Campaign Finance Law: An Analysis of Key Issues, Recent Developments, and Constitutional Considerations for Legislation

September 24, 2018 – May 17, 2023 R45320

Campaign Finance Law: An Analysis of Key
May 17, 2023
Issues, Recent Developments, and
L. Paige Whitaker
Constitutional Considerations for Legislation
Legislative Attorney

Federal campaign finance law is composed of a complex set of limits, restrictions, and
requirements on money and other things of value that are spent or contributed in the context of

federal elections. While the Federal Election Campaign Act (FECA, or Act) sets forth the
statutory provisions governing this area of law, several U.S. Supreme Court and lower court rulings have had a significant
impact on the Act’s regulatory scope. Notably, since 2003, a series of Supreme Court decisions has invalidated several FECA
provisions that were enacted as part of the Bipartisan Campaign Reform Act of 2002 (BCRA), and in 2010, the Court
invalidated a long-standing prohibition on independent expenditures funded from the treasuries of corporations and labor
unions. Most recently, the Court in 2022 invalidated a BCRA provision establishing a cap on the repayment of candidate
loans using post-election contributions. Generally, the Court has overturned such provisions as unconstitutional violations of
First Amendment guarantees of free speech.
As a foundational matter, FECA distinguishes between a contribution and an expenditure: a contribution involves giving
money to an entity, such as a candidate’s campaign committee, while an expenditure involves spending money directly for
advocacy of the election or defeat of a candidate. Generally, the Supreme Court has upheld limits on contributions, while
invalidating limits on expenditures. As discussed below, FECA regulates campaigns in three primary ways: contribution
limits; source restrictions, which are limits on who can make contributions; and disclosure and disclaimer requirements. In
addition to civil penalties, FECA provides for criminal penalties under certain circumstances.
Contribution limits refer to how much a donor can contribute as well as how they can contribute. Contribution limits include
specific limits on how much money a donor may contribute to a candidate, party, and political committee, which are known
as base limits. FECA also provides for related restrictions, including the ban on contributions made through a conduit; the
ban on converting campaign contributions for personal use; and the treatment of communications a donor makes in
coordination with a candidate or party as contributions. While the Supreme Court has generally upheld base limits, the Court
has struck down FECA’s aggregate limits, which capped the total amount of money a donor could contribute to all
candidates, parties, and political committees; limits on contributions to candidates whose opponents self-finance; and limits
on contributions by minors. In addition, based on Supreme Court precedent, an appellate court ruling provided the legal
underpinning for the establishment of super PACs.
FECA contains several bans, referred to as source restrictions, on who may make campaign contributions. Source restrictions
include the ban on corporate and union campaign contributions directly from treasury funds—although the Supreme Court
has held that limits on corporate and labor union independent spending are unconstitutional, the Court has upheld limits on
contributions. Source restrictions also include the ban on federal contractor contributions—known as the “pay-to-play”
prohibition—which the U.S. Court of Appeals for the D.C. Circuit upheld against a First Amendment challenge; the ban on
foreign national contributions and expenditures; and the restrictions on foreign national involvement in U.S. campaigns.
FECA also sets forth disclaimer and disclosure requirements. FECA’s disclaimer requirements mandate that statements of
attribution appear directly on campaign-related communications. FECA’s disclosure requirements mandate that political
committees register with the Federal Election Commission (FEC) and comply with periodic reporting requirements. In
addition, the law requires other entities—such as labor unions and corporations, including incorporated organizations that are
tax-exempt under Section 501(c)(4) of the Internal Revenue Code—that make independent expenditures or electioneering
communications to disclose information to the FEC. Generally, the Supreme Court has upheld the constitutionality of
disclaimer and disclosure requirements against First Amendment challenges as substantially related to the governmental
interest of safeguarding the integrity of the electoral process by promoting transparency and accountability.

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Tables
Table 1. Major Federal Contribution Limits, 2023-2024 .............................................................. 10

Contacts
Author Information ........................................................................................................................ 36

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Campaign Finance Law: Analysis of Key Issues and Recent Developments

ederal campaign finance law is composed of a complex set of limits, restrictions, and
requirements on money and other things of value that are spent or contributed in the
F context of federal elections.1 While the Federal Election Campaign Act2 (FECA, or Act)
sets forth the statutory provisions governing this area of law, several Supreme Court and lower
court rulings have also had a significant impact on the Act’s regulatory scope. Generally, the
courts have overturned such provisions as unconstitutional violations of First Amendment
guarantees of free speech.3
This report begins with a brief history of FECA and an overview of the constitutional framework
for evaluating campaign finance law. It then examines Supreme Court decisions that have
invalidated FECA provisions imposing limits on independent expenditures and electioneering
communications. Next, organized by regulatory context and integrating governing court
precedent, the report analyzes three primary areas of current FECA regulation: contribution
limits; source restrictions; and disclaimer and disclosure requirements. In so doing, the report
examines topics of recent interest to Congress, including the permissible uses of campaign funds;
the scope of what constitutes a campaign contribution; the ban on foreign nationals making
contributions and expenditures in connection with U.S. elections; and the restrictions on foreign
nationals participating in campaigns.4 As the Supreme Court’s campaign finance jurisprudence
informs the manner in which campaign financing may be constitutionally regulated, the report
assesses pivotal rulings that may be instructive should Congress consider legislation in this area.
The report also examines significant lower court rulings, including an appellate court decision
that provides the legal underpinning for the establishment of super PACs. Finally, the report
outlines the criminal penalties that may be imposed under the Act for violations of its provisions.
Brief History of FECA
In 1972, Congress first enacted FECA, requiring, among other things, campaign finance reporting
by candidates and political committees.5 In response to the Watergate scandal, Congress
substantially amended the Act in 1974, generally implementing limits on contributions and
expenditures, and creating the Federal Election Commission (FEC) to administer and provide
civil enforcement of FECA.6 As a result of a constitutional challenge to the 1974 Amendments,
the Supreme Court issued its seminal Supreme Court ruling in Buckley v. Valeo, holding, among
other things, mandatory spending limits unconstitutional, and invalidating the original

1 For a discussion of campaign finance policy, see CRS Report R41542, The State of Campaign Finance Policy: Recent
Developments and Issues for Congress, by R. Sam Garrett.
2 Codified, as amended, at 52 U.S.C. §§ 30101-30146. FECA was first enacted in 1972 and amended in 1974, 1976,
1979, and most recently and significantly, in 2002 by the Bipartisan Campaign Reform Act (BCRA). Id.
3 The First Amendment to the U.S. Constitution provides that “Congress shall make no law ... abridging the freedom of
speech, or of the press.” U.S. CONST. amend. I. This provision limits the government’s power to restrict speech. See id.;
see also Overview of Campaign Finance, Constitution Annotated,
https://constitution.congress.gov/browse/essay/amdt1-7-11-1/ALDE_00013490/.
4 See, e.g., Policy Response to Russian Interference in the 2016 U. S. Elections Before the S. Select Comm. on
Intelligence, 115th Cong., (2018), https://www.intelligence.senate.gov/hearings/open-hearing-policy-response-russian-
interference-2016-u-s-elections (last visited Feb. 6, 2023); The Modus Operandi and Toolbox of Russia and Other
Autocracies for Undermining Democracies Throughout the World Before the Subcomm. on Crime and Terrorism of the
S. Comm. on the Judiciary, 115th Cong. (2017), https://www.hsdl.org/c/abstract/?docid=801087 (last visited Feb. 23,
2023).
5 See Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 (codified at 52 U.S.C. §§ 30101-30146).
6 See Federal Election Campaign Act Amendments of 1974, Pub .L. No 93-443, 88 Stat. 1263 (codified at 52 U.S.C. §§
30101-30146).
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appointment structure of the FEC.7 Responding to the Court’s ruling, in 1976, Congress amended
FECA in order to, among other things, restructure the FEC and establish revised contribution
limits8 and amended it again in 1979, in order to revise certain reporting requirements.9
In 2002, Congress enacted the Bipartisan Campaign Reform Act (BCRA), which contains the
most recent, comprehensive amendments to FECA.10 Among other provisions, BCRA prohibited
corporate and labor union spending on certain advertisements run prior to elections and restricted
the raising and spending of unregulated funds—also known as “soft money”—in federal
elections. Since 2003, a series of Supreme Court decisions has invalidated several BCRA
provisions.11 In addition, in 2010, the Court invalidated a long-standing prohibition on
independent expenditures funded from the treasuries of corporations and labor unions.12
Accordingly, the body of federal campaign finance law that remains was not originally enacted by
Congress as a comprehensive regulatory policy.
A time line depicting major FECA amendments and relevant Supreme Court rulings evaluating
those laws is shown in Figure 1.

7 424 U.S. 1 (1976) (per curiam).
8 See Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 (codified at 52 U.S.C. §§
30101-30146).
9 See Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, 93 Stat. 1339 (codified at 52 U.S.C.
§§ 30101-30146).
10 Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codified at 52 U.S.C. §§ 30101-
30146). BCRA is also known as “McCain-Feingold,” in reference to the principal Senate sponsors of the legislation.
11 See, e.g., McConnell v. FEC, 540 U.S. 93, 223 (2003), overruled in part by Citizens United v. FEC, 558 U.S. 310
(2010) (holding, inter alia, that a BCRA provision prohibiting contributions by minors age 17 or younger violates the
First Amendment); Davis v. FEC, 554 U.S. 724, 740, 744 (2008) (holding that a BCRA provision establishing a series
of staggered increases in contribution limits for candidates whose opponents significantly self-finance their campaigns
violates the First Amendment); Citizens United, 558 U.S. at 310 (holding, inter alia, that a BCRA provision prohibiting
corporate and labor union treasury funds for electioneering communications violates the First Amendment). See
discussion infra, “Contribution Limits,” “Source Restrictions.”
12 See Citizens United, 558 U.S. 310 (2010), discussed infra, pp. 6-8.
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Figure 1. FECA Major Amendments and the U.S. Supreme Court: A Timeline

Source: Congressional Research Service, based on sources cited in this report.
Notes: FECA of 1971, Pub. L. No. 92-225, was enacted on February 7, 1972.
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Constitutional Framework
In Buckley, the Supreme Court established the framework for evaluating the constitutionality of
campaign finance regulation. According to the Court, limits on campaign contributions—which
involve giving money to an entity—and limits on expenditures—which involve spending money
directly for electoral advocacy—implicate rights of political expression and association under the
First Amendment.13 The Court, however, afforded different degrees of First Amendment
protection and levels of scrutiny to contributions and expenditures.
Contribution limits are subject to a more lenient standard of review than expenditure limits, the
Court held, because they impose only a marginal restriction on speech, and will be upheld if the
government can demonstrate that they are a “closely drawn” means of achieving a “sufficiently
important” governmental interest.14 Unlike expenditure limits, which reduce the amount of
expression, the Court opined, contribution limits involve “little direct restraint” on the speech of a
contributor.15 Although the Court acknowledged that a contribution limit restricts an aspect of a
contributor’s freedom of association, that is, his or her ability to support a candidate, nonetheless,
the Court determined that a contribution limit still permits symbolic expressions of support, and
does not infringe on a contributor’s freedom to speak about candidates and issues.16 Reasonable
contribution limits, the Court announced, still permit people to engage in independent political
expression, associate by volunteering on campaigns, and assist candidates by making limited
contributions.17 Regarding whether a contribution limit is closely drawn, the Court reasoned that
it was relevant to examine the amount of the limit.18 Limits that are too low could significantly
impede a candidate or political committee from amassing the necessary resources for effective
communication.19 The Court concluded, however, that the FECA contribution limit at issue in
Buckley would not negatively affect campaign funding.20
In contrast, the Buckley Court determined that because they impose a substantial restraint on
speech and association, expenditure limits are subject to strict scrutiny, requiring that they be
narrowly tailored to serve a compelling governmental interest.21 Specifically, under the First
Amendment, the Court determined, expenditure limits impose a restriction on the amount of
money that a candidate can spend on communications, thereby reducing the number and depth of
issues discussed and the size of the audience reached.22 Such restrictions, the Court determined,
are not justified by an overriding governmental interest. That is, because expenditures do not
involve money flowing directly to the benefit of a candidate’s campaign fund, the risk of quid pro
quo corruption does not exist.23 Essentially, quid pro quo corruption captures the notion of “a
direct exchange of an official act for money.”24 Further, the Court in Buckley rejected the

13 See Buckley, 424 U.S. at 23.
14 Id. at 25.
15 Id. at 21.
16 See id. at 21, 24.
17 See id. at 28-29.
18 See id. at 21.
19 See id.
20 See id. (determining that there was no indication that the subject contribution limitations “would have any dramatic
adverse effect on the funding of campaigns and political associations”).
21 See id. at 23.
22 See id.
23 See id.
24 See McCutcheon v. FEC, 572 U.S. 185, 192 (2014).
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government’s asserted interest in equalizing the relative resources of candidates, and in reducing
the overall costs of campaigns.25 Upon a similar premise, the Court rejected the government’s
interest in limiting a wealthy candidate’s ability to draw upon personal wealth to finance his or
her campaign, and struck down a law limiting expenditures from personal funds. When a
candidate self-finances, the Court pointed out, his or her dependence on outside contributions is
reduced, thereby lessening the risk of corruption.26
Importantly, the Court’s two most recent major campaign finance decisions, McCutcheon v. FEC
and FEC v. Ted Cruz for Senate, have announced that only quid pro quo corruption or its
appearance constitute a sufficiently important governmental interest to justify limits on
contributions and expenditures.27 In McCutcheon, the Court reasoned it has consistently rejected
campaign finance regulation based on other governmental objectives, such as goals to “reduce the
amount of money in politics,” “level the playing field,” “level electoral opportunities,” or
“equaliz[e] the financial resources of candidates.”28 While acknowledging that the Court’s
campaign finance jurisprudence has not always discussed the concept of corruption clearly and
consistently, and that the line between quid pro quo corruption and general influence may
sometimes seem vague, the Court in McCutcheon further reasoned that efforts to ameliorate
“influence over or access to elected officials or political parties” do not constitute a permissible
governmental interest.29 More recently, in FEC v. Ted Cruz for Senate, discussed further below,
the Court affirmed its holding in McCutcheon.30 In Ted Cruz for Senate, the Court reiterated that
the only acceptable government interest justifying restrictions on campaign speech under the First
Amendment is the prevention of quid pro quo corruption or its appearance, regardless of how
“well intentioned such proposals may be.”31
Although the Supreme Court’s campaign finance jurisprudence has shifted over the years, as this
report illustrates, reviewing courts have applied the basic Buckley framework when evaluating
whether a campaign finance regulation violates the First Amendment. Therefore, in Buckley and
its progeny, with some exceptions, courts have generally upheld limits on contributions,
concluding that they serve the governmental interest of protecting elections from corruption,
while invalidating limits on independent expenditures, concluding that they do not pose a risk of
corruption.
Independent Expenditure and Electioneering
Communication Limits
The Supreme Court has invalidated FECA provisions that establish limits on certain types of
independent expenditures and electioneering communications. FECA defines independent
expenditure to mean an expenditure by a person that expressly advocates the election or defeat of
a clearly identified candidate and “is not made in concert or cooperation with or at the request or
suggestion of” the candidate or a party.32 FECA defines electioneering communication to include

