[Federal Register Volume 65, Number 235 (Wednesday, December 6, 2000)]
[Rules and Regulations]
[Pages 76138-76147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31013]


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FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 109 and 110

[Notice 2000--21]


General Public Political Communications Coordinated With 
Candidates and Party Committees; Independent Expenditures

AGENCY: Federal Election Commission.

ACTION: Final rule; transmittal of regulations to Congress.

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SUMMARY: The Federal Election Commission is adopting new rules to 
address expenditures for coordinated communications that include 
clearly identified candidates, and that are paid for by persons other 
than candidates, candidates' authorized committees, and party 
committees. The rules address expenditures for communications made at 
the request or suggestion of a candidate, authorized committee or party 
committee; as well as those where any such person has exercised control 
or decision-making authority over the communication, or has engaged in 
substantial discussion or negotiation with those involved in creating, 
producing, distributing or paying for the communication. The Commission 
is also revising the definition of ``independent expenditure,'' to 
conform with this new definition. Further changes to the rules on 
coordination between political party committees and their candidates 
are awaiting the outcome of a pending Supreme Court case. Additional 
information is provided in the supplementary information that follows.

DATES: Further action, including the announcement of an effective date, 
will be taken after these regulations have been before Congress for 30 
legislative days pursuant to 2 U.S.C. 438(d). A document announcing the 
effective date will be published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Ms. Rosemary C. Smith, Assistant 
General Counsel, or Ms. Rita A. Reimer, Attorney, 999 E Street, NW., 
Washington, D.C. 20463, (202) 694-1650 or (800) 424-9530 (toll free).

SUPPLEMENTARY INFORMATION: The Commission is issuing final rules at 11 
CFR 100.23 that address coordinated communications that include clearly 
identified candidates, that are paid for by persons other than 
candidates, candidates' authorized committees, and party committees. 
The rules address communications made at the request or suggestion of a 
candidate, authorized committee or party committee; as well as those 
where a candidate, authorized committee, or party committee has 
exercised control or decision-making authority over the communication, 
or has engaged in substantial discussion or negotiation with those 
involved in creating, producing, distributing or paying for the 
communication. Other than the requirement that covered communications 
include a clearly identified candidate, the new rules contain no 
content standard. The Commission is also revising its rules at 11 CFR 
100.16 and 109.1, which define ``independent expenditure,'' to conform 
with this new definition; and making conforming amendments to 11 CFR 
110.14, the section of the Commission's rules that deals with 
contributions to and expenditures by delegates and delegate committees.
    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 Title 2 of the United States Code be transmitted to the 
Speaker of the House of Representatives and the President of the Senate 
30 legislative days before they are finally promulgated. Because these 
rules were approved by the Commission on November 30, 2000, which is 
less than 30 legislative days before the adjournment of the 106th 
Congress, the Commission plans to transmit them to Congress on the 
first day of the 107th Congress, which will occur in January 2001. A 
Notice announcing the effective date of these rules will be published 
in the Federal Register.

Explanation and Justification

    The Federal Election Campaign Act, 2 U.S.C. 431 et seq. (``FECA'' 
or the ``Act'') prohibits corporations and labor organizations from 
using general treasury funds to make contributions to a candidate for 
federal office. 2 U.S.C. 441b(a). It also imposes limits on the amount 
of money or in-kind contributions that other persons may contribute to 
federal campaigns. 2 U.S.C. 441a(a). Individuals and persons other than 
corporations, labor organizations, government contractors and foreign 
nationals can make independent expenditures in connection with federal 
campaigns. 11 CFR 110.4(a) and 115.2. Independent expenditures must be 
made without cooperation or consultation with any candidate, or any 
authorized committee or agent of a candidate; and they shall not be 
made in concert with, or at the request or suggestion of, any 
candidate, or any authorized committee or agent of a candidate. 2 
U.S.C. 431(17).
    Expenditures that are coordinated with a candidate or campaign are 
considered in-kind contributions. Buckley v. Valeo, 424 U.S. 1, 46-47 
(1976) (footnote omitted) (``Buckley''); Federal Election Commission v. 
The Christian Coalition, 52 F.Supp.2d 45, 85 (D.D.C. 1999) (``Christian 
Coalition''). As such, they are subject to the limits and prohibitions 
set out in the Act. The Act defines ``contribution'' at 2 U.S.C. 431(8) 
to include any gift, subscription, loan, advance, or deposit of money 
or anything of value made by any person for the purpose of influencing 
any election for federal office.
    The Commission is promulgating new rules at 11 CFR 100.23 that 
define the term coordinated general public political communication. 
They generally follow the standard articulated by the United States 
District Court for the District of Columbia in the Christian Coalition 
decision, supra. This decision sets out at length the standards to be 
used to determine whether expenditures for communications by 
unauthorized committees, advocacy groups and individuals are 
coordinated with candidates or qualify as independent expenditures.

