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Inside Political Law Updates on developments in campaign finance, lobbying & government ethics law

Contribution Limit Dominoes Continue to Fall for State Super PACs

Posted in Campaign Finance, State Law

Yesterday, the Vermont Attorney General announced that it would not enforce the state’s $2,000 statutory contribution limit against independent expenditure PACs.  This policy change in practice allows Super PACs to raise unlimited funds for independent expenditure operations in Vermont.  Notably, the law will remain on the books and will be applied unless the PAC demonstrates that it makes only independent expenditures.  And equally important, the state’s registration and reporting requirements will still apply to Super PACs who support or oppose Vermont candidates.

Vermont thus joins the growing number of states—including Alaska, Hawaii, Illinois, New Jersey, New Mexico, Wisconsin—as well as the federal government and some California cities, that either have removed similar fundraising and expenditure restrictions or are subject to a court order preventing election enforcement authorities from applying such restrictions.  This continues a trend, accelerated in recent years by federal court decisions in Citizens United and SpeechNow, which has resulted in the proliferation of state Super PACs or facilitated federal Super PACs’ involvement in state and local races.  It also further undermines the constitutionally dubious position that some election enforcement officials continue to take in applying contribution limits to independent-expenditure-only committees.

There are, however, several points of caution for Super PACs that are considering an expansion into state and local races.  First, the definition of “independent expenditures” or the treatment of “coordination” may vary across jurisdictions.  This will in turn affect the scope of the limited exception from contribution limits permitted by states—particularly those seeking to limit the impact of Citizens United as they shape their laws to be consistent with its reasoning.  Second, states that create exceptions to contribution limits for Super PACs often still require Super PACs to register and report their electoral activities as political committees if statutory thresholds are crossed.  Third, the policy changes made by these jurisdictions may not be permanent; court decisions are often preliminary or are subject to further review on appeal, election enforcement authorities may be seeking legislative clarification, and advisory opinions may be limited by the facts presented in the opinion request.

UPDATE: Thanks to a tip from the National Association of Realtors, add the District of Columbia to the list of jurisdictions that have removed contribution limits for Super PACs.  The interpretative opinion from the city’s Office of Campaign Finance issued earlier this year.