HomeMy WebLinkAboutAgenda - Full - Election Code Committee - 04/18/2022 -
City Clerk
300 LaPorte Avenue
PO Box 580
Fort Collins, CO 80522
970.221.6515
970.221-6295 - fax
fcgov.com/cityclerk
AGENDA
City Council Election Code Committee
April 18, 2022, 12:00‐1:30 p.m.
CIC Conference Room, City Hall, 300 Laporte Ave
Remote Participation available
Public Participation Options:
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Committee (ECC) meeting live:
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https://fcgov.zoom.us/j/93910757534
Meeting ID: 939 1075 7534
Public Comment: Individuals who wish to address the
Committee via remote public participation can do so
through the link provided above.
The meeting will be available beginning at 11:30 a.m.
Monday. To participate:
You need to have a laptop or computer with a
microphone and/or headset that includes a
microphone.
You need to have access to the internet.
Join the Zoom meeting listed above.
Keep yourself on muted status.
Note:
If you are unable to participate via Zoom, you may
attend the meeting in person (however, we have
very limited capacity based on social distancing
recommendations).
Alternatively, you may provide comments to the
Committee via email prior to 11:30 a.m. at
cityleaders@fcgov.com. Emails will be
read by City Leaders; however, not read into the
formal meeting record.
Committee Members: Mayor Jeni Arndt – Vice Chair
Councilmember Tricia Canonico, District 3 ‐ Chair
Councilmember Kelly Ohlson, District 5
Councilmember Julie Pignataro, District 2 (alternate)
2021-2022
Main Topics of Discussion in
Priority Order
1) Redistricting
2) Campaign Finance
Provisions
3) November Elections
4) RCV
5) Public Financing of Elections
6) Election Oversight Board
7) Partisan/Non‐Partisan
Elections
1. Call Meeting to Order
2. Roll Call
3. Public Comment ‐ 30 minutes total (limited to 5 minutes per speaker max)
4. Public Comment Follow‐up
5. Consideration and approval of the March 21, 2022, Committee Meeting Minutes
6. Presentation of Redistricting Options
7. Review of Potential Ballot Questions discussion at the March 22, 2022, Work Session
8. Review of Potential Campaign Finance Code Amendments
9. Proposed timeline:
April 2022 City Attorney’s Office drafts ballot language
ECC April meeting Present ballot language to ECC regarding the move to
November Coordinated elections and RCV; Present Campaign
Finance Code Language
May 2022 Call for Special Election;
May/June 2022 Redistricting Ordinance
July 2022 Present ballot language to Council; Campaign finance
amendments ordinance to Council
10. Other Business
11. Adjournment
ATTACHMENTS:
1. March 21, 2022, Minutes for approval
2. Work Session Summary, March 22, 2022
3. Article VIII November Election and RCV DRAFT Amendments
4. Article II November Election DRAFT Amendments
5. Article V Campaign Finance DRAFT Amendments
6. Campaign Finance Law: An Analysis of Key Issues, Recent Developments, and Constitutional
Considerations for Legislation
Next Election Code Committee Meeting: 12:00‐1:30 p.m., May 16, 2022
City of Fort Collins Page 1
March 21, 2022
ELECTION CODE COMMITTEE MEETING
12:00 PM
COUNCILMEMBERS PRESENT: Arndt, Canonico, Ohlson
STAFF PRESENT: Kyle Stannert, Rita Knoll, Ryan Malarky, Tammi Pusheck, Carrie
Daggett, Anissa Hollingshead
CITIZENS PRESENT: Robbie Moreland, Jody DesChenes
1. CALL MEETING TO ORDER
2. ROLL CALL
3. PUBLIC COMMENT
Robbie Moreland spoke about regulation of independent expenditures and requested that the threshold
for requiring registration for independent expenditures be set at $1,000 rather than $5,000. She also
posed the question of whether there is a need to have both political committees and independent
expenditure committees.
Jody Deschenes expressed support for Robbie’s comments.
4. PUBLIC COMMENT FOLLOW-UP
City Attorney Daggett stated, at the state level, there are political committees that are allowed to
coordinate with candidates, and there are independent expenditure committees which are required to
be independent. The City has political committees and issues committees, neither of which can
coordinate with candidates, and independent expenditures which are reported but not required to
register as committees and file reports; however, any entity formed in order to participate in an election
or who are receiving contributions must register as a committee under the current requirements. She
stated the independent expenditure relates to entities that are spending their own money and which
were perhaps formed for another purpose and happen to be participating in an election. Those entities
are technically not supposed to be receiving contributions for election purposes.
City Attorney Daggett discussed the current independent expenditure thresholds and stated a
suggestion was made to set an amount which would trigger the requirement for the entity to register as
a committee.
Councilmember Ohlson stated campaign finance reform is his main priority; however, he does not yet
have enough information to respond to the three suggestions made during public input. He stated he
would like to keep discussing the issue moving forward. Mayor Arndt concurred.
5. CONSIDERATION AND APPROVAL OF THE FEBRUARY 28 AND MARCH 7, 2022, COMMITTEE
MEETING MINUTES
Councilmember Ohlson made a motion, seconded by Mayor Arndt, to approve the minutes of the
February 28 and March 7, 2022, committee meetings. The motion was adopted unanimously.
6. REVIEW OF POTENTIAL BALLOT QUESTIONS BEING PRESENTED AT THE MARCH 22, 2022,
WORK SESSION
City Clerk Hollingshead presented information related to election preparation for a coordinated election
in November, a possible April 2023 election, and possible ranked choice voting implementation. She
stated the information planned to be discussed at the work session is all related to previous committee
discussions.
City of Fort Collins Page 2
City Attorney Daggett noted a variety of City Code changes would be required to implement ranked
choice voting should it be approved by voters.
Councilmember Ohlson stated other Council members should be made aware the committee has
agreed to recommend November elections, to place ranked choice voting on the ballot, though it has
yet to be determined if that would take effect in April. Mayor Arndt agreed summarizing the committees
work is important for the work session. Chair Canonico also requested the trade-offs with various
options are outlined.
7. REVIEW OF POTENTIAL CAMPAIGN FINANCE CODE AMENDMENTS
Chief Deputy City Clerk Knoll presented a list of potential campaign finance code amendments which
have either been discussed by the committee or noticed as possibly beneficial changes during previous
elections.
City Attorney Daggett suggested the committee may want to consider some type of amendment related
to campaign contributions from entities that may be seeking a contract with the City as the current
regulation states an entity cannot make those contributions but does not prohibit a candidate from
taking those contributions. Mayor Arndt questioned whether a new candidate for Council would know
whether or not to accept a given contribution; she stated the standard of knowledge is too high given
the low contribution limits in Fort Collins. She stated the only thing she would support would be a fine
no greater than the contribution amount. City Attorney Daggett suggested a solution would be to
require a candidate to return a contribution once they are made aware of a potential conflict.
Mayor Arndt and Chair Canonico questioned how far past an election this would apply and Mayor Arndt
stated she believes the regulation would be too ambiguous.
Councilmember Ohlson concurred and suggested the best approach could be just to require a
candidate to return a contribution with no associated penalty. Mayor Arndt concurred.
Chief Deputy City Clerk Knoll discussed other possible election related Code amendments, including
the possibility of eliminating write-in candidates or changing the deadline for write-in candidates. Mayor
Arndt supported leaving them in but changing deadlines to better work for the timeline.
Chief Deputy City Clerk Knoll outlined additional suggested Code amendments.
Members discussed the order of ballot issues and Councilmember Ohlson suggested citizen-initiated
items should be placed above City-initiated items.
Chief Deputy City Clerk Knoll outlined additional Code amendments that may be beneficial.
Councilmember Ohlson commended the history of the City Clerk’s Office handling of elections. Mayor
Arndt and Chair Canonico concurred.
8. PROPOSED TIMELINE
9. OTHER BUSINESS
10. ADJOURNMENT
The meeting adjourned by unanimous consent at 1:05 PM
City Clerk
300 Laporte Avenue
PO Box 580
Fort Collins, CO 80522
970.221.6515
970.221-6295 - fax
fcgov.com/cityclerk
MEMORANDUM
DATE: March 25, 2022
TO: Mayor and Councilmembers
FROM: Anissa Hollingshead, City Clerk
THROUGH: Kelly DiMartino, Interim City Manager
Kyle Stannert, Deputy City Manager
RE: March 22, 2022 Work Session Summary November Coordinated Elections and
Ranked Choice Voting (RCV)
The purpose of this discussion was to share with the full Council and seek direction on the alternatives its
Election Code Committee has been considering regarding possible shifts in election administration that
would require voter approval via ballot questions. Staff provided a presentation led by City Clerk Anissa
Hollingshead outlining the basics of how ranked choice voting works, options for its implementation in
Fort Collins, and considerations around the potential to shift to November coordinated elections, either
in tandem with or separately from implementing RCV. Also assisting with questions during the discussion
were Deputy City Manager Kyle Stannert, Chief Deputy Clerk Rita Knoll, and City Attorney Carrie Daggett.
All Councilmembers were present via Zoom.
Council Feedback:
There was significant discussion as well as questions about the timing of the two measures, both
in terms of when to place them on the ballot and when they should go into effect.
There was some concern expressed by several Councilmembers about the extent to which
moving the elections to November would increase voter turnout, and a desire to be clear about
voter turnout and participation as the ultimate goal.
There was some concern expressed about changing the length of current terms, and at the same
time recognition that ultimately the voters will decide whether to make the change. There were
concerns about the length of time it would take to implement the April to November shift if it
were structured so as to not shorten or extend any current terms. There was generally a
preference for treating all seats in the same way (in other words, either extend all or shorten all,
rather than varying from seat to seat to accelerate the change).
There was general support, with some opposition, to the idea of presenting two questions, the
move from April to November of regular City elections and ranked choice voting to the voters, in
November 2022.
There was interest expressed in implementing the two changes, if approved, in a staggered way
to reduce the potential for confusing voters and increase the ability to gauge impacts on voter
turnout.
Several Councilmembers expressed support for the approach of structuring the proposed shift
from April to November elections to shift the April 2023 election to November 2023 and extend
the terms of all current officeholders by seven months.
Several Councilmembers expressed support for setting the implementation date for Ranked
Choice Voting as the regular City election in 2025 (whether April or November).
There was some wish for more data about potential costs as well as more data regarding the
expected impacts on voter turnout, but also recognition that the data is not necessarily
available.
Next Steps:
Potential ballot language for two possible questions will be developed and presented to the
Election Code Committee (ECC) for its review and input before it comes to the full Council as an
ordinance for adoption.
In response to a request, staff will prepare and provide Council with a brief memo outlining the
extent of adoption of RCV across the country, including information about jurisdictions that
adopted and subsequently moved away from using it.
Additional cost estimates are being prepared to the extent possible and will be shared as that
work continues. Council can anticipate seeing an update as part of a response to a Service Area
Request that also includes details of the formula Larimer County utilizes for allocating election
expenses to jurisdictions participating in a coordinated election.
Additional available data on voter turnout in different recent election types will be provided to
the ECC and the full Council as it considers next steps on the potential ballot questions.
‐ FORT COLLINS CHARTER
ARTICLE VIII. ELECTIONS
Fort Collins, Colorado, Municipal Code Created: 2022‐03‐18 10:46:58 [EST]
(Supp. No. 141)
Page 1 of 4
ARTICLE VIII. ELECTIONS
Section 1. Applicability of state constitution.
The Council shall provide by ordinance for the manner of holding city elections. All ordinances regarding elections
shall be consistent with the provisions of this Charter and the state Constitution. Any matter regarding elections
not covered by the state Constitution, this Charter or ordinance of the Council shall be governed by the laws of the
State of Colorado relating to municipal elections, or coordinated municipal elections, as applicable.
(Res. No. 71‐12, 2‐11‐71, approved, election 4‐6‐71; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86, approved, election
3‐3‐87)
Section 2. City elections.
A regular city election shall be held on the first Tuesday after the first Monday in April of odd‐numbered years.
Special city elections shall be called by ordinance and shall be held in accordance with the provisions of this
Charter and any ordinances adopted pursuant thereto. All municipal elections shall be nonpartisan.
(Ord. No. 23, 1981, 2‐17‐81, approved, election 4‐7‐81; Ord. No. 201, 1986, § 1, Part B, § 2, 12‐16‐86, approved,
election 3‐3‐87; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 154, 1988, 12‐20‐88,
approved, election 3‐7‐89; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97)
Section 3. Nomination; withdrawal from nomination.
Any person who is qualified at the time of nomination for the office to be filled may be nominated for the elective
office by petition. A nominating petition for the office of Mayor shall be signed by not less than twenty‐five (25)
registered electors. A nominating petition for District Council office shall be signed by not less than twenty‐five
(25) registered electors residing in that District. A registered elector may sign one (1) petition for each office for
which the elector is entitled to vote at the election. If an elector should sign more petitions than entitled, said
elector's signature shall be void as to all petitions which the elector signed.
Nominating petitions must be filed with the City Clerk. The Council shall enact an ordinance specifying the time
frame for circulation and submittal of nominating petitions and the deadline for withdrawal from candidacy for
municipal office. Such time frame shall not be changed within one (1) year immediately prior to the election. No
nominating petition shall be accepted unless the candidate completes a verified acceptance of the nomination
certifying that he or she is not a candidate, directly or indirectly, of any political party, and that he or she meets the
qualifications for office, and will serve if elected.
A person who has been nominated may withdraw from candidacy by filing a written request to do so with the City
Clerk before the deadline established by Council ordinance for such withdrawal, and no name so withdrawn shall
be placed upon the ballot.
(Ord. No. 12, 1977, 2‐15‐77, approved, election 4‐5‐77; Ord. No. 201, 1986, § 1, Part E, § 3, 12‐16‐86, approved,
election 3‐3‐87; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐
97, approved, election 4‐8‐97)
Created: 2022‐03‐18 10:46:58 [EST]
(Supp. No. 141)
Page 2 of 4
Section 4. Petitions.
(a) Form; circulation. The Council shall prescribe by ordinance, upon recommendation of the City Clerk, the form
for a nominating petition which shall include such warnings and notices to signers as may be deemed
appropriate by the Council, as well as the candidate's verified acceptance of nomination. The signatures on a
nominating petition need not all be subscribed on one (1) page, but to each separate section of the petition
there shall be attached a signed statement of the circulator thereof, stating the number of signers on that
section of the petition, and that each signature thereon was made in the circulator's presence and is the
genuine signature of the person whose name it purports to be. When executed, such statement shall be
accepted as true until it shall be proved false. If any portion is proved false, that portion of any petition shall
be disregarded. Following each signature on the petition of nomination shall be written the printed name
and the residence address of the signer, and the date of signing. All nominating papers comprising a petition
shall be filed as one (1) instrument.
(b) Sufficiency of petition. Upon receipt of a nominating petition, the City Clerk shall forthwith examine the
petition, and within five (5) days after the filing of the petition, notify the candidate in writing of the results
of the examination, specifying the particulars of insufficiency, if any. Within the regular time for filing
petitions, an insufficient petition may be amended and filed again as a new petition, in which case the time
of the first filing shall be disregarded in determining the validity of signatures thereon, or a different petition
may be filed for the same candidate. The petition for each candidate elected to office shall be preserved by
the City Clerk until the expiration of the terms of office for such person.
(c) No person shall receive any compensation whatever for signing a nominating petition.
(Ord. No. 12, 1977, 2‐15‐77, approved, election 4‐5‐77; Ord. No. 201, 1986, § 1, Part E, § 4, 12‐16‐86, approved,
election 3‐3‐87; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86, approved election 3‐3‐87; Ord. No. 158, 1988, 12‐20‐88,
approved, election, 3‐7‐89; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 005, 2015, § 1, 1‐20‐
15, approved, election of 4‐7‐15 )
Section 5. Board of Elections.
There is hereby created a Board of Elections consisting of the City Clerk, Chief Deputy City Clerk, and Chief Judge.
The Board shall be responsible for any election duties specified in this Charter and for such additional duties
related to the conduct of elections as may be established by the Council by ordinance.
(Ord. No. 201, 1986, § 1, Part H, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86,
approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 022, 2007, §1, 2‐20‐
07, approved, election 4‐3‐07; Ord. No. 015, 2021 , § 2, 1‐19‐21, approved, election 4‐6‐21)
Section 6. Appearance of names on ballot.
Every ballot shall contain the names of all duly nominated candidates for offices to be voted for at that election,
except those who have died or withdrawn. The names shall be arranged in alphabetical order of surname for each
office, and shall not contain any title or degree designating the business or profession of the candidate. The
candidate's name may be a nickname, but shall not include any punctuation marks setting out the nickname.
(Ord. No. 129, 1999, § 1, 8‐17‐99, approved, election 11‐2‐99)
Created: 2022‐03‐18 10:46:58 [EST]
(Supp. No. 141)
Page 3 of 4
Section 7. Certification of election results.
(a) No later than the date specified by Council by ordinance tenth day after every city election and, after verifying
the total number of legal votes cast for each candidate and measure voted upon, the Board of Elections shall
complete a certificate declaring the results of the election. The candidate receiving the highest number of votes for
a particular office, as determined pursuant to Section 7(c), shall be declared elected to that office. In event of a tie,
the selection shall be made by the Board of Elections by lot after notice to the candidates affected. In case the
candidate elected fails to qualify within sixty (60) days after the date of issuance of the certificate of election, the
candidate with the next highest vote shall be elected, and the candidate failing to qualify shall forfeit his or her
office whether or not such candidate has taken the oath of office. If there is no other elected successor who
qualifies, the office shall be deemed vacant, and shall be filled by appointment by the remaining members of the
council, as provided in Article II, Section 18. In the event of a mandatory recount or recount by request, the Board
of Elections shall complete an amended certificate declaring the results of the election no later than the fifth day
after the completion of the recount.
(b) For coordinated city elections (which are not administered by the City), the election shall be determined and
certified and any failure of qualifications, tie vote or recount shall be administered, as provided in the applicable
state law. The candidate receiving the highest number of votes for a particular office, as determined pursuant to
Section 7(c), shall be declared elected to that office.
(c) Ranked voting methods. Beginning in 2025, the candidate receiving the highest number of votes for a
particular office will be determined using a ranked voting method.
(1) For a City‐administered election, the ranked voting method will be in accordance with specifications
adopted by the City Council by ordinance.
(2) For a coordinated election, the ranked voting method will be in accordance with and as provided by
applicable state law.
(Ord. No. 197, 1986, § 1, Parts C, M, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Parts V, W, 12‐
16‐86, approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, §
2, 8‐17‐99, approved, election 11‐2‐99; Ord. No. 022, 2007, §1, 2‐20‐07, approved, election 4‐3‐07; Ord. No. 001,
2017 , § 2, 1‐17‐17, approved, election 4‐4‐17)
Section 8. Campaign contributions.
The Council shall act by ordinance to establish a limit on the amount that any person or entity may contribute in
support of a candidate for Council on the ballot at any city election.
No political party or city employee, directly or indirectly, and no public service corporation, nor any other person,
firm or corporation, owning, interested in, or intending to apply for any franchise or contract with the city shall
contribute or expend any money or other valuable thing, directly or indirectly, to assist in the election or defeat of
any candidate.
(Ord. No. 6, 1980, 1‐16‐80, approved, election 2‐26‐80; Ord. No. 208, 1984, 1‐15‐85, approved, election 3‐5‐85;
Ord. No. 201, 1986, § 1, Part M, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Parts V, W, 12‐16‐86,
approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, § 2, 8‐17‐
99, approved, election 11‐2‐99)
Formatted: Indent: First line: 0.5"
Created: 2022‐03‐18 10:46:58 [EST]
(Supp. No. 141)
Page 4 of 4
Section 9. Corrupt practices.
Any person who violates at a city election any state law, provision of this Charter or ordinance of the city shall,
upon conviction thereof, be disqualified from holding any city position or employment for two (2) years, or any
elective city office for four (4) years.
(Ord. No. 201, 1986, § 1, Parts J, M, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Parts V, W, 12‐
16‐86, approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, §
2, 8‐17‐99, approved, election 11‐2‐99)
Section 10. Validity of elections.
No city election shall be invalidated if it has been conducted fairly and in substantial conformity with the
requirements of this Charter.
(Ord. No. 201, 1986, § 1, Part M, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Parts V, W, 12‐16‐
86, approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, § 2, 8‐
17‐99, approved, election 11‐2‐99)
Section 11. Further regulations.
The Council may, by ordinance, make such further rules and regulations as are consistent with this Charter and the
Colorado Constitution in order to carry out the provisions of this Article.
(Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, § 2, 8‐17‐99, approved, election 11‐
2‐99)
‐ FORT COLLINS CHARTER
ARTICLE VIII. ELECTIONS
Fort Collins, Colorado, Municipal Code Created: 2022‐03‐18 10:46:58 [EST]
(Supp. No. 141)
Page 1 of 4
ARTICLE VIII. ELECTIONS
Section 1. Applicability of state constitution.
The Council shall provide by ordinance for the manner of holding city elections. All ordinances regarding elections
shall be consistent with the provisions of this Charter and the state Constitution. Any matter regarding elections
not covered by the state Constitution, this Charter or ordinance of the Council shall be governed by the laws of the
State of Colorado relating to municipal elections, or coordinated municipal elections, as applicable.
(Res. No. 71‐12, 2‐11‐71, approved, election 4‐6‐71; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86, approved, election
3‐3‐87)
Section 2. City elections.
A regular city election shall be held on the first same Tuesday after the first Monday in April November of every
odd‐numbered years as the state ballot issue elections in odd‐numbered years. All other municipal elections shall
be known as sSpecial city elections, and shall be called by ordinance and shall be held in accordance with the
provisions of this Charter and any ordinances adopted pursuant thereto. All municipal elections shall be
nonpartisan.
In order to implement a change of regular city elections from April of each odd‐numbered year to November of
each odd‐numbered year, the term of the Mayor and each Councilmember shall be extended to such time as a
successor elected in November of the appropriate odd‐numbered year (consistent with Article II, Section 1(b))
takes office, unless otherwise ended due to an event of vacancy or recall.
(Ord. No. 23, 1981, 2‐17‐81, approved, election 4‐7‐81; Ord. No. 201, 1986, § 1, Part B, § 2, 12‐16‐86, approved,
election 3‐3‐87; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 154, 1988, 12‐20‐88,
approved, election 3‐7‐89; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97)
Section 3. Nomination; withdrawal from nomination.
Any person who is qualified at the time of nomination for the office to be filled may be nominated for the elective
office by petition. A nominating petition for the office of Mayor shall be signed by not less than twenty‐five (25)
registered electors. A nominating petition for District Council office shall be signed by not less than twenty‐five
(25) registered electors residing in that District. A registered elector may sign one (1) petition for each office for
which the elector is entitled to vote at the election. If an elector should sign more petitions than entitled, said
elector's signature shall be void as to all petitions which the elector signed.
Nominating petitions must be filed with the City Clerk. The Council shall enact an ordinance specifying the time
frame for circulation and submittal of nominating petitions and the deadline for withdrawal from candidacy for
municipal office. Such time frame shall not be changed within one (1) year one hundred and eighty days
immediately prior to the election. No nominating petition shall be accepted unless the candidate completes a
verified acceptance of the nomination certifying that he or she is not a candidate, directly or indirectly, of any
political party, and that he or she meets the qualifications for office, and will serve if elected.
A person who has been nominated may withdraw from candidacy by filing a written request to do so with the City
Clerk before the deadline established by Council ordinance for such withdrawal, and no name so withdrawn shall
be placed upon the ballot.
Created: 2022‐03‐18 10:46:58 [EST]
(Supp. No. 141)
Page 2 of 4
(Ord. No. 12, 1977, 2‐15‐77, approved, election 4‐5‐77; Ord. No. 201, 1986, § 1, Part E, § 3, 12‐16‐86, approved,
election 3‐3‐87; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐
97, approved, election 4‐8‐97)
Section 4. Petitions.
(a) Form; circulation. The Council shall prescribe by ordinance, upon recommendation of the City Clerk, the form
for a nominating petition which shall include such warnings and notices to signers as may be deemed
appropriate by the Council, as well as the candidate's verified acceptance of nomination. The signatures on a
nominating petition need not all be subscribed on one (1) page, but to each separate section of the petition
there shall be attached a signed statement of the circulator thereof, stating the number of signers on that
section of the petition, and that each signature thereon was made in the circulator's presence and is the
genuine signature of the person whose name it purports to be. When executed, such statement shall be
accepted as true until it shall be proved false. If any portion is proved false, that portion of any petition shall
be disregarded. Following each signature on the petition of nomination shall be written the printed name
and the residence address of the signer, and the date of signing. All nominating papers comprising a petition
shall be filed as one (1) instrument.