A. History of the Rulemaking

    This rulemaking was originally initiated to implement the Supreme 
Court's plurality opinion in Colorado Republican Federal Campaign 
Committee v. Federal Election Commission, 518 U.S. 604 (1996) (Colorado 
I) concerning the application of section 441a(d) of the FECA. In that 
decision, the Court concluded that political parties are capable of 
making independent expenditures on behalf of their candidates for 
federal office, and that it would violate the First Amendment to 
subject such

[[Page 76139]]

independent expenditures to the section 441a(d) expenditure limits. Id. 
at 2315.
    Section 441a(d) permits national, state, and local committees of 
political parties to make limited general election campaign 
expenditures on behalf of their candidates, which are in addition to 
the amount they may contribute directly to those candidates. 2 U.S.C. 
441a(d). These section 441a(d) expenditures are commonly referred to as 
``coordinated party expenditures.'' Prior to the Colorado case, it was 
presumed that party committees could not make expenditures independent 
of their candidates.
    The Commission notes that not all coordinated expenditures 
constitute communications. In fact, party committees may use their 
coordinated expenditure limits to pay for many other types of expenses 
incurred by candidates, including staff costs, polling and other 
services.
    Following the Colorado I Supreme Court decision, the Democratic 
Senatorial Campaign Committee and the Democratic Congressional Campaign 
Committee filed a Petition for Rulemaking urging the Commission to (1) 
repeal or amend 11 CFR 110.7(b)(4) to the extent that that paragraph 
prohibited national committees of political parties from making 
independent expenditures for congressional candidates; (2) repeal or 
amend 11 CFR Part 109 with respect to which expenditures qualify as 
``independent''; and (3) issue new rules to provide meaningful guidance 
regarding independent expenditures by the national committees of 
political parties. Although the Petition for Rulemaking urged changes 
only in the rules applicable to national committees of political 
parties, the Commission's rulemaking also sought comment on proposed 
changes to the provisions governing state and local party committees, 
as well as coordination by outside groups with either candidates or 
party committees.
    In response to the Colorado I decision, the Commission promulgated 
a Final Rule on August 7, 1996 which repealed paragraph (b)(4) of 
section 110.7. See 61 F.R. 40961 (Aug. 7, 1996). That paragraph had 
provided that party committees could not make independent expenditures 
in connection with federal campaigns. On the same date, the Commission 
also published a Notice of Availability (``NOA'') seeking comment on 
the remainder of the Petitioners'' requests. See 61 F.R. 41036 (Aug. 7, 
1996). No statements supporting or opposing the petition were received 
by the close of the comment period.
    On May 5, 1997 the Commission published an NPRM in which it sought 
comments on proposed revisions to these regulations. 62 FR 24367 (May 
5, 1997). Comments in response to this NPRM were received from Common 
Cause; the Democratic National Committee (``DNC''); the Democratic 
Senatorial Campaign Committee (``DSCC'') and the Democratic 
Congressional Campaign Committee (``DCCC'') (joint comment); the 
Internal Revenue Service (``IRS''); the National Republican 
Congressional Committee (``NRCC''); the National Republican Senatorial 
Committee (``NRSC''); the National Right to Life Committee; the 
Republican National Committee (``RNC''); and the United States Chamber 
of Commerce. On June 18, 1997, the Commission held a public hearing on 
this Notice, at which witnesses testified on behalf of Common Cause, 
the DNC, the DSCC and the DCCC, the National Right to Life Committee, 
the NRSC, and the RNC.
    The IRS found no conflict with the Internal Revenue Code or that 
agency's regulations with regard to any Notice considered in the course 
of this rulemaking. All other comments received in connection with this 
rulemaking will be discussed infra.
    The Commission subsequently decided to hold the 1997 rulemaking in 
abeyance until it received further direction from the courts. The 
coordinated spending limits were invalidated on constitutional grounds 
by the district court in Colorado Republican Federal Campaign Committee 
v. Federal Election Commission, 41 F. Supp. 2d 1197 (D. Colo. 1999) 
(Colorado II), on remand from the Colorado I Supreme Court decision. In 
May 2000, that decision was affirmed by the Court of Appeals for the 
Tenth Circuit. 213 F.3d 1221 (10th Cir. 2000). The Supreme Court has 
now agreed to review this decision. 2000 WL 1201886 (U.S. Oct. 10, 
2000) (No. 00-191).
    On December 16, 1998, the Commission published a new NPRM putting 
forth proposed amendments to its rules governing publicly financed 
presidential primary and general election candidates. 63 FR 69524 (Dec. 
16, 1998). Issues concerning coordination between party committees and 
their presidential candidates, which had been raised in the earlier 
NPRM, were addressed in the public funding rulemaking. For example, the 
1998 NPRM put forward narrative proposals regarding a content-based 
standard for coordinated communications made to the general public. It 
also sought comment on coordination between the national committees of 
political parties and their presidential candidates with respect to 
poll results, media production, consultants, and employees whose 
services are intended to benefit the parties' eventual presidential 
nominees.
    The Commission received seven written comments on coordinated 
expenditures in response to the 1998 NPRM. Commenters included the 
Brennan Center for Justice at New York University School of Law 
(``Brennan Center''); Common Cause and Democracy 21 (joint comment); 
the DNC; the James Madison Center for Free Speech; Perot '96; the RNC; 
and the law firm of Ryan, Phillips, Utrecht, & MacKinnon, and Patricia 
Fiori, Esq. (joint comment). The Commission subsequently reopened the 
comment period and held a public hearing on March 24, 1999, at which 
witnesses representing the DNC; the James Madison Center for Free 
Speech; the RNC; and Ryan, Phillips, Utrecht & MacKinnon presented 
testimony on coordination issues.
    On November 3, 1999, the Commission promulgated new paragraph (d) 
of section 110.7, addressing pre-nomination coordinated expenditures. 
64 FR 59606 (Nov. 3, 1999). The new paragraph states that party 
committees may make coordinated expenditures in connection with the 
general election campaign before their candidates have been nominated. 
It further states that all pre-nomination coordinated expenditures are 
subject to the section 441a(d) coordinated expenditure limitations, 
whether or not the candidate with whom they are coordinated receives 
the party's nomination. Please note that new Sec. 110.7(d) applies to 
all federal elections. For additional information, see Explanation and 
Justification for Section 110.7, Party Committee Coordinated 
Expenditures and Spending Limits (2 U.S.C. 441a(d)), 64 FR 42579, 
42580-81 (Aug. 5, 1999).
    The Commission published the document that serves as the primary 
basis for these final rules, a Supplemental Notice of Proposed 
Rulemaking (``SNPRM'') addressing general public political 
communications coordinated with candidates, on December 9, 1999. 64 FR 
68951 (Dec. 9, 1999). The Commission received 15 comments in response 
to the SNPRM, from the Alliance for Justice; the American Federation of 
Labor-Congress of Industrial Organizations (``AFL-CIO''); the Brennan 
Center; The Coalition; Common Cause and Democracy 21 (joint comment); 
the DNC; the DSCC and DCCC (joint

