Independent expenditure

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An independent expenditure, in elections in the United States, is a political campaign communication that expressly advocates 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 a political party.[1] If a candidate, his agent, his authorized committee, his party, or an "agent" for one of these groups becomes "materially involved", the expenditure is not independent.[2]

Independent Expenditures distinguished from Contributions[edit]

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.

Coordination and Independent Expenditures[edit]

By definition, Independent Expenditures cannot be made at the request of a campaign or candidate, or coordinated with a campaign committee.

According to Federal law, an agent is someone who has "actual authority, either express or implied" to do one or more of a list of actions on behalf of a campaign. According to that list, 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.[3]

Additionally, 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.[4]

Some have argued that many independent expenditure are in reality coordinated. As late as January 6, 2012, 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 independence"[5]

Supreme Court cases[edit]

In 1976, the United States Supreme Court ruled on the case Buckley v. Valeo. The case challenged most of the provisions in the Federal Election Campaign Act. The Supreme Court upheld the law’s limits to contributions to candidates for Federal office, limits on expenditures made by candidates and their associated committees. The Court did not, however, uphold limits on independent expenditures.[6]

In 2010, the U.S. Court of Appeals for the District of Columbia Circuit held that 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. v. Federal Election Commission.

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