Campaign Finance Outline

CAMPAIGN FINANCE OUTLINE

I. General Concepts 3

A. United States v. UAW (1956) 3

B. Basic Constitutional Concepts 3

II. Activities 3

A. Contributions 3

B. Expenditures 4

C. Independent Expenditures 4

D. Issue versus Election Advocacy 5

E. Electioneering Communication. 6

F. Disclosure 7

III. Independent v. Coordinated activity 8

A. Basic Rule 8

B. Pre-BCRA Regulations 8

C. Post-BCRA Regulations. 11 CFR § 109.21 9

IV. Political Committees 11

A. Definition. 11

B. Restrictions 11

C. Reporting Requirements 12

V. Political Parties 13

A. History 13

B. National Parties and Committees 13

C. State and Local Committees 15

VI. Corporations and Unions 17

A. Policy 17

B. Covered Entities. 2 U.S.C. § 441b 17

C. Restrictions. 17

D. Economic Corporations 17

E. Exceptions 18

F. 527 Organizations 21

G. 501(c) Organizations 21

VII. Public Funding 22

A. General 22

B. Primary Matching 22

C. General Election Funding 23

D. GELAC Funds 24

E. Constitutionality 24

VIII. Enforcement 26

A. History of Enforcement 26

B. Structure 26

C. Areas of Operation 26

D. FEC Complaint Handling. 27

E. Judicial Enforcement 28

IX. Internet 28

I. General Concepts

A. United States v. UAW (1956)

· Justice Frankfurter wrote about the post-war concentration of wealth and its potential effects on the political system.

· FCPA prohibited corporate donations.

· Hatch Act prohibited union contributions.

B. Basic Constitutional Concepts

1. Compelling government Interests

a. Prevention of real and apparent corruption as compelling interest. Buckley.

i. Apparent corruption may be as serious as real corruption. Shrink.

b. Equalizing voices is a notion “wholly foreign” to First Amendment jurisprudence. Buckley.

i. BUT MSCC implicitly questions this when it reaffirms the fact that large amounts of money can harm the political debate, while only in logic of corporations, it could apply to wealthy individuals as well. See MSCC (Scalia, J, dissenting).

c. Reduce time fundraising instead of governing. Landell.

d. Equalizing access to representatives. Contributions and expenditures give people access based on money. Correcting this is a compelling interest. Landell.

2. Money as speech

a. First Amendment affords highest protections to political speech. Buckley.

b. Shrink signaled some willingness to reexamine notion that money is speech.

· BUT Stevens (conc.): “Money is property; not speech.”

3. Standard of Review

· “The quantum of empirical evidence necessary to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised. Shrink (upheld state proposition with substantially greater contribution restrictions because of a fully developed factual record).

II. Activities

A. Contributions

1. Definition. Anything of value given to influence a federal election. 2 U.S.C. § 431(8)

2. 2005 Individual Contribution limits

Type of Contribution / Amount
Aggregate Limit to Candidates ($2,100 per cand. cmte) / $40,000
Aggregate Limit to Committees ($37,500 to state and local cmtes and PACs (no more than $5k to any single); $26,700 to national committees) / $61,400
Overall Cycle Limit / $101,400

3. Constitutional Issues

a. Congress may restrict because act of giving is symbolic, and not dependent on actual amount. Buckley

b. Ct. will not second guess Congress’ actual limit unless limit is so low it’s a prohibition. Shrink.

c. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rest solely on the undifferentiated, symbolic act of contributing. Limitations on contributions only marginal restriction on speech. Buckley.

d. You might be able to challenge contributions if they prevented candidates, parties or PACs from amassing resources necessary for political advocacy. Buckley.

e. Buckley upheld

· Limit on PAC contributions to candidates.

· Aggregate individual annual donation limit.

f. Amounts in Buckley are not the only acceptable ones. See Shrink(state limits ranging from $250 to $1,000 upheld). Core question is whether standard prevents candidates, parties or PACS from “amassing resources necessary for effective advocacy. Buckley.

g. Rejects overbreadth, arbitrariness and discrimination grounds.