[[Page 76140]]

comment); the First Amendment Project of the Americans Back in Charge 
Foundation; the IRS; the James Madison Center for Free Speech; J. B. 
Mixon, Jr.; the National Education Association; the NRSC; the RNC; and 
United States Senators Russell D. Feingold, John McCain, Carl Levin and 
Richard J. Durbin (joint comment). In addition, the Commission held a 
public hearing on the SNPRM on February 16, 2000, at which nine 
witnesses testified on behalf of the Alliance for Justice, the AFL-CIO, 
the Americans Back in Charge Foundation, the Brennan Center, The 
Coalition, the DNC, the DSCC and DCCC, the James Madison Center for 
Free Speech, and the RNC.

B. The Christian Coalition Decision

    The Christian Coalition case arose out of an FEC enforcement action 
alleging coordination between the Christian Coalition and various 
federal campaigns in connection with the 1990, 1992, and 1994 
elections, resulting in disbursements from the Coalition's general 
corporate treasury for voter guides, ``get out the vote'' activities, 
direct mailings and payments to speakers. The Christian Coalition 
characterized these activities as independent corporate speech; while 
the FEC alleged that, because of the varying degrees of interaction 
between the Christian Coalition and those candidates and their 
campaigns, the activities must be treated as in-kind contributions that 
violated the Act's contribution limits and/or prohibitions.
    In setting out a working definition of ``coordination,'' the 
Christian Coalition court explained that ``the standard for 
coordination must be restrictive, limiting the universe of cases 
triggering potential enforcement actions to those situations in which 
the coordination is extensive enough to make the potential for 
corruption through legislative quid pro quo palpable without chilling 
protected contact between candidates and corporations and unions.'' 52 
F.Supp.2d at 88-89. The court continued, ``First Amendment clarity 
demands a definition of ``coordination'' that provides the clearest 
possible guidance to candidates and constituents, while balancing the 
Government's compelling interest in preventing corruption of the 
electoral process with fundamental First Amendment rights to engage in 
political speech and political association.'' Id. at 91. In its opinion 
the district court referred to ``expressive expenditures,'' as opposed 
to expenditures for other types of campaign support, and defined a 
``coordinated expressive expenditure'' as ``one for a communication 
made for the purpose of influencing a federal election in which the 
spender is responsible for a substantial portion of the speech and for 
which the spender's choice of speech has been arrived at after 
coordination with the campaign.'' Id. at 85, n. 45.
    The court went on to explain that ``an expressive expenditure 
becomes `coordinated,' where the candidate or her agents can exercise 
control over, or where there has been substantial discussion or 
negotiation between the campaign and the spender over a 
communication's: (1) Contents; (2) timing; (3) location, mode, or 
intended audience (e.g., choice between newspaper or radio 
advertisement); or (4) `volume' (e.g., number of copies of printed 
materials or frequency of media spots). `Substantial discussion or 
negotiation' is such that the candidate and spender emerge as partners 
or joint venturers in the expressive expenditure, but the candidate and 
spender need not be equal partners.'' Id. at 92. The court acknowledged 
that ``a standard that requires 'substantial' anything leaves room for 
factual dispute,'' but reasoned that the standard reflects a reasonable 
balance between possibly chilling some protected speech and the need to 
protect against the ``real dangers to the integrity of the electoral 
process'' expressive expenditures may present. Id.
    The district court then applied this standard to the challenged 
campaign activities. In most instances the court did not find 
coordination. For example, the court found no coordination between the 
Christian Coalition and the Bush-Quayle campaign in the preparation of 
voter guides in connection with the 1992 presidential campaign, 
explaining that, while the campaign was generally aware President Bush 
would compare favorably in the eyes of the target audience with the 
other candidates profiled in the guides, the campaign staff did not 
seek to discuss the issues that would be profiled or how they would be 
worded. Nor did they seek to influence the Coalition's decisions as to 
how many guides would be produced, and when and where they would be 
distributed. Id. at 93-95. Similarly, the fact that a Coalition 
official served as a volunteer in a 1994 House campaign and also made 
decisions as to where the Coalition's voter guides would be distributed 
in connection with that campaign did not amount to coordination where 
the official did not make his decisions based on any discussions or 
negotiations with the campaign for which he volunteered. Id. at 95-96. 
In contrast, the court found coordination where the Coalition provided 
a Senate campaign consultant with a commercially valuable mailing list. 
Id. at 96. The Commission subsequently decided not to appeal the 
district court's decision.

