Making independent expenditures as a political party committee

Party committees may support (or oppose) candidates by making independent expenditures. Independent expenditures are not contributions and are not subject to contribution limits.

Independent expenditures must be paid for with federally permissible funds and must be reported to the Commission.

Defined

An independent expenditure is an expenditure for a communication, such as a website, newspaper, TV or direct mail advertisement, that:

• Expressly advocates the election or defeat of a clearly identified federal candidate; and
• Is not coordinated with a candidate, candidate’s committee, party committee or their agents.

Clearly identified candidate

A candidate is “clearly identified" if the candidate’s name, nickname or image appears, or the identity of the candidate is otherwise apparent. Examples include: “the President,” “your Congressman,” “the Democratic presidential nominee,” “the Republican candidate for Senate in the State of Georgia.”

Express advocacy

“Express advocacy” means that the communication includes a message that unmistakably urges election or defeat of one or more clearly identified candidate(s). There are two ways that a communication can be considered express advocacy.

Explicit words of advocacy of election or defeat

The following words are examples of those that convey a message of express advocacy:

• “Vote for the President,” “re-elect your Congressman,” “support the Democratic nominee,” “Cast your ballot for the Republican challenger for the U.S. Senate in Georgia,” “Smith for Congress,” “Bill McKay in ‘14”;
• Words urging action with respect to candidates associated with a particular issue, e.g., “vote Pro-Life”/ “vote Pro-Choice,” when accompanied by names or photographs of candidates identified as either supporting or opposing the issue;
• “Defeat” accompanied by a photograph of the opposed candidate, the opposed candidate’s name or “reject the incumbent;” and
• Campaign slogan(s) or word(s), e.g., on posters, bumper stickers and advertisements, that in context can have no other reasonable meaning than to support or oppose a clearly identified candidate, for example, “Nixon’s the One,” “Carter ‘76,” “ Reagan/Bush.”

“Only reasonable interpretation” test

In the absence of such explicit words of advocacy of election or defeat, express advocacy is found in a communication that, when taken as a whole and with limited reference to external events, such as the proximity to the election, can only be interpreted by a “reasonable person” as containing advocacy of the election or defeat of one or more clearly identified candidate(s).

This test requires an electoral portion of the communication that is unmistakable, unambiguous and suggestive of only one meaning.

Note that the author’s intent is irrelevant. The test is how a “reasonable” receiver of the communication objectively interprets the message. If reasonable minds could not differ as to whether it encourages actions to elect or defeat a clearly identified candidate, it is express advocacy regardless of what the author intended.

Determining coordination

There is a three-pronged test to determine whether a communication is a party coordinated communication. A communication must satisfy all three prongs of the test to be considered a party coordinated communication. Political party committees are subject to a coordination test similar to, but not the same as, that which would be applied to communications paid for by other persons.

The three prongs of the test consider:

1. The source of payment (payment prong);
2. The subject matter of the communication (content prong); and
3. The interaction between the person paying for the communication and the candidate or political party committee (conduct prong).

Payment prong

A coordinated communication is paid for, in whole or in part, by a political party committee or its agent.

Content prong

A communication that meets any one of these three standards meets the content prong:

• A public communication that republishes, disseminates or distributes candidate campaign materials, unless the activity meets one of the exceptions at 11 CFR 109.23(b);
• A public communication that expressly advocates the election or defeat of a clearly identified candidate for federal office; or
• A public communication that:
  
  • Refers to a clearly identified House or Senate candidate and is publicly distributed in the identified candidate’s jurisdiction within 90 days of the candidate’s primary or general election; or
  • Refers to a clearly identified presidential or vice presidential candidate and is publicly distributed in a jurisdiction during the period starting 120 days before the primary election in that jurisdiction and ending on the date of the general election.

Conduct prong

The purpose of the conduct prong is to determine when interaction between the campaign and the person paying for the communication might constitute coordination. When the conduct prong, the content prong and the payment prong are all satisfied, then the communication is a party coordinated communication and results in an in-kind contribution or a coordinated party expenditure. A communication that satisfies any one of the conduct standards described satisfies the conduct prong.

