Application of Campaign Finance Law to Indian Tribes
Released: 2007-01-25T00:00:00

Application of Campaign Finance Law to Indian Tribes

Activity Fully Regulated by Federal Law: Hard Money

The Federal Election Campaign Act (FECA) regulates contributions and expenditures for federal election campaigns. The term "hard money," which is not statutorily defined, typically refers to funds raised and spent in accordance with the limitations, prohibitions, and reporting requirements of FECA. Unlike soft money, which will be discussed in the next section, hard money may be used "in connection with" or "for the purpose of influencing" federal elections.

Under FECA, hard money restrictions apply to contributions from and expenditures by any "person," as defined to include "an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons," but not including the federal government. FECA provides that a "person" is limited to contributing no more than

$2,000 per candidate, per election (adjusted for inflation to $2,300 for the 2007-2008 election cycle); $25,000 per year to a national committee of a political party (adjusted for inflation to $28,500 for the 2007-2008 election cycle); and $5,000 per year to PACs (limits on contributions by and to PACs are not adjusted for inflation).

FECA further provides that an "individual" is subject to an aggregate limit on all contributions per two-year election cycle (encompassing all contributions to federally registered candidates, parties, and PACs): $95,000 per two-year election cycle, with sub-limits: (a) $37,500 to all candidates and (b) $57,500 to all PACs and parties (no more than $37,500 of which is to state and local parties and PACs). As indexed for inflation, the 2007-2008 election cycle limit is $108,200, with sub-limits: (a) $42,700 to all candidates and (b) $65,500 to all PACs and parties (no more than $42,700 of which is to state and local parties and PACs).

In interpreting such statutory provisions, the Federal Election Commission (FEC) has consistently found that the act's definition of "person" includes unincorporated Indian tribes, thereby subjecting tribes to the $2,300 per candidate per election limit, the $28,500 per year limit to a national party, and the $5,000 per year limit to PACs. On May 15, 2000, however, the FEC found that whereas an unincorporated Indian tribe is considered a "person" under FECA, it is not considered an "individual" and therefore is not subject to the aggregate election-cycle limit. As a result of that ruling, it appears that an Indian tribe, by making, for example, an unlimited number of $2,300, $28,500, and $5,000 contributions, could significantly exceed the $108,200 aggregate election-cycle limit applicable to "individuals."

FECA also prohibits corporations, labor unions, and national banks from using their treasury funds to make contributions and expenditures in connection with federal elections. Such entities may, however, participate in financing federal elections by establishing separate segregated funds, also known as political action committees (PACs), which are permitted to raise voluntary contributions for use in federal elections. PAC contributions are subject to limitations under FECA, as are contributions from individual citizens and political parties.

Generally, as most Indian tribes are unincorporated, they are not subject to the FECA ban on the use of corporate treasury funds for contributions and expenditures in connection with federal elections. Accordingly, most tribes may make contributions in federal elections directly from their tribal funds, without establishing a PAC. This appears to facilitate the ability of Indian tribes to make federal election contributions. That is, while current law limits contributions to a PAC to $5,000 per year from any source, a tribe may acquire a large amount of funds for use in federal elections more directly (i.e., from its own tribal funds, including, for example, income from tribal enterprises, so long as those enterprises are neither incorporated nor government contractors).

In one key respect, the FEC treats Indian tribes differently than PACs. Although a 1978 FEC ruling had required Indian tribes making contributions to comply with the periodic reporting requirements of FECA, this requirement was explicitly superceded by a 1995 agency ruling. Although contributions from tribes must be reported by recipients, one must view the FEC filings of candidates, PACs, and parties in order to track the funds given by an Indian tribe, as well as the IRS filings by section 527 political organizations. PoliticalMoneyLine found that some $25 million was donated for 2000-20005 federal elections by 212 federally recognized Indian tribes, and that the reporting was made under almost 2,000 different variations of their names. Thus, the ability to track the flow of election-related money from Indian tribes is more difficult than it is for other large entities.

Several observations may be made about the ability of Indian tribes to spend money in federal elections compared with that of other interest groups, which typically operate through PACs. Like other interest groups, Indian tribes are subject to no aggregate limit on their total federal election contributions (only individual citizens are subject to this limit). Unlike an interest group PAC, however, an Indian tribe may have a more readily available pool of funds that could be used in federal elections, that is, its own tribal funds, as opposed to a fund solely comprised of contributions that are subject to limitations and source restrictions. This advantage, however, may be somewhat offset by the $5,000 per candidate, per election limit applicable to a PAC, which typically qualifies as a "multicandidate committee," compared with the $2,300 per candidate, per election limit applicable to all other persons, including Indian tribes. (In one apparent anomaly in FECA, a multicandidate committee may only contribute $15,000 per year to the national committee of a political party, whereas any other person, including an Indian tribe, may contribute $25,000, or $28,500 in the 2007-2008 election cycle, adjusted for inflation.)

Activity Not Fully Regulated by Federal Law: Soft Money

While "soft money" is not expressly defined in federal election law and regulation, strictly speaking, it refers to funds that are not regulated by FECA (i.e., hard money). It may refer to corporate and labor treasury funds that cannot legally be used in connection with federal elections, but can be used for other specified purposes. Sometimes referred to as nonfederal funds, prior to the enactment of the Bipartisan Campaign Reform Act (BCRA) of 2002 ( P.L. 107-155 ; March 27, 2002), "soft money" often referred to non-FECA funds raised by the national committees of the two major political parties. BCRA put an end to this practice by prohibiting national parties from raising funds not subject to FECA, whether from individual citizens, corporations, labor unions, or Indian tribes.

Even after the enactment of BCRA, however, spending on issue advocacy communications remains a prominent soft money activity. Issue advocacy communications are generally paid for by a group, such as a for-profit or nonprofit corporation or labor union, for advertisements (typically broadcast on radio or television) that could be interpreted to favor or disfavor certain candidates, while also serving to inform the public about a policy issue. Prior to BCRA, issue advocacy communications were generally unregulated by FECA. Therefore, Indian tribes (like corporations, labor unions, and individuals) could spend unlimited amounts of money on such communications.

With the enactment of BCRA, certain issue ads are now regulated. BCRA created a new term in federal election law, "electioneering communication," which describes a political ad that "refers" to a clearly identified federal candidate, is broadcast within 30 days of a primary or 60 days of a general election, and if for House and Senate elections, is "targeted to the relevant electorate," (i.e., is received by 50,000 or more persons in the state or district where the respective House or Senate election is occurring). BCRA prohibits the financing of such communications with union or certain corporate funds. Furthermore, for permissible "electioneering communications," federal election law requires disclosure of disbursements over $10,000 for such communications, including identification of each donor of $1,000 or more. Therefore, while corporations and labor unions are prohibited from engaging in "electioneering communications," it appears that most Indian tribes, as unincorporated entities, may continue to finance such communications, subject to the disclosure requirements.