C. Other Court Decisions

    In Clifton v. Federal Election Commission, 114 F.3d 1309 (1st Cir. 
1997), cert. denied, 118 S.Ct. 1036 (1998) (``Clifton''), the United 
States Court of Appeals for the First Circuit ruled that coordination 
in the context of voter guides ``implie(s) some measure of 
collaboration beyond a mere inquiry as to the position taken by a 
candidate on an issue.'' 114 F.3d at 1311, citing Buckley, 424 U.S. at 
46-47 and n. 53 (1976). The court invalidated those portions of the 
Commission's voter guide regulations at 11 CFR 114.4(c)(5)(i) and 
(ii)(C) that limit any contact with candidates to written inquiries and 
replies, and generally require all candidates for the same office to 
receive equal space and prominence in the guide. Id. at 1317. The court 
also invalidated the Commission's voting record rules at 11 CFR 
114.4(c)(4) to the extent they could be read to prohibit mere inquiries 
to candidates. Id \1\ In Federal Election Commission v. Public Citizen, 
Inc., 64 F.Supp.2d 1327 (N.D. Ga. 1999), a federal district court 
followed the Clifton ``collaboration'' language in holding that 
contacts between a public interest group and a candidate made in 
connection with an advertising campaign to defeat a candidate for the 
House of Representatives were not coordinated for FECA purposes. The 
Commission did not appeal that portion of the Public Citizen decision 
that addresses the coordination standard.
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    \1\ On July 20, 1999, the Commission received a Petition for 
Rulemaking from the James Madison Center for Free Speech, on behalf 
of the Iowa Right to Life Committee, seeking repeal of the rules at 
11 CFR 114.4(c)(4) and (c)(5) to reflect the Clifton decision. The 
Commission published an NOA on this petition on Aug. 25, 1999. 64 FR 
46319 (Aug. 25, 1999). Further action on that petition, which is 
related to the issues addressed in this rulemaking, will be taken by 
the Commission after this rulemaking has been concluded.
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D. General Concerns Raised by Commenters

    The commenters and witnesses raised several general points in 
connection with the SNPRM. Several noted that the FECA does not use the 
terms ``coordinated'' or ``coordination'' in discussing campaign 
contributions and expenditures. This regulation uses the single term 
``coordination'' to encompass those expenditures described in 2 U.S.C. 
441a(a)(7)(B)(i) as made ``in cooperation, consultation, or

[[Page 76141]]

concert with, or at the request or suggestion of, a candidate.'' The 
statutory terms are not inherently clear, nor does the Act's 
legislative history provide much guidance. Thus, these rules will fill 
what is largely a vacuum in this area. All of the commenters, 
regardless of the positions they espoused, asked the Commission to 
issue clear rules that provide the regulated community with sufficient 
guidance to easily understand which communications come within the 
definition.
    One commenter, citing Buckley, 424 U.S. at 48 (1976), argued that 
the Commission was powerless to act in this area, because it had not 
shown that covered communications involved actual corruption between 
those making the communications in question and the recipient 
candidates. However, after the SNPRM was published, the Supreme Court's 
decision in Nixon v. Shrink Missouri Government PAC, 120 S.Ct. 897 
(2000) (Shrink Missouri) upheld the constitutionality of State 
contribution limits, which the Court said could be based, inter alia, 
on newspaper accounts that inferred the impropriety of large 
contributions. Id. at 907. While some commenters argued that the 
holding in Shrink Missouri is limited to non-federal contributions, 
others stated that, in their view, this decision vitiates the need for 
the Commission to find quid pro quo corruption in a particular case 
before taking action in this area. The Commission agrees with this 
latter view, that the holding in Shrink Missouri is applicable to 
federal contribution limits.

