Campaign Finance Regulation
Federal v. State Regulation
This regulation covers how money that is spent on raised and spent election campaigns is raised. Election campaigns may involve either candidates for public office or initiatives or referenda. What they have in common is that the individuals or issues appear on a ballot on which citizens will vote.
Contributions, Expenditures and Candidates
The law which regulates federal election campaigns is the Federal Election Campaign Act, which dictates how candidates must raise and spend campaign funds, and how these monies must be reported and who may contribute.
The definition of expenditure under this law is similar to that of contribution, and is primarily significant in defining the money spent by campaigns. If coordinated with the campaign, expenditures by an individual or committee other than a candidate committee will be a contribution in-kind. If undertaken without control by the campaign, the expenditure shall be an independent expenditure. All expenditures must be reported, by either the campaign, or the independent spender, or both (Find Law for Legal Professionals).
A person who raises over five thousand dollars in contributions, or spends the same amount is recognized as a candidate. Candidates are subject to the Federal Election Campaign Act, and must register political committees with the Federal Election Commission, and designate those committees. The political committees, which are known as the Principal campaign committees of the candidates are responsible for receiving and accounting for all contributions and for reporting expenditures (Find Law for Legal Professionals).
Certain individuals and groups, such as Corporations and labor unions are barred by the Federal Election Campaign Act from making contributions or expenditures. Not-for-profit corporations and professional corporations are regarded as corporations in this case. However, corporations and unions may however form political action committees, which are separate segregated funds that may collect donations from volunteers and hand over the donations to candidates. The political action committees are required to register with the Federal Election Campaign and file reports of their finances periodically (Find Law for Legal Professionals).
Government contractors are also prohibited by the Federal Election Campaign Act from contributing, unless they do so through the political action committee of an incorporated contractor. Contributions must be made in the name of the true contributor and must not be in currencies of over one hundred dollars (Find Law for Legal Professionals).
corporations and labor unions and by organizations that receive funds from corporations and labor unions are prohibited from making broadcast, cable and satellite communications that clearly identify a federal candidate. Electioneering communications aired by non-corporate and non-union persons also have reporting requirements (Find Law for Legal Professionals).
The maximum contribution which an individual contributor may contribute to a candidate is two thousand three hundred dollars per election. The maximum contribution that s political action committee which has registered with the Federal Election Campaign for more than six months, received donations from fifty contributors and given to five candidates is five thousand dollars per election per candidate (Find Law for Legal Professionals).
National political party committees are prohibited from raising and using soft money, which is money that is not subject to the limitations, prohibitions, and reporting requirements of the Federal Election Campaign Act. Advertisements that promote, support, oppose, or attack candidates for federal office or for voter registration within one hundred and twenty days of an election, get-out-the-vote drives, or voter identification activities may not be financed by State party committees using soft money. The limit on the amount which State party committees may raise in soft money per source for voter registration, GOTV, and voter identification is ten thousand dollars (Find Law for Legal Professionals).
Public Financing of Presidential Campaigns
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 Federal Election Campaign. 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 (Find Law for Legal Professionals).
Reporting / Public Disclosure
All candidate committees, party committees and political action committees must file periodic reports of their financial activities with the government. All (except senate campaigns) file with the Federal Election Campaign. Senate campaigns file with the Secretary of the Senate. All are then available for public inspection and are available online at www.fec.gov (Find Law for Legal Professionals).
The Federal Election Campaign and the Department of Justice share enforcement responsibilities under Federal Election Campaign Act. The Federal Election Campaign has exclusive primary jurisdiction for civil enforcement, and the Department of Justice has responsibility for criminal enforcement. The Federal Election Campaign handles most of the cases, and if there is a violation, are settled through what is called a “conciliation agreement.”
These agreements are negotiated between the Federal Election Campaign and the respondent in a confidential proceeding and will incorporate civil penalties and admissions of violations. The Federal Election Campaign also has the authority to separately issue advisory opinions, to any person who seeks Federal Election Campaign guidance on compliance (Find Law for Legal Professionals).
