[Federal Register Volume 60, Number 193 (Thursday, October 5, 1995)]
[Rules and Regulations]
[Pages 52069-52072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24749]



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FEDERAL ELECTION COMMISSION
11 CFR Part 110

[Notice 1995-14]


Communications Disclaimer Requirements

AGENCY: Federal Election Commission.

ACTION: Final rule and transmittal of regulations to Congress.

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SUMMARY: The Federal Election Commission has revised its regulations 
that govern disclaimers on campaign communications. The revisions 
clarify how these rules apply to coordinated party expenditures; 
broadly define ``direct mail'' in this context; require a statement of 
who paid for a covered communication, the cost of which is exempt from 
the Federal Election Campaign Act's contribution and expenditure 
limits; 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: Further action, including the publication of a document in the 
Federal Register announcing the effective date, will be taken after 
these regulations have been before Congress for 30 legislative days 
pursuant to 2 U.S.C. 438(d).

FOR FURTHER INFORMATION CONTACT:
Ms. Susan E. Propper, Assistant General Counsel, 999 E Street, N.W., 
Washington, D.C. 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 revising the implementing regulations, 
which are found at 11 CFR 110.00, to address issues that have arisen 
since the rules were last amended, and to clarify their scope and 
applicability.
    The Commission published a Notice of Proposed Rulemaking 
[``Notice'' or ``NPRM''] on proposed amendments to the disclaimer rules 
on October 5, 1994. 59 FR 50708. Comments in response to this Notice 
were received from Robert Alan Dahl; the Democratic National Committee; 
a joint comment from the Democratic Senatorial Campaign Committee and 
the Democratic Congressional Campaign Committee; the Internal Revenue 
Service; the National Association of Broadcasters; the Ohio Right to 
Life Political Action Committee; United States Representative Carolyn 
B. Maloney; United States Representative Thomas E. Petri; and Wilson 
Communication Services. The Commission held a public hearing on March 
8, 1995, at which five witnesses presented testimony on the issues 
addressed in the NPRM.
    Section 438(d) of Title 2, United States Code, requires that any 
rules or regulations prescribed by the Commission to carry out the 
provisions of the FECA be transmitted to the Speaker of the House of 
Representatives and the President of the Senate for a 30 legislative 
day review period before they are finally promulgated. These 
regulations were transmitted to Congress on October 2, 1995.

Explanation and Justification

    The FECA at 2 U.S.C. 441d(a) requires disclaimers 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. In most instances the 
disclaimer must state both who paid for the communication and whether 
it was authorized by any candidate or authorized committee.
    A primary purpose of this rulemaking was to simplify the 
implementing regulations to this statutory requirement. A number of 
revisions have accordingly been made, to clarify their scope and 
applicability. However, after reviewing the comments and testimony 
presented at the hearing, the Commission has determined that its 
present regulation is in most instances the most reasonable alternative 
at this time. A detailed analysis of the new and revised provisions 
appears below.
    Please note that these revisions are limited to 11 CFR 110.11(a). 
Paragraph 110.11(b), which deals with newspaper and magazine charges 
for campaign advertisements, has not been amended.

Part 110--Contribution and Expenditure Limitations and Prohibitions

Section 110.11  Communications; Advertising

General Requirements
    The language of former paragraph (a)(1) has largely been retained. 
However, the last sentence of the former paragraph (a)(1), which deals 
with placement of the disclaimer, and former paragraph (a)(1)(iv)(B), 
solicitations by separate segregated funds [``SSF''], have been moved 
to new paragraphs (a)(5)(i) and (a)(7), respectively.
    The NPRM sought comments on a number of different approaches, 