E. Content of Covered Communications

    Several commenters urged the Commission to limit the definition of 
general public political communications to communications that contain 
``express advocacy'' of the election or defeat of a clearly identified 
candidate, i.e., those covered by the Commission's definition of 
``express advocacy'' as defined at 11 CFR 100.22(a). That paragraph 
requires the use of individual words or phrases that, in context, can 
have no other reasonable meaning than to urge the election or defeat of 
one or more clearly identified candidate(s). They argued that express 
advocacy is constitutionally required even for communications 
specifically requested by a candidate to benefit the candidate's 
campaign. Other commenters, citing the definition of ``independent 
expenditure'' at 2 U.S.C. 431(17), supra, argued that any contact with 
a candidate or campaign should result in coordination.
    Several commenters urged the Commission to limit the definition of 
general public political communications to communications that refer to 
clearly identified candidates in their status as candidates, or 
otherwise refer to an election. They noted, for example, that Members 
of Congress run for office virtually full-time, and argued that 
communications that referred to them in passing should not be subject 
to this standard.
    The Buckley Court emphasized the necessity of avoiding vague or 
overbroad regulation of political speech. 424 U.S. at 42-44, 77-80. In 
light of these constitutional concerns, the Commission's goal in 
adopting Sec. 100.23 is to establish a test that (1) provides 
reasonable certainty as to which communications between a person and a 
candidate or a party committee rise to the level of coordination; and 
(2) properly balances the Commission's ``interest in unearthing 
disguised contributions,'' Clifton, 114 F.3d at 1315, with the right of 
the citizenry to engage in discussions about public issues with 
candidates. Buckley, 424 U.S. at 14.
    The Commission is addressing the constitutional concerns raised in 
Buckley by creating a safe harbor for issue discussion. Section 
100.23(d) makes it clear that a candidate's or political party's 
response to an inquiry regarding the candidate's or party's position on 
legislative or public policy issues will not suffice to establish 
coordination. In addition, the Commission's new rules establish a 
``buffer zone'' for protected speech by requiring that discussions or 
negotiations regarding certain aspects of a communication must be 
``substantial'' and result in ``collaboration or agreement'' in order 
to rise to the level of coordination. See Sec. 100.23(c)(2)(iii). At a 
minimum, this new rule is more protective of First Amendment rights 
than the standard it is replacing.
    The Commission is not adopting any content standard as a part of 
these rules at this time. There were significant disagreements among 
commenters over what content standard, if any, should be adopted. There 
is a substantial argument that any of the content standards suggested 
could be under-inclusive in the context of coordination. Some 
advertising by campaigns, for instance, does not include express 
advocacy and does not refer specifically to candidates as candidates or 
state that they are running for election. Allowing candidates, 
campaigns and political parties to ask corporations, labor unions or 
other persons to sponsor that kind of advertising without limit or 
disclosure could ``give short shrift to the government's compelling 
interest in preventing real and perceived corruption that can flow from 
large campaign contributions.'' Christian Coalition, 52 F.Supp.2d at 
88.
    The argument that a communication must constitute express advocacy 
in order to fall within the definition of ``expenditure,'' 2 U.S.C. 
431(9), in all circumstances (and thus be controlling for purposes of 
defining a ``coordinated expenditure'') is not being addressed in this 
rulemaking. See Republican National Committee v. Federal Election 
Commission, 1:98CV1207 (June 25, 1998 D. D.C.) (slip op.), aff'd, No. 
98-5263 (D.C. Cir. Nov. 6, 1998). The term ``expenditure'' includes any 
purchase, payment, distribution, loan, advance, deposit, or gift of 
money or anything of value, made by any person for the purpose of 
influencing any election for Federal office. Exceptions to this 
definition are set forth at section 431(9)(B).
    A content element in the definition of coordination may be more 
useful in the context of political party communications coordinated 
with candidates, a topic which will be addressed in a subsequent phase 
of this rulemaking. In the party-candidate context the principal 
question could become how an expenditure is reported rather than how it 
is financed or whether it is reported at all. The Commission may 
revisit the issue of a content standard for all coordinated 
communications when it considers candidate-party coordination.

Section 100.16 Definition of ``independent expenditure''

    The Commission is amending the definition of independent 
expenditure in this section to track more closely the statutory 
definition of independent expenditure. See 2 U.S.C. 431(17). It is also 
adding a conforming amendment, to indicate that the meaning of the 
phrase ``made with the cooperation of, or in consultation with, or in 
concert with, or at the request or suggestion of, a candidate or any 
agent or authorized committee of such candidate,'' is now governed by 
11 CFR 100.23, discussed infra, instead of former 11 CFR 109.1(b)(4), 
which has been repealed. Finally, a new cross reference to 11 CFR 109.1 
alerts readers to the additional information on independent 
expenditures contained in that section.

