Political committees may support (or oppose) candidates by making independent expenditures. Independent expenditures are not contributions and are not subject to contribution limits.
An independent expenditure is an expenditure for a communication 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. (See "Coordinated communications.”)
Clearly identified candidate
A candidate is “clearly identified” if the candidate’s name, nickname, photograph or drawing appears, or the identity of the candidate is otherwise apparent through an unambiguous reference to “the President,” “your Congressman,” “the Democratic presidential nominee,” “the Republican candidate for Senate in the State of Georgia.”
“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” or by the “only reasonable interpretation” test.
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 ’18;”
- Words urging action with respect to candidates associated with a particular issue, e.g., “vote Pro-Choice”/“vote Pro-Life,” 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 advocating the election or defeat of one or more clearly identified candidate(s). 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). 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 regardless of what the author intended.
Disclaimer notice required
A public communication qualifying as an independent expenditure must display a disclaimer.
Types of communications
The disclaimer requirements apply to “public communications” as defined in 11 CFR 100.26, including communications through any broadcast, cable or satellite transmission, newspaper, magazine, outdoor advertising facility, mass mailing or telephone bank to the general public, or any other form of general public political advertising. Internet communications are generally exempt from the definition of “general public political advertising,” with the exception of communications placed for a fee on another person’s website.
However, these disclaimer requirements do apply to political committees’ websites and to email of more than 500 substantially similar communications when sent by a political committee.
Wording of disclaimer
A disclaimer notice must contain the full name of the committee, along with any abbreviated name used to identify the committee pursuant to 11 CFR 102.14(c). The actual wording of the notice will vary, depending on whether the advertisement is authorized by a candidate or candidate’s committee.
Communications not authorized by a candidate
Communications not authorized by a candidate or his or her campaign committee, including any solicitation, must disclose the full name and permanent street address, telephone number or website address of the person who paid for the communication, and also state that the communication was not authorized by any candidate.
Example: Communications not authorized by a candidate
“Paid for by the Citizens PAC (www.citizenspac.org) and not authorized by any candidate or candidate’s committee.”
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.
Specific requirements for radio and television communications
In addition, for a radio or television communication that is not authorized by a candidate or the candidate’s authorized committee, 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.
In the case of a televised ad not authorized by a candidate, the disclaimer must 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. The written statement must occupy at least four percent of the vertical picture height, and it must be shown for a period of at least four seconds, with a reasonable degree of color contrast between the statement and the background.
Safe harbors 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.
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.”
Specific requirements for printed communications
Printed materials must contain a printed box that is set apart from the contents in the communication. The disclaimers 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.
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. 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.
A disclaimer, while required, need not appear on the front page or cover of a multiple-paged document.
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. For example, if a campaign poster is mailed with a solicitation for contributions, a separate disclaimer must appear on the solicitation and on the poster.
Items not requiring disclaimer
A disclaimer is not required:
- When it cannot be conveniently printed (e.g., on pens, bumper stickers, campaign pins, campaign buttons and similar small items);
- When its display is not practicable (e.g., on wearing apparel, on water towers and in skywriting); or
- When the item is of minimal value, does not contain a political message and is used for administrative purposes (e.g., checks and receipts).
”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.
Commission regulations provide for a three-pronged test to determine whether a communication is coordinated. A communication must satisfy all three prongs of the test to be considered a coordinated communication (and, as a result, count against the contribution limits). Nonconnected committees and organizations are subject to the same coordination test that is applied to communications paid for by other persons.
The three prongs of the test consider:
- The source of payment (payment prong);
- The subject matter of the communication (content prong); and
- The interaction between the person paying for the communication and the candidate or political party committee (conduct prong).
When the payment prong, the content prong and the conduct prong are all satisfied, then the communication is a coordinated communication and results in an in-kind contribution.
The payment prong is satisfied when a coordinated communication is paid for, in whole or in part, by a person other than the candidate, an authorized committee or a political party committee with whom the communication is coordinated.
A communication that meets any one of these five standards meets the content prong:
- A communication that is an electioneering communication;
- 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;
- 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;
- 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 (or nominating convention or caucus) in that jurisdiction and ending on the date of the general election;
- Refers to a political party (but not a candidate) in a midterm election cycle, is coordinated with a party committee and is publicly distributed within 90 days of a primary or general election;
- Refers to a political party (but not a candidate) in a presidential election cycle, is coordinated with a party committee and is publicly distributed during the period starting 120 days before the primary in that jurisdiction and ending on the date of the general election;
- Refers to a political party (but not a candidate), is coordinated with a presidential candidate and is publicly distributed during the period starting 120 days before the primary until the date of the general election.
