[House Report 118-663]
[From the U.S. Government Publishing Office]
118th Congress } { Rept. 118-663
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
PREVENTING FOREIGN INTERFERENCE IN AMERICAN ELECTIONS ACT
_______
September 12, 2024.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Steil, from the Committee on House Administration, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 8399]
The Committee on House Administration, to whom was referred
the bill (H.R. 8399) to amend the Federal Election Campaign Act
of 1971 to further restrict contributions of foreign nationals,
and for other purposes, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 4
Committee Action................................................. 16
Committee Consideration.......................................... 18
Committee Votes.................................................. 18
Statement of Constitutional Authority............................ 18
Committee Oversight Findings..................................... 19
Statement of Budget Authority and Related Items.................. 19
Congressional Budget Office Estimate............................. 19
Performance Goals and Objectives................................. 19
Duplication of Federal Programs.................................. 20
Advisory on Earmarks............................................. 20
Federal Mandates Statement....................................... 20
Advisory Committee Statement..................................... 20
Applicability to Legislative Branch.............................. 20
Section-by-Section Analysis...................................... 20
Changes in Existing Law as Reported.............................. 22
Dissenting Views................................................. 42
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preventing Foreign Interference in
American Elections Act''.
SEC. 2. MODIFICATIONS TO FOREIGN MONEY BAN.
(a) Additional Restrictions.--
(1) In general.--Section 319(a)(1) of the Federal Election
Campaign Act of 1971 (52 U.S.C. 30121(a)(1)) is amended--
(A) by striking ``or'' at the end of subparagraph
(B); and
(B) by adding at the end the following new
subparagraph:
``(D) a donation for the purpose of--
``(i) voter registration activity;
``(ii) ballot collection;
``(iii) voter identification;
``(iv) get-out-the-vote activity;
``(v) any public communication that refers to
a clearly identified Federal, State, or local
political party; or
``(vi) the administration of a Federal,
State, or local election; or''.
(2) Conforming amendment.--Section 319(a)(2) of such Act (52
U.S.C. 30121(a)(2)) is amended by striking ``subparagraph (A)
or (B) of paragraph (1)'' and inserting ``subparagraph (A),
(B), or (D) of paragraph (1)''.
(b) Prohibition on Aiding or Facilitating Violations.--Section 319(a)
of the Federal Election Campaign Act of 1971 (52 U.S.C. 30121(a)), as
amended by subsection (a), is amended--
(1) by striking ``or'' at the end of paragraph (1)(D);
(2) by striking the period at the end of paragraph (2) and
inserting ``; or''; and
(3) by adding at the end the following new paragraph:
``(3) a person to knowingly aid or facilitate a violation of
paragraph (1) or (2).''.
(c) Indirect Contributions.--Section 319 of the Federal Election
Campaign Act of 1971 (52 U.S.C. 30121) is amended by adding at the end
the following new subsection:
``(c) Indirect Contributions.--For purposes of this section, a person
shall be treated as having indirectly made a contribution, donation,
expenditure, or disbursement described in subparagraphs (A), (B), (C),
or (D) of subsection (a)(1) if such person has made a contribution or
donation to a person with a designation, instruction, or encumbrance
(whether direct or indirect, express or implied, oral or written, or
involving intermediaries or conduits) which results in any part of such
contribution, donation, expenditure, or disbursement being used for an
activity described in subparagraphs (A), (B), (C), or (D) of subsection
(a)(1).''.
(d) Enforcement Provisions.--Section 319 of the Federal Election
Campaign Act of 1971 (52 U.S.C. 30121), as amended by subsection (c),
is amended by adding at the end the following new subsection:
``(d) Enforcement.--
``(1) Use of certification as a defense.--
``(A) In general.--In the case of any allegation that
a person has violated subsection (a), any person
alleged in the complaint may, in connection with a
response to such allegation under section 309(a)(1),
submit, under penalty of perjury, a certification that
no such violation has occurred.
``(B) Effect of submission.--The Commission shall
take into consideration any certification submitted
under subparagraph (A) in making a determination under
section 309(a)(2) whether there is reason to believe
such violation has occurred.
``(2) Limitation on investigations.--
``(A) In general.--If the Commission makes a
determination under section 309(a)(2) that there is
reason to believe a violation of subsection (a) has
occurred or is about to occur, any investigation of
such alleged violation shall be limited in scope to the
factual matter necessary to determine whether such
alleged violation occurred.
``(B) Petition to quash subpoena or order on basis
not limited in scope to necessary factual matter.--
``(i) In general.--A person subject to an
investigation by the Commission following a
determination of the Commission that there is
reason to believe a violation of subsection (a)
has occurred or is about to occur may file a
petition in any United States district court
with jurisdiction to quash any subpoena or
order of the Commission issued under paragraph
(3) or (4), respectively, of section 307(a) on
the basis that the subpoena or order is not
limited in scope to the factual matter
necessary to determine whether such alleged
violation occurred as required under
subparagraph (A).
``(ii) Clarification.--Nothing in clause (i)
shall be construed to alter the right of any
person to otherwise challenge the power of the
Commission to issue a subpoena under section
307(a)(3) or an order under section
307(a)(4).''.
(e) Reporting.--
(1) Contributions and expenditures of political committees
and political parties.--Section 304(b) of the Federal Election
Campaign Act of 1971 (52 U.S.C. 30104(b)) is amended--
(A) by striking ``and'' at the end of paragraph (7);
(B) by striking the period at the end of paragraph
(8) and inserting ``; and''; and
(C) by adding at the end the following new paragraph:
``(9) under penalty of perjury, a certification that the
committee has complied with the requirements of section
319(a).''.
(2) Independent expenditures.--
(A) Committee reports.--Section 304(b)(6)(B)(iii) of
such Act (52 U.S.C. 30104(b)(6)(B)(iii)) is amended--
(i) by striking ``and a certification'' and
inserting ``a certification''; and
(ii) by inserting ``, and a certification,
under penalty of perjury that the independent
expenditure does not violate section 319(a)''
before the semicolon at the end.
(B) Other persons.--Section 304(c)(2) of such Act (52
U.S.C. 30104(c)(2)) is amended--
(i) by striking ``and'' at the end of
subparagraph (B);
(ii) by redesignating subparagraph (C) as
subparagraph (D); and
(iii) by inserting after subparagraph (B) the
following new subparagraph:
``(C) under penalty of perjury, a certification that the
independent expenditure does not violate section 319(a); and''.
(3) Electioneering communications.--Section 304(f)(2) of such
Act (52 U.S.C. 30104(f)(2)) is amended by adding at the end the
following new subparagraph:
``(G) A certification, under penalty of perjury, that
the disbursement does not violate section 319(a).''.
SEC. 3. PROTECTING PRIVACY OF DONORS TO TAX-EXEMPT ORGANIZATIONS.
(a) Restrictions on Collection of Donor Information.--
(1) Restrictions.--An entity of the Federal government may
not collect or require the submission of information on the
identification of any donor to a tax-exempt organization.
(2) Exceptions.--Paragraph (1) does not apply to the
following:
(A) The Internal Revenue Service, acting lawfully
pursuant to section 6033 of the Internal Revenue Code
of 1986 or any successor provision.
(B) The Secretary of the Senate and the Clerk of the
House of Representatives, acting lawfully pursuant to
section 3 of the Lobbying Disclosure Act of 1995 (2
U.S.C. 1604).
(C) The Federal Election Commission, acting lawfully
pursuant to--
(i) section 510 of title 36, United States
Code; or
(ii) any provision of title III of the
Federal Election Campaign Act of 1971 (52
U.S.C. 30101 et seq.).
(D) An entity acting pursuant to a lawful order of a
court or administrative body which has the authority
under law to direct the entity to collect or require
the submission of the information, but only to the
extent permitted by the lawful order of such court or
administrative body.
(b) Restrictions on Release of Donor Information.--
(1) Restrictions.--An entity of the Federal government may
not disclose to the public information revealing the
identification of any donor to a tax-exempt organization.
(2) Exceptions.--Paragraph (1) does not apply to the
following:
(A) The Internal Revenue Service, acting lawfully
pursuant to section 6104 of the Internal Revenue Code
of 1986 or any successor provision.
(B) The Secretary of the Senate and the Clerk of the
House of Representatives, acting lawfully pursuant to
section 3 of the Lobbying Disclosure Act of 1995 (2
U.S.C. 1604).
(C) The Federal Election Commission, acting lawfully
pursuant to--
(i) section 510 of title 36, United States
Code; or
(ii) any provision of title III of the
Federal Election Campaign Act of 1971 (52
U.S.C. 30101 et seq.).
(D) An entity acting pursuant to a lawful order of a
court or administrative body which has the authority
under law to direct the entity to disclose the
information, but only to the extent permitted by the
lawful order of such court or administrative body.
(E) An entity which discloses the information as
authorized by the organization.
(c) Tax-Exempt Organization Defined.--In this section, a ``tax-exempt
organization'' means an organization which is described in section
501(c) of the Internal Revenue Code of 1986 and is exempt from taxation
under section 501(a) of such Code. Nothing in this subsection may be
construed to treat a political organization under section 527 of such
Code as a tax-exempt organization for purposes of this section.
(d) Penalties.--It shall be unlawful for any officer or employee of
the United States, or any former officer or employee, willfully to
disclose to any person, except as authorized in this section, any
information revealing the identification of any donor to a tax-exempt
organization. Any violation of this section shall be a felony
punishable upon conviction by a fine in any amount not exceeding
$250,000, or imprisonment of not more than 5 years, or both, together
with the costs of prosecution, and if such offense is committed by any
officer or employee of the United States, he shall, in addition to any
other punishment, be dismissed from office or discharged from
employment upon conviction for such offense.
SEC. 4. EFFECTIVE DATE.
(a) Modifications to Foreign Money Ban.--
(1) In general.--Except as provided in paragraph (2), section
2 and the amendments made by section 2 shall apply with respect
to donations or other amounts provided on or after the date of
the enactment of this Act.
(2) Reporting requirements.--Subsection (e) of section 2 and
the amendments made by such subsection shall apply with respect
to reports filed under the Federal Election Campaign Act of
1971 on or after the date of the enactment of this Act.
(b) Protecting Privacy of Donors.--Section 3 shall apply with respect
to donations made on or after the date of the enactment of this Act.
Purpose and Summary
H.R. 8399, Preventing Foreign Interference in American
Elections Act, introduced by Representative Bryan Steil (WI-01)
and co-sponsored by Representative Stephanie Bice (OK-05)
prohibits foreign nationals from funding ballot harvesting,
ballot collection, get-out-the-vote activities, or the
administration of a federal, State, or local election. It also
clarifies that federal law's existing foreign national campaign
finance prohibition on indirect contributions covers attempts
to circumvent the ban through intermediates or instructions,
and protects Americans' First Amendment rights to donate to
nonprofit organizations as they see fit by prohibiting any
entity of the federal government from disclosing the donor
information of any nonprofit organization.
Background and Need for Legislation
BACKGROUND
Congress created the Federal Election Commission (``FEC'')
in 1974\1\ and gave it the authority to enforce all civil
violations of federal campaign finance law.\2\ The agency is a
bipartisan commission of six commissioners who serve single,
non-renewable six-year terms, though many commissioners ``hold
over'' until a new commissioner is appointed.\3\ No more than
three commissioners may be affiliated with the same political
party.\4\ Commissioners are appointed by the president,
traditionally upon the recommendation of Senate leadership, and
are subject to confirmation by the United States Senate.\5\ For
the FEC to act, a majority vote of the commissioners is
required.\6\
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\1\Federal Election Campaign Act Amendments of 1974, 52 U.S.C.
Sec. 30106 (1974).
\2\Id. at Sec. Sec. 30106(b)(1), 30107(e).
\3\Id. at Sec. 30106(a)(2)(A)-(B). Commissioners are allowed to
serve holdover terms in the event a replacement is not confirmed before
their term expires. One commissioner has been at the FEC since 2002, 16
years longer than the standard term.
\4\Id. at Sec. 30106(a)(2)(A).
\5\Id. at Sec. 30106(a)(1).
\6\Id. at Sec. 30106(c).
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The FEC is tasked with enforcing the Federal Election
Campaign Act (``FECA''). Under FECA, foreign nationals\7\ are
prohibited from, directly or indirectly, making a contribution
or donation of money or other thing of value, or making an
express or implied promise to make a contribution or donation,
in connection with a Federal, State, or local election
(``foreign national campaign finance prohibition'').\8\ Foreign
nationals are also prohibited from contributing or donating to
political party committees\9\ and from making expenditures,
including independent expenditures, or disbursements for
electioneering communications.\10\
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\7\Foreign national is defined as ``(1) a foreign principal, as
such term is defined by section 611(b) of title 22, except that the
term ``foreign national'' shall not include any individual who is a
citizen of the United States; or (2) an individual who is not a citizen
of the United States or a national of the United States (as defined in
section 1101(a)(22) of title 8) and who is not lawfully admitted for
permanent residence, as defined by section 1101(a)(20) of title 8.''
See 52 U.S. Code Sec. 30121(b).
\8\Id. at Sec. 30121(a)(1)(A).
\9\Id. at Sec. 30121(a)(1)(B).
\10\Id. at Sec. 30121(a)(1)(C).
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While FECA's foreign national campaign finance prohibition
is broad, it does not prohibit foreign nationals from engaging
in modern election activities. For example, foreign nationals
can lawfully donate to fund election administration in a
federal, State, or local election, get-out-the-vote efforts,
voter registration drives, and ballot collection or voter
identification activities. In the 2020 presidential election,
these types of activities were exploited by Meta Chief
Executive Officer Mark Zuckerberg and his wife Priscilla Chan.
The couple donated $350 million to a 501(c)(3) organization,
the Center for Tech and Civic Life (``CTCL''), that donated
those funds across jurisdictions across the United States
ostensibly for the purpose of helping them administer an
election during COVID-19, but in reality were used for get-out-
the-vote efforts and voter registration drives to help Joe
Biden win the presidency.\11\
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\11\The Editorial Board, Zuckerbucks Shouldn't Pay for Elections,
Wall Street Journal (Jan. 3, 2022), https://www.wsj.com/articles/
zuckerbucks-shouldnt-pay-for-elections-mark-zuckerberg-
center-for-technology-and-civic-life-trump-biden-2020-11640912907.