Request or suggestion: This conduct standard has two parts, and satisfying either satisfies the standard. The first part is satisfied if the person creating, producing or distributing the communication does so at the request or suggestion of a candidate, authorized committee, or agent of any of these. A communication satisfies the second part of the “request or suggestion” conduct standard if the person paying for the communication suggests the creation, production or distribution of the communication to the candidate, authorized committee, or agent of any of these, and the candidate assents to the suggestion.

Material involvement: This conduct standard is satisfied if a candidate, candidate committee, or an agent of any of these is “materially involved in decisions” regarding any of the following aspects of a public communication paid for by the party committee:

• Content of the communication;
• Intended audience;
• Means or mode of the communication;
• Specific media outlet used;
• Timing or frequency of the communication; or
• Size or prominence of a printed communication or duration of a communication by means of broadcast, cable or satellite.

Substantial discussion: A communication meets this conduct standard if it is created, produced or distributed after one or more substantial discussions between the person paying for the communication, or the person’s agents, and the candidate clearly identified in the communication or that candidate’s committee, that candidate’s opponent or opponent’s committee, or an agent of these. A discussion is “substantial” if information about the plans, projects, activities or needs of the candidate that is material to the creation, production or distribution of the communication is conveyed to the person paying for the communication.

Employment of common vendor: The conduct standard provides that the use of a common vendor in the creation, production or distribution of a communication satisfies the conduct standard if:

• The person paying for the communication contracts with, or employs, a “commercial vendor” to create, produce or distribute the communication; and
• The commercial vendor, including any officer, owner or employee of the vendor, has provided to the candidate or that candidate’s opponent at least one of nine specific services related to campaigning and campaign communications. Note that these services would have to have been rendered during the previous 120 days before the production of the communication; and
• The commercial vendor uses or conveys information about the campaign plans, projects, activities or needs of the candidate or that candidate’s opponent, or information previously used by the commercial vendor in serving the candidate or that candidate’s opponent, to the person paying for the communication, and that information is material to the creation, production or distribution of the communication.

Former employee/independent contractor: This conduct standard applies to communications paid for by a person (or the employer of a person) who has previously been an employee or an independent contractor of a candidate’s campaign committee or that candidate’s opponent during the previous 120 days. This standard requires that the former employee use or convey information about the campaign plans, projects, activities or needs of the candidate or that candidate’s opponent, or information used by the former employee in serving the candidate or that candidate’s opponent, to the person paying for the communication, and the information is material to the creation, production or distribution of the communication. Under the rules, a candidate with whom a party coordinated communication is coordinated would not receive or accept an in-kind contribution that resulted only from conduct described in the “Employment of common vendor” and ”Former employee/independent contractor” sections.

Special rules regarding dissemination, distribution or republication of campaign material

A communication that republishes, disseminates or distributes campaign material only satisfies the first three conduct standards on the basis of the candidate’s conduct—or that of his or her committee or agents—that occurs after the original preparation of the campaign materials that are disseminated, distributed or republished. The financing of the distribution or republication of campaign materials, while considered an in-kind contribution by the person making the expenditure, is not considered an expenditure (or an accepted contribution) by the candidate’s authorized committee unless the dissemination, distribution or republication of campaign materials is a party coordinated communication.

The following uses of campaign materials do not constitute a contribution to the candidate who prepared the materials pursuant to the exceptions at 11 CFR 109.23(b):

• The campaign material is disseminated, distributed or republished by the candidate or authorized committee of the candidate who prepared the material;
• The campaign material is incorporated in a communication that advocates the defeat of the candidate who prepared it;
• The campaign materials is disseminated, distributed or republished in a news story, commentary or editorial;
• The campaign material used consists of a brief quote of materials that demonstrate a candidate’s position as part of a person’s expression of its own views; or
• A national, state or local political party pays for the communication using coordinated expenditure authority.

Agreement or formal collaboration

Neither agreement (defined as a mutual understanding on any part of the material aspect of the communication or its dissemination) nor formal collaboration (defined as planned or systematically organized work) is necessary for a communication to be a coordinated communication.

