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AO 2011-28 Reporting Independent Expenditure Ads Placed on Facebook

Western Representation PAC may not exclude the actual costs of independent expenditure ads placed on Facebook from the calculation of its expenses included on its 24-hour and 48-hour reports for the 2012 Presidential primary elections. The statutory obligation to file 24- and 48-hour reports includes these types of ads placed on Facebook. For ads that do not reference or target a specific election, the Committee must divide the cost of placing each ad by the number of upcoming primary elections. In the event the Committee does not know the actual cost of an ad prior to the filing deadline, it may estimate the cost and report the correct amount on the Committee’s next regular report.

Background

Western Representation PAC (the Committee) is a nonconnected committee that intends to place ads on Facebook in connection with the 2012 Republican Presidential primary elections. The ads will be independent expenditure communications that expressly advocate for or against a federal candidate, but they will not reference a specific Presidential primary election nor be geographically targeted to a particular state.

The Committee seeks to exclude the actual costs of these Facebook ads from its 24-hour and 48-hour reports of independent expenditures, and wants to avoid attributing the costs to various states' Presidential primary elections on its regularly scheduled monthly reports. The Committee claims that the reporting obligations burden their First Amendment rights because it will have to determine, for every ad placed: 1) the state primary elections to which the ad applies; 2) whether that ad falls within that particular primary election’s 24- or 48-hour reporting period; and 3) the cost of placing each individual ad.

Analysis

Under the Federal Election Campaign Act (the Act) and Commission regulations, an “independent expenditure” is an expenditure by a person that expressly advocates the election or defeat of a clearly identified federal candidate that is not made in concert or cooperation with, or at the request or suggestion of, the candidate, his or her authorized committee, a party committee, or any of their agents. 11 CFR 100.16. A political committee that makes independent expenditures aggregating $1,000 or more after the 20th day, but more than 24 hours, before the date of a given election, must file a 24-Hour Report disclosing the expenditures.  11 CFR 104.4(c). A political committee that makes independent expenditures aggregating $10,000 or more at any time up to and including the 20th day before the date of a given election must file a 48-hour report disclosing the expenditures.  11 CFR 104.4(b)(2). The 24- and 48-hour filing periods begin when the independent expenditure is publicly distributed or otherwise publicly disseminated.  11 CFR 104.4(c), 104.4(b)(2). Additional reports must be filed each time the political committee makes independent expenditures which, in the aggregate, reach the 24- or 48-hour threshold with respect to the same election as that to which the initial report relates.  11 CFR 104.4(c) and 104.4(b)(2). Independent expenditures aggregating less than $10,000 with respect to a given election any time during the calendar year up to and including the 20th day before an election must be disclosed on a committee’s regularly scheduled report.  11 CFR 104.4(b)(1).

Independent expenditures are aggregated with respect to a given election regardless of which candidate is identified in the communication. 11 CFR 104.4(a), (b)(1)-(2), and (c). For purposes of aggregating independent expenditures, each state’s Presidential primary election is considered a separate election. See Advisory Opinion 2003-40 (Navy Veterans).

In denying the Committee’s request to exclude the actual costs of independent expenditure ads from the calculation of its expenses included on its 24-hour and 48-hour reports, the Commission concluded that, since the statutory obligation to file 24- and 48-hour reports includes these types of ads placed on Facebook, the Committee is required to file 24-hour and 48-hour reports as set forth in the Act and the Commission’s regulations. For ads that do not reference or target a specific election, the Commission directed the Committee to divide the cost of placing each ad by the number of upcoming primary elections. For example, an ad for which the Committee paid $2,000 that was placed before the first primary election of the cycle would relate to all subsequent Presidential primary elections. Therefore, the cost of this ad would be $2,000, divided by the total number of primary elections for that cycle. After a Presidential primary election has occurred, no further advertising costs would be attributable to that election for that cycle.

In the event the Committee does not know the actual cost of an ad prior to the filing deadline, it should estimate the cost and, if, based on that estimate, a report is required, indicate that the reported amount is an estimate. Once the Committee receives information regarding the actual cost of the advertisement, and if the actual cost differs from the estimate, the Committee should report the correct amount on the Committee’s next regular report and reference the earlier estimate.

The Commission also denied the Committee’s request to report the actual monthly costs of its independent expenditure ads on Facebook on its regular monthly reports without attributing these costs to the various states' Presidential primary elections. The Commission concluded that since the committee files reports on a monthly basis, it has sufficient time to aggregate its costs and report them to the Commission, as required by the statute.

(Posted 2/14/12; By: Zainab Smith)

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The FEC Record is produced by the Information Division, Office of Communications. Toll free 800-424-9530; Local 202-694-1100; E-mail info@fec.gov. Greg Scott, Director; Amy Kort, Asst. Director; Myles Martin, Editor