25 See Buckley v. Valeo, 424 U.S. 1, 53 (1976) (per curiam).
26 See id.
27 See McCutcheon, 572 U.S. at 192; FEC v. Ted Cruz for Senate, 142 S. Ct. 1638, 1652 (2022).
28 McCutcheon, 572 U.S. at 191, 207 (alteration in original).
29 Id. at 208.
30 See Ted Cruz for Senate, 142 S. Ct. at 1652.
31 Id.
32 52 U.S.C. § 30101(17).
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“any broadcast, cable, or satellite” transmission that “refers to a clearly identified” federal office
candidate and is transmitted within 60 days of a general election or 30 days of a primary.33 As
discussed below, in various rulings, the Court has invalidated those limits as violating the free
speech guarantees of the First Amendment.
Ban on Corporate and Labor Union Independent Expenditures and
Electioneering Communications
Relying on Buckley, in the 2010 decision of Citizens United v. FEC, the Court invalidated two
FECA prohibitions on independent electoral spending by corporations and labor unions under a
strict scrutiny standard of review.34 The Court invalidated, first, the long-standing prohibition on
corporations and labor unions35 using their general treasury funds for independent expenditures,
and second, a BCRA prohibition on the use of such funds for electioneering communications.36
As a result of Citizens United, corporations and labor unions37 are permitted to use their general
treasury funds to make independent expenditures and electioneering communications and are not
required to establish political action committees (PACs) for such spending.
According to the Court, independent expenditures and electioneering communications are
protected speech, regardless of whether the speaker is a corporation.38 Although the statute
contained an exception that permitted the use of corporate treasury funds to establish, administer,
and solicit contributions to a PAC for such spending,39 the Court determined that merely
permitting speech through a PAC does not equate to allowing a corporation to speak directly.40
Corporations and PACs are separate associations, the Court emphasized.41 The Court also

33 52 U.S.C. §§ 30118(b)(2), 30104(f)(3).
34 558 U.S. 310, 340 (2010). See also Am. Tradition P’ship, Inc. v. Bullock, 567 U.S. 516 (2014) (per curiam)
(rejecting arguments attempting to distinguish a state law from the federal law invalidated by Citizens United and
reiterating that “‘political speech does not lose First Amendment protection simply because its source is a
corporation.’”) (quoting Citizens United, 558 U.S. at 342).
35 Citizens United v. FEC, 558 U.S. 310, 376 (2010) (“The text and purpose of the First Amendment point in the same
direction: Congress may not prohibit political speech, even if the speaker is a corporation or union.”). Although the
issue before the Court was limited to the application of the prohibition on independent expenditures and electioneering
communications to Citizens United, a corporation, the reasoning of the opinion also appears to apply to labor unions.
36 See id. at 372 (invalidating the FECA prohibitions currently codified at 52 U.S.C. §§ 30118(a), 30118(b)(2)); see
also 52 U.S.C. § 30101(17) (defining an “independent expenditure” as a communication that “expressly advocat[es] the
election or defeat of a clearly identified candidate” and is not coordinated with any candidate or party) and §
30104(f)(3) (defining an “electioneering communication” to include “any broadcast, cable, or satellite” transmission
that “refers to a clearly identified” federal office candidate and is transmitted within 60 days of a general election or 30
days of a primary).
37 Although the issue before the Court was limited to the application of the prohibition on independent expenditures and
electioneering communications to Citizens United, a corporation, the reasoning of the opinion also appears likely to
apply to labor unions. Citizens United, 558 U.S. at 376 (“The text and purpose of the First Amendment point in the
same direction: Congress may not prohibit political speech, even if the speaker is a corporation or union.”).
38 See id. at 342-43.
39 See 52 U.S.C. § 30118(b)(2)(c). The law also permits a corporation to establish a PAC in order to make
contributions. See id. As a result of Citizens United, corporations are currently only required to use PAC funds to make
contributions, not expenditures.
40 See Citizens United, 558 U.S. at 337. Enumerating the “onerous” and “expensive” reporting requirements associated
with PAC administration, the Court announced that even if a PAC could permit a corporation to speak, “the option to
form a PAC does not alleviate the First Amendment problems” with the law. Id. at 335, 337. Further, the Court
announced that such administrative requirements may even prevent a corporation from having enough time to create a
PAC in order to communicate its views in a given campaign. See id. at 339.
41 See id. at 337.
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concluded that upholding the ban on corporate independent electoral spending would have the
“dangerous, and unacceptable, consequence” of permitting Congress to prohibit the political
speech of media corporations.42
In invalidating the FECA ban on corporate- and union-funded independent expenditures, the
Citizens United ruling overturned a 1990 Supreme Court ruling, Austin v. Michigan Chamber of
Commerce,43 determining that it conflicted with a 1978 ruling, First National Bank of Boston v.
Bellotti.44 In Bellotti, the Court invalidated a state prohibition on corporate independent
expenditures related to referenda, holding that the government cannot restrict political speech
because the speaker is a corporation.45 Criticizing the Austin decision for “bypass[ing] Buckley
and Bellotti,” the Court in Citizens United rejected the “antidistortion interest” that the Court in
Austin “identified” to justify limits on political speech.46 According to the Court in Citizens
United, independent expenditures, including those made by corporations, do not cause corruption
or the appearance of corruption.47 The Court further denounced the Austin precedent for
permitting “interfer[ence] with the ‘open marketplace’ of ideas protected by the First
Amendment” through a ban on political speech by millions of associations of citizens—many of
which are small corporations without large aggregations of wealth.48
Similarly, in invalidating the BCRA prohibition on corporate and union treasury-funded
electioneering communications, the Citizens United ruling overruled a portion of its 2003
decision in McConnell v. FEC that upheld the facial validity of the prohibition.49 The Court in
Citizens United concluded that the McConnell decision had relied on the antidistortion interest
recognized in Austin in reaching this conclusion.50 The Court in Citizens United reached this
conclusion despite a limiting principle imposed by a 2007 ruling, FEC v. Wisconsin Right to Life,
Inc. (WRTL).51 In WRTL, the Court had narrowed the definition of electioneering communication
to mitigate concerns that the law could prohibit First Amendment protected issue-related speech,
known as issue advocacy. According to the Court in WRTL, the term electioneering
communication could constitutionally encompass only express advocacy52 (for example,

42 Id. at 351.
43 494 U.S. 652 (1990), overruled by Citizens United v. FEC, 558 U.S. 310 (2010).
44 Citizens United, 558 U.S at 348. (“The Court is thus confronted with conflicting lines of precedent: a pre-Austin line
that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits
them.”)
45 435 U.S. 765 (1978).
46 Citizens United, 558 U.S. at 348 (rejecting the reasoning of the Court in Austin that “the corrosive and distorting”
impact of large amounts of money that were acquired with the benefit of the corporate form, which the Court
characterized as “an antidistortion interest” but were unrelated to the public’s support for the corporation’s political
views, constituted a sufficiently compelling governmental interest to justify such a restriction).
47 See id. at 357.
48 Id. at 354.
49 See id. at 365.
50 See id. at 365–66. Referencing Justice Scalia’s concurrence in WRTL, the Court agreed with the conclusion that
“Austin was a significant departure from ancient First Amendment principles” and held “that stare decisis does not
compel the continued acceptance of Austin.” Id. at 319 (quoting FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449,
490 (2007) (Scalia, J., concurring in part and concurring in judgment)).
51 See 551 U.S. 449 (2007). WRTL was decided four years after the Supreme Court upheld the electioneering
communication prohibition against a First Amendment facial challenge in McConnell. While not expressly overruling
McConnell, the Court in WRTL limited the prohibition’s application. See id. at 469-70.
52 In Buckley, the Supreme Court provided the genesis for the concept of issue and express advocacy communications.
In order to avoid invalidation of an earlier FECA expenditure limit on grounds of unconstitutional vagueness, the Court
applied a limiting construction so that the provision applied only to non-candidate “expenditures for communications
(continued...)
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communications stating “vote for” or “vote against”) or the “functional equivalent” of express
advocacy.53 That is, the Court advised that communications that could reasonably be interpreted
as something “other than as an appeal to vote for or against a specific candidate” could not be
considered electioneering communications.54
Ban on Political Party Independent Expenditures
The Supreme Court has held that limits on independent expenditures by political parties are
unconstitutional under the First Amendment as applied to a Colorado political party. In Colorado
Republican Federal Campaign Committee v. FEC (Colorado I), although unable to reach
agreement on an opinion, seven Justices of the Court ruled that the FECA provision limiting such
independent expenditures, as applied to independent expenditures made by a party in connection
with a U.S. Senate campaign, is unconstitutional.55 The plurality opinion, written by Justice
Breyer and joined by Justices O’Connor and Souter, announced that independent expenditures do
not raise heightened governmental interests in regulation because the money is deployed to
advance a political point of view separate from a candidate’s viewpoint and, therefore, cannot be
limited under the First Amendment.56 The opinion emphasized that the “constitutionally
significant fact” of an independent expenditure is the absence of coordination between the
candidate and the source of the expenditure.57 In conclusion, the opinion reasoned that, because
the Constitution provides to individuals, candidate campaigns, and “ordinary political
committees” a right to make independent expenditures without any limits, it therefore affords that
same right to political parties.58
In contrast, the Court in Colorado II ruled that a political party’s coordinated expenditures—that
is, expenditures made in cooperation or consultation with a candidate—may be constitutionally
limited in order to minimize circumvention of contribution limits.59 In Colorado II, the Court
overturned a lower court decision holding that the FECA coordinated party expenditure limits are
unconstitutional.60 According to the Court, unlike independent expenditures, coordinated party
expenditures have no “significant functional difference” from direct party candidate
contributions.61

that in express terms advocate the election or defeat of a clearly identified candidate for federal office” (i.e., express
advocacy). 424 U.S. 1, 44 (1976) (per curiam). In a footnote, the Court explained that this limiting construction would
restrict the application of the provision to communications containing express advocacy terms, such as “vote for,”
“elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” and “reject.” Id. at 44, n.52.
53 Wisconsin Right to Life, Inc., 551 U.S. at 469-70.
54 Id. at 470.
55 518 U.S. 604, 618 (1996).
56 See id. at 614–615 (citing FEC v. National Conservative Political Action Committee (NCPAC), 470 U.S. 480, 497
(1985)).
57 Id. at 617 (citing Buckley, 424 U.S. at 45–46; NCPAC, 470 U.S. at 498).
58 Id. at 618.
59 FEC v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431, 465 (2001). For further
discussion, see CRS Report RS22644, Coordinated Party Expenditures in Federal Elections: An Overview, by R. Sam
Garrett and L. Paige Whitaker.
60 See id.
61 Id. at 464.
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Requirement That Political Parties Choose Between Coordinated
and Independent Expenditures
The Court has also determined that a requirement that political parties choose between making
coordinated and independent expenditures is unconstitutional. In McConnell v. FEC, the Court
held that a provision of BCRA62 that required political parties to choose between coordinated and
independent expenditures after nominating a candidate burdened the First Amendment right of
parties to make unlimited independent expenditures.63
Constitutional Considerations for Legislation
Legislation that would limit independent expenditures or electioneering communications would
likely be invalidated by the courts as unconstitutional. As discussed, the Supreme Court has held
unconstitutional several provisions of FECA limiting independent expenditures or electioneering
communications:
• a prohibition on corporations and labor unions using their general treasury funds
to make independent expenditures and electioneering communications;64
• limits on independent expenditures in support of a U.S. candidate, as applied to a
political party;65 and
• a requirement that political parties, after nominating a candidate, choose between
making coordinated and independent expenditures.66
Based upon existing precedent, the Court has made clear that such limits would be subject to a
strict scrutiny standard of review, requiring that the limitations be narrowly tailored to serve the
compelling governmental interest of avoiding quid pro quo corruption.
Contribution Limits
As discussed, FECA sets forth limits and restrictions on campaign contributions in federal
elections. FECA broadly defines a “contribution” to include money or anything of value given for
the purpose of influencing an election for federal office.67 Specifically, FECA defines
contributions to include “any gift, subscription, loan, advance, or deposit of money or anything of
value” that is made “for the purpose of influencing any election for Federal office” or a payment
that is made for compensation of personal services that are rendered to a political committee free
of charge.68
As outlined above, FECA expressly defines contributions to include loans made to campaign
committees; however, the Act exempts from such definition loans that are made from banks, so
long as they are made in compliance with applicable law and “in the ordinary course of
business.”69 Further, the Act specifies that a bank loan to a campaign committee must be