Safe harbor provisions to the conduct prong

Safe harbor for responses to inquiries about legislative or policy issues

A candidate’s response to an inquiry about that candidate’s positions on legislative or policy issues, which does not include discussion of campaign plans, projects, activities or needs, will not satisfy any of the conduct standards.

Safe harbor for publicly available information

Using information that was obtained from a publicly available source to create, produce or distribute a communication would not, in and of itself, satisfy the conduct standard unless the public communication itself was a request or suggestion by the candidate’s committee.

Safe harbor for the establishment and use of a firewall

The conduct standard for coordination is not met if a commercial vendor, former employee or political committee establishes a “firewall” to prohibit the flow of information between employees or consultants of the person paying for the communication and employees or consultants currently or previously providing services to the candidate who is clearly identified in the communication or an opponent of the candidate mentioned in the communication. The firewall must be described in a written policy that is distributed to all relevant employees, consultants and clients affected by the policy.

Safe harbor for candidate endorsements and solicitations

A federal candidate may endorse or solicit funds for a candidate for federal or nonfederal office in a public communication without the communication being considered a coordinated communication with respect to the endorsing or soliciting candidate, so long as the communication does not promote or support the candidate making the endorsement or solicitation and does not attack or oppose his/her opponent. The safe harbor described in this paragraph also covers candidate solicitations for other political committees (including party committees) and candidate solicitations for certain tax-exempt organizations (see 11 CFR 300.65).

Disclaimer notices for independent expenditures

A communication representing an independent expenditure must display a disclaimer notice.

Allocation among candidates

When an independent expenditure is made on behalf of more than one clearly identified candidate, the committee must allocate the expenditure among the candidates in proportion to the benefit that each is expected to receive. For example, in the case of a published or broadcast communication, the attribution should be determined by the proportion of space or time devoted to each candidate in comparison with the total space or time devoted to all the candidates.

Multistate independent expenditures

When an independent expenditure is made in support of or opposition to a presidential primary candidate and is publicly distributed or otherwise disseminated in six or more states but does not refer to any particular state, the reporting requirements for multistate independent expenditures apply. For independent expenditures distributed in fewer than six states, there is no change in reporting requirements.

Reporting independent expenditures

Itemize any independent expenditure which, by itself or when added to other independent expenditures made to the same payee during the same calendar year, exceeds $200. The date that a communication is publicly distributed or otherwise publicly disseminated serves as the date the expenditure is “made” and that a committee must use to determine whether the total amount of independent expenditures has, in the aggregate, exceeded the threshold reporting amount of $200. Independent expenditures such as yard signs, mini-billboards, handbills, t-shirts, hats and buttons are “publicly disseminated" on any reasonable date starting with the date the filer receives or exercises control over the items in the usual and normal course of dissemination, up to and including the date that the communications are actually disseminated to the public.

Independent expenditures are itemized on Schedule E. A subtotal for itemized independent expenditures is entered on Line (a). Independent expenditures made prior to payment should be disclosed as memo entries on Schedule E and on Schedule D as a reportable debt.

Independent expenditures of $200 or less do not need to be itemized, though the committee must report the subtotal of those expenditures on Line (b).

Enter the total of itemized and unitemized independent expenditures on Line (c) of Schedule E and on Line 24 of the Detailed Summary Page.

48-Hour independent expenditure reports

When a committee makes independent expenditures aggregating $10,000 or more for an election in any calendar year, up to and including the 20th day before an election, it must report those independent expenditures on Schedule E of FEC Form 3X. Political committees must ensure that the Commission receives these reports by 11:59 p.m. Eastern Time on the second day following the date on which a communication that constitutes an independent expenditure is publicly distributed or otherwise publicly disseminated. This reporting requirement is in addition to the requirement to file 24-Hour Reports of independent expenditures each time that disbursements for independent expenditures aggregate at or above $1,000 during the last 20 days—up to 24-hours—before an election.

Note: expenditures that have already been disclosed in a previous report do not have to be included on the 48-Hour Report.

