campaign finance

The Federal Election Commission has announced contribution limits for 2025-2026. The new “per election” limits are effective for the 2025-2026 election cycle (November 6, 2024 – November 3, 2026), and the calendar year limits are effective January 1, 2025.

The FEC increased the amount an individual can contribute to…

Continue Reading FEC Raises Contribution Limits for 2025-2026

The House Ethics Committee concluded 2024 by releasing a memorandum updating its guidance for Members’ personal use of political campaign funds (“updated guidance”).  While the Federal Election Campaign Act (“FECA”) and Federal Election Commission (“FEC”) regulations prohibit the personal use of campaign funds, House Rule 26.6(b) imposes additional restrictions on the “personal use” of campaign funds by a Member, her or his family, and other persons. 

The updated guidance reminds Members that House Rules are separate from, and in addition to, FEC regulations on the personal use of campaign funds.  Both the Ethics Committee and the FEC have emphasized their separate and independent jurisdiction, meaning that Members, their families and associates who are subject to House rules must comply with both regimes.

Additionally, the Senate also has its own rule (Rule 38.2) prohibiting Senators’ personal use of campaign funds.

While the House Ethics rules and FEC regulations are compatible, they are not identical.  Here are some of the more important distinctions:Continue Reading New House Ethics Committee Memorandum Clarifies Rules on Personal Use of Covered Campaign Funds

With a game-changing advisory opinion (AO 2024-01), 2024 started out with a bang at the Federal Election Commission (“FEC”). Other consequential opinions, enforcement actions, and regulations continued in the following months, challenging the notion that the divided Commission cannot find consensus.

In this alert, we highlight the FEC’s major…

Continue Reading FEC Year in Review 2024

With Election Day fast approaching, corporations face increasing pressure from both internal and external forces to make legal decisions about political activities. This can be a fraught area of law, with little understood, highly technical regulatory issues that vary significantly across jurisdictions. Corporate counsel should be mindful of common—and sometimes…

Continue Reading Avoiding Pitfalls on the Path to Election Day: Common Political Law Risks for Corporations in Election Season

The Federal Election Commission (FEC) officially dipped its toes into the ongoing national debate around artificial intelligence (AI) regulation, publishing a Federal Register notice seeking comment on a petition submitted by Public Citizen to initiate a rulemaking to clarify that the Federal Election Campaign Act (FECA) prohibits deceptive AI-generated campaign…

Continue Reading FEC Seeks Comment on AI Petition After Earlier Deadlock, But New Rules Remain Elusive

The Federal Election Commission (“FEC”) recently answered a common question for those involved in operating a federal PAC:  When is the treasurer personally liable for violations of the rules on recordkeeping and reporting?  In doing so, the FEC highlighted the importance of external oversight of PAC operations, and the value of periodic audits of the PAC that can identify problems before they grow. 

The case involved a non-connected PAC affiliated with the Ute Indian Tribe (“Tribe”).  The Tribe hired a consultant who claimed extensive knowledge of the FEC’s intricate rules.  The Tribe allowed the PAC to operate outside its routine financial controls because the consultant told them the PAC would operate under the FEC’s recordkeeping and reporting system.    

Trouble began immediately, with the FEC’s Reports Analysis Division flagging problems with 75% of the reports the PAC filed in the three years after it began receiving funds in 2016.  As one measure of visible distress, the PAC amended one report five times.  Because no one at the Tribe was overseeing the PAC’s correspondence with the FEC—which were available on the FEC website—the Tribe was unaware of these warning signs.  The volume and magnitude of the filing errors ultimately triggered an FEC audit, which the treasurer also concealed from the Tribe, according to the complaint.Continue Reading When is a Treasurer Personally Liable for PAC Violations?