[[Page 52070]]
    including: A rebuttable presumption that communications by certain 
political committees that mention a clearly identified federal 
candidate contain express advocacy, and thus trigger the section 
441d(a) disclaimer requirements; and reading the FECA so as to require 
disclaimers on all communications by all political committees, whether 
or not they contain express advocacy.
    None of the commenters who addressed these issues supported the 
presumption or any of the other proposed changes, although one 
suggested the Commission could expand the ``paid for by'' requirements 
based on its authority to monitor campaign spending. The Commission has 
determined that adopting the presumption of express advocacy would 
likely not eliminate the need for case by case examination of 
challenged communications, and concerns also exist with regard to the 
other proposals. For this reason the Commission has decided to leave 
the general disclaimer requirements largely intact at this time. The 
Commission has submitted legislative recommendations suggesting that 
Congress might want to consider legislation to address this situation.
Phone Banks
    The NPRM also sought comment on a proposal to insert phone banks in 
the listing of types of activities that constitute general public 
political advertising. This proposal would have had the effect of 
requiring oral disclaimers as part of phone bank campaign 
communications.
    Two Members of Congress who commented on these rules supported this 
proposal. Another commenter asked the Commission to clarify what 
information a multicandidate committee should include in an oral 
authorization statement if some but not all of the candidates supported 
by that committee have authorized a communication.
    The Commission considered including phone banks in the listing of 
types of activities that constitute general public political 
advertising when it prepared the final rules, but could not reach a 
majority decision by the required four affirmative votes. See 2 U.S.C. 
437c(c). Consequently, this proposal has not been included in the final 
rules.
Coordinated Party Expenditures
    The FECA at 2 U.S.C. 441a(d) permits political party committees to 
make expenditures on behalf of party candidates in excess of the 
generally applicable contribution limits set forth at 2 U.S.C. 441a(a). 
New paragraph (a)(2) clarifies the disclaimer requirements for 
communications paid for as coordinated party expenditures.
    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 do so to a designated agent, such as the senatorial 
campaign committee of the party. FEC v. Democratic Senatorial Campaign 
Committee, 454 U.S.C. 27 (1981). Paragraph (a)(2)(i) clarifies 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.
    Paragraph (a)(2)(ii) states that communications made pursuant to 2 
U.S.C. 441a(d) prior to the date a party's candidate is nominated need 
state only who paid for the communication; i.e., no authorization 
statement is required. The commenters who addressed this issue favored 
this approach. Please note, however, that this does not change the 
Commission's long-standing conclusion that such communications count 
against the committee's coordinated party expenditure limits.
Definition of ``Direct Mailing''
    A definition for the term ``direct mailing'' has been added at new 
paragraph (a)(3). For purposes of these requirements, ``direct 
mailing'' is broadly defined to include any mailing that consists of 
more than 100 substantially similar pieces of mail. While the NPRM 
suggested 50 pieces as the number to trigger this requirement, the 
Commission believes limiting this to mailings of more than 100 pieces 
more accurately reflects the size and scope of current campaign 
operations.
    One commenter and witness at the hearing asked that the Commission 
clarify what is meant by the term ``substantially similar.'' 
Technological advances now permit what is basically the same 
communication to be personalized to include the recipient's name, 
occupation, geographic location, and similar variables. The Commission 
considers communications to be ``substantially similar'' if they would 
be the same but for such individualization.
Exempt Activity
    New paragraph (a)(4) requires a statement of who paid for the 
communication on covered communications by a candidate or party 
committee whether or not they qualify as exempt activities under 11 CFR 
100.8(b)(10), (16), (17), or (18). The NPRM proposed requiring an 
authorization statement on such communications, as well.
    Most of the comments that addressed this issue disagreed with the 
proposed approach. However, the intent of the FECA is that those 
activities by state and local party committees or candidates that 
qualify as ``exempt'' under 2 U.S.C. 431(8)(B)(v), (x), (xi), and (xii) 
not count towards the FECA's contribution and expenditure limits. 
Requiring a ``paid for by'' statement does not conflict with that 
intent.
    Both the disclaimer rules and the exempt activity provisions 
contain definitions of general public political advertising and direct 
mail, although in the former case the list describes covered 
communications, while in the latter case the list describes 
communications that do not qualify for exemption. However, these 
definitions are broader under the disclaimer rules than under the 
exempt activity provisions. Thus, certain communications covered by the 
exempt activity provisions, such as phone banks and yard signs, are 
still general public political advertising for purposes of the 
disclaimer rules. The Commission notes, however, that some exempt 
activities will continue to fall under the small items exception, e.g., 
pins and bumper stickers, and therefore will not require a disclaimer.
The ``Clear and Conspicuous'' Requirement
    New paragraph (a)(5) provides guidance on the meaning of the term 
``clear and conspicuous'' as that phrase is used in this section. The 
NPRM proposed that, consistent with the Commission's 1993 rulemaking 
addressing what constitutes ``best efforts'' to obtain identifying 
information about certain campaign contributors (see 2 U.S.C. 432(i); 
11 CFR 104.7; 58 FR 57725 (Oct. 27, 1993)), a disclaimer would not be 
considered ``clear and conspicuous'' if it was in small type in 
comparison to the remainder of the material, or if the printing was 
difficult to read or if the placement was easily overlooked.
    Several commenters pointed out that the ``comparable size'' 
requirement, while appropriate for the solicitations addressed in the 
``best efforts'' rules, may not be appropriate for communications that, 
for example, consist only of two lines of large type. The Commission 
has accordingly deleted this language from the final rule, while 
retaining the other guidelines. That is, a disclaimer is now stated not 
to be ``clear and conspicuous'' if the printing is difficult to read or 
if the 

