Sec. 7002. Clarification of treatment of coordinated expenditures as contributions to candidates
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Section 301(8)(A) of the Federal Election Campaign Act of 1971 ( 52 U.S.C. 30101(8)(A) ) is amended— by striking or at the end of clause (i); by striking the period at the end of clause
(ii)and inserting ; or ; and by adding at the end the following new clause: any payment made by any person (other than a candidate, an authorized committee of a candidate, or a political committee of a political party) for a coordinated expenditure (as such term is defined in section 325) which is not otherwise treated as a contribution under clause
(i)or clause (ii). . Title III of such Act ( 52 U.S.C. 30101 et seq. ) is amended by adding at the end the following new section: For purposes of section 301(8)(A)(iii), the term coordinated expenditure means— any expenditure, or any payment for a covered communication described in subsection (e), which is made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, an authorized committee of a candidate, a political committee of a political party, or agents of the candidate or committee, as defined in subsection (b); or any payment for any communication which republishes, disseminates, or distributes, in whole or in part, any video or broadcast or any written, graphic, or other form of campaign material prepared by the candidate or committee or by agents of the candidate or committee (including any excerpt or use of any video from any such broadcast or written, graphic, or other form of campaign material). A payment for a communication (including a covered communication described in subsection (e)) shall not be treated as a coordinated expenditure under this subsection if— the communication appears in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate; or the communication constitutes a candidate debate or forum conducted pursuant to regulations adopted by the Commission pursuant to section 304(f)(3)(B)(iii), or which solely promotes such a debate or forum and is made by or on behalf of the person sponsoring the debate or forum. For purposes of this section, a payment is made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, an authorized committee of a candidate, a political committee of a political party, or agents of the candidate or committee, if the payment, or any communication for which the payment is made, is not made entirely independently of the candidate, committee, or agents. For purposes of the previous sentence, a payment or communication not made entirely independently of the candidate or committee includes any payment or communication made pursuant to any general or particular understanding with, or pursuant to any communication with, the candidate, committee, or agents about the payment or communication. For purposes of this section, a payment shall not be considered to be made by a person in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate or committee, solely on the grounds that the person or the person’s agent engaged in discussions with the candidate or committee, or with any agent of the candidate or committee, regarding that person's position on a legislative or policy matter (including urging the candidate or committee to adopt that person's position), so long as there is no communication between the person and the candidate or committee, or any agent of the candidate or committee, regarding the candidate’s or committee’s campaign advertising, message, strategy, policy, polling, allocation of resources, fundraising, or other campaign activities. Nothing in this section shall be construed to affect the determination of coordination between a candidate and a political committee of a political party for purposes of section 315(d). For purposes of subsection (a)(1)(A), if the person who makes a payment for a covered communication, as defined in subsection (e), is a coordinated spender under paragraph
(2)with respect to the candidate as described in paragraph (2), the payment for the covered communication is made in cooperation, consultation, or concert with the candidate. For purposes of this subsection, the term coordinated spender means, with respect to a candidate or an authorized committee of a candidate, a person (other than a political committee of a political party) for which any of the following applies: During the 4-year period ending on the date on which the person makes the payment, the person was directly or indirectly formed or established by or at the request or suggestion of, or with the encouragement of, the candidate (including an individual who later becomes a candidate) or committee or agents of the candidate or committee, including with the approval of the candidate or committee or agents of the candidate or committee. The candidate or committee or any agent of the candidate or committee solicits funds, appears at a fundraising event, or engages in other fundraising activity on the person’s behalf during the election cycle involved, including by providing the person with names of potential donors or other lists to be used by the person in engaging in fundraising activity, regardless of whether the person pays fair market value for the names or lists provided. For purposes of this subparagraph, the term election cycle means, with respect to an election for Federal office, the period beginning on the day after the date of the most recent general election for that office (or, if the general election resulted in a runoff election, the date of the runoff election) and ending on the date of the next general election for that office (or, if the general election resulted in a runoff election, the date of the runoff election). The person is established, directed, or managed by the candidate or committee or by any person who, during the 4-year period ending on the date on which the person makes the payment, has been employed or retained as a political, campaign media, or fundraising adviser or consultant for the candidate or committee or for any other entity directly or indirectly controlled by the candidate or committee, or has held a formal position with the candidate or committee (including a position as an employee of the office of the candidate at any time the candidate held any Federal, State, or local public office during the 4-year period). The person has retained the professional services of any person who, during the 2-year period ending on the date on which the person makes the payment, has provided or is providing professional services relating to the campaign to the candidate or committee, unless the person providing the professional services used a firewall or similar procedure in accordance with subsection (d). For purposes of this subparagraph, the term professional services includes any services in support of the candidate’s or committee’s campaign activities, including advertising, message, strategy, policy, polling, allocation of resources, fundraising, and campaign operations, but does not include accounting or legal services. The person is established, directed, or managed by a member of the immediate family of the candidate, or the person or any officer or agent of the person has had more than incidental discussions about the candidate’s campaign with a member of the immediate family of the candidate. For purposes of this subparagraph, the term immediate family has the meaning given such term in section 9004(e) of the Internal Revenue Code of 1986. A person shall not be determined to have made a payment in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate or committee in accordance with this section if the person established and used a firewall or similar procedure to restrict the sharing of information between individuals who are employed by or who are serving as