{"id":34770,"date":"2016-03-31T19:28:06","date_gmt":"2016-04-01T00:28:06","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/election-law-government-ethics-amp-lobbying.html"},"modified":"2018-03-14T21:49:11","modified_gmt":"2018-03-15T02:49:11","slug":"election-law-government-ethics-amp-lobbying","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/law-library\/election-law-government-ethics-amp-lobbying.html","title":{"rendered":"Election Law, Government Ethics & Lobbying"},"content":{"rendered":"
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n\n

The purpose of this article is to provide a general explanation about Election Law. By that I mean the laws regulating the activities of those who participate in election campaigns, hold public office and\/or lobby government. This subject matter is broken down into three categories: Campaign Finance Regulation, Ethics Regulation and Lobbying Regulation<\/p>\n

There are some aspects of political activity that are not covered here. Specifically, this article will not address laws about ballot access, redistricting and reapportionment, election contests and recounts, political broadcasting and income taxation of political organizations and lobbying activities.<\/p>\n

Campaign Finance Regulation<\/b><\/p>\n

Campaign finance regulation is the law of how money is raised and spent in connection with election campaigns. The Federal Election Commission<\/a> is charged with administering and enforcing federal campaign finance law. States also have oversight for campaign financing that are typically apart of the state’s secretary of state or an independent election commission. Election campaigns may involve either:<\/p>\n

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  1. candidates for public office; or<\/li>\n
  2. initiatives or referenda.<\/li>\n<\/ol>\n

    What they have in common is that the individuals or issues appear on a ballot on which citizens will vote.<\/p>\n

    Because of our federal system, regulation of elections is bifurcated between the federal government and the states (and sometimes trifurcated further between the states and local jurisdictions). This article focuses on the federal aspects of regulation, i.e. campaigns for President, Senator, or U.S. Representative. However, each element discussed below almost always has an analogous state or local regulatory scheme which would apply to campaigns for nonfederal offices such as governor, state legislator, mayor or city council. In some states, elections include judicial races and ballot issues. (Financing of campaigns for or against ballot issues are subject to disclosure.) There are printed and electronic resources which may be consulted for state and local regulations including the web sites of applicable agencies, some of which are listed in the last part of this Section ("Resource Materials").<\/p>\n

    Contributions, Expenditures and Candidates<\/b><\/p>\n

    The regulation of federal election campaigns is primarily governed by the Federal Election Campaign Act of 1971, as amended, 52 U.S.C. \u00a730101<\/a>, et seq. (formerly 2 U.S.C. \u00a7 431) ("FECA"). In 2002, Congress made major changes to FECA through the Bipartisan Campaign Reform Act of 2002<\/a> (BCRA), Pub. L. No. 107-155, 116 Stat. 81 (2002). These statutes dictate how candidates must raise and spend campaign funds, how these monies must be reported and who may contribute. These statutes also regulate advertising on political issues as well as fundraising by candidates and parties.<\/p>\n

    The pivotal concept triggering part of FECA is the existence of a "contribution." The term is defined as "anything of value" including cash, gifts, loans and in-kind goods and services which are made "for the purpose of influencing any election." 52 U.S.C. \u00a730101(8)(A)(i). A donation of money to a candidate’s campaign is the most common form of a contribution.<\/p>\n

    There is also a definition of "expenditure" which is virtually identical to the definition of "contribution". Id<\/i>. \u00a730101(9)(A)(i). The term has significance primarily to define the money spent by campaigns. Furthermore, expenditures by an individual or committee other than a candidate committee will either be a contribution in-kind (if coordinated with the campaign) or an "independent expenditure" if undertaken without control by the campaign. In either event expenditures are subject to reporting, either by the campaign, or by the independent spender, or both. See Id<\/i>. \u00a7\u00a7 30101(a), (c).<\/p>\n

    A person becomes a "candidate" when he or she raises over $5,000 in contributions, or spends over $5,000 in expenditures. Id<\/i>. \u00a7 30101(2). In that event, the candidate becomes subject to FECA and must register a "political committee" with the Federal Election Commission<\/a> (FEC) and designate that committee. See Id<\/i>. \u00a7 30102(e)(1)<\/a>. The political committee, known as the principal campaign committee of the candidate, then becomes responsible for receiving and accounting for all contributions and for reporting expenditures.<\/p>\n

    Prohibitions<\/b><\/p>\n

    FECA bars certain individuals and groups from making contributions or expenditures. Corporations and labor unions may not contribute to federal candidates. The prohibition on corporations is very broad and applies to "any corporation whatever," Id<\/i>. \u00a7 30118<\/a>, including not-for-profit corporations as well as professional corporations. However, corporations and unions may form "separate segregated funds" commonly referred to as political action committees<\/a> (PACs) which may collect voluntary personal donations and then make contributions to candidates. PACs must register with the FEC and file periodic reports of their finances.<\/p>\n

    FECA also prohibits contributions from government contractors (unless from the PAC of an incorporated contractor), Id.<\/i> \u00a730119<\/a> contributions in the name of persons other that the true contributor (i.e., money laundering), Id<\/i>. \u00a730119, and contributions in currency over $100, Id<\/i>. \u00a730119.<\/p>\n