Perhaps no citation has been more favored in Federal Election Commission (“FEC”) decisions over the past decade than Heckler v. Chaney, 470 U.S. 821 (1985), a Supreme Court decision that gives an agency broad discretion over which enforcement cases to pursue.  But there is a category of cases where the FEC is not employing Heckler when it should:  Cases where the constitutional support for the statute no longer exists.  See Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 993 F.3d 880, 884 (D.C. Cir. 2021) (“New Models”); see also Citizens for Responsibility and Ethics in Washington v. American Action Network, No. 18-CV-945, 2022 WL 612655, at *2 (D.D.C. Mar. 2, 2022) (holding that an FEC dismissal that was supported by “constitutional doubts” that “militate in favor of cautious exercise of our prosecutorial discretion” was judicially unreviewable under Chaney).

The FEC continues to pursue enforcement penalties in several categories of cases where there is almost no chance that a majority of the Supreme Court would find the statute constitutional.  This resembles a sort of regulatory Russian Roulette, where the agency pursues enforcement actions until it finds a respondent that is willing to fully litigate the constitutional issues, mostly likely in a case with plaintiff-friendly facts.  The risk for the agency is that when one of these cases eventually comes before the Supreme Court, the justices may use a hammer, rather than a scalpel, in striking down the law. 

In two areas in particular, the FEC should exercise its prosecutorial discretion to decline to pursue cases based on statutes and regulations of dubious constitutionality.   

A Person Cannot Corrupt His or Her Spouse With a Campaign Contribution, No Matter How Large. 

Currently, the FEC follows the Supreme Court’s decision in 1976 to rather tentatively uphold the application of the contribution limits to contributions from intimate family members in the same way as contributions from lobbyists and corporate and union PACs.  But the law has evolved, and the Supreme Court has since been clear that generally the only legitimate interest the contribution limits play is to prevent quid pro quo corruption or its appearance.  It is nearly impossible to argue that a spouse who gives a contribution over $2,900 to his or her candidate/spouse presents the risk of quid pro quo corruption. Continue Reading Picking Battles: The FEC and the Constitution

Trade associations, 501(c)(4) social welfare organizations, other outside groups that pay for political advertisements, and their donors now have more answers to long-running questions regarding when donations to these groups are publicly reportable.  After postponing consideration of the issue during its previous meeting, the Federal Election Commission (“FEC”) approved Wednesday an interim final rule on donor disclosure.  The interim rule amends the federal regulations that describe when outside groups that pay for independent expenditures — advertisements that expressly advocate the election or defeat of a clearly identified candidate — must publicly disclose on FEC reports the names of their donors.  The amended rule will take effect 30 legislative days after the FEC transmits the new rule to Congress, which the FEC anticipates will be September 30, 2022.

The interim rule brings the FEC’s regulations into harmony with a 2018 court decision that invalidated a long-standing regulation, 11 C.F.R. § 109.10(e)(1)(vi), requiring outside groups to disclose only those donors who contributed at least $200 to the outside group “for the purpose of furthering the reported independent expenditure.”  The interim final rule strikes the regulation entirely.  However, the FEC added a note to 11 C.F.R. § 109.10(e)(1) that clarifies the remaining portions of the regulation and the relevant statute are still in effect.

In the wake of the 2018 decision, many questions remained about when these groups must disclose donor names.  The revised regulation itself was not meant to answer those questions; it was simply meant to harmonize regulations on the books with existing court decisions.  Some of these questions were answered by an unusual guidance document the Commission posted to its website after the 2018 decision.  That guidance, which remains in effect, provides that groups (other than political committees) that pay for independent expenditures must disclose the names of donors of over $200 who made contributions “earmarked for political purposes” during the reporting period.

But when is a contribution “earmarked for political purposes”?  If a donor provides funds for get-out-the-vote activities, is that donation “earmarked for political purposes”?  If a donor makes a contribution following a presentation from an outside group describing its political activities, is the donation reportable?  What about a donation intended to further a hard-hitting issue advertisement whose purpose, at least in part, is to defeat a particular candidate?  These questions are all left unaddressed in the interim final rule and the website guidance.Continue Reading FEC Commissioners Issue New Guidance on Donor Disclosure for Groups Paying for Political Advertisements