(b) Sufficiency of petition. Upon receipt of a nominating petition, the City Clerk shall forthwith examine the
petition, and within five (5) days after the filing of the petition, notify the candidate in writing of the results
of the examination, specifying the particulars of insufficiency, if any. Within the regular time for filing
petitions, an insufficient petition may be amended and filed again as a new petition, in which case the time
of the first filing shall be disregarded in determining the validity of signatures thereon, or a different petition
may be filed for the same candidate. The petition for each candidate elected to office shall be preserved by
the City Clerk until the expiration of the terms of office for such person.
(c) No person shall receive any compensation whatever for signing a nominating petition.
(Ord. No. 12, 1977, 2‐15‐77, approved, election 4‐5‐77; Ord. No. 201, 1986, § 1, Part E, § 4, 12‐16‐86, approved,
election 3‐3‐87; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86, approved election 3‐3‐87; Ord. No. 158, 1988, 12‐20‐88,
approved, election, 3‐7‐89; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 005, 2015, § 1, 1‐20‐
15, approved, election of 4‐7‐15 )
Section 5. Board of Elections for City‐administered elections.
There is hereby created a Board of Elections consisting of the City Clerk, Chief Deputy City Clerk, and Chief Judge.
The Board shall be responsible for any election duties specified in this Charter and for such additional duties
related to the conduct of elections by the City as may be established by the Council by ordinance.
(Ord. No. 201, 1986, § 1, Part H, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Part V, 12‐16‐86,
approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 022, 2007, §1, 2‐20‐
07, approved, election 4‐3‐07; Ord. No. 015, 2021 , § 2, 1‐19‐21, approved, election 4‐6‐21)
Section 6. Appearance of names on ballot.
Every ballot shall contain the names of all duly nominated candidates for offices to be voted for at that election,
except those who have died or withdrawn. The names shall be arranged in alphabetical order of surname for each
office, and shall not contain any title or degree designating the business or profession of the candidate. The
candidate's name may be a nickname, but shall not include any punctuation marks setting out the nickname.
(Ord. No. 129, 1999, § 1, 8‐17‐99, approved, election 11‐2‐99)
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Section 7. Certification of election results.
(a) No later than the date specified by the Council by ordinance tenth day after every city election and, after
verifying the total number of legal votes cast for each candidate and measure voted upon, the Board of Elections
shall complete a certificate declaring the results of the election. The candidate receiving the highest number of
votes for a particular office shall be declared elected to that office. In event of a tie, the selection shall be made by
the Board of Elections by lot after notice to the candidates affected. In case the candidate elected fails to qualify
within sixty (60) days after the date of issuance of the certificate of election, the candidate with the next highest
vote shall be elected, and the candidate failing to qualify shall forfeit his or her office whether or not such
candidate has taken the oath of office. If there is no other elected successor who qualifies, the office shall be
deemed vacant, and shall be filled by appointment by the remaining members of the council, as provided in Article
II, Section 18. In the event of a mandatory recount or recount by request, the Board of Elections shall complete an
amended certificate declaring the results of the election no later than the fifth day after the completion of the
recount.
(b) For coordinated city elections (which are not administered by the City), the election shall be determined and
certified and any failure of qualifications, tie vote or recount shall be administered as provided in the applicable
state law.
(Ord. No. 197, 1986, § 1, Parts C, M, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Parts V, W, 12‐
16‐86, approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, §
2, 8‐17‐99, approved, election 11‐2‐99; Ord. No. 022, 2007, §1, 2‐20‐07, approved, election 4‐3‐07; Ord. No. 001,
2017 , § 2, 1‐17‐17, approved, election 4‐4‐17)
Section 8. Campaign contributions.
The Council shall act by ordinance to establish a limit on the amount that any person or entity may contribute in
support of a candidate for Council on the ballot at any city election.
No political party or city employee, directly or indirectly, and no public service corporation, nor any other person,
firm or corporation, owning, interested in, or intending to apply for any franchise or contract with the city shall
contribute or expend any money or other valuable thing, directly or indirectly, to assist in the election or defeat of
any candidate.
(Ord. No. 6, 1980, 1‐16‐80, approved, election 2‐26‐80; Ord. No. 208, 1984, 1‐15‐85, approved, election 3‐5‐85;
Ord. No. 201, 1986, § 1, Part M, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Parts V, W, 12‐16‐86,
approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, § 2, 8‐17‐
99, approved, election 11‐2‐99)
Section 9. Corrupt practices.
Any person who violates at a city election any state law, provision of this Charter or ordinance of the city shall,
upon conviction thereof, be disqualified from holding any city position or employment for two (2) years, or any
elective city office for four (4) years.
(Ord. No. 201, 1986, § 1, Parts J, M, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Parts V, W, 12‐
16‐86, approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, §
2, 8‐17‐99, approved, election 11‐2‐99)
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Section 10. Validity of City‐administered elections.
No Ccity‐administered election shall be invalidated if it has been conducted fairly and in substantial conformity
with the requirements of this Charter.
(Ord. No. 201, 1986, § 1, Part M, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 202, 1986, § 1, Parts V, W, 12‐16‐
86, approved, election 3‐3‐87; Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, § 2, 8‐
17‐99, approved, election 11‐2‐99)
Section 11. Further regulations.
The Council may, by ordinance, make such further rules and regulations as are consistent with this Charter and the
Colorado Constitution in order to carry out the provisions of this Article.
(Ord. No. 11, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 129, 1999, § 2, 8‐17‐99, approved, election 11‐
2‐99)
‐ FORT COLLINS CHARTER
ARTICLE II. CITY COUNCIL
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ARTICLE II. CITY COUNCIL
Section 1. Membership; terms.
(a) Composition of Council. The Council shall consist of seven (7) members, including a Mayor and Mayor Pro
Tem, elected as provided in this Article.
(b) Method of election. The Mayor shall be nominated and elected from the city at large. The remaining six (6)
members shall be nominated and elected by Districts. The election of District Councilmembers shall alternate
between the election of representatives for Council Districts 1, 3 and 5 and the election of representatives
for Council Districts 2, 4 and 6.
(c) Council district boundaries. The city shall be divided into six (6) contiguous, reasonably compact districts,
each of which shall consist of contiguous, undivided general election precincts and, to the extent reasonably
possible, an equal number of inhabitants. The districts shall be numbered consecutively in a clockwise
fashion beginning with the northeast district, which shall be District 1. The Council shall establish by
ordinance the process for adjusting district boundaries and giving notice of any proposed boundary changes,
and the manner of protesting such proposed changes.
(d) Terms. Except as otherwise provided in Section 18 of this Article and Section 3(d) of Article IX, the term of
office of the Mayor shall be two (2) years, and the term of office of all other members of the Council shall be
four (4) years each; provided, however, that all such officers shall serve until their successors have been
elected and have taken office. The terms of the Mayor and other members of the Council shall begin when
they take the oath of office, which shall occur as the first order of business at the first regular ora special
Council meeting in the second Tuesday of January next after the following the final certification of election
results and after expiration of the recount period, or, if appointed, the first regular or special Council meeting
following their appointment.
(Ord. No. 23, 1981, 2‐17‐81, approved, election 4‐7‐81; Ord. No. 94, 1972, 1‐4‐73, approved, election 2‐20‐73; Ord.
No. 197, 1986, § 1, Parts A, B, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 154, 1988, 12‐20‐88, approved,
election 3‐7‐89; Ord. No. 100, 1990, 9‐4‐90, approved, election 11‐6‐90; Ord. No. 15, 1997, § 1, 2‐4‐97, approved,
election 4‐8‐97; Ord. No. 011, 2011, § 1, 2‐15‐11, approved, election 4‐5‐11; Ord. No. 001, 2017 , § 2, 1‐17‐17,
approved, election 4‐4‐17)
Section 2. Qualifications of candidates and members; challenges.
(a) An individual shall be eligible to be a candidate for the office of Councilmember if at the time of the election
he or she is a citizen of the United States; is at least twenty‐one (21) years of age; has been for one (1) year
immediately preceding such election an elector of the city; and, in the case of a District Councilmember, has
continuously resided in the District from which he or she is to be elected since the date of accepting any
nomination for election under Article VIII, Section 3, of this Charter.
(b) No person who has been convicted of a felony shall be eligible to be a candidate for, or hold, the office of
Councilmember.
(c) No person shall be eligible to stand for election to more than one (1) elective office at any single municipal
election. During a term of office, no member of the Council shall be an employee of the city or hold any other
elective public office. No person shall be elected or appointed to any city office, position or employment for
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which the compensation was increased or fixed by the Council while such person was a member thereof until
after expiration of one (1) year from the date when such person ceased to be a member of the Council.
(d) Any registered elector may file with the City Clerk a written protest challenging the qualifications of any
member of the Council. Any such protest shall be resolved by the City Clerk as expeditiously as possible but
no more than forty‐five (45) days from the date of filing of the protest, pursuant to a procedure established
by the Council by ordinance. In order to resolve such protests, the City Clerk shall have the power to
subpoena witnesses, administer oaths, and require the production of evidence. No protest shall be filed prior
to the date of appointment or the date of issuance of the certificate of election of a Councilmember,
whichever is applicable, nor shall any such protest, other than a protest based upon the fact of a felony
conviction, be filed more than fifteen (15) days after said date.
(e) The fact that a Councilmember may be determined to have lacked any qualification for the office of
Councilmember during all or any portion of his or her term of office shall not affect the validity of any action
taken by the Council during such Councilmember's term of office.
(Res. No. 71‐12, 2‐11‐71, approved, election 4‐6‐71; Ord. No. 5, 1983, approved, election 3‐8‐83; Ord. No. 202,
1986, § 1, Part X, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 100, 1990, 9‐4‐90, approved, election 11‐6‐90; Ord.
No. 20, 1991, § 1, 2‐19‐91, approved, election 4‐2‐91; Ord. No. 20, 1993, § 1, 2‐16‐93, approved, election 4‐6‐93;
Ord. No. 15, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97)
Section 3. Compensation of members.
Commencing in 1998, the compensation for all Councilmembers except the Mayor shall be five hundred dollars
($500.) per month and the compensation of the Mayor shall be seven hundred fifty dollars ($750.) per month.
These amounts shall be adjusted annually thereafter for inflation in accordance with the Denver/ Boulder
Consumer Price Index.
(Ord. No. 12, 1977, 2‐15‐77, approved, election 4‐5‐77; Ord. No. 198, 1986, § 1, Part A, 12‐16‐86, approved,
election 3‐3‐87; Ord. No. 100, 1990, 9‐4‐90, approved, election 11‐6‐90; Ord. No. 16, 1997, § 1, 2‐4‐97, approved,
election 4‐8‐97)
Editor's note(s)—See § 2‐575 of the City Code for current salaries of Councilmembers.
Section 4. Organization.
The Mayor shall preside at meetings of the Council and shall be recognized as head of the city government for all
ceremonial purposes and by the Governor of the state for purposes of military law. The Mayor shall execute and
authenticate legal instruments requiring the signature of the Mayor. The Mayor shall also perform such other
duties as may be provided by ordinance which are not inconsistent with the provisions of this Charter.
At the first regular or special meeting after final certification of a City electionat which newly‐elected officers take
their oath of office as described in Section 2(d) of this Article, and after expiration of the recount period, the
Council shall elect a Mayor Pro Tem for a two (2) year term from among the members of the Council to act as
Mayor during the absence or disability of the Mayor. If a vacancy occurs in the position of Mayor, the Mayor Pro
Tem shall become Mayor as provided in Section 18(b) below.
If a vacancy occurs in the position of Mayor Pro Tem, whether through resignation or otherwise, the Council shall
at the first regular or special meeting after the occurrence of such vacancy elect a new Mayor Pro Tem to serve for
the remainder of the vacated term.
(Ord. No. 11, 1969, 2‐27‐69, approved, election 4‐8‐69; Ord. No. 202, 1986, § 1, Part X, 12‐16‐86, approved,
election 3‐3‐87; Ord. No. 100, 1990, 9‐4‐90, approved, election 11‐6‐90; Ord. No. 15, 1997, § 1, 2‐4‐97, approved,
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Page 3 of 8
election 4‐8‐97; Ord. No. 001, 2017 , § 2, 1‐17‐17, approved, election 4‐4‐17; Ord. No. 011, 2021 , § 2, 1‐19‐21,
approved, election 4‐6‐21)
Section 5. Powers.
All powers of the city and the determination of all matters of policy shall be vested in the Council except as
otherwise provided by this Charter. Without limitation of the foregoing, the Council shall have power to:
(a) appoint and remove the City Manager;
(b) establish, change, consolidate or abolish administrative offices, service areas or agencies by ordinance, upon
report and recommendation of the City Manager, so long as the administrative functions and public services
established by this Charter are not abolished in any such reorganization. The city shall provide for all
essential administrative functions and public services, including, but not limited to the following:
(1) fire suppression and prevention;
(2) police services;
(3) finance and recordkeeping;
(4) electric utility services;
(5) water supply and wastewater services;
(6) street maintenance;
(7) storm drainage;
(8) planning and zoning.
(c) adopt the budget of the city;
(d) authorize the issuance of bonds by ordinance as provided by this Charter;
(e) inquire into and investigate any office, service area, or agency of the city and the official acts of any officer or
employee thereof, and to compel by subpoena attendance and testimony of witnesses and production of
books and documents;
(f) adopt plats;
(g) adopt and modify the official map of the city;
(h) provide for independent audits of all funds and accounts of the city.
(Ord. No. 18, 1973, 2‐15‐73, approved, election 4‐3‐73; Ord. No. 202, 1986, § 1, Part A, 12‐16‐86, approved,
election 3‐3‐87; Ord. No. 15, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 22, 2001, § 2, 2‐20‐01,
approved, election 4‐3‐01)
Section 6. Ordinances, resolutions, motions.
The Council shall act by ordinance, resolution, or motion. The ayes and nays shall be recorded on the passage of all
ordinances, resolutions, and motions. Every Councilmember present shall vote; if a member fails to vote when
present, he or she shall be recorded as voting in the affirmative. All legislative enactments and every act creating,
altering, or abolishing any agency or office, fixing compensation, making an appropriation, authorizing the
borrowing of money, levying a tax, establishing any rule or regulation for the violation of which a penalty is
imposed, or placing any burden upon or limiting the use of private property, shall be by ordinance, which shall not
be so altered or amended on the final passage as to change the original purpose.
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All ordinances, except the annual appropriation ordinance and any ordinance making a general codification of
ordinances, shall be confined to one (1) subject which shall be clearly expressed in the title. All ordinances shall be
formally introduced at a regular or special Council meeting in written or printed form by any member of the
Council and considered on first reading and action taken thereon. No ordinance, except an emergency ordinance,
shall be finally passed on the first reading or at the meeting at which it is first introduced. An emergency ordinance
may be formally introduced at a special Council meeting and action taken thereon, including final passage at such
special meeting. Reading of an ordinance shall consist only of reading the title thereof, provided that copies of the
full ordinance proposed shall have been available in the office of the City Clerk at least forty‐eight (48) hours prior
to the time such ordinance is introduced for each member of the City Council, and for inspection and copying by
the general public, and provided further that any member of the City Council may request that an ordinance be
read in full at any reading of the same, in which case such ordinance shall be read in full at such reading. Final
passage of all ordinances except emergency ordinances shall be at a regular Council meeting. Emergency
ordinances shall require for passage the affirmative vote of at least five (5) members of the Council and shall
contain a specific statement of the nature of the emergency. No ordinance granting any franchise or special
privilege which involves a benefit to any private person or entity shall ever be passed as an emergency ordinance.
The enacting clause of all ordinances passed by the Council shall be as follows: "Be it ordained by the Council of the
City of Fort Collins."
(Ord. No. 3, 1961, 2‐23‐61, approved, election 4‐4‐61; Ord. No. 94, 1972, 1‐4‐73, approved, election 2‐20‐73; Ord.
No. 18, 1973, 2‐15‐73, approved, election 4‐3‐73; Ord. No. 202, 1986, § 1, Part X, 12‐16‐86, approved, election 3‐3‐
87; Ord. No. 203, 1986, § 1, Part A, 12‐16‐86, approved, election 3‐3‐87)
Section 7. Ordinances, publication and effective date.
Every proposed ordinance, except an emergency ordinance, shall be published in full at least seven (7) days before
its final passage on the city's official internet web site. In addition, each such ordinance shall be published in a
newspaper of general circulation in the city by number and title only, together with a statement that the full text is
available for public inspection and acquisition in the office of the City Clerk and on the city's internet web site. Both
publications shall contain a notice of the date when said proposed ordinance will be presented for final passage.
The City Clerk shall, within seven (7) days after final passage of any such ordinance, publish such ordinance in the
same method as is required for the first publication. All ordinances, except emergency ordinances, shall take effect
on the tenth day following their passage. An emergency ordinance shall take effect upon passage and shall be
published as provided above within seven (7) days thereof.
Standard codes and codifications of ordinances of the city may be published by title and reference in whole or in
part.
Ordinances shall be signed by the Mayor, attested by the City Clerk and published without further certification.
The Council may enact any ordinance which adopts any code by reference in whole or in part provided that before
adoption of such ordinance the Council shall hold a public hearing thereon and notice of the hearing shall be
published twice in the newspaper of general circulation, published in the city, one (1) of such publications to be at
least eight (8) days preceding the hearing and the other at least fifteen (15) days preceding the hearing. Such
notice shall state the time and place of the hearing and shall also state that copies of the code to be adopted are
on file with the City Clerk and open to public inspection. The notice shall also contain a description which the
Council deems sufficient to give notice to persons interested as to the subject matter of such code and the name
and address of the agency by which it has been promulgated. The ordinance adopting any such code shall set forth
in full any penalty clause in connection with such code.
(Ord. No. 11, 1967, 2‐9‐67, approved, election 4‐4‐67; Ord. No. 18, 1973, 2‐15‐73, approved, election 4‐3‐73; Ord.
No. 205, 1984, approved, election 3‐5‐85; Ord. No. 15, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97; Ord. No. 93,
2005, § 1, 9‐6‐05, approved election 11‐1‐05)
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Section 8. Disposition of ordinances.
A true copy of every ordinance, when adopted, shall be numbered and recorded in a book marked "Ordinance
Record," and adoption and publication shall be authenticated by the signatures of the Mayor and the City Clerk,
and by the certificate of the publisher, respectively. The ordinances as adopted by the vote of the qualified
electors of the city shall be separately numbered and recorded.
Section 9. Ordinance codification.
The Council shall cause the permanent ordinances to be codified. Such codification may be of the entire body of
permanent ordinances or of the ordinances on some particular subject and may be re‐enacted by the Council or
authenticated in such other manner as may be designated by ordinance. No codification ordinance shall be invalid
on the grounds that it deals with more than one (1) subject. The first codification shall be completed within five (5)
years of the effective date of this Charter and subsequent codifications shall be made thereafter as deemed
necessary by the Council, and all permanent ordinances adopted thereafter shall be codified at least once a year.
(Ord. No. 202, 1986, § 1, Part P, 12‐16‐86, approved, election 3‐3‐87)
Section 10. Proof of charter and ordinances.
This Charter and any ordinance passed by the Council may be proved by a copy thereof certified to by the City
Clerk under the seal of the city and, when printed in a book or pamphlet form purporting to be authorized by the
city, the same shall be received as prima facie evidence by courts without further proof.
Section 11. Meetings, quorum, executive session.
The Council shall hold regular meetings at such time and place as it may prescribe by ordinance and shall prescribe
the manner in which special meetings may be called. Notice of any special meeting shall be given to all
Councilmembers no less than one (1) day prior to such meeting. All meetings shall be open to the public. A
majority of the members of Council shall constitute a quorum sufficient to transact business. A smaller number can
adjourn a meeting to a later date and time, and in the absence of all members, the City Clerk may adjourn any
meeting for not longer than one (1) week. In the event of an emergency, natural disaster, or unforeseen
circumstance that renders the holding of a meeting undesirable or impracticable, the City Manager may, with
agreement of the Mayor, cancel a City Council meeting and shall make a reasonable attempt to notify the public
and the other members of Council of such cancellation before the scheduled time of the meeting. No other action,
except to adjourn, may be taken by the Council in the absence of a quorum, unless the absence of a quorum is due
to the filing of conflict of interest disclosure statements by all absent members, in which event at least three (3)
remaining members may transact business. By majority vote of those present and voting, the Council may approve
any action of the Council except the passage of emergency ordinances and the approval of executive sessions. By
two‐thirds (2/3) vote of those present and voting, the Council may go into executive session, which shall be closed
to the public. Executive sessions may only be held to:
(1) discuss personnel matters; or
(2) consult with attorneys representing the city regarding specific legal questions involving litigation or
potential litigation and/or the manner in which particular policies, practices or regulations of the city
may be affected by existing or proposed provisions of federal, state or local law; or
(3) consider water and real property acquisitions and sales by the city; or
(4) consider electric utility matters if such matters pertain to issues of competition in the electric utility
industry.
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(Ord. No. 94, 1972, 1‐4‐73, approved, election 2‐20‐73; Ord. No. 12, 1977, 2‐15‐77, approved, election 4‐5‐77; Ord.
No. 19, 1993, § 1, 2‐16‐93, approved, election 4‐6‐93; Ord. No. 14, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97;
Ord. No. 002, 2017 , § 2, 1‐17‐17, approved, election 4‐4‐17)
Section 12. City Clerk.
With the approval of the Council, the City Manager shall appoint a City Clerk who shall act as Clerk of the Council
and who while so employed shall be a resident of the Fort Collins Urban Growth Area. The City Clerk shall:
(1) give notice of Council meetings;
(2) keep a journal of Council proceedings;
(3) authenticate by his or her signature and permanently record in full all ordinances and resolutions; and
(4) perform other duties required by this Charter or by the City Manager.
(Ord. No. 209, 1984, 1‐15‐85, approved, election 3‐5‐85; Ord. No. 13, 1997, § 1, 2‐4‐97, approved, election 4‐8‐97)
Section 13. Council not to interfere with administrative service.
Except for purposes of inquiry, the Council and its members shall deal with the administrative service of the city
solely through the City Manager, and neither the Council nor any member shall give orders to any subordinates of
the City Manager either publicly or privately.
Section 14. Licenses, permits.
The Council may provide for licenses and permits, and fees therefor, for regulatory purposes. The Council shall
provide an administrative procedure for the hearing and determination of appeals relating to issuance, suspension
or revocation of such licenses and permits. The Council itself may hear and decide appeals.
(Ord. No. 202, 1986, § 1, Part Q, 12‐16‐86, approved, election 3‐3‐87)
Section 15. Surety bonds.
The Council shall require the City Manager, the Financial Officer, and other employees transacting financial
business of the city to furnish bonds with such surety and in such amounts as the Council may determine.
(Ord. No. 202, 1986, § 1, Part I, 12‐16‐86, approved, election 3‐3‐87)
Section 16. Contracts with other governmental bodies.
The Council may, by ordinance or resolution, enter into contracts with other governmental bodies to furnish
governmental services and make charges for such services, or enter into cooperative or joint activities with other
governmental bodies.
(Ord. No. 18, 1973, 2‐15‐73, approved, election 4‐3‐73)
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Section 17. Independent annual audit.
The Council shall provide for an independent audit at least annually by a certified public accountant of all books
and accounts of the city, and shall publish a summary thereof once in the manner provided for publication of legal
notices within seven (7) months after the end of each fiscal year.
(Ord. No. 206, 1984, 1‐15‐85, approved, election 3‐5‐85; Ord. No. 014, 2021 , § 2, 1‐19‐21, approved, election 4‐6‐
21)
Section 18. Vacancies.
(a) A vacancy exists when a Councilmember:
(1) dies, resigns, or moves from the city or the District from which elected or appointed;
(2) assumes another elective office;
(3) fails to attend all regular and special meetings of the Council for sixty (60) consecutive days unless
excused by Council resolution;
(4) is judicially declared mentally incompetent;
(5) is convicted of a felony or is declared by the City Clerk, more than sixty (60) days after the date of
issuance of the certificate of election of such Councilmember, to have previously been convicted of a
felony pursuant to a written protest filed under Section 2 of this article; or
(6) in the case of an appointed member of the Council, is declared by the City Clerk to lack any
qualification for the office of Councilmember.
Except for the office of Mayor, any vacancy on the Council shall be filled within forty‐five (45) days by appointment
of the Council. The person so appointed shall serve until the next regular election, when the electors will select a
person to fill the vacancy for the remainder of the term, if any. This selection process shall be subject to the
following exception: If the time for filling the vacancy by appointment would fall within forty‐five (45) days prior to
any regular election, and the remaining unexpired term of the Councilmember to be replaced is more than two (2)
years, then the vacancy shall be filled by the newly constituted Council following their election, within forty‐five
(45) days after their terms of office begin.