62 Pub. L. No. 107-155, § 203, 116 Stat. 91 (codified at 52 U.S.C. § 30116(d)(4)).
63 540 U.S. 93, 213-14 (2003).
64 See Citizens United v. FEC, 558 U.S. at 372.
65 See Colorado I, 518 U.S. at 618.
66 See McConnell, 540 U.S. at 213.
67 52 U.S.C. § 30101(8)(A).
68 Id. § 30101(8)(A)(i), (ii).
69 Id. § 30101(8)(B)(vii).
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evidenced by a written instrument, ensuring repayment on a date certain or in accordance with an
amortization schedule, and subject to the lending institution’s “usual and customary interest
rate.”70 However, in the case of other loans made to a campaign—for example, personal loans—
the outstanding balance is considered a campaign contribution.71 Therefore, the amount of an
unpaid loan, coupled with other contributions made by an individual to a given candidate or
committee, cannot exceed the applicable contribution limit.72 Once a loan is repaid in full, the
amount of the loan is no longer considered a contribution.73
The following sections of the report provide an overview of FECA’s limits and restrictions on
contributions, including a discussion of key constitutional rulings.
Specific Limits
FECA provides specific limits on how much individuals can contribute to a candidate, and these
limits are periodically adjusted for inflation in odd-numbered years.74 For the 2023-2024 federal
election cycle, an individual can contribute up to $3,300 per election to a candidate.75
Table 1, below, outlines the major federal campaign contribution limits applicable to the 2023-
2024 cycle.
Table 1. Major Federal Contribution Limits, 2023-2024

Recipient
Multicandidate
Principal
Committee (most
National Party
State, District,
Campaign
PACs, including
Committee
Local Party
Contributor
Committee
leadership PACs)
(DSCC; NRCC, etc.)
Committee
Individual
$3,300 per electiona
$5,000 per year
$41,300 per yeara
$10,000 per year
Additional $123,900 limit (combined limit)
for each special party
accountab
Principal
$2,000 per election
$5,000 per year
Unlimited transfers to
Unlimited
Candidate
party committees
transfers to
Campaign
party
Committee
committees
Multicandidate
$5,000 per election
$5,000 per year
$15,000 per year
$5,000 per year
Committee (most
Additional $45,000 limit
(combined limit)
PACs, including
for each special party
leadership PACs)c
accountb
State, District,
$5,000 per election
$5,000 per year
Unlimited transfers to
Unlimited
Local Party
(combined limit)
(combined limit)
party committees
transfers to
Committee
party
committees

70 Id. § 30101(8)(B)(vii)(II), (III).
71 11 C.F.R. § 100.52(b).
72 Id. § 100.52(b)(2).
73 Id.
74 52 U.S.C. § 30116(a).
75 See Contribution Limits for 2023–24, FEC (Feb. 2023), https://www.fec.gov/resources/cms-
content/documents/contribution_limits_chart_2023-2024.pdf.
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Recipient
Multicandidate
Principal
Committee (most
National Party
State, District,
Campaign
PACs, including
Committee
Local Party
Contributor
Committee
leadership PACs)
(DSCC; NRCC, etc.)
Committee
National Party
$5,000 per election
$5,000 per year
Unlimited transfers to
Unlimited
Committee
party committees
transfers to
party
committees
Source: Table 1, CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for
Congress, by R. Sam Garrett, adapted from Contribution Limits for 2023–24, FEC (Feb. 2023),
https://www.fec.gov/resources/cms-content/documents/contribution_limits_chart_2023-2024.pdf.
Notes: The table assumes that leadership PACs would qualify for multicandidate status. The FEC chart, 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) share a combined 2023-2024 per-candidate limit of $57,800 per six-year cycle. This limit is adjusted
biennially for inflation.
a. These limits are adjusted biennially for inflation in odd-numbered years.
b. National party committees may accept these contributions for separate accounts for (1) presidential
nominating conventions; (2) recounts and other legal compliance activities; and (3) party headquarters
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.
c. 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 automatically over time.
Constitutionality of Base and Aggregate Limits
In Buckley, the Court upheld the constitutionality of FECA76 base limits, which limit the amounts
of money an individual can contribute to a candidate, party, or political committee.77 In the years
since, the Court has applied the principles articulated in Buckley to uphold what it considers
reasonable contribution limits, while invalidating limits it determines are too low to allow a
candidate to amass necessary resources for effective campaigning. For example, in Nixon v.
Shrink Missouri Government PAC, the Court upheld a state law imposing limits on contributions
made to candidates running for state office.78 While observing that contribution limits must be
closely drawn to a sufficiently important interest, the Court announced that the amount of the
limitation “need not be ‘fine tuned.’”79 In contrast, in Randall v. Sorell, in a plurality opinion, the
Court invalidated a Vermont law that provided that individuals, parties, and political committees
were limited to contributing $400 to certain state candidates, per two-year election cycle, without

76 FECA contribution limits are codified at 52 U.S.C. § 30116(a) and are adjusted biannually for inflation, 52 U.S.C. §
30116(c). In Buckley, the Supreme Court evaluated the constitutionality of certain provisions of federal campaign
finance law, including the Federal Election Campaign Act (FECA) of 1971, as amended in 1974. Buckley v. Valeo,
424 U.S. 1 (1976) (per curiam). In sum, the FECA provisions at issue included (1) a $1,000 contribution limit to any
candidate by any individual; (2) a $25,000 limit on an individual’s annual, aggregate contributions; (3) a $1,000 cap on
a person’s or group’s independent expenditures “relative to a clearly identified candidate”; (4) spending limits on
various candidates for various federal offices; and (5) spending limits on political parties’ national conventions.
77 424 U.S. 1 (1976) (per curiam).
78 528 U.S. 377 (2000).
79 Id. at 387–88 (quoting Buckley, 424 U.S. at 30, n. 3).
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providing for inflation adjustment.80 While unable to reach consensus on a single opinion, six
Justices agreed that Vermont’s contribution limits violated First Amendment free-speech
guarantees. The plurality opinion, written by Justice Breyer and joined by two other Justices,
determined that the contribution limits in Randall were substantially lower than limits the Court
had previously upheld, as well as limits in effect in other states, and that they were not narrowly
tailored.81 The opinion also concluded that the limits substantially restricted candidates,
particularly challengers, from being able to raise the funds necessary to run a competitive
campaign; impeded parties from getting their candidates elected; and deterred individual citizens
from volunteering on campaigns (because the law counted certain volunteer expenses toward a
volunteer’s individual contribution limit).82
In contrast to base contribution limits, FECA also provided for limits on the amount of money a
donor could contribute in total to all candidates, parties, and political committees, which is
referred to as aggregate contribution limits. In a 2014 ruling, McCutcheon, the Supreme Court
held that a BCRA provision establishing aggregate contribution limits was unconstitutional under
the First Amendment.83 Characterizing them as an “outright ban” on further contributions once
the aggregate amount has been reached, the Court determined that they violate the First
Amendment by infringing on political expression and association rights, without furthering the
governmental interest of preventing quid pro quo corruption or its appearance.84
In Buckley v. Valeo, the Court had upheld the constitutionality of a $25,000 federal aggregate
contribution limit then in effect,85 characterizing that limit as a “quite modest restraint” that
served to prevent circumvention of base limits.86 In other words, the Court determined that the
aggregate limits constrained an individual from, for example, contributing large amounts to a
particular candidate through “the use of unearmarked contributions to political committees likely
to contribute to that candidate.”87 In McCutcheon, however, the Court invalidated a BCRA
provision that imposed biennial limits on aggregate contributions, which were adjusted for
inflation each election cycle.88 For example, during the 2011-2012 election cycle, the Act
prohibited individuals from making contributions to candidates totaling more than $46,200, and
to parties and PACs (with the exception of “super PACs”) totaling more than $70,800.89 (The base
limits on contributions established by BCRA were not at issue in this case and remain in effect.)
As a threshold matter, the plurality opinion in McCutcheon determined that, regardless of whether
strict scrutiny or Buckley’s “closely drawn” standard applies, the analysis requires the Court to

80 548 U.S. 230, 262 (2006).
81 See id. at 261.
82 See id. at 253, 259-60. The opinion agreed with the district court “that the Act’s contribution limits ‘would reduce the
voice of political parties’ in Vermont to a ‘whisper.’” Id. at 259 (quoting Landell v. Sorrell, 118 F. Supp. 2d 459, 487
(D. Vt. 2000), aff’d in part and vacated in part, 382 F.3d 91 (2d Cir. 2002)).
83 572 U.S. 185 (2014). For discussion of the policy impact of McCutcheon, see CRS Report R43334, Campaign
Contribution Limits: Selected Questions About McCutcheon and Policy Issues for Congress, by R. Sam Garrett.
84 Id. at 204.
85 Buckley v. Valeo, 424 U.S. 1, 38 (1976) (per curiam).
86 Id.
87 Id.
88 See McCutcheon, 572 U.S. at 227 (invalidating a FECA provision codified at 52 U.S.C. § 30116(a)(3)).
89 Of that amount, no more than $46,200 could be contributed to state and local parties. In comparison, during the same
election cycle, individuals were subject to individual base limits of $2,500 per candidate, per election; $30,800 per year
to national parties; $10,000 per year to state, local and district party committees combined; and $5,000 per year to
PACs. Contributions to super PACs are not subject to limits. See infra at pp. 19–20.
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“assess the fit” between the government’s stated objective and the means to achieve it.90 Applying
that analysis to FECA’s aggregate contribution limits, the opinion observed a “substantial
mismatch” between the two, and concluded that even under Buckley’s more lenient standard of
review, the limits could not be upheld.91 The plurality in McCutcheon further concluded that
Buckley’s holdings on aggregate limits did not control92 because the Buckley Court had engaged
in minimal analysis of aggregate limits and that the limits at issue in McCutcheon established a
different statutory regime and operated under a distinct legal backdrop.93 The Court reasoned that,
since Buckley, Congress had enacted other statutory and regulatory safeguards against
circumvention of base limits.94 The opinion also outlined additional safeguards that Congress
could enact to prevent circumvention of base contribution limits, such as targeted restrictions on
transfers among candidates and political committees or enhanced restrictions on earmarking, but
cautioned that the opinion was not meant to evaluate the validity of any particular proposal.95
Further distinguishing the holding in Buckley, the McCutcheon plurality emphasized that
aggregate contribution limits restrict how many candidates and committees an individual can
support,96 which creates an “outright ban” on further contributions. This ban, the opinion
concluded, unconstitutionally restricts both free speech and association rights.
Importantly, it was in McCutcheon that the Court announced that the prevention of quid pro quo
corruption or its appearance is the only legitimate governmental interest for restricting campaign
contributions.97 According to the opinion, the spending of large sums of money in connection
with elections, but absent an effort to control how an officeholder exercises his or her official
duties, does not give rise to quid pro quo corruption.98 Although McCutcheon did not expressly
adopt a stricter standard of review for contribution limits, its announcement that only quid pro
quo corruption or its appearance serve as a compelling governmental interest may affect the
degree to which contribution limits are upheld in future rulings.
Additional Restrictions on Contributions
Ban on Contributions Made Through a Conduit
In addition to limiting the amount a donor may contribute to a campaign, FECA also places
certain restrictions on the types of contributions that a donor can make. For example, FECA
prohibits contributions made through a conduit—that is, by one person “in the name of another
person”—and bans candidates from knowingly accepting such contributions.99 This provision
serves to prevent an individual, who has already contributed the maximum amount to a given
candidate, from circumventing contribution limits by giving money to someone else to contribute

90 See McCutcheon, 572 U.S. at 199.
91 Id.
92 See id. at 200.
93 See id.
94 See id. at 200-1.
95 See id. at 221-23.
96 Id. Once an individual contributed $5,200 each to nine candidates, the aggregate limits were triggered and, as the
opinion calculates, the individual was then prohibited from making further contributions, up to the maximum permitted
by the base limits, to other candidates.
97 See id. at 192 (citing Citizens United v. FEC, 558 U.S. 310, 359 (2010)).
98 The Court explained that “[t]he hallmark of corruption is the financial quid pro quo: dollars for political favors.” Id.
at 192 (quoting FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 497 (1985)).
99 52 U.S.C. § 30122.
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to that same candidate. FEC regulations further specify that a corporation is prohibited from
reimbursing employees for their campaign contributions through a bonus, expense account, or
other form of compensation.100 Notably, as discussed below in the section of the report entitled
“Criminal Penalties,” FECA provides for specific penalties for knowing and willful violations of
this provision.101
Ban on Conversion of Campaign Contributions for Personal Use
FECA also expressly prohibits a candidate from converting campaign funds for personal use.102
Specifically, the Act considers a contribution to be converted to personal use if it is used to fulfill
any commitment, obligation, or expense that would exist “irrespective” of the candidate’s
campaign or duties as a federal officeholder. Examples of such expenses include home mortgage,
rent, or utility payments; clothing purchases; non-campaign-related car expenses; country club
memberships; vacations; household food; tuition payments; admission to sporting events,
concerts, theater performances, or other entertainment not associated with a campaign; and health
club fees.103
The FEC has issued advisory opinions in response to inquiries regarding whether certain
expenses may be paid for with campaign funds. For example, in 2018, the FEC decided that a
candidate may pay for child care expenses with campaign funds if they are incurred as a direct
result of campaign activity.104 According to the FEC, applying the irrespective test, if child care
expenses are incurred as a direct result of campaign activity, “they would not exist irrespective”
of the campaign.105 In addition, the FEC has issued advisory opinions approving the use of
campaign funds to pay for certain residential home security measures, reasoning that such
security measures would not be necessary except for the requestors’ roles as federal candidates or
officeholders.106
Treatment of Coordinated Communications as Contributions
As discussed, FECA defines independent expenditure to mean an expenditure by a person that
expressly advocates the election or defeat of a clearly identified candidate, and “is not made in
concert or cooperation with or at the request or suggestion of” the candidate or a party.107 In
contrast, FECA provides that a communication will be considered “coordinated” if it is made “in
cooperation, consultation or concert, with, or at the request or suggestion of” the candidate or a
party.108 In other words, if a communication—such as a political advertisement—is made in
coordination with a candidate or political party, it is treated as an in-kind contribution to the
corresponding candidate or party, or as a coordinated party expenditure, rather than as an