Federal v. State Regulation
Ethics regulation refer to the laws and rules which apply to the conduct of public officials once in office, their receipt and use of private resources and gifts, as well as their personal financial disclosure (Find Law for Legal Professionals, n. d).
This is a growing area of law at the state and local levels. Virtually each jurisdiction, including each legislative body, county government, city council and state has rules that pertain to gifts, travel and conflicts of interest. All such sources should be consulted before lobbying or conducting any business with a nonfederal official. For purposes of this article only the federal statutes and regulations and the rules of the United States Senate and House of Representatives are discussed(Find Law for Legal Professionals).
The law highly regulates personal gifts to public officials and is completely banned in some cases unless they are from immediate family members (Find Law for Legal Professionals).
Gifts that are worth fifty dollars or less may be accepted by Senators or their staff provided the total amount of such gifts from the same giver does not exceed one hundred dollars in a calendar year. Gifts that are worth ten dollars or less do not form part of either the fifty dollar or one hundred dollar gift limit. A Senate staffer may therefore accept lunch or dinner from a lobbyist twice per year if each meal costs between ten dollars and fifty dollars. Meals that are worth less than ten do not count at all (Find Law for Legal Professionals).
Exceptions to the general rules on gifts are where executive branch employees participate at widely attended events in their official capacity; they are allowed to accept a meal valued at over twenty dollars. Similar functions may be also attended by House and Senate personnel who may accept other types of gifts such as mementos, plaques, and products from their districts or states (Find Law for Legal Professionals).
Criminal statutes may apply to certain gifts, in addition to these rules of conduct. Any kind of gifts may not be given or received as a quid pro quo for official acts, because these are considered as bribes. Gifts that are given with the expectation of favorable action by the public official on pending or future matters, such gifts are considered as illegal gratuities (Find Law for Legal Professionals).
Providing travel to a public official for campaign purposes is subject to the Federal Election Campaign Act and is governed by the rules for contributions and expenditures. When the travel expenses are for non campaign travel, then the rules of the House and Senate or the relevant government department or agency apply (Find Law for Legal Professionals).
Senators and their staff are generally allowed to accept gifts of travel for official purposes if they are attending meetings, speaking or conducting fact finding. The House has special rules applicable to trips that are sponsored by most entities that retain or employ lobbyists. The House also has special rules about the ability of lobbyists to plan or organize such trips and to join the Member in the travel (Find Law for Legal Professionals).
The individual is generally allowed by the rules to accept the cost of transportation, food and lodging. The official may be accompanied by a relative or a staff person and the length of the trip is limited. The travel may not be substantially recreational in nature. The government official must publicly disclose privately paid travel (Find Law for Legal Professionals).
Conflicts of Interest & Post-Employment Restrictions
Executive branch employees who make executive decisions are subject to conflict of interest rules. In those cases the official may be recused with knowledge that some other official without the apparent conflict will make the necessary decision (Find Law for Legal Professionals).
In the legislative branch, recusal is highly unusual and discouraged. Legislators are representatives and when they recuse themselves, no one may vote in their stead on behalf of their constituency. However, legislators are urged to recuse themselves on matters that are uniquely personally and financially beneficial to them (Find Law for Legal Professionals).
However, after leaving government, employees, including Senators and Representatives are subject to cooling off periods. Members of Congress and staff may not lobby their former offices for a period of one year. Executive branch officials are subject to a similar restriction. In addition, executive branch employees are barred from ever participating in a matter in which they were personally and substantially involved during their government employment (Find Law for Legal Professionals).
Except for the criminal provisions mentioned above, the ethics rules apply to government officials and not to private parties. However, those who deal with officials, particularly lobbyists, must be familiar with the rules in order not to promote violations and the adverse publicity such violations tend to create (Find Law for Legal Professionals).
The rules are enforced by ethics agencies. In the executive branch the principal organization is the Office of Government Ethics (OGE). In addition each department and agency has a designated agency ethics officer. Egregious violations of the ethics rules are subject to criminal prosecution by the Department of Justice (Find Law for Legal Professionals).