Under this exception, the term of office of the Councilmember appointed shall run for the remainder of the
replaced Councilmember's term. Any person appointed to fill a Councilmember's vacated position shall have all the
qualifications required of regularly elected Councilmembers. In the case of a vacancy representing a member
elected from a District, any person appointed or elected to fill such vacancy shall be from the same District, as such
District is constituted at the time of the appointment or election.
(b) The following shall apply to filling vacancies in the office of Mayor:
(1) If the position of Mayor becomes vacant more than forty‐five (45) days prior to the next regular
election, the Mayor Pro Tem shall become Acting Mayor, and the Council shall elect a new Mayor Pro
Tem. Both the Acting Mayor and Mayor Pro Tem shall serve until the next regular election, at which
time the office of Mayor shall be filled by the electors for a new term, and the Acting Mayor and Mayor
Pro Tem shall resume their duties as Councilmembers for the remainder of their unexpired terms of
office, if any. The vacancy on the Council created by the Mayor Pro Tem assuming the office of Mayor
shall be filled in accordance with the provisions of Section 18(a) above.
(2) If the position of Mayor becomes vacant within the forty‐five (45) days prior to any regular election,
the duties of the Mayor shall be immediately assumed by the Mayor Pro Tem, who shall serve as Acting
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Mayor until said regular election, at which time the office of Mayor shall be filled by the electors for a
new term. Pending the election and the commencement of the term of the newly elected Mayor, the
Council shall consist of six (6) members, and the Council shall elect an interim Mayor Pro Tem. After the
election, the Acting Mayor and Interim Mayor Pro Tem shall resume their duties as Councilmembers
for the remainder of their unexpired terms of office, if any.
(3) Nothing herein shall preclude the Mayor Pro Tem or any Councilmember from standing for election to
the office of Mayor.
(Ord. No. 201, 1986, § 1, Part L, 12‐16‐86, approved, election 3‐3‐87; Ord. No. 154, 1988, 12‐20‐88, approved,
election 3‐7‐89; Ord. No. 100, 1990, 9‐4‐90, approved, election 11‐6‐90; Ord. No. 15, 1997, § 1, 2‐4‐97, approved,
election 4‐8‐97)
DRAFT FOR DISCUSSION ONLY
Fort Collins, Colorado, Municipal Code Created: 2022‐02‐14 15:13:14 [EST]
(Supp. No. 141, Update 1)
Page 1 of 17
Formatted: Font: 14 pt, Font color: Red
ARTICLE V. CAMPAIGNS1
Sec. 7‐131. Legislative declaration.
The City Council hereby finds and declares that large campaign contributions to political candidates allow wealthy
contributors and special interest groups to exercise a disproportionate level of influence over the political process;
that large campaign contributions create the potential for corruption and the appearance of corruption; that the
rising costs of campaigning for political office prevent qualified citizens from running for political office; and that
the interests of the public are best served by limiting campaign contributions, full and timely disclosure of
campaign contributions and strong enforcement of campaign laws.
(Ord. No. 162, 2000, § 1, 11‐21‐00)
Sec. 7‐132. Definitions.
The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this
Section:
Ballot issue, ballot question or issue shall mean any measure put to a vote of the registered electors of the City by
the City Council at any election held under the provisions of the Charter. For purposes of this Article V, ballot issue,
ballot question or issue shall also mean any measure for which recall, initiative or referendum proceedings have
been commenced pursuant to Article IX, Section 1(b), Article X, Section 1(b), and Article X, Section 2(b),
respectively, of the Charter.
Candidate shall mean any person who seeks nomination or election to the office of Mayor or Councilmember at
any City election. A person is a candidate if the person has publicly announced an intention to seek such election or
has filed nominating petitions for the office of Mayor or Councilmember. Candidate shall also mean any elected
official who is the subject of recall proceedings pursuant to Article IX of the Charter.
Candidate committee shall mean a person, including the candidate, or persons with the common purpose of
receiving contributions or making expenditures under the authority of a candidate. A candidate shall have only one
(1) candidate committee. A candidate committee shall be considered open and active until the committee has filed
a termination report with the City Clerk.
Contribution shall mean:
(1) The payment, loan, pledge or advance of money, or guarantee of a loan, made to any candidate
committee, issue committee or political committee;
(2) Any payment made to a third party for the benefit of any candidate committee, issue committee or
political committee;
(3) Anything of value given, directly or indirectly, to a candidate committee for the purpose of promoting
the candidate's nomination, retention, recall or election; or
(4) With regard to a contribution for which the contributor receives compensation or consideration of less
than equivalent value to such contribution, including, but not limited to, items of perishable or
nonpermanent value, goods, supplies, services or participation in a campaign‐related event, an amount
1Charter reference(s)—City Council, Art. II; campaign contributions, Art. VIII, § 7.
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equal to the value in excess of such compensation or consideration as determined by the candidate
committee, issue committee or political committee.
Contribution shall not include:
(1) Services provided without compensation by individuals volunteering their time on behalf of a
candidate, candidate committee, political committee, issue committee or small‐scale issue committee;
(2) Funds collected subsequent to the election to pay the cost of a requested recount pursuant to 7‐46.
Contribution in kind shall mean the fair market value of a gift or loan of any item of real or personal property, other
than money, made to or for any candidate committee, issue committee, small‐scale issue committee or political
committee for the purpose of influencing the passage or defeat of any issue or the nomination, retention, election
or defeat of any candidate. Personal services shall be considered a contribution in kind by the person paying
compensation therefor. In determining the value to be placed on contributions in kind, a reasonable estimate of
fair market value shall be used.
Contribution in kind shall not include an endorsement of a candidate or an issue by any person and shall not
include the payment of compensation for legal and accounting services rendered to a candidate, candidate
committee, political committee, issue committee or small‐scale issue committee if the person paying for the
services is the regular employer of the individual rendering the services and the services are solely for the purpose
of ensuring compliance with the provisions of this Article.
Expenditure shall mean the payment, distribution, loan or advance of any money by any candidate committee,
political committee, issue committee or small‐scale issue committee. Expenditure shall also include the payment,
distribution, loan or advance of any money by a person for the benefit of a candidate committee, political
committee, issue committee or small‐scale issue committee that is made with the prior knowledge and consent of
an agent of the committee. An expenditure occurs when the actual payment is made or when there is a
contractual agreement and the amount is determined.
Independent expenditure shall mean the payment of money by any person for the purpose of advocating the
election, defeat or recall of a candidate, which expenditure is not controlled by, or coordinated with, any candidate
or any agent of such candidate. Independent expenditure shall include expenditures for political messages which
unambiguously refer to any specific public office or candidate for such office. Independent expenditure shall also
include the payment of money by any person for supporting or opposing a ballot issue or ballot question that is not
controlled by, or coordinated with, an issue committee or a small‐scale issue committee. Independent expenditure
shall include, but not be limited to, advertisements placed for a fee on another person's website or advertisement
space provided for no fee or a reduced fee where a fee ordinarily would have been charged.
Independent expenditure shall not include:
(1) Expenditures made by persons in the regular course and scope of their business and political messages
sent solely to their members;
(2) Expenditures made by small‐scale issue committees; or
(3) Any news articles, editorial endorsements, opinion or commentary writings, or letters to the editor
printed in a newspaper, magazine or other periodical not owned or controlled by the candidate, or
communications other than advertisements posted or published on the internet for no fee.
Issue committee shall mean:
(1) Two (2) or more persons who are elected, appointed or chosen, or have associated themselves, for the
purpose of accepting contributions or making expenditures to support or oppose any ballot issue or
ballot question; or and
(2) Any person that has accepted contributions for the purpose of supporting or opposing any ballot issue
or ballot question; and
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(3) Any person or associated persons upon making independent expenditures of five thousand dollars
($5,000) or more for the purpose of supporting or opposing any ballot issue or ballot question.
Issue committee shall not include small‐scale issue committees as otherwise defined in this Section.
Person shall mean any individual, partnership, committee, association, corporation, labor organization or other
organization or group of persons.
Political committee shall mean:
(1) Two (2) or more persons who are elected, appointed or chosen, or have associated themselves, for the
purpose of accepting contributions or making expenditures to support or oppose one (1) or more
candidates; and.
(2) Any person that has accepted contributions for the purpose of supporting or opposing one (1) or more
candidates; and
(3) Any person or associated persons upon making independent expenditures of five thousand dollars
($5,000) or more for the purpose of supporting or opposing one (1) or more candidates, or any person
or associated persons that collect five thousand dollars ($5,000) or more for the purpose of making
independent expenditures.
Political committee shall not include candidate committees as otherwise defined in this Section. Political
committees do notare prohibited from coordinatinge their activities with a candidate.
Political message shall mean a message delivered by telephone, any print or electronic media or other written
material which advocates the election or defeat of any candidate or which unambiguously refers to such
candidate.
Public announcement shall mean:
(1) Registration of a candidate committee; or
(2) A statement made by the candidate signifying an interest in, or exploring the possibility of, seeking the
office by means of a speech, advertisement or other communication reported or appearing in public
media or in any place accessible to the public, including social media, that a reasonable person would
expect to become public.
Registered agent shall mean a natural person designated by or representing a committee and responsible to
receive mailings, respond to inquiries regarding the committee, to receive complaints related to the committee,
and timely filing campaign finance reports and other filings required pursuant to this Chapter.
Small‐scale issue committee means a committee otherwise meeting the definition of issue committee that has
accepted or made contributions or expenditures in an amount that does not exceed five thousand dollars ($5,000.)
during an applicable election cycle for the major purpose of supporting or opposing any ballot issue or ballot
question.
The following are each treated as single small‐scale issue committees:
a. All small‐scale issue committees that support or oppose a common ballot measure if the committees
are established, financed, or controlled by a single corporation or its subsidiaries;
b. All small‐scale issue committees that support or oppose a common ballot measure if the committees
are established, financed, maintained, or controlled by a single labor organization or the affiliated local
units it directs; and
c. All small‐scale issue committees that support or oppose a common ballot measure if the committees
are established, financed, maintained, or controlled by substantially the same person, group of
persons, or other organizations.
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Social media shall mean any electronic medium, including an interactive computer service, application, or data
network, that allows users to create, share, and view user‐generated content, including but not limited to videos,
still photographs, blogs, video blogs, podcasts, instant messages, electronic mail, or internet website profiles.
Termination report shall mean a final report prepared by a candidate committee, issue committee or political
committee and filed with the City Clerk which discloses the committee's contributions received, expenditures
made and obligations entered into, when the following conditions have been met:
(1) The committee no longer intends to receive contributions or make expenditures; and
(2) A zero (0) balance exists in the account established and maintained under Subsection 7‐135(f) and the
committee has no outstanding debts or obligations.
Unexpended campaign contributions shall mean the balance of funds on hand in any candidate committee, issue
committee, political committee or small‐scale issue committee following an election, less the amount of all unpaid
monetary obligations incurred prior to the election.
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 148, 2001, § 1, 11‐6‐01; Ord. No. 021, 2016, § 9, 3‐1‐16 ; Ord. No. 005,
2017 , § 5, 1‐17‐17; Ord. No. 045, 2018 , §§ 3, 4, 4‐3‐18; Ord. No. 077, 2018 , §§ 5, 6, 6‐19‐18; Ord. No. 113, 2018 ,
§ 2, 9‐4‐18)
Sec. 7‐133. Candidate affidavit; disclosure statement; failure to file.
(a) When any individual becomes a candidate, such individual shall certify, by affidavit filed with the City Clerk
within ten (10) days, that the candidate is familiar with the provisions of this Article.
(b) Each candidate shall file a financial disclosure statement pursuant to § 2‐636 with the City Clerk at the same
time as filing an acceptance of nomination.
(c) Failure of any person to file the affidavit or disclosure statement required under this Section shall result in
the disqualification of such person as a candidate for the office being sought.
(d) The requirements of this Section shall not apply to any elected official who is the subject of recall
proceedings.
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 148, 2001, § 2, 11‐6‐01; Ord. No. 045, 2018 , § 5, 4‐3‐18)
Sec. 7‐134. Registration of committees; termination.
(a) All candidate committees, political committees and issue committees shall register with the City Clerk before
accepting any contributions or making any expenditures. Registration must be on a form provided by the City
Clerk and must include the following, together with any other information required to complete the
registration form.
(1) The committee's full name, spelling out any acronyms used therein;
(2) The name of a natural person authorized to act as a registered agent for the committee;
(3) A current street address, mailing address (if different from the street address), telephone number and
email address for the principal place of business of the committee;
(4) A current mailing address, telephone number and email address for the registered agent;
(5) The purpose or nature of interest of the committee;
(6) The date of the election regarding which the committee intends to be active;
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(7) The name and address of the financial institution in which all contributions received by the committee
are deposited in a separate account bearing, in the case of a candidate committee, the name of the
committeecandidate, or in the case of a political or issue committee, the name of the person
authorized to act as the registered agent for the committee, and documentation of such account
reasonably satisfactory to the City Clerk; and
(8) An acknowledgement and certification signed by the registered agent and, for any candidate
committee, the candidate.
(b) A registered committee must promptly provide updated address, telephone and email information to the
City Clerk upon the change of such information for the committee or the registered agent of the committee,
or any change in financial institution or account.
(c) Any candidate committee, political committee, issue committee or registered small‐scale issue committee
that has registered with the City Clerk, but has not engaged in any election activities or reported any
contributions accepted or expenditures made, may terminate at any time by filing an amended committee
registration indicating the nature of the amendment is termination of the committee and verifying that no
contributions have been received or expenditures made since registration occurred pursuant to § 7‐134.
Alternatively, the committee shall file a campaign report indicating no contributions have been received or
expenditures made, and indicating it is a termination report.
(d) Any political committee, issue committee or registered small‐scale issue committee that has not taken the
necessary steps to terminate pursuant to Subsection (c) above must have properly disposed of all funds and
must file a termination report no later than seventy (70) days after the election.
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 148, 2001, § 3, 11‐6‐01; Ord. No. 045, 2018 , § 6, 4‐3‐18; Ord. No. 077,
2018 , § 7, 6‐19‐18; Ord. No. 113, 2018 , § 3, 9‐4‐18; Ord. No. 121, 2020 , 10‐20‐20)
Sec. 7‐135. Campaign contributions/expenditures.
(a) Limits.
(1) No person may make contributions and/or contributions in kind totaling more than one hundred
dollars ($100.) to the candidate committee of any candidate for the office of Mayor. No person may
make contributions and/or contributions in kind totaling more than seventy‐five dollars ($75.) to the
candidate committee of any candidate for the office of Councilmember. These limitations shall apply to
all contributions or contributions in kind, whether made directly to a candidate committee or indirectly
via earmarked gifts passed through an intermediary, except that these limitations shall not apply to:
a. Contributions or contributions in kind made by a candidate to his or her own candidate
committee;
b. Independent expenditures;
c. Monetary loans that are: (a) personally guaranteed in writing by the candidate, the candidate's
immediate family or a business entity in which the candidate owns at least five (5) percent; or (b)
secured by real or personal property owned by the candidate, the candidate's immediate family
or a business entity in which the candidate owns at least five (5) percent; or
d. Contributions made to a candidate committee by another candidate committee established by
the same candidate for the office of Mayor or Councilmember.
(2) No person may make contributions and/or contributions in kind totaling more than one hundred
dollars ($100.) to a political committee.
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Page 6 of 17
(3) No person shall make a contribution or contribution in kind in the name of another person or
knowingly permit one's name to be used by another person to effect such a contribution or
contribution in kind.
(b) Limited Liability Company Contributions. A limited liability company ("LLC") may make contributions or
contributions in kind to candidate committees or political committees subject to the following requirements
and all other applicable limits of this Section:
(1) Any contribution from an LLC shall count against contribution limits for both the LLC itself and the
individual members of the LLC as apportioned according. The amount a person contributes as an
individual member of the LLC shall count towards the aggregate contribution limit for that person in
Subsection (a) herein.
(2) The LLC shall provide the candidate committee or political committee with a written statement
affirming the permissibility of the contribution on a form provided by the City Clerk. The affirmation
shall include:
a. The name and address of the LLC and each LLC member;
b. Information on how the contribution is attributed among the LLC members, which attribution
must reflect the capital each member has invested in the LLC relative to the total amount of
capital invested in the company, or the percentage of ownership each member has in the LLC as
of the date of the contribution.
(3) No candidate committee or political committee shall accept a contribution from an LLC unless the LLC
provides the written affirmation in compliance with this Section before the contribution is deposited by
the committee.
(4) The candidate committee or political committee receiving the contribution shall:
a. List both the individual LLC members' names and the name of the LLC as contributors on
disclosure reports; and
b. Retain the affirmation statements for one (1) year after the date of the election; provider
however, in the event a complaint is filed against the committee, the committee must maintain
the affirmations until the final disposition of the complaint.
(5) As used in this Subsection (b), "limited liability company" shall have the same meaning as "domestic
limited liability company" as defined in Section 7‐90‐102(15), C.R.S., or "foreign limited liability
company" as defined in Section 7‐90‐102(24), C.R.S., as amended.
(c) Joint contributions. No person shall make a contribution jointly with another person through the issuance of
a check drawn on a jointly owned account unless: (i) the total amount of the joint contribution is less than
the maximum amount that can be contributed by one (1) person under the contribution limits established in
Subsection (a) of this Section or (ii) the check is signed by all owners of the account, in which event the
amount of the total contribution shall be allocated equally among all such persons unless a different
allocation is specified on the face of the check. No candidate committee shall knowingly accept a
contribution made in violation of this Subsection (bc).
(d) Contributions in excess of limits. No later than ten (10) business days after receiving a contribution in excess
of the limits set forth in this Section, the candidate committee that received the contribution shall remit the
excess to the contributor.
(e) No candidate committee, issue committee, small‐scale issue committee or political committee shall
knowingly accept contributions from any person who is not a citizen of the United States, from a foreign
government or from any foreign corporation that does not have authority to transact business in this State
pursuant to Article 115 of Title 7, C.R.S.
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Page 7 of 17
(f) No issue committee, small‐scale issue committee or political committee shall make a contribution or
contribution in kind to any candidate other committee.
(g) Contributions from one (1) candidate committee to another.
(1) No candidate committee shall make a contribution or contribution in kind to, or accept a contribution
or contribution in kind from, a candidate committee of another candidate.
(2) No candidate committee shall accept a contribution or contribution in kind from a candidate
committee of the same candidate that was established or maintained for a federal, state or county
election campaign or office.
(h) Recordkeeping.
(1) All contributions received by a candidate committee, small‐scale issue committee, issue committee or
political committee shall be documented and deposited and maintained in a financial institution in a
separate account whose title shall include the name of the committeethat complies with Subsection 7‐
134(a)(7). Following any election in which the committee received contributions, All the committee
shall maintain all records pertaining to contributions and related accounts shall be maintained by the
committee for one (1) year following any electionthe date the final disclosure report is due under
Section 7‐136 or the date the committee terminates, whichever is later, in which the committee
received contributions unless a complaint has been filed under Subsection 7‐145(a) alleging a violation
of the provisions of this Article, or the person or committee has received notice of an investigation or
prosecution of a violation of this Article by the City or other law enforcement authority, in which case
they shall be maintained until final disposition of the complaint and any consequent court proceedings.
Such records shall be subject to inspection in connection with any investigation or other action to
enforce the terms of this Article.
(2) Following any election in which the committee made any expenditure, the committee shall document
all expenditures and shall maintain All expenditures shall be documented and all records pertaining to
said expenditures, including but not limited to invoices, receipts, instruments of payment, and copies
of any public communications produced as a result of the expenditure, shall be maintained by the
committee for one (1) year following the date the final disclosure report is due under Section 7‐136 or
the date the committee terminates, whichever is later,any election in which the committee expended
the funds unless a complaint has been filed under Subsection 7‐145(a) alleging a violation of the
provisions of this Article, or the person or committee has received notice of an investigation or
prosecution of a violation of this Article by the City or other law enforcement authority, in which case
they shall be maintained until final disposition of the complaint and any consequent court proceedings.
Documentation shall include the name and address of the vendor(s) or payee(s) providing the
property, materials, or services and the amount of the expenditure. Such records shall be made
available within three (3) business days upon request of the City and subject to inspection in
connection with any investigation or other action to enforce the terms of this Article.
(i) Reimbursements prohibited. No person shall make a contribution to a candidate committee, issue
committee, small‐scale issue committee or political committee with the expectation that some or all of the
amounts of such contribution will be reimbursed by another person. No person shall be reimbursed for a
contribution made to any candidate committee, issue committee, small‐scale issue committee or political
committee, nor shall any person make such reimbursement. An unexpended campaign contribution returned
to a contributor by a candidate committee pursuant to § 7‐135(c) shall not be considered a reimbursement.
(j) A candidate committee, issue committee, small‐scale issue committee or political committee shall not
coordinate its expenditures or share information with any other such committee in a manner that
circumvents any restrictions or limitations on campaign contributions, expenditures or reporting set forth in
this Article.
Formatted: Highlight
Commented [RM1]: Is this to address the prohibition of
political committees (as revised) coordinating with
candidate committees?
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Page 8 of 17
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 189, 2000, § 1, 1‐2‐01; Ord. No. 148, 2001, § 4, 11‐6‐01; Ord. No. 005,
2017 , § 6, 1‐17‐17; Ord. No. 077, 2018 , § 8, 6‐19‐18; Ord. No. 113, 2018 , §§ 4, 5, 9‐4‐18; Ord. No. 109, 2020 , § 3,
9‐15‐20; Ord. No. 112, 2020 , §§ 2, 3, 9‐15‐20)
Sec. 7‐136. Disclosure; filing of reports.
(a) All candidate committees, political committees and issue committees shall report to the City Clerk their
contributions and contributions in kind received, including the name and address of each person who has
made a contribution or a contribution in kind; expenditures made; and obligations entered into by the
committee.
(b) For purposes of complying with the requirements of this Section, an issue committee, political committee or
small‐scale issue committee consisting of an organization whose primary purpose is not to support or oppose
ballot issues shall report only those contributions accepted, expenditures made and obligations entered into
for the purpose of supporting or opposing a ballot issue or ballot question. Such issue committee shall not be
required to report donations, membership dues or any other payments received unless except to the extent
such amounts are used or to be used for the purpose of supporting or opposing a ballot issue or ballot
question.
(c) Reports shall be filed with the City Clerk as follows:
(1) All committees must file reports on the following dates:
a. the thirty‐fifth (35th ) day before the election;
b. the twenty‐first (21st ) day before the election;
c. the fourteenth (14th ) day before the election;
d. no later than noon on the Friday before the election;
e. the thirty‐fifth (35th ) day after the election; and
f. the seventieth (70th ) day after the election.
(2) Candidate committees that continue in operation must file a report annually on the first day of the
month in which the anniversary of the election occurs until such time as a termination report is filed.
(3) If the reporting day falls on a weekend or legal holiday, the report shall be filed by the close of the next
business day.
(d) The reports required by this Section shall include the balance of funds at the beginning of the reporting
period, the total of contributions received, and the total of expenditures made during the reporting period
and the name and address of the financial institution used by the committee or party.
(e) All reports shall be submitted on forms provided by the City Clerk and shall be complete in all respects.
Reports shall be current in all respects as of two (2) days prior to the date upon which each such report is to
be filed.
(f) A report required to be filed by this Section is timely if the paper report is received by the City Clerk not later
than the close of business on the date due or if the report is filed electronically not later than midnight
Mountain Standard Time on the date due. Notwithstanding the foregoing, the report that is due by noon on
the Friday before the election must be filed by noon regardless of the manner of filing.
(g) Any report that is deemed by the City Clerk to be incomplete or inconsistent with the requirements of this
Article shall be accepted on a conditional basis, and shall be subject to the penalties and process in § 7‐143.
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Page 9 of 17
(h) Any candidate committee, political committee or issue committee which has not accepted any contributions
or contributions in kind, made any expenditures, or entered into any obligations during a reporting period,
shall file a report with the City Clerk on the days specified in Subparagraph (c) above certifying that the
committee has not accepted any contributions or contributions in kind, made any expenditures or entered
into any obligations during the relevant reporting period.
(i) Except as specified in this Subparagraph (i), the disclosure requirements specified in this Section shall not
apply to a small‐scale issue committee. To the extent there is any conflict between the small‐scale issue
committee provisions of Subparagraphs (i), (j), (k), and (l) of this Section 7‐136, those Subparagraphs shall
control. Any small‐scale issue committee shall disclose or file reports about the contributions or expenditures
it has made or received or otherwise register as an issue committee in connection with accepting or making
such contributions or expenditures in accordance with the following alternative requirements:
(1) Any small‐scale issue committee that accepts or makes contributions or expenditures in an aggregate
amount during any applicable election cycle that does not exceed two hundred and fifty dollars
($2050.) is not required to disclose or file reports about the contributions or expenditures it has made
or received or otherwise register as an issue committee in connection with accepting or making such
contributions or expenditures.
