§ 106.071 Independent expenditures; electioneering communications; reports; disclaimers.
Overview of Statute
This statute governs the reporting of independent expenditures of, in the aggregate, $5,000 or more. The statute also states that political advertisements paid for with independent expenditures must say that they were paid for independently of a candidate.
(1) Each person who makes an independent expenditure with respect to any candidate or issue, and each individual who makes an expenditure for an electioneering communication which is not otherwise reported pursuant to this chapter, which expenditure, in the aggregate, is in the amount of $5,000 or more, shall file periodic reports of such expenditures in the same manner, at the same time, subject to the same penalties, and with the same officer as a political committee supporting or opposing such candidate or issue. The report shall contain the full name and address of the person making the expenditure; the full name and address of each person to whom and for whom each such expenditure has been made; the amount, date, and purpose of each such expenditure; a description of the services or goods obtained by each such expenditure; the issue to which the expenditure relates; and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made.
s. 47, ch. 77-175; s. 10, ch. 89-256; s. 4, ch. 2004-252; s. 25, ch. 2010-167; ss. 13, 30, ch. 2011-6; HJR 7105, 2011 Regular Session.
- Campaign Finance
- Disclosure Requirements
- Political Advertisements
- Restrictions & General Requirements
1. Definition for Expenditure
(a) A purchase, payment, distribution, loan, advance, transfer of funds by a campaign treasurer or deputy campaign treasurer between a primary depository and a separate interest-bearing account or certificate of deposit, or gift of money or anything of value made for the purpose of influencing the results of an election or making an electioneering communication. However, “expenditure” does not include a purchase, payment, distribution, loan, advance, or gift of money or anything of value made for the purpose of influencing the results of an election when made by an organization, in existence before the time during which a candidate qualifies or an issue is placed on the ballot for that election, for the purpose of printing or distributing such organization’s newsletter, containing a statement by such organization in support of or opposition to a candidate or issue, which newsletter is distributed only to members of such organization.
(b) As used in chapter 106, an “expenditure” for an electioneering communication is made when the earliest of the following occurs:
1. A person enters into a contract for applicable goods or services;
2. A person makes payment, in whole or in part, for the production or public dissemination of applicable goods or services; or
3. The electioneering communication is publicly disseminated. Fla. Stat. § 106.011(10).
2. Definition for Political Committee
1. A combination of two or more individuals, or a person other than an individual, that, in an aggregate amount in excess of $500 during a single calendar year:
a. Accepts contributions for the purpose of making contributions to any candidate, political committee, affiliated party committee, or political party;
b. Accepts contributions for the purpose of expressly advocating the election or defeat of a candidate or the passage or defeat of an issue;
c. Makes expenditures that expressly advocate the election or defeat of a candidate or the passage or defeat of an issue; or
d. Makes contributions to a common fund, other than a joint checking account between spouses, from which contributions are made to any candidate, political committee, affiliated party committee, or political party;
2. The sponsor of a proposed constitutional amendment by initiative who intends to seek the signatures of registered electors.
(b) Notwithstanding paragraph (a), the following entities are not considered political committees for purposes of this chapter:
1. National political parties, the state and county executive committees of political parties, and affiliated party committees regulated by chapter 103.
2. Corporations regulated by chapter 607 or chapter 617 or other business entities formed for purposes other than to support or oppose issues or candidates, if their political activities are limited to contributions to candidates, political parties, affiliated party committees, or political committees or expenditures in support of or opposition to an issue from corporate or business funds and if no contributions are received by such corporations or business entities.
3. Electioneering communications organizations as defined in subsection (9). Fla. Stat. § 106.11(16).
3. Definition for Independent Expenditure
(a) An expenditure by a person for the purpose of expressly advocating the election or defeat of a candidate or the approval or rejection of an issue, which expenditure is not controlled by, coordinated with, or made upon consultation with, any candidate, political committee, or agent of such candidate or committee. An expenditure for such purpose by a person having a contract with the candidate, political committee, or agent of such candidate or committee in a given election period is not an independent expenditure.