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The Supreme Court has consistently held that spending money
in connection with political activities, including making
donations or expenditures, qualifies as protected speech under
the First Amendment.\12\ It has also recognized that the only
constitutional reason for restricting money spent on political
activities is the prevention of quid pro quo corruption or its
appearance.\13\ Although the Court has never squarely been
presented with the question, it previously affirmed a three-
judge court's decision, authored by then-Judge Kavanaugh, that
upheld the prohibition with respect to foreign nationals who
wanted to make contributions to federal and State
candidates.\14\
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\12\See Buckley v. Valeo, 424 U.S. 1 (1976); Davis v. FEC, 554 U.S.
724 (2008); Citizens United v. FEC, 558 U.S. 310 (2010); McCutcheon v.
FEC, 572 U.S. 185 (2014); FEC v. Ted Cruz for Senate, 596 U.S. 289
(2022).
\13\Buckley, 424 U.S. 25-26; Federal Election Commission v.
National Conservative Political Action Commission, 470 U.S. 480, 497
(1985); Citizens United, 558 U. S. 359; McCutcheon, 572 U. S. 207;
Cruz, 142 S.Ct. 1652 (2022).
\14\See Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011),
aff'd, 565 U.S. 1104 (2012). Importantly, the three-judge decision did
not rely on Congress' power under the Elections Clause of Article I,
Section 4 to justify the foreign national spending prohibition. Cf.
Report: The Elections Clause: States' Primary Constitutional Authority
Over Elections, Comm. on H. Admin. (Republicans) (Aug. 12, 2021),
https://republicanscha.house.gov/sites/republicans.cha.house.gov/
files/documents/
Report_The%20Elections%20Clause_States%20Primary%20Constitutional%20
Authority%20over%20Elections%20%28Aug%2011%202021%29.pdf.
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FECA originally allowed corporations\15\ to use independent
expenditures to engage political speech by so long as their
speech did not expressly advocate the election or defeat of a
clearly identified federal candidate.\16\ However, the
Bipartisan Campaign Reform Act (``BCRA'') of 2002 commonly
known as ``McCain-Feingold''\17\ prohibited corporations from
``using their general treasury funds to make independent
expenditures for speech defined as an `electioneering
communication' or for speech expressly advocating the election
or defeat of a candidate'' (``general treasury funds
prohibition'').\18\ FECA defines an electioneering
communication as any broadcast, cable, or satellite
communication that refers to a clearly identified federal
candidate\19\, is publicly distributed\20\ within 30 days of a
primary or 60 days of a general election and is targeted to the
relevant electorate.\21\ To give an example of an
electioneering communication, the Wisconsin Right to Life once
ran several radio advertisements in Wisconsin, asking voters to
contact then Wisconsin Senator Russ Feingold and ask him to
oppose filibustering President George W. Bush's federal
judicial nominees.\22\ The ads ran in Wisconsin, throughout
August 2004, and Senator Feingold's primary was slated to take
place on August 15th, 2004.\23\
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\15\The definition of corporation is broad and encompasses any
separately incorporated entity (other than a political committee that
has incorporated for liability purposes only). 11 CFR
Sec. Sec. 100.134(l), 114.12(a). The term corporation covers both for-
profit and nonprofit corporations and includes nonstock corporations,
incorporated membership organizations, incorporated cooperatives,
incorporated trade associations, professional corporations and, under
certain circumstances, limited liability companies.
\16\Wisconsin Right to Life, 127 S.Ct. at 2659.
\17\See Pub. L. No. 107-155, 116 Stat. 81 (2002). The law is
referred to as ``McCain-Feingold'' because the main sponsors of the
bill were then-Senators John McCain (AZ) and Russ Feingold (WI).
\18\Citizens United, 558 U.S. 886.
\19\A candidate is ``clearly identified'' if the candidate's name,
nickname, photograph or drawing appears, or the identity of the
candidate is otherwise apparent through an unambiguous reference such
as ``the President,'' ``your Representative,'' or ``the incumbent.''
See 11 CFR Sec. 100.29(b)(2).
\20\A communication is ``publicly distributed'' for the purposes of
the rules governing electioneering communications when it is aired,
broadcast, cablecast or otherwise disseminated through the facilities
of a radio or television station, cable television system or a
satellite system. See 11 CFR Sec. 100.29(b)(3).
\21\52 U.S.C. Sec. 30104(f)(3)(A). A communication is ``targeted to
the relevant electorate'' when it is receivable by 50,000 or more
persons in the candidate's district (for a House candidate) or state
(for a Senate candidate). In the case of presidential and vice-
presidential candidates, the communication is publicly distributed if
it can be received by 50,000 or more people in a state where a primary
election or caucus is being held within 30 days or anywhere in the
United States 30 days prior to the nominating convention or 60 days
prior to the general election. See 11 CFR Sec. 100.29(b)(5).
\22\See generally Federal Election Comm'n v. Wisconsin Right to
Life, Inc., 127 S.Ct. 2652 (2007).
\23\Id.
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In contrast, FECA defines an independent expenditure as an
expenditure\24\ by a person that ``expressly advocating 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 such candidate, the candidate's authorized
political committee, or their agents, or a political party
committee or its agents.''\25\ Unlike an electioneering
communication, an independent expenditure will feature magic
words like ``vote for,'' ``elect,'' ``support,'' ``cast your
ballot for,'' ``Smith for Congress,'' ``vote against,''
``defeat,'' ``reject.''\26\
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\24\FECA defines an expenditure as ``any purchase, payment,
distribution, loan, advance, deposit, or gift of money or anything of
value, made by any person for the purpose of influencing any election
for Federal office; and . . . a written contract, promise, or agreement
to make an expenditure.'' See 52 U.S.C. Sec. 30101(9)(A).
\25\Id. at Sec. 30109(17).
\26\Buckley 424 U.S. at 44, n. 52.
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In the first constitutional challenge to the BCRA, the
Supreme Court upheld a facial challenge to the general treasury
funds prohibition with the caveat that the electioneering
communication constituted express advocacy or its functional
equivalent.\27\ But several years later, the Wisconsin Right to
Life, a 501(c)(4) organization, wanted to run the Wisconsin
advertisements described above 30 days before the Wisconsin
primary in violation of the BCRA's general treasury funds
prohibition.\28\ The Supreme Court held in FEC v. Wisconsin
Right to Life that the BCRA's general treasury prohibition, as
applied to the Wisconsin electioneering communications, was
unconstitutional as it prohibited issue advertisements\29\
(i.e. advertisements other than expressly advocating for the
election or defeat of a candidate), and the Court had never
recognized a compelling government interest in regulating issue
advertisements.\30\
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\27\McConnell v. Federal Election Comm'n, 540 U.S. 93, 206 (2003).
In Federal Election Comm'n v. Wisconsin Right to Life, Inc., Chief
Justice Roberts and Justice Alito reasoned that ``a court should find
that an ad is the functional equivalent of express advocacy only if the
ad is susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate.'' Wisconsin Right
to Life, 127 S.Ct. at 2667 (opinion of Roberts, C.J.). In an opinion
concurring in part and concurring in the judgment, Justice Scalia,
joined by Justices Kennedy and Thomas argued that McConnell's holding
bifurcating between express advocacy or its functional equivalent and
everything else was wrong, unconstitutionally infringed on political
speech, and that part of the opinion should be overturned. Id. at 2684-
86 (Scalia., J. concurring in part and concurring in the judgment).
\28\Wisconsin Right to Life, 127 S.Ct. at 2661.
\29\Id. at 2670-71. The advertisements were not express advocacy or
its functional equivalent because they ``. . . may reasonably be
interpreted as something other than as an appeal to vote for or against
a specific candidate . . . and therefore fall outside the scope of
McConnell's holding.'' As such, the BCRA's application to the
advertisements were unconstitutional under the First Amendment because
the Supreme Court has never recognized a compelling government interest
in regulating issue advertisements. Id. at 2671.
\30\Id. at 2671.
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Following the Supreme Court's decision in Wisconsin Right
to Life, Citizens United, a 501(c)(4) organization, wanted to
run a documentary titled ``Hillary: The Movie'', a film
criticizing then-Senator Hillary Clinton who was seeking the
Democratic party nomination for president. As in Wisconsin
Right to Life, Citizens United wanted to run the documentary in
violation of the BCRA's general treasury funds prohibition. In
Citizens United v. FEC, the Supreme Court first rejected
Citizens United's contention that its documentary did not
constitute express advocacy, recognizing it was ``a feature-
length negative advertisement that urges viewers to vote
against Senator Clinton for President.''\31\ This allowed the
Court to reach the constitutional question as to whether the
BCRA's general treasury fund prohibition violated the First
Amendment.\32\ The Court held the prohibition violated the
First Amendment because ``independent expenditures, including
those made by corporations, do not give rise to corruption or
the appearance of corruption''\33\ as they represent
``political speech presented to the electorate that is not
coordinated with a candidate.''\34\ The Court also upheld
BCRA's disclaimer and disclosure requirements, and left
unscathed the federal prohibition on foreign individuals or
associations from engaging in political speech.\35\ As a result
of Citizens United, corporations, including nonprofits, can use
their general treasury funds to run independent expenditures or
electioneering communications with no limits.
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\31\Citizens United, 130 S. Ct. at 890.
\32\Id. at 892.
\33\Id. at 909.
\34\Id. at 910.
\35\Id. at 911, 913-17. See also Bluman v. FEC, 800 F. Supp. 2d
281, 288 (D.D.C. 2011), aff'd, 565 U.S. 1104 (2012). The Supreme Court
of the United States has never been presented with the question whether
the foreign national prohibition violates the First Amendment, but has
previously affirmed a three-judge court's decision, authored by then-
Judge Kavanaugh, which upheld the foreign national prohibition with
respect to foreign nationals who wanted to make contributions to
federal and State candidates. In addition, on November 30, 2023, the
U.S. House of Representatives Committee on House Administration passed
H.R. 3229, Stop Foreign Funds in Elections Act out of committee. That
legislation prohibits foreign nationals from making a contribution or
donation of money or other thing of value, or to make an express or
implied promise to make a contribution or donation to a State or local
ballot initiative, referendum, or recall election.
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As Citizens United was being litigated, a group of
individuals formed a political action committee (PAC),
organized under Sec. 527 of the Internal Revenue Code called
SpeechNow.Org to challenge the contribution limits on PACs.
PACs are organized to raise and spend money to elect and defeat
candidates; they can receive limited contributions, contribute
to candidate committees, national party committees, or other
PACs.\36\ But SpeechNow.Org argued it only wanted to run
independent expenditures and therefore the contribution limits
on it were unconstitutional.\37\ The United States Court of
Appeals for the D.C. Circuit held, relying on Citizens United,
that the contribution limits on SpeechNow were unconstitutional
as independent expenditures do not corrupt or give the
appearance of corruption and the government has no anti-
corruption interest in limiting contributions to independent
expenditure--only organizations.\38\ However, the court upheld
the organizational and reporting requirements that required
SpeechNow and other PACs to disclose their contributors.\39\
This D.C. Circuit opinion is widely seen as giving the green
light to Super PACs.
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\36\What Is a PAC?, Open Secrets, https://www.opensecrets.org/
political-action-committees-pacs/what-is-a-pac.
\37\SpeechNow.Org v. FEC, 599 F. 3d 686, 689-90 (D.C. Cir. 2010)
(en banc).
\38\Id. at 695.
\39\Id. at 697-698.
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In response to the D.C. Circuit's opinion in SpeechNow.Org,
the FEC formalized the process for groups to become Super PACs
or independent expenditure only committees.\40\ Today, Super
PACs can receive unlimited contributions from individuals,
corporations, nonprofits, etc., so long as the contributor is
not a foreign national.\41\ Additionally, Super PACs have to
disclose the name of the contributor, and the date and amount
of the contribution.\42\ And unlike traditional PACs, Super
PACs cannot contribute to candidates, parties, or other PACs.
Moreover, when Super PACs make independent expenditures, they
cannot be made in concert or cooperation with, or at the
request or suggestion of, a candidate, the candidate's campaign
or a political party of the candidate they are supporting.
Finally, as the name suggests, Super PACs solely exist to make
independent expenditures in support of or to defeat a candidate
of which there are no limits on.\43\
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\40\FEC Approves Two Advisory Opinions on Independent Expenditure-
Only Political Committees, Federal Election Commission (July 22, 2010),
https://www.fec.gov/updates/fec-approves-two-advisory-opinions-on-
independent-expenditure-only-political-committees/.
\41\52 U.S.C. Sec. 30121.
\42\Id. at Sec. 30104.
\43\See Citizens United, 558 U.S. 310 (2010); SpeechNow.Org, 599
F.3d 686 (2010) (en banc).
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While it is unlawful for foreign nationals to contribute to
a Super PAC, it is lawful for foreign nationals to donate to
501(c)(3) or (c)(4) organizations (i.e. nonprofit
organizations) so long as the organization allows those types
of donations. It is also lawful for a 501(c)(3) organization to
donate to a 501(c)(4) organization, but not to a campaign, PAC,
or Super PAC.\44\ But the real problem arises when a foreign
national uses a 501(c)(4) organization as a pass-through and
instructs the organization to contribute some or all the
donation to a Super PAC. The public becomes aware that a
501(c)(4) organization contributed to a Super PAC because Super
PACs have to disclose their donors\45\ and 501(c)(4)
organizations have to provide a list of certain grants on their
tax returns.\46\ However, the law does not require 501(c)(4)
organizations to disclose their donors, which makes it
difficult to determine if foreign nationals make donations to
them and how they utilize those donations.\47\ In contrast,
501(c)(3) organizations are required to disclose some of their
donors\48\ and grants,\49\ which helps identify whether foreign
nationals donate to these organizations and to some extent how
these organizations utilize those donations.
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\44\26 U.S.C. Sec. 501(c)(3); see also The Restriction of Political
Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations,
Internal Revenue Service (May 30, 2024), https://www.irs.gov/charities-
non-profits/charitable-organizations/the-restriction-of-political-
campaign-intervention-by-section-501c3-tax-exempt-organizations.
\45\Supra note 42.
\46\Aaron Sachs, Tax Brief: Form 990, Schedule I Grants and Other
Assistance, Jones & Roth (April 25, 2024), https://www.jrcpa.com/tax-
brief-form-990-schedule-i-grants-and-other-assistance
/
#::text=The%20IRS%20Form%20990's%20Schedule,stipends%2C%20and%20other%2
0similar%
20payments.
\47\501(c)(4) Organizations: Giving with an Edge, Patterson Belknap
(March 7, 2024), https://www.pbwt.com/publications/501c4-organizations-
giving-with-an-edge#::text=In%20addition%2C
%20a%20501(c,its%20annual%20federal%20tax%20return.
\48\Id.
\49\Supra note 46.
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Both the Berger Action Fund and the Sixteen Thirty Fund are
501(c)(4) organizations with close ties to Hansjorg Wyss, a
billionaire that classifies as a foreign national under federal
law because he is a citizen of Switzerland.\50\ Remarkably,
between 1990 and 2006, he donated $119,000 directly to U.S.
candidates and political committees in violation of the foreign
national campaign finance prohibition; but the statute of
limitations has since passed on those charges and the FEC
declined to take action against him.\51\ In 2007, Wyss created
the Berger Action Fund which has donated $339 million to left-
leaning nonprofits since 2016.\52\ Wyss is also associated with
the Wyss Foundation, which is registered as a 501(c)(3)
organization and ``works with'' the Berger Action Fund.\53\
According to the New York Times, Mr. Wyss uses the Wyss
Foundation and Berger Action Fund and a ``daisy chain of opaque
organizations that mask the ultimate recipients of his money''
to shell out $208 million from 2016 to 2020 to groups that
helped Democrats take the White House and Congress to advance
their agenda.\54\
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\50\Senator Bill Hagerty, Exclusive--Sen. Bill Hagerty: Time to
Close the Loophole Allowing Foreign Billionaires to Interfere in Our
Elections, Breitbart (April 17, 2024), https://www.breitbart.com/
politics/2024/04/17/exclusive-sen-bill-hagerty-time-to-close-the-
loophole-
allowing-foreign-billionaires-to-interfere-in-our-elections/.
\51\Brian Slodysko, Group steers Swiss billionaire's money to
liberal causes, Associated Press (April 4, 2023), https://apnews.com/
article/dark-money-democrats-wyss-politics-elections-
601d40cd%20015691%2090559d%20545%20418%20afe396.
\52\Id.
\53\About Us, The Wyss Foundation, https://www.wyssfoundation.org.
\54\Kenneth P. Vogel, Swiss Billionaire Quietly Becomes Influential
Force Among Democrats, New York Times (May 3, 2021), https://
www.nytimes.com/2021/05/03/us/politics/hansjorg-wyss-money-
democrats.html.
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In fact, in a four-year period, the Berger Action Fund gave
more than $135 million to the Sixteen Thirty Fund--which gave
$63 million in 2020 to Super PACs that supported President
Biden or other Democrats that year.\55\ In 2020 alone, the
Sixteen Thirty Fund funneled $410 million to left-leaning
groups to unseat President Trump and the Republicans' Senate
majority.\56\ The Sixteen Thirty Fund also spent $141 million
in 2018 to oppose the nomination of Supreme Court Justice Brett
Kavanaugh.\57\ The Berger Action Fund also contributed $72
million to Democrat-aligned groups in 2021, more than $62
million of which went to groups running ads promoting Democrats
in the 2022 midterms and supporting President Biden.\58\ The
group contributed an additional $63 million to Democrat groups
in 2022.\59\
---------------------------------------------------------------------------
\55\Id.
\56\Scott Bland, Liberal `dark money' behemoth funneled more than
$400M in 2020, Politico (November 17, 2021), https://www.politico.com/
news/2021/11/17/dark-money-sixteen-thirty-fund-522781.
\57\Supra note 54.
\58\Supra note 51.
\59\Caitlin Oprysko, Wyss' nonprofit showered liberal groups with
more than $63M, Politico (Feb. 16, 2024), https://www.politico.com/
newsletters/politico-influence/2024/02/16/wyss-dark-money-group-
showered-liberal-groups-with-more-than-63m-00142025.
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In May of 2021, Americans for Public Trust filed a
complaint with the FEC alleging that Wyss violated FECA by
indirectly violating the foreign national campaign finance
prohibition by donating to nonprofits like the Wyss Foundation
and the Berger Action Fund and having those organizations give
to groups like the Sixteen Thirty Fund for the intended purpose
of influencing American elections, and that the Wyss
Foundation, Berger Action Fund, Sixteen Thirty Fund and related
groups were acting like PACs and should be required to report
and register as such.\60\ While Republican and Democratic
commissioners split on these issues and ultimately voted to
dismiss the complaint,\61\ the FEC's general counsel report
concluded there was not enough information to conclude Wyss
made indirect contributions for electoral purposes but did
conclude the Sixteen Thirty Fund spent much of its budget on
electoral politics.\62\
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\60\Wyss Complaint, Americans for Public Trust (May 15, 2021),
https://americansforpublictrust.org/document/wyss-complaint/. The
complaint also alleged that the groups should be required to publicly
report their contributions and expenditures like other PACs.
\61\The Republican commissioners did not participate on the vote of
whether the Wyss Foundation, the Berger Action Fund, the Sixteen Thirty
Fund, and other groups should be required to register as PACs. The
Democratic commissioners voted to dismiss the claim, so the allegation
failed by a 0-3 vote. The Republican and Democratic commissioners split
on the question of whether Wyss used his organizations to indirectly
violate the foreign national campaign finance prohibition. As such, the
allegation failed by a 3-3 vote. See In the Matter of Hansjorg Wyss;
The Wyss Foundation; Berger Action Fund, Inc.; New Venture Fund;
Sixteen Thirty Fund, MUR 7904, Federal Election Commission (July 31,
2022), https://www.fec.gov/files/legal/murs/7904/7904_15.pdf.
\62\Additionally, Democratic super-lawyer Marc Elias represented
Wyss and various investigations before the FEC in the investigation.
See Mark Hemingway, The Progressive Benefactor Who Makes U.S. Barriers
to Foreign Cash Look Like Swiss Cheese, RealClear Investigations (Aug.
22, 2023), https://www.realclearinvestigations.com/articles/2023/08/22/
the_progressive_benefactor_who_makes_us_barriers_to_foreign_cash_look_li
ke_swiss_cheese_
973986.html.
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In September of 2023, the Committee on House Administration
held a full committee oversight hearing of the FEC featuring
all six commissioners.\63\ At the hearing, Chairman Bryan Steil
(WI-01) asked all six commissioners whether the loophole that
foreign nationals exploit by using 501(c)(4) organizations as a
pass-through to contribute to Super PACs should remain open.
The commissioners unanimously agreed that the loophole should
be closed.\64\
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\63\See Committee Action, infra note 102.
\64\Full Committee Hearing: ``Oversight of the Federal Election
Commission'', Committee on House Administration at 1:21:20-1:21:30
(Sept. 20, 2023), https://www.youtube.com/watch?v=Po3jvGO7ib4&list=PL-
KddTi3pbJp_VvGAjRMab15pn8NPz4qw.
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FEC ENFORCEMENT PROCEDURES
The traditional enforcement process the FEC uses for
violations of campaign finance law is costly, arduous, and time
and resource-consuming.\65\ As such, it is reserved for serious
and substantive violations of federal campaign finance law.
Under the traditional process, the FEC receives a complaint or
referral, the agency's general counsel notifies the respondent
that it has received a complaint, and the respondent is
permitted to respond.\66\ Importantly, the general counsel is
appointed by the commissioners and acts under their
direction.\67\ Next, the commissioners vote whether to find
``reason to believe'' the complaint's allegations.\68\ If the
Commission finds reason to believe the complaint's allegations,
the FEC's general counsel is directed to commence an
investigation or negotiate a compromise.\69\
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\65\See 52 U.S.C. Sec. 30109 with enabling regulations at 11 CFR
Sec. Sec. 111.1-111.24 (2024).
\66\11 CFR Sec. Sec. 111.4-111.6 (2024).
\67\52. U.S.C. Sec. 30106(f)(1).
\68\11 CFR Sec. 111.9(a) (2024).
\69\11 CFR Sec. Sec. 1A111.7-111.10 (2024).
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If no compromise is reached, the FEC's general counsel
investigates the matter further. If the investigation
determines there is ``probable cause'' that the respondent
engaged in unlawful activity, the general counsel files a brief
with the commissioners explaining why there is reason to
believe the respondent is in violation of the law.\70\ The
commissioners then vote on whether to continue enforcement
action based on information in that brief.\71\ If a majority of
the commissioners agree with the brief the general counsel is
empowered by the commissioners to continue to negotiate with
the respondent.\72\ If that negotiation fails, the FEC will
file suit in federal court.\73\ In all, this process could take
over a year for the FEC to secure a final judgment holding that
the respondent is in violation of the law.
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\70\11 CFR Sec. 111.16 (2024) (this is known as the general
counsel's probable cause brief).
\71\11 CFR Sec. 111.17 (2024).
\72\11 CFR Sec. 111.18 (2024).
\73\11 CFR Sec. Sec. 111.18-111.19 (2024).
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DONOR PRIVACY AND THE FIRST AMENDMENT'S FREEDOM OF ASSOCIATION
The Supreme Court has held that ``implicit in the right to
engage in activities protected by the First Amendment [lies] a
corresponding right to associate with others.''\74\ This is
commonly understood as the right of association. It furthers
``a wide variety of political, social, economic, educational,
religious, and cultural ends,'' and ``is especially important
in preserving political and cultural diversity and in shielding
dissident expression from suppression by the majority.''\75\
---------------------------------------------------------------------------
\74\Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984).
\75\Id.
---------------------------------------------------------------------------
In NAACP v. Alabama ex rel. Patterson,\76\ the Supreme
Court held the First Amendment's freedom of association
protected the National Association for the Advancement of
Colored People from compelled disclosure of its members. This
was because,
---------------------------------------------------------------------------
\76\357 U.S. 449 (1958).
on past occasions revelation of the identity of its
rank-and-file members has exposed these members to
economic reprisal, loss of employment, threat of
physical coercion, and other manifestations of public
hostility. Under these circumstances . . . it [is]
apparent that compelled disclosure of petitioner's
Alabama membership is likely to affect adversely the
ability of petitioner and its members to pursue their
collective effort to foster beliefs which they
admittedly have the right to advocate, in that it may
induce members to withdraw from the Association and
dissuade others from joining it because of fear of
exposure of their beliefs shown through their
associations and of the consequences of this
exposure.\77\
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\77\Id. at 462-63.
In the 60 years since this decision, the First Amendment's
freedom of association has been protected and strengthened by
the Supreme Court.\78\ Most recently, in Americans for
Prosperity Foundation v. Bonta,\79\ a California law required
Americans for Prosperity Foundation and the Thomas Moore Law
Center to disclose the names, contribution amounts, and
addresses of their major donors.\80\ The Supreme Court held
this substantial intrusion into the group's donors was
unconstitutional.\81\ While California Attorney General Bonta
argued these disclosures were needed so California could
prevent wrongdoing by charitable organizations, there was ``not
a single, concrete instance in which pre-investigation
collection of [this information] did anything to advance the
Attorney General's investigative, regulatory or enforcement
efforts.''\82\ Similarly, California's need for this
information before initiating an investigation was highly
questionable as it was only one of three states to impose this
requirement and did not seriously enforce it until 2010.\83\
---------------------------------------------------------------------------
\78\See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958);
Shelton v. Tucker, 364 U.S. 479 (1960); Bates v. Little Rock, 361 U.S.
516 (1960); Healy v. James, 408 U.S. 169 (1972); Elrod v. Burns, 427
U.S. 347 (1976); Roberts v. United States Jaycees, 468 U.S. 609, 622
(1984); Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Americans
for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021).
\79\141 S. Ct. 2373 (2021).
\80\Id. at 2380.
\81\Id. at 2389.
\82\Id. at 2386.
\83\Id. at 2387.
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In short, Americans for Prosperity Foundation and NAACP
both stand for the proposition that compelled disclosure of an
organization's members can violate an organization's freedom of
association. This is because ``effective advocacy of both
public and private points of view, particularly controversial
ones, is undeniably enhanced by group association'' and there
is a ``vital relationship between freedom to associate and
privacy in one's associations . . . ''\84\
---------------------------------------------------------------------------
\84\Id. at 2382 citing NAACP v. Alabama ex rel. Patterson, 357 U.S.
at 460-462.
---------------------------------------------------------------------------
Government targeting of tax-exempt organizations because of
disagreement with their political views is sadly not a
hypothetical problem. From 2010 through 2013, the Internal
Revenue Service (``IRS'') intentionally and unlawfully
discriminated against conservative organizations with words
like ``patriot'' or ``Tea Party'' in their names seeking tax-
exempt status.\85\ After years of litigation, in October 2017,
the IRS signed a consent decree in federal court and admitted
to targeting conservative organizations.\86\ The IRS confessed,
---------------------------------------------------------------------------
\85\Jonathan Weisman, I.R.S. Apologizes to Tea Party Groups Over
Audits of Applications for Tax Exemption, New York Times (May 10,
2013), https://www.nytimes.com/2013/05/11/us/
politics/irs-apologizes-to-conservative-groups-over-application-
audits.html.
\86\Emily Cochrane, Justice Department Settles With Tea Party
Groups After I.R.S. Scrutiny, New York Times (Oct. 26, 2017), https://
www.nytimes.com/2017/10/26/us/politics/irs-tea-party-lawsuit-
settlement.html.
its treatment of [conservative organizations] during
the tax-exempt determinations process, including
screening their applications based on their names or
policy positions, subjecting those applications to
heightened scrutiny and inordinate delays, and
demanding of some Plaintiffs' information that U.S.