(2) Any small‐scale issue committee that accepts or makes contributions or expenditures in an aggregate
amount during any applicable election cycle of between two hundred and fifty dollars ($2500.) and five
thousand dollars ($5,000.) shall register with the City Clerk within ten (10) business days of the date on
which the aggregate amount of contributions or expenditures exceeds two hundred and fifty dollars
($2500.). The registration required by this subparagraph must be on a form provided by the City Clerk
and must include the following, together with any other information required to complete the
registration form:
a. The committee's full name, spelling out any acronyms used in the name;
b. The name of a natural person authorized to act as a registered agent of the committee;
c. A current street address, mailing address (if different from the street address), telephone
number and email address for the principal place of business of the committee;
d. A current mailing address, telephone number and email address for the registered agent;
e. The purpose or nature of interest of the committee;
f. The date of the election regarding which the committee intends to be active;
g. The name and address of the financial institution in which all contributions received by the
committee are deposited in a separate account bearing the name of the committee, and
documentation of such account reasonably satisfactory to the City Clerk; and
h. An acknowledgement and certification signed by the registered agent and, from any candidate
committee, the candidate.
(3) A registered small‐scale issue committee must promptly provide updated address, telephone and email
information to the City Clerk upon the change of such information for the committee or the registered
agent of the committee, or any change in financial institution or account.
(j) Except as required by Subsection 7‐135(f)(2), no small‐scale issue committee described in subsection (i)(2) is
required under this Article to disclose or report any contributions or expenditures it has made or received, so
long as it continues to meet the definition of small‐scale issue committee.
(k) Within seven (7) days of the date on which a small‐scale issue committee accepts or makes contributions or
expenditures in an aggregate amount during any applicable election cycle that exceeds five thousand dollars
($5,000.), the committee shall:
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Page 10 of 17
(1) through its registered agent, report this change in the committee's status to the City Clerk; and
(2) report to the City Clerk on an approved form, for each particular contribution or expenditure accepted
or made, the name and address of each person who has made such contribution and the amount of
each specific contribution and expenditure accepted or made by the committee.
(l) Once any issue committee that began as a small‐scale issue committee accepts or makes contributions or
expenditures in an aggregate amount during any applicable election cycle that exceeds five thousand dollars
($5,000.), the committee shall from that point forward make disclosure of any contributions or expenditures
it accepts or makes not already reported under Subparagraph (k) and comply with all requirements under
this Article applicable to issue committees.
(m) Any political committee or issue committee formed prior to July 1, 2017, will be deemed to have been
formed for an election held prior to said date, and shall be deemed terminated and shall cease to operate as
a committee as of April 13, 2018, except that any such terminated committee and persons responsible for
the operation of such committee shall continue to be subject to the limitations on disbursement of funds set
forth in § 7‐138.
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 189, 2000, § 2, 1‐2‐01; Ord. No. 148, 2001, § 5, 11‐6‐01; Ord. No. 173,
2014, § 7, 12‐16‐14 ; Ord. No. 021, 2016, § 10, 3‐1‐16 ; Ord. No. 005, 2017 , § 8, 1‐17‐17; Ord. No. 045, 2018 , § 7—
11, 4‐3‐18; Ord. No. 077, 2018 , § 9, 6‐19‐18; Ord. No. 113, 2018 , § 6, 9‐4‐18; Ord. No. 109, 2020 , § 4, 9‐15‐20)
Sec. 7‐137. Reports to be public record.
(a) Upon receipt of any campaign report submitted pursuant to this Article, the City Clerk shall make available
such report for public inspection and post the report on the City's website no later than the next business
day.
(b) No information contained in any campaign report submitted pursuant to this Article shall be sold or used by
any person for the purpose of soliciting contributions or for any commercial purpose.
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 148, 2001, § 6, 11‐6‐01; Ord. No. 021, 2016, § 11, 3‐1‐16 )
Sec. 7‐138. Unexpended campaign contributions.
(a) Unexpended campaign contributions to a candidate committee may be:
(1) Contributed to a political party;
(2) Contributed to a candidate committee established by the same candidate for a subsequent campaign
in a City election, or to a candidate committee established after January 1, 2021, for a non‐City
election, to the extent permitted by applicable law. For a City election, such contributions are subject
to the limitations set forth in Paragraph 7‐135(g)(2);
(3) Donated to a charitable organization recognized by the Internal Revenue Service;
(4) Returned to the contributors;
(5) Used to pay for the cost of a recount requested by the candidate pursuant to § 7‐46.
In no event shall contributions to a candidate committee be used for personal purposes not reasonably related to
supporting the election or retention of the candidate.
(b) In addition to any use described in Subsection (a) of this Section, a person elected to the office of Mayor or
Councilmember, or retained in office following a recall attempt, may use unexpended campaign
contributions held by the person's candidate committee for any of the following purposes:
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Page 11 of 17
(1) Voter registration;
(2) Political issue education, which includes obtaining information from or providing information to the
electorate;
(3) Postsecondary educational scholarships;
(4) To defray reasonable and necessary expenses related to mailings and similar communications to
constituents;
(5) Any expenses that are directly related to such person's official duties as an elected official, including,
but not limited to, expenses for the purchase or lease of office equipment and supplies, room rental for
public meetings, necessary travel and lodging expenses for legislative education such as seminars,
conferences and meetings on legislative issues, and telephone and pager expenses.
(c) A candidate committee for a former officeholder or a person not elected to office shall expend all of the
unexpended campaign contributions retained by such candidate committee, for the purposes specified in
Subsection (a) of this Section, no later than five (5) years from the date such officeholder's term expired or
from the date of the election at which such person was a candidate for office, whichever is later.
(d) Unexpended campaign contributions to an issue committee or political committee may be donated to any
charitable organization recognized by the Internal Revenue Service, returned to the contributor, or used to
pay for the cost of a recount requested by the committee's registered agent pursuant to § 7‐46.
(e) Any unexpended campaign contributions held by a candidate committee subsequent to the date of the
election shall, upon the registration of a candidate committee for a City office in a subsequent election, be
available for that candidate committee as a beginning fund balance to use in that election. Such carryover
funds will not count against any contribution limit attributable to any past contributor in a prior election
campaign. Absent the candidate registering a candidate committee for a City office in a subsequent election,
the unexpended campaign contributions may be used as otherwise set forth in this Section.
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 148, 2001, § 7, 11‐6‐01; Ord. No. 021, 2016, § 12, 3‐1‐16 ; Ord. No.
109, 2020 , § 5, 9‐15‐20)
Sec. 7‐139. Independent expenditures.
(a) Any person, excluding a committee required to register under this Article, who makes independent
expenditures in connection with any particular ballot totaling in the aggregate more than two hundred fifty
dollars ($250.) shall report any such independent expenditures made after that threshold is met to the City
Clerk on a form provided by the City Clerk no later than three (3) business days after the day that funds are
obligated to pay for said independent expenditure. Said notice shall include the following information,
together with any other information required by the City Clerk:
(1) The name, address and telephone number of the person making the independent expenditures;
(2) The name of the candidate whom the independent expenditures are intended to support or oppose;
(3) The name and address of the vendor(s) providing the property, materials or services;
(4) A detailed description of the independent expenditures sufficient to allow for determination of
compliance with this section;
(5) The amount of the independent expenditures;
(6) The date the funds were obligated; and
(7) Copies of receipts, invoices, or other documentation related to the independent expenditure.
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(Supp. No. 141, Update 1)
Page 12 of 17
(b) For the purposes of this provision, funds shall be considered to have been obligated as soon as an
agreement is reached for the provision of the property, materials or services in question, regardless of when
payment is to be made for such property or services.
(c) All independent expenditures shall be documented and all records pertaining to independent expenditures,
including but not limited to invoices, receipts, instruments of payment, and copies of any public
communications produced as a result of the expenditure, shall be maintained for one (1) year following any
election in which the funds were expended unless a complaint has been filed under Subsection 7‐145(a)
alleging a violation of the provisions of this Article, or the person or committee has received notice of an
investigation or prosecution of a violation of this Article by the City or other law enforcement authority, in
which case they shall be maintained until final disposition of the complaint and any consequent court
proceedings. Such records shall be made available within three (3) business days upon request of the City
and subject to inspection in connection with any hearing held pursuant to this Article.
(d) Any person or persons, excluding a committee otherwise required to register under this Article, who makes
or make independent expenditures in connection with any particular ballot (including either candidate races
or ballot questions or issues) totaling in the aggregate five thousand dollars ($5,000) or more dollars
($5,000.), shall register as an issue committee or political committee, as applicable, within two (2)
calendarthree (3) business days of having made such expenditures. The initial report of any such
committee shall provide the dates of any reports of independent expenditures previously made and the
source of funds for said previously reported expenditures.
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 148, 2001, § 8, 11‐6‐01; Ord. No. 005, 2017 , § 7, 1‐17‐17; Ord. No.
077, 2018 , § 10, 6‐19‐18; Ord. No. 113, 2018 , § 7, 9‐4‐18)
Sec. 7‐140. Responsibility for communications.
(a) Required Statements.
(1) Whenever a candidate, candidate committee, issue committee, political committee or registered small‐
scale issue committee makes an expenditure for the purpose of financing communications expressly
advocating a particular result in an election, or solicits any contribution or contribution in‐kind through
any broadcasting station, newspaper, magazine, outdoor advertising facility, direct mailing or any other
type of general public political advertising, such communication if paid for or authorized by a
candidate, candidate committee, issue committee, political committee, registered small‐scale issue
committee, or any agent for the same, shall clearly state that the communication is paid for by that
candidate, candidate committee, issue committee, political committee or registered small‐scale issue
committee.
(2) Whenever any person makes an independent expenditure in excess of the reporting threshold in § 7‐
139 for the purpose of financing communications expressly advocating for a particular result in an
election, such communication shall clearly state that the communication is paid for by that person.
(b) In regard to the different forms of communication set forth in subsection (a) of this Section 7‐140,
"communication" shall include, but shall not be limited to:
(1) Websites or social media of a candidate, candidate committee, issue committee, political committee or
registered small‐scale issue committee available to the general public;
(2) Websites or social media of a person if and to the extent they are financed by independent
expenditures in excess of the reporting threshold in § 7‐139 and are available to the general public; and
(3) Advertisements placed for a fee on another person's website or social media.
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(Supp. No. 141, Update 1)
Page 13 of 17
(c) The statement required by this Section 7‐140 must be clear and conspicuous in the communication. The
statement required herein shall not apply to communications where including the statement would be
impractical, such as:
(1) Bumper stickers, pins, buttons, pens and similar small items upon which the disclaimer cannot be
conveniently printed;
(2) Skywriting, water towers, wearing apparel, or other means of displaying an advertisement of such a
nature that the inclusion of a disclaimer would be impracticable; or
(3) Checks, receipts, and similar items of minimal value that are used for purely administrative purposes
and do not contain a political message.
(d) Nothing herein shall be deemed to alleviate any person from complying with federal campaign finance law,
as applicable.
(Ord. No. 113, 2018 , § 8, 9‐4‐18)
Sec. 7‐141. Expenditures for political advertising; rates and charges.
(a) No candidate committee shall pay to any radio or television station, newspaper, periodical, internet
advertiser or website provider, social media provider or other supplier of materials or services a higher
charge than that normally required for local commercial customers for comparable use of space, materials or
services. Any such rate shall not be rebated, directly or indirectly.
(b) Any radio or television station, newspaper, internet advertiser or website provider, social media provider or
periodical that charges an issue committee, small‐scale issue committee or candidate a committee a lower
rate for use of space, materials or services than the rate such station, newspaper, internet advertiser or
website provider, social media provider or periodical or supplier charges another issue committee or
candidate committee for the same ballot measure or public office for comparable use of space, materials or
services shall report the difference in such rate as a contribution in kind to the committee that is charged
such lower rate.
(c) Nothing in this Article shall be construed to prevent an adjustment in rates related to frequency, volume,
production costs and agency fees if such adjustments are offered consistently to other advertisers.
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 077, 2018 , § 11, 6‐19‐18; Ord. No. 113, 2018 , § 9, 9‐4‐18)
Sec. 7‐142. Encouraging withdrawal from campaign prohibited.
No person shall offer or give any candidate or candidate committee any money or any other thing of value for the
purpose of encouraging the withdrawal of the candidate's candidacy, nor shall any candidate offer to withdraw a
candidacy in return for money or any other thing of value.
(Ord. No. 162, 2000, § 1, 11‐21‐00)
Sec. 7‐143. Violations and penalties.
(a) Except as provided in Subparagraph (e) herein, any person who knowingly violates or fails to comply with the
provisions of this Article as set forth in the following schedule commits a civil infraction and is subject to a
civil penalty as follows:
Code Section Penalty Amount
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(Supp. No. 141, Update 1)
Page 14 of 17
7‐133 – Candidate affidavit; disclosure statement;
failure to file
$___ first offense; $____ each subsequent offense
7‐134 ‐ Registration of committees; termination. $150 first offense; $300 each subsequent offense
7‐135 ‐ Campaign contributions/expenditures. $100 first offense; $200 each subsequent offense
7‐136 ‐ Disclosure; filing of reports. $100 first offense; $200 each subsequent offense
7‐137(b) ‐ Reports to be public record. $50 first offense; $100 each subsequent offense
7‐138 ‐ Unexpended campaign contributions. $100 first offense; $200 each subsequent offense
7‐139 ‐ Independent expenditures $100 first offense; $200 each subsequent offense
7‐140 ‐ Responsibility for communications. $50 first offense; $100 each subsequent offense
7‐141 ‐ Expenditures for political advertising; rates and
charges.
$50 first offense; $100 each subsequent offense
(b) Any person who undertakes any of the following commits a misdemeanor and is subject to a fine or
imprisonment in accordance with § 1‐15:
(1) Knowingly violates § 7‐136 with the intent to fraudulently misrepresent campaign contributions or
expenditures on a disclosure report;
(2) Knowingly violates § 7‐142; or
(3) Is found liable for a violation after the person has been found liable for two (2) or more violations
under this Article in a single election cycle.
(c) Failure to comply with the provisions of this Article shall have no effect on the validity of any election, except
as expressly required by the City Charter.
(Ord. No. 162, 2000, § 1, 11‐21‐00; Ord. No. 109, 2020 , § 6, 9‐15‐20)
Sec. 7‐144. Severability.
If any provision of this Article or the application thereof to any person or circumstances is held invalid, such
invalidity shall not affect other provisions or applications of the Article which can be given effect without the
invalid provision or application, and to this end the provisions of this Article are declared to be severable.
(Ord. No. 162, 2000, § 1, 11‐21‐00)
Division 2 Campaign Violations
Sec. 7‐145. Allegation of campaign violation.
(a) Any candidate or registered elector of the City ("complainant") who has reason to believe a violation of
Chapter 7, Article V, of this Code, has occurred by any person, candidate, candidate committee, issue
committee, small‐scale issue committee or political committee may file a written complaint with the City
Clerk, no later than sixty (60) days after the alleged violation has occurred.
(b) The complaint must contain:
(1) The name of the alleged violator;
(2) The Code provision allegedly violated;
(3) A brief statement or description of the offense allegedly committed and the basis for the allegation;
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(Supp. No. 141, Update 1)
Page 15 of 17
(4) Identification of any relevant documents or other evidence;
(5) Identification of any witnesses or persons with relevant knowledge; and
(6) The name, address and telephone number of the complainant.
(c) For complaints that allege a criminal violation as set forth in § 7‐143(b), the City Clerk will forward the
complaint to the respondent and to the City Attorney, who will evaluate the complaint for probable cause as
provided for in this Division 2.
(d) For complaints that do not allege a criminal violation, the complaints shall be subject to a civil infraction
process as provided herein:
(1) The City Clerk will forward the complaint to the respondent by electronic mail, notifying the
respondent that the alleged violation may be subject to a civil infraction.
(2) The City Clerk will forward the complaint to the City Attorney, who shall review the complaint to
determine whether the complaint:
a. Was timely filed under § 7‐145(a);
b. Contains the information required by § 7‐145(b); and
c. Alleges sufficient facts to support a factual and legal basis for the violations alleged.
(3) If the City Attorney determines that the complaint fails to satisfy any of the three (3) elements in the
immediately preceding Subsection (2), the City Attorney shall so notify the City Clerk who will, in turn,
notify the complainant and respondent in writing.
(4) If the City Attorney determines that the complaint satisfies the three (3) elements in the immediately
preceding Subsection (2), the City Attorney shall notify the City Clerk who will, in turn, notify the
respondent in writing of the presumptive penalty in accordance with § 7‐143(a) and that the
respondent shall have seven (7) days from the date of the notice to submit written evidence of its cure
or diligent efforts to cure the violation, including any amendments to any applicable report containing
one or more deficiencies, modified campaign materials or other proof that the violation has been
corrected. The respondent's written response shall be due to the City Clerk no later than 5:00 p.m. on
the seventh (7th ) day. In the event the seventh (7th ) day is a City holiday, the response shall be due no
later than 5:00 p.m. the next business day.
(5) On receipt of the respondent's written response, the City Attorney may, through the City Clerk, ask the
respondent to provide more information and may grant the respondent an extension of time of up to
seven (7) additional days to file an amended response regarding cure in order to respond to any such
request.
(6) After the period for cure has expired, the City Attorney shall determine whether the respondent has
cured any violation alleged in the complaint and, if so, whether respondent has substantially complied
with its legal obligations under Chapter 7, Article 5, of this Code. In determining whether the
respondent has substantially complied with its legal obligations, the City Attorney shall consider:
a. The extent of the respondent's noncompliance;
b. The purpose of the provision violated and whether that purpose was substantially achieved
despite the noncompliance; and
c. Whether the noncompliance may properly be viewed as a knowing attempt to mislead the
electorate or election officials.
If the City Attorney determines the respondent has cured any violation or otherwise substantially complied with its
legal obligations under Chapter 7, Article 5, the City Attorney shall so notify the City Clerk who, in turn, shall notify
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(Supp. No. 141, Update 1)
Page 16 of 17
the complainant and the respondent and no penalty shall apply for the corresponding alleged violation or
violations, as applicable.
(7) If the City Attorney determines the respondent has not cured the alleged violation or otherwise
substantially complied with its legal obligations, the City Attorney may conduct additional review or
investigation of the allegations of the complaint to determine whether to file a complaint with the
Municipal Court.
(8) If the City Attorney files a complaint with the Municipal Court, the matter shall be governed by Article
V of Chapter 19 of this Code.
(9) A complainant or any other nonrespondent shall not be a party to the City Attorney's initial review,
cure proceedings, investigation, or any proceeding in the Municipal Court. A complainant may request
permission from the Municipal Judge or their designee to file an amicus curiae brief.
(10) Any person that commits a violation of shall be personally liable for the penalties imposed. If the
person’s conduct constituting the violation was a result of that person’s involvement with a committee,
the person may use the committee’s contributions to pay penalties. Any candidate shall be personally
liable for penalties imposed upon the candidate or the candidate's committee and may use campaign
contributions to pay penalties.
(Ord. No. 005, 2017 , § 9, 1‐17‐17; Ord. No. 113, 2018 , § 10, 9‐4‐18; Ord. No. 109, 2020 , § 7, 9‐15‐20)
Sec. 7‐146. Evaluation of campaign complaint.
(a) For those complaints that concern a criminal violation pursuant to § 7‐143(b), if the City Attorney determines
that no probable cause exists, that the complaint fails to allege an enforceable violation, or that the
requirements of § 7‐145 were not met by the complainant, the City Attorney shall so notify the City Clerk,
who will, in turn, notify the complainant and respondent in writing.
(b) If the City Attorney determines probable cause exists, the City Attorney may notify Fort Collins Police
Services, who, in consultation with the City Attorney, may file and serve a summons and complaint to the
respondent.
(c) The City Attorney retains prosecutorial discretion on whether to ultimately file criminal charges. If the City
Attorney determines filing a summons and complaint is inappropriate, he or she shall so notify the City Clerk,
who will, in turn, notify the complainant and respondent in writing.
(Ord. No. 005, 2017 , § 9, 1‐17‐17; Ord. No. 109, 2020 , § 8, 9‐15‐20)
Sec. 7‐147. Conflicts of interest.
Notwithstanding the above, nothing in this Article shall be read to preclude the City Attorney from declaring a
conflict of interest, and taking appropriate action in accordance with this Code and general practices of the City,
including, but not limited to, hiring special counsel, if deemed necessary and advisable under the circumstances.
(Ord. No. 005, 2017 , § 9, 1‐17‐17)
Sec. 7‐148. Complaint not required for city action.
Nothing in this Article shall preclude the City from pursuing an action, civil or criminal, against any person,
candidate, candidate committee, issue committee, small‐scale issue committee or political committee for any
violation of this Chapter, regardless of whether a complaint had been filed pursuant to this Article.
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Page 17 of 17
(Ord. No. 005, 2017 , § 9, 1‐17‐17)
Sec. 7‐149. Administrative procedures.
The City Manager is charged with ultimate authority to pursue complaints under this Article and is hereby
authorized to adopt administrative regulations consistent with the provisions of this Article.
(Ord. No. 005, 2017 , § 9, 1‐17‐17)
Sec. 7‐150. Reserved.
Editor's note(s)—Ord. No. 109, 2020 , § 9, adopted September 15, 2020, repealed § 7‐150, which pertained to
action by complainant, and derived from Ord. No. 005, 2017 , § 9, adopted January 17, 2017.
Secs. 7‐151—7‐154. Reserved.
Campaign Finance Law: An Analysis of Key
Issues, Recent Developments, and
Constitutional Considerations for Legislation
September 24, 2018
Congressional Research Service
https://crsreports.congress.gov
R45320
Congressional Research Service
SUMMARY
Campaign Finance Law: An Analysis of Key
Issues, Recent Developments, and
Constitutional Considerations for Legislation
Federal campaign finance law is composed of a complex set of limits, restrictions, and
requirements on money and other things of value that are spent or contributed in the context of
federal elections. While the Federal Election Campaign Act (FECA, or Act) sets forth the
statutory provisions governing this area of law, several Supreme Court and lower court rulings have had a significant impact
on the Act’s regulatory scope. Most notably, since 2003, a series of Supreme Court decisions ha s invalidated several FECA
provisions that were enacted as part of the Bipartisan Campaign Reform Act of 2002 (BCRA), and in 2010, the Court
invalidated a long-standing prohibition on independent expenditures funded from the treasuries of corporations and labor
unions. Generally, the Court has overturned such provisions as unconstitutional violations of First Amendment guarantees of
free speech.
As a foundational matter, FECA distinguishes between a contribution and an expenditure: a contribution involves giving
money to an entity, such as a candidate’s campaign committee, while an expenditure involves spending money directly for
advocacy of the election or defeat of a candidate. Generally, the Supreme Court has upheld limits on contributions, while
invalidating limits on expenditures. FECA regulates campaigns in three primary ways: contribution limits, source restrictions,
and disclosure and disclaimer requirements.
Contribution Limits
Contribution limits refer to how much a donor can contribute as well as how they can contribute. Contribution limits include
specific limits on how much money a donor may contribute to a candidate, party, and political committee, which are known
as base limits. FECA also provides for related restrictions, including the ban on contributions made through a conduit; the
ban on converting campaign contributions for personal use; and the treatment of communications a donor makes in
coordination with a candidate or party as contributions. While the Supreme Court has generally upheld base limits, the Court
has struck down FECA’s aggregate limits, which capped the total amount of money a donor could contribute to all
candidates, parties, and political committees; limits on contributions to candidates whose opponents self-finance; and limits
on contributions by minors. In addition, based on Supreme Court precedent, an appellate court ruling provided the legal
underpinning for the establishment of super PACs.
Source Restrictions
FECA contains several bans, referred to as source restrictions, on who may make campaign contributions. Source restrictions
include the ban on corporate and labor union campaign contributions directly from treasury funds—although the Supreme
Court has held that limits on corporate and labor union independent spending are unconstitutional, the Court has upheld
limits on contributions. Source restrictions also include the ban on federal contractor contributions—known as the “pay-to-
play” prohibition—which the U.S. Court of Appeals for the D.C. Circuit upheld against a First Amendment challenge in
2015; the ban on foreign national contributions and expenditures; and the restrictions on foreign national involvement in U.S.
campaigns.