(b) An expenditure for the purpose of expressly advocating the election or defeat of a candidate which is made by the national, state, or county executive committee of a political party, including any subordinate committee of the political party, an affiliated party committee, a political committee, or any other person is not considered an independent expenditure if the committee or person:
1. Communicates with the candidate, the candidate’s campaign, or an agent of the candidate acting on behalf of the candidate, including a pollster, media consultant, advertising agency, vendor, advisor, or staff member, concerning the preparation of, use of, or payment for, the specific expenditure or advertising campaign at issue;
2. Makes a payment in cooperation, consultation, or concert with, at the request or suggestion of, or pursuant to a general or particular understanding with the candidate, the candidate’s campaign, a political committee supporting the candidate, or an agent of the candidate relating to the specific expenditure or advertising campaign at issue;
3. Makes a payment for the dissemination, distribution, or republication, in whole or in part, of a broadcast or a written, graphic, or other form of campaign material prepared by the candidate, the candidate’s campaign, or an agent of the candidate, including a pollster, media consultant, advertising agency, vendor, advisor, or staff member;
4. Makes a payment based on information about the candidate’s plans, projects, or needs communicated to a member of the committee or person by the candidate or an agent of the candidate, provided the committee or person uses the information in any way, in whole or in part, either directly or indirectly, to design, prepare, or pay for the specific expenditure or advertising campaign at issue;
5. After the last day of the qualifying period prescribed for the candidate, consults about the candidate’s plans, projects, or needs in connection with the candidate’s pursuit of election to office and the information is used in any way to plan, create, design, or prepare an independent expenditure or advertising campaign, with:
a. An officer, director, employee, or agent of a national, state, or county executive committee of a political party or an affiliated party committee that has made or intends to make expenditures in connection with or contributions to the candidate; or
b. A person whose professional services have been retained by a national, state, or county executive committee of a political party or an affiliated party committee that has made or intends to make expenditures in connection with or contributions to the candidate;
6. After the last day of the qualifying period prescribed for the candidate, retains the professional services of a person also providing those services to the candidate in connection with the candidate’s pursuit of election to office; or
7. Arranges, coordinates, or directs the expenditure, in any way, with the candidate or an agent of the candidate.
4. Definition for Political Advertisement
A paid expression in a communications medium prescribed in subsection (4), whether radio, television, newspaper, magazine, periodical, campaign literature, direct mail, or display or by means other than the spoken word in direct conversation, which expressly advocates the election or defeat of a candidate or the approval or rejection of an issue. However, political advertisement does not include:
(a) A statement by an organization, in existence before the time during which a candidate qualifies or an issue is placed on the ballot for that election, in support of or opposition to a candidate or issue, in that organization’s newsletter, which newsletter is distributed only to the members of that organization.
(b) Editorial endorsements by a newspaper, a radio or television station, or any other recognized news medium.
5. Definition for Electioneering Communication
Communication that is publicly distributed by a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, or telephone and that:
1. Refers to or depicts a clearly identified candidate for office without expressly advocating the election or defeat of a candidate but that is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate;
2. Is made within 30 days before a primary or special primary election or 60 days before any other election for the office sought by the candidate; and
3. Is targeted to the relevant electorate in the geographic area the candidate would represent if elected.
The term “electioneering communication” does not include:
1. A communication disseminated through a means of communication other than a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, telephone, or statement or depiction by an organization, in existence before the time during which a candidate named or depicted qualifies for that election, made in that organization’s newsletter, which newsletter is distributed only to members of that organization.
2. A communication in a news story, commentary, or editorial distributed through the facilities of a radio station, television station, cable television system, or satellite system, unless the facilities are owned or controlled by a political party, political committee, or candidate. A news story distributed through the facilities owned or controlled by a political party, political committee, or candidate may nevertheless be exempt if it represents a bona fide news account communicated through a licensed broadcasting facility and the communication is part of a general pattern of campaign-related news accounts that give reasonably equal coverage to all opposing candidates in the area.
