[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56268-56269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27640]



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FEDERAL ELECTION COMMISSION

11 CFR Part 9002

[Notice 1995-17]


Electoral College Expenditures

AGEncY: Federal Election Commission.

ACTION: Notice of Disposition of Petition for Rulemaking.

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SUMMARY: The Commission announces its disposition of a Petition for 
Rulemaking filed on November 18, 1994, by Anthony F. Essaye and William 
Josephson. The petition addressed treatment of a presidential 
candidate's receipts or disbursements regarding the Electoral College 
process and the process of electing the President and Vice President by 
the United States House of Representatives. The 

[[Page 56269]]
Commission has decided not to initiate a rulemaking on this topic at 
this time.

DATES: November 8, 1995.

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: On November 18, Anthony F. Essaye and 
William Josephson filed a petition for rulemaking seeking to clarify 
whether a presidential candidate's receipts or disbursements regarding 
the Electoral College process and the process of electing the President 
and Vice President by the United States House of Representatives are 
governed by the Federal Election Campaign Act [``FECA''], 2 U.S.C. 431 
et seq., or the Presidential Election Campaign Fund Act [``the Fund 
Act''], 26 U.S.C. 9001 et seq. The particular question raised was 
whether such disbursements count against publicly funded presidential 
candidates' general election expenditure limits established at 2 U.S.C. 
441a(b)(1) and (c).
    The Commission published a Notice of Availability [``NOA''] on Dec. 
8, 1994. 59 F.R. 63274. The Commission received comments from the 
Internal Revenue Service and the Republican National Committee in 
response to the NOA.
    The NOA stated that the Commission might incorporate the issues 
addressed in the rulemaking petition into a larger, then-ongoing 
rulemaking regarding the public funding of presidential primary and 
general election campaigns. However, the Commission subsequently 
decided to address these issues in a separate rulemaking document. 60 
F.R. 31854 (June 16, 1995).
    One commenter argued that the Commission does not have jurisdiction 
over the Electoral College and, therefore, neither the FECA nor the 
Fund Act applies to these expenditures. However, the Commission has the 
authority, and responsibility, to oversee a publicly funded candidate's 
qualified campaign expenses. This includes the responsibility to insure 
that any expenditures made to further a candidate's campaign for 
election, including those made in connection with the meeting of the 
Electoral College, are properly categorized and reported.
    Commission regulations at 11 CFR 100.2(a) define ``election'' as 
``the process by which individuals . . . seek nomination for election, 
or election, to Federal office.'' Under U.S. Const. art. II, sec. 1 and 
amend. XII, the meeting of the Electoral College, as well as any 
subsequent action by the House of Representatives that might become 
necessary to decide a presidential election, are part of that process. 
Similarly, under the Fund Act ``qualified campaign expense'' is defined 
for purposes of the general election as any expenditure ``[i]ncurred by 
the candidate of a political party for the office of President to 
further his election to such office.'' 26 U.S.C. 9002(11)(A), 11 CFR 
9002.11(a). The Commission believes that many expenditures incurred in 
connection with the meeting of the Electoral College and/or subsequent 
action by the House of Representatives fall within these definitions.
    The petition cites the exclusions from the definitions of 
``contribution'' and ``expenditure'' at 11 CFR 100.7(b)(20) and 
100.8(b)(20) of those disbursements made in connection with election 
contests and recounts as one basis for treating Electoral College 
expenses as outside the scope of both the FECA and the Fund Act. 
However, these exemptions refer to election contests and recounts, 
i.e., procedures that may be necessary to determine which candidate 
received the greatest number of votes in that state, not to Electoral 
College activity.
    The petition also argues that, since the Electoral College always 
meets more than 30 days after the November general election, the end of 
the general election ``expenditure report period'' established at 26 
U.S.C. 9002(12), the Fund Act does not apply to expenses incurred in 
connection with the Electoral College vote. The Electoral College meets 
on the first Monday after the second Wednesday in December, 3 U.S.C. 7; 
while the November general election is held on the Tuesday after the 
first Monday in November, 3 U.S.C. 1.
    In response to this argument, the Commission notes that in most 
instances a strategy for dealing with Electoral College concerns will 
likely be developed well before the general election, if it appears a 
close contest is in the offing, and almost certainly before the end of 
the expenditure report period. The Commission believes that many of 
these expenses may appropriately be considered qualified campaign 
expenses for purposes of the Fund Act.
    Also, the fact that an expense occurs more than 30 days after the 
November general election does not in and of itself mean that it is not 
covered by the Fund Act. For example, the Commission's regulations at 
11 CFR 9004.4(a)(4)(i) permit a candidate to make disbursements for the 
purpose of defraying winding down costs for a potentially lengthy 
period after the general election.
    On the other hand, the Commission recognizes that a potentially 
close Electoral College vote and/or subsequent action by the House of 
Representatives may generate unanticipated expenses at a time when 
campaigns will likely have already spent or budgeted nearly all of 
their available general election funds.
    This situation has not arisen since the enactment of the FECA and 
the Fund Act. It is difficult to anticipate all the potential issues 
that should be addressed in a rulemaking of this nature. The Commission 
believes the better approach is to deal with these issues on a case by 
case basis when and if they arise, rather than trying to promulgate 
general rules that may or may not prove appropriate in dealing with 
particular circumstances. Therefore, at its open meeting of November 2, 
1995, the Commission voted not to initiate a rulemaking at this time on 
treatment of a presidential candidate's receipts or disbursements 
regarding the Electoral College process and the process of electing the 
President and Vice President by the United States House of 
Representatives.

    Dated: November 3, 1995.
Lee Ann Elliott,
Vice Chairman.
[FR Doc. 95-27640 Filed 11-7-95; 8:45 am]
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