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INDEPENDENT EXPENDITURES


Individuals, groups of individuals and political committees may support or oppose candidates by making independent expenditures in unlimited amounts. {Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)}. These expenditures do not count against the contribution limits established by the statutes. {KRS121.150(1); KRS121.150(6) and KRS121A.050(1)}. This brochure defines the term "independent expenditure" and explains reporting and other requirements involved in making independent expenditures. If you have any questions after reading this brochure, please call the Registry at 502/573-2226.

* Candidates and their committee staff may distribute this brochure to anyone who requests Registry guidelines on independent expenditures.

 WHAT IS AN INDEPENDENT EXPENDITURE

An independent expenditure is an expenditure for communications expressly advocating the election or defeat of a clearly identified candidate or slate of candidates, or the passage or defeat of a constitutional amendment or public question which will appear on the ballot and which is NOT made with the cooperation, consent, request, suggestion, or in consultation with, any candidate, slate of candidates, or any of his/her agents, a campaign committee, or a political issues committee. {KRS 121.150(1)}

A "clearly identified candidate" is one whose name, photograph or drawing appears or whose identity is apparent by unambiguous reference. "Agent" means any person who has actual oral or written authority, either express or implied, to make or to authorize the making of expenditures on behalf of a candidate, or means any person who has been placed in a position within the campaign organization where it would reasonably appear that in the ordinary course of campaign-related activities he or she may authorize expenditures.

 WHAT IS NOT AN INDEPENDENT EXPENDITURE

When an expenditure is made under the following circumstances, it results in an in-kind contribution rather than an independent expenditure and, therefore, counts against the per-election contribution limit for a candidate, slate of candidates or political issues committee:

Contact With Candidate’s Campaign

An individual may not communicate with a campaign regarding an independent expenditure prior to the time that the expenditure is made. Any expenditure made in cooperation or consultation with the candidate (or agent), or as a result of his/her request or suggestion, is considered an in-kind contribution, not an independent expenditure. {KRS 121.015(6)(b)(c)(d)}. When, however, an individual merely requests and receives from a candidate Registry guidelines on independent expenditures (such as this brochure), he/she is not considered to have coordinated, cooperated or consulted with the candidate. {KRS 121.150(1)} 

An absurd requirement!  Last year my brother and I put out 7,000 handbills asking fellow Jefferson County citizens to call fiscal court incumbents and candidates and demand repeal of the vehicle emissions test.  Rebecca Jackson and Russ Maple acknowledged thousands of calls, but neither candidates nor incumbents would publicly debate the peoples issue.  This year Gatewood Galbraith and Kathy Lyons have stated their opposition to vehicle emissions testing in their campaign platform.  I would like to update last years handbill, include their platform statement on the tailpipe test and encourage people to vote for Gatewood and Kathy,
but I might be prosecuted for committing a felony and create an in-kind reporting gaffe that could damage their campaign.

Common courtesy dictates I contact Gatewood and Kathy to make sure they agree with my handbill statements.  After all, the fact I agree with their platform statement does not mean they agree with my handbill.   However, contacting them would constitute coordination and I would be limited in how much I could spend. 

If I proceed without contacting them I'm free to spend any amount I can afford.  Gatewood and Kathy could not contact me and ask me to desist, even if they feel my handbill hurts their campaign, because that would also be coordination!

Meanwhile the "corporate press" is free to editorialize, include the candidates' platform, spill any amount of ink and contact the candidates.  Do not misunderstand, I'm not for limiting corporate freedom of the press, rather for restoring it to the people!  Campaign reform has discouraged the involvement of citizens and throttled individuals and groups that buy ink by the bottle.

  Candidate-Prepared Material

The distribution or republication of campaign material produced or prepared by a candidates’ campaign does not qualify as an independent expenditure. Distribution or republication of such material would be considered an in-kind contribution, not an independent expenditure. {KRS 121.015(6); KRS 121.150(1) and AO 95-012}

For example:  If I acquired a copy of Gatewood Galbraith and Kathy Lyons campaign platform from a member of their campaign, took it to Kinko's, made copies and distributed them to my neighbors that would constitute an in-kind donation.  In-kind donations are supposed to be reported to the State Board of Election Finance.