Treasury Inspector General, Tax Administration
determined was unnecessary to the agency's
determination of their tax-exempt status, was
wrong.\87\
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\87\Eric Heisig, Tea Party groups settle lawsuit against IRS;
agency apologizes for discrimination during Obama's presidency,
Cleveland.com (Oct. 27, 2017), https://www.cleveland.com/court-justice/
2017/10/tea_party_groups_settle_lawsui.html.
The goal of this targeting was obvious--to silence and
harass conservative organizations and individuals associated
with them from using their voices to advocate for conservative
policies. Following the horrific actions taken by the IRS,
Congress recognized that other government agencies might also
be in the position to harass tax exempt organizations because
of disagreement with their message. One such agency is the
Securities and Exchange Commission, an independent government
agency. Beginning in 2015, Congress has included in every
appropriations bill that has funded the Securities and Exchange
Commission, an appropriations rider prohibiting the agency from
using any of the funds made available to ``finalize, issue, or
implement any rule, regulation, or order regarding the
disclosure of political contributions, contributions to tax
exempt organizations, or dues paid to trade associations.''\88\
This prohibition is too important to be subject to yearly
renewal. Instead, it must be enacted into permanent law so
political organizations of both political parties know the
Securities and Exchange Commission will not target them.
---------------------------------------------------------------------------
\88\See Consolidated Appropriations Act, 2016, H.R. 2029, 114th
Cong. Sec. 1 (2015); Consolidated Appropriations Act, 2017, H.R. 244,
115th Cong. Sec. 1 (2017); Consolidated Appropriations Act, 2018, H.R.
1625, 115th Cong. Sec. 2 (2018); Consolidated Appropriations Act, 2019,
H.J. Res. 31, 116th Cong. Sec. 1 (2019); Consolidated Appropriations
Act, 2020, H.R. 1158, 116th Cong. Sec. 1 (2019); Consolidated
Appropriations Act, 2021, H.R. 133, 116th Cong. Sec. 2 (2020);
Consolidated Appropriations Act 2022, H.R. 2471, 117th Cong. Sec. 2
(2022); Further Consolidated Appropriations Act 2024, H.R. 2882, 118th
Cong. Sec. 1 (2023).
---------------------------------------------------------------------------
In the 118th Congress, Representative Bryan Steil (WI-01)
introduced H.R. 4563, the American Confidence in Elections Act
(``ACE'' Act) of which Representative Stephanie Bice (OK-05) is
an original co-sponsor.\89\ That legislation included an
earlier version of H.R. 8399 that prohibited tax-exempt
entities that received donations from foreign nationals within
the last four years from contributing to Super PACs and other
political committees.\90\ The ACE Act also contains the Speech
Privacy Act,\91\ which is included in H.R. 8399 to ensure that
all Americans' First Amendment rights to donate to nonprofit
organizations as they see fit by prohibiting any entity of the
federal government from disclosing the donor information of any
nonprofit organization.\92\
---------------------------------------------------------------------------
\89\American Confidence in Elections Act, H.R. 4563, 118th Cong.
Sec. 1 (2023).
\90\Id. See Section 163, available at https://cha.house.gov/_cache/
files/c/8/c8c3a700-383e-41b9-9091-33f0c88442a3/
35A104982A7B97FD73578C57B7992BDD.majority-ans-xml27.pdf.
\91\Speech Privacy Act of 2023, H.R. 4471,118th Cong. Sec. 1
(2023).
\92\The Speech Privacy Act of 2023 is found in Section 308 of H.R.
4563, the American Confidence in Elections Act, available at https://
cha.house.gov/_cache/files/c/8/c8c3a700-383e-41b9-9091-33f0c88442a3/
35A104982A7B97FD73578C57B7992BDD.majority-ans-xml27.pdf.
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In the 118th Congress, Senator Bill Hagerty (TN) introduced
the Senate version of the Preventing Foreign Interference in
American Elections Act.\93\ The legislation mirrors H.R. 8399
with the addition of Section 2(b) that prevents foreign
nationals from making a contribution or donation in connection
with state or local ballot initiatives, referenda, or recall
election. Section 2(b) was removed from H.R. 8399 because the
Committee on House Administration passed Representative
Fitzpatrick's (PA-01) H.R. 3229, Stop Foreign Funds in
Elections Act\94\ in a markup in November 2023\95\ that mirrors
Section 2(b).
---------------------------------------------------------------------------
\93\Preventing Foreign Interference in American Elections Act, S.
4145, 118th Cong. Sec. 2 (2024).
\94\Stop Foreign Funds in Elections Act, H.R. 3229, 118th Cong.
Sec. 1 (2023). A similar version of H.R. 3229 can also be found in H.R.
4563, the American Confidence in Elections Act. See Section 161,
available at https://cha.house.gov/_cache/files/c/8/c8c3a700-383e-41b9-
9091-33f0c88442a3/35A104982A7B97FD73578C57B7992BDD.majority-ans-
xml27.pdf.
\95\Full Committee Markup Nov. 30, 2023, Committee on House
Administration, https://cha.house.gov/hearings?ID=492432B5-97F9-48BB-
92B5-1497B20089E9.
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NEED FOR LEGISLATION
Representative Steil's H.R. 8399, the Preventing Foreign
Interference in American Elections Act would prohibit foreign
nationals from funding ballot harvesting, ballot collection,
get-out-the-vote activities, or the administration of a
federal, State, or local election. It would also clarify that
federal law's existing foreign national campaign finance
prohibition on indirect contributions covers attempts to
circumvent the ban through intermediates or instructions, and
protects Americans' First Amendment rights to donate to
nonprofit organizations as they see fit by prohibiting any
entity of the federal government from disclosing the donor
information of any nonprofit organization.
First, the legislation updates federal law's existing
foreign national campaign finance prohibition to cover modern
election activities like ballot harvesting and get-out-the-vote
activities. This is particularly important because an
increasing number of 501(c)(3) and (c)(4) organizations are
engaging in these activities\96\ and it is lawful for foreign
nationals to fund these activities directly or indirectly
through nonprofit organizations. More importantly, the
legislation prohibits foreign nationals from directly funding
federal, State, or local election administration activities,
commonly known as ``Zuckerbucks''.\97\ While CTCL's
distribution of Mark Zuckerberg's $350 million donation to
swing the 2020 election was bad enough, imagine if CTCL was a
foreign organization or the donation it received from
Zuckerberg came from a foreign national like Hansjorg Wyss. As
both situations are perfectly legal under federal law, this
legislation would prohibit them.\98\
---------------------------------------------------------------------------
\96\Comparison of 501(c)(3) and 501(c)(4) Permissible Activities,
Alliance For Justice (July 11, 2022), https://afj.org/resource/
comparison-of-501c3-and-501c4-permissible-activities/.
\97\In February of 2024, the Committee on House Administration
passed H.R. 7319, End Zuckerbucks Act of 2024 that would prohibit
501(c)(3) organizations from providing funding for federal, State, or
local election administration activities, and would prohibit the
District of Columbia from accepting private donations to help it
administer any election. See also H. Rept. 118-509, Part I, available
at https://www.congress.gov/congressional-report/118th-congress/house-
report/509/1?outputFormat=pdf.
\98\Foreign nationals could not engage in these activities in 28
States as those States have prohibited their election offices from
accepting donations to help them administer an election. See Sarah Lee,
Jon Rodeback, Hayden Ludwig, States Banning or Restricting ``Zuck
Bucks'', Capital Research Center (April 10, 2024), https://
capitalresearch.org/article/states-banning-zuck-bucks/.
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As described above, foreign nationals are using nonprofits
as pass-through organizations to engage in and influence
American elections. While this conduct likely violates the
foreign national campaign finance prohibition on ``indirect''
contributions, the FEC has had difficulties enforcing it. This
legislation would modernize what constitutes an ``indirect''
contribution and prevent foreign nationals from giving
nonprofits a donation with any type of instruction that results
in the nonprofit using any of the donation to influence
American elections. This provision is intentionally broad to
cover any type of instruction given by a foreign national to a
nonprofit whether direct, indirect, express, implied, oral,
written, or involving intermediaries or conduits. Moreover, the
prohibition ensures that no part of the foreign national's
donation is used to influence American elections. This
provision is designed to not just shut, but completely close
off the ability of foreign nationals to engage in American
elections using nonprofit organizations.
The FEC enforces substantive violations of campaign finance
law through complaints or referrals. If the FEC receives a
complaint or referral that a foreign national has violated the
foreign national campaign finance violation, this legislation
allows the accused to submit a certification, under penalty of
perjury, explaining that no violation of the law has occurred.
This certification is important because for any FEC
investigation to get off the ground, the commissioners must
vote to find there is ``reason to believe'' the complaint's
allegations. And a successful vote of the commissioners can
only occur if there is bipartisanship amongst the commissioners
as the FEC is made up of three Democratic and three Republican
commissioners. Under this legislation, the commissioners must
consider the foreign national's certification when determining
whether there is ``reason to believe'' the complaint's
allegations.
The legislation also protects nonprofit organizations in
any investigation into whether a foreign national has violated
the foreign national campaign finance prohibition. First, any
investigation can only proceed if the commissioners vote to
find there is ``reason to believe'' the complaint's
allegations. Second, the investigation is limited to the
factual matter necessary to determine whether the complaint's
allegations are accurate. This prevents broad or wide-ranging
probes into issues outside of the complaint's allegations and
outside of the FEC's jurisdiction. In addition, if the FEC were
to subpoena a nonprofit's records during an investigation, the
nonprofit organization can sue the FEC in U.S. federal district
court to quash the subpoena or any order of the FEC on the
basis that it is not limited to the scope of the factual matter
necessary to determine whether the complaint's allegations are
accurate. Finally, and most importantly, the legislation does
not impose new legal liability on nonprofit organizations. Even
if a foreign national uses a nonprofit in violation of the
foreign national campaign finance prohibition, existing
campaign finance law and this legislation does not create new
legal liability.
Finally, this legislation includes the Speech Privacy Act
because of the importance that donors in all organizations, no
matter their party affiliation, are protected from having their
membership disclosed and threats of reprisal that would follow.
In short, the Speech Privacy Act statutorily codifies the
Supreme Court's holdings in NAACP v. Alabama ex rel. Patterson
and Americans for Prosperity Foundation v. Bonta. It will give
voters confidence that no matter their political affiliation,
their speech is protected under the First Amendment. It
prohibits the Internal Revenue Service or any other government
agency from targeting political groups based on their beliefs.
It ensures that donors, no matter the group they are giving to
or the reason for the donation, are protected from mandatory
disclosure. Organizations should be able to exercise their
First Amendment rights without fear that their donors will be
disclosed--and therefore targeted--because of the government's
disagreement with the content of their message. Similarly,
donors of these organizations should be reassured that they can
support causes without concern that their information will be
made public because of the government's disagreement with their
views. This legislation reassures organizations and their
donors that they may enjoy their First Amendment rights without
fear of government retaliation.
It is antithetical to the First Amendment that the IRS or
any federal government agency would ever be used to target an
organization because of its political beliefs, or who its
donors might be. As such, these organizations need to be
protected to prevent events like what transpired at the IRS
between 2010 and 2013.
Unlike other attempts to prevent foreign nationals from
influencing American elections, the Preventing Foreign
Interference in Americans Elections Act takes important steps
to protect nonprofit organizations. First, it includes the
Speech Privacy Act to protect nonprofit organizations and their
donors. Second, it does not create any new legal liability for
nonprofit organizations. Third, it does not require nonprofit
organizations to disclose their donors with any government
agency, unless a specifically targeted investigation by the
FEC, with safeguards built into the process, is allowed to
proceed. And in that circumstance, only the FEC is allowed to
investigate, and it is only allowed to investigate the specific
factual matter as described in the complaint. It cannot engage
in a wide-reaching investigation. Finally, the legislation does
not give the Internal Revenue Service any new authorities or
create any new nonprofit reporting requirements. Instead, it
keeps investigatory power with the FEC, which is highly
unlikely to be used for partisan ends because the agency
requires bipartisanship amongst its commissioners before it can
move forward with any investigation.
Committee Action
INTRODUCTION AND REFERRAL
On May 14, 2024, Representative Bryan Steil (WI-01) joined
by Representative Stephanie Bice (OK-05), introduced H.R. 8399,
Preventing Foreign Interference in American Elections Act. The
bill was referred to the U.S. House of Representatives
Committee on House Administration and the Committee on
Oversight and Accountability.
HEARINGS
For the purposes of clause 3(c)(6)(A) of House Rule XIII,
in the 118th Congress, the Committee on House Administration
held three full committee hearings to develop H.R. 8399.
1. On May 11, 2023, the Committee held a full
committee hearing titled, ``American Confidence in
Elections: Protecting Political Speech.'' The hearing
took place almost a decade to the day since the
Internal Revenue Service scandal involving then Acting
Director of Exempt Organizations Lois Lerner
apologizing for inappropriately targeting conservative
organizations' applications for tax-exempt status.\99\
It focused on the importance of enhancing protections
for political speech and donor privacy to protect
individuals and groups from retribution, harassment, or
intimidation based on their beliefs. Witnesses
included: Ms. Harmeet K. Dhillon, Managing Partner,
Dhillon Law Group Inc., Ms. Audrey Perry Martin,
Partner, The Gober Group, Mr. Justin Riemer, Principal,
Riemer Law, LLC, Mr. Bradley A. Smith, Chairman and
Founder, Institute for Free Speech, and Mr. Stephen
Spaulding, Vice President for Policy & External
Affairs, Common Cause.\100\
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\99\Matt Nese, It's Been 10 Years Since the IRS's Tea Party
Scandal. Will Congress Finally Act?, Reason Foundation (May 10, 2023),
https://reason.com/2023/05/10/its-been-10-years-since-the-irss-tea-
party-scandal-will-congress-finally-act/.
\100\American Confidence in Elections: Protecting Political Speech:
Hearing Before the H. Comm. On Admin., 118th Cong. (2023).