Section 100.23 Coordinated General Public Political Communications

    The Commission is adding a new section, 11 CFR 100.23, to its 
rules, to address expenditures for coordinated communications made for 
the purpose of influencing federal elections that are

[[Page 76142]]

paid for by persons other than candidates, candidates' authorized 
committees, and party committees. The Commission believes it is 
appropriate to place this language in a separate section of the rules 
to properly alert the regulated community of this standard.
    New Sec. 100.23 generally follows the language of the Christian 
Coalition decision, discussed above. The Commission is, however, using 
the phrase ``expenditures for general public political communications'' 
in place of ``expressive expenditure,'' the term used by the Christian 
Coalition court, because these rules do not address the content 
standard analysis in Christian Coalition, and ``expenditures for 
general public political communications'' more precisely describes the 
types of communications covered by these rules. See discussion of 
Sec. 100.23(c)(1), infra.
    There was no consensus among the comments and witnesses as to 
whether the Commission should follow the approach set forth in 
Christian Coalition. Some favored this overall approach although they 
urged the Commission to limit coverage to communications that contained 
express advocacy. As explained above, the rules do not address this 
further limitation. Others opposed this approach, urging retention of a 
broad definition of coordination.
    Although the final rules have been modified somewhat from those 
proposed in the SNPRM, the Commission continues to believe that the 
Christian Coalition court correctly decided which communications are 
``coordinated'' in this context. While the court recognized that it was 
establishing a difficult standard to meet, the Commission believes the 
court correctly concluded that a high standard is required to safeguard 
protected core First Amendment rights.

Section 100.23(a) Scope

    Paragraph (a)(1) of this section states that these new rules apply 
to expenditures for general public political communications paid for by 
separate segregated funds, nonconnected committees, individuals, or any 
other person except candidates, authorized committees, and party 
committees. Paragraph (a)(2) notes that coordinated party expenditures 
made on behalf of a candidate pursuant to 2 U.S.C. 441a(d) are governed 
by 11 CFR 110.7.
    In the SNPRM, the Commission sought comments on whether the 
standard for coordination proposed in that document should be applied 
to political party expenditures for general public political 
communications that are coordinated with particular candidates. All 
party committees that commented on the SNPRM argued that they should 
not be covered by these rules. They urged the Commission to wait until 
Colorado II has been decided before acting in that area, since that 
decision could have major ramifications for any rules that might have 
been adopted in the meantime.
    In light of Colorado II, the Commission is not amending the rules 
in 11 CFR 110.7 governing coordinated expenditures between party 
committees and candidates at this point. The Commission expects that 
additional guidance will be forthcoming in that decision, at which time 
it will re-examine this aspect of the rulemaking.

Section 100.23(b) Treatment of General Public Political Communications 
as Expenditures and Contributions

    As explained above, for purposes of the FECA, a coordinated 
expenditure is considered both an expenditure by the person making the 
expenditure and an in-kind contribution to the recipient candidate or 
political committee. Consistent with such treatment, paragraph (b) of 
Sec. 100.23 states that any expenditure covered by these rules shall be 
treated as both an expenditure under 11 CFR 100.8(a) and an in-kind 
contribution under 11 CFR 100.7(a)(1)(iii). As such, it is subject to 
the contribution limits of 2 U.S.C. 441a and must be reported as both a 
contribution and an expenditure as required at 2 U.S.C. 434. Please 
note that the new rules apply not only to situations in which separate 
segregated funds and nonconnected committees coordinate their 
expenditures with candidates, but also where they coordinate with party 
committees, thus clarifying that party committees can themselves 
receive coordinated contributions.

Section 100.23(c) Coordination With Candidates and Party Committees

    This paragraph contains the text of the coordination standard: it 
addresses what contact between a campaign and a person paying for a 
communication made in connection with that campaign is sufficient to 
bring that communication within the purview of these rules. Please note 
that the standards set forth in paragraphs (2)(i), (2)(ii) and (2)(iii) 
are alternatives. Communications that meet the standard established by 
any one of these paragraphs are considered coordinated general public 
political communications for purposes of these rules.
    The SNPRM proposed alternative language for the introductory text 
of this paragraph. Both Alternatives, designated Alternative 1-A and 
Alternative 1-B, stated that general public political communications 
would be considered coordinated if paid for by any person other than a 
candidate, the candidate's authorized committee, or a party committee, 
provided that the requirements set forth in paragraphs (c)(2)(i), 
(c)(2)(ii), or (c)(2)(iii) of this section, infra, were met. 
Alternative 1-B would have added an additional requirement before a 
communication be considered coordinated, namely that it be distributed 
primarily in the geographic area in which the candidate was running. 
Alternative 1-A omitted this geographical restriction.
    The SNPRM explained that Alternative 1-B was intended to ensure 
that costs of national legislative campaigns that refer to clearly-
identified candidates, and may be designed or endorsed by one or more 
of the named candidates, not be considered expenditures on behalf of 
those candidates' campaigns. The Commission noted, however, two 
concerns with Alternative 1-B: (1) The definition of ``coordination'' 
would exclude media broadcasts to several adjacent states; and (2) the 
definition of ``coordination'' would exclude communications 
disseminated in one state that solicit funds on behalf of a candidate 
running in another state, if contributors are asked to send their 
contributions directly to the candidate on whose behalf they are made.
    One commenter pointed out that a geographic limit has nothing to do 
with the concept of coordination. No one addressed the Commission's 
concern that Alternative 1-B would allow persons to solicit 
contributions to be sent directly to candidates in another state, 
without these contributions being considered coordinated. The 
Commission is adopting Alternative 1-A, because the geographic 
restriction does not get at the question of whether the parties 
coordinated a communication.
    Please note that, in the SNPRM, the requirement at paragraph (1) of 
this section that covered communications be paid for by any person 
other than the candidate, the candidate's authorized committee, or a 
party committee, was included as part of the introductory text. For 
clarity, the Commission has decided to place this language in a 
separate paragraph.

