In addition to contributions and other financial assistance, party committees may also distribute communications which support candidates. This chapter discusses the varied types of communications, how they must be paid for and the disclaimer requirements that apply.

When a party committee pays for a communication that is coordinated with a candidate, the communication is either an in-kind contribution or a coordinated party expenditure. (On the other hand, when a committee pays for a communication that is coordinated with a political party committee, the communication is an in-kind contribution to the party committee.)

Coordination Defined

”Coordinated” means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.[1] 109.20.

Determining Coordination

There is a three-pronged test to determine whether a communication is coordinated.

If a communication satisfies all three prongs, it is deemed to be coordinated. The three parts of the test consider:

·       The source of payment;

·       A “content standard,” regarding the subject matter of the communication; and

·       A “conduct standard,” regarding the interactions between the person paying for the communication and the candidate or political party committee.

109.21(a).

Source of Payment.

A coordinated communication is paid for by someone other than a candidate, an authorized committee or a political party committee. However, a person’s status as a candidate would not exempt him or her from the coordination regulations with respect to payments he or she makes on behalf of a different candidate. 109.21(a)(1).

Content Standard.

The purpose of the content standards is to determine whether the subject matter of a communication is reasonably related to an election. A communication that satisfies any one part of the four-part standard meets the content requirement:

·       A communication that is an “electioneering communication" (see Section 5 below);

·       A public communication that republishes, disseminates or distributes candidate campaign materials, unless the activity meets one of the exceptions at 109.23(b) discussed in the conduct standards below;

·       A public communication that expressly advocates the election or defeat of a clearly identified candidate for federal office; or

·       A public communication that:

o      Refers to a clearly identified federal candidate or political party;

o      Is publicly distributed or disseminated 120 days or fewer before a primary or general election or a convention or caucus with the authority to nominate a candidate. See AOs 2004-1 and 2003-25; and

o      Is directed to voters in the jurisdiction of the clearly identified candidate or to voters in a jurisdiction where one or more candidates of the political party appear on the ballot.

109.21(c)(1)-(4).

 

Conduct Standard.

The purpose of the conduct standards is to determine when interaction between the campaign and the person paying for the communication might constitute coordination. When the conduct standard and the first two prongs of the test (the content standards and the source of payment) are also met, then the communication is coordinated and results in an in-kind contribution. A communication that satisfies any one of the conduct tests described below satisfies the conduct standard.

 

Request or Suggestion.

This test has two parts, and satisfying either satisfies the test. 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, political party 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, political party committee or agent of any of the above, and the candidate or political party committee assents to the suggestion. 109.21(d)(1).

 

Material Involvement.

This test is satisfied if a candidate, candidate committee, political party committee or an agent of any of these was “materially involved in decisions” regarding any of the following aspects of a public communication paid for by someone else:

·       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. 109.21(d)(2).

 

Substantial Discussion.

A communication meets this 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,  a political party committee or an agent of the above. A discussion would be “substantial” if information about the plans, projects, activities or needs of the candidate or political party committee that is material to the creation, production or distribution of the communication is conveyed to the person paying for the communication. 109.21(d)(3).

 

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;[2] and

·       The commercial vendor, including any officer, owner or employee of the vendor, has a previous or current relationship with the candidate or political party committee that puts the commercial vendor in a position to acquire information about the campaign plans, projects, activities or needs of the candidate or political party committee. This previous relationship is defined in terms of nine specific services related to campaigning and campaign communications. Note that these services would have to have been rendered during the election cycle in which the communication is first publicly distributed; and

·       The commercial vendor uses or conveys information about the campaign plans, projects, activities or needs of the candidate or political party committee, or information previously used by the commercial vendor in serving the candidate or political party committee, to the person paying for the communication, and that information is material to the creation, production or distribution of the communication. 109.21(d)(4).

 

Former Employee/Independent Contractor.

This standard applies to communications paid for by a person who has previously been an employee or an independent contractor of a candidate’s campaign committee or a political party committee during the election cycle.

The standard requires that the former employee use or convey information about the plans, projects, activities or needs of the candidate or political party committee, or information used by the former employee in serving the candidate or political party committee, to the person paying for the communication, and the information is material to the creation, production or distribution of the communication. 109.21(d)(5).[3]

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. 109.21(d)(6).[4]

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. 109.21(e).

Safe harbor for responses to inquires about legislative or policy issues.

A candidate’s or political party committee’s response to an inquiry about that candidate’s or party’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.

109.21(f).

In addition to general coordinated communications, there are “party coordinated communications,” which are communications paid for by the party and coordinated with a campaign.

Determining Coordination

Party coordinated communications satisfy a similar three-pronged test for coordination. However, there are two important differences. First, the communication is paid for by a political party committee. Second, electioneering communications do not satisfy the content prong.

