Some information presented in this publication has been modified by the Supreme Court decision in Wisconsin Right to Life v. FEC (June 25, 2007) [PDF; 93 pages]. An updated version of this publication will be available at a later date. In the interim, please visit the FEC’s searchable electronic rulemakings system and Litigation pages for additional information.
Portions of this publication may be affected by the Supreme Court's decision in Citizens United v. FEC. Essentially, the Court's ruling permits corporations and labor organizations to use treasury funds to make independent expenditures in connection with federal elections and to fund electioneering communications. The ruling did not affect the ban on corporate or union contributions or the reporting requirements for independent expenditures and electioneering communications. The Commission promulgated new regulations regarding corporate and labor independent expenditures and electioneering communications on January 27, 2015; see this Record article for a summary and a link to the new regulations.
This brochure focuses on the rules pertaining to electioneering communications-television or radio communications that refer to a clearly identified federal candidate and are distributed to the relevant electorate within 60 days prior to the general election or 30 days prior to a primary.1 In general, these rules require that electioneering communications be financed using funds from sources permissible under the federal campaign finance law; but neither the funds raised nor those spent are subject to the law's contribution limits.2 Once an electioneering communication is publicly distributed, and payments for that electioneering communication exceed $10,000, the disbursements and the sources of the funds used must be disclosed within 24 hours.
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An electioneering communication is any broadcast, cable or satellite communication that fulfills each of the following conditions:
A communication refers to a clearly identified federal candidate if it contains the candidate's name, nickname or image, or makes any unambiguous reference to the person or their status as a candidate, such as "the Democratic candidate for Senate." 11 CFR 100.29(b)(2).
Generally, a communication is publicly distributed if it is disseminated for a fee by a television station, radio station, cable television system or satellite system. 11 CFR 100.29(b)(3)(i). Electioneering communications are limited to paid programming. The station is not required to seek or receive payment for distribution of the communication to qualify. Therefore, public service announcements, infomercials and commercials are all included within the definition.
The electioneering communications rules apply only to communications that are transmitted within 60 days prior to a general election or 30 days prior to a primary election for the federal office sought by the candidate, including elections in which the candidate is unopposed. A "primary election" includes any caucus or convention of a political party which has the authority to nominate a candidate to federal office. 11 CFR 100.29(a)(2). This condition regarding the timing of the communication applies only to elections in which the candidate referred to is seeking office.
In odd-numbered years the electioneering communications requirements apply only to special elections held to fill vacant congressional seats (including a special primary, general or runoff election).
In the case of Presidential and Vice-Presidential primary candidates, the communication is publicly distributed if it can be received by 50,000 or more people:
The communication targets the relevant electorate if it can be received by 50,000 or more people in the district (in the case of a U.S. House candidate) or state (in the case of a Senate candidate) that the candidate seeks to represent. 11 CFR 100.29(b)(5).
The Federal Communications Commission (FCC) provides on its website the information necessary to determine whether a communication can be received by 50,000 people.
The regulations at 11 CFR 100.29(c)(1) through (5) exempt certain communications from the definition of "electioneering communication":
As noted above, expenditures that must otherwise be reported to the FEC are not considered electioneering communications, even if they would otherwise qualify. 11 CFR 100.29(c)(3) and 104.20(b). Generally, political committees registered with the FEC are therefore not subject to the electioneering communications rules.
Further, they may not provide funds to any person if they know, have reason to know, or are willfully blind to the fact that the funds are for the purpose of making electioneering communications. 11 CFR 114.14(a).
If a communication which otherwise fits the criteria of an electioneering communication is paid for by the separate segregated fund (PAC) of a corporation, it is reportable as an expenditure - not as an electioneering communication. 11 CFR 104.20(b).
Qualified Nonprofit Corporations (QNCs) may make electioneering communications. To qualify, the entity must be a nonprofit corporation incorporated under 26 U.S.C. §501(c)(4) 4 that is ideological in nature and qualifies for exemptions under 11 CFR 114.10.
If a QNC makes electioneering communications that aggregate in excess of $10,000 in a calendar year, it must certify that it is eligible for the QNC exemption. The certification must include the name and address of the corporation and the signature and printed name of the individual making the qualifying statement. It must also certify that the corporation meets the standards of a QNC, either by satisfying all of the qualifications at 11 CFR 114.10(c)(1)-(5), or through a court ruling pursuant to 11 CFR 114.10(e)(1)(i)(B). The certification is due no later than when the first electioneering communications report is required to be filed. 11 CFR 114.10(e)(1)(ii)(A).
