[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