Inside the FEC: Navigating Campaign Finance Law with Commissioner and former Chair Dara Lindenbaum
Dara Lindenbaum is a current Commissioner and former Chair of the Federal Election Commission (FEC), nominated by President Joseph R. Biden in 2022. With extensive experience in campaign finance and election law, Lindenbaum was a partner at Sandler Reiff, advising candidates, political committees, and organizations on compliance with state and federal regulations. Prior to her work at Sandler Reiff, she served as associate counsel in the Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law, focusing on election law and voting rights. Lindenbaum has also contributed as general counsel for Stacey Abrams's 2018 gubernatorial campaign and as legal counsel for Fair Fight Action in 2020.
In this interview, Lindenbaum and HULR discuss the evolution of campaign finance law, urgent privacy concerns in current regulations, the impact of the 2024 election, and her background in entering this field of law.
This interview was conducted in November 2024. It has been edited for brevity and clarity.
Basics of Campaign Finance Law
Harvard Undergraduate Law Review (HULR): For the sake of our readers who may not be familiar with campaign finance law, could you explain the differences between hard money and dark money in campaign contributions?
Dara Linedenbaum (DL): Dark and hard money are different terms that focus on the evolution of campaign finance reform and how money can and cannot be raised and spent. People use different classifications for what they think these things are. I can tell you what these terms mean in my world.
Whether something is hard money can be seen in two ways. Hard money is always described as money subject to corporate contribution restrictions. There is some dispute over whether hard money only includes money subject to contribution limits. This is critical in this world right now because money is fungible. If you have a pot of money with contributions from a couple of donors and none of those donors are corporations, but they each put a million dollars in there, some people would classify that as hard money because it does not have the taint of corporate money.
Remember, there are contribution limits for individual candidates, regular PACs (Politcal Action Committee), and party committees, but there are no contribution limits for Super PACs. This becomes crucial because there are also hybrid PACs. These have one pot of money subject to a contribution limit, which they use for contributions to candidates, and another side that can take unlimited contributions. They might decide not to take corporate contributions, or they might choose to do so. That decision is up to them. This is the realm of hard money and how it functions.
Dark money is another term that is somewhat disputed. I see dark money as funds that are not disclosed at all. This usually involves 501(c)(4) organizations that do not need to register as political committees with the Federal Election Commission. These organizations might run ads while ensuring that no more than 49% of their work is political, with the majority focused on public welfare. They can engage in issue advocacy that flies under the radar. They know the different lines they can walk and the words they can use. This may become political activity, but their lawyers are skilled enough to know what isn't, even if it can push the needle.
HULR: How are the contribution limits for PACs and candidates determined, considering the changes that occur each cycle? What discussions and factors go into setting these limits, and how do you differentiate between PAC funding and campaign funding?
DL: Contribution limits are entirely out of the FEC’s control. This is all determined by statute, as Congress decides how those limits change and which ones are affected. For individual contributions to candidates, a calculation is made by the staff of the FEC every two years, and we vote to put it into effect. However, that process is more administrative.
However, there are no changes to PAC contribution limits, which is surprising. There have been significant discussions about whether those limits should also be adjusted for inflation, as we're approaching a point where candidate contribution limits will exceed PAC contribution limits. When it comes to party committee limits, that's another issue entirely. Some numbers keep increasing while others remain the same, which changes how we view these contributions.
Frankly, I don’t know why PAC limits remain static and aren't adjusted for inflation. The Federal Election Commission makes unanimous recommendations to Congress every year, typically at the end of each cycle, and we often include suggestions to align these limits with inflation.
HULR: Do you think Congress is simply apathetic about the issue, or would they rather see something else happen?
DL: I don't think it's anything like that. I believe that Congress has a lot on its plate, and it's difficult to move any legislation forward, so this issue may not be a priority. There are numerous competing priorities, and this probably falls by the wayside. Reopening FECA (Federal Election Campaign Act) is an entirely different matter; making a small change could lead to needing to consider many other changes as well.
A deep dive into the FEC’s primary responsibilities
HULR: To get more clarity, what are the common issues FEC commissioners are voting on? Are there specific topics that tend to be more controversial or less unanimously agreed upon among the commissioners?
