What is an electioneering communication?

The concept of an 'electioneering communication' was introduced into federal campaign finance law by the Bipartisan Campaign Reform Act of 2002 (BCRA, Pub. L. 107-155, signed March 27, 2002 by President George W. Bush). Before BCRA, the boundary between regulated and unregulated broadcast political advertising was drawn by the concept of 'express advocacy' developed in Buckley v. Valeo, 424 U.S. 1 (1976). In footnote 52, the Buckley Court listed the 'magic words' that distinguished express advocacy from general political speech: 'vote for,' 'elect,' 'support,' 'cast your ballot for,' '[name] for Congress,' 'vote against,' 'defeat,' and 'reject.' Broadcast ads that mentioned federal candidates by name, attacked their records, and ran in the final weeks before an election -- but avoided those specific phrases -- were classified as unregulated 'issue advertising,' exempt from FECA's source restrictions and disclosure requirements even when funded with corporate or union treasury money. BCRA's electioneering-communication definition closed this loophole by applying a time-and-content test that did not depend on magic words.

The statutory definition at 52 U.S.C. Section 30104(f)(3) requires three elements to be met simultaneously. First, the communication must refer to a 'clearly identified' federal candidate -- the candidate's name, image, nickname, initials, or description of distinctive personal appearance is sufficient; no express advocacy language is required. Second, the communication must fall within a specific time window: 60 days before a general, special, or runoff election to federal office, or 30 days before a primary election, preference election, or a convention or caucus of a political party that has authority to nominate a federal candidate. Third, the communication must be capable of being received by 50,000 or more persons in the congressional district (for a House race) or the state (for Senate or presidential). The definition applies only to broadcast, cable, and satellite communications; online advertising is not classified as an electioneering communication under Section 30104(f)(3) and instead falls under separate FEC disclaimer and disclaimer-report rules.

BCRA Section 203 (52 U.S.C. Section 30118) originally prohibited corporations and labor unions from using general treasury funds to pay for electioneering communications within the 30/60-day windows. This provision was challenged in two Supreme Court cases. In FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), Chief Justice Roberts, joined by Justice Alito, held that Section 203 could not constitutionally be applied to ads that were 'susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate' -- creating an 'as applied' exception that narrowed the restriction before Citizens United. In Citizens United v. Federal Election Commission, 558 U.S. 310 (January 21, 2010), the Supreme Court, 5-4, struck down Section 203 on its face. Justice Kennedy's majority opinion -- joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito -- held that the First Amendment prohibits government from suppressing political speech based solely on the speaker's corporate identity. The Court overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the portion of McConnell v. FEC, 540 U.S. 93 (2003), that had upheld Section 203. After Citizens United, corporations, labor unions, and nonprofit organizations may fund unlimited independent electioneering communications, provided those expenditures are not coordinated with a candidate's campaign or party committee.

Citizens United did not eliminate the FEC disclosure requirements for electioneering communications. Under 52 U.S.C. Section 30104(f)(1)-(2), any person -- individual, corporation, union, or other organization -- that makes disbursements for electioneering communications totaling $10,000 or more in a calendar year must file a report with the FEC. The timing requirement depends on when the disbursement is made: within 24 hours if it occurs within 20 days of the election, or within 48 hours otherwise. The report must disclose the name and address of the person making the disbursements, the amount and date of each electioneering communication, the candidate identified, and the name and address of each person who contributed $1,000 or more specifically for the purpose of funding that communication. The disclosure requirement was upheld 8-1 in Citizens United -- only Justice Thomas dissented, arguing that compelled disclosure of political association violates the First Amendment. For 501(c)(4) organizations -- the primary dark money vehicle -- the obligation covers only donors who specifically earmarked $1,000 or more for the identified electioneering communication; general donor lists not earmarked for a particular communication are not required to be disclosed in FEC filings. For the 2028 presidential election, the 60-day general-election window runs from September 8, 2028 (60 days before November 7, 2028) through Election Day; any broadcast, cable, or satellite ad naming a 2028 federal candidate and reaching 50,000 or more relevant voters during that period triggers the Section 30104(f) disclosure requirement regardless of the speaker's identity.