Bipartisan Campaign Reform Act of 2002: Summary and Comparison with Existing Law
CRS Report for Congress
Bipartisan Campaign Reform Act of 2002:
Summary and Comparison with Previous Law
Updated January 9, 2004
Joseph E. Cantor
Specialist in American National Government
Government and Finance Division
L. Paige Whitaker
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Bipartisan Campaign Reform Act of 2002:
Summary and Comparison with Previous Law
Summary
The Bipartisan Campaign Reform Act of 2002 (BCRA) was enacted on March
27, 2002 as P.L. 107-155. It passed the House on February 14, 2002, as H.R. 2356
(Shays-Meehan), by a 240-189 vote. Its companion measure, on which it was largely
based, had initially been passed by the Senate in 2001 as S. 27 (McCain-Feingold).
On March 20, 2002, however, the Senate approved the House-passed H.R. 2356 by
a 60-40 vote, thus avoiding a conference to reconcile differences between S. 27 and
H.R. 2356. A series of technical amendments to the bill was passed later that day by
the House, in the form of H.Con.Res. 361, which directed the Clerk of the House to
make specified corrections in the enrolled H.R. 2356. The Senate approved the
concurrent resolution on March 22, thus clearing the measure for the President.
The two primary features of P.L. 107-155 are restrictions on party soft money
and issue advocacy. First, the new Act generally bans the raising of soft money by
national parties and federal candidates or officials and restricts soft money spending
by state parties on what the Act defines as “federal election activities.” The Act does,
however, allow for some use of soft money under certain conditions for specified
federal election activities by state and local parties.
Second, the Act regulates issue advocacy by creating a new term in federal
election law, “electioneering communication”— political advertisements that “refer”
to a clearly identified federal candidate and are broadcast within 30 days of a primary
or 60 days of a general election. Generally, the Act prohibits unions and certain
corporations from spending treasury funds for such “electioneering
communications.” For those individuals and groups permitted to finance such
communications, it requires disclosure of disbursements of over $10,000 and the
identity of donors of $1,000 or more.
The Act generally took effect on November 6, 2002, the day after the 2002
general elections. Certain provisions, however, had different effective dates, either
to allow a transition period or, as in the case of increased contribution limits, to make
the new rules coincide with the calendar year.
On December 10, 2003, in McConnell v. FEC (No. 02-1674), the U.S. Supreme
Court upheld the constitutionality of key provisions of BCRA. A 5-to-4 majority of
the Court upheld most portions of the law, including the key provisions relating to
political party soft money and electioneering communications. The Court, however,
invalidated two provisions of the law: the prohibition of contributions by minors age
17 and under and the provision requiring political parties to choose between
coordinated and independent expenditures during the post-nomination, pre-election
campaign period.
Contents
Bipartisan Campaign Reform Act of 2002(P.L. 107-155): Summary
and Comparison with Previous Law*.............................2
Hard Money Sources: Individuals.................................2
Hard Money Sources: Political Parties.............................2
Hard Money Sources: Candidates.................................2
Independent Expenditures (Hard Money)...........................4
Coordination (Hard and Soft Money)..............................5
Soft Money: Party.............................................6
Issue Advocacy (Soft Money)...................................10
FEC Disclosure..............................................14
FEC Enforcement.............................................15
Advertising ..................................................16
Foreign Money...............................................16
Miscellaneous ...............................................16
Bipartisan Campaign Reform Act of 2002:
Summary and Comparison with
Previous Law
This report summarizes the Bipartisan Campaign Reform Act of 2002 (P.L. 107-
155) and compares it with the previous law (in most cases, the Federal Election
Campaign Act (FECA), 2 U.S.C. § 431 et seq.). In general, the new Act took effect
on November 6, 2002, the day after the 2002 general elections, although certain
provisions had different effective dates, as noted herein.
On December 10, 2003, the Supreme Court, in McConnell v. FEC, struck down
two provisions of BCRA, dealing with contributions by minors and political party
coordinated and independent expenditures. This revised report reflects the Court’s
ruling on those provisions, as noted herein.1
Much of the recent campaign finance debate has revolved around the issues of
so-called hard and soft money. In general, the term “hard money” has been used to
refer to funds raised and spent according to the limits, prohibitions, and disclosure
requirements of federal election law. By contrast, “soft money” has been used to
describe funds raised and spent outside the federal election regulatory framework, but
which may have at least an indirect impact on federal elections. Since the new
statute described herein became effective, however, regulation was extended to some
aspects of soft money that hitherto had not been regulated by federal election law.
The Report consists of a table providing a detailed comparison of the new Act
and relevant previous law, organized according to major topics covered. The table
provides the Act’s section numbers, and for previous law, U.S. Code (U.S.C.) and
Code of Federal Regulations (C.F.R.) citations and selected, abbreviated court-
decision summaries. In the text summarizing the Act, italics are used to denote
technical corrections made under H.Con.Res. 361, which was adopted following2
passage of H.R. 2356. In the case of the two provisions struck down by the Supreme
Court in McConnell v. FEC, the table shows the BCRA provision as originally
enacted, highlighted with a reference that the Court invalidated these sections.
1 For a discussion of the majority opinion in McConnell v. FEC, see: CRS Report RS 21693,
Campaign Finance Law: The Supreme Court Upholds Key Provisions of BCRA in
McConnell v. FEC, by L. Paige Whitaker.
2 For a legislative history of floor amendments, see: CRS Report RL31290, Campaign
Finance Bills Passed in the 107th Congress: Comparison of S. 27 (McCain-Feingold), H.R.
Bipartisan Campaign Reform Act of 2002
(P.L. 107-155): Summary and Comparison with
Previous Law*
Relevant Previous LawBipartisan Campaign Reform Act
Hard Money Sources: Individuals
Limit on contributions to candidates:
$1,000 per candidate, per election; notRaises limit to $2,000 per candidate, per
indexed [2 USC §441a(a)(1)(A)]election, indexed for inflation [Sec. 307]
Limit on contributions to state party
committee:
$5,000 per year to federal account, notRaises limit to $10,000 per year [Sec. 102]
indexed [2 USC §441a(a)(1)(C)]
Limit on contributions to national
party committee:
$20,000 per year to federal account, notRaises limit to $25,000 per year, indexed
indexed [2 USC § 441a(a)(1)(B)]for inflation [Sec. 307]
Limit on aggregate contributions:
$25,000 per year to PACs, parties, andRaises limit to $95,000 per 2-year cycle,
candidates, not indexed with sub-limits:
[2 USC §441a(a)(3)](a) $37,500 to all candidates;
(b) $57,500 to all PACs and parties (no
more than $37,500 of which is to state and
local parties and PACs); indexed [Sec. 307]
Hard Money Sources: Political Parties
Special limit on contributions to
Senate nominees:
$17,500 in election year, by nationalRaises limit to $35,000 in year of election,
and senatorial party committeesindexed for inflation [Sec. 307]
combined, not indexed
[2 USC §441a(h)]
Hard Money Sources: Candidates
Personal use of campaign funds:
Bans candidate personal use Codifies FEC regulations on permissible
[2 USC §439a]uses for campaign funds; clarifies that
Regulations enumerate personal uses transfers of excess funds to national, state,
[11 CFR§113.1(g)]and local parties are not subject to limits;
retains ban on personal use [Sec. 301]
* Italics reflect technical corrections per H.Con.Res. 361, passed after H.R. 2356. The term
“GOTV” is used in the table to denote get-out-the-vote drives.
Relevant Previous LawBipartisan Campaign Reform Act
Candidate loans to campaign:
No rules regarding amount of candidateLimits repayment of loans to $250,000,
loans that can be paid from post-from amounts contributed after election
election contributions [Sec. 304]
Wealthy candidates: In Senate elections:
Contribution limits are the same for all- Raises limits on individual and party
candidates, regardless of whethersupport for Senate candidate whose
opponents spend large amounts fromopponent exceeds designated threshold
personal fundslevel of personal campaign funding
[2 USC § 441a(a)(1)(A)]- Creates threshold of $150,000 + 4¢ times
number eligible voters in state
In Buckley v. Valeo (424 U.S. 1, 51-54- Once “opposition personal funds amount”
(1976)), Supreme Court struck down(personal spending of candidate minus that
limits on spending from personal fundsof opponent) exceeds threshold by: (a) from
by candidates2 to under 4 times, then limit on individual
contributions to opponent is tripled; (b)
from 4 to under10 times, then limit on
individual contributions to opponent is
raised 6-fold; (c) 10 times, then limit on
individual contributions to opponent is
raised 6-fold and lifts limit on party
coordinated expenditures for opponent
- Limits would be raised only to extent of
110% of total “opposition personal funds
amount” [Sec. 304]
In House elections:
- Raises limits on individual and party
support for House candidate whose
opponent exceeds threshold of $350,000 in
personal campaign funding
- Once “opposition personal funds amount”
(personal spending of candidate minus that
of opponent) exceeds threshold, then limit
on individual contributions to opponent is
tripled and limit on party coordinated
expenditures for opponent is lifted
- Limits would be raised only to extent of
100% of total “opposition personal funds
amount” [Sec. 319]
In House and Senate elections
- Aggregate individual limit raised to extent
of higher contribution limits
- In calculating “opponent personal funds
amount,” subtracts “gross receipts
advantage” of candidate opposed by
wealthy candidate (50% of gross receipts of
candidate minus 50% of gross receipts of
wealthy opponent, as of Jun. 30 and Dec.
