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” or “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 examples are phrases 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” or “Bill McKay in ‘94”;
- Words urging action with respect to candidates associated with a particular issue, such as, “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) on, for example, 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” or “ 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 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.
Disclaimer notices for independent expenditures
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
Independent expenditures in support of or opposition to a presidential primary candidate that are publicly distributed or otherwise disseminated in six or more states but does not refer to any particular state must be reported as a single expenditure. The report must indicate the state with the next upcoming presidential primary among those states where the independent expenditure is distributed, and must indicate the states (or regions, such as “nationwide” or “New England”) where the communication is distributed as memo text. If more than one of these states are holding primaries on the same date, any one of these states may be indicated in the state field, with the others listed in memo text.
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).
Report the total of itemized and unitemized independent expenditures on Line (c) of Schedule E and on Line 24 of the Detailed Summary Page.
Independent expenditures aggregating less than $10,000
Committees must report on Schedule E independent expenditures that aggregate less than $10,000 with respect to a given election during the calendar year that are made up to and including the 20th day before an election. The report must be filed no later than the filing date of the committee’s next regularly scheduled report.
48-Hour independent expenditure reports
Political committees and other persons who make independent expenditures at any time during a calendar year (including non-election years) – up to and including the 20th day before an election – must disclose this activity within 48 hours each time that the expenditures aggregated $10,000 or more. 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.