Last Week at the FEC: Varying Interpretations on How to Report Nationwide Independent Expenditures

Last week the Federal Election Commission met to discuss AO 2013-18, Revolution Messaging, Audit Division recommendations related to a number of state and county party committees, and a Draft Interpretive Rule on Reporting Nationwide Independent Expenditures in Presidential Primary Elections. It also made public the results of MUR 6586, finding no reason to believe that World Wrestling Entertainment, Inc. ("WWE") made a prohibited corporate contribution to former Senate candidate Linda McMahon when it sent a cease and desist letter to a local newspaper.

The Commission held over a vote on Revolution Messaging after receiving late comments from Revolution Messaging and from the Center for Competitive Politics just a day prior to its meeting. This blog previously discussed the draft advisory opinions under consideration on December 2 and 9, 2013.

Audit Division Recommendations

The Commission approved Audit Division recommendations to find that both the Vermont Democratic Party and the Democratic Party of South Carolina had failed to properly keep monthly timelogs to document the time that employees spent on federal election activity. This requirement is intended to ensure that such party committees are not using funds raised to support state candidates to pay for staff work related to federal elections.  

The Commission also discussed, but did not vote, on similar Audit Division recommendations related to the Dallas County Republican Party and the Republican Party of Iowa. These latter recommendations, which the Commission did not adopt, were more complex because the Audit Division also recommended that the Commission find that both of those committees had filed improper reports regarding their spending, debts, and obligations.

Draft Rule on Reporting Nationwide Independent Expenditures

The Commission released three alternative draft guidance documents related to how political committees should report nationwide independent expenditures that political committees make in support of presidential primary candidates.  

Under the Federal Election Campaign Act, as amended ("FECA"), political committees must file reports disclosing expenditures that "expressly advocate the election or defeat of a federal candidate." These reports must be filed within 48-hours if a committee's expenditures exceed $10,000 in the aggregate and must be filed with 24-hours if they exceed $1,000 within 20 days of the given date of an election. See 11 CFR 104.4. These requirements can be applied fairly easily in the single-district/single-state elections for US House and Senate, but are less clearly applicable to the multi-state primary system used to designate each party's chosen presidential candidate.

Each of these three drafts would provide significantly different guidance on how committees should determine the appropriate date of election and amount of their independent expenditures to report during presidential primaries.

Draft A relies on the Commission's decision in AO 2011-29 (Western Representation PAC) to clarify that the amount of nationwide expenditures, which do not focus on any particular state, should be divided between each of the remaining primary dates, and individual reports filed for each that would exceed an applicable $1,000 or $10,000 threshold. Drafts B and C both rely on the Commission's earlier decision in AO 1995-44 (Forbes for President) to advise that the amount of the expenditure should not be divided and should instead be reported along with a memorandum entry indicating that it is a "nationwide" expenditure.  

Drafts B and C differ with regards to the applicable dates of election. Draft C would apply "the date of the next subsequent primary election" to determine whether the expenditure was made within the 20-day window requiring a 24-hour report. Creating the potential for committees to transition repeatedly between the 24 and 48-hour reporting regimes. Draft B would simplify further, substituting "the first day of the candidate's nominating convention" as a single primary date for the purposes of determining the applicable thresholds for 24 and 48-hour reports during nationwide primaries.

The Commission has requested that the public provide comments on this proposed guidance document no later than February 20, 2014.

Meeting Schedule

The Commission is scheduled to meet again in executive session on Tuesday, January 28 and in open session on Thursday, January 30. Agendas have not yet been released for those meetings.