Relevant Previous LawBipartisan Campaign Reform Act
Independent Expenditures (Hard Money)
Definition:
An expenditure by a person expresslyDefines independent expenditure as an
advocating election or defeat of aexpenditure by a person expressly
clearly identified candidate, madeadvocating the election or defeat of a
without cooperation or consultationclearly identified candidate, and that is not
with candidate (or authorizedmade in concert or cooperation with, or at
committee or agent), and not made inrequest or suggestion of a candidate, party,
concert with, or at request oror agent [Sec. 211]
suggestion of, any candidate (or agent
or committee) [2 USC §431(17)]
Special disclosure rules:
Requires 24-hour notice of independent- Requires 24-hour notice of independent
expenditures of $1,000 or more made inexpenditures of $1,000 or more made or
last 20 days of election, up to 24 hourscontracted to be made in last 20 days of
prior to election [2 USC § 434(c)(2)]election, up to 24 hours prior to election
(notice due at FEC within 24 hours)
- Adds requirement for a 48-hour notice of
independent expenditures of $10,000 or
more, made or contracted to be made up to
Party spending for party candidates:
Parties may make expenditures inAfter date of party nomination, prohibits
connection with a general election of aparty from making coordinated
federal candidate’s campaign, subjectexpenditures for a candidate it has made
to limits, also known as theindependent expenditures for and from
“coordinated party expenditure limits” making independent expenditures for a
[2 USC §441a(d)]candidate it has made coordinated
expenditures for [Sec. 213]
In Colorado Republican Federal
Campaign Committee v. FECInvalidated by Supreme Court in its
(Colorado I) (518 U.S. 604 (1996)), December 10, 2003 ruling in McConnell
Supreme Court ruled that, as applied tov. FEC
CO Republican Party, the coordinated
party expenditure limit was
unconstitutional, and that parties can
make independent expenditures on
behalf of candidates; in Colorado II,
(No. 00-191 slip op. (June 25, 2001)),
Court upheld the constitutionality of
the coordinated party expenditure limit
Relevant Previous LawBipartisan Campaign Reform Act
Coordination (Hard and Soft Money)
Definition:
Statute: Statute:
FECA does not define “coordination”No provision
or “coordinated activity” per se
FEC Regulations:FEC Regulations:
New FEC coordination rules define- Repeals new FEC rules as of date new
“coordinated general public politicalregulations are promulgated
communications” as coordinated- Directs FEC to promulgate new
communications including clearlyregulations on coordinated communications
identified candidates, paid for byby persons other than candidates,
persons other than candidates/parties,authorized committees, or parties
including express or issue advocacy;- Specifies new rules will not require
communication will be consideredagreement or formal collaboration to
coordinated if: it is made at request orestablish coordination
suggestion of candidate or party,- Specifies rules will address issues of: (1)
candidate/party had control orrepublication of campaign material; (2)
substantial decision-making authority,common vendors; (3) prior employment
or candidate/party engaged instatus; and (4) substantial discussion with
substantial discussion or negotiationcandidate or party [Sec. 214]
with those involved in creating,
producing, distributing, or paying for
communication
[11 CFR §100.23 (2001)]
Consequences of coordination:
- Expenditures made in cooperation,- Treats an “electioneering communication”
consultation, or concert with, or at thethat is coordinated with a candidate, agent,
request or suggestion of, a candidate oror party as a contribution to and
agents shall be considered aexpenditure by candidate or party [Sec.202]
contribution to candidate - Treats expenditures by any person made
[2 USC §441a(a)(7)(B)(i)]in cooperation, consultation, or concert
- Financing of dissemination,with, or at request or suggestion of, any
distribution, or republication, in wholeparty committee as a contribution to that
or part, of any broadcast or materialsparty committee [Sec. 214]
prepared by candidate or agents shall
be considered an expenditure subject to
relevant limits
[2 USC §441a(a)(7)(B)(ii)]
(For express advocacy discussion, see
“Soft Money: Party” & “Issue
Advocacy” sections)
Relevant Previous LawBipartisan Campaign Reform Act
Soft Money: Party
National party committees:
May raise soft money (i.e., generally,Prohibits a national party committee,
funds from sources or in amountsincluding entities directly or indirectly
banned under federal election law), soestablished, financed, maintained, or
long as funds are deposited in non-controlled by such committee or agent
federal accounts, and may distributeacting on its behalf, from soliciting,
funds, in accord with FEC allocationreceiving, directing, transferring, or
formulae [11 CFR §106.5]spending soft money [Sec. 101]
State and local party committees:
May spend soft money on the state- In general, bans soft money spending for
portion of mixed (federal/state)a “federal election activity” by state/local
activities, according to detailedparty committees, including an entity
allocation requirements directly or indirectly established, financed,
[11 CFR §106.5]maintained, or controlled by a state or local
party committee (and agent acting on its
behalf), or by an association or group of
state/local candidates or officials
- However, allows state, district, or local
