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Making independent expenditures

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

Definitions

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 candidate; and
  • Is not made in consultation or cooperation with, or at the request or suggestion of a candidate, candidate’s committee, party committee or their agents.

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” or by meeting the “only reasonable interpretation” test.

Explicit words of advocacy of election or defeat

The following words convey a message of express advocacy:

  • "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-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)that in context can have no other reasonable meaning than to support or oppose a clearly identified candidate, for example, posters, bumper stickers and advertisements that say “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 labor organizations 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 individual, a group, a political committee, a corporation, or a labor organization, but not authorized by a candidate or a candidate’s campaign, must contain a disclaimer notice identifying who paid for the communication and indicating whether any candidate or candidate’s committee authorized the communication.

Wording of disclaimer notice

A disclaimer notice must contain the full name of the individual, group, political committee, corporation, or labor organization that paid for the communication, along with any abbreviated name it uses to identify itself. The disclaimer notice must also provide the payor’s permanent street address, telephone number, or website address and must further state that the communication was not authorized by any candidate or candidate’s committee.

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 additional requirements for radio and television communications: “Stand by your ad” requirements

Spoken “stand by your ad” requirement for television and radio 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 political committee, corporation, labor organization, 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, corporation, labor organization, individual or group who paid for the communication.

For example, the representative could state, “The Fishermen’s Union PAC is responsible for the content of this communication.

If the communication is paid for by a separate segregated fund (SSF), the full name of the sponsoring SSF’s connected organization is also required in the disclaimer.

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

Written “stand by your ad” requirement for television communications

Television communications must also 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.

Multiple-paged document

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:

  • On small items where a disclaimer cannot be conveniently printed (for example, on pens, bumper stickers, campaign pins, campaign buttons and similar small items);
  • When its display is not practicable (for example, 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 (for example, on checks and receipts).

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.

Determining coordination

FEC regulations provide for a three-pronged test to determine whether a communication is coordinated. Under these regulations, a communication is considered to be a coordinated communication (and, as a result, counts against contribution limits) if it satisfies a three-prong test.

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 person other than the candidate, an authorized committee or a political party committee with whom the communication is coordinated.

Content prong

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

  1. A communication that is an electioneering communication;
  2. A public communication that republishes, disseminates or distributes candidate campaign materials, unless the activity meets one of the exceptions listed in the regulations at 11 CFR 109.23(b);
  3. A public communication that expressly advocates the election or defeat of a clearly identified candidate for federal office; or
  4. 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 election;
  • Refers to a clearly identified presidential candidate and is publicly distributed during the period starting 120 days before the primary election and ending on the date of the general election;
  • Refers to a political party in a midterm election cycle, is coordinated with a party committee and is publicly distributed within 90 days of a primary or general election in a jurisdiction in which one or more candidates of that political party will appear on the ballot;
  • Refers to a political party in a presidential election cycle, is coordinated with a party committee and is publicly distributed during the period starting 120 days before the primary and ending on the date of the general election;
  • Refers to a political party, 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
  • Refers to a political party, 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.

Conduct prong

Should the content and payment prongs of the test be satisfied, there still must be some interaction between the SSF individual, group, corporation, labor organization, or political committee paying for the communication and the campaign committee for there to be coordination. The conduct prong identifies the possible types of interactions. A communication that satisfies any one of the conduct standards 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 entity 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 entity 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 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:

  • 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 entity 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. 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 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. 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’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, the 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 that 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 can only satisfy 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.

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 standards for substantial discussion, material involvement, use of a common vendor and involvement of a former employee/independent contractor 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 is satisfied if the vendor, political committee, former employee, or independent contractor implements a firewall. The firewall must 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 that candidate’s authorized committee, or to the authorized committee 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.

Reporting independent expenditures

Political committees 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, individuals, groups, corporations and labor organizations that make independent expenditures must disclose them quarterly on Form 5 and also as required on 24-hour and 48-hour reports.