100 11 C.F.R. §114.5(b)(1).
101 See infra p. 36.
102 52 U.S.C. § 30114(b). See also CRS Report R46878, Permissible and Prohibited Uses of Campaign Funds:
Frequently Asked Questions and Policy Overview, by R. Sam Garrett.
103 52 U.S.C. § 30114(b)(2); 11 C.F.R. §113.1(g).
104 FEC, Advisory Opinion (AO) 2018-06 (May 11, 2018) (Use of campaign funds for childcare expenses).
105 Id. at 3.
106 See, e.g., FEC, AO 2022-02 (May 4, 2022); AO 2020-06 (Jan. 29, 2021); AO 2011-17 (Sept. 1, 2017); AO 2011-05
(May 1, 2011); and AO 2009-08 (May 7, 2009).
107 52 U.S.C. § 30101(17).
108 Id. § 30116(a)(7)(B)(i),(ii).
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independent expenditure.109 Like other contributions, in-kind contributions and coordinated party
expenditures are subject to FECA limits and source restrictions, as discussed below.110
The regulatory line between coordinated communications and independent expenditures is based
on Supreme Court precedent. In various rulings, the Court has determined that the First
Amendment does not allow any limits on expenditures that are made independently of a candidate
or party because the money is deployed to advance a political point of view separate from a
candidate’s viewpoint. In other words, the Court has explained, without coordination or
“prearrangement” with a candidate, not only is the value of an expenditure decreased, but so is
“the danger that expenditures will be given as a quid pro quo for improper commitments from the
candidate.”111 Accordingly, the Court has reasoned that independent expenditures do not raise
heightened governmental interests in regulation.112 As the Court has emphasized, the
“constitutionally significant fact” of an independent expenditure is the absence of coordination
between the candidate and the source of the expenditure,113 and the independence of such
spending is easily distinguishable when it is made “without any candidate’s approval (or wink or
nod).”114 Hence, individuals, political parties, political action committees (PACs), super PACs,
and other organizations can engage in unlimited independent expenditures. Furthermore, as a
result of the Court’s ruling in Citizens United v. FEC, discussed above, corporations and labor
unions have a constitutionally protected right to engage in unlimited independent expenditures
directly from their revenue funds or “general treasuries” and are not required to establish a PAC
in order to conduct such spending.115
As summarized below, regulations promulgated under FECA set forth specific criteria
establishing when a communication by an organization will be considered coordinated with a
candidate or a party and thereby treated as a contribution.116 Specifically, the regulations set forth
a three-prong test whereby if all prongs of the test are met—payment, content, and conduct—a
communication will be deemed coordinated:
Payment. In general, the regulations provide that the “payment” standard is met if the
communication is paid for, in whole or in part, by a person other than the candidate, a candidate
committee, or party.117
Content. The “content” standard addresses the subject and timing of a communication. The
content standard does not require that a communication contain express advocacy (i.e., expressly
advocating the election or defeat of a clearly identified candidate, using terms such as “vote for,”

109 11 C.F.R. § 109.21(b). This portion of the report contains a summary discussion of what constitutes coordination
under federal campaign finance law. For further information, consult the Federal Election Commission, FEC
regulations, and the FEC webpage, Coordinated Communications, FEC, https://www.fec.gov/help-candidates-and-
committees/candidate-taking-receipts/coordinated-communications/ (last visited Feb. 6, 2023). See also, CRS Report
RS22644, Coordinated Party Expenditures in Federal Elections: An Overview, by R. Sam Garrett and L. Paige
Whitaker.
110 52 U.S.C. § 30116(a)(7)(B)(i),(ii).
111 Citizens United v. FEC, 558 U.S. 310, 357 (2010) (citing Buckley v. Valeo, 424 U.S. 1, 47 (1976) (per curiam)). See
infra pp. 6–8.
112 See Buckley, 424 U.S. at 47; FEC v. NCPAC, 470 U.S. 480 (1985); Colorado I, 518 U.S. 604, 617 (1996).
113 See Colorado I, 518 U.S. at 617.
114 Colorado II, 533 U.S. 431, 442 (2001).
115 See Citizens United, 558 U.S. 310 (2010). See infra pp. 6–8.
116 11 C.F.R § 109.21.
117 Id. § 109.21(a).
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“elect,” or “vote against”).118 Generally, the regulations provide that the content standard is met if
a communication is
• an electioneering communication, which is defined to include a broadcast, cable,
or satellite communication that refers to a federal candidate, made within 60 days
of a general election or 30 days of a primary;119
• a public communication that distributes or republishes, in whole or in part,
candidate campaign materials, with certain exceptions;
• a public communication that expressly advocates election or defeat of a clearly
identified candidate or is the “functional equivalent of express advocacy”; or
• a public communication that, in part, refers to a candidate or party and, for House
or Senate elections, is disseminated within 90 days before a primary or general
election or, for presidential and vice presidential elections, is disseminated within
120 days before a primary or nominating convention or caucus.120
Conduct. The “conduct” standard addresses interactions between the person paying for the
communication and the relevant candidate or party. Generally, the regulations specify that the
conduct standard is met if
• the communication is created at the “request or suggestion of” a candidate or
party, or at the suggestion of the funder of the communication and the candidate
or party assents to the suggestion;
• the candidate or party is “materially involved” in decisions regarding the
communication;
• the communication is created after “substantial discussions” between the funder
of the communication and the candidate or party;
• the funder of the communication employs a “common vendor” meeting certain
criteria to create the communication; or
• a person who has previously been an employee or independent contractor of a
candidate or party during the previous 120 days uses or conveys certain
information to the funder of the communication.121
Exceptions or “Safe Harbors.” FEC regulations also set forth several “safe harbors” exempting
communications from being deemed coordinated. Below are a few examples, summarized.
• Endorsements and Solicitations. A public communication in which a federal
candidate endorses or solicits funds for another federal or nonfederal candidate is
not considered coordinated with respect to the endorsement or the solicitation,
unless the public communication “promotes, supports, attacks, or opposes” the
endorsing candidate or another candidate running for the same office.122
• Firewalls. The “conduct” standards are not met if the commercial vendor, former
employee, or political committee established a firewall that meets certain
requirements, including a prohibition on the flow of information between
employees or consultants providing services for the funder of the

118 11 C.F.R. § 109.21(c).
119 52 U.S.C. § 30104(f)(3)); 11 C.F.R. §100.29.
120 Id. §§ 109.21(c), 109.23.
121 Id. § 109.21(d).
122 Id. § 109.21 (g).
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communication, and employees or consultants providing services to the candidate
or the candidate’s opponent or a party. The firewall must be described in a written
policy that is distributed to all relevant employees, consultants, and clients.123
• Publicly Available Information. If information material to the creation of a
communication was obtained from a publicly available source, the other
“conduct” standards are not met, unless the communication was made at the
“request or suggestion” of a candidate or party, or at the suggestion of the funder
of the communication and the candidate or party assents to the suggestion.124
• Legislative Inquiries. If a candidate or party responds to an inquiry about its
position on a legislative or policy issue—but not including campaign plans,
projects, activities, or needs—the “conduct” standards are not met.125
Constitutionality of Other Contribution Limits
In addition to invalidating the BCRA provision setting forth aggregate contribution limits,
discussed above, the Supreme Court has also invalidated the BCRA provisions establishing limits
on contributions whose opponents significantly self-finance and the limits on contributions by
minors. Furthermore, in a ruling that provided the legal underpinning for the establishment of
super PACs, an appellate court has ruled that limits on contributions to groups that make only
independent expenditures are unconstitutional. The following sections of the report briefly
examine these rulings.
Limits on Contributions to Candidates Whose Opponents Self-Finance
In 2008, the Court held, in Davis v. FEC, that a statute establishing a series of staggered increases
in contribution limits for candidates whose opponents significantly self-finance their campaigns
violates the First Amendment, because the penalty imposed on expenditures of personal funds is
not justified by the compelling governmental interest of lessening corruption or its appearance.126
Enacted as part of BCRA, the invalidated provision of law is known as the “Millionaire’s
Amendment.”127 The Millionaire’s Amendment provided a complex statutory formula (using
limits that were in effect at the time the Court considered Davis) requiring that if a candidate for
the House of Representatives spent more than $350,000 of personal funds during an election
cycle, the individual contribution limits applicable to her opponent were increased from the then-
current limit ($2,300 per election) to up to triple that amount (or $6,900 per election). Similarly,
for Senate candidates, a separate provision generally raised individual contribution limits for a
candidate whose opponent exceeded a designated threshold level of personal campaign funding
that was based on the number of eligible voters in the state.128 For both House and Senate
candidates, the increased contribution limits were eliminated when parity in spending was
reached between the two candidates.

123 Id. § 109.21(h).
124 Id. § 109.21(d).
125 Id. § 109.21(f).
126 See Davis v. FEC, 555 U.S. 724, 740, 744 (2008).
127 Pub. L. No. 107-155, § 319(a), 116 Stat. 81 (2002) (codified at 52 U.S.C. § 30117(a)) (establishing increased
contribution limits for House candidates whose opponents significantly self-finance their campaigns).
128 Id. at § 304 (codified at 52 U.S.C. § 30116(i)) (establishing increased contribution limits for Senate candidates
whose opponents significantly self-finance their campaigns).
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While acknowledging the long history of jurisprudence upholding the constitutionality of
individual contribution limits, the Court emphasized its definitive rejection of any limits on a
candidate’s expenditure of personal funds to finance campaign speech.129 The Court reasoned that
limits on a candidate’s right to advocate for his or her own election are not justified by the
compelling governmental interest of preventing corruption—instead, the use of personal funds
actually lessens a candidate’s reliance on outside contributions and thereby counteracts coercive
pressures and risks of abuse that contribution limits seek to avoid.130
Although conceding that the Millionaire’s Amendment did not directly impose a limit on a
candidate’s expenditure of personal funds, the Court concluded that it impermissibly required a
candidate to make a choice between the right to free political expression and being subjected to
discriminatory contribution limits, and that it created a fundraising advantage for his or her
opponents.131 In contrast, if the law had simply increased the contribution limits for all
candidates—both the self-financed candidate as well as the opponent—the Court opined that it
would have passed constitutional muster.132 Intrinsically, candidates have different strengths
based on factors such as personal wealth, fundraising ability, celebrity status, or a well-known
family name, and by attempting to level electoral opportunities, the Court reasoned, Congress is
deciding which candidate strengths should be allowed to affect an election.133 The Court warned
that using election law to influence voters’ choices is a “dangerous business.”134
Limits on Contributions Made by Minors
In 2003, the Court in McConnell v. FEC unanimously invalidated as unconstitutional under the
First Amendment a BCRA provision135 prohibiting individuals age 17 or younger from making
contributions to candidates and political parties.136 Reasoning that minors enjoy First Amendment
protection and that contribution limits impinge on such rights, the Court determined that the
prohibition was not closely drawn to serve a sufficiently important government interest.137
In response to the government’s assertion that such a prohibition protects against corruption by
conduit—that is, parents donating through their minor children to circumvent contribution
limits—the Court saw little evidence to support the existence of this type of evasion.138
Furthermore, the Court postulated that such circumvention of contribution limits may be deterred
by the FECA provision prohibiting contributions in the name of another person, discussed above,
and the knowing acceptance of contributions made in the name of another person.139 Even
assuming that a sufficiently important interest could be provided in support of the prohibition, the

129 Davis, 554 U.S. at 738.
130 See id. In response to the FEC’s argument that the statute’s “asymmetrical limits” are justified because they level the
playing field for candidates of differing personal wealth, the Court explained that its campaign finance precedent offers
no support for this rationale serving as a compelling governmental interest. Id. at 741.
131 See id.
132 See id. at 737.
133 See id.
134 Id.
135 Pub. L. No. 107-155, § 318, (codified at 52 U.S.C. § 30126).
136 540 U.S. 93, 231 (2003), overruled in part by Citizens United v. FEC, 558 U.S. 310 (2010).
137 See id. at 231–32 (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511–513 (1969); Buckley v.
Valeo, 424 U.S. 1, 20–22 (1976) (per curiam)).
138 See id.
139 See id.
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Court determined that the prohibition was overinclusive.140 While observing that various states
have adopted more tailored approaches to address this issue—for example, by counting
contributions by minors toward the total permitted for a parent or family unit, imposing a lower
cap on contributions by minors, and prohibiting contributions by very young children—the Court
expressly declined to decide whether any such alternatives would pass muster.141
Limits on Contributions to Super PACs
Providing the legal underpinning for the creation of super PACs, in 2010, the U.S. Court of
Appeals for the District of Columbia (D.C. Circuit) held that limits on contributions to groups
making only independent expenditures are unconstitutional.142 In view of the Supreme Court’s
decision in Citizens United143—decided only months before—holding that independent
expenditures do not give rise to corruption, the D.C. Circuit, in SpeechNow.org v. FEC, concluded
that campaign contributions to groups making only independent expenditures similarly do not
give rise to corruption.144
In Citizens United, the Court relied, in part, on its ruling in Buckley145 holding that expenditures
made “totally independently”—in other words, not coordinated with any candidate or party—do
not create a risk of corruption or its appearance, and therefore, cannot be constitutionally
limited.146 Accordingly, the D.C. Circuit in SpeechNow.org reasoned that the government does not
have an anticorruption interest in limiting contributions to groups that make only independent
expenditures.147 The SpeechNow.org court further concluded that FECA contribution limits are
unconstitutional as applied to such groups.148 Such groups have come to be known as super PACs
or Independent Expenditure-only Committees.149
Since SpeechNow was decided, the FEC has issued advisory opinions providing guidance
regarding the establishment and administration of super PACs. For example, the FEC concluded
that a corporation that is exempt from tax under Section 501(c)(4) of the Internal Revenue Code
may establish and administer a political committee that makes only independent expenditures,
and may accept unlimited contributions from individuals.150 The FEC confirmed that such

