The 2024 COGEL Conference Campaign Finance Litigation Panel provided attendees with a comprehensive examination of the evolving landscape of federal, state, and local campaign finance. This year's panel featured Ellen Weintraub, former Commissioner
of the U.S. Federal Election Commission; Adam Barnes, Director of Investigations at Elections BC; and Erin Chlopak, Senior Director of Campaign Finance at the Campaign Legal Center. The panel was moderated by Jason Kaune, Partner at Nielsen
Merksamer, LLP. Attendees from across the United States and Canada shared valuable insights from their respective jurisdictions, as detailed in the annual Blue Book. The panel engaged in discussions on several critical themes and topics:
1. New Technology. Responding to existing and fast-evolving technology (in particular, artificial intelligence (AI) and social media), is of critical concern for campaign finance
practitioners and regulators. In the 2024, at least 45 U.S. states, Puerto Rico, and multiple Canadian provinces introduced bills to regulate AI in political communications or advertisements. California remained a leader in this field, with
multiple advancements reflected in a host of bills aiming to regulate the use of AI in different forums, with many provisions facing litigation.
2. Dark Money. The matter
of “dark money” has been litigated in a handful of states, increasing disclosure requirements on for-profit and non-profit organizations, as well as individuals. These disclosure requirements focused on large, corporate donations (Arizona),
as well as individual donations (Alaska). In Georgia, the New Georgia Project, a 501(c)(3) tax-exempt nonprofit, argued that Georgia’s registration and filing requirements violated their First Amendment rights, the litigation of which remains
ongoing.
3. Agency Process and Procedure. In Hawaii, commission authority to promulgate rules and respond to inquiries was affirmed in McGee v. Campaign Spending Commission et. al
(CAAP-20-0000514), and Arkansas reported its first enforcement case applying a 2023 law concerning delinquent campaign reports. The FEC continues to litigate third party lawsuits involving dismissed complaints. In FEC v. Plumbers
and Pipefitters Local Union No. 9 et. al. (24-1450 (D.D.C.)), the FEC sought a declaration from the court that defendants violated one or more of the requirements of a conciliation agreement after they admitted to violating Commission regulations
and FECA provisions.
4. Foreign Influence. The panel provided an update on ongoing litigation in Minnesota regarding “foreign influenced” corporations making contributions.
Colorado, Maryland, Nevada, North Dakota, and South Dakota have also passed bans or limits attempting to curb contributions by corporations with foreign ownership. A prominent Maine law has also been enjoined on freedom of speech grounds,
and a Georgia law was vetoed. In October of 2024, the Sixth Circuit reinstated a law in Ohio banning campaign contributions from foreign nationals. On the federal level, in United States v. Benton (656 F. Supp. 3d 1 (D.D.C. 2023), aff’d 98.
F.4th 1119 (D.C. Cir. 2024)) the D.C. Court sentenced political operative Jesse Benton to 18 months in prison for his role in funneling foreign campaign contributions from a Russian national to a 2016 presidential campaign. The D.C. Circuit
held that to convict the defendant of causing false campaign contribution reports, the Government was not required to establish that the Russian national’s primary purpose in paying funds to procure the defendant’s procure admission to a Presidential
candidate’s fundraiser was to influence an election. In Free Speech for People, et. al. v. FEC (22-66 (D.D.C.)), plaintiffs filed a complaint against the Government of the Russian Federation and Donald Trump’s campaign, alleging election influence
and disclosure violations. The Commission voted to dismiss the claims. Upon appeal, the U.S. Court of Appeals for the District of Columbia Circuit upheld the FEC’s decision, sighting prosecutorial discretion.
5. Corruption and Ethics Violations. The panel also focused on the evolving case law of ethics and corruption. Federal Election Commissioner Ellen Weintraub discussed the implications of the U.S. Supreme Court’s ruling in Snyder v. United States (603 U.S. 1 (2024)). In that case,
the Court held that 18 U.S.C. § 666 criminalizes bribes received in exchange for official acts, but that accepting gratuities for past acts is not covered under the statute. Finally, the panel also touched on the notable prosecution of George
Santos, whose violations included failure to disclose campaign expenditures. Otherwise, states shared ongoing enforcement of misuse of campaign funds, including by a Prince George’s County, Maryland councilman who used campaign funds
to pay off his credit card debt, pay for his rent, and fund personal cosmetic treatments.
Overall, the campaign panelists underscored for the COGEL community the complexities and rapid developments in campaign finance law.
The panel highlighted the need for continuous adaptation and vigilance by regulators and practitioners to address emerging challenges. As campaign finance laws continue to evolve, the insights and experiences shared by this year’s panelists
and attendees will be invaluable in shaping future regulatory frameworks and ensuring the integrity of elections.
