The State of Campaign Finance Policy: Recent Developments and Issues for Congress

R. Sam Garrett
Specialist in American National Government

For decades, Congress, regulatory agencies, and courts have emphasized the need to reduce potential corruption by providing public disclosure of information about campaign contributions and expenditures. Preventing corruption and enhancing transparency remain prominent themes in campaign finance policy, but what those goals mean and how they should be accomplished appears to be in flux.

Minor and major changes have occurred in campaign finance policy since 2002, when Congress substantially amended campaign finance law via the Bipartisan Campaign Reform Act (BCRA). The Supreme Court’s 2010 ruling in Citizens United v. FEC and a related lower-court decision, SpeechNow.org v. FEC, arguably represent the most fundamental changes to campaign finance law in decades. During the 111th Congress, the House responded by enacting the DISCLOSE Act (H.R. 5175; S. 3295; S. 3628). The Senate declined to do so.

Campaign finance issues continue developing in Congress, at regulatory agencies, and in the courts. During the 112th Congress, the House has passed legislation (H.R. 359; H.R. 3463) that would repeal the presidential public financing program. (See also H.R. 2434 and S. 194.) The House and Senate have held hearings on two campaign finance issues. First, S. 750 (see also S. 749 and H.R. 1404) is the latest version of the Fair Elections Now Act (FENA), which would publicly finance Senate campaigns. The Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights held a hearing on the bill in April 2011. Second, amid reports of a possible Obama Administration executive order that would require additional disclosure of government contractors’ spending surrounding elections, the House Committee on Oversight and Government Reform and Committee on Small Business held a joint hearing in May 2011. Amendments to unrelated bills (H.R. 1540; H.R. 2017; H.R. 2354) that passed the House in May, June, and July 2011, respectively, contain provisions reportedly developed in response to the possible draft executive order. In addition, the Committee on House Administration, Subcommittee on Elections, held an April 2011 hearing on H.R. 672. That measure proposes to eliminate the Election Assistance Commission (EAC) and transfer some functions to the Federal Election Commission (FEC). Finally, in June 2011, the Supreme Court issued a decision in Arizona Free Enterprise Club’s Freedom Club PAC et al. v. Bennett. The Court invalidated Arizona’s use of matching funds for publicly financed candidates. The opinion is most relevant for state public financing programs but may shape federal policy options.

Fundraising and spending in the 2010 election cycle suggest that previously prohibited sources and amounts of funds will continue to be a factor in federal elections. Activities by independentexpenditure- only political action committees (super PACs) and tax-exempt organizations that are typically not political committees (e.g., Internal Revenue Code 501(c) and 527 organizations) may be particularly prominent.

Despite recent changes, some aspects of campaign finance policy remain unchanged. Presidential public financing and the FEC may require congressional attention regardless of more recent developments. As Congress decides whether to revisit law surrounding political campaigns, it may be appropriate to take stock of the current landscape and to examine what has changed, what has not, and what policy options might be relevant. This report provides a starting point for doing so. It also provides comments on how those events might affect future policy considerations.


Date of Report: December 5, 2011
Number of Pages: 31
Order Number: R41542
Price: $29.95

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