Federal v. State Regulation
Regulation of lobbying has expanded to all states and increasingly to municipalities. For example, Los Angeles and New York have their own regulatory schemes and agencies. Accordingly, state law and local ordinances must be consulted before petitioning state and local officials for legislation and similar governmental action (Find Law for Legal Professionals).
The discussion below will focus on lobbying at the federal level. The primary consequence of lobbying is the application of the Lobbying Disclosure Act, which mandates the registration of organizations that employ lobbyists and the reporting of their lobbying activities and expenses (Find Law for Legal Professionals).
Individuals or organizations which intend to spend money in excess of a specified amount on lobbying are required to register with the Secretary of the Senate and the Clerk of the House. The specified amount which requires registration is twenty four thousand five hundred dollars for in-house lobbyists and six thousand for retained outside lobbyists semiannually (Find Law for Legal Professionals).
Registration is required only if there is a lobbyist, who is a person who has made or will make two or more lobbying contacts, and who spends or will spend more than twenty percent of his or her time on lobbying activities. Any oral or written communication with a covered executive or legislative branch official on behalf of a client or employer regarding legislation, government programs, policy or positions, federal contracts or the nomination or confirmation of anyone to federal office is considered a lobbying contact. Congressional testimony and inquiries about the status of government proceedings and actions are some of the Types of contact that are exempted (Find Law for Legal Professionals).
Government officials that are covered include all Congress members and employees; all White House employees; and senior officials and employees of the executive departments and agencies of government (Find Law for Legal Professionals).
Lobbying contacts and all efforts in support of such contacts, including research are regarded as Lobbying activities (Find Law for Legal Professionals).
Any organization which has employees or hires individuals who are lobbyists and intends to spend over the specified amounts on lobbying activities must register within forty five days of the lobbying contact or the employment of lobbyists, whichever is earlier (Find Law for Legal Professionals).
Registrants under the LDA must file reports semiannually. Form LD-2 is used and must be filed by February 14 and August 14 each year and reflect the activity of the preceding semiannual period (Find Law for Legal Professionals).
The semiannual reports disclose the issues being lobbied, the part of the federal government that was being lobbied, and how much was spent on the lobbying. The Form LD-2 requires that the names of the lobbyists be listed, and that the issues they lobbied on and the branches of government (but not the names of government officials) be identified.
There must be a dollar sum estimating the amount spent on lobbying (or in the case of lobbying firms, received for lobbying services) in excess of ten thousand dollars and rounded to the nearest twenty thousand dollars. Precise figures are not required and amounts calculated pursuant to Internal Revenue Code provisions governing lobbying expenses may be used. Additional disclosures are required if lobbying activities are being defrayed by other entities or if the registrant is a foreign entity or associated with a foreign entity (Find Law for Legal Professionals).
The Lobbying Disclosure Act is a recent law (1996) and thus far has not been enforced against any person, perhaps because it is relatively easy to comply with and regulates very public activity. However, violations of the Lobbying Disclosure Act are punishable by civil penalties if knowing, and false lobbying reports are subject to the criminal statute prohibiting false filings with the government. The Lobbying Disclosure Act is administered by the Secretary of the Senate and the Clerk of the House. They do not have authority to investigate or enforce the statute, but may make referrals to the U.S. Attorney for the District of Columbia (Find Law for Legal Professionals).
Implications of the law on the nonprofits activities
The implications of the above law are that the organization is prohibited by law from contributing towards any elections, unless it does so through an election committee.
The organization is also prohibited from giving any gifts to public officers as outlined in the law.
I therefore suggest that if the organization has to contribute to any candidate, then a suitable committee should be identified through which the contribution can be made.
If a situation arises where the organization or any member of staff needs to give any gift to a public official, consultation must be made to ensure that the law is not violated.
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Schwarz, Thomas, & Allan Strauss. Federal Regulation of Campaign Finance and Political Activity. New York: M. Bender, 1985.