An independent expenditure, in

elections in the United States Elections in the United States are held for Official, government officials at the Federal government of the United States, federal, State governments of the United States, state, and Local government in the United States, local levels. At the ...

, is a

political campaign A political campaign is an organized effort which seeks to influence the decision making progress within a specific group. In democracy, democracies, political campaigns often refer to election, electoral campaigns, by which representatives a ...

communication that expressly advocates for the election or defeat of a clearly identified political candidate that is not made in cooperation, consultation or concert with – or at the request or suggestion of – a

candidate A candidate, or nominee, is a prospective recipient of an award or honor, or a person seeking or being considered for some kind of position. For example, one can be a candidate for membership in a group (sociology), group or election to an offic ...

, a candidate's authorized committee, or a

political party A political party is an organization that coordinates candidates to compete in a particular area's elections. It is common for the members of a party to hold similar ideas about politics, and parties may promote specific political ideology, ...

.Lawmakers Take on Super PACs on Smith Hill, GoLocal Prov News, Dan McGowan, February 17, 2012
/ref> If a candidate's agent, authorized committee, party, or an "agent" for one of these groups becomes "materially involved", the expenditure is not independent.11 CFR 100.16 - Independent expenditure (2 U.S.C. 431(17)), Cornell University Cornell Law School, Jan. 3, 2003
/ref>

Definition

The

Code of Federal Regulations In the law of the United States, the ''Code of Federal Regulations'' (''CFR'') is the codification of the general and permanent regulatory law, regulations promulgated by the executive departments and agencies of the federal government of the ...

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). The term was first introduced in the Code of Federal Regulations in 2003. The

Federal Election Commission The Federal Election Commission (FEC) is an independent agency of the United States government that enforces U.S. campaign finance laws and oversees U.S. federal elections. Created in 1974 through amendments to the Federal Election Campaign ...

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. 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.Rothenberg Political Report, 8/2/10 http://rothenbergpoliticalreport.com/news/article/dccc-turns-to-mooks-ground-game-for-fall 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.FEC Website, Coordinated Communications and Independent Expenditures Brochure http://www.fec.gov/pages/brochures/indexp.shtml#IE

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 committee In the election politics of the United States, an exploratory committee is an organization established to help determine whether a potential candidate should run for an elected office. They are most often cited in reference to candidates for pre ...

s." 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. 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, " ebBush, artinO'Malley, ickSantorum and cottWalker

ere Ere or ERE may refer to: * ''Environmental and Resource Economics'', a peer-reviewed academic journal * ERE Informatique, one of the first French video game companies * Ere language, an Austronesian language * Ebi Ere (born 1981), American-Nigeria ...

all raising funds above the $2,700 candidate limit, providing reason to believe they

violating federal law." Ryan argues, " heyhave 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 ''The Atlantic'' is an American magazine and multi-platform publisher based in Washington, D.C. It features articles on politics, foreign affairs, business and the economy, culture and the arts, technology, and science. It was founded in 185 ...

, outlined just how "brazen" current attempts at coordination can be. 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." 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." 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." 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." 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. When queried about the commercial, Jeb Bush protested that " edidn't know is brotherwas doing that" and was "righteous in making sure there's no coordination." 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. 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. 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."

Important Supreme Court decisions

In 1976, the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...

ruled on

Buckley v. Valeo ''Buckley v. Valeo'', 424 U.S. 1 (1976), was a List of landmark court decisions in the United States, landmark decision of the U.S. Supreme Court on campaign finance in the United States, campaign finance. A majority of justices held that, as pro ...

, a case which challenged most of the provisions in the

Federal Election Campaign Act The Federal Election Campaign Act of 1971 (FECA, , ''et seq.'') is the primary United States federal law regulating political campaign fundraising and spending. The law originally focused on creating limits for campaign spending on communicati ...

. 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.Middle Tennessee State University First Amendment Encyclopedia https://www.mtsu.edu/first-amendment/article/126/buckley-v-valeo

OpenSecrets OpenSecrets is a nonprofit organization based in Washington, D.C., that tracks and publishes data on campaign finance and lobbying, including a revolving door database which documents the individuals who have worked in both the public sector an ...

Glossary of Terms http://www.opensecrets.org/glossary.php?id=4 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 committee 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 l ...

s (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.

References

External links

Federal Election Commission

FEC Coordinated communications and independent expenditures brochure

FEC Contribution limit brochure
{{DEFAULTSORT:Independent Expenditure United States federal election legislation