Some information presented in this publication has been modified by the Bipartisan Campaign Reform Act of 2002 (BCRA). An updated version of this publication will be available once the Commission completes its BCRA rulemakings. In the interim, please visit the FECs BCRA page for additional information.
Portions of this publication may be affected by the Supreme Court's decision in Citizens United v. FEC. Essentially, the Court's ruling permits corporations and labor organizations to use treasury funds to make independent expenditures in connection with federal elections and to fund electioneering communications. The ruling did not affect the ban on corporate or union contributions or the reporting requirements for independent expenditures and electioneering communications. The Commission is studying the Court's opinion and will provide additional guidance as soon as possible.
Federal and state campaign finance laws often address similar political activities. Consequently, when organizations and individuals choose to support both federal and nonfederal candidates, they may have to determine whether federal or state laws govern a particular election activity. This brochure has been developed to help state election officials, political committees,1 and political organizations understand the areas of campaign finance that are subject to the Federal Election Campaign Act and those that are subject to state law. It is not intended to provide an exhaustive discussion of election laws, but to clarify the jurisdictional difference between federal and state election laws.
Citations refer to the Federal Election Campaign Act [HTML] [PDF] and Federal Election Commission regulations. Advisory Opinions (AOs) issued by the Commission are also cited. For more information on the subjects discussed in this brochure, please call or write:
Federal Election Commission
999 E Street, NW
Washington, DC 20463
Where federal laws and state laws appear to overlap, the Federal Election Campaign Act (the Act) and Commission regulations take precedence in two broad areas:
Under the Act, federal law regulates nonfederal election activity by the sources listed below:
Prohibition. The Act prohibits foreign nationals from making contributions or expenditures in connection with any United States election (federal, state or local), either directly or through another person. 2 U.S.C. §441e; 11 CFR 110.4(a)(1) [current cite: 11 CFR 110.20. The following groups and individuals are considered "foreign nationals" and are therefore subject to the prohibition:
Federal Law Governs. In a recent enforcement case, the Commission reaffirmed that only federal law applied to contributions by foreign nationals in connection with state and local election activity and that Hawaii law could not permit what federal law prohibited. See MUR 2892.
Subsidiary of Foreign Corporation and Nonfederal Activity. A domestic subsidiary of a foreign corporation (or a domestic corporation owned by foreign nationals) may not donate funds or anything of value in connection with state or local elections if:
Many states place additional restrictions on donations to nonfederal candidates and committees.
Subsidiary of Foreign Corporation and Political Committee Contributions. A domestic subsidiary of a foreign corporation may not establish a nonfederal or federal committee to make contributions in connection with any election if:
National Banks and Federally Chartered Corporations
The Act also prohibits national banks and corporations organized by authority of any law of Congress (for example, federal savings banks) from making contributions or expenditures in connection with any election federal, state or local. 2 U.S.C. §441b(a); 11 CFR 114.2(a). They may, however, set up separate segregated funds (also called PACs) for this purpose.3 11 CFR 114.2(a)(2); AO 1987-14.
Note: State-chartered banks should consult state laws as to the permissibility of their involvement in nonfederal election activity.
With respect to the financing of federal elections, federal law specifically supersedes state law in the following areas:
Listed below are selected situations in which the Commission has ruled that the Act supersedes state or local laws.
The Act preempts state and local laws that require campaign ads to disclose information not required under federal law. The Commission specifically concluded that federal committees do not have to comply with state and local laws that require campaign ads to include:
The Act and Commission regulations do not supersede state laws governing the following areas:
In a number of advisory opinions, the Commission has determined that the Act does not preempt state laws. For example, the Commission said the Act did not preempt:
Political committees that engage in both federal and nonfederal election activities must follow certain rules to ensure that the federal activity is financed with funds that comply with the limits and prohibitions of federal law. Federal activity includes, for example:
An organization that is active in both federal and nonfederal elections and that has qualified as a political committee has two options. It can:
If an organization uses two accounts, the federal account alone must register as a federal political committee, subject to federal reporting rules and other requirements. Only funds permissible under the Act may be deposited into the federal account, and all federal activity must be transacted from this account. The nonfederal account is generally not subject to the Act's reporting requirements; however, the federal account must disclose the nonfederal portion of disbursements for shared federal/nonfederal activity, in addition to its own portion. 11 CFR 102.5(a)(1)(i); see also 11 CFR 104.10, 106.5(g) and 106.6(e).