140 See id. at 232.
141 See id.
142 See SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), cert. denied, Keating v. FEC, 562 U.S. 1003 (2010).
143 See Citizens United, 558 U.S. at 310. See infra pp. 6-8.
144 See SpeechNow.org, 599 F.3d at 694–95.
145 424 U.S. 1 (1976) (per curiam).
146 See Citizens United, 558 U.S. at 360 (observing that the Court in Buckley “reason[ed] that independent expenditures
do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that
independent expenditures even ingratiate.” In Buckley, the Court determined that “[u]nlike contributions, such
independent expenditures may well provide little assistance to the candidate’s campaign and indeed may prove
counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent
not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will
be given as a quid pro quo for improper commitments from the candidate.” Buckley, 424 U.S. at 47.
147 See SpeechNow.org, 599 F.3d at 694–96.
148 See id.; see also, Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011) (enjoining the FEC from enforcing contribution
limits against a non-connected PAC—i.e., a PAC unaffiliated with a corporation or union—for its independent
expenditures, as long as the PAC maintained a bank account for its unlimited contributions separate from its account
subject to limits; proportionally paid related administrative costs; and complied with the applicable monetary limits of
hard money contributions).
149 See Registering as a Super PAC, FEC, https://www.fec.gov/help-candidates-and-committees/filing-pac-
reports/registering-super-pac/ (last visited Feb. 21, 2023).
150 FEC, AO 2010-09 (Aug. 2, 2010).
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committees may also accept unlimited contributions from corporations, labor unions, and political
committees, in addition to individuals.151 The FEC also determined that when fundraising for
super PACs, federal candidates, officeholders, and party officials are subject to FECA fundraising
restrictions.152 That is, they can solicit contributions only up to $5,000 per year from individuals
and federal PACs.
Cap on Repayment of Candidate Loans Using Post-Election
Contributions
While not addressing a contribution limit directly, the Supreme Court in FEC v. Ted Cruz for
Senate invalidated a BCRA provision that established a $250,000 cap on the amount of post-
election campaign contributions that can be used to repay candidates for personal loans made to
their campaigns pre-election.153 Holding that the cap violates the Free Speech Clause of the First
Amendment, the Court reached its decision by first assessing the burden on free speech that
resulted from the law and then examining whether that burden was justified.154
In assessing the burden on speech created by the loan-repayment limit, the Court reiterated a key
holding from Buckley v. Valeo.155 The Buckley decision, the Court observed, held that the First
Amendment guarantees candidates the ability to spend unlimited amounts of personal funds for
campaign-related speech on their own behalf.156 In this case, the Court observed that the loan-
repayment limit “by design and effect” burdened such candidate-financed speech by those
candidates who chose to make personal loans.157 By limiting the sources of financing that
campaigns can use to repay candidate loans, the loan-repayment limit created “the significant
risk” that such loans will not be repaid, according to the Court.158
With the burden on free speech established, the Court examined whether the government had
sufficiently justified the burden.159 As an initial matter, the Court declined to determine whether
strict scrutiny or a more lenient “closely drawn” standard of review applied.160 Instead, the Court
announced that under either standard, the government bore the initial burden of proving that the
law serves “a legitimate objective” and that it failed to do so in this case.161
The Court began its analysis by restating a determination from its prior campaign finance cases
that the only permissible justification for restricting campaign speech is the prevention of quid
pro quo corruption or its appearance.162 In this case, the government argued that the loan-

151 FEC, AO 2010-11 (Aug. 2, 2010).
152 FEC, AO 2011-12 (Aug. 1, 2011).
153 142 S. Ct. 1638, 1656 (2022) (invalidating FECA’s cap on the amount of post-election campaign contributions that
can be used to repay candidates for personal loans made to their campaigns pre-election, codified at 52 U.S.C. §
30116(j)). See also CRS Legal Sidebar LSB10796, Supreme Court Invalidates Cap on Repayment of Candidate Loans
Under the First Amendment: Considerations for Congress, by L. Paige Whitaker.
154 See Ted Cruz for Senate, 142 S. Ct. at 1656.
155 See id. at 1645 (citing Buckley v. Valeo, 424 U.S. 1, 52–54 (1976) (per curiam)).
156 See Ted Cruz for Senate, 142 S. Ct. at 1645.
157 Id. at 1650.
158 Id. at 1651. The Court furthered reasoned that, in turn, that risk created “an unprecedented penalty” on candidates by
deterring them from lending money to their own campaigns and, therefore, burdened core political speech. Id.
159 See id. at 1652.
160 Id.
161 Id.
162 See id.
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repayment limit served to avoid quid pro quo corruption because with a post-election
contribution, the campaign contributor is aware that the winning candidate recipient “will be in a
position to do him some good.”163 Rejecting this argument, the Court characterized the law as yet
another in a long line of campaign finance restrictions that unnecessarily serve as a “prophylaxis-
upon-prophylaxis.”164 That is, according to the Court, because contributions to federal office
candidates are already regulated through limits and disclosure requirements to avoid corruption or
its appearance—including contributions made to winning candidates—the additional restriction
imposed by the loan-repayment limit is unnecessary.165 The Court also addressed the
government’s argument that the Court should defer to Congress when evaluating whether a
campaign finance restriction serves an anticorruption goal.166 Highlighting the lack of data and
“scant” evidence in this case, the Court concluded that deferring to Congress here “would be
especially inappropriate” because the loan-repayment limit “may have been an effort to insulate []
legislators from effective electoral challenge.”167
Constitutional Considerations for Legislation
Should Congress decide to enact legislation that further restricts or regulates campaign
contributions, the Supreme Court’s campaign finance jurisprudence provides guidance as to the
constitutional bounds reviewing courts may apply to such limits. As discussed, the Court has
expressly held several provisions of FECA and a state law unconstitutional:
• individual, party, and political committee contribution limits that the Court
deemed to be unreasonably low;168
• limits on how much money a donor may contribute in total to all candidates,
parties, and political committees (i.e., “aggregate limits”);169
• a series of staggered increases in contribution limits applicable to candidates
whose opponents significantly self-finance their campaigns;170 and
• a prohibition on campaign contributions by minors age 17 or younger;171 and
• a cap on the amount of post-election campaign contributions that can be used to
repay candidates for personal loans made to their campaigns pre-election.172

163 Id.
164 Id. at 1653 (observing that the government in this case was “unable to identify a single case of quid pro quo
corruption in this context,” despite the fact that most state campaign finance laws do not impose such a limit on using
post-election contributions to repay candidates for personal loans).
165 See id.
166 See id. at 1656.
167 Id.
168 See Randall v. Sorrell, 548 U.S. 230, 262 (invalidating a Vermont law that included a limit of $400 on individual,
party, and political committee contributions to certain state candidates, per two-year election cycle, without providing
for inflation adjustment). See supra p. 12.
169 See McCutcheon v. FEC, 572 U.S. 185, 218 (2014) (invalidating FECA’s aggregate contribution limits, codified at
52 U.S.C. § 30116(a)(3)). See supra pp. 12-14.
170 See Davis v. FEC, 555 U.S. 724, 740 (2008) (invalidating FECA’s limits on contributions to candidates whose
opponents significantly self-finance, codified at 52 U.S.C. § 30117(a)). See supra pp. 18–19.
171 See McConnell v. FEC, 540 U.S. 93, 223 (2003), overruled in part by Citizens United v. FEC, 558 U.S. 310 (2010)
232 (invalidating FECA’s prohibition on contributions by minors, codified at 52 U.S.C. § 30126). See supra p. 19.
172 See Ted Cruz for Senate, 142 S. Ct. at 1656 (invalidating FECA’s cap on the amount of post-election campaign
contributions that can be used to repay candidates for personal loans made to their campaigns pre-election, codified at
52 U.S.C. § 30116(j)). See supra pp. 20-22.
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More broadly, and relevant to Congress in evaluating legislative options, the Court has stated
unequivocally in McCutcheon, and most recently in Ted Cruz for Senate, that the only legitimate
justification for limiting campaign contributions is avoiding quid pro quo candidate corruption or
its appearance.173 Hence, the Court has signaled that the likelihood of contribution limits being
upheld increases to the degree that Congress can demonstrate that the limits are narrowly tailored
to serve this governmental interest. In contrast, while acknowledging that Congress may seek to
accomplish other “well intentioned” policy goals—such as lessening influence over or access to
elected officials, decreasing the costs of campaigns, and equalizing financial resources among
candidates—the Court has announced that such interests will not serve to justify contribution
limits.174 As the Court reiterated in McCutcheon, when enacting laws that limit speech, the
government bears the burden of proving the constitutionality of such restrictions.175
As discussed in earlier sections of this report, the Court has subjected contribution limits to less
rigorous scrutiny under the First Amendment than expenditure limits, and therefore, with some
significant exceptions, the Court has generally upheld such limits.176 Some commentators have
argued that the Supreme Court in McCutcheon may have signaled a willingness in future cases to
evaluate contribution limits under a stricter standard of review than it has in the past.177 Should
the Court decide to apply a stricter level of scrutiny to contribution limits in future cases,
legislation providing for enhanced contribution limits would be less likely to survive
constitutional challenges. Furthermore, a stricter standard of review could likewise result in
successful challenges to existing contribution limits, including the limits on individual
contributions to candidates and parties.
Source Restrictions
In addition to limits on how much a donor may contribute to a campaign, federal campaign
finance law contains several bans—referred to as “source restrictions”—on who may make
campaign contributions. The following sections of the report discuss key aspects of source
restrictions, beginning with the ban on campaign contributions by corporations and labor unions
and the Supreme Court’s invalidation of limits on corporate and union independent spending on
campaigns. Next, the report discusses the bans on campaign contributions by federal contractors
and on contributions and expenditures by foreign nationals. Finally, the report assesses key
Supreme Court holdings that may be instructive in evaluating the constitutionality of policy
options, should Congress consider legislation regulating the sources of campaign contributions.

173 See McCutcheon, 572 U.S. at 192 (citing Citizens United, 558 U.S. at 359); FEC v. Ted Cruz for Senate, 142 S. Ct.
at 1652.
174 McCutcheon, 572 U.S. at 207–08.
175 See id. at 210 (citing United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000)).
176 See supra pp. 4–5.
177 See Richard Briffault, The Uncertain Future of the Corporate Contribution Ban, 49 VAL. U. L. REV. 397, 398
(2015) (stating that McCutcheon “subtly ratcheted up the Court’s standard of review of contribution restrictions”);
Robert Yablon, Campaign Finance Reform Without Law, 103 IOWA L. REV. 185, 201 (2017) (characterizing the
Supreme Court in McCutcheon as “nudg[ing] the governing standard in the direction of strict scrutiny”); see also James
Bopp, Jr., Randy Elf, & Anita Y. Milanovich, Symposium: Money In Politics: The Good, the Bad, and the Ugly: Article
and Speech: Contribution Limits After McCutcheon v. FEC, 49 VAL. U. L. REV. 361, 389 (2015) (maintaining that
“[b]ecause of McCutcheon, key circuit court decisions that previously upheld limits on direct contributions to
candidates are no longer legally sound”).
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Ban on Corporate and Labor Union Contributions: PAC Required
FECA prohibits corporations and labor unions from making campaign contributions from their
own funds or “general treasuries.”178 Candidates, however, are permitted to accept contributions
from separate segregated funds or PACs that a corporation or labor union establishes for the
purpose of making contributions.179 Although the Supreme Court in 2010, in Citizens United,
discussed above, invalidated the federal ban prohibiting corporations from funding independent
expenditures out of their general treasuries, Citizens United did not appear to affect the ban on
corporate contributions to candidates and parties.180
Providing the most recent precedent on this restriction, in FEC v. Beaumont, the Court in 2003
upheld the constitutionality of the prohibition on corporations making direct campaign
contributions from their general treasuries in connection with federal elections.181 According to
the Court, its jurisprudence on campaign finance regulation—in addition to providing that limits
on contributions are more clearly justified under the First Amendment than limits on
expenditures—respects the judgment that the corporate structure requires careful regulation to
counter the “misuse of corporate advantages.”182 The Court observed that large, unlimited
contributions can threaten “political integrity,” necessitating restrictions in order to counter
corruption.183
Ban on Federal Contractor Contributions: “Pay-to-Play” Prohibition
Another type of source restriction—known as a “pay-to-play” prohibition—bans federal office
candidates from accepting or soliciting contributions from federal government contractors.184
Pay-to-play laws generally serve to restrict officials from conditioning government contracts or
benefits on political support in the form of campaign contributions to the controlling political
party or public officials. “Pay-to-play” can be viewed as a more subtle form of political
corruption because it may involve anticipatory action, and potential future benefits, as opposed to
any explicit, current quid pro quo agreement. This FECA prohibition applies at any time between
the earlier of the commencement of contract negotiations or when the requests for proposals are
sent out, and the termination of negotiations or completion of contract185 performance, whichever
is later.186 FEC regulations further specify that the ban on contractor contributions applies to the
assets of a partnership that is a federal contractor, but permits individual partners to make
contributions from personal assets.187 The ban also applies to the assets of individuals and sole
proprietors who are federal contractors, which include their business, personal, or other funds
under their control, although the spouses of individuals and sole proprietors who are federal
contractors and their employees are permitted to make contributions from their personal funds.188