Disclaimer and Disclosure Requirements
FECA also sets forth disclaimer and disclosure requirements. FECA’s disclaimer requirements mandate that statements of
attribution appear directly on campaign-related communications. FECA’s disclosure requirements mandate that political
committees register with the Federal Election Commission (FEC) and comply with periodic reporting requirements. In
addition, the law requires other entities —such as labor unions and corporations, including incorporated organizations that are
tax-exempt under Section 501(c)(4) of the Internal Revenue Code—that make independent expenditures or electioneering
communications to disclose information to the FEC. Generally, the Supreme Court has upheld the constitutionality of
disclaimer and disclosure requirements against First Amendment challenges as substantially related to the governmental
interest of safeguarding the integrity of the electoral process by promoting transparency and accountability.
R45320
September 24, 2018
L. Paige Whitaker
Legislative Attorney
Campaign Finance Law: Analysis of Key Issues and Recent Developments
Congressional Research Service
Criminal Penalties
For knowing and willful violations of any provision of the Act, FECA sets forth criminal penalties, including specific
penalties for violations of the prohibition on contributions made through a conduit. In most instances, the U.S. Department of
Justice initiates the prosecution of criminal violations of FECA, but the law also provides tha t the FEC may refer an apparent
violation to the Justice Department for criminal prosecution under certain circumstances.
Campaign Finance Law: Analysis of Key Issues and Recent Developments
Congressional Research Service
Contents
Brief History of FECA .................................................................................................................... 1
Constitutional Framework ............................................................................................................... 2
Contribution Limits ......................................................................................................................... 4
Specific Limits .......................................................................................................................... 5
Constitutionality of Base and Aggregate Limits ................................................................. 7
Additional Restrictions on Contributions .................................................................................. 9
Ban on Contributions Made Through a Conduit ................................................................. 9
Ban on Conversion of Campaign Contributions for Personal Use ..................................... 9
Coordinated Communications Treated As Contributions ................................................. 10
Constitutionality of Other Contribution Limits ....................................................................... 12
Limits on Contributions to Candidates Whose Opponents Self-Finance .......................... 13
Limits on Contributions Made by Minors ........................................................................ 14
Limits on Contributions to Super PACs ............................................................................ 14
Constitutional Considerations for Legislation ......................................................................... 15
Source Restrictions ........................................................................................................................ 18
Ban on Corporate and Labor Union Contributions: PAC Required ........................................ 18
Corporate and Labor Union Independent Spending Limits Unconstitutional ......................... 19
Ban on Federal Contractor Contributions: “Pay-to-Play” Prohibition .................................... 21
Ban on Foreign National Contributions and Expenditures and Restrictions on Foreign
National Involvement in U.S. Campaigns ............................................................................ 22
Constitutional Considerations for Legislation ......................................................................... 24
Disclaimer and Disclosure Requirements...................................................................................... 25
Disclaimer ............................................................................................................................... 25
Disclaimer Requirements .................................................................................................. 25
Constitutionality of Disclaimer Requirements .................................................................. 26
Disclosure ................................................................................................................................ 26
Independent Expenditure Requirements ........................................................................... 27
Electioneering Communication Requirements ................................................................. 28
Constitutionality of Disclosure ......................................................................................... 29
Constitutional Considerations for Legislation ......................................................................... 31
Criminal Penalties ......................................................................................................................... 32
Tables
Table 1. Major Federal Contribution Limits, 2017-2018 ................................................................ 6
Contacts
Author Information ....................................................................................................................... 33
Campaign Finance Law: Analysis of Key Issues and Recent Developments
Congressional Research Service R45320 · VERSION 1 · NEW 1
ederal campaign finance law is composed of a complex set of limits, restrictions, and
requirements on money and other things of value that are spent or contributed in the
context of federal elections.1 While the Federal Election Campaign Act2 (FECA, or Act)
sets forth the statutory provisions governing this area of law, several Supreme Court and lower
court rulings also have had a significant impact on the Act’s regulatory scope.3
This report begins with a brief history of FECA and an overview of the constitutional framework
for evaluating campaign finance law. Next, organized by regulatory context, and integrating
governing court precedent, this report analyzes three primary areas of FECA regulation:
contribution limits; source restrictions; and disclaimer and disclosure requirements. In so doing,
the report examines topics of recent interest to Congress, including the permissible uses of
campaign funds; the scope of what constitutes a campaign contribution; the ban on foreign
nationals making contributions and expenditures in connection with U.S. elections; and the
restrictions on foreign nationals participating in campaigns.4 The report also outlines the criminal
penalties that may be imposed under the Act for violations of its provisions.
As the Supreme Court’s campaign finance jurisprudence informs the manner in which campaign
financing may be constitutionally regulated, the report assesses pivotal rulings that may be
instructive should Congress consider legislation in this area. In addition, the report examines
significant lower court rulings, including an appellate court decision that provides the legal
underpinning for the establishment of super PACs. Finally, the report analyzes two cases that
were recently appealed to the Supreme Court. Should the Court decide to review either case,
depending on its contours, the decision could potentially affect the constitutional bounds of future
campaign finance regulation.
Brief History of FECA
In 1971, Congress first enacted FECA, requiring, among other things, campaign finance reporting
by candidates and political committees.5 In response to the Watergate scandal, in 1974, Congress
substantially amended the Act, generally implementing limits on contributions and expenditures,
and creating the Federal Election Commission (FEC) to administer and provide civil enforcement
of FECA.6 As a result of a challenge to the constitutionality of the 1974 Amendments, the
Supreme Court issued its seminal Supreme Court ruling in Buckley v. Valeo, holding, among other
things, mandatory spending limits unconstitutional, and invalidating the original appointment
1 For a discussion of campaign finance policy, see CRS Report R41542, The State of Campaign Finance Policy: Recent
Developments and Issues for Congress, by R. Sam Garrett.
2 Codified, as amended, at 52 U.S.C. §§ 30101-30146. FECA was first enacted in 1971, and was amended in 1974,
1976, 1979, and most recently and significantly, in 2002 by the Bipartisan Campaign Reform Act (BCRA).
3 For further discussion of the Supreme Court’s campaign finance jurisprudence, see CRS Report R43719, Campaign
Finance: Constitutionality of Limits on Contributions and Expenditures, by L. Paige Whitaker.
4 See, e.g., Policy Response to Russian Interference in the 2016 U. S. Elections Before the S . Select Comm. on
Intelligence, 115th Cong., (June 20, 2018) available at https://www.intelligence.senate.gov/hearings/open-hearing-
policy-response-russian-interference-2016-u-s-electionsenate (last visited Sept. 6, 2018); The Modus Operandi and
Toolbox of Russia and Other Autocracies for Undermining Democracies Throughout the World Before the S. Comm.
on the Judiciary Subcommittee on Crime and Terrorism, 115th Cong., (March 15, 2017) available at
https://www.judiciary.senate.gov/meetings/the-modus-operandi-and-toolbox-of-russia-and-other-autocracies-for-
undermining-democracies-throughout-the-world (last visited Sept. 5, 2018).
5 See Federal Election Campaign Act of 1971, P.L. 92-225, 86 Stat. 3 (1971).
6 See Federal Election Campaign Act Amendments of 1974, P.L. 93-443, 88 Stat. 1263 (1974).
F
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structure of the FEC.7 Responding to the Court’s ruling, in 1976, Congress amended FECA in
order to, among other things, restructure the FEC and establish revised contribution limits,8 and
again in 1979, in order to revise certain reporting requirements.9
In 2002, Congress enacted the Bipartisan Campaign Reform Act (BCRA), which contains the
most recent, comprehensive amendments to FECA.10 Among other provisions, BCRA prohibited
corporate and labor union spending on certain advertisements run prior to elections, and restricted
the raising and spending of unregulated or “soft money” in federal elections.
Since 2003, a series of Supreme Court decisions has invalidated several BCRA provisions.11 In
addition, in 2010, the Court invalidated a long-standing prohibition on independent expenditures
funded from the treasuries of corporations and labor unions.12 Generally, the Court has overturned
such provisions as unconstitutional violations of First Amendment guarantees of free speech.13
Accordingly, the body of federal campaign finance law that remains was not originally enacted by
Congress as a comprehensive regulatory policy.
Constitutional Framework
In Buckley, the Supreme Court established the framework for evaluating the constitutionality of
campaign finance regulation. According to the Court, limits on campaign contributions—which
involve giving money to an entity—and expenditures—which involve spending money directly
for electoral advocacy—implicate rights of political expression and association under the First
Amendment.14 The Court, however, afforded different degrees of First Amendment protection and
levels of scrutiny to contributions and expenditures.
Contribution limits are subject to a more lenient standard of review than expenditures, the Court
held, because they impose only a marginal restriction on speech, and will be upheld if the
government can demonstrate that they are a “closely drawn” means of achieving a “sufficiently
important” governmental interest.15 Unlike expenditure limits, which reduce the amount of
expression, the Court opined, contribution limits involve “little direct restraint” on the speech of a
contributor.16 Although the Court acknowledged that a contribution limit restricts an aspect of a
contributor’s freedom of association, that is, his or her ability to support a candidate, nonetheless,
7 424 U.S. 1 (1976).
8 See Federal Election Campaign Act Amendments of 1976, P.L. 94-283, 90 Stat. 475 (1976).
9 See Federal Election Campaign Act Amendments of 1979, P.L. 96-187, 93 Stat. 1339 (1980).
10 Bipartisan Campaign Reform Act of 2002, P.L. 107-155, 116 Stat. 81 (2002) (codified at 52 U.S.C. §§ 30101-
30146). BCRA is also known as “McCain-Feingold,” in reference to the principal Senate sponsors of the legislation.
11 See, e.g., McConnell v. Fed. Election Comm’n, 540 U.S. 93, 231-32 (2003) (holding, inter alia, that a BCRA
provision prohibiting contributions by minors age 17 or younger violates the First Amendment); Davis v. Fed. Election
Comm’n, 554 U.S. 724, 740, 744 (2010) (holding that a BCRA provision establishing a series of staggered increases in
contribution limits for candidates whose opponents significantly self-finance their campaigns violates the First
Amendment); Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (holding, inter alia, that a BCRA
provision prohibiting corporate and labor union treasury funds for electioneering communications violates the First
Amendment). See discussion infra, “Contribution Limits,” “Source Restrictions.”
12 See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), discussed infra, pp. 19-21.
13 The First Amendment to the U.S. Constitution provides that “Congress shall make no law . . .abridging the freedom
of speech, or of the press.” U.S. Const. amend. I. This provision limits the government's power to restrict speech.
14 See Buckley, 424 U.S. at 23.
15 Id. at 25.
16 Id. at 21.
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the Court determined that a contribution limit still permits symbolic expressions of support, and
does not infringe on a contributor’s freedom to speak about candidates and issues.17 Reasonable
contribution limits, the Court announced, still permit people to engage in independent political
expression, associate by volunteering on campaigns, and assist candidates by making limited
contributions.18 Regarding whether a contribution limit is closely drawn, the Court reasoned that
it was relevant to examine the amount of the limit.19 Limits that are too low could significantly
impede a candidate or political committee from amassing the necessary resources for effective
communication.20 The Court concluded, however, that the FECA contribution limit at issue in
Buckley would not negatively affect campaign funding.21
On the other hand, the Buckley Court determined that because they impose a substantial restraint
on speech and association, expenditure limits are subject to strict scrutiny, requiring that they be
narrowly tailored to serve a compelling governmental interest.22 Specifically, under the First
Amendment, the Court determined, expenditure limits impose a restriction on the amount of
money that a candidate can spend on communications, thereby reducing the number and depth of
issues discussed and the size of the audience reached.23 Such restrictions, the Court determined,
are not justified by an overriding governmental interest. That is, because expenditures do not
involve money flowing directly to the benefit of a candidate’s campaign fund, the risk of quid pro
quo corruption does not exist.24 Essentially, quid pro quo corruption captures the notion of “a
direct exchange of an official act for money.”25 Further, the Court in Buckley rejected the
government’s asserted interest in equalizing the relative resources of candidates, and in reducing
the overall costs of campaigns.26 Upon a similar premise, the Court rejected the government’s
interest in limiting a wealthy candidate’s ability to draw upon personal wealth to finance his or
her campaign, and struck down a law limiting expenditures from personal funds. When a
candidate self-finances, the Court pointed out, his or her dependence on outside contributions is
reduced, thereby lessening the risk of corruption.27
Importantly, the Court’s most recent major campaign finance decision, McCutcheon v. Federal
Election Commission, announced that only quid pro quo corruption or its appearance constitute a
sufficiently important governmental interest to justify limits on contributions, as well as
expenditures.28 In McCutcheon, the Court reasoned it has consistently rejected campaign finance
regulation based on other governmental objectives, such as goals to “level the playing field,”
“level electoral opportunities,” or “equaliz[e] the financial resources of candidates.”29 While
acknowledging that the Court’s campaign finance jurisprudence has not always discussed the
17 See id. at 21, 24.
18 See id. at 28-29.
19 See id. at 21.
20 See id.
21 See id. (determining that there was no indication that the subject contribution limitations “would have any dramatic
adverse effect on the funding of campaigns and political associations”).
22 See id. at 23.
23 See id.
24 See id.
25 See McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 192 (2014).
26 See Buckley, 424 U.S. at 53.
27 See id.
28 See McCutcheon, 572 U.S. at 192.
29 Id. at 207.
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concept of corruption clearly and consistently, and that the line between quid pro quo corruption
and general influence may sometimes seem vague, the Court in McCutcheon said that efforts to
ameliorate “influence over or access to” elected officials or political parties do not constitute a
permissible governmental interest.30
Although the Supreme Court’s campaign finance jurisprudence has shifted over the years, as this
report illustrates, reviewing courts have applied the basic Buckley framework when evaluating
whether a campaign finance regulation violates the First Amendment. Therefore, in Buckley and
its progeny, with some exceptions, courts have generally upheld limits on contributions,
concluding that they serve the governmental interest of protecting elections from corruption,
while invalidating limits on independent expenditures, concluding that they do not pose a risk of
corruption.
Contribution Limits
As discussed, FECA sets forth limits and restrictions on campaign contributions in federal
elections. FECA broadly defines a “contribution” to include money or anything of value given for
the purpose of influencing an election for federal office.31 Specifically, FECA defines
contributions to include “any gift, subscription, loan, advance, or deposit of money or anything of
value” that is made “for the purpose of influencing any election for Federal office” or a payment
that is made for compensation of personal services that are rendered to a political committee free
of charge.32
As outlined above, FECA expressly defines contributions to include loans made to campaign
committees; however, the Act exempts from such definition loans that are made from banks, so
long as they are made in compliance with applicable law and “in the ordinary course of
business.”33 Further, the Act specifies that a bank loan to a campaign committee must be
evidenced by a written instrument, ensuring repayment on a date certain or in accordance with an
amortization schedule, and subject to the lending institution’s “usual and customary interest
rate.”34 However, in the case of other loans made to a campaign—for example, personal loans—
the outstanding balance is considered a campaign contribution.35 Therefore, the amount of an
unpaid loan, coupled with other contributions made by an individual to a given candidate or
committee, cannot exceed the applicable contribution limit.36 Once a loan is repaid in full, the
amount of the loan is no longer considered a contribution.37
The following sections of the report provide an overview of FECA’s limits and restrictions on
contributions, including a discussion of key constitutional rulings.
30 Id. at 208.
31 52 U.S.C. § 30101(8)(A).
32 Id. § 30101(8)(A)(i), (ii).
33 52 U.S.C. § 30101(8)(B)(vii).
34 Id. § 30101(8)(B)(vii)(II), (III).
35 11 C.F.R. § 100.52(b).
36 Id. § 100.52(b)(2).
37 Id.
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Specific Limits
FECA provides specific limits on how much individuals can contribute to a candidate, and these
limits are periodically adjusted for inflation in odd-numbered years.38 For example, in the 2017-
2018 federal election cycle, an individual can contribute up to $2,700, per election, to a
candidate.39
Table 1, below, outlines the major federal campaign contribution limits applicable to the 2017-
2018 cycle.
38 Id. § 30116(a).
39 See Fed. Election Comm’n, “Contribution Limits for 2017 -18 Federal Elections,” available at
https://transition.fec.gov/info/contriblimitschart1718.pdf (last visited Aug. 16, 2018).
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Table 1. Major Federal Contribution Limits, 2017-2018
(see table notes below for additional information)
Recipient
Contributor
Principal
Campaign
Committee
Multicandidate
Committee (most
PACs, including
leadership PACs)
National Party
Committee
(DSCC; NRCC, etc.)
State, District,
Local Party
Committee
Individual $2,700 per electiona $5,000 per year $33,900 per yeara
Additional $101,700 limit
for each special party
accountab
$10,000 per year
(combined limit)
Principal
Campaign
Committee
$2,000 per election $5,000 per year Unlimited transfers to
party committees
Unlimited
transfers to
party
committees
Multicandidate
Committee (most
PACs, including
leadership PACs)c
$5,000 per election $5,000 per year $15,000 per year
Additional $45,000 limit
for each special party
accountb
$5,000 per year
(combined limit)
State, District,
Local Party
Committee
$5,000 per election
(combined limit)
$5,000 per year
(combined limit)
Unlimited transfers to
party committees
Unlimited
transfers to
party
committees
National Party
Committee
$5,000 per election $5,000 per year Unlimited transfers to
party committees
Unlimited
transfers to
party
committees
Source: Table 1 in CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for
Congress, by R. Sam Garrett, adapted from Federal Election Commission, “Contribution Limits for 2017-2018
Federal Elections,” https://transition.fec.gov/info/contriblimitschart1718.pdf (last visited August 16, 2018).
Notes: The table assumes that leadership PACs would qualify for multicandidate status. The original source,
noted above, includes additional information and addresses non-multicandidate PACs (which are relatively rare).
The national party committee and the national party Senate committee (e.g., the DNC and DSCC, or RNC and
NRSC) share a combined 2017-2018 per-candidate limit of $47,400 per six-year cycle. This limit is adjusted
biennially for inflation.
a. These limits are adjusted biennially for inflation.
b. National party committees may accept these contributions for separate accounts for (1) presidential
nominating conventions; (2) recounts and other legal compliance activities; and (3) party buildings. For
additional discussion, see CRS Report R43825, Increased Campaign Contribution Limits in the FY2015 Omnibus
Appropriations Law: Frequently Asked Questions, by R. Sam Garrett.
c. Multicandidate committees are those that have been registered with the FEC (or, for Senate committees, the
Secretary of the Senate) for at least six months; have received federal contributions from more than 50
people; and (except for state parties) have made contributions to at least five federal candidates. See 11
C.F.R. § 100.5(e)(3). In practice, most PACs attain this status automatically over time.
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Constitutionality of Base and Aggregate Limits
In Buckley, the Court upheld the constitutionality of FECA40 base limits, which limit the amounts
of money an individual can contribute to a candidate, party, or political committee.41 In the years
since, the Court has applied the principles articulated in Buckley to uphold what it considers
reasonable contribution limits, while invalidating limits it determines are too low to allow a
candidate to amass necessary resources for effective campaigning. For example, in Nixon v.
Shrink Missouri Government PAC, the Court upheld a state law imposing limits on contributions
made to candidates running for state office.42 While observing that contribution limits must be
closely drawn to a sufficiently important interest, the Court announced that the amount of the
limitation “need not be ‘fine tuned.’”43 In contrast, in Randall v. Sorell, in a plurality opinion, the
Court invalidated a Vermont law that provided that individuals, parties, and political committees
were limited to contributing $400 to certain state candidates, per two-year election cycle, without
providing for inflation adjustment.44 While unable to reach consensus on a single opinion, six
Justices agreed that Vermont’s contribution limits violated First Amendment free-speech
guarantees. The plurality opinion written by Justice Breyer, joined by two other Justices,
determined that the contribution limits in Randall were substantially lower than limits the Court
had previously upheld, as well as limits in effect in other states, and that they were not narrowly
tailored.45 The opinion also concluded that the limits substantially restricted candidates,
particularly challengers, from being able to raise the funds necessary to run a competitive
campaign; impeded parties from getting their candidates elected; and deterred individual citizens
from volunteering on campaigns (because the law counted certain volunteer expenses toward a
volunteer’s individual contribution limit).46
In contrast to base contribution limits, FECA also provided for limits on the amount of money a
donor could contribute in total to all candidates, parties, and political committees, which is
referred to as aggregate contribution limits. In its most recent campaign finance decision,
McCutcheon, the Supreme Court held that aggregate contribution limits are unconstitutional
under the First Amendment.47 Characterizing them as an “outright ban” on further contributions
once the aggregate amount has been reached, the Court determined that they violate the First
40 FECA contribution limits are codified at 52 U.S.C. § 30116(a) and are adjusted biannually for inflation, 52 U.S.C. §
30116(c). In Buckley, the Supreme Court evaluated the constitutionality of certain provisions of federal campaign
finance law, including the Federal Election Campaign Act (FECA) of 1971, as amended in 1974. In sum, the FECA
provisions at issue included (1) a $1,000 contribution limit to any candidate by any individual; (2) a $25,000 limit on an
individual’s annual, aggregate contributions; (3) a $1,000 cap on a person’s or group’s independent expenditures
“relative to a clearly identified candidate”; (4) spending limits on various candidates for various federal offices; and (5)
spending limits on political parties’ national conventions.
41 424 U.S. 1 (1976).
42 528 U.S. 377 (2000).
43 Id. at 387-88 (quoting Buckley, 424 U.S. at 30, n. 3).
44 548 U.S. 230, 262 (2006).
45 See id. at 261.
46 See id. at 253, 259-60. The opinion agreed with the district court “that the Act’s contribution limits ‘would reduce the
voice of political parties’ in Vermont to a ‘whisper.’” Id. at 259 (quoting Landell v. Sorrell, 118 F. Supp. 2d 459, 487
(D. Vt. 2000)).
47 572 U.S. 185 (2014). For discussion of the policy impact of McCutcheon, see CRS Report R43334, Campaign
Contribution Limits: Selected Questions About McCutcheon and Policy Issues for Congress, by R. Sam Garrett.
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Amendment by infringing on political expression and association rights, without furthering the
governmental interest of preventing quid pro quo corruption or its appearance.48
In Buckley v. Valeo, the Court had upheld the constitutionality of a $25,000 federal aggregate
contribution limit then in effect,49 characterizing that limit as a “quite modest restraint” that
served to prevent circumvention of base limits.50 In other words, the Court determined that the
aggregate limits constrained an individual from, for example, contributing large amounts to a
particular candidate through “the use of unearmarked contributions to political committees likely
to contribute to that candidate.”51 In McCutcheon, however, the Court invalidated a BCRA
provision that imposed biennial limits on aggregate contributions, which were adjusted for
inflation each election cycle.52 For example, during the 2011-2012 election cycle, the Act
prohibited individuals from making contributions to candidates totaling more than $46,200, and
to parties and PACs (with the exception of “super PACs”) totaling more than $70,800.53 (The base
limits on contributions established by BCRA were not at issue in this case and remain in effect.)
As a threshold matter, the plurality opinion in McCutcheon determined that, regardless of whether
strict scrutiny or the “closely drawn” standard applies, the analysis requires the Court to “assess
the fit” between the government’s stated objective and the means to achieve it.54 Applying that
analysis to FECA’s aggregate contribution limits, the opinion observed a “substantial mismatch”
between the two, and concluded that even under the more lenient standard of review, the limits
could not be upheld.55 The plurality in McCutcheon concluded that Buckley’s holdings on
aggregate limits did not control56 because the Buckley Court had engaged in minimal analysis of
aggregate limits, and further, the limits at issue in McCutcheon established a different statutory
regime and operated under a distinct legal backdrop.57 The Court reasoned that, since Buckley,
Congress had enacted other statutory and regulatory safeguards against circumvention of base
limits.58 The opinion also outlined additional safeguards that Congress could enact to prevent
circumvention of base contribution limits, such as targeted restrictions on transfers among
candidates and political committees or enhanced restrictions on earmarking, but cautioned that
the opinion was not meant to evaluate the validity of any particular proposal.59 Further
distinguishing the holding in Buckley, the McCutcheon plurality emphasized that aggregate
contribution limits restrict how many candidates and committees an individual can support,60
48 Id. at 204.
49 Buckley v. Valeo, 424 U.S. at 38.
50 Id.
51 Id.
52 52 U.S.C. § 30116(a)(3).
53 Of that amount, no more than $46,200 could be contributed to state and local parties. In comparison, during the same
election cycle, individuals were subject to individual base limits of $2,500 per candidate, per election; $30,800 per year
to national parties; $10,000 per year to state, local and district party committees combined; and $5,000 per year to
PACs. Contributions to super PACs are not subject to limits. See infra at pp. 14-15.
54 See McCutcheon, 572 U.S at 199.
55 Id.
56 See id. at 200.
57 See id.
58 See id. at 200-01.
59 See id. at 221-23.
60 Id. Once an individual contributed $5,200 each to nine candidates, the aggregate limits were triggered and, as the
opinion calculates, the individual was then prohibited from making further contributions, up to the maximum permitted
by the base limits, to other candidates.
