[Federal Register Volume 59, Number 192 (Wednesday, October 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24622]


[[Page Unknown]]

[Federal Register: October 5, 1994]


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FEDERAL ELECTION COMMISSION

11 CFR Part 110

[Notice 1994--14]

 

Communications Disclaimer Requirements

agency: Federal Election Commission.

action: Notice of proposed rulemaking.

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summary: The Federal Election Commission is seeking comments to help 
determine whether changes in its regulations governing disclaimers on 
campaign communications are warranted. The current rules require a 
disclaimer notice on communications by any person that expressly 
advocate the election or defeat of a clearly identified candidate, or 
solicit contributions, through any form of general public political 
advertising. One proposed change would create a presumption that 
communications by authorized political committees or political party 
committees that refer to a clearly identified federal candidate are 
express advocacy, thereby triggering the disclaimer requirement. Other 
modifications would clarify that oral disclaimers are required under 
appropriate circumstances; clarify how these requirements apply to 
coordinated party expenditures; broadly define ``direct mail'' in this 
context; require a disclaimer on all communications included in a 
package of materials that are intended for separate distribution; and 
clarify the meaning of ``clear and conspicuous'' as that term is used 
in these rules.

dates: Comments must be received on or before December 5, 1994. Persons 
wishing to testify at a hearing on these rules should so indicate in 
their written comments. If sufficient requests to testify are received, 
the Commission will announce the date of the hearing in a separate 
notice.

addresses: Comments must be in writing and addressed to: Ms. Susan E. 
Propper, Assistant General Counsel, 999 E Street NW., Washington, DC 
20463.

for further information contact: Ms. Susan E. Propper, Assistant 
General Counsel, 999 E Street NW., Washington, DC 20463, (202) 219-3690 
or (800) 424-9530.

supplementary information: The Federal Election Campaign Act [``FECA'' 
or ``the Act''] at 2 U.S.C. 441d(a) requires a disclaimer on 
communications by any person that expressly advocate the election or 
defeat of a clearly identified federal candidate, or solicit 
contributions, through any form of general public political 
advertising. The Commission is proposing to revise the implementing 
regulations, found at 11 CFR 110.11, to address issues that have arisen 
since the rules were last amended, and to clarify their scope and 
applicability.

New Definition

    Proposed 11 CFR 110.11(a) includes a definition for the term 
``direct mailing.'' For purposes of these requirements, ``direct 
mailing'' would be broadly defined to include any number of 
substantially similar pieces of mail, except for mailings of fifty 
pieces or less, by any person. The definition would exclude permissible 
activities by a corporation or labor organization communicating with a 
restricted class under 11 CFR 114.3 or 114.5, because such activities 
do not involve general public political advertising.

Express Advocacy

    The current disclaimer requirements were enacted as part of the 
1976 amendments to the Federal Election Campaign Act. They replaced 
those contained in former 18 U.S.C. 612, a broadly-worded criminal code 
provision that required identifying information to be included on any 
political statement published, mailed or distributed on behalf of a 
federal candidate.
    The present statutory and regulatory language applies to 
communications that expressly advocate the election or defeat of a 
clearly identified federal candidate, a standard the Supreme Court held 
in Buckley v. Valeo, 424 U.S. 1, 80 (1976), to be constitutionally 
mandated for the disclosure of expenditures by individuals and groups 
that are not candidates or political committees. 424 U.S. at 80. 
However, neither Buckley nor other pertinent case law prohibits the 
imposition of further requirements on communications made by candidates 
and political committees. It is the Commission's experience that an 
inordinate amount of Commission time and resources are diverted to the 
question of whether a campaign mailing or advertisement paid for by a 
candidate constituted ``express advocacy'' and therefore required a 
disclaimer.
    Since political committees are in the business of electing 
candidates to political office, the Commission believes it is 
appropriate for them to be subject to a different standard under 
section 441d(a) in certain circumstances. The Commission is therefore 
proposing to include in the regulatory text a presumption that all 
communications by authorized political committees, or by party 
political committees, that refer to a clearly identified federal 
candidate contain express advocacy, and thus trigger the section 
441d(a) disclaimer requirements. This interpretation would further a 
major goal of the FECA, that of more complete disclosure on political 
communications directed to the general public. It would also eliminate 
problems that have arisen in determining whether specific 
communications contain ``express advocacy'' in this context.
    This presumption would be rebuttable, since certain communications, 
e.g., those limited to one candidate's placing a newspaper ad offering 
another sympathy on a bereavement, are clearly not election advocacy. 
The Commission welcomes comments on the advisability of adopting this 
presumption, as well as suggested alternatives to and/or specific 
exemptions from the presumption.
    Alternatively, the Commission is soliciting comments on whether the 
statutory language should be interpreted to require disclaimers on all 
communications by political committees, whether or not they include 
express advocacy. This, too, would further the disclosure aims of the 
Act, as well as eliminate possible problems in determining whether the 
``express advocacy'' standard has been met.

Party Political Committee Communications

    The Commission is also seeking comments on whether the required 
authorization statement should be dropped or modified for 
communications and solicitations that refer to a clearly identified 
federal candidate, made by political party committees prior to the time 
the party's candidate is nominated. There are several possible 
approaches to this issue. One option would be for such communications 
to state only who paid for the communication. Please note that this 
would not change the Commission's long-standing conclusion that such 
communications may count against the committee's coordinated party 
expenditure limits.
    If a state or national party committee chooses not to make the 
coordinated expenditures permitted by section 441a(d), it may assign 
its right to make those expenditures to a designated agent, such as the 
senatorial campaign committee of the party. FEC v. Democratic 
Senatorial Campaign Committee, 454 U.S. 27 (1981). The proposed rules 
would clarify that the disclaimer on a communication made as a 
coordinated party expenditure should identify the committee that made 
the actual expenditure as the person who paid for the communication, 
regardless of whether that committee was acting as a designated agent 
or in its own capacity.

Unauthorized Committee Solicitations That Mention Candidates

    While the Act requires communications by unauthorized committees to 
state both who paid for the communication and whether it was authorized 
by any candidate or candidate's committee, the text of the current rule 
does not include the second requirement for unauthorized committee 
solicitations. The proposed rule would clarify that an authorization 
statement would be required if the solicitation refers to a clearly 
identified federal candidate.

The ``Clear and Conspicuous'' Requirement

    The proposal would provide guidance on the meaning of the term 
``clear and conspicuous'' as that phrase is used in current 11 CFR 
110.11(a)(1) and proposed paragraph 110.11(c). The Commission recently 
completed a rulemaking revising its regulations on the FECA's 
requirement that treasurers of political committees exercise best 
efforts to obtain, maintain, and report the complete identification of 
each contributor whose contributions aggregate more than $200 per 
calendar year. 2 U.S.C. 432(i), 11 CFR 104.7. See 58 FR 57725 (Oct. 27. 
1993). For purposes of that rulemaking, a required notice to 
contributors is stated not to be ``clear and conspicuous'' if it is in 
small type in comparison to the remainder of the material, or if the 
printing is difficult to read or if the placement is easily overlooked. 
11 CFR 104.7(b)(1), 58 FR 57729. This NPRM proposes the same language 
with regard to the disclaimers covered by this section.

Oral Disclaimers

    The draft rules would clarify that oral communications and 
solicitations must meet the same disclaimer requirements as their 
written counterparts. The Act does not distinguish between written and 
oral communications. The Commission held in Advisory Opinion 1988-1 
that oral disclaimers were not required as part of phone bank campaign 
communications with express advocacy content. The draft rules would 
supersede this opinion. This approach is consistent with the 
Commission's recently-adopted ``best efforts'' rules, which require at 
11 CFR 104.7(b)(2) that both written and oral follow-up requests for 
contributor identification information include a required statement.

Packaged Materials

    The proposal would clarify that a separate disclaimer is required 
on all communications included in a package of materials if the 
communications are intended for separate public distribution. In the 
past, questions have arisen as to whether a single disclaimer per 
package would satisfy the purposes of this requirement. All items 
intended for separate distribution (e.g., a poster included in a 
package of campaign handouts) would be covered by this requirement.

Exceptions

    The current rules at paragraph 110.11(a)(2) exempt from the 
disclaimer requirement small items, such as pins, buttons, or pens; and 
``impractical'' items, such as watertowers and skywriting. The 
Commission is proposing in paragraph (b)(1)(i) to add to these exempted 
items checks, receipts and similar items of minimal value that do not 
contain a political message and that are used for purely administrative 
purposes. Also, the question has at times arisen as to whether the 
``impractical'' exception applies to wearing apparel, such as T-shirts 
or baseball caps, that contain a political message. This Notice 
proposes no language requiring a disclaimer on such material. However, 
if commenters believe the Commission should consider a disclaimer 
requirement for such materials, the Commission would encourage 
suggestions for practical application of such a requirement.

Disbursements by Candidates or Party Committees for Exempt Activity

    The Commission is proposing language that would require a 
disclaimer on a communication by a candidate or party committee that 
qualifies as an exempt activity though on behalf of a clearly 
identified federal candidate. This would ensure that a disclaimer is 
included on all communications, including those which qualify as exempt 
activities by state and local party committees or candidates under the 
Act. See 2 U.S.C. 431(8)(B)(v), (x), (xi), and (xii).
    This proposed amendment is consistent with the Act's interest in 
full disclosure of who authorized and paid for campaign communications. 
The Commission welcomes comments on this approach.
    Comments are invited on any of the specific amendments discussed 
above, as well as any related issues that might relate to this topic.