[[Page 52071]]
placement is easily overlooked. Technical requirements for televised 
communications are set forth in new paragraph (a)(5)(iii), discussed 
infra.
Placement of Disclaimer
    New paragraph (a)(5)(i) states that the disclaimer need not appear 
on the front or cover page of a communication as long as it appears 
within the communication, except on communications such as billboards 
that contain only a front face. This provision formerly appeared in 
paragraph (a)(1) of this section.
Packaged Materials
    New paragraph (a)(5)(ii) clarifies that all materials included in a 
package that would require a disclaimer if distributed separately must 
contain the required disclaimer, even if they are included in a package 
with solicitations or other materials that already have a disclaimer. 
Questions have arisen in the past as to whether a single disclaimer per 
package would satisfy the purposes of this requirement.
    One commenter and witness at the hearing sought further 
clarification on how this will be interpreted. All items intended for 
separate distribution (e.g., a campaign poster included in a mailing of 
campaign literature) are covered by this requirement.
Televised Communications
    New paragraph (a)(5)(iii) responds to a commenter's request that 
the Commission incorporate into the text of these rules the Federal 
Communication Commission's [``FCC''] disclaimer size requirements for 
televised political advertisements concerning candidates for public 
office. These requirements, which are set forth at 47 CFR 
73.1212(a)(2)(ii), require in any such advertisement that the sponsor 
be identified with letters equal to or greater than four (4) percent of 
the vertical picture height that air for not less than four (4) 
seconds. The new rule states that disclaimers in a televised 
communication shall be considered clear and conspicuous if they meet 
these requirements.
    In Dalton Moore, 7 FCC Rcd 3587 (1992), the FCC explained that 
twenty (20) scan lines meets the four (4) percent requirement. Also, 
FCC staff has advised the Commission that the four (4) percent/twenty 
(20) lines requirement applies to each line of type, and that if the 
type is upper and lower case, the requirement applies to the smaller 
(lower case) type.
    One commenter, while correctly noting that the FCC and not the FEC 
has authority over these technical requirements, nevertheless requested 
that the Commission modify them. However, it is impossible for one 
agency to amend another's rules. Also, the FCC conducted a lengthy 
rulemaking, in which the FEC participated, before deciding that the 
current standards were appropriate. 57 FR 8279 (Mar. 9, 1992).
Exceptions
    New paragraph (a)(6) lists the exceptions to the general 
requirements. Former 11 CFR 110.11(a)(2) has been broken down into new 
paragraphs (a)(6)(i) and (a)(6)(ii), which address the ``small item'' 
and ``impracticable item'' exceptions, respectively. In addition, the 
``impracticable item'' provision, which formerly included ``skywriting, 
watertowers or other means of displaying an advertisement of such a 
nature that the inclusion of a disclaimer would be impracticable,'' has 
been amended to specifically include ``wearing apparel,'' such as T-
shirts or baseball caps, that contain a political message.
    While no comments were received on this issue, the question 
continues to arise as to whether such items require a disclaimer. Since 
in many instances it is impracticable to include disclaimers on wearing 
apparel, the Commission believes this further exception is appropriate.
    Consistent with the Notice, new paragraph (a)(6)(iii) clarifies 
that checks, receipts and similar items of minimal value that do not 
contain a political message and that are used for purely administrative 
purposes do not require a disclaimer.
Activities by Separate Segregated Funds or Their Connected 
Organizations
    New paragraph (a)(7) corresponds to former 11 CFR 
110.11(a)(1)(iv)(B). It exempts from the disclaimer requirements 
solicitations for contributions to an SSF from those persons the fund 
may solicit under the applicable provisions of 11 CFR part 114, or 
communications to such persons, because this does not constitute 
general public political advertising. This language encompasses 
mailings by a corporation or labor organization to the corporation's or 
labor organization's restricted class, as well as comparable activities 
conducted by membership organizations and trade associations pursuant 
to 11 CFR 114.7 and 114.8.