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which creates an “outright ban” on further contributions. This ban, the opinion concluded,
unconstitutionally restricts both free speech and association rights.
Importantly, it was in McCutcheon that the Court announced that the prevention of quid pro quo
corruption or its appearance is the only legitimate governmental interest for restricting campaign
contributions.61 According to the opinion, the spending of large sums of money in connection
with elections, but absent an effort to control how an officeholder exercises his or her official
duties, does not give rise to quid pro quo corruption.62 Although McCutcheon did not expressly
adopt a stricter standard of review for contribution limits, its announcement that only quid pro
quo corruption or its appearance serve as a compelling governmental interest may affect the
degree to which contribution limits are upheld in future rulings.
Additional Restrictions on Contributions
Ban on Contributions Made Through a Conduit
In addition to limiting the amount a donor may contribute to a campaign, FECA also places
certain restrictions on the types of contributions that a donor can make. For example, FECA
prohibits contributions made through a conduit—that is, by one person “in the name of another
person”—and bans candidates from knowingly accepting such contributions.63 This provision
serves to prevent an individual, who has already contributed the maximum amount to a given
candidate, from circumventing contribution limits by giving money to someone else to contribute
to that same candidate. Regulations the FEC promulgated under FECA further specify that a
corporation is prohibited from reimbursing employees for their campaign contributions through a
bonus, expense account, or other form of compensation.64 Notably, as discussed below in the
section of the report entitled “Criminal Penalties,” FECA provides for specific penalties for
knowing and willful violations of this provision.65
Ban on Conversion of Campaign Contributions for Personal Use
FECA also expressly prohibits a candidate from converting campaign funds for personal use.66
Specifically, the Act considers a contribution to be converted to personal use if it is used to fulfill
any commitment, obligation, or expense that would exist “irrespective” of the candidate’s
campaign or duties as a federal officeholder. Examples of such expenses include home mortgage,
rent, or utility payments; clothing purchases; non-campaign-related car expenses; country club
memberships; vacations; household food; tuition payments; admission to sporting events,
concerts, theater performances, or other entertainment not associated with a campaign; and health
club fees.67
61 See id. at 192 (citing Citizens United v. Fed. Election Comm’n, 558 U.S. at 359).
62 The Court explained that “[t]he hallmark of corruption is the financial quid pro quo: dollars for political favors.” Id.
at 192 (quoting Fed. Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. at 497).
63 52 U.S.C. § 30122.
64 11 C.F.R. §114.5(b)(1).
65 See infra p. 33.
66 52 U.S.C. § 30114(b).
67 52 U.S.C. § 30114(b)(2); 11 C.F.R. §113.1(g).
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Notably, in 2018, the FEC decided that a candidate may pay for child care expenses with
campaign funds if they are incurred as a direct result of campaign activity.68 According to the
FEC, applying the irrespective test, if child care expenses are incurred as a direct result of
campaign activity, “they would not exist irrespective” of the campaign.69
Coordinated Communications Treated As Contributions
FECA defines an “independent expenditure” to mean an expenditure by a person that expressly
advocates the election or defeat of a clearly identified candidate, and “is not made in concert or
cooperation with or at the request or suggestion of” the candidate or a party.70 In contrast, FECA
provides that a communication will be considered “coordinated” if it is made “in cooperation,
consultation or concert, with, or at the request or suggestion of” the candidate or a party.71 In
other words, if a communication—such as a political advertisement—is made in coordination
with a candidate or political party, it is treated as an in-kind contribution to the corresponding
candidate or party, or as a coordinated party expenditure, rather than as an independent
expenditure.72 Like other contributions, in-kind contributions and coordinated party expenditures
are subject to FECA limits and source restrictions, which are discussed in the next section of the
report.73
The regulatory line between coordinated communications and independent expenditures is based
on Supreme Court precedent. In various rulings, the Court has determined that the First
Amendment does not allow any limits on expenditures that are made independently of a candidate
or party because the money is deployed to advance a political point of view separate from a
candidate’s viewpoint. In other words, the Court has explained, without coordination or
“prearrangement” with a candidate, not only is the value of an expenditure decreased, but so is
“the danger that expenditures will be given as a quid pro quo for improper commitments from the
candidate.”74 Accordingly, the Court has reasoned that independent expenditures do not raise
heightened governmental interests in regulation.75 As the Court has emphasized, the
“constitutionally significant fact” of an independent expenditure is the absence of coordination
between the candidate and the source of the expenditure,76 and the independence of such spending
is easily distinguishable when it is made “without any candidate's approval (or wink or nod).”77
Hence, individuals, political parties, political action committees (PACs), super PACs, and other
68 Fed. Election Comm’n Advisory Opinion (AO) 2018-06.
69 Id. at 3.
70 52 U.S.C. § 30101(17).
71 Id. § 30116(a)(7)(B)(i),(ii).
72 11 C.F.R. § 109.21(b). This portion of the report contains a summary discussion of what constitutes coordination
under federal campaign finance law. For further information, consult the Federal Election Commission, FECA
regulations, and the Fed. Election Comm’n webpage, Coordinated Communications, available at
https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/coordinated-communications/ (last
visited Sept. 8, 2018). See also, CRS Report RS22644, Coordinated Party Expenditures in Federal Elections: An
Overview, by R. Sam Garrett and L. Paige Whitaker.
73 52 U.S.C. § 30116(a)(7)(B)(i),(ii).
74 Citizens United, 558 U.S. 310, 357 (2010) (citing Buckley, 424 U.S. at 47). See infra pp. 19-21.
75 See Buckley, 424 U.S. 1, 47 (1976); Fed. Election Comm’n v. Nat’l Conservative Political Action Comm. (NCPAC),
470 U.S. 480 (1985)); Colorado Republican Fed. Campaign Comm. v. Fed. Election Comm’n (Colorado I), 518 U.S.
604, 617 (1996).
76 See Colorado I, 518 U.S. at 617.
77 Fed. Election Comm’n v. Colorado Republican Fed. Campaign Comm. (Colorado II), 533 U.S. 431, 442 (2001).
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organizations can engage in unlimited independent expenditures. Furthermore, as a result of the
Court’s ruling in Citizens United v. Federal Election Commission, discussed further below,
corporations and labor unions have a constitutionally protected right to engage in unlimited
independent expenditures directly from their revenue funds or “general treasuries” and are not
required to establish a PAC in order to conduct such spending.78
As summarized below, regulations promulgated under FECA set forth specific criteria
establishing when a communication by an organization will be considered coordinated with a
candidate or a party and thereby treated as a contribution.79 Specifically, the regulations set forth a
three-prong test whereby if all prongs of the test are met—payment, content, and conduct—a
communication will be deemed coordinated:
Payment. In general, the regulations provide that the “payment” standard is met if the
communication is paid for, in whole or in part, by a person other than the candidate, a candidate
committee, or party.80
Content. The “content” standard addresses the subject and timing of a communication. The
content standard does not require that a communication contain express advocacy (i.e., expressly
advocating the election or defeat of a clearly identified candidate, using terms such as “vote for,”
“elect,” or “vote against”).81 Generally, the regulations provide that the content standard is met if
a communication is
an electioneering communication, which is defined to include a broadcast, cable,
or satellite communication that refers to a federal candidate, made within 60 days
of a general election or 30 days of a primary;82
a public communication that distributes or republishes, in whole or in part,
candidate campaign materials, with certain exceptions;
a public communication that expressly advocates election or defeat of a clearly
identified candidate or is the “functional equivalent of express advocacy”; or
a public communication that, in part, refers to a candidate or party and, for House
or Senate elections, is disseminated within 90 days before a primary or general
election or, for presidential and vice presidential elections, is disseminated within
120 days before a primary or nominating convention or caucus.83
Conduct. The “conduct” standard addresses interactions between the person paying for the
communication and the relevant candidate or party. Generally, the regulations specify that the
conduct standard is met if
the communication is created at the “request or suggestion of” a candidate or
party, or at the suggestion of the funder of the communication and the candidate
or party assents to the suggestion;
the candidate or party is “materially involved” in decisions regarding the
communication;
78 See Citizens United, 558 U.S. 310. See infra pp. 19-21.
79 11 C.F.R § 109.21.
80 Id. § 109.21(a).
81 11 C.F.R. § 109.21(c).
82 52 U.S.C. § 30104(f)(3)); 11 C.F.R. §100.29.
83 Id. §§ 109.21(c), 109.23.
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the communication is created after “substantial discussions” between the funder
of the communication and the candidate or party;
the funder of the communication employs a “common vendor” meeting certain
criteria to create the communication; or
a person who has previously been an employee or independent contractor of a
candidate or party during the previous 120 days uses or conveys certain
information to the funder of the communication.84
Exceptions or “Safe Harbors.” FECA regulations also set forth several “safe harbors”
exempting communications from being deemed coordinated. Below are a few examples,
summarized.
Endorsements and Solicitations. A public communication in which a federal
candidate endorses or solicits funds for another federal or nonfederal candidate is
not considered coordinated with respect to the endorsement or the solicitation,
unless the public communication “promotes, supports, attacks, or opposes” the
endorsing candidate or another candidate running for the same office.85
Firewalls. The “conduct” standards are not met if the commercial vendor, former
employee, or political committee established a firewall that meets certain
requirements, including a prohibition on the flow of information between
employees or consultants providing services for the funder of the
communication, and employees or consultants providing services to the candidate
or the candidate’s opponent or a party. The firewall must be described in a
written policy that is distributed to all relevant employees, consultants, and
clients.86
Publicly Available Information. If information material to the creation of a
communication was obtained from a publicly available source, the other
“conduct” standards are not met, unless the communication was made at the
“request or suggestion” of a candidate or party, or at the suggestion of the funder
of the communication and the candidate or party assents to the suggestion.87
Legislative Inquiries. If a candidate or party responds to an inquiry about its
position on a legislative or policy issue—but not including campaign plans,
projects, activities, or needs—the “conduct” standards are not met.88
Constitutionality of Other Contribution Limits
In addition to invalidating the BCRA provision setting forth aggregate contribution limits,
discussed above, the Supreme Court has also invalidated the BCRA provisions establishing limits
on contributions whose opponents significantly self-finance and the limits on contributions by
minors. Furthermore, in a ruling that provided the legal underpinning for the establishment of
super PACs, an appellate court has ruled that limits on contributions to groups that make only
independent expenditures are unconstitutional. The following sections of the report briefly
examine these rulings.
84 Id. § 109.21(d).
85 Id. § 109.21 (g).
86 Id. § 109.21(h).
87 Id. § 109.21(d).
88 Id. § 109.21(f).
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Limits on Contributions to Candidates Whose Opponents Self-Finance
In 2008, the Court held, in Davis v. Federal Election Commission, that a statute establishing a
series of staggered increases in contribution limits for candidates whose opponents significantly
self-finance their campaigns violates the First Amendment, because the penalty imposed on
expenditures of personal funds is not justified by the compelling governmental interest of
lessening corruption or its appearance.89 Enacted as part of BCRA, the invalidated provision of
law is known as the “Millionaire’s Amendment.”90 The Millionaire’s Amendment provided a
complex statutory formula (using limits that were in effect at the time the Court considered
Davis) requiring that if a candidate for the House of Representatives spent more than $350,000 of
personal funds during an election cycle, the individual contribution limits applicable to her
opponent were increased from the then-current limit ($2,300 per election) to up to triple that
amount (or $6,900 per election). Similarly, for Senate candidates, a separate provision generally
raised individual contribution limits for a candidate whose opponent exceeded a designated
threshold level of personal campaign funding that was based on the number of eligible voters in
the state.91 For both House and Senate candidates, the increased contribution limits were
eliminated when parity in spending was reached between the two candidates.
While acknowledging the long history of jurisprudence upholding the constitutionality of
individual contribution limits, the Court emphasized its definitive rejection of any limits on a
candidate’s expenditure of personal funds to finance campaign speech.92 The Court reasoned that
limits on a candidate’s right to advocate for his or her own election are not justified by the
compelling governmental interest of preventing corruption—instead, the use of personal funds
actually lessens a candidate’s reliance on outside contributions and thereby counteracts coercive
pressures and risks of abuse that contribution limits seek to avoid.93
Although conceding that the Millionaire’s Amendment did not directly impose a limit on a
candidate’s expenditure of personal funds, the Court concluded that it impermissibly required a
candidate to make a choice between the right of free political expression and being subjected to
discriminatory contribution limits, and created a fundraising advantage for his or her opponents.94
In contrast, if the law had simply increased the contribution limits for all candidates—both the
self-financed candidate as well as the opponent—the Court opined that it would have passed
constitutional muster.95 Intrinsically, candidates have different strengths based on factors such as
personal wealth, fundraising ability, celebrity status, or a well-known family name, and by
attempting to level electoral opportunities, the Court reasoned, Congress is deciding which
89 See Davis v. Fed. Election Comm’n, 555 U.S. at 740, 744 (2008).
90 P.L. 107-155, § 319(a), 116 Stat. 81 (2002) (codified at 52 U.S.C. § 30117(a)) (establishing increased contribution
limits for House candidates whose opponents significantly self-finance their campaigns).
91 Id. at § 304 (codified at 52 U.S.C. § 30116(i)) (establishing increased contribution limits for Senate candidates whose
opponents significantly self-finance their campaigns).
92 Davis, 554 U.S. at 738.
93 See id. In response to the FEC’s argument that the statute’s “asymmetrical limits” are justified because they level the
playing field for candidates of differing personal wealth, the Court explained that its campaign finance precedent offers
no support for this rationale serving as a compelling governmental interest. Id. at 741.
94 See id.
95 See id. at 737.
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candidate strengths should be allowed to affect an election.96 And using election law to influence
voters’ choices, the Court warned, is a “dangerous business.”97
Limits on Contributions Made by Minors
In 2003, in McConnell v. Federal Election Commission, by a unanimous vote, the Court
invalidated as unconstitutional under the First Amendment a BCRA provision98 prohibiting
individuals age 17 or younger from making contributions to candidates and political parties.99
Reasoning that minors enjoy First Amendment protection and that contribution limits impinge on
such rights, the Court determined that the prohibition was not closely drawn to serve a
sufficiently important government interest.100
In response to the government’s assertion that such a prohibition protects against corruption by
conduit—that is, parents donating through their minor children to circumvent contribution
limits—the Court saw little evidence to support the existence of this type of evasion.101
Furthermore, the Court postulated that such circumvention of contribution limits may be deterred
by the FECA provision prohibiting contributions in the name of another person, discussed above,
and the knowing acceptance of contributions made in the name of another person.102 Even
assuming that a sufficiently important interest could be provided in support of the prohibition, the
Court determined that the prohibition was overinclusive.103 While observing that various states
have adopted more tailored approaches to address this issue—for example, by counting
contributions by minors toward the total permitted for a parent or family unit, imposing a lower
cap on contributions by minors, and prohibiting contributions by very young children—the Court
expressly declined to decide whether any such alternatives would pass muster.104
Limits on Contributions to Super PACs
Providing the legal underpinning for the creation of super PACs, in 2010, the U.S. Court of
Appeals for the District of Columbia (D.C. Circuit) held that limits on contributions to groups
making only independent expenditures are unconstitutional.105 In view of the Supreme Court’s
decision in Citizens United106—decided only months before—holding that independent
expenditures do not give rise to corruption, the D.C. Circuit, in SpeechNow.org v. Federal
Election Commission, concluded that campaign contributions to groups making only independent
expenditures similarly do not give rise to corruption.107 Citizens United is discussed in greater
96 See id.
97 Id.
98 P.L. 107-155, § 318, (codified at 52 U.S.C. § 30126).
99 540 U.S. 93 (2003).
100 See id. at 231-32 (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511-513 (1969); Buckley, 424
U.S. at 20-22).
101 See id.
102 See id.
103 See id. at 232.
104 See id.
105 See SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010), cert. denied, Keating v. Fed.
Election Comm’n, 562 U.S. 1003 (2010).
106 See Citizens United, 558 U.S. at 310 (2010). See infra pp. 19-21.
107 See SpeechNow.org, 599 F.3d at 694-95.
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detail below, in the portion of the report discussing source restrictions applicable to corporations
and labor unions.
In Citizens United, the Court relied, in part, on its ruling in Buckley108 holding that expenditures
made “totally independently”—in other words, not coordinated with any candidate or party—do
not create a risk of corruption or its appearance, and therefore, cannot be constitutionally
limited.109 Accordingly, the D.C. Circuit in SpeechNow.org reasoned that the government does not
have an anticorruption interest in limiting contributions to groups that make only independent
expenditures. The SpeechNow.org court further concluded that FECA contribution limits are
unconstitutional as applied to such groups.110 Such groups have come to be known as super PACs
or Independent Expenditure-only Committees.111
Since SpeechNow was decided, the FEC has issued advisory opinions (AOs) providing guidance
regarding the establishment and administration of super PACs. For example, the FEC concluded
that a corporation that is exempt from tax under Section 501(c)(4) of the Internal Revenue Code
may establish and administer a political committee that makes only independent expenditures,
and may accept unlimited contributions from individuals.112 The FEC confirmed that such
committees may also accept unlimited contributions from corporations, labor unions, and political
committees, in addition to individuals.113 The FEC also determined that when fundraising for
super PACs, federal candidates, officeholders, and party officials are subject to FECA fundraising
restrictions.114 That is, they can solicit contributions only up to $5,000 from individuals and
federal PACs.
Constitutional Considerations for Legislation
Should Congress decide to enact legislation that further restricts campaign contributions, the
Supreme Court’s campaign finance jurisprudence provides guidance as to the constitutional
bounds reviewing courts may apply to such limits. As discussed above, the Court has expressly
held several provisions of FECA unconstitutional:
individual, party, and political committee contribution limits that the Court deemed to
be unreasonably low;115
108 424 U.S. 1 (1976).
109 Id. at 47. (“Unlike contributions, such independent expenditures may well provide little assistance to the candidate’s
campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure
with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the
danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”).
110 See SpeechNow.org, 599 F.3d at 694-96. See also, Carey v. Fed. Election Comm’n, 791 F. Supp. 2d 121 (D.D.C.
2011) (enjoining the FEC from enforcing contribution limits against a nonconnected PAC —i.e., a PAC unaffiliated
with a corporation or union—for its independent expenditures, as long as the PAC maintained a bank account for its
unlimited contributions separate from its account subject to limits; proportionally paid related administrative costs; and
complied with the applicable monetary limits of hard money contributions).
111 For further discussion, see CRS Report R42042, Super PACs in Federal Elections: Overview and Issues for
Congress, by R. Sam Garrett.
112 Fed. Election Comm’n AO 2010-09.
113 Fed. Election Comm’n AO 2010-11.
114 Fed. Election Comm’n AO 2011-12.
115 See Randall, 548 U.S. at 262 (invalidating a Vermont law that included a limit of $400 on individual, party, and
political committee contributions to certain state candidates, per two-year election cycle, without providing for inflation
adjustment). See supra p. 7.
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limits on how much money a donor may contribute in total to all candidates, parties,
and political committees (i.e., “aggregate limits”);116
a series of staggered increases in contribution limits applicable to candidates whose
opponents significantly self-finance their campaigns;117 and
a prohibition on campaign contributions by minors age 17 or younger.118
More broadly, and perhaps most instructive for Congress in evaluating further legislative options,
the Court has stated unequivocally, in McCutcheon, that the only legitimate justification for
limiting campaign contributions is avoiding quid pro quo candidate corruption or its
appearance.119 Hence, the Court has signaled that the likelihood of contribution limits being
upheld increases to the degree that Congress can demonstrate that the limits are narrowly tailored
to serve this governmental interest. In contrast, while acknowledging that Congress may seek to
accomplish other “well intentioned” policy goals—such as lessening influence over or access to
elected officials, decreasing the costs of campaigns, and equalizing financial resources among
candidates—the Court has announced that such interests will not serve to justify contribution
limits.120 As the Court reiterated in McCutcheon, when enacting laws that limit speech, the
government bears the burden of proving the constitutionality of such restrictions.121
As discussed in earlier sections of this report, traditionally, the Court has subjected contribution
limits to less rigorous scrutiny under the First Amendment than expenditure limits, and therefore,
with some significant exceptions, the Court has generally upheld such limits.122 Some
commentators have argued that the Supreme Court in McCutcheon may have signaled a
willingness in future cases to evaluate contribution limits under a stricter standard of review than
it has in the past.123 Should the Court decide to apply a stricter level of scrutiny to contribution
limits in future cases, legislation providing for enhanced contribution limits would be less likely
to survive constitutional challenges. Furthermore, a stricter standard of review could likewise
result in successful challenges to existing contribution limits, including the limits on individual
contributions to candidates and parties.
Looking ahead, there are at least two cases recently appealed to the Supreme Court which, should
the Court review, could potentially shed light on the constitutional bounds of contribution limits
and provide Congress with guidance for evaluating legislative options. By a 2-to-1 vote, in Lair v.
Motl, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) upheld a Montana law124
116 See McCutcheon, 572 U.S. at 218 (invalidating FECA’s aggregate contribution limits). See supra p. 9.
117 See Davis, 554 U.S. at 740 (invalidating FECA’s limits on contributions to candidates whose opponents
significantly self-finance). See supra pp. 13-14.
118 See McConnell, 540 U.S. at 232. See supra p. 14.
119 See McCutcheon, 572 U.S. at 192 (citing Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 359 (2010)).
120 Id. at 207-08.
121 See McCutcheon, 572 U.S. at 210 (citing U.S. v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000)).
122 See supra pp. 2-3.
123 See Richard Briffault, The Uncertain Future of the Corporate Contribution Ban, 49 VAL. U. L. REV. 397, 398
(2015) (stating that McCutcheon “subtly ratcheted up the Court’s standard of review of contribution restrictions”);
Robert Yablon, Campaign Finance Reform Without Law, 103 IOWA L. REV. 185, 201 (2017) (characterizing the
Supreme Court in McCutcheon as “nudg[ing] the governing standard in the direction of strict scrutiny”). See also James
Bopp, Jr., Randy Elf, and Anita Y. Milanovich, Symposium: Money In Politics: The Good, the Bad, and the Ugly:
Article and Speech: Contribution Limits After McCutcheon v. FEC, 49 VAL. U.L. REV. 361, 389 (2015) (maintaining
that “[b]ecause of McCutcheon, key circuit court decisions that previously upheld limits on direct contributions to
candidates are no longer legally sound”).
124 MONT. CODE ANN. § 13-37-216.
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establishing limits for how much individuals, political action committees, and parties could
contribute to state candidates. The Ninth Circuit held that the limits were justified by and
adequately tailored to the government’s interest in avoiding quid pro quo corruption or its
appearance.125 According to the Ninth Circuit, the state had sufficiently demonstrated a risk of
actual or perceived quid pro quo corruption in Montana politics, including indications of attempts
to exchange campaign contributions for legislative action.126 On appeal, the petitioners argue,
among other things, that the Ninth Circuit decision conflicts with Supreme Court precedent
requiring that a state provide evidence of quid pro quo corruption or its appearance and that
showing a mere “risk” of such corruption is insufficient.127 Interpreting the Supreme Court’s 2016
ruling in McDonnell v. U.S.—a case arising in the context of federal public corruption law rather
than campaign finance law—to define quid pro quo corruption as “1) a quid (things of value
given to an official); 2) a pro (the unambiguous agreement connecting the quid to the quo); and 3)
a quo (an official act),” the petitioners argue that Montana could not demonstrate such
evidence.”128 If the Court decides to review Lair, its ruling could clarify the extent to which the
government is required to present evidence of quid pro quo corruption in order to justify
contribution limits.129
Likewise, in Zimmerman v. City of Austin,130 a unanimous three-judge panel of the U.S. Court of
Appeals for the Fifth Circuit (Fifth Circuit) affirmed a lower court ruling that, among other
things, upheld a base campaign contribution limit applicable to mayor and city council candidates
of $300 per contributor, per election, adjusted annually for inflation, which was $350 at the time
the suit was filed.131 Relying on Supreme Court precedent establishing that contribution limits are
subject to “less searching scrutiny” than expenditure limits, the Fifth Circuit upheld the
contribution limit, determining that the City of Austin had shown “a sufficiently important
interest in preventing either actual corruption or its appearance.”132 Among other evidence, the
Fifth Circuit concluded that the government had demonstrated that prior to the enactment of the
limits, the citizenry perceived that large campaign contributions had a corrupting impact, thereby
transforming the city government into a “pay-to-play system.”133 On appeal, the petitioner argues,
among other things, that the City of Austin has not demonstrated a sufficient government interest
for the contribution limit because a $350 limit is so “severe” that it belies perception that it was
targeted to the threat of corruption and that furthermore, testimony at trial failed to evidence that
125 873 F.3d 1170, 1172 (9th Cir. 2017), reh'g en banc denied, 889 F.3d 571 (9th Cir. 2018).
126 See id. at 1183 (holding that “Montana's limits are reasonably keyed to the actual evidence showing a risk of
corruption in Montana” and observing that a state legislator “suggested a political action committee could obtain
political favors from an entire block of legislators through contributions totaling just $8,000.”).
127 Lair v. Motl, petition for cert. filed (U.S. July 2018) (No. 18-149) at 15, available at
https://www.supremecourt.gov/DocketPDF/18/18-
149/55981/20180731100706801_Lair%20Cert%20Petition%20Final.pdf (arguing that the Ninth Circuit applied a legal
standard established by the Supreme Court prior to, but rejected by Citizens United and McCutcheon, upholding the
Montana contribution limits absent the requisite evidence of actual or apparent quid pro quo corruption).
128 Id. at 17 (citing McDonnell v. U.S., 136 S. Ct. 2355, 2372).
129 See, e.g., Richard L. Hasen, Brett Kavanaugh May Soon Unshackle All Rich Political Donors, SLATE (Sept. 3,
2018), https://slate.com/news-and-politics/2018/09/brett-kavanaughs-supreme-court-tenure-could-mean-the-end-of-all-
campaign-finance-limits.html (characterizing the petitioners in Lair as “build[ing] upon Chief Justice Roberts’
McCutcheon decision to argue for a standard that would lead courts to strike down virtually all contribution limits.”)
130 881 F.3d 378 (5th Cir. 2018), reh'g en banc denied, 888 F.3d 163 (5th Cir. 2018).
131 AUSTIN, TEX. CODE, Art. III, § 8(A)(1).
132 Zimmerman, 881 F.3d at 386.
133 Id.
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any actual quid pro quo had occurred.134A ruling by the Court in Zimmerman, depending on its
contours, could clarify the extent of the burden on Congress to prove that any limits it may enact
serve the governmental interest of avoiding quid pro quo corruption or its appearance.
Source Restrictions
In addition to limits on how much a donor may contribute to a campaign, federal campaign
finance law contains several bans—referred to as “source restrictions”—on who may make
campaign contributions. The following sections of the report discuss key aspects of source
restrictions, beginning with the ban on campaign contributions by corporations and labor unions
and the Supreme Court’s invalidation of limits on corporate and union independent spending on
campaigns. Next, the report discusses the bans on campaign contributions by federal contractors
and on contributions and expenditures by foreign nationals. Finally, the report assesses key
Supreme Court holdings that may be instructive in evaluating the constitutionality of policy
options, should Congress consider legislation regarding the sources of campaign contributions.
Ban on Corporate and Labor Union Contributions: PAC Required
FECA prohibits corporations and labor unions from making campaign contributions from their
own funds or “general treasuries.”135 Candidates, however, are permitted to accept contributions
from separate segregated funds or PACs that a corporation or labor union establishes for the
purpose of making contributions.136 Although the Supreme Court in 2010, in Citizens United,
discussed below, invalidated the federal ban prohibiting corporations from funding independent
expenditures out of their general treasuries, Citizens United did not appear to affect the ban on
corporate contributions to candidates and parties.137
Providing the most recent precedent on this restriction, in 2003, in Federal Election Commission
v. Beaumont, the Court upheld the constitutionality of the prohibition on corporations making
direct campaign contributions from their general treasuries in connection with federal elections.138
According to the Court, its jurisprudence on campaign finance regulation—in addition to
providing that limits on contributions are more clearly justified under the First Amendment than
limits on expenditures—respects the judgment that the corporate structure requires careful
regulation to counter the “misuse of corporate advantages.”139 The Court observed that large,
unlimited contributions can threaten “political integrity,” necessitating restrictions in order to
counter corruption.140
134 Zimmerman v. City of Austin, petition for cert. filed (U.S. July 17, 2018) (No. 18-93) at 11-12, available at
https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/18-93.html.
135 52 U.S.C. § 30118(a).
136 52 U.S.C. § 30118(b)(2)(C).
137 558 U.S. 310 (2010). For further discussion of Citizens United, see CRS Report R43719, Campaign Finance:
Constitutionality of Limits on Contributions and Expenditures, by L. Paige Whitaker, at 12-15.
138 See Fed. Election Comm’n v. Beaumont, 539 U.S. 146 (2003).
139 Id. at 155.
140 Id.
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Corporate and Labor Union Independent Spending Limits
Unconstitutional
In the 2010 landmark decision of Citizens United v. Federal Election Commission, the Supreme
Court invalidated two FECA prohibitions on independent electoral spending by corporations and
labor unions.141 The Court invalidated, first, the long-standing prohibition on corporations and
unions using their general treasury funds for independent expenditures,142 and second, a 2002
BCRA prohibition on the use of such funds for electioneering communications.143 As a result of
Citizens United, corporations and labor unions144 are permitted to use their general treasury funds
to make independent expenditures and electioneering communications, and are not required to
establish a PAC for such spending. Independent expenditures and electioneering communications
are protected speech, the Court announced—regardless of whether the speaker is a corporation—
and merely permitting a corporation to engage in independent electoral speech through a PAC
does not allow the corporation to speak directly nor does it alleviate the First Amendment burden
created by such limits.145
Prior to its decision in Citizens United, in 1978, the Court in First National Bank of Boston v.
Bellotti146 had reaffirmed that the government cannot restrict political speech because the speaker
is a corporation. On the other hand, its 1990 decision of Austin v. Michigan Chamber of
Commerce147 had permitted a restriction on such speech in order to avoid corporations having
disproportionate economic power in elections. In Bellotti, the Court struck down a state law
prohibiting corporate independent expenditures related to referenda. In contrast, the Court in
Austin upheld a state law prohibiting, and imposing criminal penalties on, corporate independent
expenditures that supported or opposed any candidate for state office.
According to the Court in Citizens United, in order to “bypass Buckley and Bellotti,” the Court in
Austin had identified a new governmental interest justifying limits on political speech, the
“antidistortion interest.”148 In Citizens United, the Court rejected the antidistortion rationale it had
relied upon in Austin. Independent expenditures, the Court announced, including those made by
corporations, do not cause corruption or the appearance of corruption.149 The Austin precedent,
according to the Court, “interferes with the ‘open marketplace’ of ideas protected by the First
Amendment” by permitting the speech of millions of associations of citizens—many of them
141 558 U.S. 310 (2010). See also, Am. Tradition P’ship. v. Bullock, 567 U.S. 516 (2014) (rejecting arguments
attempting to distinguish a state law from the federal law invalidated by Citizens United, reiterating that “political
speech does not lose First Amendment protection simply because its source is a corporation.”).
142 Codified at 52 U.S.C. § 30118(a).
143 Codified at 52 U.S.C. § 30118(b)(2)).
144 Although the issue before the Court was limited to the application of the prohibition on independent expenditures
and electioneering communications to Citizens United, a corporation, the reasoning of the opinion also appears likely to
apply to labor unions. (“The text and purpose of the First Amendment point in the same direction: Congress may not
prohibit political speech, even if the speaker is a corporation or union.”) Citizens United, 558 U.S. at 376.
145 See id. at 337.
146 435 U.S. 765 (1978).
147 494 U.S. 652 (1990).
148 Citizens United, 558 U.S. at 348 (determining that “the corrosive and distorting” impact of large amounts of money
that were acquired with the benefit of the corporate form, but were unrelated to the public’s support for the
corporation’s political views, constituted a sufficiently compelling governmental interest to justify such a restriction).
149 See id. at 357.
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small corporations without large aggregations of wealth—to be banned.150 Notably, the Court also
concluded that supporting the ban on corporate expenditures would have the “dangerous” and
“unacceptable” result of permitting Congress to ban the political speech of media corporations.151
In sum, the Supreme Court in Citizens United overruled its holding in Austin and the portion of
its decision in McConnell upholding the facial validity of a BCRA prohibition on electioneering
communications, finding that the McConnell Court had relied on Austin.152
In Citizens United, in addition to the ban on corporations and labor unions making independent
expenditures using their general treasury funds for independent expenditures, the Court also
struck down the ban on the use of such funds for electioneering communications. Notably, the
Supreme Court, in a 2007 decision, FEC v. Wisconsin Right to Life, Inc. (WRTL),153 had narrowed
the definition of an electioneering communication in order to mitigate concerns that the law could
prohibit First Amendment protected issue speech, known as issue advocacy. In WRTL, the Court
interpreted the term to encompass only express advocacy154 (for example, communications stating
“vote for” or “vote against”) or the “functional equivalent” of express advocacy. That is, the
Court advised that communications that could reasonably be interpreted as something other than
an appeal to vote for or against a specific candidate should not be considered electioneering
communications. Despite the limiting principle imposed by WRTL, the Court in Citizens United
observed that both prohibitions were a “ban on speech” in violation of the First Amendment.155 In
comparison to the prohibitions at issue in Citizens United, which include criminal penalties, the
Court pointed out that it has invalidated even less-restrictive laws under the First Amendment,
such as laws requiring permits and impounding royalties.156
Also of note, the statute prohibiting corporate expenditures contained an exception that permitted
corporations to use their treasury funds to establish, administer, and solicit contributions to a PAC
in order to make expenditures.157 The Court, however, rejected the argument that permitting a
150 Id. at 354.
151 Id. at 351.
152 See id. at 365-66. Referencing Justice Scalia’s concurrence in WRTL, the Court agreed with the conclusion that
“Austin was a significant departure from ancient First Amendment principles,” and held “that stare decisis does not
compel the continued acceptance of Austin.” Id. at 319 (quoting WRTL, 551 U.S. at 449 (Scalia, J., concurring in part
and concurring in judgment)).
153 551 U.S. 449 (2007). WRTL was decided four years after the Supreme Court upheld the electioneering
communication prohibition against a First Amendment facial challenge in McConnell v. Fed. Election Comm’n, 540
U.S. 93 (2003). While not expressly overruling McConnell, the Court in WRTL limited the prohibition’s application.
154 In Buckley, the Supreme Court provided the genesis for the concept of issue and express advocacy communications.
In order to avoid invalidation of a provision of FECA on grounds of unconstitutional vagueness, the Court applied a
limiting construction so that the provision applied only to noncandidate “expenditures for communications that in
express terms advocate the election or defeat of a clearly identified candidate for federal office” (i.e., express
advocacy). In a footnote, the Court explained that this limiting construction would restrict the application of the
provision to communications containing express advocacy terms, such as “vote for,” “elect,” “support,” “cast your
ballot for,” “Smith for Congress,” “vote against,” “defeat,” and “reject.” Buckley, 424 U.S. at 44, n.52.
155 Citizens United, 558 U.S. at 339.
156 See id. at 337. According to the Court, the following actions would constitute a felony under the law: the Sierra Club
running an ad within 60 days of a general election exhorting the public to disapprove of a Congressman who supports
logging in national forests; the National Rifle Association publishing a book urging the public to vote for the challenger
to an incumbent U.S. Senator who supports a handgun ban; and the American Civil Liberties Union creating a website
telling the public to vote for a presidential candidate because of the candidate’s defense of free speech. Such
prohibitions, the Court concluded, “are classic examples of censorship.” Id.
157 52 U.S.C. § 30118(b)(2)(c). The law also permits a corporation to establish a PAC in order to make contribution s.
As a result of Citizens United, corporations are currently only required to use PAC funds to make contributions, not
expenditures.
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corporation to establish a PAC mitigated the complete ban on speech that the law imposed on the
corporation itself, explaining that as corporations and PACs are separate associations, allowing a
PAC to speak does not translate into allowing a corporation to speak.158 Enumerating the
“onerous” and “expensive” reporting requirements associated with PAC administration, the Court
announced that even if a PAC could permit a corporation to speak, “the option to form a PAC
does not alleviate the First Amendment problems” with the law.159 Further, the Court announced
that such administrative requirements may even prevent a corporation from having enough time
to create a PAC in order to communicate its views in a given campaign.160
Ban on Federal Contractor Contributions: “Pay-to-Play” Prohibition
Another type of source restriction—known as a “pay-to-play” prohibition—bans federal office
candidates from accepting or soliciting contributions from federal government contractors.161
Pay-to-play laws generally serve to restrict officials from conditioning government contracts or
benefits on political support in the form of campaign contributions to the controlling political
party or public officials. “Pay-to-play” can be viewed as a more subtle form of political
corruption because it may involve anticipatory action, and potential future benefits, as opposed to
any explicit, current quid pro quo agreement. This FECA prohibition applies at any time between
the earlier of the commencement of contract negotiations or when the requests for proposals are
sent out, and the termination of negotiations or completion of contract162 performance, whichever
is later.163 FECA regulations further specify that the ban on contractor contributions applies to the
assets of a partnership that is a federal contractor, but permits individual partners to make
contributions from personal assets.164 The ban also applies to the assets of individuals and sole
proprietors who are federal contractors, which include their business, personal, or other funds
under their control, although the spouses of individuals and sole proprietors who are federal
contractors and their employees are permitted to make contributions from their personal funds.165
As with corporate direct or “treasury fund” contributions, FECA provides an exception to the ban
on government contractor contributions, permitting candidates to accept contributions from PACs
that are established and administered by corporations or labor unions contracting with the
government.166
In 2015, a unanimous en banc U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) upheld
the ban on campaign contributions by federal government contractors, limiting the application of
its ruling to the ban on contractors making contributions to candidates, parties, and traditional
PACs that make contributions to candidates and parties.167 The 11-judge court held that the law
comported with both the First Amendment and the equal protection component of the Fifth
158 See Citizens United, 558 U.S. at 337.
159 Id.
160 See id. at 339.
161 52 U.S.C. § 30119(a).
162 The term contract includes “[a] sole source, negotiated, or advertised procurement.” 11 C.F.R. §115.1(c)(1).
163 11 C.F.R. § 115.1(b).
164 Id. § 115.4.
165 Id. § 115.5.
166 52 U.S.C. § 30119(b).
167 See Wagner v. Fed. Election Comm’n, 793 F.3d 1 (D.C. Cir. 2015), cert. denied sub nom. Miller v. Fed. Election
Comm’n, 136 S. Ct. 895 (2016).
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Amendment.168 According to the D.C. Circuit, the federal ban serves “sufficiently important”
government interests by guarding against quid pro quo corruption and its appearance, and
protecting merit-based administration.169 Further, the court held that the ban is closely drawn to
the government’s interests because it does not restrict contractors from engaging in other types of
political engagement, including fundraising or campaigning.170 The number of convictions for
pay-to-play infractions, dating back to when the ban was first enacted in 1940,171 justifies its
continued existence, according to the D.C. Circuit, because the risk of quid pro quo corruption
and its appearance has not dissipated. According to the D.C. Circuit, this suggests that if the ban
were no longer in effect, “more money in exchange for contracts would flow through the same
channels already on display.”172 In 2016, the Supreme Court declined to hear an appeal of the
ruling.173
Ban on Foreign National Contributions and Expenditures and
Restrictions on Foreign National Involvement in U.S. Campaigns
FECA generally prohibits foreign nationals from donating or spending money in connection with
any U.S. election.174 For the purposes of this prohibition, a foreign national is defined to include a
foreign government, a foreign political party, and a foreign citizen, excepting those holding dual
U.S. citizenship and those admitted as lawful permanent residents of the United States (i.e.,
“green card” holders).175 Specifically, the law prohibits foreign nationals from “directly or
indirectly” making a contribution or donation of money “or other thing of value” in connection
with any U.S. election, or making a promise to do so, either expressly or implied; or a
168 See id. at 32-33.
169 Id. at 21-26. Since its landmark decision in Buckley, the Court has afforded contributions and expenditures different
degrees of First Amendment protection. Under Buckley, contribution limits will be upheld if the government can
demonstrate that they are a “closely drawn” means of achieving a “sufficiently important” governmental interest. This
is the test the D.C. Circuit applied in Wagner.
170 See id. at 25.
171 Congress originally adopted the prohibition in 1940 amendments to the Hatch Act, P.L. 76-753, § 5(a), 54 Stat. 772
(1940). See also federal contracting requirements and regulations that generally stress competitive selection of vendors
and attempt to protect the federal procurement and contracting process from political or partisan influences. For
example, when using “simplified acquisition procedures,” contract officers are instructed to “obtain supplies and
services from the source whose offer is the most advantageous to the Government,” 48 C.F.R. § 13.104; when using
sealed bidding, the contract is to be made with a “responsible bidder whose bid . . . will be most advantageous to the
Government, considering only price and the price-related factors,” Id.§ 14.408-1(a)); and when using contracting by
negotiation “cost or price” plays a “dominant role” in source selection, but other “tradeoff” factors, such as “the risk of
unsuccessful contract performance,” may properly be weighed to determine “the best inte rest of the Government” in a
contract, Id. §§ 15.101, 15.101-1, 15.101-2, 15.304. Contracts may not be awarded on the basis of personal or political
favoritism, and all potential contractors should be treated “with complete impartiality and with preferenti al treatment
for none,” Id. §§ 1.102-2(c)(3), 3.101-1. General ethical standards in the executive branch similarly note that an
executive official is to “act impartially and not give preferential treatment to any private organization or individual.”
Exec. Order No. 12,647, 5 C.F.R. § 2635.101(b)(8) (1989).
172 See Wagner, 793 F.3d at 18. (“More recent evidence confirms that human nature has not changed since corrupt quid
pro quos and other attacks on merit-based administration first spurred the development of the present legislative
scheme. Of course, we would not expect to find—and we cannot demand—continuing evidence of large-scale quid pro
quo corruption or coercion involving federal contractor contributions because such contributions have been banned
since 1940.”). Id. at 14.
173 See Miller v. Fed. Election Comm’n, 136 S. Ct. 895 (2016).
174 52 U.S.C. § 30121(a).
175 Id. § 30121(b)(2).
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contribution or donation to a political party.176 Furthermore, as with other coordinated
expenditures, this ban on contributions would include any communication that a foreign national
makes in coordination with a candidate’s campaign or political party, which would be treated as
an in-kind contribution.177 In addition, FECA expressly prohibits a candidate from soliciting,
accepting, or receiving contributions from foreign nationals.178
The Act further prohibits foreign nationals from making expenditures; independent expenditures;
or disbursements for electioneering communications.179 FECA regulations specify that it is
unlawful to knowingly provide “substantial assistance” in the solicitation, making, acceptance, or
receipt of a prohibited contribution or donation, or in the making of a prohibited expenditure,
independent expenditure, or disbursement.180 Further, the regulations define “knowingly” to
require that a person “have actual knowledge” that the source of the funds solicited, accepted, or
received is a foreign national; have awareness “of facts that would lead a reasonable person to
conclude that there is a substantial probability” that the source of the funds is a foreign national;
or awareness “of facts that would lead a reasonable person to inquire” whether the source of the
funds is a foreign national, but fail to conduct a reasonable inquiry.181
In addition, FECA regulations further specify that foreign nationals are prohibited from directing
or participating in the decisionmaking process of entities involved in U.S. elections, including
decisions regarding the making of contributions, donations, expenditures, or disbursements in
connection with any U.S. election or decisions concerning the administration of a political
committee.182 In a series of advisory opinions, the FEC has provided specific guidance for
compliance with the restrictions on foreign nationals. For example, the FEC has determined that a
U.S. corporation that is a subsidiary of a foreign corporation may establish a PAC that makes
contributions to federal candidates as long as the foreign parent does not finance any
contributions either directly or through a subsidiary, and no foreign national participates in PAC
operations and decisionmaking, including regarding campaign contributions.183
In 2012, the Supreme Court summarily affirmed a three-judge federal district court panel ruling
that upheld the constitutionality of the prohibition on foreign nationals making campaign
contributions and independent expenditures.184 In Bluman v. Federal Election Commission, a
federal district court held that for the purposes of First Amendment analysis, the United States has
a compelling interest in limiting foreign citizen participation in American democratic self-
government, thereby preventing foreign influence over the U.S. political process.185 A key
element of a national political community, the court observed, is that “foreign citizens do not
have a constitutional right to participate in, and thus may be excluded from, activities of
176 Id. § 30121(a)(2).
177 See supra pp. 10-12.
178 52 U.S.C. § 30121(a)(1)(C).
179 Id. § 30121.
180 11 C.F.R. § 110.20(h).
181 Id. § 110.20(a)(4).
182 Id. § 110.20(i).
183 See Fed. Election Comm’n AOs 2009-14; 2006-15; 2000-17; 1995-15; 1992-16; 1990-08; and 1985-03.
184 See Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281 (D.D.C. 2011), summ. aff’d, 565 U.S. 1104 (2012).
185 Id. at 288. The court in Bluman did not ultimately decide which type of scrutiny to apply because the statute in
dispute involves both the First Amendment and national security, as well as limits on both contributions and
expenditures. Therefore, the court assumed for the sake of argument that it should apply a “strict scrutiny” analysis
(which requires that a statute be narrowly tailored to serve a compelling governmental interest), and found that the
prohibition at issue passed muster even under that level of scrutiny. Id. at 285.
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democratic self-government.”186 Similar to the Court’s decision in WRTL, discussed above, the
district court in Bluman interpreted the ban on independent expenditures to apply only to foreign
nationals engaging in express advocacy and not issue advocacy.187 In other words, under the
court’s interpretation, foreign nationals remain free to engage in “speaking out about issues or
spending money to advocate their views about issues.”188 As to the parameters of express
advocacy, the district court defined the term as an expenditure for “express campaign speech” or
its “functional equivalent,” meaning that it “is susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candidate.”189
Constitutional Considerations for Legislation
As discussed above in the section on contribution limits, some commentators have argued that the
Supreme Court in 2014 in McCutcheon may have signaled a willingness in future cases to
evaluate contribution limits under a stricter standard of review than it has in the past.190 If this
were to occur, it seems likely that a court could hold the ban on corporate contributions, and any
related legislative proposals, unconstitutional. Moreover, one commentator has argued that, in
Citizens United, the Court rejected the rationale behind the leading precedent upholding the ban
on corporate contributions in Beaumont, thereby raising the prospect that in a future case, the
Court could have another basis for overturning the ban on corporate contributions.191 That is, in
reaching its holding in Beaumont, the Court seemed to rely on the fact that in view of state-
conferred advantages—including limited liability, perpetual life, and favorable treatment of the
accumulation and distribution of assets—corporations can accumulate and deploy wealth in a
manner that provides them with an unfair advantage in the political marketplace.192 In Citizens
United, however, the Court rejected a similar argument in invalidating the prohibition on
corporations engaging in independent spending.193
On the other hand, as discussed above, the district court’s ruling in Bluman, which the Supreme
Court affirmed in 2012, seems to suggest that legislation to enhance the current ban on foreign
nationals donating or spending money in connection with U.S. elections, so long as its scope was
limited to the regulation of express advocacy or its functional equivalent, might withstand a First
Amendment challenge to the extent that Congress could demonstrate that the restriction furthered
the compelling governmental interest in preventing foreign influence over the U.S. political
process. As Bluman upheld the ban on foreign nationals only to the extent that it applied to
express advocacy or its functional equivalent, legislation that broadly regulates issue advocacy
186 Id.
187 See id. at 290.
188 Id. at 290.
189 Id. at 284-85 (citing WRTL, 551 U.S. at 456, 469-70).
190 See infra p. 16.
191 See Richard Briffault, The Uncertain Future of the Corporate Contribution Ban, 49 VAL. U. L. REV. 397, 424
(2015) (arguing that Citizens United “completely disavowed” the rationale behind the Court’s ruling in Beaumont
determining that corporations present a particular threat to the integrity of politics and campaigns, thereby jeopardizing
the constitutionality of the ban on corporate contributions).
192 See Beaumont, 539 U.S. at 154.
193 See Citizens United, 558 U.S. at 314 (“It is irrelevant for First Amendment purposes that corporate funds may have
little or no correlation to the public’s support for the corporation’s political ideas. All speakers, including individuals
and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment
protects the resulting speech.” (internal citations and quotations omitted)).
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may be constitutionally vulnerable.194 As one commentator has cautioned, should Congress enact
a statute that broadly prohibits issue advocacy by foreign nationals, including the type of
communications that Russians are accused of making during the 2016 election, “such a statute
would likely run into First Amendment resistance.”195
Disclaimer and Disclosure Requirements
FECA sets forth both disclaimer and disclosure requirements. The term disclaimer generally
refers to statements of attribution that appear directly on a campaign-related communication, and
the term disclosure generally refers to requirements for periodic reporting to the FEC, which are
made available for public inspection. The following sections of the report provide an overview of
FECA disclaimer and disclosure requirements, relevant Supreme Court rulings, and a discussion
of constitutional considerations for legislation, should Congress decide to enact legislation to
enhance or modify such requirements.