QNCs can neither make contributions to federal political committees, nor accept any funds from corporations or labor organizations. 11 CFR 114.10(c)(4)(ii) and (d)(2) and (3). Also, these regulations do not supercede any section of the Internal Revenue Code regarding 501(c)(4) organizations. 11 CFR 114.10(i).
Generally, incorporated organizations operating under 26 U.S.C. §527 may not make electioneering communications.
However, an incorporated state party committee or state candidate committee operating under 26 U.S.C. § 527 is exempt from this corporate prohibition provided that the committee:
Unincorporated, unregistered "527" organizations may also make electioneering communications, subject to the disclosure requirements and the prohibition against corporate and labor funds.
Individuals and partnerships may make or finance electioneering communications, provided that certain conditions are met. Those that accept funds provided by corporations or labor organizations may neither use those funds to pay for electioneering communications, nor give them to another to defray the costs of making an electioneering communication. 11 CFR 114.14(b).
They must be able to demonstrate through a reasonable accounting procedure that no prohibited funds were used to pay for the electioneering communication. 11 CFR 114.14(d).
Persons who make electioneering communications that aggregate more than $10,000 in the calendar year must file the "24 Hour Notice of Disbursements/Obligations for Electioneering Communications" (FEC Form 9) [PDF] with the Commission within 24 hours of the disclosure date. 11 CFR 104.20(b). FEC Form 9 must be received by the Commission by 11:59 p.m. on the day following the disclosure date.
The regulations define "disclosure date" as:
Accordingly, the definition of "disclosure date" requires continuous reporting. After the first disclosure report, each time the direct costs of electioneering communications aggregate in excess of $10,000, an additional disclosure report is due within 24 hours of this new disclosure date.
Disbursements made at any time for the direct costs of producing or airing the publicly-distributed electioneering communication, or other unreported electioneering communications, count toward the threshold. However, costs already reported for earlier electioneering communications are not included.
FEC Form 9 [PDF] (or a Commission-approved, computer-produced form) must be signed and filed with the FEC and in the state where the candidate is running if that state has not qualified for a waiver.6 In the case of Presidential and Vice-Presidential candidates, a copy of Form 9 must be filed in the state where the expenditure is made, except in those states that have qualified for the Commission's state filing waiver. 11 CFR 104.20(e) and 108.1(b). Click for a list of the qualified states and territories.
Electronic filers must file these notices electronically. 11 CFR 100.19(f). Paper filers may submit the notice by mail to the FEC but are encouraged to file by fax - 202/219-0174, or via e-mail - [email protected] to ensure compliance with the 24-hour filing deadline. Form 9 is also available via the agency's automated Faxline - 202/501-3413; or through the mail by calling 800/424-9530.
Each statement disclosing electioneering communications must include:
1 Citations contained in this brochure refer to Federal Election Commission (FEC) regulations, contained in title 11 of the Code of Federal Regulations (11 CFR) and to advisory opinions (AOs). The reader should not rely solely on this brochure, but should also consult Commission regulations and advisory opinions.
2 A payment that qualifies as a "coordinated communication" under 11 CFR 109.21 results in an in-kind contribution, and is subject to the contribution limits.
3 Generally, the restricted class comprises the executive and administrative personnel and their families. It also includes a corporation's stockholders and their families, or a labor or membership organization's members and their families. See 11 CFR 114.1(c), (e) and (j).
4 For further information on 501(c) and 527 organizations, contact the Exempt Organizations Technical Division of the IRS at 1-877-829-5500, or on their website.
5 The direct costs of producing or airing electioneering communications are defined as the costs charged by a vendor, such as studio rental time, staff salaries, costs of video or audio recording media and talent, or the cost of airtime on broadcast, cable and satellite radio and television stations, studio time, material costs and the charges for a broker to purchase the airtime. 11 CFR 104.20(a)(2).
6 As of March 2009, only Guam, Puerto Rico and the Northern Mariana Islands had not qualified for a waiver.
7 Persons sharing or exercising direction or control means officers, directors, executive directors or their equivalent, partners, and, in the case of unincorporated organizations, owners of the entity or person making the disbursement for the electioneering communication. 11 CFR 104.20(a)(3).
This publication provides guidance on certain aspects of federal campaign finance law. This publication is not intended to replace the law or to change its meaning, nor does this publication create or confer any rights for or on any person or bind the Federal Election Commission (Commission) or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions, and applicable court decisions. For further information, please contact: