Commission adopts interim final rule on independent expenditure reporting
On June 8, 2022, the Commission approved an interim final rule removing a regulation requiring certain persons making independent expenditures to disclose on their reports the identification of each person who made a contribution in excess of $200 to the filer “for the purpose of furthering the reported independent expenditure.” The interim final rule is effective September 30, 2022. Any comments must be received on or before July 14, 2022.
Background
The Federal Election Campaign Act (the Act) requires any person who is not a political committee and makes independent expenditures aggregating more than $250 per calendar year to report certain information about the funds raised and spent. Among other things, the filer must identify “each person who made a contribution in excess of $200…for the purpose of furthering an independent expenditure.”
The FEC regulation implementing that provision—11 CFR 109.10(e)(1)(vi)—required filers to identify “each person who made a contribution in excess of $200…for the purpose of furthering the reported independent expenditure.” [emphasis added]
On August 3, 2018, the United States District Court for the District of Columbia declared that regulation invalid because it conflicted with the statute. The court found that the statute required significantly more disclosure than just those donors making contributions for the purposes of funding the independent expenditures made by the reporting entity. In the wake of the court’s decision, the Commission issued guidance on how persons other than political committees should report independent expenditures. The district court decision was affirmed by the United States Court of Appeals for the District of Columbia Circuit on August 21, 2020.
Interim Final Rule
In order to conform with the court decisions, the Commission voted to amend 11 CFR 109.10 by removing paragraph (e)(1)(vi) and adding a note stating that the statute remains in effect. The interim final rule cannot take effect until after 30 legislative days after the interim final rule has been transmitted to Congress, which the Commission estimates will occur on or about September 30, 2022.
The Commission is accepting comments on this revision to its regulation, and any comments may be addressed in a subsequent rulemaking document.
Citations
Regulations
11 CFR 109.10(b)
How do political committees and other persons report independent expenditures?
11 CFR 109.10 (e)(1)(vi)
Content of verified reports and statement
Statutes
52 U.S.C. 30104(c)
Statements by persons other than political committees
52 U.S.C. 30104(b)
Contents of reports