DL: People typically see two main areas when it comes to what the commissioners at the FEC do, separate from the staff's work. One of our most significant responsibilities is serving as the clearinghouse for all federal campaign finance reports. Everyone running for federal office files their reports through us, and we make that information publicly available. Our staff is excellent at this, managing to do so with a limited budget and immense dedication. It's a vital part of our work, supported by a significant portion of our team, including our RAD (Reports Analysis Division) analysts. This department often has openings for undergraduates seeking job opportunities and is a great entry point to working at the FEC. The RAD analysts review committee reports and serve as resources for those filing, ensuring reports are done correctly and helping with complex filings.
On the General Counsel side, we have enforcement attorneys and a policy division. Often, you'll see us handling enforcement matters, where someone files a notarized complaint against a committee, alleging a violation of the law. These complaints must be backed with evidence. Our General Counsel lawyers draft the case and make a recommendation, which we then review to determine if we agree. The recommendation can either be to dismiss the case or find reason to believe a violation occurred. If there is an agreement, there may be a fine, but if not, further steps may be necessary, potentially leading to the court. Most cases go through without controversy, but significant cases highlight fundamental differences among commissioners. These differences often stem from how we view evidence or interpret the law. When there is disagreement, especially if our General Counsel recommends action and some do not agree, we must issue statements explaining our reasoning.
The policy side of our work involves drafting regulations and handling advisory opinions, which I consider one of our most crucial functions. Advisory opinions help ensure everyone follows the same rules and prevent situations where an interpretation of the law comes too late, such as after an election. When someone submits an advisory opinion request, our ruling sets the standard for that issue, providing clarity for the regulated community. These opinions can sometimes be controversial and have historically led to split decisions, creating uncertainty. Without a clear advisory opinion, those affected must decide whether to proceed without FEC protection, risking potential court challenges. Although we usually have 60 days to issue these opinions, some are resolved more quickly. Recent cases have been particularly complex, but this work has the most substantial impact on elections, even though all aspects of our work are critical.
HULR: I'm curious, in cases of disputes, the commission is currently balanced between three Democrats and three Republicans. Do you find this balance crucial for ensuring the FEC remains nonpartisan? And if there were ever an imbalance, do you think it would impact the FEC's ability to function in a way that best supports democracy?
DL: I should clarify that the agency staff and civil servants are all nonpartisan. However, the Commission itself is bipartisan by design. By law, we cannot have more than three members from any political party, creating a 3-3 split. This structure was intentional to prevent the Commission from being a partisan tool. Before I joined the FEC, I represented clients nationwide, and each state has its campaign finance system. I saw firsthand the consequences of systems driven by partisan actors, where campaigns are not playing by the same rules. In those situations, one campaign might have to hold back because their opponents are in power and control the commission, which is not how elections should be won.
This balance is crucial for the FEC to function correctly. To pass any decision, we need four votes, which means there must be cooperation. It’s not easy to work with people from your party, let alone across party lines, especially when trying to achieve something they may not be eager to support. My goal when I joined was to get things done. Sometimes, it’s very challenging, and there are moments when I feel like giving up, but then I take a breath and keep pushing forward.
HULR: You mentioned the policy side and how it is one of your most important roles in elections. Could you provide some examples from the most recent election cycle of significant advisory opinions that you issued that you think were impactful to the overall campaigns in the election?
DL: It's not about how the election is conducted for us; it's more about how the players—PACs, super PACs, candidate committees, and party committees—can operate, whether together or apart. The last major advisory opinion we issued that closed out the cycle with significant attention was related to the spending limits on candidate ads by party committees. Candidates have contribution limits, which are $3,900 for this cycle – though this will change soon–while party committees can take in much more money due to having various bank accounts.
For a party committee to run an ad supporting a candidate without it being considered a contribution, additional language must be included to show it supports the party candidate. We had substantial questions about what qualifies in these cases. One of the more controversial issues we addressed involved joint fundraising committees, essentially legal entities formed by agreements between campaigns and groups to fundraise and allocate costs and incoming funds. This setup allows for large contributions, such as a $400,000 check, which are split among the entities involved based on their contributions to the fundraiser.
The question we faced was whether a joint fundraising committee could run a TV ad where the party committee, which has a higher contribution limit, paid 99% of the costs, and the ad briefly mentioned donating at the end. The intention wasn't to raise money but to spend on candidate promotion. The concern was whether this circumvented contribution limits for candidates. We were split on this decision. I try to find ways to reach a consensus and act as the fourth vote when needed for clarity, but this was one situation where I couldn't support it. It was difficult, especially at the end of the campaign, but it highlights the complex and significant issues we handle.
