As local Indivisible groups jump into electoral work, we’ve been receiving more and more questions about campaign finance law. While we’re not able to provide legal advice, the following is meant to be a helpful resource to provide a general overview and answer common questions.
Questions about spending on electoral activities and campaign finance are often very nuanced. Answers to these questions will generally depend on the details. This overview will give you a good framework for thinking about broad questions, but it won’t get into specifics.
The most important way you can support candidates in your area is to spend your time, not your money. Volunteer time—canvassing, making phone calls, or holding candidate forums—is a huge factor in who gets elected.
State and local campaign finance law varies widely by place. The guidelines and answers in this resource are only applicable to federal races. This resource is meant for groups looking to engage in elections for U.S. Senate or Congress. If you are considering engaging in elections for governor, mayor, county council, state house or senate, etc., you should seek out local resources on compliance in your area.
PLEASE NOTE: How you engage in elections depends a lot on your group’s organizational status. This guide is intended for unincorporated local groups and those spending money under 501(c)(4) tax rules—independently, or through fundraising or voter contact tools we plan to offer as a 501(c)(4) organization ourselves. We don’t recommend you incorporate as a 501(c)(3). 501(c)(3) organizations have serious limitations on their ability to participate in elections.
Coordinated v. Independent Expenditures
When spending money in federal elections, there are generally two key terms used to classify that political spending. Those terms are “coordinated expenditures” and “independent expenditures” (IEs):
WHAT IS COORDINATION?
Coordinated expenditures are expenditures made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents. A simple example of coordination occurs if a campaign worked directly with an outside group on the best messaging to use while canvassing - that would be considered coordination. Similarly, if an outside group reached out to a campaign to figure out which voters to target for Get Out the Vote, or if a campaign asked an outside group to use their connections to a local reporter to get a press clip about the candidate, that would be considered coordination.
Any expenses involved with those examples would be considered an “in-kind” contribution to a campaign. An “in-kind” contribution is a contribution, like goods or services, other than cash, but they have the same limits as cash contributions. Whether you can make in-kind contributions depends on who you are:
- Contributions by individuals have an FEC limit of $2,700 per election per candidate and must be reported.
- Contributions by most political action committees have an FEC limit of $5,000 per election per candidate and must be reported. Political action committees also must disclose lots of additional information, such as the names of all of their donors.
- Corporate entities, such as many 501(c)(4) organizations generally can’t make contributions to candidates, monetary or in-kind.
Indivisible groups that are unincorporated can choose not to use national paid voter contact tools, and instead to coordinate with candidates or parties directly—as long as the groups do not share non-public information with Indivisible staff (more about this below). However, it’s important for Indivisible groups to know that even unincorporated groups are subject to FEC limits and reporting if they make any type of contribution to a campaign, and the contribution limits are relatively low. This is why we recommend groups spend their time, not their money, when engaging in elections. For example, if an unincorporated Indivisible group were to coordinate with a campaign to spend money developing and printing literature in support of (or against) a particular candidate, such spending may need to be reported to the FEC—and would be subject to limits.
WHAT ARE INDEPENDENT EXPENDITURES?
Independent expenditures (IEs) are communications that are not coordinated with a candidate or party. The amount of money that industries, non-profits, and interest groups can spend when they coordinate directly with a federal political campaign is limited by federal campaign finance law, and coordinated spending is prohibited for some of those groups. As a result, many of these organizations use IEs to fund large-scale electoral activity, without coordinating with the campaign they’re supporting. IEs still have reporting requirements, but they are unlimited in terms of the amount of spending.
IE’s and Coordination in Incorporated and Unincorporated Groups
We know Indivisible groups around the country have varying legal structures. Many groups remain unincorporated, which we think is the right choice for many groups. Others have incorporated as 501(c)(4) non-profits, or organized themselves as political action committees (PACs). Several have incorporated as 501(c)(3) non-profits.
Your group’s tax and incorporation status will have an impact on your ability to engage in electoral work. Different legal structures have various ways they can engage with elections—you can see an outline of the most common below:
Unincorporated Groups are free to engage in electoral work on either the coordinated or IE side. They can endorse candidates and work to support them. However, spending from these groups is still subject to reporting requirements and contribution limits (on the coordinated side), and so groups should make sure that they are spending their time, not their money, whenever possible.
Incorporated 501(c)(4)s are non-profits that are permitted to do a limited amount of political and electoral work. These organizations can endorse candidates, and spend money to support or oppose candidates as long as the spending is not coordinated. That said, electoral work cannot be the sole – or even the primary – goal of a (c)(4). If your organization is incorporated as a (c)(4), make sure you are talking to a lawyer to ensure you are complying with tax and campaign finance requirements. 501(c)(4)s are prohibited under federal election law from making any cash or in-kind contributions to any federal candidates—including spending any money on communications that are coordinated with a candidate.
PACs, or Political Action Committees, are organized for the primary purpose of raising and spending money—either to defeat or elect a candidate. Depending on how they raise money, they may be able to contribute directly to candidates, but have specific limits in the amount they can contribute. So-called Super PACs have no limitations on the amount of spending, but they can only spend money through IEs—they cannot contribute directly to campaigns, candidates, political parties using either cash or in-kind contributions. Super PACs are allowed to raise an unlimited amount of money from individuals, corporations, unions and other groups.
Incorporate 501(c)(3)s are non-profits that are primarily focused on educational charitable activities. Unlike a 501(c)(4), these organizations cannot partake in any partisan political activity; that is, activity focused on electing or defeating a particular candidate. We do not recommend that Indivisible groups incorporate as 501(c)(3)s.
Ways to Engage in Elections
Groups will have to determine whether they want to engage in electoral activity on the “coordinated side” or on the “IE side” this election cycle. Groups generally cannot move back and forth between the two sides. As you get ready to start electoral work, your group must pick which side you want to engage on, and commit to it.
Indivisible national will be operating only on the IE side this cycle. We will not be coordinating with campaigns or the parties. It’s crucial as a movement that we remain independent from specific candidates or the parties. We need to hold all Members of Congress accountable and our independence is a huge part of that. We are excited to work this cycle to support candidates who local groups are excited about, and who mirror our movement’s values.
As a result, all paid voter contact tools provided by Indivisible national can only be used by groups working on the IE side. Groups across the country may choose to coordinate directly with political campaigns or political parties. But any groups who decide to coordinate will be limited to only using publicly available tools: the public guides up on Indivisible435.org, and the publicly available voter registration tool.
While your group as a whole needs to pick between working on the IE or coordinated side, individual group members are still free to volunteer for a local campaign directly. We get into more detail on this below, but individual group members should still feel free to sign up directly with a political campaign to volunteer, even if their Indivisible group is working on the IE side. If your group chooses to work on the IE side, any group leadership that has (or may in the future be exposed to) non-public information about a campaign should step down from leadership for the duration of the election. Such people should also be careful about any other involvement they have in your group.
Frequently Asked Questions
The following questions outline basic answers to some common questions about compliance and election law. Keep in mind, laws vary widely from state to state, so these answers only apply for races at the federal level.
WHAT CONSTITUTES COORDINATION WITH A CANDIDATE, A POLITICAL PARTY, OR THEIR AGENTS?
“Coordination” is a legal term that means that the candidate or one of their agents or representatives has done one of the following with regard to the spending of an outside group: requested or suggested the spending; was materially involved in the spending; had a substantial discussion with you or someone in your group; or has used the same vendor that you or your group is using to carry out your spending. The involvement of former employees or former independent contractors of the candidate in your group may also result in coordination. Coordination may include:
- Sponsoring campaign events for or with a candidate or political party. (Sponsoring events for the general public at which candidates appear may be fine as long as the events are not campaign-related).
- Giving or sharing resources with a candidate or political party, such as money, data, vendors, or public outreach tools.
- Strategizing with a candidate, a political party or their agents about the upcoming election in any way.
- Sharing non-public information with a candidate or receiving non-public information from a candidate or his or her campaign team.
General expressions of endorsement of or opposition to a candidate is not considered coordination, nor is using information that is publicly available, such as a list of campaign offices published on a candidate’s website.
WHAT IF MY GROUP HAS ALREADY COORDINATED WITH A FEDERAL CANDIDATE?
Incorporated groups with members that have coordinated with a federal candidate are probably barred from spending money on electoral activities supporting that candidate, unless they set up special procedures to ensure that those who have coordinated with the campaign limit their interactions with the people involved with the group’s spending on electoral activities. Unincorporated groups that have coordinated might be able to spend some money, but that spending might be subject to reporting requirements and strict contribution limits. In either case, it’s good to check with a lawyer.
IF A GROUP IS COORDINATING, WHICH TOOLS AND GUIDES ARE THEY PROHIBITED FROM USING? WHICH ARE STILL OK TO USE?
Groups that are coordinating with campaigns should not use voter contact tools that Indivisible is providing, like canvass and phone bank tools. Groups are still allowed to use all publicly available guides on Indivisible435.org, as well as the voter registration tool available on the website. Groups are allowed to access all webinars and use communication tools like Mobilize. Groups that are coordinating must refrain from sharing any non-public information about the campaign with state or regional organizers, or on platforms like Mobilize.
WHAT ARE EXAMPLES OF INDEPENDENT EXPENDITURES (IES)?
Under federal election law, IEs might include:
- Communications to the public in any medium that advocate for the election or defeat of a clearly identified candidate, which are not made at the request of or otherwise in coordination with candidates, political parties, or their agents.
- IEs may include non-coordinated payments for:
- Canvassing and calling voters to advocate for the election or defeat of a candidate.
- Holding public actions and rallies to advocate for the election or defeat of a candidate.
- Mail, broadcast, cable, satellite, or billboard communications that advocate for the election or defeat of a candidate.
- Targeting particular groups of voters with a communication advocating for the election or defeat of a candidate, including compiling mailing and canvassing lists and other outreach tools that facilitate these communications.
- Otherwise paying people to work on campaigning for or against a candidate.
The standards for determining whether a person has engaged in an independent expenditure may be different with regard to state or local elections.
Groups engaging in independent expenditures can’t simultaneously coordinate with candidates for office under federal election laws. The tools that Indivisible will be providing are going to be paid for through IEs.
IF I HAVE NOT COORDINATED, WHEN DO I NEED TO REGISTER AND REPORT MY SPENDING?
If you have not coordinated and you’re going to spend money on electoral activities in support of or in opposition to a federal candidate, it’s likely that you’ll be engaging in an independent expenditure. Depending on the quantity of money you spend and the type of electoral spending, you may have to register to electronically file with the Federal Election Commission and report your spending to the Federal Election Commission by specific deadlines. Those deadlines and the particulars of what you must report can be complicated (and the deadlines can be very quick, within 24 hours sometimes), so we suggest that you consult with an attorney before making an independent expenditure.
IF MY GROUP IS UNINCORPORATED, DO I STILL NEED TO REPORT TO THE FEC?
If your group is engaging in political spending, yes, unincorporated groups also may need to report spending to the Federal Election Commission. If your group is using the Indivisible Fundraising Program, we can help you with this. If your group is not, you should consult with an attorney before spending money related to an election.
CAN GROUP LEADERS TAKE ON A PAID ROLE IN A CAMPAIGN OR COORDINATE WITH A CAMPAIGN AND STILL LEAD AN INDIVISIBLE GROUP?
Anyone in a leadership position in the group who is paid by a campaign the group is working on (or otherwise has or will have access to non-public information) should step down to a regular volunteer role, so as not to be seen as influencing the decision making of the group based on non-public information they pick up as a paid staffer. The group may also need to take other steps to ensure it does not coordinate, and should probably consult a lawyer before making independent expenditures.
IF A GROUP DECIDES TO USE INDIVISIBLE NATIONAL’S TOOLS ON THE IE SIDE, CAN INDIVIDUAL GROUP MEMBERS STILL VOLUNTEER DIRECTLY FOR A CAMPAIGN?
Individual group members are welcome to volunteer on any campaign at any level, so long as they are not spending any money in support of the campaign or working directly with the campaign to learn about non-public strategy that may impact the group’s ability to make IEs.
Alice from Indivisible Eastern Tennessee has gotten really excited about the campaign for Tennessee’s 2nd Congressional District. She is particularly excited about one candidate, Maria Gomez. One Saturday before the primary, Alice goes to one of Maria Gomez’s local district offices and signs up for a volunteer shift. She’s given a packet of names, and spends three hours canvassing her neighborhood. The next Tuesday, Alice attends Indivisible Eastern Tennessee’s meeting. The group decides to move forward with an endorsement of Gomez, and schedules canvassing shifts for group members on the IE side using Indivisible national’s tools. Alice is still free to volunteer with her Indivisible group’s canvassing efforts on the IE side, even though she already volunteered directly with Gomez’s campaign.
ARE INDIVISIBLE MEMBERS OR LEADERS WHO ARE EMPLOYED BY A CAMPAIGN RESTRICTED IN THEIR ABILITY TO ENGAGE WITH INDIVISIBLE ELECTORAL TOOLS?
Yes, at the federal level, once people are being paid or spending money on a campaign, they must be very careful about how they conduct themselves. There are limits on how campaigns can spend their money and requirements for reporting any money spent.