party committee to use some funds raised
under state law for an allocable share (at
FEC-determined ratios) of a voter
registration drive in last 120 days of a
federal election, voter ID, GOTV, and
generic activity, if it: (1) does not refer to a
federal candidate; (2) does not pay for a
broadcast, cable, or satellite communication
(unless it refers solely to state or local
candidates); (3) takes no more than $10,000
a year (or less, if state law so limits) from
any person (including an entity person
establishes, finances, maintains, or
controls) for such activity; (4) uses only
funds raised by that party committee
expressly for such purposes, with no
transfers from other party committees (and
agents/officers acting on their behalf or
entity they directly/indirectly establish,
finance, maintain, or control); and (5) uses
no funds that were solicited, received,
directed, transferred, or spent by or in name
of natl. party, federal candidate or official,
or joint fundraising activities by 2 or more
state/local party committees [Sec. 101]
- Prohibits state/local candidates from using
soft money for public communications that
promote/attack a clearly identified federal
candidate, but exempts communications
referring to a federal candidate who is also
a state/local candidate
Relevant Previous LawBipartisan Campaign Reform Act
Federal or non-federal activity: "Federal election activity" defined to
FEC allocation rules offer guidance ininclude: (1) voter registration drives in last
determining if activity is federal or120 days of a federal election; (2) voter
non-federal election related, by suchidentification, GOTV drives, and generic
means as “ballot composition” (foractivity in connection with an election in
administration and generic voterwhich a federal candidate is on the ballot;
drives), “time and space” allotted in a(3) “public communications” that refer to a
communication, etc. [11 CFR §106.1]clearly identified federal candidate and
promote, support, attack, or oppose a
Definition of activity generallycandidate for that office (regardless of
triggering application of federalwhether they expressly advocate a vote for
election law — Express advocacy: or against); or (4) services by a state or
Sup. Court, in Buckley v. Valeo (424local party employee who spends at least
U.S. 1, 44 (1976)) and FEC v. Mass.25% of paid time in a month on activities in
Citizens for Life (479 U.S. 238, 249connection with a federal election
(1986)), generally construed federal[Sec. 101]
campaign law to reach only funds used
for independent communications by
non-political committees that include
express words advocating election or
defeat of clearly identified candidate;
in lower courts, prevailing view is,
generally, that regulation of such
communications that do not contain
specific express advocacy words (or
“magic words,” e.g., “vote for,”
“defeat”) is not constitutional; but
see,11 CFR §106.5(b), subjecting
national party disbursements for non-
express advocacy communications to
allocation formulae, requiring specific
% of hard money, §104.9(c), requiring
reporting of natl. party soft money, and
§106.5(b), (c), & (d), requiring party
allocation of generic voter drive costs
Public political communications:
Defined by new regulations as thoseDefines “public communications” as those
made through broadcast (includingmade by broadcast, cable, satellite,
cable), newspaper, magazine, outdoornewspaper, magazine, outdoor advertising,
advertising facility, mailing or anymass mailing (over 500 identical or
electronic medium, including Internetsubstantially similar pieces mailed within
or Web site, with intended audience of30 days of each other), or phone bank (over
over 100 people 500 identical or substantially similar calls
[11 CFR §100.23(e)(1) 2001]made within 30 days of each other)
[Sec. 101]
Generic activity:
No provisionDefines “generic campaign activity” as one
that promotes a party but not a federal or
non-federal candidate [Sec. 101]
Relevant Previous LawBipartisan Campaign Reform Act
Permissible state/local party
spending:
State/local parties may spend moneyState parties may spend soft money on
on federal and non-federal races, if theyactivities that are not “federal election
allocate funds between hard and softactivities,” including: public
money [11 CFR §106.5]communications referring solely to
state/local candidates; contributions to
state/local candidates; state, district, or
local convention costs; and grassroots
materials only depicting state/local
candidates [Sec. 101]
Fundraising costs:
Parties may allocate costsProhibits party committees from using soft
[11 CFR §106.5(f)]money to raise funds for use at least in part
on “federal election activities” [Sec. 101]
Support for tax-exempt groups:
No restrictions on parties’ ability toProhibits party committees or agents from
support tax-exempt groups raising money for, or giving or directing
money to, an Internal Revenue Code
§501(c) tax-exempt organization that makes
disbursements in connection with a federal
election (including a “federal election
activity”) or a §527 tax-exempt
organization (if not a federal political
committee) [Sec. 101]
Federal candidates/officeholders:
Role in raising soft money:Role in raising soft money:
May participate in fundraisers without- Prohibits federal candidates,
restriction officeholders, agents, or entities they
directly or indirectly establish, maintain,
finance, or control from raising soft money
in connection with a federal election