Citizen’s United and its impact on elections
HULR: That was a fascinating example, and I appreciate you diving deep into that. I’d like to shift gears to focus more on indirect campaign contributions, particularly Super PACs. There have been significant shifts in campaign funding over time. We had FECA, then moved to BCRA (Bipartisan Campaign Reform Act of 2002), and now we're in the post-Citizens United era, which marked the last significant change in campaign finance.
Since the Citizens United v. FEC decision in 2010, do you think there has been a shift in the impact of individual, smaller-dollar donations to campaigns compared to uncapped contributions to Super PACs? Has the opportunity for unlimited spending in certain areas reduced the influence of these smaller individual contributions?
DL: I don't think it has had that kind of impact, and this is just my take on it. Candidates, as we saw in the last cycle with DeSantis (Governer of Florida and 2024 Republican Presidential Primary candidate) outsourcing his entire operation and losing complete control, want to maintain control of their operations and messaging. That approach turned out to be a complete disaster. Candidates need individual contributions to achieve that control because the individual contribution limits to candidates are still upheld.
From what I have seen, especially in private practice, candidates who try to push the limits or expose loopholes in these rules to gain an edge often do not succeed. Trying to stretch the boundaries for a bit more funding does not lead to victory. Individual contributions still matter significantly, including small and recurring contributions, which remain crucial.
What Citizens United has really impacted is the state party committees. State party committees now face so many restrictions on what they can raise and how they can spend it, as well as the records they must maintain, that it has become difficult for them to be effective. Before 2010, and even more so before BCRA, state party committees were central to campaign funding. Whether that was positive or negative, it was how things were.
My first experience in this field was during my first year of law school when I interned at the FEC. Citizens United was decided during my second week there, so I have never practiced or worked in campaign finance without that decision being part of the landscape. Although I have read pre-Citizens United cases, in practice, I don’t know a world without Super PACs.
Privacy concerns with current disclosure regulations
HULR: On that note, seeing the impacts of Citizens United, both parties have made many attempts over the years to introduce legislation addressing these issues. Is there anything that the FEC, particularly through the advisory committee or otherwise, or you personally think would be useful legislation to consider that could address some of these issues in a bipartisan way?
DL: I think there's been a bit of a shift in the traditional approach, where Democrats have typically supported more limits in campaign finance, while Republicans have leaned towards fewer restrictions and more unlimited contributions. Recently, we’ve seen examples, such as Senator Josh Hawley (R-Mo.) introducing legislation restricting dark money. For members of Congress, the influence of large, unaccountable outside groups can be intimidating, and that fear of losing control is swaying opinions.
The courts, of course, play a significant role. Congress can pass laws, but there’s no guarantee that the courts, especially the Supreme Court, will uphold them, given recent trends. This uncertainty affects everything from contributor disclosure to ad disclaimers to contribution limits.
One area that I think could realistically be addressed is how we disclose donor information. Although it won't overhaul the issue of big money, it would make a meaningful difference for individuals and small donors. Right now, contributions made through platforms like ActBlue or WinRed are considered conduit contributions, which means even donations as small as $1 must be reported with all associated information, unlike direct contributions, which are only disclosed if they exceed $200.
The FEC has repeatedly recommended changes to the way conduit contributions are reported. This would reduce the reporting burden on the FEC and improve donor safety. Currently, reports include the donor’s name, home address, occupation, and employer. I believe there is no reason for street names and numbers to be disclosed—city, state, zip code, occupation, employer, and name should suffice.
This concern is particularly relevant for donor safety. Wealthy donors and those in the political world often use alternate addresses, such as an office or manager’s address, for privacy. However, everyday people don’t know that and might feel unsafe donating when they find out their personal information is public. This isn’t just about political retribution; it can affect therapists, who shouldn’t have their addresses available to patients, people in abusive relationships starting fresh, doctors, or teachers who want their privacy protected.
I’ve had extensive discussions about this issue. While some reporting has identified donors in the same apartment building using a shared address, that is not a compelling enough reason to continue this level of disclosure. In my ideal scenario, we would collect all required information but only publicize the name, city, state, zip code, occupation, and employer.
