What is an independent expenditure?

The Federal Election Campaign Act (FECA, 52 U.S.C. Section 30101 et seq.) defines an 'independent expenditure' at Section 30101(17) as an expenditure by a person (A) expressly advocating the election or defeat of a clearly identified candidate for federal office; and (B) that is not made in concert or cooperation with, or at the request or suggestion of, the candidate, the candidate's authorized political committee, or their agents, or a political party committee or its agents. Both elements are required: spending that does not use express advocacy language is not an independent expenditure under FECA even if it mentions the candidate, and spending that is coordinated with a campaign is treated as a contribution subject to FECA's contribution limits rather than as an independent expenditure. The 'expressly advocating' standard was articulated by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), to save FECA's expenditure provisions from First Amendment overbreadth. The original FECA text reached any disbursement made 'for the purpose of influencing' a federal election, which the Court held would sweep in protected political speech. To preserve the statute, the Court narrowed the standard to spending that uses explicit electoral language: 'vote for,' 'elect,' 'support,' 'cast your ballot for,' '[candidate name] for Congress,' 'vote against,' 'defeat,' or 'reject' -- sometimes called the 'magic words' (Buckley v. Valeo, fn. 52).

Buckley v. Valeo drew the central constitutional distinction in federal campaign finance law: between direct contributions to a candidate's campaign and independent expenditures. The Court held that both are forms of political expression protected by the First Amendment, but that they differ in their corruption risk. A direct contribution gives money to the candidate's own committee; the candidate knows exactly who gave what and in what amount, creating a potential quid pro quo relationship between the donor and the officeholder. An independent expenditure, by definition, is not coordinated with the candidate and is not received by the campaign; the Court reasoned that spending independently to support or oppose a candidate does not create the same direct financial arrangement. On that reasoning, Buckley struck down FECA's limit on independent expenditures -- originally $1,000 per calendar year for individuals -- as an unconstitutional restriction on political speech. The contribution limits survived. This framework -- contributions can be limited by Congress, independent expenditures cannot -- has governed federal campaign finance since 1976.

Citizens United v. Federal Election Commission, 558 U.S. 310 (January 21, 2010), extended Buckley's protection against independent expenditure limits to corporations and labor unions. Before Citizens United, the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibited corporations and unions from spending general treasury funds on 'electioneering communications' -- broadcast, cable, or satellite ads naming a federal candidate within 30 days of a primary or 60 days of a general election -- and the 1990 decision in Austin v. Michigan Chamber of Commerce had allowed restrictions on corporate independent expenditures on anti-corruption and anti-distortion grounds. Citizens United overruled Austin and struck down BCRA Section 203, holding that the First Amendment bars restricting independent political expenditures based on the speaker's corporate identity. Two months later, the D.C. Circuit applied Citizens United in SpeechNow.org v. FEC (March 26, 2010) to hold that contribution limits cannot be applied to groups that make only independent expenditures. The FEC confirmed in Advisory Opinion 2010-11 (July 22, 2010) that 'independent expenditure-only committees' -- quickly named super PACs by journalists -- may accept unlimited contributions from corporations, unions, and individuals and spend those funds on unlimited independent expenditures, provided they make no direct contributions to candidates and do not coordinate with campaigns.

The Federal Election Campaign Act requires public disclosure of independent expenditures. Under 52 U.S.C. Section 30104(g), any person (other than a political committee) making independent expenditures aggregating $250 or more in a calendar year must file a statement with the FEC disclosing each expenditure. Political committees report independent expenditures on their regular FEC filings. Accelerated reporting applies as elections approach: under Section 30104(g)(3), a person making independent expenditures aggregating $1,000 or more after the 20th day but more than 24 hours before an election must file a report within 24 hours; a person making independent expenditures aggregating $10,000 or more at any time up to and including the 20th day before an election must file within 48 hours. Citizens United itself upheld the FEC's disclosure requirements 8-1, with only Justice Thomas dissenting. All independent expenditure reports are publicly searchable at fec.gov. For the 2028 presidential election, independent expenditures by super PACs, corporations, unions, and individuals are expected to total billions of dollars across the primary and general election cycles. Because Citizens United allows unlimited independent expenditures while FECA's contribution limits and disclosure requirements remain in force, the 2028 campaign will feature both the capped direct contributions that go to candidate committees and the uncapped independently spent money that flows through super PACs and other vehicles -- all publicly reported at fec.gov.