In addition, the nonfederal account may be subject to state reporting requirements.
Alternatively, an organization may conduct both federal and nonfederal activity from one account, and treat that account as a federal political committee. Contributions to the account must comply with federal limits and prohibitionsregardless of whether the funds are ultimately used for federal or nonfederal elections. All receipts and disbursements, including those that pertain to nonfederal election activity, must be reported. 11 CFR 102.5(a)(1)(ii).
Under FEC regulations, a candidate's federal campaign committee may not accept funds or assets transferred from a committee established by the same candidate for a nonfederal election campaign. 11 CFR 110.3(d).
There are two exceptions:
The Commission has permitted the transfer of funds from a nonfederal PAC to an affiliated federal PAC, subject to certain restrictions on transferred funds. However, the transferred funds are considered contributions and may trigger registration and reporting requirements for the nonfederal PAC. 11 CFR 102.6(a)(1)(i) and (a)(2); AOs 1990-16 and 1983-3.
A transfer of funds from an organization's federal account to its state account is permissible under the Act. However, any applicable state laws which limit or prohibit such a transfer would not be preempted or superseded by federal law. See AO 1983-42.
Conversely, an organization may not transfer funds from its nonfederal account to the federal account except under specific circumstances described below:
In the case of a committee that supports both federal and nonfederal candidates, a nonfederal account may transfer funds to the federal account to cover the nonfederal portion of shared expenses benefiting both federal and nonfederal candidates or committees. 11 CFR 102.5(a)(1)(i) and 106.6(e)(1)(i).
An organization which does not qualify as a federal political committee but which nevertheless wants to influence federal election activity must comply with certain federal rules.
The organization must use permissible funds to pay for federal election activities. To ensure this, it must adopt one of the two following approaches:
When a political organization6 makes federal contributions or expenditures (or a combination of both) aggregating over $1,000 per year, it becomes a political committee. Within 10 days of exceeding this threshold, the committee must register with the FEC.7 11 CFR 100.5(a) and 102.1(d).
1. A "political committee" is a specially defined term in the Act and regulations. Not all groups active in federal elections are considered political committees under federal law. For more information, consult 11 CFR 100.5.
2. This means that foreign nationals may not participate in donation activity, allocate funds for donations, or make decisions regarding donations (e.g., selecting the recipients, approving the making of donations or approving the issuance of donation checks).
3. Even if organized solely for nonfederal activity, the separate segregated fund of a national bank or federally chartered corporation must comply with federal rules on soliciting contributions at 11 CFR 114.5, but not with the Act's disclosure rules. See AO 1987-14.
4. In 1993, however, Congress adopted the National Voter Registration Act, which requires states to implement voter registration procedures including registration of individuals applying for driver's licenses, registration by mail, and registration at designated government agencies. 42 U.S.C. 1973gg-1 et seq.
6. The term "political organization" means a party, committee, association, fund or other organization (whether or not incorporated) organized and operated primarily for the purpose of accepting contributions or making expenditures to influence elections or appointments to public office. 26 U.S.C. §527(e).
7. A local party organization may also trigger federal registration requirements if it spends over $5,000 per year for exempt party activities or receives over $5,000 per year in contributions to influence federal elections.
This publication provides guidance on certain aspects of federal campaign finance law. This publication is not intended to replace the law or to change its meaning, nor does this publication create or confer any rights for or on any person or bind the Federal Election Commission (Commission) or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (2 U.S.C. 431 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions, and applicable court decisions. For further information, please contact: