# Electioneering Communication An **electioneering communication** is a broadcast, cable, or satellite communication that: 1. **Refers to a clearly identified federal candidate**, AND 2. Is **publicly distributed within 30 days of a primary or 60 days of a general election**, AND 3. Is **targeted to the relevant electorate** for that candidate (typically the state, district, or jurisdiction the candidate is seeking to represent). The category was created by the [[Bipartisan Campaign Reform Act]] of 2002 (Title II) and was designed to close the "magic words" loophole that [[Buckley v. Valeo]] (1976) had opened. Under the pre-BCRA framework, ads that referenced candidates by name but avoided express-advocacy language ("vote for," "vote against," "elect," "defeat") could be classified as **issue advocacy** rather than political advocacy and were exempt from FECA contribution and disclosure rules. ## The BCRA Framework (As Enacted) BCRA's electioneering-communications provision: - Required disclosure of donors funding electioneering communications above the de minimis threshold - **Prohibited corporate and union general treasury funds** from being used for electioneering communications - Did not affect coordinated communications (those were already prohibited if not properly funded) - Did not affect ads run outside the 30/60-day windows or not targeted to the relevant electorate The provision was the principal mechanism by which BCRA attempted to capture the gray-area issue advocacy that was functionally candidate advocacy. It was upheld in [[McConnell v. FEC]] (2003) on [[First Amendment]] review. ## The Dismantling The electioneering-communications provision had a short operational life: - **[[McConnell v. FEC]] (2003)**: provision facially upheld - **[[FEC v. Wisconsin Right to Life]] (2007)**: provision narrowed by the "any reasonable interpretation" test — ads "susceptible of any reasonable interpretation other than as an appeal to vote for or against a specific candidate" cannot be regulated as electioneering communications. The standard is permissive enough that most issue-advocacy ads escape the provision. - **[[Citizens United v. FEC]] (2010)**: the corporate-and-union-treasury-funds prohibition struck down. Corporations and unions can now fund electioneering communications without limit. After *Citizens United*, the surviving operative content of the electioneering-communications category is the **disclosure requirement** for spending above the de minimis threshold. The substantive prohibition is gone; the disclosure obligation remains. In practice, even the disclosure obligation is substantially circumventable through funding routes through 501(c)(4) and similar entities (which then become the "donor of record" without disclosing their own donors). ## What an Electioneering Communication Looks Like Concrete examples: - A broadcast ad airing 45 days before a general election in the candidate's state, mentioning the candidate by name and discussing the candidate's policy positions — this is classified as electioneering communication and is subject to disclosure (but, post-*Citizens United*, can be corporate-funded) - The same ad airing 70 days before the general election — outside the 60-day window, so not electioneering communication and not subject to BCRA disclosure - An ad mentioning a candidate by name but never urging viewers to vote — depending on how the [[FEC v. Wisconsin Right to Life]] "any reasonable interpretation" test is applied, may not be regulated as electioneering communication at all - An ad attacking a candidate's record but not aired in the candidate's state — not targeted to the relevant electorate, so not electioneering communication The combination of the 30/60-day windows, the targeting requirement, the [[FEC v. Wisconsin Right to Life]] narrowing of "express advocacy," and the [[Citizens United v. FEC]] elimination of source restrictions has produced a category that captures relatively little political advertising in practice. ## Significance for the KB The electioneering-communications category is the principal post-BCRA campaign-finance category that was created by Congress to address a specific known abuse (issue-advocacy ads functioning as candidate ads in the BCRA window) and that has been substantially dismantled by Roberts Court litigation. The category's trajectory illustrates the broader pattern documented across the campaign-finance system: statutes designed to close known loopholes are themselves narrowed by judicial interpretation until they cover only the narrowest possible factual cases. For the dark-money architecture the KB tracks, the practical consequence is that **most ads run by [[501(c)(4)]] entities and similar dark-money vehicles do not formally trigger electioneering-communications classification** and therefore escape even the surviving disclosure obligation. The dark-money issue-advocacy infrastructure operates substantially in the space *Wisconsin Right to Life* opened. ## See Also - [[Bipartisan Campaign Reform Act]] — the statute that created the category - [[McConnell v. FEC]] — the 2003 case upholding the category - [[FEC v. Wisconsin Right to Life]] — the 2007 case narrowing the category - [[Citizens United v. FEC]] — the 2010 case eliminating the source-restriction component - [[Independent Expenditure]] — adjacent (and broader) category - [[Dark Money]] — the funding infrastructure that operates in the post-*WRTL* space - [[Money as Speech]] — the doctrine narrowing this category - [[Federal Election Commission]] — the agency administering classification - [[Campaign Finance Timeline]] — full chronological view - [[Campaign Finance]] — Foundations hub