEC) With Fewer than Four Members: Overview of Policy Implications, by R. Sam Garrett.
67 For additional discussion, see CRS Legal Sidebar 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
debate. In 2013, the Securities and Exchange Commission (SEC) dropped plans
to consider additional corporate disclosure of political spending, although some
advocates continue to urge the agency to consider the topic.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 Although the rules appeared not to be targeted to federal candidates,
they can implicate state-level officeholders seeking federal office. This includes,
for example, governors running for President. The rules are the subject of
ongoing litigation.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 Although the
executive order was never issued, the topic continues to garner attention. The
House Committee on Oversight and Government Reform and Committee on
Small Business held a joint hearing on the topic on May 12, 2011. Congress also
moved to prohibit additional contractor disclosure. Most recently, Section 735 of
the FY2015 consolidated appropriations act (P.L. 113-235) bars disclosure about
certain political spending as a condition of the contracting process.
IRS Notice of Proposed Rulemaking Concerning Certain 501(c) Entities
Politically active tax-exempt organizations, regulated primarily by the Internal Revenue Code
(IRC), have been engaged in elections since at least the early 2000s. Some suggest that Citizens
United provided clearer permission for incorporated 501(c)(4) social welfare groups and
501(c)(6) trade associations to make electioneering communications and independent
expenditures. Unions, 501(c)(5)s, have long participated in campaigns, but Citizens United has
been interpreted to permit labor organizations to use their treasury funds, like corporations, to
make ECs and IEs. Amid increased interest in, and activity by, the groups post-2010, controversy
has emerged about how or whether their involvement in federal elections should be regulated.
Currently, because 501(c) organizations are not political committees as defined in FECA, they do
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. See also Yin Wilczek,
“Proponents File More Than 100 Proposals Calling for Political Spending Transparency,” Daily Report for Executives,
April 14, 2015, p. EE-9.
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; and Kenneth P. Doyle, “Judges Skeptical of Challenge to SEC Rule on Political Money From
Investment Advisers,” Daily Report for Executives, March 24, 2015, pp. A-6.
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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not fall under FEC or FECA requirements unless they make ECs or IEs.72 Nonetheless, many
such groups engage in activity that might influence campaigns. Other CRS products that focus on
tax law provide additional detail, much of which is beyond the scope of this report.73
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. Amid controversy, that initial proposal was
withdrawn, reportedly to be superseded by a new proposal.74 The status of a rulemaking remains
unclear, but, as of this writing, reports suggest that the agency continues to develop a proposal.
Whether the IRS should continue with a rulemaking, and if so, what that rulemaking should
cover, has generated sharp disagreement in Congress and among various advocacy groups.75 As
of this writing, the issue remains unresolved.
Litigation About 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.76 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.
Nonetheless, FEC regulations also use the “purpose of furthering” language as a threshold for
identifying donors to corporations or unions making ECs.77 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).78 On the basis of that
argument and others, Representative Van Hollen sued the FEC in 2011. A series of federal district
and appellate court rulings since then have been issued, and the matter remains unsettled.
In November 2014, a U.S. District Court for the District of Columbia invalidated the FEC rule for
the second time, finding that the agency had exceeded its authority by narrowing disclosure
requirements contrary to FECA. As CRS has noted elsewhere, “[n]ow that the [EC] regulation has
been vacated, corporations and unions making electioneering communications are required to
disclose donors of at least $1,000 regardless of whether they gave with the purpose of furthering
the electioneering communication. The practical impact of this ruling, however, might be small”
72 If the groups had an affiliated super PAC, the super PAC would report to the FEC as a political committee.
73 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.
74 CRS Legal Sidebar WSLG896, IRS Redrafting Proposed 501(c)(4) Regulations?, by Erika K. Lunder.
75 See, for example, Diane Freda, “IRS Plans for Broadening Political Activity Rules Trigger Stern Warning From
Hatch,” Daily Report for Executives, April 14, 2015, pp. G-7.
76 Previous versions of this report addressed this topic in what is now the “Major Issues: What Has Changed Post-
Citizens United and What Has Not” section above. Based on recent events, this issue does not appear to be as major a
policy change as the topics now included in the previous section. As with other topics addressed in this report,
subsequent developments that resolve the issue—and could involve more significant policy implications—will be
reflected in future updates.