agents for the person making the payment, but only if the firewall or similar procedures meet the requirements of paragraph (2). The requirements described in this paragraph with respect to a firewall or similar procedure are as follows: The firewall or procedure is designed and implemented to prohibit the flow of information between employees and consultants providing services for the person paying for the communication and those employees or consultants providing, or who previously provided, services to a candidate who is clearly identified in the communication or an authorized committee of the candidate, the candidate’s opponent or an authorized committee of the candidate’s opponent, or a committee of a political party. The firewall or procedure must be described in a written policy that is distributed, signed, and dated by all relevant employees, consultants, and clients subject to the policy. The policy must be preserved and retained by the person for at least 5 years following any termination or cessation of representation by employees, consultants, and clients who are subject to the policy. The policy must prohibit any employees, consultants, and clients who are subject to the policy from attending meetings, trainings, or other discussions where nonpublic plans, projects, activities, or needs of candidates for election for Federal office or political committees are discussed. The policy must prohibit each owner of an organization, and each executive, manager, and supervisor within an organization, from simultaneously overseeing the work of employees and consultants who are subject to the firewall or procedure. The policy must place restrictions on internal and external communications, including by establishing separate emailing lists, for employees, consultants, and clients who are subject to the firewall or procedure and those who are not subject to the firewall or procedure. The policy must require the person to establish separate files, including electronic file folders— for employees, consultants, and clients who are subject to the firewall or procedure and to prohibit access to such files by employees, consultants, and clients who are not subject to the firewall or procedure; and for employees, consultants, and clients who are not subject to the firewall or procedure and to prohibit access to such files by employees, consultants, and clients who are subject to the firewall or procedure. The person must conduct a training on the applicable requirements and obligations of this Act and the policy for all employees, consultants, and clients. A person who established and used a firewall or similar procedure which meets the requirements of paragraph
(2)shall be determined to have made a payment in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate or committee in accordance with this section if specific information indicates that, notwithstanding the establishment and use of the firewall or similar procedure, information about the candidate’s or committee’s campaign plans, projects, activities, or needs that is material to the creation, production, or distribution of the covered communication was used or conveyed to the person paying for the communication. If, in a procedure or action brought by the Commission under section 309, a person who is alleged to have committed a violation of this Act which involves the making of a contribution which consists of a payment for a coordinated expenditure raises the use of a firewall or similar procedure as a defense, the person shall provide the Commission with— a copy of the signed and dated firewall or procedure policy which applied to the person’s employees, consultants, or clients whose conduct is at issue in the procedure or action; and a sworn, written affidavit of the employees, consultants, or clients who were subject to the policy that the terms, conditions, and requirements of the policy were met. For purposes of this section, the term covered communication means, with respect to a candidate or an authorized committee of a candidate, a public communication (as defined in section 301(22)) which— expressly advocates the election of the candidate or the defeat of an opponent of the candidate (or contains the functional equivalent of express advocacy); promotes or supports the election of the candidate, or attacks or opposes the election of an opponent of the candidate (regardless of whether the communication expressly advocates the election or defeat of a candidate or contains the functional equivalent of express advocacy); or refers to the candidate or an opponent of the candidate but is not described in subparagraph
(A)or subparagraph (B), but only if the communication is disseminated during the applicable election period. In paragraph (1)(C), the applicable election period with respect to a communication means— in the case of a communication which refers to a candidate in a general, special, or runoff election, the 120-day period which ends on the date of the election; or in the case of a communication which refers to a candidate in a primary or preference election, or convention or caucus of a political party that has authority to nominate a candidate, the 60-day period which ends on the date of the election or convention or caucus. For purposes of this subsection, a public communication shall not be considered to be a covered communication with respect to a candidate for election for an office other than the office of President or Vice President unless it is publicly disseminated or distributed in the jurisdiction of the office the candidate is seeking. Any person who knowingly and willfully commits a violation of this Act which involves the making of a contribution which consists of a payment for a coordinated expenditure shall be fined an amount equal to the greater of— in the case of a person who makes a contribution which consists of a payment for a coordinated expenditure in an amount exceeding the applicable contribution limit under this Act, 300 percent of the amount by which the amount of the payment made by the person exceeds such applicable contribution limit; or in the case of a person who is prohibited under this Act from making a contribution in any amount, 300 percent of the amount of the payment made by the person for the coordinated expenditure. Any director, manager, or officer of a person who is subject to a penalty under paragraph
(1)shall be jointly and severally liable for any amount of such penalty that is not paid by the person prior to the expiration of the 1-year period which begins on the date the Commission imposes the penalty or the 1-year period which begins on the date of the final judgment following any judicial review of the Commission’s action, whichever is later. . Effective upon the expiration of the 90-day period which begins on the date of the enactment of this Act— the regulations on coordinated communications adopted by the Federal Election Commission which are in effect on the date of the enactment of this Act (as set forth under the heading Coordination in subpart C of part 109 of title 11, Code of Federal Regulations) are repealed; and the Federal Election Commission shall promulgate new regulations on coordinated communications which reflect the amendments made by this Act. The amendments made by this section shall apply with respect to payments made on or after the expiration of the 120-day period which begins on the date of the enactment of this Act, without regard to whether or not the Federal Election Commission has promulgated regulations in accordance with paragraph (1)(B) as of the expiration of such period.
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Sec. 7002
Clarification of treatment of coordinated expenditures as contributions to candidates
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