AO 2010-10: Attribution of independent expenditures

A separate segregated fund (SSF) making independent expenditures for various ads that expressly advocate the election or defeat of one or more federal candidates, and that sometimes identify their opponents, may attribute its expenditures to candidates as described below.

Background

The requestor, National Right to Life Political Action Committee (NRL PAC), is an SSF of the National Right to Life Committee, Inc. NRL PAC intends to make independent expenditures for communications that expressly advocate the election or defeat of one or more federal candidates in one or more elections, some of which also identify the opponents of those candidates.

Analysis

Under the Federal Election Campaign Act (the Act), political committees must report their independent expenditures, including a statement of whether each independent expenditure is made “in support of or opposition to” a particular candidate. 2 U.S.C § 434(b)(H)(4) (iii), § 434(b)(6)(B)(iii), § 434(g)(1) and (2); 11 CFR 104.3(b)(1)(vii), 104.3(b)(3)(vii)(B) and 104.4(b) and (c). SSFs making independent expenditures on behalf of more than one clearly identified federal candidate must allocate the expenditure among candidates “according to the benefit reasonably expected to be derived.” 11 CFR 106.1(a)(1). The expenditure for a publication or broadcast communication shall be attributed to each candidate according to the “proportion of space or time devoted to each candidate as compared to the total space or time devoted to all candidates.” 11 CFR 106.1(a).

NRL PAC presented five scenarios to the Commission and asked how each scenario should be reported on Form 3X, Schedule E.

Ads expressly advocating the election of one clearly identified candidate that do not identify any other candidate. The Commission concluded that no allocation is necessary for ads that expressly advocate the election of one clearly identified federal candidate and do not identify another candidate. Commission rules indicate that allocation is only necessary if more than one candidate is clearly identified. 11 CFR 104.10(a) and 106.1(a) (1). Thus, the entire independent expenditure may be reported as having been made in support of the candidate identified in the communication.

Ads expressly advocating the election of one clearly identified candidate and identifying, and comparing the positions of, that candidate’s opponent. In the case of an ad that expressly advocates the election of one federal candidate and identifies and compares the position of his or her opponent, no allocation is necessary. The independent expenditure is made on behalf of only one candidate, so the entire expenditure may be reported as having been made in support of that candidate. 11 CFR 106.1(a)(1) and 104.10(a).

Ads expressly advocating the election of several candidates in different elections and identifying, and comparing the positions of, those candidates’ respective opponents. For ads that expressly advocate the election of several federal candidates in different races and identify and compare the positions of those candidates’ opponents in those races, NRL PAC should allocate the independent expenditures among the different races, based on the time or space analysis set out in 11 CFR 106.1(a)(1). Thus, the proportion of the expenditure attributed to each race may be reported as having been made in support of the candidate advocated. 104.3(b)(3)(vii)(B).

Ads expressly advocating the defeat of one clearly identified candidate that do not identify any other candidate. No allocation is necessary for ads that expressly advocate the defeat of one clearly identified federal candidate and do not identify another candidate. The entire expenditure may be reported as having been made in opposition to that candidate. 11 CFR 104.10(a).

Ads expressly advocating the election of a presidential-vice presidential ticket and expressly advocating the defeat of a senatorial candidate. Independent expenditures for ads expressly advocating the election of a presidential ticket and expressly advocating the defeat of a Senate candidate are allocated between the two races based on a time or space analysis. The proportion of the expenditure attributed to the presidential race may be reported accordingly in support of the presidential-vice presidential ticket. 11 CFR 104.3(b)(3)(vii)(B). The proportion of the expenditure attributed to the Senate race may be reported accordingly in opposition to the senatorial candidate. 11 CFR 104.3(b)(3)(vii)(B).

AO 2010-09: Date issued: July 15, 2010; Length: 7 pages