Independent expenditure

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An independent expenditure, in elections in the United States, is a political campaign communication that expressly advocates for the election or defeat of a clearly identified candidate that is not made in cooperation, consultation or concert with; or at the request or suggestion of a candidate, candidate's authorized committee, or political party. [1] If a candidates agent, authorized committee, party, or an "agent" for one of these groups becomes "materially involved", the expenditure is not independent. [2]

Contents

Definition

The Code of Federal Regulations defined independent expenditure as an expenditure for a communication "expressly advocating the election or defeat of a clearly identified candidate that is not 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 or its agents." 11 CFR 100.16(a). [3] The term was first introduced in the Code of Federal Regulations in 2003. [4]

The Federal Election Commission defines an agent as someone who has "actual authority, either express or implied" to perform one or more of a list of actions on behalf of a campaign. [5] It stipulates that an otherwise independent expenditure could be invalidated if an "agent" does something as simple as suggesting an advertisement be made. To prevent this, some groups claim that they sequester staff months before an election. [6]

An organization making an independent expenditure must include a federally mandated disclaimer identifying the person or organization paying for the communication and stating that the communication was not authorized by a candidate or candidate's committee. [7]

As distinguished from contributions

Contributions are money, or their equivalent, that are given to someone to use. Candidates and groups then spend the money, or their equivalent, to pay for campaigns. The phrase "or their equivalent" is incorporated into definitions to account for other things of value. For example, a radio station that gives free air-time so a group can run an ad is making a contribution.

Coordinations

Pre-candidacy strategies

In recent years, a number of candidates have sought to bypass campaign finance rules by delaying their intention to run for office, instead forming so-called "exploratory committees." Exploratory committees had been in existence well before the advent of super PACs, but are now increasingly used with the explicit intention of giving candidates a head-start in their respective campaigns. Ostensibly, they're created as a means to "test the waters" of that potential candidate's electability; in reality, and today more than ever, it enables them to raise money above what is set out in the federal candidate contribution limits and restrictions (which stipulates no more than $3,300 per individual donor, and no corporate/union funds) until they've officially declared their candidacy. [8] [9] This behavior has been challenged by legal analysts, most notably by the Senior Counsel at the Campaign Legal Center, Paul S. Ryan. He asserts that prior to the 2016 Presidential Primaries, "[Jeb] Bush, [Martin] O'Malley, [Rick] Santorum and [Scott] Walker [were] all raising funds above the $2,700 candidate limit, providing reason to believe they [were] violating federal law." [10] Ryan argues, "[They] have actually crossed the threshold to become 'candidates' as defined in federal law, by referring to themselves publicly as candidates and/or by amassing campaign funds that will be spent after they formally declare their candidacies." Furthermore, by refraining from officially announcing their candidacies, they are essentially free to raise unlimited funds for their chosen super PAC, and both 'coordinate' with and guide that super PAC in any way they see fit. This allows potential candidates-to-be to drum-up support and publicity, as well as stockpiling funds for their nominated super PAC, well in advance of whichever campaign they're looking to contest.

Examples of alleged coordination

Some have argued that FEC regulations are regularly flouted through the use of loopholes, and that a significant amount of independent expenditure is, in reality, coordinated. A piece written by Alex Roarty and Shane Goldmacher in the National Journal, and republished in The Atlantic, outlined just how "brazen" current attempts at coordination can be. [11] Focusing on Thom Tillis, a Republican US Senator from North Carolina, and his 2014 Senate campaign's efforts to influence his allied super PAC, it details the publication of a freely-available memo on Tillis's website, which outlined his campaign's detailed advertising strategy. Purportedly 'intended' for donors, "It is just as easily read as an explicit wish list aimed at the inboxes of outside allies with whom he cannot otherwise legally communicate about strategy." [12] Paul S. Ryan from the Campaign Legal Center noted he had "never seen anything like it," but "hastened to add he also saw nothing illegal in the Tillis missive." [13] As Roarty and Goldmacher elaborate, "The restrictions that bar coordination between candidates and their allies only apply to explicit communication between the two sides—a loophole that has been exploited by speaking in public ever since the proliferation of outside organizations following the Supreme Court's Citizens United ruling." [14]

In 2015, Jeb Bush and his dealings with his Right to Rise super PAC faced significant scrutiny due to the perception of apparent coordination. Alice Ollstein, writing for thinkprogress.org, clarifies, "Buried in the most recent round of FEC filings is evidence Bush's Right to Rise super PAC paid the firm Wisecup Consulting LLC at least $16,000 this April and May for 'political strategy consulting,' while the campaign paid the same firm about $60,000 for exactly the same service — despite the two entities being legally barred from any coordination." [15] Moreover, after suffering setbacks in the early primaries of his presidential campaign, Jeb Bush's Right to Rise super PAC produced a television advert using his brother, former President George W. Bush, to endorse him. [16] When queried about the commercial, Jeb Bush protested that "[He] didn't know [his brother] was doing that" and was "righteous in making sure there's no coordination." [17] Given the nature of their relationship, some have found it difficult to believe that Jeb Bush had no role or influence in recruiting his brother to make the ad, and thus, contravened campaign finance coordination rules. [18]

