Depends on what your definition of 'it' is
Before the expenditure was finally reported over the weekend, Mike Shimpock, consultant to 35th Assembly District Democratic candidate Pedro Nava, was complaining that JobsPAC had already bought tens of thousands of dollars in television advertising without disclosing the expense.
The evidence suggested he had a point: Records from two broadcast TV stations in Santa Barbara County showed the JobsPAC, the statewide independent expenditure committee backed largely by energy companies, prepurchased at least $40,000 worth of advertising in the middle of last week. The commercials, however, weren't scheduled to air until Sunday.
So, does an independent expenditure committee have to report an expense when it writes the check or when the commercials show up on TV?
On the one hand, the FPPC regulation 18225.3(C) appears clear: "Costs directly traceable to the communication are reportable when the communication is made, or when payments are made in connection with the development, production or dissemination of the communication, whichever is earlier." (Emphasis added)
So why didn't JobsPAC report when it wrote the check?
Attorney Steve Lucas pointed to FPPC regulation 18225.2(D)(b): "'Expenditure'" includes any monetary or non-monetary payment ... that is used for communications which expressly advocate the nomination, election or defeat of a clearly identified candidate or candidates, or the qualification, passage or defeat of a clearly identified ballot measure."
Lucas said there is nothing to report until an expenditure is made, and until there is a communication to voters, there is no expenditure.
So how does that jibe with the reporting regulation, which says you must report when the communication is made or when it is paid for, whichever is earlier? Lucas said there is no "it" until the communication is made.
In other words, to paraphrase an attorney who remains quite prominent in Democratic political circles, it depends on what your definition of "it" is.