For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31402 ------------------------------------------------------------------------------ Order Code RL31402 CRS Report for Congress Received through the CRS Web 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 following passage of H.R. 2356.2 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. 2356 (Shays-Meehan), and Current Law, by Joseph E. Cantor and L. Paige Whitaker. CRS-2 Bipartisan Campaign Reform Act of 2002 (P.L. 107-155): Summary and Comparison with Previous Law* Relevant Previous Law Bipartisan Campaign Reform Act Hard Money Sources: Individuals Limit on contributions to candidates: $1,000 per candidate, per election; not Raises 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, not Raises 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, not Raises 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, and Raises 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 national Raises limit to $35,000 in year of election, and senatorial party committees indexed 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. CRS-3 Relevant Previous Law Bipartisan Campaign Reform Act Candidate loans to campaign: No rules regarding amount of candidate Limits 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 whether support for Senate candidate whose opponents spend large amounts from opponent exceeds designated threshold personal funds level 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 funds of opponent) exceeds threshold by: (a) from by candidates 2 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. 31 of prior year) [Secs. 316/319] CRS-4 Relevant Previous Law Bipartisan Campaign Reform Act Independent Expenditures (Hard Money) Definition: An expenditure by a person expressly Defines independent expenditure as an advocating election or defeat of a expenditure by a person expressly clearly identified candidate, made advocating the election or defeat of a without cooperation or consultation clearly identified candidate, and that is not with candidate (or authorized made in concert or cooperation with, or at committee or agent), and not made in request or suggestion of a candidate, party, concert with, or at request or or 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 in expenditures of $1,000 or more made or last 20 days of election, up to 24 hours contracted 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 20 days before an election [Sec. 212] Party spending for party candidates: Parties may make expenditures in After date of party nomination, prohibits connection with a general election of a party from making coordinated federal candidate's campaign, subject expenditures for a candidate it has made to limits, also known as the independent 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. FEC Invalidated by Supreme Court in its (Colorado I) (518 U.S. 604 (1996)), December 10, 2003 ruling in McConnell Supreme Court ruled that, as applied to v. 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 CRS-5 Relevant Previous Law Bipartisan 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 political regulations are promulgated communications" as coordinated - Directs FEC to promulgate new communications including clearly regulations on coordinated communications identified candidates, paid for by by 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 considered agreement or formal collaboration to coordinated if: it is made at request or establish coordination suggestion of candidate or party, - Specifies rules will address issues of: (1) candidate/party had control or republication of campaign material; (2) substantial decision-making authority, common vendors; (3) prior employment or candidate/party engaged in status; and (4) substantial discussion with substantial discussion or negotiation candidate 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 the that is coordinated with a candidate, agent, request or suggestion of, a candidate or or party as a contribution to and agents shall be considered a expenditure 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 whole party committee as a contribution to that or part, of any broadcast or materials party 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) CRS-6 Relevant Previous Law Bipartisan 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 amounts including entities directly or indirectly banned under federal election law), so established, financed, maintained, or long as funds are deposited in non- controlled by such committee or agent federal accounts, and may distribute acting on its behalf, from soliciting, funds, in accord with FEC allocation receiving, 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 detailed party 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 CRS-7 Relevant Previous Law Bipartisan Campaign Reform Act Federal or non-federal activity: "Federal election activity" defined to FEC allocation rules offer guidance in include: (1) voter registration drives in last determining if activity is federal or 120 days of a federal election; (2) voter non-federal election related, by such identification, GOTV drives, and generic means as "ballot composition" (for activity in connection with an election in administration and generic voter which 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 generally candidate for that office (regardless of triggering application of federal whether 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 (424 local 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, 249 connection 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 those Defines "public communications" as those made through broadcast (including made by broadcast, cable, satellite, cable), newspaper, magazine, outdoor newspaper, magazine, outdoor advertising, advertising facility, mailing or any mass mailing (over 500 identical or electronic medium, including Internet substantially similar pieces mailed within or Web site, with intended audience of 30 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 provision Defines "generic campaign activity" as one that promotes a party but not a federal or non-federal candidate [Sec. 101] CRS-8 Relevant Previous Law Bipartisan Campaign Reform Act Permissible state/local party spending: State/local parties may spend money State parties may spend soft money on on federal and non-federal races, if they activities that are not "federal election allocate funds between hard and soft activities," 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 costs Prohibits 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 to Prohibits 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] CRS-9 Relevant Previous Law Bipartisan Campaign Reform Act Federal candidates/officeholders: Role in tax-exempt fundraising: Role in tax-exempt fundraising: No restrictions Regardless 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 all Codifies FEC regulations on disclosure of receipts and disbursements all 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 funded including 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 party Ends 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] CRS-10 Relevant Previous Law Bipartisan 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, 44 Defined as a broadcast, cable, or satellite (1976)) and FEC v. Massachusetts advertisement that "refers" to a clearly Citizens for Life (479 U.S. 238, 249 identified federal candidate, is made within (1986)), generally construed federal 60 days of a general election or 30 days of campaign law to reach only funds used a primary, and, if for House or Senate for independent communications by elections, "is targeted to the relevant non-political committees that include