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Making independent expenditures

Individuals, corporations, labor organizations and political committees (including SSFs) may support or oppose candidates by making independent expenditures. Independent expenditures are not contributions and are not subject to limits.

Defined

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

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 such as “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: by use of certain “explicit words of advocacy of election or defeat” and 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 ‘16”;
  • 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, or 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,” a communication expressly advocates when, taken as a whole and with limited reference to external events, such as the proximity to the election, it 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.

Prohibitions apply

While corporations and unions may make independent expenditures, other persons prohibited from making contributions to candidates and political committees are also prohibited from making expenditures, including independent expenditures, in connection with federal elections. Thus, independent expenditures by federal government contractors and foreign nationals are prohibited.

Disclaimer notices on independent expenditures

All independent expenditures require a disclaimer. Communications paid for by an SSF, a corporation or a labor organization, but not authorized by a candidate or a candidate’s campaign, must disclose the full name of the SSF, corporation or labor organization that paid for the communication, as well as its permanent street address, telephone number or website, and also state that the communication was not authorized by any candidate or candidate’s committee.

Wording of disclaimer

A disclaimer notice must contain the full name of the SSF, corporation or labor organization, along with any abbreviated name it uses to identify itself.

Example

“Paid for by the Fishermen’s Union PAC (www.fishunion.org) and not authorized by any candidate or candidate’s 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 the placement is easily overlooked.

Specific requirements for radio and television communications

In addition to the statement identifying who has paid for and authorized a communication, additional requirements, sometimes referred to as the “stand by your ad” requirements, apply to radio and television communications.

For a radio or television communication that is not authorized by a candidate or the candidate’s authorized committee, a representative of the SSF, corporation or labor organization paying for the communication must state that the SSF, corporation or labor organization is responsible for the communication. For example, the representative could state, “The Fishermen’s Union PAC is responsible for the content of this communication.” The full name of the sponsoring SSF’s connected organization is also required in the disclaimer.

The full “stand by your ad” disclaimer is required regardless of the length or brevity of the radio or television communication.

Additional requirements for television communication disclaimers

Both authorized and unauthorized television communications must contain a similar, clearly readable written statement that appears at the end of the communication. To be clearly readable, the communication must appear for a period of at least four seconds with a reasonable degree of color contrast between the background and the disclaimer statement and must occupy at least four percent of the vertical picture 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 to satisfy the color contrast requirement.

Specific requirements for printed communications

Printed communications must contain a printed box that is set apart from the contents of the communication. The print size of the disclaimer 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, 12-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 x 36 inches. Disclaimers for larger communications will be judged on a case-by-case basis.

Additionally, the regulations 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.

Reporting requirements for independent expenditures

SSFs that make independent expenditures must disclose them on Schedule E of their regular FEC report and also as required on 24-hour and 48-hour reports. Similarly, corporations and labor organizations that make independent expenditures must disclose them quarterly on FEC Form 5 and also as required on 24-hour and 48-hour reports.

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 in the same calendar year but before the 20th day before an election:

  • If an SSF, a corporation or a labor organization 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 SSF or organization is not required to file 48-hour reports, because the expenditures were made for different election races; however, it must disclose this activity on its next regularly-scheduled report.
  • If the SSF, corporation or labor organization 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, no 48-hour report is required, because the expenditures were made in different elections; however, it must disclose the expenditures on its next regularly scheduled report.
  • If the SSF, corporation or labor organization 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 SSF must file a 48-hour report.

The date that a communication is publicly disseminated serves as the date that an SSF, a corporation or a labor  organization must use to determine whether the total amount of independent expenditures has, in the aggregate, reached or exceeded the threshold reporting amounts of $10,000. A 48-hour report is required for each additional $10,000 in aggregate expenditures.

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. 

Independent expenditures aggregating less than $10,000

SSFs must report on Schedule E, and corporations and labor organizations must report on Form 5, as part of their regularly scheduled filing, 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.;

48-hour independent expenditure reports

When an SSF, a corporation, or a labor organization 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 (or Form 5 for corporations and labor organizations). SSFs, corporations and labor organizations 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.

The SSF, corporation or labor organization must report such independent expenditures a second time on a Schedule E filed with its next regular report (or on Form 5 for corporations and labor organizations). 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's online webform

24-hour independent expenditure 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 the Commission - within 24 hours after the expenditure is made. A 24-hour report is required for each additional $1,000 that aggregates. The 24-hour report must be filed on a Schedule E or Form 5. The date that a communication is publicly disseminated serves as the date that an SSF, a corporation or a labor organization must use to determine whether the total amount of independent expenditures has, in the aggregate, reached or exceeded the threshold reporting amount of $1,000.

The SSF, corporation or labor organization must report each expenditure reported on a 24-hour report a second time on a Schedule E (or Form 5) 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's online webform.

Reporting by corporations and labor organizations

Corporations and labor organizations must file a report with the Commission on FEC Form 5 at the end of the first quarterly reporting period in which independent expenditures with respect to a given election aggregate more than $250 in a calendar year, and in any succeeding quarterly reporting period during the same year in which additional independent expenditures of any amount are made.

Each contributor who made a contribution in excess of $200 for the purpose of furthering the independent expenditure(s) reported on FEC Form 5 must be itemized on Schedule 5-A, including their identification information. If the reporting entity did not receive any contributions over $200 for the purpose of furthering the independent expenditures disclosed on FEC Form 5 for the applicable reporting period, it can include a statement via memo text or Miscellaneous Document (Form 99) to prevent a Request for Additional Information from the Reports Analysis Division. The statement should indicate that no contributions were solicited or received for the purpose of furthering the disclosed independent expenditures, if this is the case. Filers should include this statement with each applicable report.

Form 5 filers are strongly encouraged to contact the Reports Analysis Division for help with filing FEC Form 5.

Reporting by SSFs

Unlike other disbursements, independent expenditures are itemized on Schedule E for Line 24 on an SSF’s regular report.

Itemize any independent expenditure on Schedule E that exceeds $200, or that, when aggregated on a per-election and per-office sought basis within the calendar year, exceeds $200. On that schedule, enter a subtotal for itemized independent expenditures on Line (a).

Independent expenditures of $200 or less are not required to be itemized, although 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.

Date made

The date of the expenditure as listed on Schedule E must be the date of public dissemination–i.e., the first date on which the communication is published, broadcast 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.

Certification of independence

Schedule E requires a certification, under penalty of perjury, that the expenditure meets the standards for independence.

Contracts and agreements to pay for independent expenditures

In many cases, the SSF will sign a contract or agreement in advance of actually spending the money on the independent expenditure. In that case, independent expenditures made (i.e., publicly disseminated) prior to payment must be disclosed as memo entries on Schedule E and as reportable debt on Schedule D.

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