Understanding Independent Expenditures

Published on Author Scott Kennedy1 Comment

If you’ve been following along with our regular Twitter updates you have likely noticed a number of B-1 filings, notice of independent expenditures. Independent expenditures are a relatively new type of uncoordinated independent spending that was defined in the Citizens United Supreme Court decision. This primary cycle independent expenditures are playing a larger role in Illinois elections than ever before so I thought I’d put together a primer on some of the more frequent questions.

Note: I am not an election law attorney, if you need legal advice you should consult an attorney that specializes in the subject matter.

For starters, I cribbed the Illinois Election Code and State Board rules for the sections that apply to independent expenditures. It’s not that long and you can read up on all of the language that applies.

Here is some additional info in a Q & A format:

1. What’s the difference between a traditional PAC and an independent expenditure committee?

Illinois election law allows for the creation of both a traditional political action committee (PAC) and an independent expenditure committee. Under Illinois law a PAC is subject to all of the contribution limits that apply to PACs. Independent expenditure committees are the allowable exception to campaign finance limits under the Citizens United Supreme Court decision:

The United States Supreme Court held that the First Amendment prohibited the government from restricting independent political expenditures by a nonprofit corporation. The principles articulated by the Supreme Court in the case have also been extended to for-profit corporations, labor unions and other associations.

 

Independent expenditure committees are allowed to raise and spend unlimited funds, with certain reporting requirements. However independent expenditure committees are not allowed to give directly to other candidate committees, party committees or PACs.

5/9-8.6 (d) In the event that a political committee organized as an independent expenditure committee makes a contribution to any other political committee other than another independent expenditure committee or a ballot initiative committee, the State Board shall assess a fine equal to the amount of any contribution received in the preceding 2 years by the independent expenditure committee that exceeded the limits for a political action committee set forth in subsection (d) of Section 9-8.5

 

2. What makes an expenditure independent?

5/9-1.15 Independent Expenditure.
“Independent expenditure” means any payment, gift, donation, or expenditure of funds (i) by a natural person or political committee for the purpose of making electioneering communications or of expressly advocating for or against the nomination for election, election, retention, or defeat of a clearly identifiable public official or candidate or for or against any question of public policy to be submitted to the voters and (ii) that is not made in connection, consultation, or concert with or at the request or suggestion of the public official or candidate, the public official’s or candidate’s designated political committee or campaign, or the agent or agents of the public official, candidate, or political committee or campaign.

 

3. Are independent expenditures only allowed from independent expenditure committees?

No, candidate committees, party committees and PACs can also make independent expenditures and then would face the same reporting requirements as it pertains to B-1 filings. Independent expenditure committees can raise unlimited funds to spend on independent expenditures whereas candidate committees, party committees and PACs are subject to campaign finance limits.

 

4. How are independent expenditures reported?

Independent expenditures of $1,000 or more are disclosed on form B-1 within 5 business days, except in the 60 days preceding an election when they must be reported in 2 business days.

5/9-10. (e) A political committee that makes independent expenditures of $1,000 or more shall file a report electronically with the Board within 5 business days after making the independent expenditure, except that the report shall be filed within 2 business days after making the independent expenditure during the 60-day period before an election.

 

5. What is the independent expenditure threshold that removes contribution limits from an election for office?

For statewide races it is $250,000, for all other races it is $100,000.

5/9-8.5 (h-5) If a natural person or independent expenditure committee makes independent expenditures in support of or in opposition to the campaign of a particular public official or candidate in an aggregate amount of more than (i) $250,000 for statewide office or (ii) $100,000 for all other elective offices in an election cycle, as reported in a written disclosure filed under subsection (a) of Section 9-8.6 or subsection (e-5) of Section 9-10, … all candidates for that office in that election, including the public official or candidate for whose benefit or detriment the natural person or independent expenditure committee made independent expenditures, shall be permitted to accept contributions in excess of any contribution limits imposed by subsection (b).

 

Note: contribution limits can also be removed in the event of self funding at the same thresholds:

5/9-8.5 (h) Self-funding candidates. If a public official, a candidate, or the public official’s or candidate’s immediate family contributes or loans to the public official’s or candidate’s political committee or to other political committees that transfer funds to the public official’s or candidate’s political committee or makes independent expenditures for the benefit of the public official’s or candidate’s campaign during the 12 months prior to an election in an aggregate amount of more than (i) $250,000 for statewide office or (ii) $100,000 for all other elective offices, … all candidates for that office, including the public official or candidate who filed a Notification of Self-funding, shall be permitted to accept contributions in excess of any contribution limits imposed by subsection (b). If a public official or candidate filed a Notification of Self-Funding during an election cycle that includes a general primary election or consolidated primary election and that public official or candidate is nominated, all candidates for that office, including the nominee who filed the notification of self-funding, shall be permitted to accept contributions in excess of any contribution limit imposed by subsection (b) for the subsequent election cycle. For the purposes of this subsection, “immediate family” means the spouse, parent, or child of a public official or candidate.

 

6. Are there any additional filing obligations?

Yes, when an independent expenditure committee makes an independent expenditure that results in exceeding the thresholds for removing contribution limits as outlined above that independent expenditure committee is required to notify the State Board of Elections.

5/9-10. (e-5) An independent expenditure committee that makes an independent expenditure supporting or opposing a public official or candidate that, alone or in combination with any other independent expenditure made by that independent expenditure committee supporting or opposing that public official or candidate during the election cycle, equals an aggregate value of more than (i) $250,000 for statewide office or (ii) $100,000 for all other elective offices must file a written disclosure with the State Board of Elections within 2 business days after making any expenditure that results in the independent expenditure committee exceeding the applicable threshold. The Board shall assess a civil penalty against an independent expenditure committee for failure to file the disclosure required by this subsection not to exceed (i) $500 for an initial failure to file the required disclosure and (ii) $1,000 for each subsequent failure to file the required disclosure.

 

 

7. Once the contribution limits have been removed from an election for office why don’t these IE’s just give their remaining funds directly to their favored candidate?

Independent expenditure committees are not permitted to make donations directly to candidate committees, party committees or PACs, they can only legally give money to other independent expenditure committees or ballot initiative committees.

5/9-8.6 (d) In the event that a political committee organized as an independent expenditure committee makes a contribution to any other political committee other than another independent expenditure committee or a ballot initiative committee, the State Board shall assess a fine equal to the amount of any contribution received in the preceding 2 years by the independent expenditure committee that exceeded the limits for a political action committee set forth in subsection (d) of Section 9-8.5

 

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