178 52 U.S.C. § 30118(a).
179 52 U.S.C. § 30118(b)(2)(C).
180 558 U.S. 310 (2010). For further discussion of Citizens United, see CRS Report R43719, Campaign Finance:
Constitutionality of Limits on Contributions and Expenditures, by L. Paige Whitaker, at 12-15.
181 See FEC v. Beaumont, 539 U.S. 146 (2003).
182 Id. at 155.
183 Id.
184 52 U.S.C. § 30119(a).
185 The term “contract” includes “[a] sole source, negotiated, or advertised procurement.” 11 C.F.R. § 115.1(c)(1).
186 11 C.F.R. § 115.1(b).
187 Id. § 115.4.
188 Id. § 115.5.
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As with corporate direct or “treasury fund” contributions, FECA provides an exception to the ban
on government contractor contributions, permitting candidates to accept contributions from PACs
that are established and administered by corporations or labor unions contracting with the
government.189
In 2015, a unanimous en banc D.C. Circuit upheld the ban on campaign contributions by federal
government contractors, limiting the application of its ruling to the ban on contractors making
contributions to candidates, parties, and traditional PACs that make contributions to candidates
and parties.190 The court held that the law comported with both the First Amendment and the
equal protection component of the Fifth Amendment.191 According to the D.C. Circuit, the federal
ban serves “sufficiently important” government interests by guarding against quid pro quo
corruption and its appearance, and protecting merit-based administration.192 Further, the court
held that the ban is closely drawn to the government’s interests because it does not restrict
contractors from engaging in other types of political engagement, including fundraising or
campaigning.193 The number of convictions for pay-to-play infractions, dating back to when the
ban was first enacted in 1940,194 justifies its continued existence, according to the D.C. Circuit,
because the risk of quid pro quo corruption and its appearance has not dissipated. According to
the D.C. Circuit, this suggests that if the ban were no longer in effect, “more money in exchange
for contracts would flow through the same channels already on display.”195 In 2016, the Supreme
Court declined to hear an appeal of the ruling.196

189 52 U.S.C. § 30119(b).
190 See Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), cert. denied sub nom. Miller v. FEC, 577 U.S. 1102 (2016).
191 See Wagner, 793 F.3d at 32–33.
192 Id. at 21–26 (applying the same standard of review that the Supreme Court in Buckley applied to contribution limits,
requiring that the government demonstrate that the limits are a “closely drawn” means of achieving a “sufficiently
important” governmental interest). “The Supreme Court has repeatedly applied this ‘closely drawn’ standard to
challenges to campaign contribution restrictions. And it has repeatedly (and recently) declined invitations ‘to revisit
Buckley’s distinction between contributions and expenditures and the corollary distinction in the applicable standards of
review.’” Id. at 5–6 (quoting McCutcheon, 572 U.S. at 197).
193 See id. at 25.
194 Congress originally adopted the prohibition in the 1940 amendment to the Hatch Act, Pub. L. No. 76-753, § 5(a), 54
Stat. 772. For federal contracting requirements and regulations that generally stress competitive selection of vendors
and attempt to protect the federal procurement and contracting process from political or partisan influences, see 48
C.F.R. § 13.104 (when using “simplified acquisition procedures,” contract officers are instructed to “obtain supplies
and services from the source whose offer is the most advantageous to the Government,”); id. § 14.408-1(a) (when using
sealed bidding, the contract is to be made with a “responsible bidder whose bid ... will be most advantageous to the
Government, considering only price and the price-related factors,”); id. §§ 15.101, 15.101–1, 15.101–2, 15.304 (when
using contracting by negotiation “cost or price” plays a “dominant role” in source selection, but other “tradeoff”
factors, such as “the risk of unsuccessful contract performance,” may properly be weighed to determine “the best
interest of the Government” in a contract). Contracts may not be awarded on the basis of personal or political
favoritism, and all potential contractors should be treated “with complete impartiality and with preferential treatment
for none.” Id. §§ 1.102-2(c)(3), 3.101-1. General ethical standards in the executive branch similarly note that an
executive official is to “act impartially and not give preferential treatment to any private organization or individual.”
Exec. Order No. 12647, 5 C.F.R. § 2635.101(b)(8) (1989).
195 See Wagner, 793 F.3d at 18. “More recent evidence confirms that human nature has not changed since corrupt quid
pro quos and other attacks on merit-based administration first spurred the development of the present legislative
scheme. Of course, we would not expect to find—and we cannot demand—continuing evidence of large-scale quid pro
quo corruption or coercion involving federal contractor contributions because such contributions have been banned
since 1940.” Id. at 14.
196 See Miller v. FEC, 577 U.S. 1102 (2016).
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Ban on Foreign National Contributions and Expenditures and
Restrictions on Foreign National Involvement in U.S. Campaigns
FECA generally prohibits foreign nationals from donating or spending money in connection with
any U.S. election.197 For the purposes of this prohibition, a foreign national is defined to include a
foreign government, a foreign political party, and a foreign citizen, excepting those holding dual
U.S. citizenship and those admitted as lawful permanent residents of the United States (i.e.,
“green card” holders).198 Specifically, the law prohibits foreign nationals from “directly or
indirectly” making a contribution or donation of money “or other thing of value” in connection
with any U.S. election, or making a promise to do so, either expressly or implied; or a
contribution or donation to a political party.199 Furthermore, as with other coordinated
expenditures, this ban on contributions would include any communication that a foreign national
makes in coordination with a candidate’s campaign or political party, which would be treated as
an in-kind contribution.200 In addition, FECA expressly prohibits a candidate from soliciting,
accepting, or receiving contributions from foreign nationals.201
The Act further prohibits foreign nationals from making expenditures; independent expenditures;
or disbursements for electioneering communications.202 FEC regulations specify that it is
unlawful to knowingly provide “substantial assistance” in the solicitation, making, acceptance, or
receipt of a prohibited contribution or donation, or in the making of a prohibited expenditure,
independent expenditure, or disbursement.203 Further, the regulations define “knowingly” to
require that a person “have actual knowledge” that the source of the funds solicited, accepted, or
received is a foreign national; have awareness “of facts that would lead a reasonable person to
conclude that there is a substantial probability” that the source of the funds is a foreign national;
or have awareness “of facts that would lead a reasonable person to inquire” whether the source of
the funds is a foreign national, but fail to conduct a reasonable inquiry.204
In addition, FEC regulations further specify that foreign nationals are prohibited from directing or
participating in the decision-making process of entities involved in U.S. elections, including
decisions regarding the making of contributions, donations, expenditures, or disbursements in
connection with any U.S. election or decisions concerning the administration of a political
committee.205 In a series of advisory opinions, the FEC has provided specific guidance for
compliance with the restrictions on foreign nationals. For example, the FEC has determined that a
U.S. corporation that is a subsidiary of a foreign corporation may establish a PAC that makes
contributions to federal candidates as long as the foreign parent does not finance any
contributions either directly or through a subsidiary, and no foreign national participates in PAC
operations and decision-making, including regarding campaign contributions.206

197 52 U.S.C. § 30121(a).
198 Id. § 30121(b)(2).
199 Id. § 30121(a)(2).
200 See supra pp. 15.
201 52 U.S.C. § 30121(a)(1)(C).
202 Id. § 30121.
203 11 C.F.R. § 110.20(h).
204 Id. § 110.20(a)(4).
205 Id. § 110.20(i).
206 See FEC, AO 2009-14 (Oct. 2, 2009); AO 2006-15 (July 1, 2006); AO 2000-17 (July 28, 2000); AO 1995-15 (June
30, 1995); AO 1992-16 (June 26, 1992); AO 1990-08 (Apr. 30, 1990); and AO 1985-03 (Mar. 4, 1985).
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In 2012, the Supreme Court summarily affirmed a three-judge federal district court panel ruling
that upheld the constitutionality of the prohibition on foreign nationals making campaign
contributions and independent expenditures.207 In Bluman v. FEC, a federal district court held that
for the purposes of First Amendment analysis, the United States has a compelling interest in
limiting foreign citizen participation in American democratic self-government, thereby preventing
foreign influence over the U.S. political process.208 A key element of a national political
community, the court observed, is that “foreign citizens do not have a constitutional right to
participate in, and thus may be excluded from, activities of democratic self-government.”209
Similar to the Court’s decision in WRTL, discussed above, the district court in Bluman interpreted
the ban on independent expenditures to apply only to foreign nationals engaging in express
advocacy and not issue advocacy.210 In other words, under the court’s interpretation, foreign
nationals remain free to engage in “speaking out about issues or spending money to advocate
their views about issues.”211 As to the parameters of express advocacy, the district court defined
the term as an expenditure for “express campaign speech” or its “functional equivalent,” meaning
that it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against
a specific candidate.”212
Constitutional Considerations for Legislation
As discussed, some commentators have argued that the Supreme Court in 2014 in McCutcheon
may have signaled a willingness in future cases to evaluate contribution limits under a stricter
standard of review than it has in the past.213 If this were to occur, it seems likely that a court could
hold the ban on corporate contributions, and any related legislative proposals, unconstitutional.
Moreover, one commentator has argued that, in Citizens United, the Court rejected the rationale
behind the leading precedent upholding the ban on corporate contributions in Beaumont, thereby
raising the prospect that in a future case, the Court could have another basis for overturning the
ban on corporate contributions.214 That is, in reaching its holding in Beaumont, the Court seemed
to rely on the fact that in view of state-conferred advantages—including limited liability,
perpetual life, and favorable treatment of the accumulation and distribution of assets—
corporations can accumulate and deploy wealth in a manner that provides them with an unfair

207 See Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), summ. aff’d, 565 U.S. 1104 (2012).
208 Bluman, 800 F. Supp. 2d at 288. The court in Bluman did not ultimately decide which type of scrutiny to apply
because the statute in dispute involves both the First Amendment and national security, as well as limits on both
contributions and expenditures. Therefore, the court assumed for the sake of argument that it should apply a “strict
scrutiny” standard of review (which requires that a statute be narrowly tailored to serve a compelling governmental
interest), and found that the prohibition at issue passed muster even under that level of scrutiny. Id. at 285-86.
209 Id. at 288.
210 See id. at 290.
211 Id.
212 Id. at 284–85 (citing Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469–70 (2007)).
213 See infra p. 22–23.
214 See Richard Briffault, The Uncertain Future of the Corporate Contribution Ban, 49 VAL. U. L. REV. 397, 424
(2015) (arguing that Citizens United “completely disavowed” the rationale behind the Court’s ruling in Beaumont
determining that corporations present a particular threat to the integrity of politics and campaigns, thereby jeopardizing
the constitutionality of the ban on corporate contributions).
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advantage in the political marketplace.215 In Citizens United, however, the Court rejected a similar
argument in invalidating the prohibition on corporations engaging in independent spending.216
In contrast, as discussed above, the district court’s ruling in Bluman, which the Supreme Court
affirmed in 2012, seems to suggest that legislation to enhance the current ban on foreign nationals
donating or spending money in connection with U.S. elections, so long as its scope was limited to
the regulation of express advocacy or its functional equivalent, might withstand a First
Amendment challenge to the extent that Congress could demonstrate that the restriction furthered
the compelling governmental interest in preventing foreign influence over the U.S. political
process. As Bluman upheld the ban on foreign nationals only to the extent that it applied to
express advocacy or its functional equivalent, legislation that broadly regulates issue advocacy
may be constitutionally vulnerable.217 As one commentator has cautioned, should Congress enact
a statute that broadly prohibits issue advocacy by foreign nationals, including the type of
communications that Russians are accused of making during the 2016 election, “such a statute
would likely run into First Amendment resistance.”218
Disclaimer and Disclosure Requirements
FECA sets forth both disclaimer and disclosure requirements. The term disclaimer generally
refers to statements of attribution that appear directly on a campaign-related communication, and
the term disclosure generally refers to requirements for periodic reporting to the FEC, which are
made available for public inspection. The following sections of the report provide an overview of
FECA disclaimer and disclosure requirements, relevant Supreme Court rulings, and a discussion
of constitutional considerations for legislation, should Congress consider legislation to enhance or
modify such requirements.
Disclaimer
Disclaimer Requirements
Although FECA does not contain the term “disclaimer,” the Act specifies the content of
attribution statements to be included in certain communications, which are known as disclaimer
requirements.219 FECA requires that any public political advertising financed by a political
committee—including candidate committees—include disclaimers.220 In addition, regardless of
the financing source, FECA requires a disclaimer on all public communications that expressly