Some have advocated for a rethink in campaign finance law, given the relative impunity with which candidates now act and disregard campaign finance rules. Attorney Ben W. Heineman Jr. wrote in The Atlantic that "making damning facts public will be necessary to present a case" that "unmasks the claim" of super PACs being independent of their chosen candidates. [19] However, for the time being, it seems as though tackling coordination in any meaningful way is unlikely. Even the Chairwoman of the Federal Election Commission, Ann M. Ravel, admitted, "The likelihood of the laws being enforced is slim. ... I never want to give up, but I'm not under any illusions. People think the F.E.C. is dysfunctional. It's worse than dysfunctional." [20]

Important Supreme Court decisions

In 1976, the United States Supreme Court ruled on Buckley v. Valeo, a case which challenged most of the provisions in the Federal Election Campaign Act. The court upheld the law's limits on contributions to candidates for Federal office. The Court did not, however, uphold limits on expenditures made by candidates or on independent expenditures. [21] [22]

In 2010, the U.S. Court of Appeals for the District of Columbia Circuit held in Speechnow.org v. Federal Election Commission that political action committees (PACs) and other groups that made independent expenditures, but not contributions to candidate committees or parties, could accept contributions without restriction as to source or size.

See also

Related Research Articles

In the United States, a political action committee (PAC) is a tax-exempt 527 organization that pools campaign contributions from members and donates those funds to campaigns for or against candidates, ballot initiatives, or legislation. The legal term PAC was created in pursuit of campaign finance reform in the United States. Democracies of other countries use different terms for the units of campaign spending or spending on political competition. At the U.S. federal level, an organization becomes a PAC when it receives or spends more than $1,000 for the purpose of influencing a federal election, and registers with the Federal Election Commission (FEC), according to the Federal Election Campaign Act as amended by the Bipartisan Campaign Reform Act of 2002. At the state level, an organization becomes a PAC according to the state's election laws.

A 527 organization or 527 group is a type of U.S. tax-exempt organization organized under Section 527 of the U.S. Internal Revenue Code. A 527 group is created primarily to influence the selection, nomination, election, appointment or defeat of candidates to federal, state or local public office.

The Federal Election Campaign Act of 1971 is the primary United States federal law regulating political campaign fundraising and spending. The law originally focused on creating limits for campaign spending on communication media, adding additional penalties to the criminal code for election law violations, and imposing disclosure requirements for federal political campaigns. The Act was signed into law by President Richard Nixon on February 7, 1972.

<span class="mw-page-title-main">Campaign finance in the United States</span> Contributions to American election campaign funds

The financing of electoral campaigns in the United States happens at the federal, state, and local levels by contributions from individuals, corporations, political action committees, and sometimes the government. Campaign spending has risen steadily at least since 1990.

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is a landmark decision of the Supreme Court of the United States regarding campaign finance laws and free speech under the First Amendment to the U.S. Constitution. The court held 5–4 that the freedom of speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, including nonprofit corporations, labor unions, and other associations.

<span class="mw-page-title-main">Campaign Legal Center</span> American nonprofit organization

Campaign Legal Center (CLC) is a nonprofit 501(c)(3) government watchdog group in the United States. CLC supports strong enforcement of United States campaign finance laws. Trevor Potter, former Republican chairman of the Federal Election Commission, is CLC's founding president.

The term corporate donation refers to any financial contribution made by a corporation to another organization that furthers the contributor's own objectives. Two major kinds of such donations deserve specific consideration, charitable as well as political donations.

<span class="mw-page-title-main">Dark money</span> Undisclosed American political contributions

In politics, particularly the politics of the United States, dark money refers to spending to influence elections, public policy, and political discourse, where the source of the money is not disclosed to the public.

In the United States, the phrase testing the waters is used to describe someone who is exploring the feasibility of becoming a candidate for political office. It can also be used more generally as an idiom meaning to estimate the success of something by trying it out a little bit.

Fundraising plays a central role in many presidential campaigns, and is a key factor in determining the viability of candidates. Money raised is applied for the salaries of non-volunteers in the campaign, transportation, campaign materials, media advertisements and other contingencies. Under United States law, officially declared candidates are required to file campaign finance details with the Federal Elections Commission (FEC) at the end of every calendar month or quarter. Summaries of these reports are made available to the public shortly thereafter, revealing the relative financial situations of all the campaigns.