3. A communication that constitutes a public debate or forum that includes at least two opposing candidates for an office or one advocate and one opponent of an issue, or that solely promotes such a debate or forum and is made by or on behalf of the person sponsoring the debate or forum, provided that:
a. The staging organization is either:
(I) A charitable organization that does not make other electioneering communications and does not otherwise support or oppose any political candidate or political party; or
(II) A newspaper, radio station, television station, or other recognized news medium; and
b. The staging organization does not structure the debate to promote or advance one candidate or issue position over another.
(c) For purposes of chapter 106, an expenditure made for, or in furtherance of, an electioneering communication is not considered a contribution to or on behalf of any candidate.
(d) For purposes of this chapter, an electioneering communication does not constitute an independent expenditure and is not subject to the limitations applicable to independent expenditures.
6. Definition for Issue
A proposition that is required by the State Constitution, by law or resolution of the Legislature, or by the charter, ordinance, or resolution of a political subdivision of this state to be submitted to the electors for their approval or rejection at an election, or a proposition for which a petition is circulated in order to have such proposition placed on the ballot at an election. Fla. Stat. § 106.011(13).
7. Definition for Person
An individual or a corporation, association, firm, partnership, joint venture, joint stock company, club, organization, estate, trust, business trust, syndicate, or other combination of individuals having collective capacity. The term includes a political party, affiliated party committee, or political committee. Fla. Stat. § 106.011(14).
8. Definition for Election
Any primary election, special primary election, special election, general election, or presidential preference primary election. Fla. Stat. § 97.021(12).
9. Definition for Candidate
Any person to whom any one or more of the following applies:
Case Name: Beardslee v. Florida Elections Commission
Citation: 962 So.2d 390
Case Summary: Beardslee v. Florida Elections Commission held that Beardslee's husband's purchase of campaign yard signs from their joint personal bank account was an unreported campaign contribution, since an agency relationship existed between Beardslee (the candidate) and her husband. This was a willful violation of Florida campaign finance law, because it showed a disinterest and disregard of clearly established law.
Case Name: Guetzloe v. Florida Elections Commission
Citation: 927 So.2d 942
Case Summary: Guetzloe v. Florida Elections Commission held that in order to comply with the First Amendment, the last sentence in s. 106.071 had to be read as: "Any political advertisement paid for by an independent expenditure shall prominently state 'Paid political advertisement.'" However, the advertiser at issue here violated Florida campaign finance law by failing to state that no candidate had approved of the advertisement.
Case Name: Doe v. Mortham
Citation: 708 So.2d 929
Case Summary: Doe v. Mortham held that several sections of Florida campaign finance law (106.071, 106.143, and 106.144) were not substantially overboard and as such were facially constitutional.
Case Name: Worley v. Roberts
Citation: 749 F.Supp.2d 1321
Federal District Court: Northern District of Florida
Case Summary: Worley v. Roberts held that a preliminary injunction was not warranted as to disclosure of contributors, but that a preliminary injunction was warranted as to barring enforcement of limitations on spending contributions received in the final 5 days before an election.
Regulations & Guidance
Fla. Jur. 2d Elections s 103, Campaign treasurers; depositories
Fla. Jur. 2d Elections s 111, Reports by person making independent expenditure
Fla. Jur. 2d Elections s 222, Offenses relating to campaign literature and political advertisements
Constitutionality, Construction, and Application of Statute or Regulatory Action Respecting Political Advertising-Print Media Cases
Lobbying, PACs, and Campaign Finance s 11:81, Who may make contributions or expenditures-individuals
Lobbying, PACs, and Campaign Finance s 11:84, Limits on contributions or expenditures-PACs, corporations, lobbyists’ principals, etc.
Lobbying, PACs, and Campaign Finance s 11:91, Contributions or expenditures to political parties; issue advocacy; corporate activity on referenda; independent expenditures
Top 10 Things You Should Know Before You Run for Public Office, 85-OCT Fla. B.J. 45