Restoring federalism in campaign finance regulation

• Last year, the Utah Legislature called on the state’s federal congressional delegation to affirm “the authority of states to govern their election processes and [establish] the ability of the states to enact policies regarding campaign finance and election influence.”
• Sutherland Institute recently participated in a discussion of the For Our Freedom amendment that would allow states and Congress to regulate campaign finance without oversight from federal court decisions.
• Because there’s strong interest in campaign finance reform in states like Utah, the broader issue and the proposed amendment need a more significant federalism component.

​In 2025, Utah became the 23rd state to call for Congress to consider a federal constitutional amendment regarding election financing. Specifically, the Legislature encouraged the State’s congressional delegation “to uphold the principles of federalism and to be proponents of appropriate action, including, if necessary, a constitutional amendment that affirms the authority of states to govern their election processes and establishes the ability of the states to enact policies regarding campaign finance and election influence, in a manner consistent with established constitutional principles.”

I participated in a discussion of a proposed amendment by American Promise, called the For Our Freedom amendment, in Washington, D.C., on January 16th. The focus of the discussion was on the federalism aspect of the proposal. We’ll soon release a Sutherland report on allowing the states to determine how to regulate campaign finance issues.

Our constitutional system of federalism is intended to promote values of responsive government, accountability, local tailoring, experimentation, and protection of liberties. All of these are relevant in the context of election regulations.  Citizens of the states reasonably want to ensure that the influence of political and financial actors from outside the state can be tempered when they threaten local interests (like in deciding how a state’s natural resources will be used). They also want to ensure that their representatives will respond to their needs rather than those with little or no connection to the communities in which they live. In enacting local policies, they can try different approaches (disclosure requirements, unlimited or limited contributions), which could be successful or fail, but thereby provide examples to other states.

Currently, states have a variety of campaign regulations, including contribution limits, restrictions on corporate and union giving, regulations on political action committees, disclosure requirements, public funding options, and prohibitions on foreign governments.

State laws, however, can be limited by federal and state court constitutional interpretations. Thus, limits on out-of-state contributions in Alaska, South Dakota, and Florida have been invalidated by lower federal court decisions. A Maine limit on spending by a corporation with 5% foreign ownership was invalidated by a federal appeals court. Typically, the decisions are based on concerns that limits on contributions or spending will infringe on free speech, because money is used to convey a message.

Much of the discussion of campaign finance focuses on federal elections, in part because many high-profile lawsuits have challenged federal laws. The States, however, also have a critical role to play in ensuring election integrity. The proposed For Our Freedom Amendment is currently the most important innovation in campaign finance regulation. This interest among states suggests that the discussion of campaign finance and the proposed amendment needs a more significant federalism component. Indeed, an important promise of the amendment is its ability to free the states to do what federalism is intended to allow: natural experiments that can demonstrate (from both positive and negative experience) productive ways forward.