<span class="mw-page-title-main">Correct the Record</span> Hybrid PAC/super PAC founded by David Brock

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Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996), was a case heard by the Supreme Court of the United States in which the Colorado Republican Party challenged the Federal Election Commission (FEC) as to whether the "Party Expenditure Provision" of the Federal Election Campaign Act of 1971 (FECA) violated the First Amendment right to free speech. This provision put a limit on the amount of money a national party could spend on a congressional candidate's campaign. The FEC argued that the Committee violated this provision when purchasing a radio advertisement that attacked the likely candidate of the Colorado Democratic Party. The court held that since the expenditures by the committee were made independently from a specific candidate, they did not violate the campaign contribution limitations established by the FECA, and were protected under the First Amendment.

<i>FEC v. National Conservative PAC</i> 1985 United States Supreme Court case

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<span class="mw-page-title-main">AAPI Victory Fund</span>

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Save America is a leadership political action committee founded and controlled by former US president Donald Trump. It has been Trump's primary fundraising and political spending arm since he left office.

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References

  1. ↑ Lawmakers Take on Super PACs on Smith Hill, GoLocal Prov News, Dan McGowan, February 17, 2012
  2. ↑ 11 CFR 100.16 - Independent expenditure (2 U.S.C. 431(17)), Cornell University Cornell Law School, Jan. 3, 2003
  3. ↑ US Congress (2014-01-01). "Section 100.16 - Independent expenditure (2 U.S.C. 431(17))". Code of Federal Regulations. Government Printing Office. Retrieved 26 August 2014.
  4. ↑ "68 FR 451". Federal Register. Government Printing Office. Jan 3, 2003.{{cite web}}: Missing or empty |url= (help)
  5. ↑ "Glossary of Key FEC Terms For Political Action Committees, Candidates, Parties and Citizens" (PDF).
  6. ↑ Rothenberg Political Report, 8/2/10 http://rothenbergpoliticalreport.com/news/article/dccc-turns-to-mooks-ground-game-for-fall
  7. ↑ FEC Website, Coordinated Communications and Independent Expenditures Brochure http://www.fec.gov/pages/brochures/indexp.shtml#IE
  8. ↑ "Contribution Limits For 2023-2024 Federal Elections" (PDF).
  9. ↑ "FEC Complaints Against Presidential Hopefuls Show Widespread Violations, Total Disregard for Campaign Finance Law: They Must Take the American People for Fools". Campaign Legal Center. Retrieved 2016-04-18.
  10. ↑ "FEC Complaints Against Presidential Hopefuls Show Widespread Violations, Total Disregard for Campaign Finance Law: They Must Take the American People for Fools". Campaign Legal Center. Retrieved 2016-04-18.
  11. ↑ Goldmacher, Alex Roarty and Shane. "They're Not Allowed to Talk. But Candidates and PACs Are Brazenly Communicating All the Time". The Atlantic. Retrieved 2016-04-18.
  12. ↑ Goldmacher, Alex Roarty and Shane. "They're Not Allowed to Talk. But Candidates and PACs Are Brazenly Communicating All the Time". The Atlantic. Retrieved 2016-04-18.
  13. ↑ Goldmacher, Alex Roarty and Shane. "They're Not Allowed to Talk. But Candidates and PACs Are Brazenly Communicating All the Time". The Atlantic. Retrieved 2016-04-18.
  14. ↑ Goldmacher, Alex Roarty and Shane. "They're Not Allowed to Talk. But Candidates and PACs Are Brazenly Communicating All the Time". The Atlantic. Retrieved 2016-04-18.
  15. ↑ "Line Blurs Further Between Jeb Bush's Campaign And Super PAC". ThinkProgress. Retrieved 2016-04-18.
  16. ↑ "Exclusive: George W. Bush cuts television ad backing his brother". POLITICO. Retrieved 2016-04-18.
  17. ↑ "George W. Bush cuts ad for Jeb, as candidate makes family bigger part of campaign | Fox News". Fox News. 2016-02-05. Retrieved 2016-04-18.
  18. ↑ Voorhees, Josh (2016-02-04). "Jeb Bush Is Turning to His Big Brother for Help". Slate. ISSN   1091-2339 . Retrieved 2016-04-18.
  19. ↑ Heineman, Ben W. Jr. "Super PACs: The WMDs of Campaign Finance". The Atlantic. Retrieved 2016-04-18.
  20. ↑ Lichtblau, Eric (2015-05-02). "F.E.C. Can't Curb 2016 Election Abuse, Commission Chief Says". The New York Times. ISSN   0362-4331 . Retrieved 2016-04-18.
  21. ↑ Middle Tennessee State University First Amendment Encyclopedia https://www.mtsu.edu/first-amendment/article/126/buckley-v-valeo
  22. ↑ OpenSecrets Glossary of Terms http://www.opensecrets.org/glossary.php?id=4 Archived 2010-11-28 at the Wayback Machine
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