Campaign Law Lecture at American University

Mark Braden, Campaign Finance Attorney
Note-- this is for Federal elections.
Campaigns are a heavily regulated industry. Federal
campaigns use the FEC. They send the winner to Washington
DC. FEC deals with campaigns, not elections actually.
Elections are regulated through state laws and counties.
You can't run a campaign without money. There is no way to
communicate. The FEC has 6 commissioners, 3 are Democrats,
3 are GOP. They have a staff of 500.
3 parts to election laws. Disclosure. Limitations and
prohibitions. Public finance of Presidential conventions
and campaigns.
Disclosure- where the money came from and where it went.
Who is most likely to give you money? People who have given
to you in the past. So a top priority is to have a list of
people who have given before. The FEC says to keep records
at the $50 level, and to disclose those who gave over $200.
But your campaign records will be more detailed than this.
FEC requires name, address, amount, date, occupation(you
must ask for opccupation)
Disbursement info- file regularly. Most campaigns file this
electronically now.
FILE REPORTS WHEN THEY ARE DUE.
You can correct them later.
Most PACs file monthly.
Smaller groups file quarterly.
FILE REPORTS WHEN THEY ARE DUE.
Correct them later if they are not perfect. It will take
the FEC months to look at them.
PUT DUE DATES ON THE CALENDAR.
The FEC has an automatic system to fine you if you are late,
even by one day.
State and local has similar disclosure requirements.
Usually nonfederal candidates file with the state Atty
general, or the county elections bureau, or the City Clerk,
etc.
Limitations and Prohibitions.
Federal campaigns can't use corporate or union treasury
money.
Small businesses sometimes mix their personal and corporate
business expenses together, causing you problems. Many
professional corporations consist of one person. (Doctors,
Lawyers). YOU CANNOT TAKE A CORPORATE CHECK FOR A FEDERAL
CANDIDATE. Checks must be from a living, breathing human
being, not their Professional Corporation.
About half of all states permit corporate or union checks
for state and local candidates. Pennsylvania - he didn't
say.
You can't get money from non-US citizens in federal, state
or local elections. Some exceptions if they have a green
card - ask an attorney. If you get a check from a foreign
bank, inquire whether they are a US citizen. Take a
proactive role with foreign checks, or your opponent may
inquire and embarass you.
Good idea to put a line in their disclaimer in your
solicitation materials, but it doesn't absolve you.
You can't solicit money on Federal Property. Your direct
fundraising mail can't go to federal property, including
military bases. Half of El Paso is Fort Bliss. Can't send
fundraising letters to the fort. So suppress that zip code.
Supervisors can't solicit their employees in the Federal
Govt. They used to collect money for 'flowers' and send the
money to a candidate instead. This is now illegal. Federal
employees can contribute to campaigns. You must disclose
where the money came from.
You can't send contributions in the name of another. The
CEO can't give $1,000 bonuses to his emplloyees, then the
employees give $1,000 to the same PAC. This has criminal
penalties. Criminal aspects are for foreign donations and
contributons in the name of another.
Most election laws are handled in civil court, about 98%.
Be concerned with the civil enforcement of the act, with
fines, and with the press.
Can't take a contribution from Joe Smith, P.C.
PC= Professional corporation.
FEC says you shouldn't have taken the check. It is a
criminal conspiracy if you take the check, then try to hide
it. Send the check back to Joe Smith and ask him to write
one out on his personal account.
Being involved in a losing campaign won't end your career,
but being involved in a criminal proceeding will. FEC
enforcement process moves at a glacial pace, and is done in
secret.
Anyone can encourage anyone to contribute. But you can't
use corporate or union resources.
Three kinds of political committees.
1. party committees.
2. Connected Political committees
3. Independent Political committees
Corporate and Union money from their treasuries can be used
to set up and to administer a PAC. But the treasury's money
cannot be put into the PAC account. Individual donations
are bundled and given to candidates.
To have PAC status. Need 50 contributors. Must give to 5
or more candidates. Must be registered with FEC for at
lease 6 months. They can then contribute $5,000 per
candidate per election.
The BCRA has raised the individual limit to $2,000 per
election. But that means $2,000 for the primary, 2k for
the general election and 2k for the runoff, if any. Spouses
have separate limits. Both spouses can write a check for
$2,000 from the same joint checking account.
Two parts of BCRA were struck down.
The ban on minors contributing to federal candidates. It
must be their money, not mom and dad's. It must be their
decision. The disclosure report will look suspicious if a
ten year old gives $2,000 to a campaign. But a 17 year old
with a job could do it. Both spouses can write a check for
$2,000 from the same joint checking account.
Real estate guy might have an extra office, but he is
incorporated and office belongs to the corporation. They
can rent it to you at fair market value. But if the
storefront is in disrepair and hasn't been rented in 5
years, the fair market value will be lower.
If someone owns an empty apartment and donates its use to
the campaign, then it is an in kind donation at fair market
value.
Individuals can donate their personal services.
Entertainers can emcee a fundraiser and get more people to
show up. State Parties have voter files, but it is hard to
put a value on them.
Party committee limits.
1. a direct limit of $5,000 per election.
2. coordinated expenditure limits.
Some activities by party committees for Federal candidates
don't count toward the limits. They can spend an unlimited
amount of locally raised money on campaign paraphenalia
(yard signs, bumper stickers, etc). They can coordinate this
with the federal campaign.
Party committees cannot coordinate media buys with the
federal campaign. The maximum individual limit to a PAC is
$5,000 annually.
Corporate jets- only have to pay first class airfare to
scheduled stops. All jets are owned by corporations, not
people. Some prop planes are individually-owned. The pilot
can donate his time.
Driving a candidate to and from the airport is too trivial
to worry about. But a full-time driver with a car is an in
kind contribution, or an employee.
Most FEC violations are civil. The Treasuer is theoretically
responsible, but criminally it is the person who did it.
Whomever solicited foreign nationals to donate is
responsible.
527 political committees are named for the section of the
tax code.
RNC, DNC, Dean for President, etc are all 527s.
Some issue committees are not 527s. they run issue ads.
501-c-4 committes are nonprofit and nonpartisan. they might
register people to vote, but in heavily D or R areas.
The BCRA limits the 527 committees. They can't spend on
broadcast ads within 60 days of the primaries or the general
election. They can still use the internet, billboards,
dierct mail, etc within 60 days. 527s must disclose
contributions and expernditures.
BCRA has caused new organizations to form and to do what the
DNC and RNC used to do. BCRA has cut the soft money off
from the national parties?
George Soros made $10m of independent expenditures of his
own money. But he can't coordinate with campaigns, or use
the same ad agency as the campaign. Most of this is usually
done through issue organizations.
During the 60 day blackout period, the issue groups will do
these instead. Door to door, billboards, direct mail, etc.
Tax dollars pay for D and R conventions. National party
gets $20million. They use much of this for mail because
they get a lower mailing rate.
State and local party organizations can raise money locally
for voluunteer paraphenalia and pay for this, hats,
t-shirts, etc.
Many candidates have opted out of the matching funds process
in the primaries. Sign a contract with FEC and agree to
abide by state by state expenditure limits. But Iowa and
New Hampshire go over these limits.