(including any “federal election activity”)
or any money from sources beyond federal
limits and prohibitions in non-federal
elections
- Ban does not apply to an individual who
is or was also a state or local candidate, for
activity allowed under state law and that
refers only to the state/local candidate or
opponents; does not prohibit appearing,
speaking, or being featured guest at
state/local party fundraiser [Sec. 101]
Relevant Previous LawBipartisan Campaign Reform Act
Federal candidates/officeholders:
Role in tax-exempt fundraising:Role in tax-exempt fundraising:
No restrictionsRegardless of other soft money restrictions,
allows federal candidates/officials to make:
(a) unrestricted general solicitations on
behalf of 501(c)s involved in federal
elections where solicitation doesn’t specify
how funds will be used, unless
organization’s principal purpose is voter
registration in last 120 days of federal
election, GOTV, voter ID, or generic
activity where a federal candidate is on
ballot; and (b) solicitations for 501(c)s
involved in federal elections specifically
for such activities, or for general use by
501(c) whose principal purpose is those
activities, with solicitations only to
individuals, subject to a $20,000 per donor
limit [Sec. 101]
Disclosure by national parties:
Regulations require disclosure of allCodifies FEC regulations on disclosure of
receipts and disbursementsall activity—federal and non-federal
[11 CFR §104.8, 104.9][Sec. 103]
State/local party disclosure:
Required for activity by federal- Requires disclosure of “federal election
accounts only [2 USC § 434]activities” by state/local party committees
All mixed activities must be fundedincluding entities directly or indirectly
through federal accounts established, financed, maintained, or
[11 CFR § 106.5(a)]controlled by either state/local party
committee and agent or by state/local
candidates and officials, subject to $5,000
threshold in aggregate activity per year
- Disclosure must include all amounts
raised and spent by special soft money
accounts that are allowed to be used for
“federal election activities” [Sec. 103]
Building funds:
Donations to national/state partyEnds building fund exemption; clarifies
building funds are exempt that state law is to govern exclusively in
[2 USC §431(8)(B)(viii)]regulating spending on state and local
party buildings [Sec. 103]
Relevant Previous LawBipartisan Campaign Reform Act
Issue Advocacy (Soft Money)
Definition of activity generally
triggering application of federal
election law—
Express advocacy: Supreme Court, in“Electioneering communication”:
Buckley v. Valeo (424 U.S. 1, 44Defined as a broadcast, cable, or satellite
(1976)) and FEC v. Massachusettsadvertisement that “refers” to a clearly
Citizens for Life (479 U.S. 238, 249identified federal candidate, is made within
(1986)), generally construed federal60 days of a general election or 30 days of
campaign law to reach only funds useda primary, and, if for House or Senate
for independent communications byelections, “is targeted to the relevant
non-political committees that includeelectorate”
express words of advocacy of election- Exempts news events, “expenditures,”
or defeat of a clearly identified“independent expenditures,” debates, and
candidate; prevailing view in lowerothers by FEC regulation
courts is that, generally, regulation of
such communications that do not- Provides alternative definition of
contain specific express words of“electioneering communication,” in the
advocacy (also referred to as theevent that the first definition is ruled
“magic words,” e.g., “vote for” orunconstitutional [based on FEC v. Furgatchth
“defeat”) is unconstitutional; FEC,(807 F.2d 857 (9 Cir. 1987), cert. denied,
therefore, has had some difficulty in484 U.S. 850 (1987))]: i.e., broadcast,
enforcing its more encompassingcable, or satellite communication that
regulation, which includes apromotes/supports or attacks/opposes a
“reasonable person” standard forcandidate (regardless of whether it
determining whether suchexpressly advocates a vote for or against a
communications constitute “expresscandidate), and is suggestive of no
advocacy” [11 CFR §100.22]plausible meaning other than an exhortation
to vote for or against a candidate; nothing
in provision alters 11 CFR 100.22(b), FEC
regulation defining express advocacy
[Sec. 201]
Targeted communications:(In context of electioneering
Not definedcommunications prohibited by 501(c) and
“Targeted to the relevant electorate”
defined as a communication that can be
received by 50,000 or more persons in state
or district where Senate or House election,
respectively, is occurring [Sec. 201]
Disclosure:
Communications by non-politicalRequires disclosure to FEC of
committees that avoid explicitdisbursements for direct costs of producing
advocacy language are outside purviewand airing “electioneering
of, and hence not subject to, FECAcommunications” by any spender exceeding
disclosure; but spending on such$10,000 annual aggregate in such
activities may be disclosed if group isdisbursements, within 24 hours of the first
“political organization” under Internaland each subsequent $10,000 amount
Rev. Code (26 USC §527)[Sec. 201]
Relevant Previous LawBipartisan Campaign Reform Act
Contents of disclosure:
Only for activities meeting expressFor “electioneering communications”:
advocacy standard and for FECA-- Identification of spender, custodian of
defined political committees — books, and any entity exercising control