---------------------------------------------------------------------------
2. On September 20, 2023, the Committee held a full
committee hearing titled, ``Oversight of the Federal
Elections Commission.'' The hearing represented the
first traditional oversight hearing of the Federal
Election Commission in more than a decade.\101\ The
committee heard testimony from all six commissioners
and the agency's inspector general. The first panel of
witnesses included the Honorable Dara Lindenbaum,
Chairwoman, the Honorable Sean Cooksey, Vice Chairman,
the Honorable Shana Broussard, Commissioner, the
Honorable Allen Dickerson, Commissioner, the Honorable
Ellen Weintraub, Commissioner, and the Honorable James
Trainor, Commissioner. The second panel featured Mr.
Christopher Skinner, Inspector General.\102\
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\101\The last traditional oversight hearing of the Federal Election
Commission before the Committee on House Administration occurred on
November 3, 2011. See Federal Election Commission: Reviewing Policies,
Processes and Procedures: Hearing Before the Subcomm. on Elections of
the H. Comm. on Admin., 112th Cong. (2011).
\102\Oversight of the Federal Election Commission: Hearing Before
the H. Comm. on Admin., 118th Cong. (2023).
---------------------------------------------------------------------------
3. On May 16, 2024, the Committee held a full
committee hearing titled, ``American Confidence in
Elections: Preventing Noncitizen Voting and Other
Foreign Interference.'' The hearing highlighted the
dangers associated with noncitizen voting, how States
do not have the tools nor resources to clean their
voter rolls, and what steps Congress can take to
rectify these problems. It also touched on the
loopholes in the federal campaign finance system that
allow foreign nationals to spend money in U.S.
elections and how Congress can close those loopholes.
Witnesses included the Honorable Cord Byrd, Florida
Secretary of State, the Honorable Hans A. von
Spakovsky, Manager, Election Law Reform Initiative and
Senior Legal Fellow, the Heritage Foundation, the
Honorable J. Christian Adams, President and Chief
Executive Officer of the Public Interest Legal
Foundation, Caitlin Sutherland, Executive Director of
Americans for Public Trust, and Michael Waldman,
President and Chief Executive Officer of the Brennan
Center for Justice.\103\
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\103\American Confidence in Elections: Preventing Noncitizen Voting
and Other Foreign Interference: Hearing Before the H. Comm. On Admin.,
118th Cong. (2024).
---------------------------------------------------------------------------
Committee Consideration
On May 23, 2024, the Committee on House Administration met
in open session and ordered the bill, H.R. 8399, Preventing
Foreign Interference in American Elections Act, as amended,
reported favorably to the House of Representatives, by a record
vote of six to one, a quorum being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
following vote occurred during the Committee's consideration of
H.R. 8399:
1. Vote on an amendment to H.R. 8399, offered by Mr.
Morelle, failed by a record vote of five noes and two
ayes. Noes: Steil, B., Griffith, M., Carey, M.,
D'Esposito, A., Lee, L. Ayes: Morelle, J., Sewell, T.
2. Vote on an amendment to H.R. 8399, offered by Mr.
Morelle, failed by a record vote of five noes and two
ayes. Noes: Steil, B., Griffith, M., Carey, M.,
D'Esposito, A., Lee, L. Ayes: Morelle, J., Sewell, T.
3. Vote on an amendment to H.R. 8399, offered by Mr.
Morelle, failed by a record vote of five noes and one
yes. Noes: Steil, B., Griffith, M., Carey, M.,
D'Esposito, A., Lee, L. Yes: Morelle, J.
4. Vote on an amendment in the nature of a substitute
to H.R. 8399 offered by Mr. Steil, passed by a record
vote of five ayes and one no. Ayes: Steil, B.,
Griffith, M., Carey, M., D'Esposito, A., Lee, L. No:
Morelle, J.
5. Vote to report H.R. 8399 favorably, as amended, to
the House of Representatives passed by a record vote of
six ayes and one no. Ayes: Steil, B., Griffith, M.,
Bice, S., Carey, M., D'Esposito, A., Lee, L. No:
Morelle, J.
Statement of Constitutional Authority
Congress has the power to enact this legislation pursuant
to the following:
Article I, Section 8, Clause 3--``To
regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes;''\104\
---------------------------------------------------------------------------
\104\U.S. Const. art. I, Sec. 8, cl. 3.
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Article I, Section 8, Clause 4--``To
establish an uniform Rule of Naturalization, . . .
throughout the United States;''\105\
---------------------------------------------------------------------------
\105\U.S. Const. art. I, Sec. 8, cl. 4.
---------------------------------------------------------------------------
Article IV, Section 4--``The United States
shall guarantee to every State in this Union a
Republican Form of Government, and shall protect each
of them against Invasion; . . .''\106\
---------------------------------------------------------------------------
\106\U.S. Const. art. IV, Sec. 4.
---------------------------------------------------------------------------
Article I, Section 8, Clause 18--``To make
all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all
other Powers vested by this Constitution in the
Government of the United States, or in any Department
or Officer thereof.''\107\
---------------------------------------------------------------------------
\107\U.S. Const. art. I, Sec. 8, cl. 18. In U.S. v. Singh, the
United States Court of Appeals for the Ninth Circuit held that the
foreign national spending prohibition was justified under Congress'
powers to provide for a uniform rule of naturalization, and was
necessary and proper to the exercise of its immigration and foreign
relations powers. See 924 F. 3d 1030, 1042-1043 (2019). Importantly,
the court did not rely on the Elections Clause of Article I, Section 4
to justify the prohibition. Cf Report: The Elections Clause: States'
Primary Constitutional Authority Over Elections, Comm. on H. Admin.
(Republicans) (Aug. 12, 2021), https://republicanscha.house.gov/sites/
republicans.cha.house.gov/files/documents/Report_The%20
Elections%20Clause_States%20Primary%20Constitutional%20Authority%20over%
20Elections%
20%28Aug%2011%202021%29.pdf.
---------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of rule X of the Rules of the House of Representatives, are
incorporated in the descriptive portions of this report.
Statement of Budget Authority and Related Items
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a)(I) of the
Congressional Budget Act of 1974, the Committee provides the
following opinion and estimate with respect to new budget
authority, entitlement authority, and tax expenditures. The
Committee believes that there will be no additional costs
attributable to H.R. 8399.
Congressional Budget Office Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives, a cost
estimate provided by the Congressional Budget Office pursuant
to section 402 of the Congressional Budget Act of 1974 was not
made available to the Committee in time for the filing of this
report. The Chairman of the Committee shall cause such an
estimate to be printed in the Congressional Record if it is
received by the Committee.
Performance Goals and Objectives
The performance goals and objectives of H.R. 8399 are to
prohibit foreign nationals from funding ballot harvesting,
ballot collection, get-out-the-vote activities, or the
administration of a federal, State, or local election. It would
also clarify that federal law's existing foreign national
campaign finance prohibition on indirect contributions covers
attempts to circumvent the ban through intermediates or
instructions, and protects Americans' First Amendment rights to
donate to nonprofit organizations as they see fit by
prohibiting any entity of the federal government from
disclosing the donor information of any nonprofit organization.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 8399 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 8399
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clauses
9(d), 9(e), or 9(f) of House rule XXI.
Federal Mandates Statement
An estimate of federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such an estimate to be printed in
the Congressional Record if it is received by the Committee.
Advisory Committee Statement
H.R. 8399 does not establish or authorize any new advisory
committees.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis
Section 1. Short title
Provides a short title for the bill: Preventing Foreign
Interference in American Elections Act.
Section 2. Modifications to foreign money ban
Section 2(a) amends federal law's foreign national campaign
finance prohibition to include donations for the purpose of:
(i) voter registration activity, (ii) ballot collection, (iii)
voter identification, (iv) get-out-the-vote activity, (v) any
public communication that refers to a clearly identified
Federal, State, or local political party, or (vi) the
administration of a Federal, State, or local election.
Section 2(b) amends federal law's foreign national campaign
finance prohibition to also encompass persons that knowingly
aid or facilitate a violation of the foreign national campaign
finance prohibition.
Section 2(c) provides a new definition for what constitutes
an indirect contribution under the foreign national campaign
finance prohibition. Under it, a person is treated as having
indirectly made a contribution, donation, expenditure, or
disbursement if the person has made the contribution or
donation to a person with a designation, instruction, or
encumbrance (whether direct or indirect, express or implied,
oral or written, or involving intermediaries or conduits) which
results in any part of such contribution, donation,
expenditure, or disbursement being used for an activity
described in the foreign national campaign finance prohibition.
Section 2(d)(1)(A) provides a defense for persons suspected
of violating the foreign national campaign finance prohibition.
When a complaint is filed with the Federal Election Commission
alleging a violation of the prohibition, the person can respond
to the allegation by submitting, under penalty of perjury, a
certification that no such violation has occurred.
Section 2(d)(1)(B) provides that the Federal Election
Commission shall take into consideration the certification
provided under Section 2(d)(1)(A) when making a determination
whether there is reason to believe a violation of the foreign
national campaign finance prohibition has occurred.
Section 2(d)(2)(A) limits the scope of any Federal Election
Commission investigation into a violation of the foreign
national campaign finance prohibition to the factual matter
necessary to determine whether such alleged violation has
occurred.
Section 2(d)(2)(B) allows persons subject to a Federal
Election Commission investigation of the foreign national
campaign finance prohibition to file a petition in any U.S.
district court with jurisdiction to quash any subpoena or order
of the Federal Election Commission on the basis that the
subpoena or order is not limited to the scope of the factual
matter necessary to determine whether such alleged violation
occurred as required by Section 2(d)(2)(A). In addition, this
provision does not alter the rights of any person to otherwise
challenge the power of the Federal Election Commission to issue
a subpoena under the Commission's other authorities.
Section 2(e)(1) requires political committees and/or
political parties in their reports of receipts and
disbursements to certify, under penalty of perjury, that they
have complied with the foreign national campaign finance
prohibition.
Section 2(e)(2) requires entities making independent
expenditures to certify on their statements, under penalty of
perjury, that they have complied with the foreign national
campaign finance prohibition.
Section 2(e)(3) requires entities making electioneering
communications to certify that their disbursement, under
penalty of perjury, complies with the foreign national campaign
finance prohibition.
Section 3. Protecting privacy of donors to tax-exempt organizations
Section 3(a)(1) prohibits any entity of the Federal
government from collecting or requiring the submission of
information on the identification of any donor to a tax-exempt
organization.
Section 3(a)(2) prohibits exceptions to 3(a)(1). Those are:
(A) The Internal Revenue Service, acting lawfully pursuant to
section 6033 of the Internal Revenue Code of 1986; (B) The
Secretary of the Senate and the Clerk of the House of
Representatives, acting lawfully pursuant to section 3 of the
Lobbying Disclosure Act of 1995, (C) The Federal Election
Commission acting lawfully pursuant to its authorities under
the campaign finance statutes and federal law that deal with
presidential inaugural committees, or (D) an entity acting
pursuant to a lawful order of a court or administrative body
which has the authority under law to direct the entity to
collect or require the submission of the information, but only
to the extent permitted by the lawful order of such court or
administrative body.
Section 3(b)(1) restricts an entity of the Federal
government from disclosing to the public information revealing
the identification of any donor to a tax-exempt organization.
Section 3(b)(2) provides exceptions to 3(b)(1), which are
the same exceptions found in 3(a)(2) and also includes an
entity which discloses the information as authorized by the
organization.
Section 3(c) provides a definition for a tax-exempt
organization of an organization described in section 501(c) of
the Internal Revenue Code of 1986 and is exempt from taxation
under section 501(a) of the code. This section also comes with
a rule of construction that this subsection should not be
construed to treat political organizations under section 527 of
the code as tax-exempt.
Section 3(d) provides penalties for persons that unlawfully
disclose any information revealing the identification of any
donor to a tax-exempt organization. For officers or employees
of the United States that unlawfully disclose this information,
their actions are a felony punishable upon conviction by a fine
in any amount not exceeding $250,000 or imprisonment of not
more than 5 years, or both, together with the costs of
prosecution, and they will also be dismissed from office or
discharged from any employment upon conviction of such offense.
For former officers or employees of the United States, their
actions are also a felony punishable upon conviction by a fine
in any amount not exceeding $250,000 or imprisonment of not
more than 5 years, or both, together with the costs of
prosecution.
Section 4. Effective date
Section 4(a)(1) provides that Section 2 (above) applies
with respect to donations or other amounts provided on or after
the date of the enactment of the act.
Section 4(a)(2) provides that the requirements in Section
2(e) apply to reports filed under the Federal Election Campaign
Act of 1971 on or after the date of enactment of the act.
Section 4(b) provides that Section 3 applies with respect
to donations made on or after the date of the enactment of this
act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
FEDERAL ELECTION CAMPAIGN ACT OF 1971
* * * * * * *
TITLE III--DISCLOSURE OF FEDERAL CAMPAIGN FUNDS
* * * * * * *
reports
Sec. 304. (a)(1) Each treasurer of a political committee
shall file reports of receipts and disbursements in accordance
with the provisions of this subsection. The treasurer shall
sign each such report.
(2) If the political committee is the principal campaign
committee of a candidate for the House of Representatives or
for the Senate--
(A) in any calendar year during which there is
regularly scheduled election for which such candidate
is seeking election, or nomination for election, the
treasurer shall file the following reports:
(i) a pre-election report, which shall be
filed no later than the 12th day before (or
posted by any of the following: registered
mail, certified mail, priority mail having a
delivery confirmation, or express mail having a
delivery confirmation, or delivered to an
overnight delivery service with an on-line
tracking system, if posted or delivered no
later than the 15th day before) any election in
which such candidate is seeking election, or
nomination for election, and which shall be
complete as of the 20th day before such
election;
(ii) a post-general election report, which
shall be filed no later than the 30th day after
any general election in which such candidate
has sought election, and which shall be
complete as of the 20th day after such general
election; and
(iii) additional quarterly reports, which
shall be filed no later than the 15th day after
the last day of each calendar quarter, and
which shall be complete as of the last day of
each calendar quarter: except that the report
for the quarter ending December 31 shall be
filed no later than January 31 of the following
calendar year; and
(B) in any other calendar year the treasurer shall
file quarterly reports, which shall be filed not later
than the 15th day after the last day of each calendar
quarter, and which shall be complete as of the last day
of each calendar quarter, except that the report for
the quarter ending December 31 shall be filed not later
than January 31 of the following calendar year.