Certification of No Effect Pursuant to 5 U.S.C. 605(b) [Regulatory 
Flexibility Act]

    The attached proposed regulations, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
The basis for this certification is that any affected entities are 
already required to comply with the Act's requirements in this area.

List of Subjects in 11 CFR Part 110

    Campaign funds, Political candidates, Political committees and 
parties.

    For reasons set out in the preamble it is proposed to amend 
Subchapter A, chapter I of Title 11 of the Code of Federal Regulations 
as follows:

PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS

    1. The authority citation would continue to read as follows:

    Authority: 2 U.S.C. 431(8), 431(9), 432(c)(2), 437d(a)(8), 
438(a)(8), 441a, 441b, 441d, 441e, 441f, 441g, and 441h.

    2. Part 110 would be amended by revising section 110.11 to read as 
follows:


Sec. 110.11  Communications; advertising.

    (a) Definition. For purposes of paragraph (b)(1) of this section 
only, ``direct mailing'' includes any number of substantially similar 
pieces of mail but does not include:
    (1) a mailing of fifty pieces or less by any person; or
    (2) mailings by a corporation or labor organization to the 
corporation's or labor organization's restricted class under 11 CFR 
114.3 or 114.5.
    (b)(1) (i) General Rule. Except as otherwise provided in this 
section, whenever any person makes an expenditure for the purpose of 
financing a communication that expressly advocates the election or 
defeat of a clearly identified candidate or that solicits any 
contribution, through any broadcast station, phone bank, newspaper, 
magazine, outdoor advertising facility, poster, yard sign, direct 
mailing or other form of general public political advertising, that 
communication or solicitation shall clearly state who paid for it. If 
authorized by a candidate, an authorized committee of a candidate or an 
agent thereof, but paid for by some other person, the communication or 
solicitation shall clearly state that it is authorized by such 
candidate, authorized committee, or agent. If not authorized by a 
candidate, authorized committee of a candidate or its agent, the 
communication or solicitation shall clearly state that it is not 
authorized by any candidate, candidate's committee, or agent. For 
purposes of this paragraph, it is presumed that a communication or 
solicitation by a political committee that refers to a clearly 
identified federal candidate contains express advocacy.
    (ii) Exceptions. The requirements of paragraph (b)(1)(i) of this 
section do not apply to:
    (A) bumper stickers, pins, buttons, pens and similar small items 
upon which the disclaimer cannot be conveniently printed;
    (B) skywriting, watertowers or other means of displaying an 
advertisement of such a nature that the inclusion of a disclaimer would 
be impracticable;
    (C) checks, receipts and similar items of minimal value which do 
not contain a political message and which are used for purely 
administrative purposes; or
    (D) communications by a corporation or labor organization to the 
corporation's or labor organization's restricted class under 11 CFR 
114.3 and 114.5.
    (2) For a communication or solicitation paid for by a party 
committee pursuant to 2 U.S.C. 441a(d), the disclaimer required by 
paragraph (b)(1)(i) of this section shall identify the committee that 
makes the expenditure as the person who paid for the communication, 
regardless of whether the committee was acting in its own capacity or 
as the designated agent of another committee.
    (3) A solicitation other than one covered by paragraph 
(b)(1)(ii)(D) of this section by an unauthorized political committee 
that does not refer to a clearly identified federal candidate need only 
state who paid for it.
    (4) For purposes of paragraphs (b)(1)(i) of this section, the term 
``expenditure'' includes a communication by a candidate or party 
committee that qualifies as an exempt activity under 11 CFR 100.8(b) 
(10), (16), (17), or (18).
    (c) Placement of Disclaimer. The disclaimers specified in paragraph 
(b)(1)(i) of this section shall be presented in a clear and conspicuous 
manner, to give the reader, observer or listener adequate notice of the 
identity of the person or committee that paid for, and, where required, 
that authorized the communication. A disclaimer is not clear and 
conspicuous if it is in small type in comparison to the rest of the 
printed material, or if the printing is difficult to read or if the 
placement is easily overlooked.
    (1) The disclaimer need not appear on the front or cover page of 
the communication as long as it appears within the communication, 
except on communications, such as billboards, that contain only a front 
face.
    (2) Each communication that is included in a package of materials 
but that is also intended for separate public distribution shall 
include a disclaimer.
    (d) (1) Newspaper or magazine space. No person who sells space in a 
newspaper or magazine to a candidate, an authorized committee of a 
candidate, or an agent of the candidate, for use in connection with the 
candidate's campaign for nomination or for election, shall charge an 
amount for space which exceeds the comparable rate for the space for 
non-campaign purposes.
    (2) For purposes of this section, ``comparable rate'' means the 
rate charged to a national or general rate advertiser, and shall 
include discount privileges usually and normally available to a 
national or general rate advertiser.

    Dated: September 30, 1994.
Trevor Potter,
Chairman.
[FR Doc. 94-24622 Filed 10-4-94; 8:45 am]
BILLING CODE 6715-01-M