Independent Expenditure Reporting, Made Simple

October 28, 2015
posted by Bob Bauer

Some of the Federal Election Commission’s work is simple, much of it hard, and it receives little credit for the difficulty it faces on major questions.  What is before the Commission tomorrow is among the simpler questions it faces: it is not glamorous, but because it involves independent expenditures and disclosure requirements, it is not insignificant.

The question is: how do reporting requirements apply to an independent expenditure made on a nationwide basis during the presidential primary season, clearly not intended to influence a particular state’s primary?  The FEC has advised in the past that the cost should be divided among all states’ primaries that are pending, and the share attributed to each state should be reported as made to influence its primary.  FEC Advisory Opinion 2011-28 (2011).  This reporting procedure affects the legal obligations to report on a 24-or 48-hour basis independent expenditures made within specified periods before an election, and also the reporting of “electioneering communications.”

Now the FEC is being asked to consider changing course, and to have the national expenditure reported as what it is – – a national expenditure.

This seems straightforward enough. It also makes for more accurate disclosure.  Only by stretching the point can a committee’s independent national cable buy this year be considered for reporting purposes to influence the California primary next year.  It requires the committee to report that it is active in primaries in which it has no interest or in which the candidate it supports or opposes has no prospects of winning or losing.

In a Draft Notice of Proposed Rulemaking, the question has been posed whether the option of reporting an expenditure as “nationwide,” or in “all 50 states,” would “provide sufficient guidance and flexibility to filers?”  This does not seem a hard question: sure, it would.  Memorandum from Counsel To the Commission, “Draft Notice of Proposed Rulemaking for Reporting Multistate Independent Expenditures and Electioneering Communications “, (Agenda Document No. 15-50-A, September 29, 2015) at 9.

The Commission seems unsure how to proceed.  No one seems especially taken with the current reporting rule.  Some Commissioners apparently believe that a rulemaking, never an expeditious exercise, is required to address the proposed change.  There is always the possibility that the Commission could make the change on an interim basis while the full rulemaking is pending, but it is not clear that there is agreement on that approach, either.

As has been said here before, the agency would do well to do what it can, considering all that it is currently unable to agree on. It should not miss the chance presented by a question like the one before it tomorrow—to improve reporting requirements by making them more sensible.

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