    There also are two federal prohibitions which apply to both federal and state campaigns. First, a "foreign national" may not contribute to any election campaign. Id<\/i>. \u00a7 30121<\/a>. A foreign national is either a corporation which is formed in a foreign country or has its headquarters in a foreign country, or an individual who is a foreign citizen and has not been admitted for permanent residence in the United States. Accordingly, foreign citizens with a "green card" are not foreign nationals and may contribute.<\/p>\n

    Second, national banks and corporations authorized by an act of Congress may not contribute to any campaign, whether federal, state or local. Id<\/i>. \u00a7 30118(a). This prohibition is redundant in federal election campaigns in which corporate donations are already banned. However, numerous states and municipalities permit corporate donations, but national banks and government-sponsored companies may not contribute.<\/p>\n

    Electioneering Communications<\/b><\/p>\n

    The BCRA prohibits "electioneering communications" by corporations and labor unions and by organizations that receive funds from corporations and labor unions. Id<\/i>. \u00a7 30118. "Electioneering communications" are broadcast, cable and satellite communications that clearly identify a federal candidate and are aired 30 days before a primary or preference election, nomination caucus or convention, or 60 days before a general, special, or runoff election. Id<\/i>. \u00a7 30104(3). For House and Senate candidates, the communication must be able to be received by 50,000 persons in the applicable Congressional District or state. Id.<\/i> The electioneering communication provisions of the BCRA were upheld against a facial constitutional challenge in McConnell v. FEC<\/a><\/i>, 540 U.S. 93 (2003).<\/p>\n

    There are also reporting requirements for electioneering communications aired by non-corporate and non-union persons.<\/p>\n

    Contribution Limits<\/b><\/p>\n

    Those who legally may contribute to federal campaigns may do so subject to a contribution limit. These limits are contained in 52 U.S.C. \u00a730116<\/a> and apply to individuals and PACs (including political party committees). An individual may not contribute more than $2,000 per election (primary, runoff, and general elections are separate elections) to a candidate (as increased by the BCRA). A PAC (if it has registered with the FEC for more than six months, received donations from fifty contributors and given to five candidates) may give up to $5,000 per election per candidate.<\/p>\n

    In addition, individuals are subject to a "biennial" contribution limit of $95,000 ($37,500 of which may be made to candidates and $57,500 of which may be made to PACs and parties), which comes from the BCRA. Id.<\/i>\u00a7 30116(a)(3). Contributions by individuals to candidates and party committees and aggregate individual contributions are now indexed for inflation. \u00a7 30116(c)(Finally, there is a mechanism in place whereby the limit for contributions to a candidate is lifted if the candidate’s opponents contribute a certain substantial amount to his or her own campaign. This is known as the "Millionaires’ Provision." See Id<\/i>. \u00a7\u00a7 30116(4).<\/p>\n

    Soft Money<\/b><\/p>\n

    The BCRA bans national political party committees (e.g., the Republican National Committee<\/a> (RNC), the Democratic National Committee (DNC), etc.) from raising and using money that is not subject to the limitations, prohibitions, and reporting requirements of FECA-these funds are known as "soft money." 52 U.S.C. \u00a730125<\/a> and \u00a7 30101(20). State party committees may not use soft money for advertisements that promote, support, oppose, or attack candidates for federal office or for voter registration within 120 days of an election, get-out-the-vote drives, or voter identification activities. Id.<\/i> State party committees may raise $10,000 in soft money per source for voter registration, GOTV, and voter identification. This is known as Levin funds<\/a>. Id.<\/i> There are also limits and prohibitions on parties and candidates raising funds for state candidates, political committees and nonprofit organizations.<\/p>\n

    Public Financing of Presidential Campaigns<\/b><\/p>\n

    Candidates for President may participate in public financing programs. Candidates for nomination, if they raise a threshold sum of money, may qualify for matching funds during the primaries from the FEC. In return, the candidates promise to abide by spending limits. Nominees of certain political parties (currently the Democratic, Republican and Reform parties) may request a grant of federal funds for the general election campaigns. Those campaigns similarly would be subject to a spending limit. In addition, federal funding is provided to defray the expenses of major party national nominating conventions. 26 U.S.C. \u00a7\u00a7 9001 et seq<\/a>. & \u00a7 9031 et seq<\/a>.<\/p>\n

    Reporting\/Public Disclosure<\/b><\/p>\n

    All candidate committees, party committees and PACs must file periodic reports of their financial activities with the government. All (except senate campaigns) file with the FEC. Senate campaigns file with the Secretary of the Senate. All of these filings<\/a> are then available for public inspection and are available online at the Federal Election Commission website.<\/p>\n

    Enforcement<\/b><\/p>\n

    The FEC and the Department of Justice<\/a> share enforcement responsibilities under FECA. See 52 U.S.C. \u00a730109<\/a>. The FEC has exclusive primary jurisdiction for civil enforcement, and the Department of Justice has responsibility for criminal enforcement. The vast majority of cases are handled by the FEC and, if there is a violation, are settled through what is called a "conciliation agreement." These agreements are negotiated between the FEC and the respondent in a confidential proceeding and will incorporate civil penalties and admissions of violations. The FEC also has the authority to separately issue advisory opinions, Id.<\/i> \u00a7 30108 to any person who seeks FEC guidance on compliance.<\/p>\n

    Resource Materials<\/b><\/p>\n

    The following is a partial listing of various resources which can be used for further research and information on this subject:<\/p>\n