Independent expenditure
Encyclopedia

Definition

In elections in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, an independent expenditure is a political campaign
Political campaign
A political campaign is an organized effort which seeks to influence the decision making process within a specific group. In democracies, political campaigns often refer to electoral campaigns, wherein representatives are chosen or referendums are decided...

 communication which 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
Political party
A political party is a political organization that typically seeks to influence government policy, usually by nominating their own candidates and trying to seat them in political office. Parties participate in electoral campaigns, educational outreach or protest actions...

.

Independent expenditures are not subject to the legal limits placed upon candidates and campaign organizations such as political parties
Political Parties
Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy is a book by sociologist Robert Michels, published in 1911 , and first introducing the concept of iron law of oligarchy...

.

Organizations that have made independent expenditures include party campaign committees, third party interest groups and 527 organizations. 527 groups are tax-exempt organizations that may raise unlimited funds for their voter mobilization and issue advocacy and are only required to file regular disclosure reports they engage activities expressly advocating the election or defeat of a federal candidate or electioneering communications.

In order to ensure that there is no coordination between an independent expenditure and a candidate and/or political party, party campaign committees will often 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 / Legislative History

In 1971, Congress passed the Federal Election Campaign Act (FECA)
Federal Election Campaign Act
The Federal Election Campaign Act of 1971 is a United States federal law which increased disclosure of contributions for federal campaigns. It was amended in 1974 to place legal limits on the campaign contributions...

. 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)
Federal Election Commission
The Federal Election Commission is an independent regulatory agency that was founded in 1975 by the United States Congress to regulate the campaign finance legislation in the United States. It was created in a provision of the 1975 amendment to the Federal Election Campaign Act...

. 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
Buckley v. Valeo
Buckley v. Valeo, 424 U.S. 1 , was a case in which the Supreme Court of the United States upheld a federal law which set limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law...

. The case challenged most of the provisions in the Federal Election Campaign Act
Federal Election Campaign Act
The Federal Election Campaign Act of 1971 is a United States federal law which increased disclosure of contributions for federal campaigns. It was amended in 1974 to place legal limits on the campaign contributions...

. 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
Citizens United v. Federal Election Commission
Citizens United v. Federal Election Commission, , was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from censoring political broadcasts in candidate elections when those broadcasts are funded by corporations or unions...

. 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)
Bipartisan Campaign Reform Act
The Bipartisan Campaign Reform Act of 2002 is a United States federal law that amended the Federal Election Campaign Act of 1971, which regulates the financing of political campaigns. Its chief sponsors were Senators Russell Feingold and John McCain...

. 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)
Bipartisan Campaign Reform Act
The Bipartisan Campaign Reform Act of 2002 is a United States federal law that amended the Federal Election Campaign Act of 1971, which regulates the financing of political campaigns. Its chief sponsors were Senators Russell Feingold and John McCain...

. This law, also known as, “The McCain-Feingold Bill,” amended the Federal Election Campaign Act of 1971
Federal Election Campaign Act
The Federal Election Campaign Act of 1971 is a United States federal law which increased disclosure of contributions for federal campaigns. It was amended in 1974 to place legal limits on the campaign contributions...

  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)
Political action committee
In the United States, a political action committee, or PAC, is the name commonly given to a private group, regardless of size, organized to elect political candidates or to advance the outcome of a political issue or legislation. Legally, what constitutes a "PAC" for purposes of regulation is a...

  could give to a national political party and prohibited national parties from raising or spending nonfederal funds.

In 2010, Congress introduced the DISCLOSE Act
DISCLOSE Act
The Democracy Is Strengthened by Casting Light On Spending in Elections Act, commonly known as the DISCLOSE Act and also known as H.R. 5175 , was a bill introduced in the U.S. House of Representatives by Chris Van Hollen on April 29, 2010 and in the U.S...

, 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
DISCLOSE Act
The Democracy Is Strengthened by Casting Light On Spending in Elections Act, commonly known as the DISCLOSE Act and also known as H.R. 5175 , was a bill introduced in the U.S. House of Representatives by Chris Van Hollen on April 29, 2010 and in the U.S...

, 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.

Political History and Applications in the 21st Century

In 2004, the presidential campaigns of both Senator John Kerry
John Kerry
John Forbes Kerry is the senior United States Senator from Massachusetts, the 10th most senior U.S. Senator and chairman of the Senate Foreign Relations Committee. He was the presidential nominee of the Democratic Party in the 2004 presidential election, but lost to former President George W...

 and President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

 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
America Coming Together
America Coming Together was a liberal, political action, 527 group dedicated to get-out-the-vote activities. ACT did not specifically endorse any political party, but mostly worked on behalf of Democratic candidates. It was the largest 527 group in 2004 and was planning to be involved in future...

 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
America Coming Together
America Coming Together was a liberal, political action, 527 group dedicated to get-out-the-vote activities. ACT did not specifically endorse any political party, but mostly worked on behalf of Democratic candidates. It was the largest 527 group in 2004 and was planning to be involved in future...

 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
Political party
A political party is a political organization that typically seeks to influence government policy, usually by nominating their own candidates and trying to seat them in political office. Parties participate in electoral campaigns, educational outreach or protest actions...

 or political action committee
Political action committee
In the United States, a political action committee, or PAC, is the name commonly given to a private group, regardless of size, organized to elect political candidates or to advance the outcome of a political issue or legislation. Legally, what constitutes a "PAC" for purposes of regulation is a...

.

In 2006, the Republican National Committee
Republican National Committee
The Republican National Committee is an American political committee that provides national leadership for the Republican Party of the United States. It is responsible for developing and promoting the Republican political platform, as well as coordinating fundraising and election strategy. It is...

 ran an independent expenditure television commercial aimed at Congressman Harold Ford, Jr.
Harold Ford, Jr.
Harold Eugene Ford, Jr. is an American politician and was the last chairman of the now-defunct Democratic Leadership Council . He was a Democratic Party member of the United States House of Representatives from , centered in Memphis, from 1997 to 2007...

, 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
Bob Corker
Robert Phillips "Bob" Corker, Jr. is the junior United States Senator from Tennessee. Before his election to the Senate in 2006, he served as mayor of Chattanooga, Tennessee from 2001 to 2005. Corker was a businessman prior to holding public office.-Early life and family:Born in Orangeburg, South...

 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
Federal Election Commission
The Federal Election Commission is an independent regulatory agency that was founded in 1975 by the United States Congress to regulate the campaign finance legislation in the United States. It was created in a provision of the 1975 amendment to the Federal Election Campaign Act...

 complaint was filed by the Democratic Congressional Campaign Committee (DCCC)
Democratic Congressional Campaign Committee
The Democratic Congressional Campaign Committee is the Democratic Hill committee for the United States House of Representatives, working to elect Democrats to that body. They play a critical role in recruiting candidates, raising funds, and organizing races in districts that are expected to yield...

 against the National Republican Congressional Committee (NRCC)
National Republican Congressional Committee
The National Republican Congressional Committee is the Republican Hill committee which works to elect Republicans to the United States House of Representatives....

 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
Don Cazayoux
Donald J. 'Don' Cazayoux, Jr. is a former Democratic U.S. Representative from Louisiana's 6th congressional district. He is currently US Attorney for the Middle District of Louisiana....

 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
National Republican Congressional Committee
The National Republican Congressional Committee is the Republican Hill committee which works to elect Republicans to the United States House of Representatives....

. This was a significant implementation of campaign finance law because it implied coordination between two groups making independent expenditures.
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