(3) If the committee is the principal campaign committee of a
candidate for the office of President--
(A) in any calendar year during which a general
election is held to fill such office--
(i) the treasurer shall file monthly reports
if such committee has on January 1 of such
year, received contributions aggregating
$100,000 or made expenditures aggregating
$100,000 or anticipates receiving contributions
aggregating $100,000 or more or making
expenditures aggregating $100,000 or more
during such year: such monthly reports shall be
filed no later than the 20th day after the last
day of each month and shall be complete as of
the last day of the month, except that, in lieu
of filing the report otherwise due in November
and December, a pre-general election report
shall be filed in accordance with paragraph
(2)(A)(i), a post-general election report shall
be filed in accordance with paragraph
(2)(A)(ii), and a year end report shall be
filed no later than January 31 of the following
calendar year;
(ii) the treasurer of the other principal
campaign committees of a candidate for the
office of President shall file a pre-election
report or reports in accordance with paragraph
(2)(A)(i), a post-general election report in
accordance with paragraph (2)(A)(ii), and
quarterly reports in accordance with paragraph
(2)(A)(iii); and
(iii) if at any time during the election year
a committee filing under paragraph (3)(A)(ii)
receives contributions in excess of $100,000 or
makes expenditures in excess of $100,000, the
treasurer shall begin filing monthly reports
under paragraph (3)(A)(i) at the next reporting
period; and
(B) in any other calendar year, the treasurer shall
file either--
(i) monthly reports, which shall be filed no
later than the 20th day after the last day of
each month and shall be compete as of the last
day of the month; or
(ii) quarterly reports, which shall be filed
no later than the 15th day after the last day
of each calendar quarter and which shall be
complete as of the last day of each calendar
quarter.
(4) All political committees other than authorized committees
of a candidate shall file either--
(A)(i) quarterly reports, in a calendar year in which
a regularly scheduled general election is held, which
shall be filed no later than the 15th day after the
last day of each calendar quarter: except that the
report for the quarter ending on December 31 of such
calendar year shall be filed no later than January 31
of the following calendar year.
(ii) a pre-election report, which shall be filed no
later than the 12th day before (or posted by any of the
following: registered mail, certified mail, priority
mail having a delivery confirmation, or express mail
having a delivery confirmation, or delivered to an
overnight delivery service with an on-line tracking
system, if posted or delivered no later than the 15th
day before) any election in which the committee makes a
contribution to or expenditure on behalf of a candidate
in such election, and which shall be complete as of the
20th day before the election;
(iii) a post-general election report, which shall be
filed no later than the 30th day after the general
election and which shall be complete as of the 20th day
after such general election; and
(iv) in any other calendar year, a report covering
the period beginning January 1 and ending June 30,
which shall be filed no later than July 31 and a report
covering the period beginning July 1 and ending
December 31, which shall be filed no later than January
31 of the following calendar year; or
(B) monthly reports in all calendar years which shall
be filed no later than the 20th day after the last day
of the month and shall be complete as of the last day
of the month, except that, in lieu of filing the
reports otherwise due in November and December of any
year in which a regularly scheduled general election is
held, a pre-general election report shall be filed in
accordance with paragraph (2)(A)(i), a post-general
election report shall be filed in accordance with
paragraph (2)(A)(ii), and a year end report shall be
filed no later than January 31 of the following
calendar year.
Notwithstanding the preceding sentence, a national committee of
a political party shall file the reports required under
subparagraph (B).
(5) If a designation, report, or statement filed
pursuant to this Act (other than under paragraph
(2)(A)(i) or (4)(A)(ii) or subsection (g)(1)) is sent
by registered mail, certified mail, priority mail
having a delivery confirmation, or express mail having
a delivery confirmation, the United States postmark
shall be considered the date of filing the designation,
report or statement. If a designation, report or
statement filed pursuant to this Act (other than under
paragraph (2)(A)(i) or (4)(A)(ii), or subsection
(g)(1)) is sent by an overnight delivery service with
an on-line tracking system, the date on the proof of
delivery to the delivery service shall be considered
the date of filing of the designation, report, or
statement.
(6)(A) The principal campaign committee of a candidate shall
notify the Secretary or the Commission, and the Secretary of
State, as appropriate, in writing, of any contribution of
$1,000 or more received by any authorized committee of such
candidate after the 20th day, but more than 48 hours before,
any election. This notification shall be made within 48 hours
after the receipt of such contribution and shall include the
name of the candidate and the office sought by the candidate,
the identification of the contributor, and the date of receipt
and amount of the contribution.
(B) Notification of expenditure from personal funds.--
(i) Definition of expenditure from personal funds.--
In this subparagraph, the term ``expenditure from
personal funds'' means--
(I) an expenditure made by a candidate using
personal funds; and
(II) a contribution or loan made by a
candidate using personal funds or a loan
secured using such funds to the candidate's
authorized committee.
(ii) Declaration of intent.--Not later than the date
that is 15 days after the date on which an individual
becomes a candidate for the office of Senator, the
candidate shall file a declaration stating the total
amount of expenditures from personal funds that the
candidate intends to make, or to obligate to make, with
respect to the election that will exceed the State-by-
State competitive and fair campaign formula with--
(I) the Commission; and
(II) each candidate in the same election.
(iii) Initial notification.--Not later than 24 hours
after a candidate described in clause (ii) makes or
obligates to make an aggregate amount of expenditures
from personal funds in excess of 2 times the threshold
amount in connection with any election, the candidate
shall file a notification with--
(I) the Commission; and
(II) each candidate in the same election.
(iv) Additional notification.--After a candidate
files an initial notification under clause (iii), the
candidate shall file an additional notification each
time expenditures from personal funds are made or
obligated to be made in an aggregate amount that exceed
$10,000 with--
(I) the Commission; and
(II) each candidate in the same election.
Such notification shall be filed not later than 24
hours after the expenditure is made.
(v) Contents.--A notification under clause (iii) or
(iv) shall include--
(I) the name of the candidate and the office
sought by the candidate;
(II) the date and amount of each expenditure;
and
(III) the total amount of expenditures from
personal funds that the candidate has made, or
obligated to make, with respect to an election
as of the date of the expenditure that is the
subject of the notification.
(C) Notification of disposal of excess contributions.--In the
next regularly scheduled report after the date of the election
for which a candidate seeks nomination for election to, or
election to, Federal office, the candidate or the candidate's
authorized committee shall submit to the Commission a report
indicating the source and amount of any excess contributions
(as determined under paragraph (1) of section 315(i)) and the
manner in which the candidate or the candidate's authorized
committee used such funds.
(D) Enforcement.--For provisions providing for the
enforcement of the reporting requirements under this paragraph,
see section 309.
(E) The notification required under this paragraph shall be
in addition to all other reporting requirements under this Act.
(7) The reports required to be filed by this subsection shall
be cumulative during the calendar year to which they relate,
but where there has been no change in an item reported in a
previous report during such year, only the amount need be
carried forward.
(8) The requirement for a political committee to file a
quarterly report under paragraph (2)(A)(iii) or paragraph
(4)(A)(i) shall be waived if such committee is required to file
a pre-election report under paragraph (2)(A)(i), or paragraph
(4)(A)(ii) during the period beginning on the 5th day after the
close of the calendar quarter and ending on the 15th day after
the close of the calendar quarter.
(9) The Commission shall set filing dates for reports to be
filed by principal campaign committees of candidates seeking
election, or nomination for election, in special elections and
political committees filing under paragraph (4)(A) which make
contributions to or expenditures on behalf of a candidate or
candidates in special elections. The Commission shall require
no more than one pre-election report for each election and one
post-election report for the election which fills the vacancy.
The Commission may waive any reporting obligation of committees
required to file for special elections if any report required
by paragraph (2) or (4) is required to be filed within 10 days
of a report required under this subsection. The Commission
shall establish the reporting dates within 5 days of the
setting of such election and shall publish such dates and
notify the principal campaign committees of all candidates in
such election of the reporting dates.
(10) The treasurer of a committee supporting a candidate for
the office of Vice President (other than the nominee of a
political party) shall file reports in accordance with
paragraph (3).
(11)(A) The Commission shall promulgate a regulation under
which a person required to file a designation, statement, or
report under this Act--
(i) is required to maintain and file a designation,
statement, or report for any calendar year in
electronic form accessible by computers if the person
has, or has reason to expect to have, aggregate
contributions or expenditures in excess of a threshold
amount determined by the Commission; and
(ii) may maintain and file a designation, statement,
or report in electronic form or an alternative form if
not required to do so under the regulation promulgated
under clause (i).
(B) The Commission shall make a designation, statement,
report, or notification that is filed with the Commission under
this Act available for inspection by the public in the offices
of the Commission and accessible to the public on the Internet
not later than 48 hours (or not later than 24 hours in the case
of a designation, statement, report, or notification filed
electronically) after receipt by the Commission.
(C) In promulgating a regulation under this paragraph, the
Commission shall provide methods (other than requiring a
signature on the document being filed) for verifying
designations, statements, and reports covered by the
regulation. Any document verified under any of the methods
shall be treated for all purposes (including penalties for
perjury) in the same manner as a document verified by
signature.
(D) As used in this paragraph, the term ``report'' means,
with respect to the Commission, a report, designation, or
statement required by this Act to be filed with the Commission.
(12) Software for filing of reports.--
(A) In general.--The Commission shall--
(i) promulgate standards to be used
by vendors to develop software that--
(I) permits candidates to
easily record information
concerning receipts and
disbursements required to be
reported under this Act at the
time of the receipt or
disbursement;
(II) allows the information
recorded under subclause (I) to
be transmitted immediately to
the Commission; and
(III) allows the Commission
to post the information on the
Internet immediately upon
receipt; and
(ii) make a copy of software that
meets the standards promulgated under
clause (i) available to each person
required to file a designation,
statement, or report in electronic form
under this Act.
(B) Additional information.--To the extent
feasible, the Commission shall require vendors
to include in the software developed under the
standards under subparagraph (A) the ability
for any person to file any designation,
statement, or report required under this Act in
electronic form.
(C) Required use.--Notwithstanding any
provision of this Act relating to times for
filing reports, each candidate for Federal
office (or that candidate's authorized
committee) shall use software that meets the
standards promulgated under this paragraph once
such software is made available to such
candidate.
(D) Required posting.--The Commission shall,
as soon as practicable, post on the Internet
any information received under this paragraph.
(b) Each report under this section shall disclose--
(1) the amount of cash on hand at the beginning of
the reporting period;
(2) for the reporting period and the calendar year
(or election cycle, in the case of an authorized
committee of a candidate for Federal office), the total
amount of all receipts, and the total amount of all
receipts in the following categories:
(A) contributions from persons other than
political committees;
(B) for an authorized committee,
contributions from the candidate;
(C) contributions from political party
committees;
(D) contributions from other political
committees;
(E) for an authorized committee, transfers
from other authorized committees of the same
candidate;
(F) transfers from affiliated committees and,
where the reporting committee is a political
party committee, transfers from other political
party committees, regardless of whether such
committees are affiliated;
(G) for an authorized committee, loans made
by or guaranteed by the candidate;
(H) all other loans;
(I) rebates, refunds, and other offsets to
operating expenditures;
(J) dividends, interest, and other forms of
receipts; and
(K) for an authorized committee of a
candidate for the office of President, Federal
funds received under chapter 95 and chapter 96
of the Internal Revenue Code of 1954;
(3) the identification of each--
(A) person (other than a political committee)
who makes a contribution to the reporting
committee during the reporting period, whose
contribution or contributions have an aggregate
amount or value in excess of $200 within the
calendar year (or election cycle, in the case
of an authorized committee of a candidate for
Federal office), or in any lesser amount if the
reporting committee should so elect, together
with the date and amount of any such
contribution;
(B) political committee which makes a
contribution to the reporting committee during
the reporting period, together with the date
and amount of any such contribution;
(C) authorized committee which makes a
transfer to the reporting committee;
(D) affiliated committee which makes a
transfer to the reporting committee during the
reporting period and, where the reporting
committee is a political party committee, each
transfer of funds to the reporting committee
from another political party committee,
regardless of whether such committees are
affiliated, together with the date and amount
of such transfer;
(E) person who makes a loan to the reporting
committee during the reporting period, together
with the identification of any endorser or
guarantor of such loan, and the date and amount
or value of such loan;
(F) person who provides a rebate, refund, or
other offset to operating expenditures to the
reporting committee in an aggregate amount or
value in excess of $200 within the calendar
year (or election cycle, in the case of an
authorized committee of a candidate for Federal
office), together with the date and amount of
such receipt; and
(G) person who provides any dividend,
interest, or other receipt to the reporting
committee in an aggregate value or amount in
excess of $200 within the calendar year (or
election cycle, in the case of an authorized
committee of a candidate for Federal office),
together with the date and amount of any such
receipt;
(4) for the reporting period and the calendar year
(or election cycle, in the case of an authorized
committee of a candidate for Federal office), the total
amount of all disbursements, and all disbursements in
the following categories:
(A) expenditures made to meet candidate or
committee operating expenses;
(B) for authorized committees, transfers to
other committees authorized by the same
candidate;
(C) transfers to affiliated committees and,
where the reporting committee is a political
party committee, transfers to other political
party committees, regardless of whether they
are affiliated;
(D) for an authorized committee, repayment of
loans made by or guaranteed by the candidate;
(E) repayment of all other loans;
(F) contribution refunds and other offsets to
contributions;
(G) for an authorized committee, any other
disbursements;
(H) for any political committee other than an
authorized committee--
(i) contributions made to other
political committees;
(ii) loans made by the reporting
committees;
(iii) independent expenditures;
(iv) expenditures made under section
315(d) of this Act; and
(v) any other disbursements; and
(I) for an authorized committee of a
candidate for the office of President,
disbursements not subject to the limitation of
section 315(b);
(5) the name and address of each--
(A) person to whom an expenditure in an
aggregate amount or value in excess of $200
within the calendar year is made by the
reporting committee to meet a candidate or
committee operating expense, together with the
date, amount, and purpose of such operating
expenditure;
(B) authorized committee to which a transfer
is made by the reporting committee;
(C) affiliated committee to which a transfer
is made by the reporting committee during the
reporting period and, where the reporting
committee is a political party committee, each
transfer of funds by the reporting committee to
another political party committee, regardless
of whether such committees are affiliated,
together with the date and amount of such
transfers;
(D) person who receives a loan repayment from
the reporting committee during the reporting
period, together with the date and amount of
such loan repayment; and
(E) person who receives a contribution refund
or other offset to contributions from the
reporting committee where such contribution was
reported under paragraph (3)(A) of this
subsection, together with the date and amount
of such disbursement;
(6)(A) for an authorized committee, the name and
address of each person who has received any
disbursement not disclosed under paragraph (5) in an
aggregate amount or value in excess of $200 within the
calendar year (or election cycle, in the case of an
authorized committee of a candidate for Federal
office), together with the date and amount of any such
disbursement;
(B) for any other political committee, the name and
address of each--
(i) political committee which has received a
contribution from the reporting committee
during the reporting period, together with the
date and amount of any such contribution;
(ii) person who has received a loan from the
reporting committee during the reporting
period, together with the date and amount of
such loan;
(iii) person who receives any disbursement
during the reporting period in an aggregate
amount or value in excess of $200 within the
calendar year (or election cycle, in the case
of an authorized committee of a candidate for
Federal office) in connection with an
independent expenditure by the reporting
committee, together with the date, amount, and
purpose of any such independent expenditure and
a statement which indicates whether such
independent expenditure is in support of, or in
opposition to, a candidate, as well as the name
and office sought by such candidate, [and a
certification] a certification, under penalty
of perjury, whether such independent
expenditure is made in cooperation,
consultation, or concert, with, or at the
request or suggestion of, any candidate or any
authorized committee or agent of such
committee, and a certification, under penalty
of perjury that the independent expenditure
does not violate section 319(a);
(iv) person who receives any expenditure from
the reporting committee during the reporting
period in connection with an expenditure under
section 315(d) in the Act, together with the
date, amount, and purpose of any such
expenditure as well as the name of, and office
sought by, the candidate on whose behalf the
expenditure is made; and
(v) person who has received any disbursement
not otherwise disclosed in this paragraph or
paragraph (5) in an aggregate amount or value
in excess of $200 within the calendar year (or
election cycle, in the case of an authorized
committee of a candidate for Federal office)
from the reporting committee within the
reporting period, together with the date,
amount, and purpose of any such disbursement;
(7) the total sum of all contributions to such
political committee, together with the total
contributions less offsets to contributions and the
total sum of all operating expenditures made by such
political committee, together with total operating
expenditures less offsets to operating expenditures,
for both the reporting period and the calendar year (or
election cycle, in the case of an authorized committee
of a candidate for Federal office); [and]
(8) the amount and nature of outstanding debts and
obligations owed by or to such political committee; and
where such debts and obligations are settled for less
than their reported amount or value, a statement as to
the circumstances and conditions under which such debts
or obligations were extinguished and the consideration
therefor[.]; and
(9) under penalty of perjury, a certification that
the committee has complied with the requirements of
section 319(a).