· Not overbroad because you can’t a priori distinguish between those present risk of corruption and those not. Buckley.

· Not arbitrary because court not willing to use a “scalpel” to draw lines Congress is in the best position to make. Buckley.

· Not discriminatory against challengers or small parties. No evidence that statute discriminates explicitly or by effect.

B. Expenditures

1. Definition. 2 U.S.C. § 431(9)

(i) any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office; and

(ii) a written contract, promise, or agreement to make an expenditure.

2. Limits on expenditures necessarily reduce speech; therefore limits on expenditures are a direct restraint on speech. Buckley.

3. Must be EA. FECA’s “Relative to a clearly identified candidate” narrowed to mean express advocacy (“communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.”). Buckley.

4. Protection depends on type of speech not its source. Bellotti.

5. Limits on coordinated expenditures OK because they are contributions. Colorado II.

6. BUT SEE Landell v. Vermont PIRG (2d Cir. 2002). Act 64 restricted campaign expenditures.

· “Related expenditures” by third parties count against expenditure ceiling.

· Based on extensive legislative findings, court rejected per se ban on expenditure restrictions.

· Distinguished Buckley b/c there no evidence that expenditures limits were necessary.

· Contribution limits haven’t rectified problems of unequal access and spending too much time fundraising.

· Uncertain if opinion will hold at Sup. Ct. but if it does, it could mean you can limit expenditures too.

C. Independent Expenditures

1. Definition. Expenditures that are not coordinated with candidates seeking office.

2. Restrictions. None permissible. Buckley.

a. Buckley struck down $1k limit on indiv. expenditures “relative to clearly identified candidate”

· Can be easily circumvented.

· Doesn’t pose dangers or real or apparent corruption.

b. Voluntary restrictions on expenditures permissible (e.g. public funding).

3. Constitutional Issues

a. No risk of real or apparent corruption when people use own money. Buckley.

b. BUT this is B.S. because candidates can be just as beholden to someone who spends money on their behalf instead of contributing.

4. Coordination by parties and candidates may not be presumed. The FEC use to presume that political parties were coordinating parties, but this was struck down by Colorado I.

5. Reporting Requirements. 2 U.S.C. § 434(c)(1)

a. Applies to every person other than a PAC making EA > $250 in calendar year.

b. Information to be disclosed.

i. Whether in support of, or in opposition to, candidate;

ii. Whether or not made in cooperation, consultation, or concert, with, or at the request or suggestion of, any candidate or any authorized committee or agent of such candidate; and

iii. Identify donors given $200 or more in aggregate

iv. Identification of each person who made a contribution in excess of $200.

c. When

· Any IE aggregating >= $1,000 or more made after the 20th day, but less than 24 hours, before any election shall be reported within 24 hours.

6. Disclaimers. § 441d(a).

a. Applies to Political Committees and any person financing express advocacy or electioneering communications.

b. Communications through essentially any advertising medium must state:

s Whether the communication has been paid for or authorized by candidate …, or if not so authorized, state the name and permanent street address, telephone number or World Wide Web address of the person who paid for the communication and state that the communication is not authorized by any candidate ….

D. Issue versus Election Advocacy

1. Summary

a. EA: Regulated

b. EC: Regulated

i. > $10,000 on EC must file report.

c. Independent Expenditures. EA financed with hard money and uncoordinated.

d. Coordinated EC, EA or IE = Contribution.

e. Issue Advocacy. Unregulated???

2. Line between IA and EA not constitutionally mandated. “Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the pass or defeat of legislation.” Buckley.

3. Court decisions on express advocacy

a. Buckley “Communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.”

· Buckley narrowed FECA language, “Relative to a clearly identified candidate,” to mean express advocacy.

b. No need for magic words. MCFL

· Buckley initially suggested necessary (e.g. “vote for” elect” support” “cast your ballot for “Smith for Congress “vote against” “defeat” “reject.”)

· MCFL. EA not require magic words so long as effect is to advocate for election or defeat of clearly identified candidate.

s Urging voters to vote for “pro-life candidate” and then providing names and pictures is EA. MCFL

c. Narrow Interpretations. (pre-McConnell)

i. FEC v. Cent’l Long Island Tax Reform Immediately Committee (CLITRIM) (2d. Cir. 1980).

