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. 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.

Independent expenditure groups

These groups are also called independent expenditure committees. This lends to some confusion with the term "political action committee" since they sound similar. However, think of the term "family pet". Under that term is a sub-classifications "family dogs" and further sub-classifications like "toy dogs". Under the umbrella term independent expenditure group are:

• Political action committee;
• 527 Organization;
• Political party committee;
• Interest groups; and
• Nonprofit organization

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.

Independent contributions

The term independent contributions refers to monies given to groups that use them to make independent expenditures.

Individual contributions

Refers to monies, or their equivalent, from an individual person. Individuals can give campaign contributions directly to candidates, groups associated with the candidate, or independent expenditure groups.

Contribution limits

Federal regulations and local State regulations how much individuals and various types of organizations can contribute. See External links for Federal limits.

The maximum that can be contributed towards a PAC that is operating in a State election, varies, and in 2012 a reported 12 States had no limit at all.

Individual use of independent expenditures

An individual could not use independent expenditures on his own campaign. However, individuals, like an existing elected official, could form a Leadership PAC. This type of PAC allowed unlimited spending on like minded individuals and ballot measures provided it was an independent expenditure. Leadership PAC.

While funds could not be spent on their own campaigns, individuals that controlled a PAC were allowed to subtract expenses to pay normal administrative expenses. When lampooning spending of this nature, Stephen Colbert claimed normal expenses included luxury hotel stays, private jet travel, and PAC mementos from Saks Fifth Avenue and Neiman Marcus."

What defines involvement?

Coordinated involvement was debated during the 2012 election season. It was even lampooned by TV satirist Stephen Colbert who created the Colbert Super Pac. The goal of his satire appeared to have been to demonstrate that coordination was so obvious it couldn't be overlooked unless someone intentionally tried to pretend it didn't exist. Some non-authorized political action committees were managed by close associates, former staff, or a candidates family member.

According to Federal definitions an agent is someone who has "actual authority, either express or implied" to do one or more of a list of actions. 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 claimed they sequester staff months before an election.

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.

Legal and legislative history

In 1971, Congress passed the Federal Election Campaign Act (FECA). FECA is a United States federal law which increased disclosure of contributions for federal campaigns.

FECA was amended in 1974 to create the Federal Election Commission (FEC). The FEC was created to be an independent regulatory agency of the federal government whose duties would be, “to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections.”

Supreme Court cases

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 to expenditures made by candidates and their associated committees and limited independent expenditures.

In 2010, the United States Supreme Court ruled on the case Citizens United v. Federal Election Commission. The Supreme Court ruled that the nonprofit corporation Citizens United could air a film critical of Senator Hillary Clinton and could advertise the film in television commercials without it being a violation of the Bipartisan Campaign Reform Act of 2002 (BCRA). The Supreme Court struck down a provision of the BCRA that prohibited all corporations and unions from broadcasting “electioneering communications.” Electioneering communications differ from independent expenditures in that independent expenditures are required to disclose whether a group explicitly supports or opposes a candidate for office, while an electioneering communication does not make that requirement of the organization.

21st century legislation

In 2002, Congress passed the Bipartisan Campaign Reform Act of 2002 (BCRA). This law, also known as, “The McCain-Feingold Bill,” amended the Federal Election Campaign Act of 1971 to close the legislative loophole that allowed for unlimited contributions by corporations, unions and individuals to national political parties. The bill also limited the amount that individuals or political action committees (PACs) could give to a national political party and prohibited national parties from raising or spending nonfederal funds.

In 2010, Congress introduced the DISCLOSE Act, which would establish disclosure requirements with respect to independent expenditures. Specifically, the bill would require organizations who make such expenditures to release the names of their donors. In June 2010, the House of Representatives passed the DISCLOSE Act, but in September of the same year, the Senate vote on the bill was 59 to 39, one short of the 60 votes required to pass the bill.

Unmasking the claim of independent expenditure

Some claimed, like Stephen Colbert, that much of the so called independent expenditure was in reality coordinated. As late as January 6, 2012, people like prominent 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"

Overall, the claim of independent expenditure by groups during the 2012 was very much a repeat of claims made during previous elections. In prior elections, claims and counterclaims centered around the subject of issue advocacy. Many claimed that their advertisements failed to mention one of the eight magic words and was therefore unregulated issue only advocacy. The words were repeated and argued on Capital Hill. They were taught in law schools, and everyone seemingly ignored the inconvenient fact they were only examples.

