On December 13, 2018, the Commission approved final rules for reporting multistate independent expenditures and electioneering communications made during the presidential primary period. The rules will take effect March 31, 2019, unless the Congressional review period extends beyond that date. If so, the Commission will publish a notice in the Federal Register announcing the delay.
The Federal Election Campaign Act and Commission regulations define an “independent expenditure” (IE) as an expenditure for a communication that expressly advocates the election or defeat of a clearly identified federal candidate and is not coordinated with that candidate (or his or her opponent) or a political party, or the agents of either. A political committee other than an authorized committee that makes IEs must itemize those expenditures on its regular disclosure reports. Any person who is not a political committee who makes IEs aggregating in excess of $250 during a calendar year must disclose such expenditures to the Commission as well.
Additional reporting is required for any person (including political committees) that makes IEs aggregating $10,000 or more with respect to a given election in any calendar year, up to and including the 20th day before that election. These reports must be filed within 48 hours of public distribution or dissemination. If an IE of $1,000 or more is made less than 20 days, but more than 24 hours before the date of that election, then the person making it must report the expenditure within 24 hours of public distribution or dissemination. For purposes of calculating these expenditures and determining if a communication is publicly distributed within an applicable 24-hour filing window, each state’s presidential primary election is considered to be a separate election.
An electioneering communication (EC), within the context of a presidential election, is defined as a broadcast, cable, or satellite communication that refers to a clearly identified candidate for president or vice president and is “publicly distributed” within 60 days before a general election or 30 days before a primary election or nominating convention. If the candidate identified in the communication is seeking a party’s nomination for president or vice president, then “publicly distributed” means that the communication can be received by at least 50,000 people in a state where a primary election is being held within 30 days, or that it can be received by at least 50,000 people anywhere in the United States within the period between 30 days before the first day of the national nominating convention and the conclusion of that convention. Any person who makes ECs that aggregate in excess of $10,000 in a calendar year must file a disclosure report with the Commission.
Up to now, the Commission’s regulations did not address how aggregation and other reporting requirements applied to IEs or ECs that were made with respect to a presidential primary election and that were distributed in multiple states but did not refer to any particular state’s presidential primary election. In particular, the regulations did not specify which state’s primary election date was relevant for determining whether the communication fell within the 24-hour reporting window (for IEs) or the 30-day definitional window (for ECs). The Commission’s previous guidance instructed political committees to allocate the cost of a multistate IE among all the states where the communication was distributed. See advisory opinion 2011-28 (Western Representation PAC).
The new rules alter the reporting guidance for political committees (other than an authorized committees) or other persons that make multistate IEs supporting or opposing a candidate in a presidential primary election. IEs that are publicly distributed or otherwise disseminated in six or more states, but do not refer to any particular state must be reported as a single expenditure. The report must indicate the specific states (or regions, such as “nationwide” or “New England”) where the communication is distributed as memo text. Filers should also indicate which state, among those states where the IE is distributed, has the next presidential primary and use that primary date to determine whether the IE falls within the 24-hour reporting period.
In order to lessen the chance of confusion among filers and the public, the Commission adopted parallel requirements for reporting multistate ECs. ECs made with respect to a presidential primary election that are distributed in six or more states but do not refer to any particular state’s primary election must be reported as a single communication with a memo text to indicate the states in which the communication constitutes an EC.
There is no change in reporting requirements for IEs or ECs distributed in fewer than six states.
The final rules and Explanation and Justification were published in the Federal Register on December 27, 2018 (83 Fed. Reg. 66590). They are available on the Commission’s website.