(c)(1) Every person (other than a political committee) who
makes independent expenditures in an aggregate amount or value
in excess of $250 during a calendar year shall file a statement
containing the information required under subsection (b)(3)(A)
for all contributions received by such person.
(2) Statements required to be filed by this subsection shall
be filed in accordance with subsection (a)(2), and shall
include--
(A) the information required by subsection
(b)(6)(B)(iii), indicating whether the independent
expenditure is in support of, or in opposition to, the
candidate involved;
(B) under penalty of perjury, a certification whether
or not such independent expenditure is made in
cooperation, consultation, or concert, with, or at the
request or suggestion of, any candidate or any
authorized committee or agent of such candidate; [and]
(C) under penalty of perjury, a certification that
the independent expenditure does not violate section
319(a); and
[(C)] (D) the identification of each person who made
a contribution in excess of $200 to the person filing
such statement which was made for the purpose of
furthering an independent expenditure.
(3) The Commission shall be responsible for expeditiously
preparing indices which set forth, on a candidate-by-candidate
basis, all independent expenditures separately, including those
reported under subsection (b)(6)(B)(iii), made by or for each
candidate, as reported under this subsection, and for
periodically publishing such indices on a timely pre-election
basis.
(d)(1) Any person who is required to file a statement under
subsection (c) or (g) of this section, except statements
required to be filed electronically pursuant to subsection
(a)(11)(A)(i) may file the statement by facsimile device or
electronic mail, in accordance with such regulations as the
Commission may promulgate.
(2) The Commission shall make a document which is filed
electronically with the Commission pursuant to this paragraph
accessible to the public on the Internet not later than 24
hours after the document is received by the Commission.
(3) In promulgating a regulation under this paragraph, the
Commission shall provide methods (other than requiring a
signature on the document being filed) for verifying the
documents covered by the regulation. Any document verified
under any of the methods shall be treated for all purposes
(including penalties for perjury) in the same manner as a
document verified by signature.
(e) Political Committees.--
(1) National and congressional political
committees.--The national committee of a political
party, any national congressional campaign committee of
a political party, and any subordinate committee of
either, shall report all receipts and disbursements
during the reporting period.
(2) Other political committees to which section 323
applies.--
(A) In general.--In addition to any other
reporting requirements applicable under this
Act, a political committee (not described in
paragraph (1)) to which section 323(b)(1)
applies shall report all receipts and
disbursements made for activities described in
section 301(20)(A), unless the aggregate amount
of such receipts and disbursements during the
calendar year is less than $5,000.
(B) Specific disclosure by state and local
parties of certain non-federal amounts
permitted to be spent on federal election
activity.--Each report by a political committee
under subparagraph (A) of receipts and
disbursements made for activities described in
section 301(20)(A) shall include a disclosure
of all receipts and disbursements described in
section 323(b)(2)(A) and (B).
(3) Itemization.--If a political committee has
receipts or disbursements to which this subsection
applies from or to any person aggregating in excess of
$200 for any calendar year, the political committee
shall separately itemize its reporting for such person
in the same manner as required in paragraphs (3)(A),
(5), and (6) of subsection (b).
(4) Reporting periods.--Reports required to be filed
under this subsection shall be filed for the same time
periods required for political committees under
subsection (a)(4)(B).
(f) Disclosure of Electioneering Communications.--
(1) Statement required.--Every person who makes a
disbursement for the direct costs of producing and
airing electioneering communications in an aggregate
amount in excess of $10,000 during any calendar year
shall, within 24 hours of each disclosure date, file
with the Commission a statement containing the
information described in paragraph (2).
(2) Contents of statement.--Each statement required
to be filed under this subsection shall be made under
penalty of perjury and shall contain the following
information:
(A) The identification of the person making
the disbursement, of any person sharing or
exercising direction or control over the
activities of such person, and of the custodian
of the books and accounts of the person making
the disbursement.
(B) The principal place of business of the
person making the disbursement, if not an
individual.
(C) The amount of each disbursement of more
than $200 during the period covered by the
statement and the identification of the person
to whom the disbursement was made.
(D) The elections to which the electioneering
communications pertain and the names (if known)
of the candidates identified or to be
identified.
(E) If the disbursements were paid out of a
segregated bank account which consists of funds
contributed solely by individuals who are
United States citizens or nationals or lawfully
admitted for permanent residence (as defined in
section 101(a)(20) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(20)))
directly to this account for electioneering
communications, the names and addresses of all
contributors who contributed an aggregate
amount of $1,000 or more to that account during
the period beginning on the first day of the
preceding calendar year and ending on the
disclosure date. Nothing in this subparagraph
is to be construed as a prohibition on the use
of funds in such a segregated account for a
purpose other than electioneering
communications.
(F) If the disbursements were paid out of
funds not described in subparagraph (E), the
names and addresses of all contributors who
contributed an aggregate amount of $1,000 or
more to the person making the disbursement
during the period beginning on the first day of
the preceding calendar year and ending on the
disclosure date.
(G) A certification, under penalty of
perjury, that the disbursement does not violate
section 319(a).
(3) Electioneering communication.--For purposes of
this subsection--
(A) In general.--(i) The term
``electioneering communication'' means any
broadcast, cable, or satellite communication
which--
(I) refers to a clearly identified
candidate for Federal office;
(II) is made within--
(aa) 60 days before a
general, special, or runoff
election for the office sought
by the candidate; or
(bb) 30 days before a primary
or preference election, or a
convention or caucus of a
political party that has
authority to nominate a
candidate, for the office
sought by the candidate; and
(III) in the case of a communication
which refers to a candidate for an
office other than President or Vice
President, is targeted to the relevant
electorate.
(ii) If clause (i) is held to be
constitutionally insufficient by final judicial
decision to support the regulation provided
herein, then the term ``electioneering
communication'' means any broadcast, cable, or
satellite communication which promotes or
supports a candidate for that office, or
attacks or opposes a candidate for that office
(regardless of whether the communication
expressly advocates a vote for or against a
candidate) and which also is suggestive of no
plausible meaning other than an exhortation to
vote for or against a specific candidate.
Nothing in this subparagraph shall be construed
to affect the interpretation or application of
section 100.22(b) of title 11, Code of Federal
Regulations.
(B) Exceptions.--The term ``electioneering
communication'' does not include--
(i) a communication appearing in a
news story, commentary, or editorial
distributed through the facilities of
any broadcasting station, unless such
facilities are owned or controlled by
any political party, political
committee, or candidate;
(ii) a communication which
constitutes an expenditure or an
independent expenditure under this Act;
(iii) a communication which
constitutes a candidate debate or forum
conducted pursuant to regulations
adopted by the Commission, or which
solely promotes such a debate or forum
and is made by or on behalf of the
person sponsoring the debate or forum;
or
(iv) any other communication exempted
under such regulations as the
Commission may promulgate (consistent
with the requirements of this
paragraph) to ensure the appropriate
implementation of this paragraph,
except that under any such regulation a
communication may not be exempted if it
meets the requirements of this
paragraph and is described in section
301(20)(A)(iii).
(C) Targeting to relevant electorate.--For
purposes of this paragraph, a communication
which refers to a clearly identified candidate
for Federal office is ``targeted to the
relevant electorate'' if the communication can
be received by 50,000 or more persons--
(i) in the district the candidate
seeks to represent, in the case of a
candidate for Representative in, or
Delegate or Resident Commissioner to,
the Congress; or
(ii) in the State the candidate seeks
to represent, in the case of a
candidate for Senator.
(4) Disclosure date.--For purposes of this
subsection, the term ``disclosure date'' means--
(A) the first date during any calendar year
by which a person has made disbursements for
the direct costs of producing or airing
electioneering communications aggregating in
excess of $10,000; and
(B) any other date during such calendar year
by which a person has made disbursements for
the direct costs of producing or airing
electioneering communications aggregating in
excess of $10,000 since the most recent
disclosure date for such calendar year.
(5) Contracts to disburse.--For purposes of this
subsection, a person shall be treated as having made a
disbursement if the person has executed a contract to
make the disbursement.
(6) Coordination with other requirements.--Any
requirement to report under this subsection shall be in
addition to any other reporting requirement under this
Act.
(7) Coordination with internal revenue code.--Nothing
in this subsection may be construed to establish,
modify, or otherwise affect the definition of political
activities or electioneering activities (including the
definition of participating in, intervening in, or
influencing or attempting to influence a political
campaign on behalf of or in opposition to any candidate
for public office) for purposes of the Internal Revenue
Code of 1986.
(g) Time for Reporting Certain Expenditures.--
(1) Expenditures aggregating $1,000.--
(A) Initial report.--A person (including a
political committee) that makes or contracts to
make independent expenditures aggregating
$1,000 or more after the 20th day, but more
than 24 hours, before the date of an election
shall file a report describing the expenditures
within 24 hours.
(B) Additional reports.--After a person files
a report under subparagraph (A), the person
shall file an additional report within 24 hours
after each time the person makes or contracts
to make independent expenditures aggregating an
additional $1,000 with respect to the same
election as that to which the initial report
relates.
(2) Expenditures aggregating $10,000.--
(A) Initial report.--A person (including a
political committee) that makes or contracts to
make independent expenditures aggregating
$10,000 or more at any time up to and including
the 20th day before the date of an election
shall file a report describing the expenditures
within 48 hours.
(B) Additional reports.--After a person files
a report under subparagraph (A), the person
shall file an additional report within 48 hours
after each time the person makes or contracts
to make independent expenditures aggregating an
additional $10,000 with respect to the same
election as that to which the initial report
relates.
(3) Place of filing; contents.--A report under this
subsection--
(A) shall be filed with the Commission; and
(B) shall contain the information required by
subsection (b)(6)(B)(iii), including the name
of each candidate whom an expenditure is
intended to support or oppose.
(4) Time of filing for expenditures aggregating
$1,000.--Notwithstanding subsection (a)(5), the time at
which the statement under paragraph (1) is received by
the Commission or any other recipient to whom the
notification is required to be sent shall be considered
the time of filing of the statement with the recipient.
(h) Reports From Inaugural Committees.--The Federal Election
Commission shall make any report filed by an Inaugural
Committee under section 510 of title 36, United States Code,
accessible to the public at the offices of the Commission and
on the Internet not later than 48 hours after the report is
received by the Commission.
(i) Disclosure of Bundled Contributions.--
(1) Required disclosure.--Each committee described in
paragraph (6) shall include in the first report
required to be filed under this section after each
covered period (as defined in paragraph (2)) a separate
schedule setting forth the name, address, and employer
of each person reasonably known by the committee to be
a person described in paragraph (7) who provided 2 or
more bundled contributions to the committee in an
aggregate amount greater than the applicable threshold
(as defined in paragraph (3)) during the covered
period, and the aggregate amount of the bundled
contributions provided by each such person during the
covered period.