· Bulletin published by nonprofit association prior to election listing candidate’s voting records not express advocacy.

ii. FEC v. Christian Action Network (4th Cir. 1992).

· CAN aired ads criticizing the “militant homosexual agenda” of the Clinton/Gore ticket immediately prior to 1992 election. “Is this your vision for America?” (the flag ad). Ct. conceded it referred to clearly identified candidate but said did not advocate defeat.

iii. Faucher (1st Cir. 1991). “Take-Along Issue for Election Day” stated candidates’ names who were pro-life. Ct. said not express advocacy.

· Invalidated FEC reg implementing Furgatch.

· Ruling overturned by BCRA’s EC provision and McConnell.

d. Broad Interpretation. Furgatch (9th Cir. 1987)

· “Don’t let him do it” ad in NYT one week before presidential election referring to Carter.

· EA need not include magic words and can include “speech clearly intended to affect the outcome of a federal election.”

s Speech “must, when read as a whole, and with limited reference to external evens, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate.”

4. Only plausible interpretation is express advocacy. FEC 11 C.F.R. § 100.22(b). [ENJOINED IN 1st Cir.]

When taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because

(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
(2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.

5. Unclear whether you look at context. Furgatch did; but Faucher, CAN didn’t. However, after McConnell the standard for determining express advocacy may be more permissive.

E. Electioneering Communication.

1. Definition. BCRA § 434(f)(3)

a. Broadcast, cable or satellite communications

· Excludes: Internet and newspapers.

b. Referring to a clearly identified candidate.

· Excludes: Generic party ads (though they count for coordination’s content standard).

c. Within 60 days of general or 30 days of primary.

d. Targeted to district or state where candidate is running.

i. Defined as received by 50k people in district or state. 434(f)(3)(C).

2. Restrictions

a. PCs must use hard money to pay for.

b. Corporations may not engage in EC unless SSF.

3. Disclosure Requirements. 2 U.S.C. § 434(f)

a. Criteria

· Persons making EC exceeding $10k in value in one year.

· Execution of contract to make a disbursement is itself treated as a disbursement for purposes of disclosure requirements.

· Disclosure Date: The first date and all subsequent dates on which a person’s aggregate undisclosed expenses for electioneering communications exceed $10,000 for that calendar year. §§434(f)(1), (2) and (4).

b. Information to be disclosed. 434(f)

· ID of the person making disbursement and of any person sharing or exercising direction or control;

· If individual disbursement > $200, amount of disbursement and ID or recipient.

s Also includes execution of contract to make future disbursement.

· If over $10k, must be filed within 24 hours.

· Elections to which the EC pertains and names (if known) of the candidates identified or to be identified.

· The names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period.

4. Constitutional Issues

a. EA and IA not a constitutionally mandated distinction. IA not beyond restriction. McConnell.

b. Buckley’s magic word requirement functionally meaningless.

c. Neither individuals nor corporations have a 1A rt. to unregulated communications referring to specific candidates.

F. Disclosure

1. Disclaimers. § 441d

· Applies to Political Committees and any person financing express advocacy or electioneering communications.

· Communications through essentially any advertising medium

2. Constitutional Issues

a. Buckley v. Valeo

H: (1) Exemption for minor parties unnecessary.

(2) Upheld 434(e), disclosure for independent expenditures express advocacy (even though restrictions impermissible).

R: EXACTING SCRUTINY: “Substantial relation” to compelling governmental interest.

A: Compelling Interests justify disclosure

· Deterrence. Publicity deters corruption by making influence known.

· Informational. Aids voters in evaluating candidate.

· Enforcement. Necessary to enforce other constitutionally valid campaign finance laws.

· BUT Privacy is also constitutionally protected. Ct. held that on the facts of NAACP v. Alabama there could be sufficient harm to justify anonymity, but record in Buckley did not reflect “focused and insistent harassment of contributors” that was in NAACP.