Disclaimer
Disclaimer Requirements
Although FECA does not contain the term “disclaimer,” the Act specifies the content of
attribution statements to be included in certain communications, which are known as disclaimer
requirements.196 FECA requires that any public political advertising financed by a political
committee—including candidate committees—include disclaimers.197 In addition, regardless of
the financing source, FECA requires a disclaimer on all public communications that expressly
advocate for the election or defeat of a clearly identified candidate; electioneering
communications;198 and all public communications that solicit contributions.199
For radio and television advertisements by candidate committees, FECA generally requires that
the communication state who paid for the ad, along with an audio statement by the candidate
identifying the candidate and stating that the candidate “has approved” the message.200 In the case
of television ads, the candidate statement is required to be conveyed by an unobscured, full-
screen view of the candidate making the statement, or if the candidate message is conveyed by
voice-over, accompanied by a clearly identifiable image of the candidate, along with a written
message of attribution at the end of the communication.201
Generally, for non-candidate-authorized communications—including ads financed by outside
groups, corporations, and labor unions—FECA likewise requires a disclaimer to clearly state the
name and permanent street address, telephone number, or website address of the person who paid
194 See Bluman, 800 F. Supp. 2d at 284-85 (citing WRTL, 551 U.S. at 456, 469-70).
195 Richard L. Hasen, Essay: Cheap Speech and What It Has Done (To American Democracy), 16 FIRST AMEND. L.
REV. 200, 218 (2017).
196 See Fed. Election Comm’n webpage, Advertising and disclaimers, available at https://www.fec.gov/help-candidates-
and-committees/making-disbursements/advertising/ (last visited Sept. 9, 2018).
197 52 U.S.C. § 30120.
198 Id. § 30104(f)(3).
199 Id. § 30120(a).
200 Id. § 30120(a)(1),(d)(1).
201 Id. § 30120(d)(1).
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for the communication and state that the communication was not authorized by any candidate or
candidate committee.202 In radio and television advertisements, such disclaimers are required to
include in a clearly spoken manner the following audio statement: “________ is responsible for
the content of this advertising,” with the blank to be filled in with the name of the entity paying
for the ad. In addition, in television advertisements, the statement is required to be conveyed by
an unobscured, full-screen view of a representative of the entity paying for the ad, in a voice-
over, along with a written message of attribution at the end of the communication.
Constitutionality of Disclaimer Requirements
In McConnell, by an 8-to-1 vote, the Supreme Court in 2003 upheld the facial validity of the
disclaimer requirements in FECA, as amended by BCRA.203 Specifically, the Court determined
that FECA’s disclaimer requirement “bears a sufficient relationship to the important
governmental interest of ‘shedding the light of publicity on campaign financing.”204 Similarly, in
Citizens United, by an 8-to-1 vote, the Court in 2010 upheld the disclaimer requirement in BCRA
as applied to a movie that an organization produced regarding a presidential candidate and the
broadcast advertisements it planned to run promoting the movie.205 According to the Court, while
they may burden the ability to speak, disclaimer and disclosure requirements “impose no ceiling
on campaign-related activities,” and “do not prevent anyone from speaking.”206 According to the
Court, the disclaimer requirements in BCRA “provid[e] the electorate with information,” and
“insure that the voters are fully informed” about who is speaking.207 Moreover, they facilitate the
ability of a listener or viewer to judge more effectively the arguments they are hearing, and at a
minimum, according to the Court, they clarify that an ad was not financed by a candidate or
party.208
Disclosure
Under FECA, political committees—including candidate committees and super PACs—must
register with the FEC and comply with disclosure requirements.209 Political committees are
required to file periodic reports that disclose the total amount of all contributions they receive,
and the identity, address, occupation, and employer of any person who contributes more than
$200 during a calendar year.210 In addition, entities other than political committees—such as labor
unions and corporations, including incorporated tax-exempt Section 501(c)(4) organizations—
making independent expenditures or electioneering communications have generally been required
to disclose information to the FEC, including the identity of certain donors over specific dollar
thresholds.211 These requirements have been the subject of litigation, as discussed below. The
202 Id. § 30120(a)(3).
203 See McConnell, 540 U.S. at 230-31.
204 Id. at 231.
205 See Citizens United, 558 U.S. at 367.
206 Id. at 366.
207 Id. at 368.
208 See id.
209 52 U.S.C. § 30103.
210 52 U.S.C. § 30104.
211 FECA requires any “person” making independent expenditures to file disclosure reports, and defines “person” to
include an individual, partnership, committee, association, corporation, labor organization, or any other organization or
group of persons, but does not include the federal government. 52 U.S.C. §§ 30104(c)(1), 30101(11).
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FEC is required to make these reports publicly available on the internet within 48 hours of receipt
or within 24 hours if the report is filed electronically. The FEC is also required to make the
reports available for public inspection in their offices.212
Independent Expenditure Requirements
Generally, FECA requires organizations making independent expenditures that aggregate more
than $250 in a calendar year to disclose (1) whether an independent expenditure supports or
opposes a candidate, (2) whether it was made independently of a campaign, and (3) the identity of
each person who contributed more than $200 to the organization specifically “for the purpose of
furthering an independent expenditure.”213 FECA requires organizations to file these reports
quarterly.214 Up to 20 days before an election, an organization must file a report each time it
spends at least $10,000 on independent expenditures relating to the same election, within 48
hours of incurring the cost of the expenditure. Less than 20 days before an election, an
organization must file a report each time it spends at least $1,000 on independent expenditures
relating to the same election, within 24 hours of incurring the cost of the expenditure.215 FECA
regulations require organizations that spend or have reason to expect to spend more than $50,000
on independent expenditures to file reports electronically.216
Until a recent court ruling discussed below, the donor disclosure regulation promulgated under
the Act generally applied only to those donors who contributed money specifically “for the
purpose of furthering the reported independent expenditure.”217 As a result, unless a donation to
an organization was made specifically for the purpose of funding a particular independent
expenditure, the FEC has not required an organization to disclose the donor’s identity. This
“purpose requirement” for donor disclosure, however, has been challenged in court. In August
2018, in Citizens for Responsibility and Ethics in Washington (CREW) v. Federal Election
Commission, a federal district court invalidated the regulation, holding that it requires
significantly less disclosure than the statute mandates.218 As a result, unless successfully appealed,
this ruling will require groups making independent expenditures to disclose more of their donors
than was required under the invalidated regulation. The court stayed its order for 45 days, until
September 17, in order to provide the FEC with time to issue interim regulations that comport
with the underlying FECA disclosure requirement, but as of the date of this report, the FEC has
not issued interim regulations. On September 18, the Supreme Court denied a request for a stay of
the district court ruling, leaving the lower court’s decision intact, unless it is successfully
appealed.219
212 52 U.S.C. § 30104(a)(11).
213 52 U.S.C. § 30104(c).
214 52 U.S.C. § 30104(a)(4).
215 52 U.S.C. § 30104(a)(4); 11 C.F.R. § 109.10.
216 52 U.S.C. § 30104(a)(11)(A); 11 C.F.R. § 104.18(a).
217 11 C.F.R. § 109.10(e(1)(vi).
218 See CREW v. Fed. Election Comm’n, 2018 U.S. Dist. LEXIS 130774, *127 -29 (Aug. 3, 2018) (invalidating 11
C.F.R. § 109.10(e)(1)(vi), promulgated under 52 U.S.C. § 30104(c), under the first step of the Chevron analysis, which
inquires whether Congress has directly addressed the question at issue and if congressional intent is clear, requiring the
agency to effect that intent) (citing Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984); SAS Inst. v. Iancu, 138 S. Ct.
1348, 1358 (2018); Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018)).
219 See Crossroads Grassroots Policy Strategies v. CREW, stay denied, No. 18A274, (U.S. Sept. 18, 2018).
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Electioneering Communication Requirements
With regard to electioneering communications, FECA requires organizations220 making
disbursements aggregating over $10,000 during a calendar year to disclose certain information,
including the identity and principal place of business of the corporation making the disbursement,
the amount of each disbursement over $200, and the names of candidates identified in the
communication.221 Additionally, FECA requires the organization to disclose its donors who
contributed at least $1,000. The statute also provides an option for an organization seeking to
avoid disclosure of all its donors. If an organization establishes a separate bank account,
consisting only of donations from U.S. citizens and legal resident aliens made directly to the
account for electioneering communications, then the organization is required to disclose only
those donors who contributed at least $1,000 to the account.222 Generally, FECA requires that
organizations file electioneering communication reports by the first date in a calendar year that an
organization makes a disbursement aggregating more than $10,000 for the direct costs of
producing or airing an electioneering communication. In addition, FECA requires an organization
to file a report each time it makes such disbursements aggregating more than $10,000 since the
last filing.223
Similar to the exception contained within the disclosure regulation for independent expenditures,
an FEC regulation provides an exception to the donor disclosure requirement for electioneering
communications. The regulation permits organizations making disbursements for electioneering
communications to disclose only the identity of each person who made a donation of at least
$1,000 specifically “for the purpose of furthering” electioneering communications.224 This
regulation—specifically, the purpose requirement contained in the regulation—has been the topic
of ongoing litigation. Most recently, in 2016, a three-judge panel of the D.C. Circuit upheld the
regulation, determining, among other things, that the exception contained in the regulation
protects the First Amendment.225 In 2016, the D.C. Circuit denied an appeal for an en banc
rehearing of the case.226
220 Specifically, FECA requires any “person” making a disbursement for an electioneering communication to
independent expenditures to file disclosure reports, and defines “person” to include an individual, partnership,
committee, association, corporation, labor organization, or any other organization or group of persons, but does not
include the federal government. 52 U.S.C. §§ 30104(f)(1), 30101(11).
221 52 U.S.C. § 30104(f).
222 52 U.S.C. § 30104(f)(2)(E),(F).
223 52 U.S.C. § 30104(f)(4); 11 C.F.R. §104.20.
224 11 C.F.R. §104.20(c)(9). The FEC promulgated this regulation in response to the Supreme Court’s ruling in Fed.
Election Comm’n v. Wisc. Right to Life, Inc (WRTL), 441 U.S. 449 (2007), and prior to its ruling in Citizens United v.
Fed. Election Comm’n, 558 U.S. 310 (2010). For further discussion of these decisions, see CRS Report R43719,
Campaign Finance: Constitutionality of Limits on Contributions and Expenditures, by L. Paige Whitaker at pp. 12-15.
225 See Van Hollen v. Fed. Election Comm’n, 811 F. 3d. 486, 495, 501 (D.C. Cir. 2016) reh'g en banc denied 2016 U.S.
App. LEXIS 17528 (D.C. Cir. 2016) (holding that the lower court erred in concluding that the regulation—requiring
that corporations and labor organizations disclose only those donations made for the purpose of furthering
electioneering communications—failed both at Chevron “Step Two” and the arbitrary and capricious stages because the
“purpose requirement” in the regulation comported with the text, history, and purposes of the underlying statute, 52
U.S.C.S. § 30104(f), and that in promulgating the regulation, the FEC exercised its discretion to protect the First
Amendment.); (“By affixing a purpose requirement to BCRA’s disclosure provision, the FEC exercised its unique
prerogative to safeguard the First Amendment when implementing its congressional directives.”) Id. at 501.
226 See Van Hollen v. Fed. Election Comm’n, 2016 U.S. App. LEXIS 17528 (D.C. Cir. 2016).
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Constitutionality of Disclosure
In Buckley227—and, more recently, in McConnell,228 Citizens United,229 Doe v. Reed,230 and a
summary affirmance in Independence Institute v. Federal Election Commission231—the Court has
generally affirmed the constitutionality of disclosure requirements. While acknowledging that
compelled disclosure can infringe on the right to privacy of association and belief as guaranteed
under the First Amendment, the Court has identified overriding governmental interests—such as
safeguarding the integrity of the electoral process by promoting transparency and
accountability—that outweigh such infringement. In addition, as discussed below, the Court
appears to have consistently determined that the First Amendment does not require limiting
disclosure requirements to speech that is the functional equivalent of express advocacy.
In Buckley, the Court identified three governmental interests justifying FECA disclosure
requirements.232 First, the Court determined, disclosure provides the electorate with information
as to the source of campaign money, how it is spent, and “the interests to which a candidate is
most likely to be responsive”—in other words, an informational interest.233 Second, the Court
stated that disclosure serves to deter corruption and its appearance by uncovering large
contributions and expenditures “to the light of publicity,” observing that voters with information
regarding a candidate’s highest donors are better able to detect “post-election special favors” by
an officeholder in exchange for the contributions.234 Third, the Court identified disclosure
requirements as an essential method of detecting violations to refer to law enforcement.235 In
upholding the constitutionality of FECA’s donor disclosure requirements for independent
expenditures, the Court determined that so long as they encompass only funds used for express
advocacy communications, the requirement is constitutional.236 Such donor disclosure “increases
the fund of information” regarding who supports a given candidate, and that informational
interest can be equally strong for independent spending as it is for spending that is coordinated
with a candidate or party.237
The Court in McConnell rejected a facial challenge to the enhanced disclosure requirements set
forth in BCRA.238 According to McConnell, the Court in Buckley distinguished between express
advocacy and issue advocacy for the purposes of statutory construction, not constitutional
command, and therefore, the First Amendment did not require creating “a rigid barrier” between
227 424 U.S. 1 (1976).
228 540 U.S. 93 (2003).
229 558 U.S. 310 (2010).
230 561 U.S. 186 (2010).
231 137 S. Ct. 1204 (2017).
232 See Buckley, 424 U.S. at 66-68.
233 Id. at 66-67.
234 Id. at 67.
235 See id. at 66-68.
236 See id. at 79-80. (“[W]hen the maker of the expenditure is … an individual other than a candidate or a group other
than a ‘political committee,’ the relation of the information sought to the purposes of the Act may be too remote. To
insure that the reach … is not impermissibly broad, we construe ‘expenditure’ … to reach only funds used for
communications that expressly advocate the election or defeat of a clearly identified candidate. This reading is directed
precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.”).
237 Id. at 81.
238 See McConnell, 540 U.S. at 201-02.
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the two in this case.239 In other words, the Court determined, because electioneering
communications are intended to influence an election, the absence of “magic words” of express
advocacy do not obviate the government’s interest in requiring disclosure of such ads in order to
combat corruption or its appearance.240 Furthermore, as in Buckley, the McConnell Court held
that disclosure requirements in BCRA serve the “important state interests” of providing voters
with information, deterring corruption and avoiding its appearance, and assisting with
enforcement of the law.241
Expanding on its holding in Buckley, in Citizens United, the Court upheld FECA’s disclosure
requirements for electioneering communications as applied to a political movie and broadcast
advertisements promoting the movie.242 Citing Buckley, the Court determined that while they may
burden the ability to speak, disclosure requirements “impose no ceiling on campaign-related
activities,” and “do not prevent anyone from speaking.”243 Accordingly, the Court evaluated the
requirements under a standard of “exacting scrutiny,” a less-rigorous standard than the “strict
scrutiny” standard the Court has used to evaluate restrictions on campaign spending.244 Exacting
scrutiny requires a “substantial relation” between the disclosure requirement and a “sufficiently
important” government interest.245 Notably, in Citizens United, the Court expressly rejected the
argument that the scope of FECA’s disclosure requirements for electioneering communications
must be limited to speech that is express advocacy, or the “functional equivalent of express
advocacy.”246 In support of its determination, the Court pointed out that in Buckley and other
cases, it has simultaneously struck down limits on certain types of speech—such as independent
expenditure communications—while upholding disclosure requirements for the same type of
speech.247 In response to the argument that disclosure requirements could deter donations to an
organization because donors may fear retaliation once their identity becomes known, the Court
stated that such requirements would be unconstitutional as applied to an organization where there
was a reasonable probability that its donors would be subject to threats, harassment, or
reprisals.248
Similarly, in a case upholding the constitutionality of a Washington State public records law, Doe
v. Reed, the Court relied on and underscored its holdings in Buckley and Citizens United
regarding compelled disclosure.249 The Washington statute requires that all public records—
including signatures on referendum petitions—be made available for public inspection and
239 Id. at 193.
240 Id. at 193-94.
241 Id. at 196.
242 See Citizens United, 558 U.S. at 366-371.
243 Id. at 366 (quoting Buckley, 424 U.S. at 64).
244 See id. at 366-67.
245 Id.
246 Id. at 369-370 (rejecting the contention that because the Court in WRTL, discussed supra at p. 20, had construed the
FECA prohibition on corporate and labor union funded electioneering communications to reach only the functional
equivalent of express advocacy, that the First Amendment similarly required a limited application of the FECA
disclosure requirements for electioneering communications).
247 See id. at 367. The Court noted that in McConnell, three Justices who would have struck down the FECA ban on
corporate independent expenditures nonetheless voted to uphold its disclosure and disclaimer requirements. See id.
(citing McConnell, 540 U.S. at 321 (opinion of Kennedy, J., joined by Rehnquist, C. J., and Scalia, J.). The Court also
noted that it has upheld the constitutionality of lobbyist registration and disclosure requirements even though a ban on
lobbying would be unconstitutional. See id. (citing U.S. v. Harriss, 347 U.S. 612, 625 (1954)).
248 See id. at 370; NAACP v. Alabama, 357 U.S. 449, 462-63 (1958).
249 See Doe v. Reed, 561 U.S. 186 (2010).
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copying.250 Categorizing the Washington statute as a disclosure law and therefore “not a
prohibition of speech,” the Court evaluated its constitutionality under the First Amendment using
the standard of exacting scrutiny.251 The Court upheld the law as substantially related to the
governmental interest of safeguarding the integrity of the electoral process, and announced that
public disclosure “promotes transparency and accountability in the electoral process to an extent
other measures cannot.”252 Regarding the argument that the disclosure law would subject petition
signatories to threats, harassment, and reprisals, the Court concluded that there was insufficient
evidence to support the assertion.253
In 2017, in Independence Institute v. Federal Election Commission, the Supreme Court
summarily affirmed a three-judge federal district court ruling upholding the constitutionality of
FECA’s disclosure requirements for electioneering communications.254 In this case, the
challengers of the law argued, among other things, that an ad they sought to run was
constitutionally protected issue advocacy and therefore was exempt from disclosure
requirements.255 Rejecting this argument, the district court observed that the Supreme Court has
twice upheld the constitutionality of the FECA disclosure requirements for electioneering
communications, first in McConnell, and once again in Citizens United, where the Court
expressly held that the First Amendment does not require limiting disclosure requirements to
speech that is the functional equivalent of express advocacy.256 According to the district court,
“the First Amendment is not so tight-fisted as to permit large-donor disclosure only when the
speaker invokes magic words of explicit endorsement.”257
Constitutional Considerations for Legislation
Should Congress consider legislation to increase FECA’s disclaimer and disclosure requirements,
the Supreme Court’s relevant case law informs the constitutional bounds of such legislation.
Regarding disclaimer requirements, as discussed above, the Court has upheld the constitutionality
of current disclaimer requirements in FECA, by an 8-to-1 vote in 2003 in McConnell,258 and
again by an 8-to-1 vote in 2010 in Citizens United.259 In upholding the current requirements, the
Court has emphasized how disclaimers provide critical information about the source of
advertisements so that the electorate can more effectively judge the arguments they hear.260
Hence, the Court has signaled that should Congress enact additional disclaimer requirements,
such requirements are likely to be upheld to the extent they further the informational interests of
the electorate.261 On the other hand, the Court in Citizens United emphasized and appeared to rely
250 See id. at 192.
251 Id. at 196.
252 Id. at 199.
253 See id. at 201.
254 See Indep. Inst. v. Fed. Election Comm’n, 216 F. Supp. 3d 176 (D.D.C. 2016), summ. aff’d, Indep. Inst. v. Fed.
Election Comm’n, 137 S. Ct. 1204 (2017).
255 See id. at 185.
256 See id. at 185-186.
257 Id. at 189.
258 See McConnell, 540 U.S. at 230-31.
259 See Citizens United, 558 U.S. at 366-371.
260 See id. at 367.
261 See, e.g., Daniel I. Weiner and Benjamin T. Brickner, Electoral Integrity in Campaign Finance Law, 20 N.Y.U. J.
Legis. & Pub. Pol’y 101, 105-106 (2017) (arguing that only disclaimer and disclosure requirements “have escaped the
new majority’s narrow corruption paradigm,” but maintaining that even under Citizens United, in addition to providing
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upon the fact that the disclaimer requirements being evaluated in that case did not prevent anyone
from speaking.262 Therefore, should a disclaimer requirement be so burdensome that it impedes
the ability of a candidate or group to speak—for example, a requirement that a disclaimer
comprise an unreasonable period of time in an ad—it could be invalidated as a violation of the
guarantees of free speech under the First Amendment.
Similarly, regarding disclosure requirements, as discussed above, the Court has generally upheld
their constitutionality, determining that they serve the governmental interests of providing voters
with information, deterring corruption and avoiding its appearance, and facilitating enforcement
of the law.263 Should Congress decide to consider legislation providing for enhanced disclosure
requirements, it is notable that the Court in Citizens United expressly held that the First
Amendment does not require limiting disclosure requirements to speech that is the functional
equivalent of express advocacy. Therefore, it appears that a court would likely uphold legislation
providing for increased disclosure of funding sources for communications containing express
advocacy, as well as issue advocacy, to the extent that such regulation can be shown to further
the governmental interests identified by the Court.
Criminal Penalties
In addition to a series of civil penalties,264 FECA sets forth criminal penalties for knowing and
willful violations of the Act.265 This section of the report outlines the criminal penalties applicable
to persons who violate the Act.
Generally, FECA provides that any person who knowingly and willfully commits a violation of
any provision of the Act that involves the making, receiving, or reporting of any contribution,
donation, or expenditure of $25,000 or more per calendar year shall be fined under Title 18 of the
U.S. Code, or imprisoned for not more than five years, or both.266 If the amount involved is
$2,000 or more per calendar year, but is less than $25,000, the Act provides for a fine under Title
18, or imprisonment for not more than one year, or both.267
Notably, FECA provides specific penalties for knowing and willful violations of the prohibition
on contributions made by one person “in the name of another person,”268 discussed above in the
section of the report entitled “Ban on Contributions Made Through a Conduit.”269 In addition to
the possibility of fines being imposed, for violations involving amounts over $10,000 but less
than $25,000, violators could be subject to imprisonment for not more than two years, and for
violations involving amounts over $25,000, imprisonment for not more than five years.270
voters with information, disclaimers serve to avoid corruption).
262 See Citizens United, 558 U.S. at 366.
263 But see Deborah G. Johnson et al., Symposium: Privacy, Democracy, and Elections: Campaign Disclosure, Privacy
and Transparency, 19 WM. & MARY BILL OF RTS. J. 959, 971-72 (2011) (cautioning that in the digital age, campaign
finance disclosure requirements create heightened privacy interests because data is manipulated and selectively posted).
264 52 U.S.C. § 30109(a). For further discussion, see CRS Report R44319, The Federal Election Commission:
Enforcement Process and Selected Issues for Congress, by R. Sam Garrett.
265 Id. § 30109(d).
266 Id. § 30109(d)(1)(A)(i).
267 Id. § 30109(d)(1)(A)(ii).
268 Id. § 30122.
269 See supra p. 9.
270 52 U.S.C. § 30109(d)(1)(D).
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In most instances, the U.S. Department of Justice initiates the prosecution of criminal violations
of FECA, but the law also provides that the FEC may refer an apparent violation to the Justice
Department for criminal prosecution under certain circumstances.271 Specifically, if the FEC, by
an affirmative vote of four, determines that there is probable cause to believe that a knowing and
willful violation of FECA involving a contribution or expenditure aggregating over $2,000 during
a calendar year, or a knowing and willful violation of the Presidential Election Campaign Fund
Act272 or the Presidential Primary Matching Payment Account Act273 has or is about to occur, the
FEC may refer the parent violation to the U.S. Attorney General.274 In such instances, the FEC is
not required to attempt to correct or prevent such violation.275
Author Information
L. Paige Whitaker
Legislative Attorney
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
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copy or otherwise use copyrighted material.
271 According to a 2015 media report, since 2008, the FEC has referred no campaign finance enforcement cases to the
Department of Justice for criminal prosecution, and prior to that, such referrals were infrequent. See Kenneth P. Doyle,
FEC Rarely Votes to Refer Criminal Cases to Justice, Bloomberg BNA Daily Report for Executives (July 29, 2015),
http://www.bna.com/fec-rarely-votes-n17179934048.
272 Codified at 26 U.S.C. § 9001 et seq.
273 Codified at 26 U.S.C. § 9031 et seq.
274 52 U.S.C. § 30109(a))(5)(C).
275 Id.