(2) Covered period.--In this subsection, a ``covered
period'' means, with respect to a committee--
(A) the period beginning January 1 and ending
June 30 of each year;
(B) the period beginning July 1 and ending
December 31 of each year; and
(C) any reporting period applicable to the
committee under this section during which any
person described in paragraph (7) provided 2 or
more bundled contributions to the committee in
an aggregate amount greater than the applicable
threshold.
(3) Applicable threshold.--
(A) In general.--In this subsection, the
``applicable threshold'' is $15,000, except
that in determining whether the amount of
bundled contributions provided to a committee
by a person described in paragraph (7) exceeds
the applicable threshold, there shall be
excluded any contribution made to the committee
by the person or the person's spouse.
(B) Indexing.--In any calendar year after
2007, section 315(c)(1)(B) shall apply to the
amount applicable under subparagraph (A) in the
same manner as such section applies to the
limitations established under subsections
(a)(1)(A), (a)(1)(B), (a)(3), and (h) of such
section, except that for purposes of applying
such section to the amount applicable under
subparagraph (A), the ``base period'' shall be
2006.
(4) Public availability.--The Commission shall ensure
that, to the greatest extent practicable--
(A) information required to be disclosed
under this subsection is publicly available
through the Commission website in a manner that
is searchable, sortable, and downloadable; and
(B) the Commission's public database
containing information disclosed under this
subsection is linked electronically to the
websites maintained by the Secretary of the
Senate and the Clerk of the House of
Representatives containing information filed
pursuant to the Lobbying Disclosure Act of
1995.
(5) Regulations.--Not later than 6 months after the
date of enactment of the Honest Leadership and Open
Government Act of 2007, the Commission shall promulgate
regulations to implement this subsection. Under such
regulations, the Commission--
(A) may, notwithstanding paragraphs (1) and
(2), provide for quarterly filing of the
schedule described in paragraph (1) by a
committee which files reports under this
section more frequently than on a quarterly
basis;
(B) shall provide guidance to committees with
respect to whether a person is reasonably known
by a committee to be a person described in
paragraph (7), which shall include a
requirement that committees consult the
websites maintained by the Secretary of the
Senate and the Clerk of the House of
Representatives containing information filed
pursuant to the Lobbying Disclosure Act of
1995;
(C) may not exempt the activity of a person
described in paragraph (7) from disclosure
under this subsection on the grounds that the
person is authorized to engage in fundraising
for the committee or any other similar grounds;
and
(D) shall provide for the broadest possible
disclosure of activities described in this
subsection by persons described in paragraph
(7) that is consistent with this subsection.
(6) Committees described.--A committee described in
this paragraph is an authorized committee of a
candidate, a leadership PAC, or a political party
committee.
(7) Persons described.--A person described in this
paragraph is any person, who, at the time a
contribution is forwarded to a committee as described
in paragraph (8)(A)(i) or is received by a committee as
described in paragraph (8)(A)(ii), is--
(A) a current registrant under section 4(a)
of the Lobbying Disclosure Act of 1995;
(B) an individual who is listed on a current
registration filed under section 4(b)(6) of
such Act or a current report under section
5(b)(2)(C) of such Act; or
(C) a political committee established or
controlled by such a registrant or individual.
(8) Definitions.--For purposes of this subsection,
the following definitions apply:
(A) Bundled contribution.--The term ``bundled
contribution'' means, with respect to a
committee described in paragraph (6) and a
person described in paragraph (7), a
contribution (subject to the applicable
threshold) which is--
(i) forwarded from the contributor or
contributors to the committee by the
person; or
(ii) received by the committee from a
contributor or contributors, but
credited by the committee or candidate
involved (or, in the case of a
leadership PAC, by the individual
referred to in subparagraph (B)
involved) to the person through
records, designations, or other means
of recognizing that a certain amount of
money has been raised by the person.
(B) Leadership pac.--The term ``leadership
PAC'' means, with respect to a candidate for
election to Federal office or an individual
holding Federal office, a political committee
that is directly or indirectly established,
financed, maintained or controlled by the
candidate or the individual but which is not an
authorized committee of the candidate or
individual and which is not affiliated with an
authorized committee of the candidate or
individual, except that such term does not
include a political committee of a political
party.
* * * * * * *
contributions and donations by foreign nationals
Sec. 319. (a) Prohibition.--It shall be unlawful for--
(1) a foreign national, directly or indirectly, to
make--
(A) a contribution or donation of money or
other thing of value, or to make an express or
implied promise to make a contribution or
donation, in connection with a Federal, State,
or local election;
(B) a contribution or donation to a committee
of a political party; [or]
(C) an expenditure, independent expenditure,
or disbursement for an electioneering
communication (within the meaning of section
304(f)(3)); or
(D) a donation for the purpose of--
(i) voter registration activity;
(ii) ballot collection;
(iii) voter identification;
(iv) get-out-the-vote activity;
(v) any public communication that
refers to a clearly identified Federal,
State, or local political party; or
(vi) the administration of a Federal,
State, or local election;
(2) a person to solicit, accept, or receive a
contribution or donation described in [subparagraph (A)
or (B) of paragraph (1)] subparagraph (A), (B), or (D)
of paragraph (1) from a foreign national[.]; or
(3) a person to knowingly aid or facilitate a
violation of paragraph (1) or (2).
(b) As used in this section, the term ``foreign national''
means--
(1) a foreign principal, as such term is defined by
section 1(b) of the Foreign Agents Registration Act of
1938 (22 U.S.C. 611(b)), except that the term ``foreign
national'' shall not include any individual who is a
citizen of the United States; or
(2) an individual who is not a citizen of the United
States or a national of the United States (as defined
in section 101(a)(22) of the Immigration and
Nationality Act) and who is not lawfully admitted for
permanent residence, as defined by section 101(a)(20)
of the Immigration and Nationality Act (8 U.S.C.
1101(a)(20)).
(c) Indirect Contributions.--For purposes of this section, a
person shall be treated as having indirectly made a
contribution, donation, expenditure, or disbursement described
in subparagraphs (A), (B), (C), or (D) of subsection (a)(1) if
such person has made a contribution or donation to a person
with a designation, instruction, or encumbrance (whether direct
or indirect, express or implied, oral or written, or involving
intermediaries or conduits) which results in any part of such
contribution, donation, expenditure, or disbursement being used
for an activity described in subparagraphs (A), (B), (C), or
(D) of subsection (a)(1).
(d) Enforcement.--
(1) Use of certification as a defense.--
(A) In general.--In the case of any
allegation that a person has violated
subsection (a), any person alleged in the
complaint may, in connection with a response to
such allegation under section 309(a)(1),
submit, under penalty of perjury, a
certification that no such violation has
occurred.
(B) Effect of submission.--The Commission
shall take into consideration any certification
submitted under subparagraph (A) in making a
determination under section 309(a)(2) whether
there is reason to believe such violation has
occurred.
(2) Limitation on investigations.--
(A) In general.--If the Commission makes a
determination under section 309(a)(2) that
there is reason to believe a violation of
subsection (a) has occurred or is about to
occur, any investigation of such alleged
violation shall be limited in scope to the
factual matter necessary to determine whether
such alleged violation occurred.
(B) Petition to quash subpoena or order on
basis not limited in scope to necessary factual
matter.--
(i) In general.--A person subject to
an investigation by the Commission
following a determination of the
Commission that there is reason to
believe a violation of subsection (a)
has occurred or is about to occur may
file a petition in any United States
district court with jurisdiction to
quash any subpoena or order of the
Commission issued under paragraph (3)
or (4), respectively, of section 307(a)
on the basis that the subpoena or order
is not limited in scope to the factual
matter necessary to determine whether
such alleged violation occurred as
required under subparagraph (A).
(ii) Clarification.--Nothing in
clause (i) shall be construed to alter
the right of any person to otherwise
challenge the power of the Commission
to issue a subpoena under section
307(a)(3) or an order under section
307(a)(4).
* * * * * * *
DISSENTING VIEWS
Committee Democrats fervently believe Congress has a duty
to stem the tide of foreign money in our elections. For this
reason, Committee Democrats proudly advocate for the passage of
the Freedom to Vote Act, which contains several provisions
aimed at stemming this tide, including the DISCLOSE Act and the
Honest Ads Act. H.R. 8399 is incongruous, however, with that
critical duty.
H.R. 8399 does absolutely nothing to get foreign money out
of our politics. Several provisions of this bill would make it
more likely that foreign donors would be able to fund election
activities in the United States by hampering donor disclosure
requirements that ensure Americans know whether foreign donors
are contributing to political campaigns. The bill would also
restrict the Federal Election Commission's (``FEC'') law
enforcement capacity, giving foreign donors free rein to flaunt
federal law without consequence.
Americans are frustrated by a campaign finance system that
seems to be stacked in favor of special interests and dark
money donors. And Committee Democrats know that robust
transparency is the best way to reassure the American people
that their political system works for them. As Justice Louis
Brandeis famously stated, ``[s]unlight is said to be the best
of disinfectants.'' \1\
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\1\Louis D. Brandeis, What Publicity Can Do, in Other People's
Money and How Bankers Use It 92, 92 (1914).
---------------------------------------------------------------------------
H.R. 8399 ALLOWS UNDISCLOSED FOREIGN DONATION TO INFLUENCE THE SUPREME
COURT
At the Committee's May 23, 2024, mark-up, Committee
Democrats offered an amendment to H.R. 8399 to prohibit foreign
donors from promoting, supporting, attacking, or opposing the
nomination or Senate confirmation of an individual who is under
consideration for a federal judgeship. At a time when Americans
are rightfully concerned about malign donor influence in the
federal judiciary--including on the United States Supreme
Court--this amendment would have reassured Americans that
foreign donors will not be able to influence our courts.
Several high-profile investigations have, in recent months,
revealed deeply concerning relationships between Supreme Court
justices and Republican mega donors. Indeed, whether it has
been the brazen financial dealings between Justice Clarence
Thomas and billionaire Harlan Crow, or Justice Samuel Alito's
astonishingly bad judgement in flying an upside-down American
flag--a discredited symbol of extremism and election
denialism--outside of his home in the days following the
January 6 attack on the Capitol, the American people are in
disbelief about the state of our judiciary. The day before the
Committee's mark-up, public reporting confirmed that Justice
Alito has been flying another flag associated with Donald
Trump's attempt to steal the 2020 election--the ``Appeal to
Heaven'' flag--outside of his vacation home. This was a flag
that rioters carried as they stormed the Capitol.
Polls have shown that these ethical lapses have deeply hurt
Americans' faith in the fairness of our judiciary.\2\ This is
the result of the millions of dark dollars that extremist
Republicans have been spent to reshape our federal courts for
partisan ends. The Washington Post reported that The Federalist
Society, a conservative legal organization consisting of
members that oppose abortion rights, voting rights, and civil
rights generally, raised more than $250 million between 2014
and 2017--some of that money going to fund advertisements in
support of or opposed to judicial nominees.\3\ Another
extremist conservative interest group, the Judicial Crisis
Network, has received tens of millions of dollars in anonymous,
dark money funding since it was founded in 2008, spending
massively on efforts to influence the Supreme Court.\4\
---------------------------------------------------------------------------
\2\Jeffrey M. Jones, Supreme Court Trust, Job Approval at
Historical Lows, Gallup (Sept. 29, 2022), https://news.gallup.com/poll/
402044/supreme-court-trust-job-approval-historical-lows.
aspx#::text=Line%20graph.,Americans'%20trust%20in%20the%20judicial%20br
anch%20of%20
the%20federal%20government,expressed%20this%20level%20of%/o20trust.
\3\Robert O'Harrow Jr. & Shawn Boburg, A conservative activist's
behind-the-scenes campaign to remake the nation's courts, Wash. Post
(May 21, 2019), https://www.washingtonpost.com/graphics/2019/
investigations/leonard-leo-federalists-society-courts/.
\4\Sen. Chuck Schumer et al., Captured Courts: The Impact of the
Judicial Crisis Network's Dark-Money Scheme on Our Courts, Senate
Democratic Policy & Communications Committee, (Apr. 2022), https://
www.democrats.senate.gov/imo/media/doc/Capturcd%20Courts%20
Report%204-5-22.pdf.
---------------------------------------------------------------------------
Americans should not have to worry that foreign donors--in
addition to extremists and conservative activists--are
influence peddling on our nation's highest court. The
Democratic amendment would have--at the very least--enabled
Americans to know whether any of this money came from foreign
donors. Committee Republicans unanimously rejected the
amendment.
COMMITTEE REPUBLICANS OPPOSE DISCLOSING FOREIGN DONORS
Why would Committee Republicans propose legislation that
undermines transparency, inviting even more undisclosed dark,
likely foreign, money to infiltrate our political system, as
this bill would do? Why would Committee Republicans hamstring
law enforcement's ability to ensure the rule of law, to see to
it that our federal campaign finance laws are fairly enforced,
as this bill would do? They do so because they favor unlimited,
undisclosed dark money--including from foreign donors.
H.R. 8399 includes some exemptions for the donor-shielding
provisions, but these exceptions do not salvage the bill.
Instead, they gloss over systemic issues that need to be
solved. In 2017, the Trump administration reversed a years-long
rule requiring certain 501(c) organizations to report major
donors to the Internal Revenue Service (``IRS''). Since then,
the dark money ecosystem has hobbled the IRS. Moreover,
millions of dollars in dark money go unreported to the FEC due
to loopholes unsolved by H.R. 8399.
Finally, a dysfunctional FEC has ceased all meaningful
enforcement of existing laws. Indeed, the FEC has informed the
Committee that it had acted on barely half of the nonpartisan
staff's recommended foreign interference investigations,
including none that involved former President Trump, his
campaign, or his associates. In matters requiring dark money
groups to register and report with the FEC, the FEC acted on
only five of nonpartisan career staff's two dozen
recommendations.
Committee Democrats would be eager to work in a bipartisan
manner to prevent foreign money in American elections. But H.R.
8399 would not do that. This bill is designed to further open
the floodgates to undisclosed foreign donations, to kneecap the
FEC and other law enforcement agencies. For these reasons,
Committee Democrats oppose.
Joseph D. Morelle,
Ranking Member.