215 See Beaumont, 539 U.S. at 154.
216 See Citizens United v. FEC, 558 U.S. 310, 314 (2010) (“It is irrelevant for First Amendment purposes that corporate
funds may have little or no correlation to the public’s support for the corporation’s political ideas. All speakers,
including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the
First Amendment protects the resulting speech.” (internal citations and quotations omitted)).
217 See Bluman, 800 F. Supp. 2d at 284–85 (citing Wisconsin Right to Life, Inc, 551 U.S. at 456, 469–70).
218 Richard L. Hasen, Essay: Cheap Speech and What It Has Done (To American Democracy), 16 FIRST AMEND. L.
REV. 200, 218 (2017).
219 See Advertising and disclaimers, FEC, https://www.fec.gov/help-candidates-and-committees/making-
disbursements/advertising/ (last visited Feb. 6, 2023).
220 52 U.S.C. § 30120.
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advocate for the election or defeat of a clearly identified candidate; electioneering
communications;221 and all public communications that solicit contributions.222
For radio and television advertisements by candidate committees, FECA generally requires that
the communication state who paid for the ad, along with an audio statement by the candidate
identifying the candidate and stating that the candidate “has approved” the message.223 In the case
of television ads, the candidate statement is required to be conveyed by an unobscured, full-
screen view of the candidate making the statement, or if the candidate message is conveyed by
voice-over, accompanied by a clearly identifiable image of the candidate, along with a written
message of attribution at the end of the communication.224
Generally, for non-candidate-authorized communications—including ads financed by outside
groups, corporations, and labor unions—FECA likewise requires a disclaimer to clearly state the
name and permanent street address, telephone number, or website address of the person who paid
for the communication and state that the communication was not authorized by any candidate or
candidate committee.225 In radio and television advertisements, such disclaimers are required to
include in a clearly spoken manner the following audio statement: “________ is responsible for
the content of this advertising,” with the blank to be filled in with the name of the entity paying
for the ad. In addition, in television advertisements, the statement is required to be conveyed by
an unobscured, full-screen view of a representative of the entity paying for the ad, in a voice-over,
along with a written message of attribution at the end of the communication.
Effective March 1, 2023, the FEC promulgated new regulations that broaden the disclaimer
requirements for public internet communications.226 According to the FEC, the new requirements
were designed “in light of technological advances since the Commission last revised its rules
governing internet disclaimers in 2006.”227 Previously, the FEC regulations generally required
disclaimers on public communications—defined to include ads that are “placed for a fee on
another person’s website”—that were made by political committees, contained express advocacy,
or solicited campaign contributions.228 Expanding the scope, the new regulations apply not only
to such “communications placed for a fee on another person’s website” but also to
“communications placed for a fee on another person’s ... digital device, application, or advertising
platform.”229
Constitutionality of Disclaimer Requirements
In McConnell, by an eight-to-one vote, the Supreme Court in 2003 upheld the facial validity of
the disclaimer requirements in FECA, as amended by BCRA.230 Specifically, the Court
determined that FECA’s disclaimer requirement “bears a sufficient relationship to the important

221 Id. § 30104(f)(3).
222 Id. § 30120(a).
223 Id. § 30120(a)(1),(d)(1).
224 Id. § 30120(d)(1).
225 Id. § 30120(a)(3).
226 Internet Communication Disclaimers and Definition of “Public Communication,” 87 Fed. Reg. 77467–77480 (Dec.
19, 2022). The FEC published the final rule on December 19, 2022, which became effective on March 1, 2023.
227 Id. at 77467.
228 11 CFR §§ 110.11(a), 100.26.
229 See 87 Fed. Reg. at 77467.
230 See McConnell v. FEC, 540 U.S. 93, 230–31 (2003), overruled in part by Citizens United v. FEC, 558 U.S. 310
(2010).
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governmental interest of ‘shedding the light of publicity on campaign financing.’”231 Similarly, in
Citizens United, by an eight-to-one vote, the Court in 2010 upheld the disclaimer requirement in
BCRA as applied to a movie that an organization produced regarding a presidential candidate and
the broadcast advertisements it planned to run promoting the movie.232 According to the Court,
while they may burden the ability to speak, disclaimer and disclosure requirements “impose no
ceiling on campaign-related activities,” and “do not prevent anyone from speaking.”233 According
to the Court, the disclaimer requirements in BCRA “provid[e] the electorate with information,”
and “insure that the voters are fully informed” about who is speaking.234 Moreover, they facilitate
the ability of a listener or viewer to judge more effectively the arguments they are hearing, and at
a minimum, according to the Court, they clarify that an ad was not financed by a candidate or
party.235
Disclosure
Under FECA, political committees—including candidate committees and super PACs—must
register with the FEC and comply with disclosure requirements.236 Political committees are
required to file periodic reports that disclose the total amount of all contributions they receive,
and the identity, address, occupation, and employer of any person who contributes more than
$200 during a calendar year.237 In addition, entities other than political committees—such as labor
unions and corporations, including incorporated tax-exempt Section 501(c)(4) organizations—
making independent expenditures or electioneering communications have generally been required
to disclose information to the FEC, including the identity of certain donors over specific dollar
thresholds.238 These requirements have been the subject of litigation, as discussed below. The
FEC is required to make these reports publicly available on the internet within 48 hours of receipt
or within 24 hours if the report is filed electronically. The FEC is also required to make the
reports available for public inspection in their offices.239
Independent Expenditure Requirements
Generally, FECA requires organizations making independent expenditures that aggregate more
than $250 in a calendar year to disclose (1) whether an independent expenditure supports or
opposes a candidate, (2) whether it was made independently of a campaign, and (3) the identity of
each person who contributed more than $200 to the organization specifically “for the purpose of
furthering an independent expenditure.”240 FECA requires organizations to file these reports
quarterly.241 Up to 20 days before an election, an organization must file a report each time it

231 Id. at 231.
232 See Citizens United v. FEC, 558 U.S. 310, 367 (2010).
233 Id. at 366.
234 Id. at 368.
235 See id.
236 52 U.S.C. § 30103.
237 52 U.S.C. § 30104.
238 FECA requires any “person,” except a political committee, making independent expenditures to file disclosure
reports, and defines “person” to include an individual, partnership, committee, association, corporation, labor
organization, or any other organization or group of persons, but does not include the federal government. 52 U.S.C. §§
30104(c)(1), 30101(11).
239 52 U.S.C. § 30104(a)(11).
240 52 U.S.C. § 30104(c).
241 52 U.S.C. § 30104(a)(4).
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spends at least $10,000 on independent expenditures relating to the same election, within 48
hours of incurring the cost of the expenditure. Less than 20 days before an election, an
organization must file a report each time it spends at least $1,000 on independent expenditures
relating to the same election, within 24 hours of incurring the cost of the expenditure.242 FEC
regulations require organizations that spend or have reason to expect to spend more than $50,000
on independent expenditures to file reports electronically.243
Until a 2018 court ruling discussed below, the donor disclosure regulation promulgated under the
Act generally applied only to those donors who contributed money specifically “for the purpose
of furthering the reported independent expenditure.”244 As a result, unless a donation to an
organization was made specifically for the purpose of funding a particular independent
expenditure, the FEC did not require an organization to disclose the donor’s identity. This purpose
requirement for donor disclosure, however, was successfully challenged in court. In a 2018
ruling, Citizens for Responsibility and Ethics in Washington (CREW) v. FEC, a federal district
court invalidated the regulation, holding that it required significantly less disclosure than the
statute mandates.245 In 2020, the D.C. Circuit affirmed the district court decision.246 According to
the D.C. Circuit, the regulation conflicted with the “plain terms” of FECA’s disclosure
requirement that groups making independent expenditures disclose contributors of over $200
“regardless of any connection to [independent expenditures] eventually made.”247 In response to
this litigation, the FEC removed the invalidated regulation.248 As a result, groups making
independent expenditures are required to disclose more of their donors than was required under
the invalidated regulation.
Electioneering Communication Requirements
With regard to electioneering communications, FECA requires organizations249 making
disbursements aggregating over $10,000 during a calendar year to disclose certain information,
including the identity and principal place of business of the corporation making the disbursement,
the amount of each disbursement over $200, and the names of candidates identified in the
communication.250 Additionally, FECA requires the organization to disclose its donors who
contributed at least $1,000. The statute also provides an option for an organization seeking to
avoid disclosure of all its donors. If an organization establishes a separate bank account,
consisting only of donations from U.S. citizens and legal resident aliens made directly to the
account for electioneering communications, then the organization is required to disclose only

242 52 U.S.C. § 30104(a)(4); 11 C.F.R. § 109.10.
243 52 U.S.C. § 30104(a)(11)(A); 11 C.F.R. § 104.18(a).
244 11 C.F.R. § 109.10(e)(1)(vi).
245 Citizens for Responsibility and Ethics in Washington (CREW) v. FEC, 316 F. Supp. 3d 349, 409-11 (D.D.C. 2018),
aff’d, 971 F.3d 340 (D.C. Cir. 2020) (invalidating 11 C.F.R. § 109.10(e)(1)(vi), which was promulgated under 52
U.S.C. § 30104(c)), in accordance with the first step of the Chevron analysis that inquires whether Congress has
directly addressed the question at issue and, if congressional intent is clear, requires the agency to effect that intent)
(citing Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984); SAS Inst. v. Iancu, 138 S. Ct. 1348, 1358 (2018); Pereira
v. Sessions, 138 S. Ct. 2105, 2113 (2018)).
246 CREW, 971 F.3d at 356.
247 Id. at 343, 351.
248 Reporting Independent Expenditures, 87 Fed. Reg. 35863–35864 (June 14, 2022).
249 Specifically, FECA requires any “person” making a disbursement for an electioneering communication to
independent expenditures to file disclosure reports, and defines “person” to include an individual, partnership,
committee, association, corporation, labor organization, or any other organization or group of persons, but does not
include the federal government. 52 U.S.C. §§ 30104(f)(1), 30101(11).
250 52 U.S.C. § 30104(f).
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those donors who contributed at least $1,000 to the account.251 Generally, FECA requires that
organizations file electioneering communication reports by the first date in a calendar year that an
organization makes a disbursement aggregating more than $10,000 for the direct costs of
producing or airing an electioneering communication. In addition, FECA requires an organization
to file a report each time it makes such disbursements aggregating more than $10,000 since the
last filing.252
An FEC regulation provides an exception to the donor disclosure requirement for electioneering
communications. The regulation permits organizations making disbursements for electioneering
communications to disclose only the identity of each person who made a donation of at least
$1,000 specifically “for the purpose of furthering” electioneering communications.253 This
regulation—specifically, the purpose requirement contained therein—was challenged in court. In
2016, a three-judge panel of the D.C. Circuit upheld the regulation, determining, among other
things, that the exception contained in the regulation protects the First Amendment.254 In 2016,
the D.C. Circuit denied an appeal for an en banc rehearing of the case.255
Constitutionality of Disclosure Requirements
In Buckley256—and, more recently, in McConnell,257 Citizens United,258 Doe v. Reed,259 and a
summary affirmance in Independence Institute v. FEC260—the Court has generally affirmed the
constitutionality of disclosure requirements. While acknowledging that compelled disclosure can
infringe on the right to privacy of association and belief as guaranteed under the First
Amendment, the Court in these cases has identified overriding governmental interests—such as
safeguarding the integrity of the electoral process by promoting transparency and
accountability—that outweigh such infringement. In addition, as discussed below, the Court
appears to have consistently determined that the First Amendment does not require limiting
disclosure requirements to speech that is the functional equivalent of express advocacy.
In Buckley, the Court identified three governmental interests justifying FECA disclosure
requirements.261 First, the Court determined, disclosure provides the electorate with information

251 52 U.S.C. § 30104(f)(2)(E),(F).
252 52 U.S.C. § 30104(f)(4); 11 C.F.R. §104.20.
253 11 C.F.R. §104.20(c)(9). The FEC promulgated this regulation in response to the Supreme Court’s ruling in FEC v.
WRTL, 441 U.S. 449 (2007), and prior to its ruling in Citizens United v. FEC, 558 U.S. 310 (2010). For further
discussion of these decisions, see CRS Report R43719, Campaign Finance: Constitutionality of Limits on
Contributions and Expenditures, by L. Paige Whitaker at pp. 12–15.
254 See Van Hollen v. FEC, 811 F.3d. 486, 495, 501 (D.C. Cir. 2016) reh’g en banc denied 2016 U.S. App. LEXIS
17528 (D.C. Cir. 2016) (holding that the lower court erred in concluding that the regulation—requiring that
corporations and labor organizations disclose only those donations made for the purpose of furthering electioneering
communications—failed both at Chevron “Step Two” and the arbitrary and capricious stages because the “purpose
requirement” in the regulation comported with the text, history, and purposes of the underlying statute, 52 U.S.C.S.
§ 30104(f), and that in promulgating the regulation, the FEC exercised its discretion to protect the First Amendment.).
“By affixing a purpose requirement to BCRA’s disclosure provision, the FEC exercised its unique prerogative to
safeguard the First Amendment when implementing its congressional directives.” Id. at 501.
255 See Van Hollen, 2016 U.S. App. LEXIS 17528.
256 424 U.S. 1 (1976) (per curiam).
257 540 U.S. 93 (2003), overruled in part by Citizens United v. FEC, 558 U.S. 310 (2010).
258 558 U.S. 310 (2010).
259 561 U.S. 186 (2010).
260 Indep. Inst. v. FEC, 216 F. Supp. 3d 176 (D.D.C. 2016), summ. aff’d, 580 U.S. 1157 (2017).
261 See Buckley, 424 U.S. at 66–68.
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as to the source of campaign money, how it is spent, and “the interests to which a candidate is
most likely to be responsive”—in other words, an informational interest.262 Second, the Court
stated that disclosure serves to deter corruption and its appearance by uncovering large
contributions and expenditures “to the light of publicity,” observing that voters with information
regarding a candidate’s highest donors are better able to detect “post-election special favors” by
an officeholder in exchange for the contributions.263 Third, the Court identified disclosure
requirements as an essential method of detecting violations to refer to law enforcement.264 In
upholding the constitutionality of FECA’s donor disclosure requirements for independent
expenditures, the Court determined that so long as they encompass only funds used for express
advocacy communications, the requirement is constitutional.265 Such donor disclosure “increases
the fund of information” regarding who supports a given candidate, and that informational
interest can be equally strong for independent spending as it is for spending that is coordinated
with a candidate or party.266
The Court in McConnell rejected a facial challenge to the enhanced disclosure requirements set
forth in BCRA.267 According to McConnell, the Court in Buckley distinguished between express
advocacy and issue advocacy for the purposes of statutory construction, not constitutional
command, and therefore, the First Amendment did not require creating “a rigid barrier” between
the two in this case.268 In other words, the Court determined, because electioneering
communications are intended to influence an election, the absence of “magic words” of express
advocacy does not obviate the government’s interest in requiring disclosure of such ads in order
to combat corruption or its appearance.269 Furthermore, as in Buckley, the McConnell Court held
that disclosure requirements in BCRA serve the “important state interests” of providing voters
with information, deterring corruption and avoiding its appearance, and assisting with
enforcement of the law.270
Expanding on its holding in Buckley, in Citizens United, the Court upheld FECA’s disclosure
requirements for electioneering communications as applied to a political movie and broadcast
advertisements promoting the movie.271 Citing Buckley, the Court determined that while they may
burden the ability to speak, disclosure requirements “impose no ceiling on campaign-related
activities,” and “do not prevent anyone from speaking.”272 Accordingly, the Court evaluated the
requirements under a standard of “exacting scrutiny,” a less-rigorous standard than the “strict
scrutiny” standard the Court has used to evaluate restrictions on campaign spending.273 Exacting

