GUIDELINES SET BY SECRETARY OF STATE FOR INDEPENDENT EXPENDITURES

Persons, groups of persons and political committees may support candidates covered by the Sunshine Law by making independent expenditures on their behalf. Independent expenditures may be made without limit since they do not count against the contribution limits established by Section 67-6610A, Idaho Code.

This outline defines the term independent expenditure and explains reporting and other requirements involved in making independent expenditures.

If you have any questions after reading this outline, please call the Secretary of State's office at (208)334-2852.

REPORTING REQUIREMENTS

1) Each person who makes independent expenditures in an aggregate amount exceeding one hundred dollars ($100) in support of or in opposition to any one (1) candidate, political committee or measure, shall file a statement of the expenditure with the Secretary of State.

2) Statements shall be filed with the Secretary of State, not less than seven (7) days prior to the primary and general election and thirty (30) days after the primary and general election.

3) The statement shall contain the following information: (a) the name and address of any person to whom an expenditure in excess of fifty dollars ($50.00) has been made by any such person in support of or in opposition to any such candidate or issue during the reporting period, together with the amount, date and purpose of each such expenditure; and (b) the total sum of all expenditures made in support of or in opposition to any candidate or measure.

(4) In addition to the requirements set forth in subsections (1) and (2) of this section, each person who makes independent expenditures in an aggregate amount of one thousand dollars ($1,000) or more after the sixteenth day before, but more than forty-eight (48) hours before, any primary or general election, shall file a written statement of the expenditure with the secretary of state not more than forty-eight (48) hours from the time of such expenditure. The statement shall include the information required in subsection (3) of this section.

Form C-4 Independent Expenditures

Form C-7 48 Hour Notice of Independent Expenditures

FORM C-2
Political action committees registered with the Secretary of State's office making Independent Expenditures should identify the expenditures as independent on the C-2 Campaign Disclosure Report.

What is an independent expenditure?

"Independent expenditure" means any expenditure by a person for a communication expressly advocating the election, passage or defeat of a clearly identified candidate or measure that is not made with the cooperation or with the prior consent of, or in consultation with, or at the consent of, or in consultation with, or at the request of a suggestion of, a candidate or any agent or authorized committee of the candidate or political committee supporting or opposing a measure. As used in this subsection, "expressly advocating" means any communication containing a message advocating election, passage or defeat including, but not limited to, the name of the candidate or measure, or expression such as "vote for," "elect," "support," "cast your ballot for," "vote against," "defeat" or "reject."

When is a candidate "clearly identified"?

A candidate is clearly identified if the candidate's name, nickname, photograph or drawing appears, or the identity of the candidate is otherwise apparent. Examples include: "the Governor," "your senator", "the Democratic candidate for Senate in Legislative District 14."

What is "Express Advocacy" (Candidate Advocacy)?

Express advocacy (candidate advocacy) means that the communication includes a message that unmistakably urges election or defeat of one or more clearly identified candidates(s).

Section 67-6602(g), Idaho Code, defines "express advocacy" by the use of certain magic words.

"Magic Words"

• "Vote for the Governor," "re-elect your Senator," "support the Democratic nominee," "cast your ballot for the Republican challenger for Senate," "vote against Franklin for House Position B," "reject Reform for Governor."
• Words urging action with respect to candidates associated with a particular issue, e.g., "vote Pro-Cars" / "Pro-Bicycles," when accompanied by names or photographs of candidates identified as either supporting or opposing the issue;
• "Defeat" accompanied by a photograph of the opposed candidate, or the opposed candidate's name, or "reject the incumbent"; and
• Campaign slogan(s) or word(s), e.g., on posters, bumper stickers and advertisements, that in context can have no other reasonable meaning than to support or oppose a clearly identified candidate, for example, "Erickson's the One," "Leaf '98."

What is not an independent expenditure?

When an expenditure for a communication expressly advocating a candidate's election or defeat is made under the circumstances described below, it results in an in-kind contribution rather than an independent expenditure and therefore counts against the spender's contribution limit for the candidate's election.

Coordination with candidate's campaign
Any expenditure made in cooperation or consultation with the candidate's campaign or as a result of a request, suggestion, or prior consent from the candidate or the campaign is an in-kind contribution, not an independent expenditure.

Direction by campaign employee
An expenditure made on behalf of a candidate but directed by a current or former officer or employee of that candidate's committee or by a person who has received compensation or reimbursement from the campaign is presumed not to be independent.

Use of common vendors
The independence of an expenditure made for a communication in support of a candidate (or in opposition to his or her opponent) may be compromised if the person making the communication and that candidate's campaign use the same consultant or vendor.

Solicitations on behalf of a candidate
An expenditure made for a communication that solicits the public for contributions on behalf of a candidate is an in-kind contribution if the person making the communication collects and forwards the money to the candidate's committee.

Prior contributions may affect independence
A person making an independent expenditure should be aware that making certain types of in-kind contributions to a particular candidate may jeopardize that person's ability, in the future, to make independent expenditures on behalf of that same candidate. For example, if a committee provided paid staff or services to a candidate's primary campaign, then the committee would have direct knowledge of the candidate's campaign strategy, plans or needs. Therefore, expenditures by that committee during the election could not be considered independent.

Example:
An individual, not previously involved in Candidate Smith's campaign and without ever contacting any of his campaign staff, purchases a newspaper advertisement supporting Smith. The payment for the ad is an independent expenditure. If, however, before purchasing the ad, the person consults with Candidate Smith or his campaign staff as to how he or she can help the campaign or when Smith wants the newspaper ad to appear, the person makes an in-kind contribution. Or, if the person pays for a campaign ad that uses text actually prepared by Smith's campaign, the person makes an in-kind contribution to the candidate (An in-kind contribution, when combined with all other contributions from the same person, is limited to $1,000 per legislative and district judge candidates and $5,000 per statewide candidates, per election.