Other Issues

Disclaimers on the Internet

    In AO 1995-9, the Commission determined that Internet 
communications and solicitations that constitute general public 
political advertising require disclaimers as set forth in 2 U.S.C. 
441d(a) and former 11 CFR 110.11(a)(1). These communications and others 
that are indistinguishable in all material aspects from those addressed 
in the advisory opinion will now be subject to the requirements of 
paragraph (a)(1) of this section.

Disclaimers on ``Push Polls''

    Two commenters and several witnesses at the hearing discussed the 
possibility that the Commission require disclaimers on ``push polls.'' 
This term has generally been used to refer to phone bank activities or 
written surveys that provide false or misleading information about a 
candidate under the guise of conducting a legitimate poll. For example, 
if the person being polled states a preference for candidate X, the 
poll might ask whether X would still be the preferred choice if ``you 
knew he or she had a drunken driving record,'' ``a history of 
recreational drug use,'' ``was soft on crime,'' or the like. Such 
slanted surveys can result in both skewed poll results (if a poll is in 
fact conducted) and damage to the candidate's reputation.
    One of the commenters, Congresswoman Maloney, has introduced a 
bill, H.R. 324 in the 104th Congress, that would include phone banks in 
the listing of types of communications set forth in 2 U.S.C. 441d(a) 
that trigger the disclaimer requirements. As discussed above, the 
Commission proposed in the NPRM that phone banks be added to the 
comparable listing in the disclaimer rules, but during consideration of 
the final rules, the Commission did not reach a majority decision by 
the required four affirmative votes. Consequently, the final disclaimer 
rules do not apply to push polls conducted by using phone banks.
    The question of requiring disclaimers during telephone push polling 
also involves significant legal and constitutional issues that have not 
been put out for notice and comment as required by the Administrative 
Procedure Act at 5 U.S.C. 553. As noted by some of the witnesses, it 
may require amendments to the FECA before the Commission can take 
further action. For example, it does not appear that all push polls 
contain ``express advocacy'' or contribution solicitations, a critical 
point under these rules.
    Thus, the new regulations only require disclaimers for push polls 
that qualify as general public political advertising and that either 
contain a 

[[Page 52072]]
solicitation or express advocacy of a clearly identified candidate.

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

    The attached final regulations 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

11 CFR Part 110

    Campaign Funds, Political Candidates, Political Committees and 
Parties.

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

PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS

    1. The authority citation for 11 CFR Part 110 continues 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 is amended by revising paragraph (a) of section 110.11 
to read as follows:


Sec. 110.11  Communications; advertising (2 U.S.C. 441d).