In-kind Contribution vs. Party Coordinated Expenditure

Party coordinated communications must be treated by the party committee as either an in-kind contribution to the candidate or as a coordinated party expenditure to the general election campaign of the candidate. 109.37(b). See here.

Party committees may support (or oppose) candidates by making independent expenditures. Independent expenditures are not contributions and are not subject to contribution limits. (However, contributions made to a committee or to another person making independent expenditures are subject to limits, as explained at the end of this section.) See AOs 1999-37, 1999-17 and 1998-22.

Independent expenditures must be paid for with federally permissible funds.

Defined

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

·       Expressly advocates the election or defeat of a clearly identified candidate; and

·       Is not coordinated with a candidate, candidate’s committee, party committee or their agents. (See above.) 100.16(a).

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.” 100.17.

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:  by use of certain  “explicit words of advocacy of election or defeat” and by the “only reasonable interpretation” test. 100.22.

 

Explicit words of advocacy of election or defeat

 

The following words 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 ‘02”;

·      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.”  100.22(a).

 

“Only Reasonable Interpretation” Test

 

In the absence of such “explicit words of advocacy of election or defeat,” express advocacy (candidate 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 advocating the election or defeat of one or more clearly identified candidate(s). 100.22(b)(1) and (2).[5]

 This test requires advocacy of a candidate that is unmistakable, unambiguous and suggestive of only one meaning (that being the election or defeat of a candidate). 100.22(b)(1).

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 the unambiguous electoral advocacy of the communication, it is express advocacy (candidate advocacy) regardless of what the author intended.

Multiple-page communications or multiple inserts in the same envelope in a direct mail piece are to be read all together as a whole.

Internet Independent Expenditures

In AO 1999-37, a PAC generated express advocacy communications for electronic distribution through downloads and e-mail. Costs of registering and maintaining the web site or of computer hardware and software did not count as independent expenditures unless they were directly attributed to specific express advocacy communications such as maintaining a separate web site for or against specific candidates. On the other hand, the expenses of initially distributing an express advocacy communication through e-mail were considered an independent expenditure. The PAC was not required to collect information on those individuals who downloaded the PAC’s advertisements and used them for their own political activity. See also the discussion of Internet volunteer activity on page ???.

Disclaimer Notice Required

A communication representing an independent expenditure must display a disclaimer notice. See below for more information.

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. 104.10; 106.1(a).

Reporting Requirements

A party committee must report all independent expenditures. Reporting requirements are explained here.

Contributing to Committees That Make Independent Expenditures

A contribution by a party committee to a committee that makes independent expenditures is subject to the $5,000 per calendar year limit. 110.1(d).

A contribution to a committee that supports only one candidate, however, is subject to the committee’s per candidate, per election limit. 110.1(h).

Certain activities are restricted under the Act when they qualify as federal election activity (FEA). The restrictions include certain communications.

A public communication that refers to a clearly identified candidate for federal office and that promotes, attacks, supports or opposes any candidate for federal office is FEA. The communication does not need to expressly advocate the election or defeat of the federal candidate to qualify as federal election activity.

For further information on all types of federal election activity, see chapter 8.

Certain communications by unregistered party organizations may qualify as electioneering communications.  Those same communications by registered party committees will not be deemed electioneering communications.

Electioneering communications are any broadcast, cable or satellite communication that 1) refers to a clearly identified federal candidate, 2) is publicly distributed within 60 days of a general election or 30 days of a primary, and 3) is targeted to the relevant electorate, in the case of House and Senate candidates. 100.29(a).

Electioneering communications must be paid for with funds that are not from corporations, labor organizations or other prohibited sources.[6]

Unregistered political organizations report electioneering communications on Form 9. However, registered party political committees simply report them as disbursements on Form 3X.

For more information, see the brochure “Electioneering Communications,” available from the FEC.

Any public communication made by a political committee – including communications that do not expressly advocate the election or defeat of a clearly identified federal candidate or solicit a contribution – must display a disclaimer. 110.11(a)(1).

Types of Communications

The disclaimer requirements apply to public communications, including “communications through any broadcast, cable or satellite transmission, newspaper, magazine, outdoor advertising facility, mailing or other type of general public political advertising.”  100.26.

These requirements also apply to political committees’ web sites, to unsolicited e-mail of more than 500 substantially similar communications and to any “electioneering communication.”

Wording of Disclaimer

Communications not Authorized by a Candidate

Communications not authorized by a candidate or his/her campaign committee, including any solicitation, must disclose the permanent street address, telephone number or web site address of the person who paid for the communication, and also state that the communication was not authorized by any candidate. 110.11(b) and 110.11(d)(3).

Example: “Paid for by the XYZ State Party Committee (www.XYZ.org) and not authorized by any candidate or candidate’s committee.”

