An independent expenditure is an expenditure for a communication, such as a website, newspaper, television or direct mail ad that:
- Expressly advocates the election or defeat of a clearly identified federal candidate; and
- Is not made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, a party committee or the agents of either. 100.16(a).
Such expenditures have special filing requirements. This article focuses on the requirements for filers who are not registered with the FEC. [FN1]
Who must file Form 5?
Any entity not registered with the FEC (including a corporation,[FN2] a labor organization, an individual or a group of people) (hereafter in this article referred to as “Form 5 filers”) must file a report with the FEC on Form 5 at the end of the first reporting period in which independent expenditures with respect to a given election aggregate more than $250 and must continue to file reports in any succeeding reporting period during the same year in which additional independent expenditures of any amount are made. 109.10(b). Also, all Form 5 filers whose independent expenditures exceed, or are expected to exceed, $50,000 in any calendar year, must electronically file FEC Form 5. 104.18. Visit http://www.fec.gov/elecfil/FECFileIntroPage.shtml to access the Commission’s FECFile filing software for this purpose.
24-Hour pre-election reports
Independent expenditures of $1,000 or more (when aggregated with respect to a given election) that are made after the 20th day, but more than 24 hours, before the day of an election must be reported on FEC Form 5 within 24 hours after the communication is publicly disseminated. Another 24-Hour Notice is required each time additional independent expenditures during the period aggregate $1,000 or more. The 24-Hour reports must be received by the end of the day following the date that the communication is publicly disseminated. All Form 5 filers, even those supporting or opposing Senate candidates, must file 24-Hour reports of independent expenditures with the Commission. Electronic filers must file these reports electronically, and paper filers may file by fax or email. Additionally, paper filers may file 24-Hour reports using the FEC website’s online program. 100.19(d)(3) and 109.10(d).
The Form 5 filer must then disclose the last-minute independent expenditure a second time on a Schedule 5-E filed with the next scheduled report. 109.10(b). For example, if a Form 5 filer files a 24-Hour report before a general election, it must also disclose that independent expenditure on a YearEnd report covering the last quarter of the year. (See “Quarterly Reports” below.)
The 24-Hour report period for the general election of 2010 begins October 13 and runs through October 31. See http://classic.fec.gov/info/charts_ie_dates_2010.shtml.
Once independent expenditures reach or exceed $10,000 in the aggregate with respect to a given election at any time during a calendar year—up to and including the 20th day before an election—the Form 5 filer must disclose this activity within 48 hours of the date that the communication is publicly disseminated. Another 48-Hour Notice is required each time additional independent expenditures during the period aggregate $10,000 or more. 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 communication is publicly disseminated. Electronic filers must file these reports electronically, and paper filers may file by fax or email. 100.19(d)(3) and 109.10(c).
The Form 5 filer must then disclose the independent expenditures a second time on a Schedule 5-E filed with the next scheduled report. 109.10(b). For example, if a Form 5 filer files a 48-Hour report in February, it must also disclose those independent expenditures on an April Quarterly report.
Form 5 filers must disclose independent expenditures aggregating in excess of $250 with respect to a given election during the calendar year on a quarterly basis; however, such filers need only file reports for any quarterly period during which independent expenditures aggregating in excess of $250 are made and in any period thereafter in which additional expenditures are made. The report must be filed by the filing deadline of the next report under the quarterly filing schedule. 109.10(b).
Aggregating independent expenditures for reporting purposes
Independent expenditures are aggregated toward the various reporting thresholds on a per-election, per-race basis within the calendar year. For example, all independent expenditures made in support of or in opposition to candidates in a particular Senate general election during a calendar year would be aggregated together for purposes of applying the reporting thresholds.
The date that a communication is publicly disseminated serves as the date that the filer must use to determine whether the total amount of independent expenditures has, in the aggregate, reached or exceeded the threshold reporting amounts of $1,000 or $10,000. 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. 104.4(f).
1 Filers registered with the FEC, such as PACs and party committees, should consult their Campaign Guide and 11 CFR 104.4 for filing requirements specific to them.
2 See the Supreme Court’s opinion in Citizens United v. FEC (2010), available at http://www.fec.gov/law/litigation/cu_sc08_opinion.pdf.