Statement of organization identifiesover activity
name of spender, sponsor (if any),- principal place of business
treasurer, custodian of books, and- identification of disbursements of over
banks $200
[2 USC § 433]- identification of donors of $1,000 or more
(either to a separate segregated fund
Periodic disclosure reports listdevoted exclusively to such activities, with
aggregate cash on hand, receipts,funds only from U.S. citizens or nationals
expenditures, transfers, loans, rebates,or permanent resident aliens, or, if no
refund dividends, and interest (and, forseparate segregated fund, to organization
presidential candidates, public funds);itself)
itemized identification on contributions- notation as to election and candidates to
received and expenditures made of overwhich communications pertain [Sec. 201]
$200 per year, with name, address,
occupation, and principal place of
business of donor or recipient
For persons other than political
committees, disclosure requirements
are triggered once independent
expenditures over $250 in a calendar
year are made [2 USC § 434]
Corporations and labor unions:
FECA bans union and corporate Bans funding of “electioneering
general treasury spending to influencecommunications” with funds from union or
federal elections, subject to Supremecertain corporate funds; but exempts
Court imposed express advocacyInternal Revenue Code §501(c)(4) or §527
standards [2 USC §441b(a)] tax-exempt corporations making
“electioneering communications” with
In FEC v. Massachusetts Citizens forfunds solely donated by individuals who
Life (MCFL) (479 U.S. 238, 259are U.S. citizens or nationals or permanent
(1986)), Court held that ban onresident aliens [Sec. 203] . . .
corporate general treasury spendingunless a communication is a “targeted”
cannot be constitutionally applied tocommunication, i.e., it was distributed from
non-profit political or ideologicala broadcaster or cable or satellite service
corporations that do not acceptand is received by 50,000 or more persons
donations from for-profit corporationsin state or district where Senate or House
and unions and whose members haveelection, respectively, is occurring
no economic incentive in the[Sec. 204]
organization’s political activities
As a result of court decisions,
communications by non-political
committees that avoid explicit
advocacy language are generally
outside purview of FECA regulation
Relevant Previous LawBipartisan Campaign Reform Act
Coordination—
FECA does not define “coordination”Treats an “electioneering communication”
or “coordinated activity” per se, but: that is coordinated with a candidate, agent,
- Expenditures made in cooperation,or party as a contribution to and
consultation, or concert with, or at theexpenditure by candidate or party
request or suggestion of, a[Sec. 202]
candidate/agent shall be deemed a
contribution to the candidate
[2 USC §441a(a)(7)(B)(i)]
- Financing of dissemination,
distribution, or republication, in whole
or part, of any candidate-prepared
materials/broadcasts is considered an
expenditure, subject to relevant limits
[2 USC§441a(a)(7)(B)(ii)]
New FEC coordination rules define
“coordinated general public political
communications” as coordinated
communications concerning clearly
identified candidates, paid for by
persons other than candidates/parties,
including express or issue advocacy; a
communication will be considered
coordinated if: it is made at request or
suggestion of candidate or party;
candidate or party had control or
substantial decision-making authority;
or candidate or party engaged in
substantial discussion or negotiation
with those involved in paying for,
creating, producing, or distributing
communication
[11 CFR §100.23 (2001)]
Relevant Previous LawBipartisan Campaign Reform Act
Broadcast attribution:
Federal Communications Act imposes(See discussion under “Advertising”
general requirement that politicalsection)
radio/TV ads include notice of who
paid for ads [47 USC § 317]
FCC regulations further require paid
TV political ads and other matters
involving the discussion of
controversial issues of public
importance to provide “true identity” of
sponsor “with letters equal to or greater
than four percent of the vertical picture
height that air for not less than four
seconds” and require broadcasters to
disclose extent to which any “film,
record, transcription, talent, script, or
other material” related to an ad was
furnished to the broadcaster in
connection with the airing of a political
advertisement or other matter involving
the discussion of a controversial issue
of public importance
[47 CFR § 73.1212]
Broadcast public inspection files:
When political ad was paid for by aRequires broadcasters to maintain and
corporation, committee, association, ormake available for public inspection
unincorporated group, FCC regulationsrecords of broadcast time requests by
also require broadcaster to maintaincandidates or by other entities whose
records of group’s governing personnel,messages relate to political matters of
available for public inspection national importance, including messages
[47 CFR § 73.1212]about a legally qualified candidate, a
federal election, or a legislative issue of
public importance; requires records to
include: whether request was accepted; rate
charged; date and time message aired; class
of time purchased; identification of
candidate and office, election, or issue
referred to; and identity of purchaser,
including officers of any non-candidate
entity [Sec. 504]
