AGENDA DOCUMENT NO. 15-50-B 

FEDERAL ELECTION COMMISSION 

Washington. DC 20463 

. -' 

2015 SEP 30 Pl'i 12: 40 

September 30. 20 I 5 

MEMORANDUM 

AGENDA ITEM 

TO: The Commission 

For Meeting of ·~)--~~ 

FROM: Daniel A Petalas /)~V General Counsel SUBMITTED LATE 

Ada\' Noti fit/ 

Acting Associate General Counsel 

Robert M. Knop ~ L 

Assistant General Counsel 

Joanna Waldstreicher 'f!jYJJ 

Attorney 

SCBJECT: Drati Interpretive Rule on Reporting Nationwide Independent 

Expenditures in Presidential Primary Elections 

Attached is a draft interpretive rule on reporting nationwide independent 

expenditures in presidential primary elections. We request that this draft be placed on the 

agenda f(Jr October I. 2015. 

Attachment 
DRAFT 

FEDERAL ELECTION COMMISSION 

2 [Notice 2015-XXJ 

3 Reporting Nationwide Independent Expenditures in Presidential Primary Elections 

4 AGENCY: Federal Election Commission. 

5 ACTION: Notice of interpretive rule. 

6 SUMMARY: The Federal Election Commission is clarifying its interpretation of how its 

7 regulations concerning political committees' reporting of independent expenditures for 

8 presidential primary elections apply to independent expenditures that are distributed 

9 nationwide and do not reference or target a specific State's primary election. 

10 DATES: [Insert date of publication in FEDERAL REGISTER[ 

11 FOR FCRTHER INFORMATION CONTACT Robert M. Knop, Assistant General 

12 CounseL or Joanna S. Waldstreicher. Attorney, 999 E Street NW., \Vashington, DC 

13 20463, (202) 694-1650 or (800) 424-9530. 

14 SUPPLEMENTARY INFORMATION: Under the Federal Election Campaign Act 

15 (the "Act'') and Commission regulations, political committees must file reports disclosing 

16 independent expenditures The Commission is issuing this Notice to clarify its 

17 interpretation of these requirements as they apply to the reporting of independent 

18 expenditures that are made in connection with presidential primary elections but that do 

19 not reference or target a specific State's primary election. 

20 An ··independent expenditure" is an expenditure that expressly advocates the 

21 election or defeat of a clearly identified federal candidate and is not coordinated with a 

22 candidate or political party. 52 l! S C. 30 l 0 l ( 1 7): 11 CFR 1 00.16(a). Under the Act and 

n Commission regulations. a political committee that makes independent expenditures must 
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disclose those expenditures on its regular periodic reports, stating, among other things, 

2 the name of the candidate whom the expenditure supports or opposes and the office 

3 sought by that candidate. 52li.S.C. 30!04(b)(4)(H)(iii), (6)(B)(iii); II CFR l04.4(a). 

4 Also, although not required under the Act, Commission regulations require that political 

5 committees reporting independent expenditures also include the ''State and Congressional 

6 District. when applicable" on their reports filed. 11 CFR l04.3(b)(3)(vii)(B). 

7 In addition. a political committee that makes independent expenditures 

8 aggregating to at least $10,000 during the calendar year up to the 20th day before a given 

9 election must file a report describing the expenditures within 48 hours. 52 U.S.C. 

10 30 I 04(g)(2)(A); 11 CFR 1 04.4(b)(2). Additional reports must be filed within 48 hours 

1 1 each time the political committee makes further independent expenditures aggregating to 

12 $! 0,000 or more with respect to the same election as that to which the initial report 

13 relates. 52 U.S C 30!04(g)(2)(B); II CFR 104.4(b)(2). 

14 Similarly, a political committee that makes independent expenditures aggregating 

15 to $1 ,000 or more less than 20 days, but more than 24 hours, before the date of a given 

16 election must file a report describing the expenditures within 24 hours. 52 C.S.C. 

1 7 301 04(g)( 1 )(A): II CFR 1 04.4( c). Additional reports must be filed within 24 hours each 

18 time the political committee makes further independent expenditures aggregating $1,000 

19 or more with respect to the same election as that to which the initial report relates. 

20 52 C S C 30104(g)(l)(B); 11 C:FR 104.4(c). 

