Campaign Advertising in the United States

Campaign Finance

For a generation, the United States Supreme Court has generally held that although restrictions on campaign contributions are constitutional, restrictions on independent expenditures in support of candidates are unconstitutional. (See Buckley v. Valeo, 424 U.S. 1 (1976).) In 2010, in the celebrated Citizens United case, the Court declared unconstitutional restrictions on independent expenditures by corporations in federal election campaigns. (Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).) In 2013, the Supreme Court considered a constitutional challenge to campaign contribution limits. (McCutcheon v. Fed. Election Comm’n, 893 F. Supp. 2d 133 (D.D.C. 2012), cert. granted, 133 S.Ct. 1242 (2013).)

By way of background, the Bipartisan Campaign Finance Reform Act (Pub. L No. 107-155, also known as McCain-Feingold) imposes an aggregate limit on campaign contributions: An individual contributor cannot give more than a total of $46,200 to candidates or their authorized agents, or more than $70,800 to anyone else in the political arena per two-year election cycle. Within the $70,800 limit, a person cannot contribute more than $30,800 per calendar year to a national party committee. In McCutcheon, the Court will decide whether these limits violate the First Amendment, and in doing so it may reconsider the distinction between contributions and expenditures that has been at the heart of the Court’s approach to campaign finance regulation since Buckley was decided in the 1970s.

Federal and Nonfederal Campaign Laws

Political parties generally support candidates for federal office and for state and local offices.

The laws governing campaign financing in federal elections may differ from state and local laws. For example, the Federal Election Campaign Act (the Act) generally prohibits corporations and labor organizations from making contributions to influence federal elections, while many states permit corporate and labor donations to candidates. Portions of this chapter may be affected by the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Essentially, the Court’s ruling permits corporations and labor organizations to use treasury funds to make independent expenditures in connection with federal elections and to fund electioneering communications. The ruling did not affect the ban on corporate or union contributions or the reporting requirements for independent expenditures and electioneering communications.

Occasionally the federal and nonfederal laws overlap. This appendix explains when federal law takes precedence in those situations, and when it does not. For more detailed information, see the entry about Federal and State Campaign Finance Laws.

When Federal Campaign Finance Laws Takes Precedence

Where federal and state campaign finance laws overlap, the Federal Election Campaign Act (the Act) and Commission regulations take precedence with respect to:

• Prohibitions on election-financing activities by foreign nationals. 110.20(b);
• Prohibitions on election-financing activities by national banks and federally chartered corporations. 114.2(a); and
• Laws that pertain to the financing of federal elections. 108.7(a).

Foreign Nationals

The Act prohibits foreign nationals from making contributions or expenditures in connection with any United States election (federal, state or local), either directly or through another person. For further information, see the entry about Federal and State Campaign Finance Laws.

National Banks and Federally Chartered Corporations

The Act also prohibits national banks and corporations organized by authority of any law of Congress (for example, federal savings banks) from making contributions or expenditures in connection with any election—federal, state or local. 114.2(a).

They may, however, set up separate segregated funds (also called PACs) for this purpose. 114.1(a) (2)(iii) and (b), 114.2(a)(1) and (2); AO 1987-14. (Consult state laws as to the permissibility of election-related activity conducted by state-chartered banks.)

Federal Campaign Financing

With respect to the financing of federal elections, federal law specifically supersedes nonfederal law in the following areas:

• The organization and registration of political committees supporting federal candidates;
• The disclosure of receipts and expenditures by federal candidates and political committees;
  and
• The limits on contributions and expenditures regarding federal candidates and political
  committees. 108.7(a) and (b).

When Federal Campaign Finance Laws Does Not Takes Precedence

The Act and FEC regulations do not supersede nonfederal laws governing the following areas:

• Methods of qualifying candidates and political party organizations for the ballot;
• Dates and places of elections;
• Voter registration (The National Voter Registration Act, a federal law adopted in 1993 and known as the “Motor-Voter” Act, requires states to implement specific voter registration procedures, including registration of individuals applying for driver’s licenses, registration by mail, and registration at certain government agencies);
• Prohibitions on false registration, voting fraud, theft of ballots and similar offenses;
• Candidates’ disclosure of their personal finances (the Ethics Reform Act of 1989 requires personal financial disclosure reports from federal candidates); and
• Funds for the purchase or construction of a state or local party office building to the extent described in 300.35. 108.7(c).

LEVIN FUNDS

All donations of Levin funds must be lawful under the laws of the state in which the committee is organized. Levin funds may include donations from sources ordinarily prohibited by federal law but permitted by state law. 300.31(b) and (c).

A state, district or local committee may not solicit or accept Levin funds which aggregate to more than $10,000 per source in a calendar year. If the state in which the committee is organized limits donations to that committee to less than $10,000, then the state limit has priority. However, if the state permits higher amounts, the $10,000 limit still applies. 300.31(d)(1)-(2). Similarly, federal law does not prohibit corporate or union donations of Levin funds, but if state law does, then that ban would apply.

For further information of Levin funds and federal election activity, see Chapters 8 and 14.

Resources

Further Reading

• Information about Campaign Advertising in the Gale Encyclopedia of American Law.