Indivisible group members should feel free to volunteer their time on behalf of a campaign, but if a group member is hired directly by a campaign, they will not be able to volunteer with their group on the IE side using Indivisible tools.
CAN A GROUP RECRUIT VOLUNTEERS FOR A CANDIDATE WHEN ON THE IE SIDE?
It is probably fine for groups to recommend that people volunteer for publicly disclosed candidate-sponsored events. Any volunteer opportunities you re-post must be based on public information, like office locations, events listed on the campaign’s website, or public Facebook or Twitter accounts.
ARE SOCIAL MEDIA ACCOUNTS ON TWITTER & FACEBOOK RUN BY INDIVIDUALS THAT USE THE INDIVISIBLE NAME SUBJECT TO ANY RESTRICTIONS REGARDING CANDIDATES?
On the federal level, individual Indivisible group accounts are fine to share publicly available information about candidates or candidate events. The same goes for individuals’ accounts, as well as closed Facebook pages. These are still considered public communication.
CAN AN INDIVISIBLE GROUP HOST A FUNDRAISER FOR A CANDIDATE?
Incorporated Indivisible groups can’t make contributions to candidates as a group, because incorporated nonprofit entities (like the Indivisible Project) are strictly prohibited from making contributions to candidates. Even if your group is unincorporated, any contributions taken in at events like these may be subject to campaign finance rules and reporting requirements. Members or leaders in Indivisible groups can make contributions as individuals.
Overall, we encourage groups to spend their time, not their money, when it comes to electoral work. That said, if you’re interested in this type of activity, email firstname.lastname@example.org, and we are happy to talk it through with you.
CAN INDIVISIBLE GROUPS PROMOTE PUBLICLY AVAILABLE FUNDRAISERS FOR CANDIDATES?
If your group has moved through the endorsement process and decided to endorse a candidate, group leaders may choose to send out publicly available fundraising links for candidates.
However if your group has not endorsed a candidate, because different group members may support different candidates—particularly during the primaries—we would strongly recommend group leaders refrain from promoting fundraisers for any candidates that their groups have not already voted to endorse.
CAN A GROUP MEMBER WITHOUT AN OFFICIAL TITLE OR ROLE IN THE GROUP BE PAID FOR CAMPAIGN WORK AND STILL CONTRIBUTE TO INDIVISIBLE, WITH RESTRICTIONS, ON THEIR OWN TIME?
Group members who are paid for campaign work can still do advocacy work as a volunteer with Indivisible, but they should be very careful not to engage in electoral work with Indivisible related to the same race in which they are getting paid.
Additionally, they cannot share any non-public information about the campaign with Indivisible staff, or with any local groups that are using Indivisible tools for electoral work. It’s important that people who are paid by campaigns be transparent about that fact with their Indivisible group, so that the group can set boundaries on those people’s involvement in group activities.
AS AN INDIVIDUAL CAN I CONTRIBUTE TO CANDIDATES DIRECTLY?
Individual group members or leaders can personally contribute to candidates if that’s a way in which they want to get involved. The most important way Indivisible groups can make an impact is through taking action and talking to your neighbors. However, group members or leaders are welcome to make contributions as individuals.
WHAT LIMITATIONS ARE IMPOSED BY GROUPS INCORPORATED AS 501(C)(4)S?
If your group incorporates and seeks 501(c)(4) status, it can introduce some restrictions on your activities, including but not limited to:
- Incorporated 501(c)(4)s must spend less than half of their time on partisan political activity, i.e., advocating the election or defeat of a candidate or political party.
- 501(c)(4)s must report independent expenditures in federal elections to the FEC when they total at least $250 per election. Many states impose similar reporting requirements for state and local elections.
- Incorporated 501(c)(4)s are strictly prohibited from making direct and in-kind contributions to federal candidates.
WHAT LIMITATIONS ARE IMPOSED BY GROUPS INCORPORATED AS 501(C)(3)S?
Organizations with 501(c)(3) status cannot participate in elections, which is an important tool in resisting the Trump agenda. We do not recommend incorporating and seeking 501(c)(3) status.
YOU DIDN’T ANSWER MY QUESTION!
Feel free to reach out to our organizing team at email@example.com and we can point you in the right direction!
Bolder Advocacy provides great research and guidelines on election law. Check out their website for more in depth resources on everything from types of organizations to electoral activity.
This document does not create an attorney-client relationship and does not constitute legal advice. It is also not a comprehensive statement of every reporting and other legal requirement for groups engaging in partisan political activity.