21 The 48- and 24-hour filing requirements begin to run when the independent 

22 expenditures aggregating more than $10,000 or$! ,000, respectively, are '·publicly 

23 distributed or otherwise publicly disseminated." II CFR 104.4(b)(2), (c), (f} For 
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purposes of calculating these expenditures and determining when a communication is 

J .. publicly distributed ... each State's presidential primary election is considered a separate 

3 election. See Achisory Opinion 2003-40 (Navy Veterans) at 3-4 (noting that "publicly 

.) distributed .. in section 104.4 has same meaning as term in 11 CFR 100.29(b)(3)(ii)(A), 

5 under which each State's presidential primary election is a separate election) (citing 

6 Bipartisan Campaign Reform i\ct of2002 Reporting, 68 FR 404, 407 (Jan. 3. 2003); 

7 Electioneering Communications, 67 FR 65190, 65194 (Oct. 23, 2002)). 

8 The Commission has previously provided guidance regarding how political 

9 committees should report transactions that relate to presidential primary candidates but 

10 do not target any specific State's primary. In Advisory Opinion 1995-44 (Forbes for 

1 1 President), the Commission addressed the requirement that candidate committees report 

12 within 48 hours any contributions of more than $I ,000 recei\ ed less than 20 days (but 

13 more than 48 hours) before an election. Sec 52 U.S.C. 30104(a)(6)(A); 11 CFR 104.5(f). 

14 The Commission observed that because .. the presidential primary season is made up of a 

15 series of separate primary elections,'' requiring presidential primary candidates to comply 

16 with the 48-hour contribution notification requirement would require such candidates ·'to 

17 submit 48 hour notifications on an almost continual basis.'' Advisory Opinion 1995-44 

18 (Forbes for President) at 2. The Commission also noted that imposing such a 

19 requirement would force the candidate "to attribute the contributions it receives to a 

20 particular primary election, a task that can be di!Ticult or arbitrary given the national 

21 nature of most presidential primary campaigns." !d. To avoid mandating this 

TO unnecessarily complex and arbitrary reporting regime. the Commission concluded that a 
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presidential campaign committee could comply with its disclosure obligations by 

2 reporting its received contributions on its regular monthly reports. J..cL 

3 In the context of nationwide independent expenditures that support or oppose 

4 presidential primary candidates but do not refer to particular States' primaries, reporting 

5 the State on independent expenditure reports raises precisely the same concerns as did 

6 48-hour reporting of contributions in Advisory Opinion 1995-44 (Forbes for President). 

7 Requiring committees to attribute the expenditure equally to each State in which it runs is 

8 arbitrary and impracticable. Rather. attributing a portion of each nationwide independent 

9 expenditure to various States for purposes of the reporting thresholds is precisely the sort 

I 0 of bookkeeping requirement that the Commission rejected in Advisory Opinion 1995-44 

II (Forbes for President). 

12 In addition, the purpose of the Act's independent expenditure disclosure 

13 provisions is to ensure that the public receives accurate information regarding the 

14 financing of express advocacy about candidates. Requiring political committees to divide 

I 5 a single expenditure into confusing and owrlapping entries on multiple reports would not 

16 further that purpose. To the contrary, such reporting would misrepresent the nature of the 

I 7 expenditure being reported: A single nationwide advertising campaign would appear in 

18 the Commission's records as a series of much smaller and more targeted expenditures, 

19 thereby potentially misleading the public as to the true nature of the reported spending. 

20 To a\·oid these concerns, and to further the Act's purpose of fostering accurate 

21 disclosure, the Commission concludes that the requirement that political committees 

"'l report the State does not apply to nationwide independent expenditures that relate to 

23 presidential primary candidates but do not refer to any specific State"s primary. Rather, a 
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political committee should use the date of the tlrst day of the candidate's nominating 

convention as the date of the primary election for the purpose of determining the 

applicahlc thresholds for filing 24 and 48 hour reports. The committee should leave 

blank the section where the State would be indicated, and include a memorandum entry 

indicating that the expenditure was disseminated .. nationally'' or "nationwide." A 

political committee should also disclose these independent expenditures on its regularly 

scheduled reports. When reporting such an expenditure, rather than allocating it among 

various States, the committee should report the expenditure as a single entry, and as with 

the 24 and 48 hour reports, leave blank the section where the State would be indicated, 

and include a memorandum entry indicating that the expenditure was disseminated 

.. nationally'' or '·nationwide." This reporting will ensure that the independent 

expenditures are fully and accurately disclosed to the public, as the Act requires. 

This interpretive rule clarifies the Commission's interpretation of existing 

statutory and regulatory provisions, and therefore does not constitute an agency action 

subject to the notice and comment requirements or a delayed effective date under the 

Administrative Procedure Act. See 5 C.S.C. 553. The provisions of the Regulatory 

Flexibility Act. which apply when notice and comment are required by the 

Administrative Procedure Act or another statute, do not apply. See 5 U.S.C. 603(a). The 
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Commission is not required to submit this interpretive rule for congressional review. See 

2 52 G.S.C. 30lll(d)(l), (4). 

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12 DATED 

13 BILLING CODE: 6715-01-P 

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On behalf of the Commission, 

Ann !vi. Ravel. 

Chair, 

Federal Election Commission