Thoughts on the 2024 election
HULR: In the latest election, the Democrats tended to raise more in individual, small-dollar donations—almost two to one at some point. Yet, the result of the election did not reflect that. Do you have any thoughts on the discrepancy between the amount candidates are raising and their electoral results?
DL: I don't know; there are going to be a lot of post-mortems on this election, and some of them will make sense, while others might be more self-serving, with people having their reasons for their conclusions. Sometimes, money can move an election, and sometimes it can't. I think we might see a more significant influence in local elections, where the push from money can be more impactful, as opposed to a presidential election. That said, elections are expensive, and essential things can't be accomplished without the necessary funding. I don't have a specific take on this election; fortunately, that's no longer my job. But I think both parties will have many conversations about the role of money, fundraising, and donors in elections.
HULR: And on the role of money in elections, we’re looking at estimates for this election that were upwards of $6 billion spent, which is an enormous sum. Many people argue that this money could be better used to uplift communities. This has brought up proposals, especially post-2010, that consider alternative systems like those used in some European countries, where the government provides a set budget to each candidate, and that’s all they can spend—no fundraising or donations involved. What do you think about that proposal?
DL: I don't think it's necessarily a bad idea, but I'm not sure I would say it's a good idea either. Generally, Americans, at least at this point, seem to be resistant to their taxpayer dollars being used in this way. However, we are seeing states implement similar systems with matching funds, which is something that is gaining traction. For example, if you raise a dollar from someone within your district, your locality might provide a match—sometimes as high as 10 times that amount. This approach changes campaigning significantly because it encourages candidates to engage more with their communities, hold events, and fundraise locally, instead of spending excessive time on-call time, as many candidates currently do.
We do have a matching fund and public financing system in place for presidential candidates, but it is not widely used. The primary system includes matching funds, but after 2008, candidates largely stopped using it due to extensive record-keeping requirements and spending restrictions that vary by state. Now, candidates typically only seek these matching funds when they are at the end of their campaign, low on resources, and need to pay off debts.
The fund itself is supported by taxpayer write-offs, where individuals can check a box to allocate $3 to the fund. However, even though the system isn't being used frequently, the pot of money is dwindling because Congress reallocates those funds for other purposes. This year, for example, Mike Pence sought matching funds at the end of his campaign, as did Jill Stein, who typically does this each cycle. The general election public financing system also exists, but it comes with restrictions, and candidates can't use it effectively because they can't spend enough to stay competitive.
Commissioner Lindenbaum’s background
HULR: Well, I think that covers all my questions on policy, but I'd love to end with something more personal. I know people reading this will be especially interested in your career path. Campaign finance reform is a passion for many, including myself. Do you mind walking me through your career journey—how you ended up working for the FEC as a commissioner and eventually became a former chair?
DL: I wasn't quite sure what I wanted to do with my life until my senior year of college. I came from a bipartisan family and was always involved in political discussions at the table, but I wasn't a great student and never imagined myself going to law school. In 2004, I was doing fundraising and volunteering in Pennsylvania, where I watched lawyers rush to solve problems as they arose. One moment that stuck with me was when a polling location wouldn’t let people vote, even though they were in line, and the lawyers ran out to address it—that moment stayed with me.
I thought about that experience and tried to find another path, but ultimately, I wanted to pursue law. I went to GW (George Washington University). This excellent program allowed for many outside placements, so I didn’t have to compete with students from Harvard and Yale for top internships. During my 2L year, I landed an internship in Cynthia Bauerly's office and loved everything about it—policy discussions and campaign operations. I had never considered campaign finance before; my initial interest was more on voting rights.
Thanks to that internship, I got a job during my 3L year at Sandler Reiff, where we mainly represented Democratic campaigns and nonprofits. Seeing that side, I then moved to the Lawyers’ Committee for Civil Rights to focus on voting rights and later returned to Sandler Reiff, representing various campaigns and organizations. Voting rights work can be incredibly engaging, but campaign finance is the foundation that supports it all.
I felt that I could make a difference at the FEC. I understood firsthand the challenges of not knowing what we could do due to the Commission’s disagreements and lack of communication. I believe my experience could help improve the situation. Since joining the FEC, we’ve made progress. Not everyone may be happy with the outcomes, and that’s okay, but I think the Commission is in a fundamentally better place than it was when I started.
HULR: That's wonderful to hear. I genuinely appreciate your public service and everything you've accomplished. Thank you so much for the time and this profound conversation!