II. CAMPAIGN FINANCE CRIMES
Campaign finance laws seek to regulate the influence of money on the political
process by placing limitations on who may contribute, how much may be contrib-
uted, and how contributions may be used.
Many of these laws are found in the
Federal Election Campaign Act of 1971 (“FECA”),
as amended by the Bipartisan
Campaign Reform Act of 2002 (“BCRA”).
Several subsequent judicial decisions
have brought campaign finance regulation under these statutes into the national
This section will introduce the background of both FECA and BCRA
before reviewing free speech challenges to each.
1. History of the Federal Election Campaign Act
Campaign finance regulation began in the United States over a century ago with
the Tillman Act of 1907,
which was followed by the Federal Corrupt Practices
Act of 1925
and the Taft-Hartley Act of 1947.
Over the subsequent decades,
the Supreme Court decided several high-profile campaign finance cases regarding
the influence of unions.
In 1971, Congress enacted the Federal Election
McConnell v. FEC, 540 U.S. 93
, 115 (2003) (describing the Bipartisan Campaign Reform Act as
legislation “designed to purge national politics of what [is] conceived to be the pernicious influence of ‘big
money’ campaign contributions” (quoting United States v. Auto. Workers, 352 U.S. 567
, 572 (1957) (internal
quotation marks omitted))), overruled in part by Citizens United v. FEC, 558 U.S. 310 (2010); DOJ ELECTION
PROSECUTION MANUAL, supra note 1, at 122.
6. Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 (1972) (codified at 52 U.S.C. §§
7. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codified at 52 U.S.C. §§
30125–30145). This law is also known as “McCain-Feingold,” named for the principal senators who sponsored
the legislation. See, e.g., Seth Gitell, Making Sense of McCain-Feingold and Campaign-Finance Reform, THE
ATLANTIC (July/Aug. 2003), https://www.theatlantic.com/magazine/archive/2003/07/making-sense-of-mccain-
8. See, e.g.
, McCutcheon v. FEC, 572 U.S. 185
, 227 (2014) (invalidating federal limit on aggregate campaign
contributions an individual can give to all candidates during a two-year cycle); Am. Tradition P’ship v. Bullock,
567 U.S. 516
, 516–17 (2012) (overturning a Montana ban prohibiting corporations from spending their own
money on political campaigns); Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721
(2011) (invalidating Arizona’s matching-funds law on the ground that it substantially burdened political speech);
Citizens United v. FEC, 558 U.S. 310, 372 (2010) (invalidating independent expenditure limitations and
electioneering communication prohibitions for corporations under FECA); Davis v. FEC, 554 U.S. 724
743–44 (2008) (invalidating the BCRA provision known as the “Millionaire’s Amendment,” which attempted to
equalize campaign spending by increasing contribution limits and coordinated party expenditure limits for
candidates who were challenged by opponents spending a significant amount of personal funds).
9. Tillman Act of 1907, Pub. L. No. 59-36, 34 Stat. 864 (prohibiting corporate contributions “in connection
with any election to any political office”).
10. Federal Corrupt Practices Act of 1925, ch. 368, title III, 43 Stat. 1070 (2 U.S.C. §§ 241–248) (repealed
11. Taft-Hartley Act of 1947, Pub. L. No. 80-101, § 304, 61 Stat. 136, 159–60 (prohibiting contributions or
expenditures by labor organizations in connection with federal elections).
12. See, e.g.
, Pipefitters Local No. 562 v. United States, 407 U.S. 385
, 414 (1972) (holding a labor union
segregate political funds from the union treasury, and that political funds may only be volunteered by union
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