However, Federal rulings have consistently rejected the notion that actors had to cross the bright-line, or that smoking guns had to be found. Instead they reconfirmed their position on January 31, 2012, that it is the reasonable person test that decides guilt from innocence.

The National Organization for Marriage argued their organization made independent expenditures. However, the Court ruled against the group using the reasonable person test. In layman's terms this test is commonly described as "if it walks like a duck, quacks like a duck, its a duck." In more legal terms, it means a court can examine the conclusions that a reasonable person would come to, in the same place, given the evidence. If the court concludes that a reasonable person would have an expectation that their donation would go toward promoting a specific candidate or cause, then the donation was subject to limitation and regulations including disclosure of source.

Disclosure laws have assisted in unmasking questionable contributions and expenditures since they have helped establish a money trail.

Federal rulings requiring groups to follow disclosure rules

Federal courts have ruled in favor of upholding State election laws and release of donor names and addresses. For example: December 29th, 2011 the Ninth Circuit Court of Appeals ruled against Family PAC, an organization that describes itself as "the leading pro-family, anti-tax" PAC. According to one scholarly article that reviewed the decision, the Court confirmed that PACs must conform with State of Washington election laws and were required to disclose the names and addresses for anyone contributing over $25. Within the ruling, the Court stated:

"The compelling State interest here is providing access to voters to information relevant to voting decision[s]....we do not agree with Family PAC’s contention that disclosure of small contributors does not provide information that enables the electorate to evaluate campaign messages and make informed decisions."

Political history and applications in the 21st century

In 2004, the presidential campaigns of both Senator John Kerry and President George W. Bush were faced with attacks from 527 independent expenditure committees. Swift Boat Veterans for Truth attacked Senator Kerry on his record of service during the Vietnam War, while liberal 527 groups such as MoveOn.org, The Media Fund and America Coming Together used a message of defeating President Bush in their independent expenditures. In September 2004, the Bush campaign filed a lawsuit accusing these liberal 527 organizations of violating election law by coordinating their efforts with the Kerry campaign.

527 groups are tax-exempt and named after the section of the Internal Revenue Code under which they fall. They are able to raise money for political activities, but are only required to file regular disclosure reports if they operate as a political party or political action committee engaging in activities that expressly advocate the election or defeat of a federal candidate, or electioneering communications. Since they are not required to file disclosures with the FEC, 527 groups are able to raise unlimited funds for their voter mobilization and issue advocacy.

In the 2004 election, the Bush campaign believed that the liberal 527 organizations such as MoveOn.org, The Media Fund and America Coming Together were coordinating their message with the Kerry for President campaign – thereby advocating the election of a federal candidate, and should therefore be held to the campaign finance limits of a political party or political action committee.

In 2006, the Republican National Committee ran an independent expenditure television commercial aimed at Congressman Harold Ford, Jr., who was campaigning for an open Senate seat in Tennessee. The commercial featured fake “man on the street” interviews that criticized Ford’s stance on tax and security issues.

“The controversy erupted over one of the people featured: an attractive white woman, bare-shouldered, who declares that she met Mr. Ford at a ‘Playboy party,’ and closes the commercial by looking into the camera and saying, with a wink, ‘Harold, call me.’ ”

Calling the spot racist, Republican candidate and former Chattanooga Mayor Bob Corker demanded that the spot be taken off the air, even though his campaign had nothing to do with its creation or airing.

This campaign was especially significant because, if he won, Ford would have been the first African-American senator to represent the South since Reconstruction.

In 2008, an FEC complaint was filed by the Democratic Congressional Campaign Committee (DCCC) against the National Republican Congressional Committee (NRCC) and an independent organization, Freedom’s Watch. The complaint alleged that the two organizations were illegally coordinating campaign activities. Freedom’s Watch had aired a campaign commercial against Democratic congressional candidate Don Cazayoux as an independent expenditure. The script of the ad as submitted to Louisiana television stations contained metadata that suggested that it had been edited by staff of the NRCC. This was a significant implementation of campaign finance law because it implied coordination between two groups making independent expenditures.

See also

• 527 group
• Issue advocacy ads
• Lobbying in the United States
• Money loop
• Political action committee
• Politics of the United States
• Soft money

External links

• Federal Election Commission
• FEC Coordinated communications and independent expenditures brochure
• FEC Contribution limit brochure