For a radio or television communication that is not authorized by a candidate, a representative of the individual or group paying for the communication must state that “XXX is responsible for this communication,” where “XXX” is the name of the political committee or other person who paid for the communication. If applicable, the name of the sponsoring committee’s connected organization is also required in the disclaimer.[7]

Communications Authorized by a Candidate

The disclaimer for a communication authorized by a candidate or candidate’s committee, but paid for by any other person, must state both who paid for the communication and that it was authorized by that candidate.

Example: “Paid for by the XYZ State Party Committee and authorized by the John Doe for Congress Committee.”

Coordinated Party Expenditures   

On a communication that is made as a coordinated party expenditure before a nominee is chosen, the disclaimer notice need only identify the committee that paid for the message. 110.11(d).

Example: “Paid for by the XYZ State Party Committee.”

Once a candidate has been nominated for the general election, the disclaimer notice must also state who authorized the communication and comply with the other applicable requirements listed below.

Example: “Paid for by the XYZ State Party Committee and authorized by John Doe for Congress Committee.”

Exempt Party Activity

On exempt activity communication such as campaign materials, the disclaimer notice must identify the committee that paid for the message, but need not state whether the communication is authorized by a candidate.

Example: “Paid for by the XYZ State Party Committee.”

Visibility Requirements

All disclaimers must be “clear and conspicuous” regardless of the medium in which the communication is transmitted.   A disclaimer is not clear and conspicuous if it is difficult to read or hear, or if its placement is easily overlooked.  110.11(c)(1).

Specific requirements for radio and television communications.

For radio and television communications authorized by a candidate, the candidate must deliver an audio statement identifying himself or herself, and stating that he or she has approved the communication. For example, the candidate could state “My name is _____ and I approved this message.” See AOs 2004-10 and 2004-1. For a television communication, this disclaimer must be conveyed by either:

·       A full-screen view of the candidate making the statement; or

·       A “clearly identifiable photographic or similar image of the candidate” that appears during the candidate’s voice-over statement.   110.11(c)(3)(ii)(A) and (B).

In the case of a televised ad not authorized by a candidate, the disclaimer must also include a statement that is conveyed by a full screen view of a representative of the political committee or other person making the statement, or a voice-over by the representative.

Both authorized and unauthorized television communications must also contain a “clearly readable” written statement that appears at the end of the communication, for a period of at least four seconds with a reasonable degree of color contrast between the background and the disclaimer statement.  The written statement must occupy at least four percent of the vertical picture height, and it must be shown for a period of four seconds.  110.11(c)(3)(iii) and 110.11(c)(4).

Safe harbor for television communication disclaimers

A still picture of the candidate shall be considered “clearly identifiable” if it occupies at least 80 percent of the vertical screen height; and

Disclaimers that are printed in black text on a white background, as well as disclaimers that have at least the same degree of contrast with the background color as the degree of contrast between the background color and the color of the largest text used in the communication, will be considered “clearly readable.” 110.11(c)(3)(iii)(C).

Specific requirements for printed communications.

Printed materials must contain a printed box that is set apart from the contents in the communication.  The disclaimer print in this box must be of sufficient type size to be “clearly readable” by the recipient of the communication, and the print must have a reasonable degree of color contrast between the background and the printed statement.  110.11(c)(2)(ii) and (iii).

The regulations contain a safe harbor that establishes a fixed, twelve-point type size as a sufficient size for disclaimer text in newspapers, magazines, flyers, signs and other printed communications that are no larger than the common poster size of 24 inches by 36 inches.  110.11(c)(2)(i).   Disclaimers for larger communications will be judged on a case-by-case basis. 

The regulations additionally provide two safe harbor examples that would comply with the color-contrast requirement:

·       The disclaimer is printed in black text on a white background;  or

·       The degree of contrast between the background color and the disclaimer text color is at least as great as the degree of contrast between the background color and the color of the largest text in the communication.  110.11(c)(2)(iii).[8]

Multiple-Paged Document

A disclaimer need not appear on the front page or cover of a multiple-paged document. 110.11(c)(2)(iv).

Package of Materials

Each communication that would require a disclaimer if distributed separately must still display the disclaimer when included in a package of materials. 110.11(c)(2)(v). For example, if a campaign poster is mailed with a solicitation for contributions, a separate disclaimer must appear on the solicitation and the poster.

When Disclaimer Not Required

A disclaimer is not required:

·      When it cannot be conveniently printed (e.g., pens, bumper stickers, campaign pins, campaign buttons and similar small items).

·      When its display is not practicable (e.g., clothing, water towers and skywriting).

·      When the item is of minimal value, does not contain a political message and is used for administrative purposes (e.g., checks and receipts). 110.11(f). See AOs 2004-10 and 2002-9.