2025 saw the biggest New Jersey election year—gubernatorial race for an open seat and all Assembly seats—since the enactment of the Elections Transparency Act in 2023. With the benefit of that experience, it is worth reviewing the practicalities of independent expenditures and their reporting in New Jersey.

What are independent expenditures?

Under New Jersey law, an independent expenditure is a communication that expressly advocates for the election or defeat of a clearly identified candidate, or the functional equivalent of such advocacy. (Communications that advocate for the passage or defeat of a public question are also covered.) The key component is that the expenditure may not be coordinated with a candidate or political party, or their agents.

These coordination restrictions are crucial. Under Citizens United and other related cases, restrictions on independent expenditures violate the First Amendment’s protections of political speech. Therefore, New Jersey’s contribution limits do not apply to independent expenditures.

But, if an expenditure is coordinated, then the spending no longer qualifies as independent, and the contribution limits snap back into place. The danger of coordination is really one of contribution limits—if an individual spends more than $5,500 to support a candidate, but coordinates that spending with the candidate, we are left with an excessive contribution.

Who can make independent expenditures?

With the exception of foreign nationals, essentially any individual or entity can make independent expenditures. Individuals, corporations, and labor unions can all make independent expenditures without limits. These contributors can also contribute without limits to a political organization that only makes independent expenditures (commonly called a Super PAC).

The same is true for those businesses who are restricted under New Jersey regulated-industry ban on political contributions. Under a recent series of cases brought by the New Jersey Bankers Association, federal courts determined that banks, insurance companies, and utilities are permitted to make independent expenditures to support or oppose New Jersey candidates, and to contribute to Super PACs. Because, under US Supreme Court jurisprudence, independent expenditures present no danger of corruption or the appearance thereof as a matter of law, the New Jersey regulated-industry prohibition on political contributions does not extend to independent-expenditure activity.

How are independent expenditures reported in New Jersey?

Depending on the nature and the amount of independent-expenditure spending, there are a few options for how this activity can properly be reported to the Election Law Enforcement Commission (ELEC) and to the public.

Form IND Reporting: If an individual or entity makes independent expenditures with their own funds, and the amount exceeds $300, the spender has to report the spending using ELEC Form IND. This report must be filed on the candidate-election schedule (29- and 11-days preelection, and 20-day postelection) with potential 72- and 24-hour reporting required for spending in close proximity to election day. Form IND requires disclosure of the spending side only, with no obligation to report contributor information.

Form D-6 Reporting: The Elections Transparency Act created a new reporting category, called an Independent Expenditure Committee. This committee is defined as a 527 political organization, a 501(c)(4) social-welfare organization, or a 501(c)(6) trade association that spends more than $7,500 in the aggregate on independent expenditures in connection with one election period. An Independent Expenditure Committee reports to ELEC using Form R-1, disclosing contributors who give more than $7,500 and all independent expenditures. This committee also files on the candidate-election schedule (29- and 11-days preelection, and 20-day postelection) but preelection reporting on a 72- and 24-hour basis do not apply.

ELEC has clarified, in an advisory opinion requested by our law firm, that any political organization that makes only independent expenditures can register using Form D-6. In other words, there is no need to be registered with the Federal Election Commission or another state election agency to qualify as a D-6 filer. However, it should be noted that registering as an Independent Expenditure Committee may lead to increased IRS reporting. Under IRS rules for political organizations, a political organization that reports detailed contributor and expenditure information to a state election authority is exempt from filing IRS Form 8872. An Independent Expenditure Committee that reports only $7,500 contributors to ELEC does not qualify for this IRS exemption, and therefore would be required to file IRS Form 8872. For this reason, many of our clients have chosen to file not as an Independent Expenditure Committee but as a Continuing Political Committee that only makes independent expenditures using ELEC Form D-4.

Form D-4 Reporting: Organizations that wish to consolidate reporting with ELEC (to gain exemption from IRS Form 8872) can always file ELEC Form D-4. Filers who choose this option will report all contributors that exceed $200 per year, and all expenditures. Reporting is done on a quarterly basis (April 15, July 15, October 15, and January 15) and 72- and 24-hour reporting is required.

Avi D. Kelin is a founding partner of PEM Law LLP, and chairs the firm’s Political Law and Non-Profit Law practices. He helps businesses, organizations, individuals, and political organizations to influence policy while complying with the law.

This column is for educational and informational purposes only and is not intended and should not be construed as legal advice. It is recommended that readers not rely on this column, but that professional advice be sought for individual matters.