262 Id. at 66–67.
263 Id. at 67.
264 See id. at 66–68.
265 See id. at 79–80. (“[W]hen the maker of the expenditure is ... an individual other than a candidate or a group other
than a ‘political committee,’ the relation of the information sought to the purposes of the Act may be too remote. To
insure that the reach ... is not impermissibly broad, we construe ‘expenditure’ ... to reach only funds used for
communications that expressly advocate the election or defeat of a clearly identified candidate. This reading is directed
precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.”).
266 Id. at 81.
267 See McConnell v. FEC, 540 U.S. 93, 201–02 (2003), overruled in part by Citizens United v. FEC, 558 U.S. 310
(2010).
268 McConnell, 540 U.S. at 193.
269 Id. at 193–94.
270 Id. at 196.
271 See Citizens United, 558 U.S. at 366–371.
272 Id. at 366 (quoting Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam)).
273 See Citizens United, 558 U.S. at 366–67.
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scrutiny requires a “substantial relation” between the disclosure requirement and a “sufficiently
important” government interest.274 Notably, in Citizens United, the Court expressly rejected the
argument that the scope of FECA’s disclosure requirements for electioneering communications
must be limited to speech that is express advocacy, or the “functional equivalent of express
advocacy.”275 In support of its determination, the Court pointed out that in Buckley and other
cases, it has simultaneously struck down limits on certain types of speech—such as independent
expenditure communications—while upholding disclosure requirements for the same type of
speech.276 In response to the argument that disclosure requirements could deter donations to an
organization because donors may fear retaliation once their identity becomes known, the Court
stated that such requirements would be unconstitutional as applied to an organization where there
was a reasonable probability that its donors would be subject to threats, harassment, or
reprisals.277
Similarly, in a case upholding the constitutionality of a Washington State public records law, Doe
v. Reed, the Court relied on and underscored its holdings in Buckley and Citizens United
regarding compelled disclosure.278 The Washington statute requires that all public records—
including signatures on referendum petitions—be made available for public inspection and
copying.279 Categorizing the Washington statute as a disclosure law and therefore “not a
prohibition of speech,” the Court evaluated its constitutionality under the First Amendment using
the standard of exacting scrutiny.280 The Court upheld the law as substantially related to the
governmental interest of safeguarding the integrity of the electoral process, and announced that
public disclosure “promotes transparency and accountability in the electoral process to an extent
other measures cannot.”281 Regarding the argument that the disclosure law would subject petition
signatories to threats, harassment, and reprisals, the Court concluded that there was insufficient
evidence to support the assertion.282
Later, in Independence Institute v. FEC, the Supreme Court summarily affirmed a three-judge
federal district court ruling upholding the constitutionality of FECA’s disclosure requirements for
electioneering communications.283 In this case, the challengers of the law argued, among other
things, that an ad they sought to run was constitutionally protected issue advocacy and therefore
was exempt from disclosure requirements.284 Rejecting this argument, the district court observed
that the Supreme Court has twice upheld the constitutionality of the FECA disclosure

274 Id.
275 Id. at 369–370 (rejecting the contention that because the Court in WRTL, discussed supra at p. 7-8, had construed
the FECA prohibition on corporate and labor union funded electioneering communications to reach only the functional
equivalent of express advocacy, that the First Amendment similarly required a limited application of the FECA
disclosure requirements for electioneering communications).
276 See id. at 367. The Court noted that in McConnell, three Justices who would have struck down the FECA ban on
corporate independent expenditures nonetheless voted to uphold its disclosure and disclaimer requirements. See id.
(citing McConnell v. FEC, 540 U.S. 93, 231–32 (2003), overruled in part by Citizens United v. FEC, 558 U.S. 310
(2010) (opinion of Kennedy, J., joined by Rehnquist, C. J., and Scalia, J.). The Court also noted that it has upheld the
constitutionality of lobbyist registration and disclosure requirements even though a ban on lobbying would be
unconstitutional. See id. (citing United States v. Harriss, 347 U.S. 612, 625 (1954)).
277 See id. at 370; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462–63 (1958).
278 See Doe v. Reed, 561 U.S. 186 (2010).
279 See id. at 192.
280 Id. at 196.
281 Id. at 199.
282 See id. at 201.
283 See Indep. Inst. v. FEC, 216 F. Supp. 3d 176 (D.D.C. 2016), summ. aff’d, 580 U.S. 1157 (2017).
284 See id. at 185.
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requirements for electioneering communications, first in McConnell, and once again in Citizens
United, where the Court expressly held that the First Amendment does not require limiting
disclosure requirements to speech that is the functional equivalent of express advocacy.285
According to the district court, “the First Amendment is not so tight-fisted as to permit large-
donor disclosure only when the speaker invokes magic words of explicit endorsement.”286
While not a campaign finance case, in Americans for Prosperity Foundation v. Bonta, the
Supreme Court held a state disclosure law unconstitutional.287 In contrast with the exacting
scrutiny standard applied in Citizens United and Doe v. Reed, the Court in Bonta evaluated the
challenged law under a more rigorous standard of exacting scrutiny that requires a “narrow
tailoring” to a sufficiently important governmental interest.288 (The Court in Citizens United and
Doe v. Reed applied a standard of exacting scrutiny requiring only a “substantial relation”
between the disclosure requirement and the asserted sufficiently important governmental
interest.) In view of the more rigorous standard of exacting scrutiny applied in this case, some
legal scholars have suggested that the Bonta decision might affect the constitutionality of
campaign finance disclosure requirements in future cases.289
Constitutional Considerations for Legislation
Should Congress consider legislation to increase FECA’s disclaimer and disclosure requirements,
the Supreme Court’s relevant case law informs the constitutional bounds of such legislation.
Regarding disclaimer requirements, as discussed above, the Court has upheld the constitutionality
of current disclaimer requirements in FECA, by an eight-to-one vote in 2003 in McConnell,290
and again by an eight-to-one vote in 2010 in Citizens United.291 In upholding the current
requirements, the Court has emphasized how disclaimers provide critical information about the
source of advertisements so that the electorate can more effectively judge the arguments they
hear.292 Hence, the Court has signaled that should Congress enact additional disclaimer
requirements, such requirements are likely to be upheld to the extent they further the

285 See id. at 185–186.
286 Id. at 189.
287 141 S. Ct. 2373, 2385 (2021). For further discussion of Bonta, see CRS Legal Sidebar LSB10621, Supreme Court
Invalidates California Donor Disclosure Rule on First Amendment Grounds, by Victoria L. Killion; and CRS In Focus
IF12388, First Amendment Limitations on Disclosure Requirements, by Valerie C. Brannon et al.
288 Id. at 2384 (“While exacting scrutiny does not require that disclosure regimes be the least restrictive means of
achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest.”).
289 See, e.g., Lloyd Mayer, Justices Open the Door Wider For Donor Info Law Challenges, LAW360 (July 2, 2021),
https://www.law360.com/articles/1400104 (predicting that Bonta will prompt more constitutional challenges to
disclosure laws and increase the likelihood of their success); Richard L. Hasen, The Supreme Court is Putting
Democracy at Risk, N.Y. TIMES (July 1, 2021), https://www.nytimes.com/2021/07/01/opinion/supreme-court-rulings-
arizona-california.html (arguing that Bonta “calls into question a number of campaign finance disclosure laws”).
Compare Gaspee Project v. Mederos, 13 F.4th 79, 95–96 (1st Cir. 2021), cert. denied 142 S. Ct. 2647 (2022) (affirming
a district court’s grant of a motion to dismiss a facial challenge to the constitutionality of a state disclosure and
disclaimer law, applying the standard of exacting scrutiny set forth by the Supreme Court in Bonta), with Wyo. Gun
Owners v. Wyo. Sec. of State, 592 F. Supp. 3d 1014, 1023 (D. Wyo. 2022) (holding that a state’s disclosure requirement
for donations “related to” electioneering communications was not narrowly tailored), appeal filed, No. 22-8021 (10th
Cir. May 10, 2022).
290 See McConnell v. FEC, 540 U.S. 93, 230–31 (2003), overruled in part by Citizens United v. FEC, 558 U.S. 310
(2010).
291 See Citizens United, 558 U.S. at 366–371.
292 See id. at 367.
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informational interests of the electorate.293 On the other hand, the Court in Citizens United
emphasized and appeared to rely upon the fact that the disclaimer requirements being evaluated in
that case did not prevent anyone from speaking.294 Therefore, should a disclaimer requirement be
so burdensome that it impedes the ability of a candidate or group to speak—for example, a
requirement that a disclaimer comprise an unreasonable period of time in an ad—it could be
invalidated as a violation of the guarantees of free speech under the First Amendment.
Similarly, regarding disclosure requirements, as discussed above, the Court has generally upheld
their constitutionality, determining that they serve the governmental interests of providing voters
with information, deterring corruption and avoiding its appearance, and facilitating enforcement
of the law.295 Should Congress decide to consider legislation providing for enhanced disclosure
requirements, it is notable that the Court in Citizens United expressly held that the First
Amendment does not require limiting disclosure requirements to speech that is the functional
equivalent of express advocacy. Therefore, it appears that a court would likely uphold legislation
providing for increased disclosure of funding sources for communications containing express
advocacy, as well as issue advocacy, to the extent that such regulation can be shown to further the
governmental interests identified by the Court.
Criminal Penalties
In addition to a series of civil penalties,296 FECA sets forth criminal penalties for knowing and
willful violations of the Act.297 This section of the report outlines the criminal penalties applicable
to persons who violate the Act.
Generally, FECA provides that any person who knowingly and willfully commits a violation of
any provision of the Act that involves the making, receiving, or reporting of any contribution,
donation, or expenditure of $25,000 or more per calendar year shall be fined under Title 18 of the
U.S. Code, or imprisoned for not more than five years, or both.298 If the amount involved is
$2,000 or more per calendar year, but is less than $25,000, the Act provides for a fine under Title
18, or imprisonment for not more than one year, or both.299
Notably, FECA provides specific penalties for knowing and willful violations of the prohibition
on contributions made by one person “in the name of another person,”300 discussed above in the
section of the report entitled “Ban on Contributions Made Through a Conduit.”301 In addition to
the possibility of fines being imposed, for violations involving amounts over $10,000 but less

293 See, e.g., Daniel I. Weiner & Benjamin T. Brickner, Electoral Integrity in Campaign Finance Law, 20 N.Y.U. J.
LEGIS. & PUB. POL’Y 101, 105–106 (2017) (arguing that only disclaimer and disclosure requirements “have escaped the
new majority’s narrow corruption paradigm,” but maintaining that even under Citizens United, in addition to providing
voters with information, disclaimers serve to avoid corruption).
294 See Citizens United, 558 U.S. at 366.
295 But see Deborah G. Johnson et al., Symposium: Privacy, Democracy, and Elections: Campaign Disclosure, Privacy
and Transparency, 19 WM. & MARY BILL OF RTS. J. 959, 971–72 (2011) (cautioning that in the digital age, campaign
finance disclosure requirements create heightened privacy interests because data is manipulated and selectively posted).
296 52 U.S.C. § 30109(a). For further discussion, see CRS Report R44319, The Federal Election Commission:
Enforcement Process and Selected Issues for Congress, by R. Sam Garrett.
297 Id. § 30109(d).
298 Id. § 30109(d)(1)(A)(i).
299 Id. § 30109(d)(1)(A)(ii).
300 Id. § 30122.
301 See supra p. 14.
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than $25,000, violators could be subject to imprisonment for not more than two years, and for
violations involving amounts over $25,000, imprisonment for not more than five years.302
In most instances, the U.S. Department of Justice initiates the prosecution of criminal violations
of FECA, but the law also provides that the FEC may refer an apparent violation to the Justice
Department for criminal prosecution under certain circumstances.303 Specifically, if the FEC, by
an affirmative vote of four, determines that there is probable cause to believe that a knowing and
willful violation of FECA involving a contribution or expenditure aggregating over $2,000 during
a calendar year, or a knowing and willful violation of the Presidential Election Campaign Fund
Act304 or the Presidential Primary Matching Payment Account Act305 has or is about to occur, the
FEC may refer the parent violation to the U.S. Attorney General.306 In such instances, the FEC is
not required to attempt to correct or prevent such violation.307

Author Information

L. Paige Whitaker

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
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copy or otherwise use copyrighted material.

302 52 U.S.C. § 30109(d)(1)(D).
303 52 U.S.C. § 30109(a)(5)(C); see also Memorandum of Understanding Regarding the Enforcement of Federal
Campaign Finance Laws, 88 Fed. Reg. 24986-24989 (Apr. 25, 2023). According to a media report, between 2008 and
2015, the FEC referred no campaign finance enforcement cases to the Department of Justice for criminal prosecution,
and prior to that, such referrals were infrequent. See Kenneth P. Doyle, FEC Rarely Votes to Refer Criminal Cases to
Justice, BL (July 29, 2015), https://news.bloomberglaw.com/white-collar-and-criminal-law/fec-rarely-votes-to-refer-
criminal-cases-to-justice.
304 Codified at 26 U.S.C. § 9001 et seq.
305 Codified at 26 U.S.C. § 9031 et seq.
306 52 U.S.C. § 30109(a)(5)(C).
307 Id.
Congressional Research Service
R45320 · VERSION 5 · UPDATED
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Intelligence and National Security

Constitutional Questions

Report Type: CRS Report

Source: CRSReports.Congress.gov, EveryCRSReport.com

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