Independent expenditures aggregating $10,000 and above

Once an individual’s or committee’s independent expenditures reach or exceed $10,000 in the aggregate with respect to a given election during the calendar year at any time up to and including the 20th day before an election, they must be reported within 48 hours of the date that the expenditure is publicly distributed or otherwise publicly disseminated. All 48-Hour Reports must be filed with and received by the Commission by 11:59 p.m. Eastern Time on the second day after the independent expenditure is publicly distributed. Electronic filers must file these reports electronically. Paper filers may file by fax or email. Additionally, electronic filers and paper filers may file 48-Hour Reports using the FEC website’s online program.

Aggregating independent expenditures for reporting purposes

Independent expenditures are aggregated toward the various reporting thresholds on a per-election and per-office sought basis within the calendar year. Consider, as examples, the following scenarios, all of which occur outside of the 20-day window before an election when 24-Hour Reports are required:

• If a committee makes $5,000 in independent expenditures with respect to a Senate candidate, and $5,000 in independent expenditures with respect to a House candidate, then the committee is not required to file 48-Hour Reports, but must disclose this activity on its next regularly scheduled report.
  
• If the committee makes $5,000 in independent expenditures with respect to a clearly identified federal candidate in the primary, and an additional $5,000 in independent expenditures with respect to the same candidate in the general, then again no 48-Hour Report is required and the expenditures are disclosed on the committee’s next report.
  
• If the committee makes $6,000 in independent expenditures supporting a Senate candidate in the primary election and $4,000 opposing that Senate candidate’s opponent in the same election, then the committee must file a 48-Hour Report.

The date that a communication is publicly distributed or otherwise publicly disseminated serves as the date that the independent expenditure is “made” and thus the date that a committee must use to determine whether the total amount of independent expenditures with respect to a given election has, in the aggregate, reached or exceeded the threshold reporting amounts of $10,000. Please note that a committee must aggregate its independent expenditures each time the communication is publicly distributed or otherwise publicly disseminated to see if the threshold has been reached. Independent expenditures publicly distributed or otherwise publicly disseminated prior to payment should be disclosed as memo entries on Schedule E and on Schedule D as a reportable debt.

The calculation of the aggregate amount of the independent expenditures must include both disbursements for independent expenditures and all contracts obliging funds for disbursements of independent expenditures. A 48-Hour Report is required for each additional $10,000 in aggregate expenditures in connection with a given election.

Expenditures that have already been disclosed in a previous report do not have to be included on the 48-Hour Report.

Last-minute independent expenditure reports (24-Hour Reports)

Any independent expenditures aggregating $1,000 or more and made after the 20th day but more than 24 hours before the day of an election must be reported and the report must be received by 11:59 p.m. Eastern Time on the day following the day the expenditure is made. A 24-Hour Report is required for each independent expenditure that aggregates $1,000 or more. The 24-Hour Report information must also be filed on a Schedule E of the Form 3X. The 24-Hour Report must disclose all independent expenditures leading up to the $1,000 threshold for reporting; however, expenditures that have already been disclosed in a previous quarterly or monthly report do not have to be included on the 24-Hour Report.

Twenty-four hour reports must be filed with the appropriate federal and state filing offices. (Please note that state filing is only required in Puerto Rico and Guam since all other states, territories and possessions have qualified for a waiver from the Commission.) The date that a communication is publicly distributed or otherwise publicly disseminated serves as the date that the independent expenditure is “made” and thus the date that a committee must use to determine whether the total amount of independent expenditures with respect to a given election has, in the aggregate, reached or exceeded the threshold reporting amount of $1,000.

The committee must report a last-minute expenditure a second time on a Schedule E filed with its next regular report.

Electronic filers must file these reports electronically, and paper filers may file by fax or email. Additionally, electronic filers and paper filers may file 24-Hour Reports using the FEC website’s online program.

Verification

All 24- and 48-Hour Reports must contain, among other things, a verification under penalty of perjury as to whether the expenditure was made in cooperation, consultation or concert with a candidate, a candidate’s committee, a political party committee or an agent of any of these.

For reports filed on paper, the treasurer must sign the Schedule E. For reports filed by email, the treasurer must type his or her name on the Schedule E following the certification.