- Refers to a political party (but not a candidate), is coordinated with a House or Senate candidate and is publicly distributed in that candidate’s jurisdiction within 90 days of the primary or general election; or
- For communications that refer to both a party and a clearly identified federal candidate, see 109.21(c)(4)(iv).
- A public communication that is the functional equivalent of express advocacy. A communication is the functional equivalent of express advocacy if it is “susceptible of no reasonable interpretation
other than as an appeal to vote for or against a clearly
identified federal candidate.” This content standard applies without regard to the timing of the communication or the targeted audience.
The purpose of the conduct prong is to determine when interaction between the campaign and the person paying for the communication might constitute coordination. 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 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 these, and the candidate, authorized committee or political party committee assents to the suggestion.
- Material involvement. This conduct standard 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:
- 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,
a political party committee or an agent of these. 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.
- 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 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 within 120 days before the purchase or public distribution of the communication; 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 committee, to the person paying
for the communication, and that information is material to the creation, production or distribution of the communication. See “Safe harbor for publicly available information" and “Safe harbor for use of a firewall.”
- 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, candidate’s campaign committee or a political party committee during the 120 days before the purchase or public distribution of the communication. This standard requires that the former employee or contractor use or convey information about the plans, projects, activities or needs of the candidate, candidate’s opponent, or political party committee, or information used by the former employee or contractor in serving the candidate, candidate’s opponent, 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. See “Safe harbor for publicly available information" and “Safe harbor for use of a firewall.”
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 a contribution received by the candidate’s authorized committee unless the dissemination, distribution or republication of campaign materials is coordinated. Additionally, republications of campaign materials coordinated with party committees are in-kind contributions to such party committees, and are reportable as such.
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 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.
Safe harbor for publicly available information
The standard for substantial discussion, material involvement, use of a common vendor and involvement of a former employee are not satisfied if the information used in creating or distributing the communication was obtained from a publicly available source. Publicly available sources include, but are not limited to:
- Newspaper or magazine articles;
- Candidate speeches or interviews;
- Transcripts from television shows;
- Press releases;
- A candidate or political party’s website; and
- Any publicly available website.
Safe harbor for use of a firewall
None of the conduct standards are satisfied if the vendor, political committee, former employee or contractor implements a firewall. The firewall must be designed and implemented to prohibit the flow of information between employees or consultants providing service to the person paying for the communication and those employees or consultants providing services to a political party committee or to the candidate who is clearly identified in the communication or to the campaign of the candidate opposing the candidate clearly identified in the communication. The firewall must be described in a written policy statement that is distributed to all employees, consultants and clients affected by the policy.
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.
Reporting independent expenditures
A federally registered political committee reports independent expenditures on Schedule E of FEC Form 3X. A political committee must itemize each independent expenditure which exceeds $200 or which, when added to previous independent expenditures made on behalf of (or in opposition to) the same candidate, aggregates over $200 during a calendar year. Schedule E instructions explain what itemized information must be disclosed. (Independent expenditures of $200 or less must be subtotaled and reported as unitemized expenditures on Schedule E.)
An independent expenditure is considered made on the date that the communication is publicly distributed or otherwise publicly disseminated. 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 publicly distributed or otherwise publicly disseminated prior to payment should be disclosed as memo entries. Political committees list these entries on Schedule E and on Schedule D as a reportable debt.
Schedule E requires a certification, under penalty of perjury, that the expenditure meets the standards for independence.
Any independent expenditure of $1,000 or more (in the aggregate) that is made after the 20th day, but more than 24 hours, before the day of an election must be reported within 24 hours. The report must include all the information required on Schedule E and must be received by the FEC within 24 hours after the communication is publicly distributed or otherwise publicly disseminated. A political committee must disclose a last-minute independent expenditure a second time on a Schedule E filed with its next scheduled report. The committee may, if it wishes, note that the expenditure was previously reported.
Political committees who make independent expenditures that aggregate $10,000 or more at any time during a calendar year—up to and including the 20th day before an election—must disclose this activity within 48 hours of the date that the communication is publicly distributed or otherwise publicly disseminated. Electronic filers must file 48-hour reports electronically, and paper filers may file by fax or email.
Committees must report in their regularly scheduled report on Schedule E of Form 3X, all independent expenditures made which aggregate over $200 in a calendar year. The report must be filed no later than the filing date of the committee’s next regularly scheduled report.
Aggregating independent expenditures for reporting purposes
Independent expenditures are aggregated toward the various reporting thresholds on a per-election basis, within the calendar year, per office sought (race). 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 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.
Again, the date that a communication is publicly distributed or otherwise publicly disseminated serves as the date that the independent expenditure is “made” and the date a person or committee must use to determine whether the total amount of independent expenditures has, in the aggregate, reached or exceeded the threshold reporting amounts of $1,000 or $10,000. 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.