Relevant Previous LawBipartisan Campaign Reform Act
FEC Disclosure
Availability of reports:
- Requires all reports filedRequires all reports filed with FEC to be
electronically to be posted on FEC Webposted on Internet and available for
site within 24 hours of receiptinspection within 48 hours, or 24 hours if
[2 USC §434(a)(11)(B)]filed electronically [Sec. 501]
- Requires paper reports to be available
for public inspection at FEC within 48
hours of receipt [2 USC §438(a)(4)]
Central website:
No provisionRequires FEC to maintain central Web site
of all publicly available election-related
reports [Sec. 502]
Standardized software:
No provisionRequires FEC to develop and provide
standardized software for filing reports
electronically, and requires candidates’ use
of such software [Sec. 306]
Filing schedule for candidates:
Principal campaign committees ofRequires candidates to file quarterly reports
candidates must file quarterly, pre-in non-election years [Sec. 503]
election, and, for general, post-election
reports in election years, and semi-
annual reports in non-election years;
presidential candidates with actual or
expected contributions or expenditures
over $100,000 must file monthly in
presidential election years [2 USC
§434(a)]
Filing schedule for parties:
Non-candidate committees (includingRequires national party committees to file
parties) may file: (a) quarterly, pre-monthly reports in all years [Sec. 503]
election, and, for general, post-election
reports in election yrs., and semi-
annual reports in non-election years; or
(b) monthly reports [2 USC §434(a)]
Relevant Previous LawBipartisan Campaign Reform Act
FEC Enforcement
Criminal penalties:
For knowing and willful violationsIncreases criminal penalties for knowing
involving contributions/expenditures ofand willful violations involving
$2,000 or more per year: a finecontribution/expenditure/donation amounts
equaling the greater of $25,000 oraggregating from $2,000 to less than
300% of amount involved or up to one$25,000 in a year: a fine under Title 18
year in prison, or both (USC) or up to one year in prison, or both;
[2 USC §437g(d)(1)(A)]for knowing and willful violations
involving amounts aggregating $25,000 or
more: a fine under Title 18 or up to five
years in prison, or both [Sec. 312]
Statute of limitations:
Three years for criminal violations ofChanges to five years, for criminal
FECA [2 USC §455(a)]violations of FECA [Sec. 313]
Sentencing guidelines:
No provisionDirects U.S. Sentencing Commission to
promulgate guidelines and make legislative
or administrative recommendations
regarding penalties for violating federal
election law, per specified considerations:
reflect serious nature; enhancement for
foreign national violation, large number of
illegal transactions, large dollar amount of
violations, misuse of government funds, or
intent to gain federal government benefits;
assure consistency with FEC regulations;
account for aggravating or mitigating
circumstances; and comply with purposes
of 18 USC §3553(a)(2) [Sec. 314]
Penalties for violating ban on
contributions made in the name of
another:
No specific penaltiesCivil: Imposes penalties, for knowing and
willful violations, of between 300% of
violation amount and the greater of $50,000
or 1000% of violation amount
Criminal: For knowing/willful violations
in amounts of over $10,000, imposes
penalties of two years in prison for up to
$25,000 violation amount, or fine of
between 300% of violation amount and the
greater of $50,000 or 1000% of violation
amount, or prison and fine [Sec. 315]
Relevant Previous LawBipartisan Campaign Reform Act
Advertising
Candidate appearance in ads:
No content requirements for lowest unitRequires federal candidate broadcast ads
rate (LUR) adsthat are sold at lowest unit rate and that
include direct reference to opponents to
include candidate photo or image on TV
and a statement of candidate approval
(printed on TV and spoken by candidate on
radio) [Sec. 305]
Sponsor Identification:
Public political advertisements, from- Adds requirement for sponsor
expenditures by any person, includingidentification by political committees for
express advocacy, or those containingany public political advertising (including
contribution solicitations, must state“electioneering communications”)
clearly who paid for communication- Requires specific minimal standards to
and whether a candidate authorized itenhance visibility of such identification in
[2 USC §441d]the communication, including an audio
statement of candidate or sponsor approval
in TV and radio ads; also in TV ads,
requires a written statement of
responsibility that appears in a clearly
readable manner, with a reasonable degree
of color contrast, for at least four seconds,
and is conveyed in an unobscured, full-
screen view of candidate/sponsor (or with
image and voice-over thereof) [Sec. 311]
Foreign Money
Prohibits direct or indirect- Bans direct or indirect contributions from
contributions or anything of value, orforeign nationals (including soft money), or
their solicitation, from foreigntheir solicitation or receipt, or any promise
nationals, in connection with electionto make such donations, in connection with
to any political office; exemptsany U.S. election, to a national party
permanent resident alienscommittee, or for any expenditure,
[2 USC §441e]disbursement, or independent expenditure
for an “electioneering communication”
(retains permanent resident alien
exemption) [Sec. 303]
- Clarifies that ban does not apply to U.S.