77 11 C.F.R. §104.20(c)(9).
78 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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because donor disclosure can be avoided by making IEs rather than ECs.79 The case remains on
appeal.
Federal Communications Commission Rules on Political Advertising
Disclosure
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.80 In BCRA, Congress required broadcasters to place information about
political advertising prices and purchases in a “political file” available for public inspection.81
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.82
These rules took effect on August 2, 2012. Stations outside the top 50 DMAs or unaffiliated with
the top four networks were required to comply as of July 2014.83 In February 2015, the FCC
solicited comments on a notice of proposed rulemaking (NPRM) to extend the online-disclosure
requirements to cable and satellite operators and broadcast radio.84 As of this writing, the matter
remains pending.
The requirements already adopted and under consideration arguably enhance transparency by
making “ad buy” data more readily available than in the past. 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 policymakers. In addition, no
standard file format is required.85 Consequently, drawing broad conclusions from the data is
challenging.
79 See CRS Legal Sidebar WSLG1189, Campaign Finance Regulation Limiting Donor Disclosure Struck Down Again
... and Appeals Filed, by L. Paige Whitaker. That product provides additional details about the litigation.
80 Previous versions of this report addressed this topic in what is now the “Major Issues: What Has Changed Post-
Citizens United and What Has Not” section above. Based on recent events, this issue does not appear to be as major a
policy change as the topics now included in the previous section. As with other topics addressed in this report,
subsequent developments that resolve the issue—and could involve more significant policy implications—will be
reflected in future updates.
81 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.
82 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.
83 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.
84 Federal Communications Commission, “Expansion of Online Public File Obligations to Cable and Satellite TV
Operators and Broadcast and Satellite Radio Licensees,” 80 Federal Register 8031, February 13, 2015.
85 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-
(continued...)
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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
112th, 113th, and 114th Congresses, do not contain spending restrictions, although some observers
have questioned whether required reporting could inhibit political speech.
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.
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.
Revisiting Contribution Limits
After Citizens United, one potential concern is how candidates will be able to field competitive
campaigns amid potentially unlimited expenditures from super PACs, 501(c) organizations,
corporations, or unions. One option for providing 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. As noted previously, Congress raised limits for some contributions to political parties
in 2014.
Another option, which Congress has occasionally considered in recent years, would be to raise or
eliminate current limits on coordinated party expenditures.86 Coordinated expenditures allow
parties to buy goods or services on behalf of a campaign—in limited amounts—and to discuss
(...continued)
required-political-ad-data-disclosures-wont-be-searchable.
86 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.
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those expenditures with the campaign.87 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 to
receive the benefits of coordinated expenditures.88 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.
Revisiting Coordination Requirements
Both before and after Citizens United, questions have persisted about whether unlimited
independent expenditures permit parties, PACs, and other groups to subsidize candidate
campaigns. Such concerns first emerged in the 1980s with PAC spending. After Citizens United,
the emergence of super PACs and increased activity by 501(c) organizations increased attention
to a concept known as coordination. A product of FEC regulations, coordination restrictions are
designed to ensure that valuable goods or services—such as polling or staff expertise—are not
provided to campaigns in excess of federal contribution limits. In practice, establishing
coordination is difficult. Existing regulations require satisfying a complex three-part test
examining conduct, communications, and payment.89 Some Members of Congress and advocacy
groups have proposed that Congress specify a more precise coordination standard by enacting
legislation. H.R. 425 provides the most relevant example of such legislation in the 114th
Congress.
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
87 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.
88 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.
89 On coordination and the three-part regulatory test for coordination, see, respectively 52 U.S.C. §30116 (previously
codified at 2 U.S.C. §441a(a)(7)(B)) and 11 C.F.R. §109.21. For additional discussion, see CRS Legal Sidebar
WSLG909, Campaign Finance Law: What is a “Coordinated Communication” versus an “Independent Expenditure”?,
by L. Paige Whitaker.
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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.
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, but the topic has taken on new controversy. Additional information
would be required to fully document the sources and rationales behind all political expenditures.
For some, such disclosure would improve 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
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