However, the restriction on republication of campaign material does not apply to distribution of handbills utilizing the medium of the World Wide Web.  The registry says they have no control, jurisdiction or way of tracking use of the World Wide Web.  Consequently, Gatewood and Kathy invite vistors to their website to download, print, copy and distribute their platform.  Click the following link to visit the platform download page:  http://www.gatewoodkathy99.com/issues/print.htm.

The print and broadcast (corporate) media are also exempt from election laws and reporting requirements.  The Courier Journal could print Gatewood Galbraith and Kathy Lyons platform and it would not be considered an in-kind donation.  Press exemption exists because requiring any type of regulation of the print media would draw serious constitutional questions.  But to whom did the 1st Amendment guarantee freedom of the press, people "living beings" or legal constructs "corporations"?  Corporations did not enjoy any constitutional rights or protections for the first 97 years of our nation! 

  Expenditure By Committee Employee

An expenditure made on behalf of a candidate, but directed by a current or former officer or employee of that candidate’s committee or by a person who has received compensation or reimbursement from the campaign, is presumed not to be independent. {KRS 121.150(1) and AO-95-012}

Example:

An individual who has not previously been involved in the campaign of candidate Jones purchases tee shirts advertising support for Jones and absolutely no contact, or consultation has been made with the candidate or any of his/her campaign staff. The purchase is considered an independent expenditure. However, if before purchasing the tee shirts the individual asks candidate Jones or his/her campaign staff how he/she may help the campaign, the individual has then made an in-kind contribution. Further, if the individual buys tee shirts and uses a logo actually prepared by Jones’s campaign staff, the individual makes an in-kind contribution to the candidate. (An in-kind contribution, when combined with all other contributions from the same individual, is limited to $1,000 per candidate, per election.) {KRS 121.150(6); KRS 121A.050(1) and AO 95-012}

REPORTING REQUIREMENTS

Political Committee

A reporting political committee must file an independent expenditure report with the Registry when the independent expenditure exceeds five hundred dollars ($500) in the aggregate in any one (1) election. {KRS 121.150(1)}

Any Other Person

Any other person must file a report with the Registry when the independent expenditure exceeds five hundred dollars ($500) in the aggregate in any one (1) election. {KRS 121.150(1)}

CONTENTS OF REPORT

Itemized reports on independent expenditures requires the following information: {32 KAR 1:080}

Certification

The report must include a certification, under penalty of perjury, that the expenditure meets the standard of independence.

Information About Expenditure

The report must include the date, amount and purpose of the expenditure and must indicate whether the expenditure is in support of or in opposition to the candidate, slate of candidates, or issue. Note that when an independent expenditure is made on behalf of more than one clearly identified candidate, the expenditure must be allocated among the candidates in proportion to the benefit they are expected to receive.

Information About Candidate

The report must include the name of the candidate, slate of candidates, and the office sought or the name of the issue.

Information About Person Making Expenditure

The report must include the person’s name, address, occupation, and employer. If the independent expenditure is made by a committee, the committee must provide their name, address and a description of the major business, social, or political interest represented.

Information About Payee

The report must include the name and address of the person to whom the expenditure was made.

DISCLAIMERS

KRS121.190(1) All newspaper or magazine advertising, posters, circulars, billboards, handbills, sample ballots and paid-for television or radio announcements which expressly advocate the election or defeat of a clearly identified candidate, slate of candidates, or group of candidates for nomination or election to any public office must be identified by the words "Paid for by" followed by the name and address of the payer.

 PENALTIES

KRS 121.990 provides that "any person who knowingly violates any provision of KRS 121.150 to 121.230...or KRS Chapter 121A, shall for each offense, be guilty of a Class D felony." KRS 121.990(4) also provides that an election may be voided if a candidate, slate or campaign treasurer knowingly violates KRS 121.150 to 121.220 or KRS Chapter 121A.

KREF 06/97

KREF 016/IE