Notice of proposed rulemaking on independent expenditures by authorized campaign committees and reporting multistate independent expenditures and electioneering communications
On January 29, 2018, the Commission published a Notice of Proposed Rulemaking in the Federal Register (83 Fed. Reg. 3996) regarding proposed changes to its regulations on disclosure of certain independent expenditures (IEs) and electioneering communications (ECs) made in multiple states during the presidential primary period. The Commission is also considering amending its regulations concerning whether authorized committees of federal candidates may make IEs. The Commission requests public comment on the proposed revisions. Comments must be submitted in writing on or before March 30, 2018.
Background
Independent expenditures by authorized committees
The Federal Election Campaign Act (the Act) and Commission regulations define an “independent expenditure” 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. Under existing regulations, a political committee other than an authorized committee that makes independent expenditures must itemize those expenditures on its regular disclosure reports. Any person who is not a political committee who makes independent expenditures aggregating in excess of $250 during a calendar year must disclose such expenditures to the Commission as well.
Commission regulations also require that any person (including political committees) who 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, must report the expenditures within 48 hours. Additional reports must be filed within 48 hours each time the person makes further IEs that aggregate $10,000 or more with respect to the same election. 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.
The Act requires each federal candidate to designate an authorized political committee to serve as the principal campaign committee" in order to receive contributions and make expenditures on behalf of that candidate. The Act and Commission regulations state that no political committee that “supports” more than one candidate may be designated as an authorized committee. Commission regulations do not define “support,” except to state that “support” does not include contributions to other authorized committees of federal candidates that do not exceed $2,000, per election. Commission regulations do not address whether the term “support” includes IEs, nor do they explicitly permit authorized committees to make IEs.
In a Commission enforcement case, Matter Under Review (MUR) 6405 (Friends of John McCain, Inc., et al.), the Commission dismissed an allegation that an authorized committee had violated the Act by running ads that expressly advocated the election of another candidate. The Commission cited Supreme Court precedent, including Buckley v. Valeo and Citizens United v. FEC and concluded that “it is unlikely that independent spending by authorized committees would be deemed more potentially corrupting than independent expenditures by individuals, political parties, or corporations, each of which has been found [by the Supreme Court] to have a constitutional right to make unlimited independent expenditures.” However, neither the Commission’s regulations nor the Commission’s reporting forms provide any mechanism for authorized committees to report independent expenditures.
Multistate independent expenditures and electioneering communications
As noted above, the Act and Commission regulations require any person who makes IEs that aggregate certain amounts and within certain periods prior to an election to report those IEs within 48 or 24 hours of the distribution or public dissemination of the expenditure. 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” (in 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.
The Commission’s current regulations do not address how the public distribution criteria and other reporting requirements apply to IEs or ECs that are made with respect to a presidential primary election and that are distributed in multiple states. In particular, the regulations do not specify which state’s primary election date is relevant for determining whether the communication falls within the 24-hour reporting window (for IEs) or the 30-day definitional window (for ECs).
Proposed revisions to Commission regulations
Independent expenditures by authorized committees
The Commission seeks comment on several draft proposals to amend its regulations regarding the prohibition on authorized committees “supporting” more than one federal candidate. The Commission asks whether it should define “support” to include independent expenditures, thereby effectively prohibiting authorized committees from making IEs in any amount. Alternatively, the Commission asks if it should amend the regulations to state explicitly that the term “support” does not include IEs by an authorized committee.
In the event that the Commission revises its regulations to permit an authorized committee to make IEs, the Commission also requests comment on how authorized committees would be required to disclose the activity. If the Commission allows authorized committees to make IEs, the NPRM proposes requiring authorized committees to report the same information about IEs that non-authorized committees are required to report, using the same form (Schedule E).
Multistate independent expenditures and electioneering communications
The Commission proposes several possible revisions to the regulations, including requiring a political committee to report IEs that are disseminated in multiple states as a single expenditure and using memo text to indicate the states where the communication is distributed. The Commission proposes two alternative methods for determining whether a 24-hour report must be submitted: one would use the date of the national nominating convention for the candidate’s party as the date of the election, while the other would use the date of the next upcoming presidential primary among the presidential primaries to be held in the states in which the IE is distributed. The Commission seeks comment as to whether these proposals are desirable and whether they provide for full, timely, and accurate disclosure to the public. The Commission’s previous guidance on this particular topic had been to instruct 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), which would be altered by the Commission’s proposed disclosure rule.
The Commission acknowledges that certain changes in the regulations would likely require modifications to the instructions for the Commission’s Schedule E form, such as by providing political committees flexibility on how to report the states where the IE is distributed.
An alternative to these proposals would require a political committee that makes a multistate IE to allocate the amount of the expenditure among the states where it is distributed whose primary elections have not yet occurred. If this alternative is adopted, the Commission’s electronic filing system would perform the calculations necessary to make these allocations, and the Commission proposes to make a calculator available on its website to aid political committees that do not file electronically.
With respect to the reporting requirements for ECs, the Commission may amend its regulations to parallel the proposed amendments to multistate IEs by requiring a filer of FEC Form 9 to report a multistate EC as a single communication and to use memo text to indicate the states in which the communication is disseminated. Similar to the proposals for IE filings, an alternative proposal would provide that the reporting person must allocate the cost of the EC among the states where it is publicly distributed and whose presidential primary elections have not yet occurred.
Request for public comment
All comments on this Notice of Proposed Rulemaking must be submitted in writing. Comments may be submitted electronically via the Commission’s website at http://sers.fec.gov/fosers, reference REG 2014-02. Comments may also be submitted in paper form. Comments submitted on paper before the Commission’s relocation on March 5, 2018, should be sent to the following address:
Federal Election Commission
Attn.: Robert M. Knop, Assistant General Counsel
1050 First Street NE
Washington, DC 20463
Comments submitted on paper after the Commission’s relocation on March 5, 2018, should be sent to the following address:
Federal Election Commission
Attn.: Robert M. Knop, Assistant General Counsel
1050 First Street NE
Washington, DC 20463
Each commenter must provide, at a minimum, his or her first name, last name, city, state, and zip code. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission’s website. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address or Social Security number. The Commission may hold a public hearing on this Notice of Proposed Rulemaking; commenters who wish to testify at a hearing must so indicate in their comments.
Citations
Regulations
11 CFR 100.16
Independent expenditure
11 CFR 100.29
Electioneering communication
11 CFR 102.12(c)
Designation of principal campaign committee
11 CFR 104.3(b)
Reporting of disbursements
11 CFR 104.4
Independent expenditures by political committees
11 CFR 104.20
Reporting electioneering communications
11 CFR 109.10
Reporting independent expenditures
Advisory opinions
AO 2011-28
Including the cost of internet ads in independent expenditure reports
AO 2003-40
Reporting independent expenditures
Resources
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- Myles Martin
- Public Affairs Specialist
- Myles Martin