nationals [Sec.317]
Miscellaneous
Fundraising on government
property:
Bans solicitation or receipt ofBans solicitation or receipt of
contributions, as defined by FECA, incontributions, including soft money, from
any room or building used by federalanyone or by federal officials, while in any
officials or employees to dischargefederal government building used to
official duties [18 USC § 607]discharge official duties [Sec. 302]
Relevant Previous LawBipartisan Campaign Reform Act
Inaugural committees:
Donations to presidential inaugural- Requires FEC disclosure of over-$200
committees are not considereddonations to presidential inaugural
contributions under FECA [see, e.g.,committees within 90 days of event
FEC Advisory Opinion 1980-144]- Bans foreign national donations
[Sec. 308]
Fraudulent misrepresentation:
Bans candidates’ fraudulent- Prohibits fraudulent misrepresentation in
misrepresentation on a matter that isthe solicitation of campaign funds
damaging to other candidates or parties- Bans knowing and willful participation in
[2 USC §441h]conspiracy to engage in such violations
[Sec. 309]
Contributions by minors:
No different treatment for minors andBans contributions to candidates and
adultsdonations to parties by individuals 17 years
of age and younger [Sec. 318]
Invalidated by Supreme Court in its
December 10, 2003 ruling in McConnell
v. FEC
GAO Study:
No provisionDirects GAO to study and report to
Congress statistics for and effects of public
funding systems in AZ and ME [Sec. 310]
Expedited review:
Provides for expedited judicial review- Provides that if any action is brought for
by appropriate district court, certifyingdeclaratory or injunctive relief challenging
all constitutional questions, to the courtthe constitutionality of the Act, it shall be
of appeals for the circuit involved,filed in U.S. District Court for D.C. and
sitting en banc [2 USC § 437h] (Priorheard by a 3-judge court; a copy of the
to 1988 amendments, FECA alsocomplaint shall be delivered promptly to
provided expedited, direct appeal tothe Clerk of the House and the Secretary of
U.S. Supreme Court) [P.L.100-352]the Senate; a final decision shall be
reviewable only by direct appeal to the U.S.
Supreme Court (notice of appeal to be filed
within 10 days, and jurisdictional statement
to be filed within 30 days); expedited
consideration to be provided by both
courts; and right of intervention provided
to House/Senate Members[Sec. 403(a),(b)]
- Expressly provides that any Member of
Congress may challenge the Act’s
constitutionality, seeking declaratory or
injunctive relief [Sec. 403(c)]
Relevant Previous LawBipartisan Campaign Reform Act
Partial Invalidity:Severability:
If any provision of the Act, or itsIf any provision of the Act or its
application to any person oramendments, or its application to any
circumstance, is held invalid, theperson or circumstance, is held
validity of the remainder and itsunconstitutional, the remainder of the Act
application to other persons andand its amendments, and its application to
circumstances shall not be affected. any person or circumstance, shall not be
[2 USC § 454]affected by the holding [Sec. 401]
— Effective date:
- Generally: Nov. 6, 2002, unless otherwise
provided [Sec. 402]
- For all hard money contribution limit
changes: Jan. 1, 2003 [Secs. 307; 402]
- Severability; effective dates; regulations;
judicial review: upon enactment [Sec. 402]
- Runoffs, recounts, and contested elections
arising from Nov. 5, 2002 elections to be
conducted under same rules as other 2002
elections, including those on soft money
spending by state/local parties [Sec. 402]
Transition rules for soft money:
- Prior to Jan. 1, 2003, parties may spend
soft money raised before effective date to
retire outstanding debts and obligations in
connection with elections held through
Nov. 5, 2002, provided that no soft money
is used to repay hard money debts
- At no time after effective date may
national parties use soft money to defray
costs of construction or purchase of a party
office building or facility [Sec. 402]
— Regulations:
Requires FEC to promulgate regulations
within 90 days of enactment to carry out
provisions of Title 1 (on soft money) and
within 270 days to carry out other
provisions of Act [Sec. 402]