    (a)(1) General rules. Except as provided at paragraph (a)(6) of 
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 broadcasting station, newspaper, magazine, 
outdoor advertising facility, poster, yard sign, direct mailing or any 
other form of general public political advertising, a disclaimer 
meeting the requirements of paragraphs (a)(1) (i), (ii), (iii), (iv) or 
(a)(2) of this section shall appear and be presented in a clear and 
conspicuous manner to give the reader, observer or listener adequate 
notice of the identity of persons who paid for and, where required, who 
authorized the communication.
    (i) Such communication, including any solicitation, if paid for and 
authorized by a candidate, an authorized committee of a candidate, or 
its agent, shall clearly state that the communication has been paid for 
by the authorized political committee; or
    (ii) Such communication, including any solicitation, if authorized 
by a candidate, an authorized committee of a candidate or an agent 
thereof, but paid for by any other person, shall clearly state that the 
communication is paid for by such other person and is authorized by 
such candidate, authorized committee or agent; or
    (iii) Such communication, including any solicitation, if made on 
behalf of or in opposition to a candidate, but paid for by any other 
person and not authorized by a candidate, authorized committee of a 
candidate or its agent, shall clearly state that the communication has 
been paid for by such person and is not authorized by any candidate or 
candidate's committee.
    (iv) For solicitations directed to the general public on behalf of 
a political committee which is not an authorized committee of a 
candidate, such solicitation shall clearly state the full name of the 
person who paid for the communication.
    (2) Coordinated Party Expenditures.
    (i) For a communication paid for by a party committee pursuant to 2 
U.S.C. 441a(d), the disclaimer required by paragraph (a)(1) 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.
    (ii) A communication made by a party committee pursuant to 2 U.S.C. 
441a(d) prior to the date the party's candidate is nominated shall 
satisfy the requirements of this section if it clearly states who paid 
for the communication.
    (3) Definition of ``direct mailing.'' For purposes of paragraph 
(a)(1) of this section only, ``direct mailing'' includes any number of 
substantially similar pieces of mail but does not include a mailing of 
one hundred pieces or less by any person.
    (4) Exempt Activities. For purposes of paragraph (a)(1) of this 
section only, 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). Such communications, unless 
excepted under paragraph (a)(6) of this section, shall clearly state 
who paid for the communication but do not have to include an 
authorization statement.
    (5) Placement of Disclaimer. The disclaimers specified in paragraph 
(a)(1) 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 the printing is difficult to read or if the placement is 
easily overlooked.
    (i) 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.
    (ii) Each communication that would require a disclaimer if 
distributed separately, that is included in a package of materials, 
must contain the required disclaimer.
    (iii) Disclaimers in a televised communication shall be considered 
clear and conspicuous if they appear in letters equal to or greater 
than four (4) percent of the vertical picture height that air for not 
less than four (4) seconds.
    (6) Exceptions. The requirements of paragraph (a)(1) of this 
section do not apply to:
    (i) bumper stickers, pins, buttons, pens and similar small items 
upon which the disclaimer cannot be conveniently printed;
    (ii) skywriting, watertowers, wearing apparel or other means of 
displaying an advertisement of such a nature that the inclusion of a 
disclaimer would be impracticable; or
    (iii) checks, receipts and similar items of minimal value which do 
not contain a political message and which are used for purely 
administrative purposes.
    (7) Activities by separate segregated fund or its connected 
organization. For purposes of paragraph (a)(1) of this section, 
whenever a separate segregated fund or its connected organization 
solicits contributions to the fund from those persons it may solicit 
under the applicable provisions of 11 CFR part 114, or makes a 
communication to those persons, such communication shall not be 
considered a form of general public political advertising and need not 
contain the disclaimer set forth in paragraph (a)(1) of this section.
* * * * *
    Dated: October 2, 1995.
Danny Lee McDonald,
Chairman.
[FR Doc. 95-24749 Filed 10-4-95; 8:45 am]
BILLING CODE 6715-01-M