On December 26, President Obama signed into law a bill to extend the Federal Election Commission’s administrative fine program.  The new law broadens the program significantly, in ways that will especially affect those who make independent expenditures.

The administrative fine program allows the FEC to collect fines on a streamlined basis, and on fixed schedules, when political committees fail timely to file their regular periodic reports, or when candidate committees fail timely to file their last-minute contribution (or “48-hour”) reports.  While the program places strict limits on when a respondent can challenge a fine, it has generally been regarded as successful, and has largely avoided partisan or ideological controversy.

The program was last reauthorized in 2008 and would have expired with reports covering activity through December 31, 2013.  In its 2012 legislative recommendations, the FEC asked Congress simply to extend the existing program for another five years.

But the new law, introduced in November by Republicans and Democrats in the Committee on House Administration, and passed by voice vote and unanimous consent in the House and Senate respectively, goes beyond the FEC’s 2012 request.  It broadens the program significantly to cover an array of additional reports:

  • Reports of independent expenditures made by persons other than political committees — like corporations, unions, and nonprofit organizations not registered with the FEC.
  • 24- and 48-hour reports of independent expenditures that aggregate $1,000 or more during the 20 days before an election, or $10,000 or more during the rest of the election cycle.
  • Reports of “electioneering communications” — i.e., broadcast, cable and satellite communications other than independent expenditures, and made by persons other than political committees, that refer to candidates before their voters within 30 or 60 days before the election.
  • Reports of “lobbyist-bundled” contributions filed under the Honest Leadership and Open Government Act of 2007.

The new law raises several issues that the Commission will have to address through rulemaking.  The most complicated of these involve independent expenditures.  Because independent expenditure reports are normally triggered by large payments for media placement, they tend to involve extremely large amounts, and hence could bring very large fines.  Moreover, the filing deadlines for independent expenditure reports are usually triggered by the date on which the communications were distributed, which can make it hard to evaluate the timeliness of some reports.  Finally, while the new law would seem to increase the likelihood that groups making independent expenditures will face Commission enforcement, it does so in a process that, by its nature, does not involve actual investigation or agency discretion.