electorate" express words of advocacy of election - Exempts news events, "expenditures," or defeat of a clearly identified "independent expenditures," debates, and candidate; prevailing view in lower others 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 the event that the first definition is ruled "magic words," e.g., "vote for" or unconstitutional [based on FEC v. Furgatch "defeat") is unconstitutional; FEC, (807 F.2d 857 (9th Cir. 1987), cert. denied, therefore, has had some difficulty in 484 U.S. 850 (1987))]: i.e., broadcast, enforcing its more encompassing cable, or satellite communication that regulation, which includes a promotes/supports or attacks/opposes a "reasonable person" standard for candidate (regardless of whether it determining whether such expressly advocates a vote for or against a communications constitute "express candidate), 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 defined communications prohibited by 501(c) and 527 corporations:) "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-political Requires disclosure to FEC of committees that avoid explicit disbursements for direct costs of producing advocacy language are outside purview and airing "electioneering of, and hence not subject to, FECA communications" by any spender exceeding disclosure; but spending on such $10,000 annual aggregate in such activities may be disclosed if group is disbursements, within 24 hours of the first "political organization" under Internal and each subsequent $10,000 amount Rev. Code (26 USC §527) [Sec. 201] CRS-11 Relevant Previous Law Bipartisan Campaign Reform Act Contents of disclosure: Only for activities meeting express For "electioneering communications": advocacy standard and for FECA- - Identification of spender, custodian of defined political committees -- books, and any entity exercising control Statement of organization identifies over 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 list devoted 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, for separate 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 over which 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 influence communications" with funds from union or federal elections, subject to Supreme certain corporate funds; but exempts Court imposed express advocacy Internal Revenue Code §501(c)(4) or §527 standards [2 USC §441b(a)] tax-exempt corporations making "electioneering communications" with In FEC v. Massachusetts Citizens for funds solely donated by individuals who Life (MCFL) (479 U.S. 238, 259 are U.S. citizens or nationals or permanent (1986)), Court held that ban on resident aliens [Sec. 203] . . . corporate general treasury spending unless a communication is a "targeted" cannot be constitutionally applied to communication, i.e., it was distributed from non-profit political or ideological a broadcaster or cable or satellite service corporations that do not accept and is received by 50,000 or more persons donations from for-profit corporations in state or district where Senate or House and unions and whose members have election, 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 CRS-12 Relevant Previous Law Bipartisan 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 the expenditure 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)] CRS-13 Relevant Previous Law Bipartisan Campaign Reform Act Broadcast attribution: Federal Communications Act imposes (See discussion under "Advertising" general requirement that political section) 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 a Requires broadcasters to maintain and corporation, committee, association, or make available for public inspection unincorporated group, FCC regulations records of broadcast time requests by also require broadcaster to maintain candidates 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] CRS-14 Relevant Previous Law Bipartisan Campaign Reform Act FEC Disclosure Availability of reports: - Requires all reports filed Requires all reports filed with FEC to be electronically to be posted on FEC Web posted on Internet and available for site within 24 hours of receipt inspection 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 provision Requires FEC to maintain central Web site of all publicly available election-related reports [Sec. 502] Standardized software: No provision Requires 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 of Requires 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 (including Requires 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)] CRS-15 Relevant Previous Law Bipartisan Campaign Reform Act FEC Enforcement Criminal penalties: For knowing and willful violations Increases criminal penalties for knowing involving contributions/expenditures of and willful violations involving $2,000 or more per year: a fine contribution/expenditure/donation amounts equaling the greater of $25,000 or aggregating 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 of Changes to five years, for criminal FECA [2 USC §455(a)] violations of FECA [Sec. 313] Sentencing guidelines: No provision Directs 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 penalties Civil: 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] CRS-16 Relevant Previous Law Bipartisan Campaign Reform Act Advertising Candidate appearance in ads: No content requirements for lowest unit Requires federal candidate broadcast ads rate (LUR) ads that 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, including identification by political committees for express advocacy, or those containing any 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 it enhance 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, or foreign nationals (including soft money), or their solicitation, from foreign their solicitation or receipt, or any promise nationals, in connection with election to make such donations, in connection with to any political office; exempts any U.S. election, to a national party permanent resident aliens committee, 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 of Bans solicitation or receipt of contributions, as defined by FECA, in contributions, including soft money, from any room or building used by federal anyone or by federal officials, while in any officials or employees to discharge federal government building used to official duties [18 USC § 607] discharge official duties [Sec. 302] CRS-17 Relevant Previous Law Bipartisan Campaign Reform Act Inaugural committees: Donations to presidential inaugural - Requires FEC disclosure of over-$200 committees are not considered donations 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 is the 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 and Bans contributions to candidates and adults donations 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 provision Directs 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, certifying declaratory or injunctive relief challenging all constitutional questions, to the court the 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] (Prior heard by a 3-judge court; a copy of the to 1988 amendments, FECA also complaint shall be delivered promptly to provided expedited, direct appeal to the 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)] CRS-18 Relevant Previous Law Bipartisan Campaign Reform Act Partial Invalidity: Severability: If any provision of the Act, or its If any provision of the Act or its application to any person or amendments, or its application to any circumstance, is held invalid, the person or circumstance, is held validity of the remainder and its unconstitutional, the remainder of the Act application to other persons and and 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] ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31402