Section 100.23(c)(2)(i) The ``Request or Suggestion'' Standard

    The Commission also sought comment on two alternatives of a 
provision, to be located in paragraph (c)(2)(i), which addressed

[[Page 76143]]

communications made at the request or suggestion of the candidate or 
campaign, and those authorized by a candidate or campaign. Alternative 
2-A stated that coordination would occur when a communication is 
created, produced or distributed at the request or suggestion of, or 
when authorized by, a candidate, candidate's authorized committee, a 
party committee, or an agent of any of the foregoing. Alternative 2-B 
would have limited such coordination to those instances where the 
parties also discuss the content, timing, location, mode, intended 
audience, volume of distribution or frequency of placement of that 
communication, the result of which is collaboration or agreement.
    One commenter urged the Commission to adopt Alternative 2-A, 
because it is consistent with the statutory language. Another found 
even Alternative 2-B to be overly broad. A party committee argued that 
the definition was overly broad as applied to party committees; 
however, as discussed above, that portion of the rulemaking has been 
held in abeyance pending the Supreme Court's decision in Colorado II.
    The Commission is adopting an amended version of Alternative 2-A 
because it is more consistent with the FECA than Alternative 2-B. 
Section 441a(a)(7)(B)(i) states that ``expenditures made by any person 
in cooperation, consultation, or concert, with, or at the request or 
suggestion of, a candidate, * * * shall be considered to be a 
contribution to such candidate.'' The new rule also reflects the 
following language in the Christian Coalition decision: ``The fact that 
the candidate has requested or suggested that a spender engage in 
certain speech indicates that the speech is valuable to the candidate, 
giving such expenditures sufficient contribution-like qualities to fall 
within the Act's prohibition on contributions.'' 52 F.Supp.2d at 91. 
The Commission has accordingly decided to adopt an amended version of 
Alternative 2-A, so that a communication made at the request or 
suggestion of a candidate will be considered to be coordinated with 
that candidate, regardless of whether any of the further contacts that 
would have been required by Alternative 2-B took place. The Commission 
emphasizes that this regulation encompasses only requests or 
suggestions for communications to the general public. Thus, a general 
appeal for support would clearly not fall within the scope of this 
regulation.
    The proposed rules indicated that general public political 
communications authorized by candidates or party committees would be 
considered to be coordinated. The final coordination rules do not cover 
authorized communications, because these expenditures are already in-
kind contributions to the candidates or party committees under 11 CFR 
100.7(a)(1)(iii), and thus are not mentioned in the statutory 
definition of ``independent expenditure'' at 2 U.S.C. 431(17). Thus, if 
these communications contain express advocacy or solicit contributions, 
they must state who paid for them, and if applicable, that they are 
authorized by the candidate or the candidate's committee. See 11 CFR 
110.11(a)(1).
    The SNPRM sought comments on a hypothetical in which, shortly 
before an election, a candidate complained to a supporter that no one 
had publicized various problems in the personal life of his opponent. 
The supporter then ran such advertisements. Most of those who commented 
on this hypothetical thought this hypothetical should fall within the 
``request or suggestion'' language. However, some witnesses said that 
it would not be considered coordinated under either Alternative 2-A or 
2-B, and urged the Commission to revise the proposed regulation to 
ensure that such communications would in fact be considered 
coordinated. The Commission notes that this hypothetical turns on the 
precise language used, which would be needed to determine if in fact 
the candidate requested or suggested that the supporter run the 
advertisements in question. If the candidate made no request or 
suggestion, the communication would not be coordinated for purposes of 
these rules.
    In determining whether a particular statement by a candidate or 
committee constitutes an appeal for an in-kind contribution in the form 
of a general public political communication, the Commission will 
consider both whether the requested action appears to be for the 
purpose of influencing a Federal election and the specificity of the 
request or suggestion. Such determinations would turn on the same 
factors addressed specifically in the ``substantial discussion'' 
standard, infra, with the principal difference being that a request or 
suggestion could be made by a candidate, authorized committee or party 
committee without any negotiation or immediate response from an outside 
group. If such a request or suggestion indicated that a communication 
with specified content would be valuable or important to a candidate or 
committee, then payments for the communication would constitute in-kind 
contributions.
    One commenter proposed an additional hypothetical, in which a 
candidate's campaign committee chose to target only urban areas with 
campaign advertisements because it could not afford to cover the entire 
State. The director of a rural Political Action Committee (``PAC'') 
later met the campaign manager and asked whether the campaign would be 
running ads in rural areas. Told that it would not be, due to lack of 
money, the rural PAC paid for and distributed the ads. The Commission 
notes that this mailing would be covered by 11 CFR 109.1(d)(1), part of 
the Commission's definition of independent expenditures, which states 
that the financing or dissemination, distribution, or republication of 
any campaign materials prepared by a candidate, campaign committee or 
their authorized agent is a contribution by the person making the 
expenditure, but not an expenditure by the candidate or committee 
unless coordination is present. See also 11 CFR 100.7(a)(1)(iii).

Section 100.23(c)(2)(ii) The ``Control or Decision-Making'' Standard

    Paragraph (c)(2)(ii) states that communications are coordinated if 
the candidate or the candidate's agent, or a party committee or its 
agent, has exercised control or decision-making authority over the 
content, timing, location, mode, intended audience, volume of 
distribution, or frequency of placement of the communication. This 
standard is based on the Christian Coalition definition, 52 F.Supp.2d 
at 92; and it, too, would turn on the specific actions involved in each 
case. The commenters did not focus extensively on this portion of the 
proposed definition.

Section 100.23(c)(2)(iii) The ``Substantial Discussion or Negotiation'' 
Standard

    Under 11 CFR 100.23, a general public political communication is 
considered coordinated if it is made after substantial discussion or 
negotiation between the creator, producer or distributor of the 
communication, or person paying for the communication, and a candidate, 
candidate's authorized committee or a party committee, regarding the 
content, timing, location, mode, intended audience, volume of 
distribution or frequency of placement of that communication, the 
result of which is collaboration or agreement. The paragraph further 
provides that substantial discussion or negotiation

[[Page 76144]]

can be evidenced by one or more meetings, conversations or conferences 
regarding the value or importance of that communication for a 
particular election.
    Some commenters expressed uncertainty about the scope of 
``substantial,'' which admittedly ``leaves room for factual dispute.'' 
Christian Coalition, 52 F.Supp.2d at 92. By including the word 
``substantial,'' the Commission intends to make clear that whether or 
not ``discussions or negotiations'' satisfy the requirements of 
Sec. 100.23(c)(2)(iii) will depend not on their frequency but on their 
substance. The ``substance'' must go beyond protected issue discussion 
to specific information about how to communicate an issue in a way that 
is valuable or important for the campaign. The Commission has concluded 
that when the topic of discussion turns from the candidate's views on a 
political issue to the candidate's views on how to communicate that 
issue, there is far greater likelihood of collaboration. Thus, numerous 
discussions with a campaign about a complex or controversial public 
issue would not be considered ``substantial'' for the purposes of 
paragraph (c)(2)(iii), but a brief discussion as to how to phrase an 
issue, or as to which issues to emphasize, could be considered 
``substantial.''
    The word ``substantial'' applies not only to discussions about the 
content of a communication, but also to discussions about the timing, 
location, mode, intended audience, volume of distribution or frequency 
of placement of a communication. In those circumstances, 
``substantial'' is meant to exclude discussions that do not include 
enough specific information for collaboration or agreement to occur. 
For example, if a person states that he is planning to pay for a 
communication ``soon,'' or to run the ad ``on TV,'' without further 
probing from the campaign, this would not be considered 
``substantial.''
    The Commission recognizes, as did the Christian Coalition court, 
that use of the term ``substantial'' means that determinations 
involving this standard will likely be fact-specific. 52 F.Supp.2d at 
92. Those seeking additional guidance as to the application of this 
standard to specific facts and circumstances are encouraged to make use 
of the Commission's advisory opinion process. See 2 U.S.C. 437f and 11 
CFR Part 112.

Section 100.23(d) Exception

    Consistent with Buckley, Christian Coalition, and Clifton, 
paragraph (d) of new section 100.23 provides that a candidate's or 
political party's response to an inquiry regarding the candidate's or 
the party's position on legislative or public policy issues does not 
alone make the communication coordinated.
    Several commenters urged the Commission to broaden this exception 
to include, for example, public policy announcements or communications 
disseminated as part of a public policy debate; and legislative 
lobbying campaigns, including grass roots lobbying. While the 
Commission is generally sympathetic to these concerns, it can be 
difficult to distinguish between lobbying activities and electoral 
campaigning. As the Buckley Court explained, ``(T)he distinction 
between discussion of issues and candidates and advocacy of election or 
defeat of candidates may often dissolve in practical application.'' 424 
U.S. at 42. Further, some of these communications may have components 
that could trigger application of these rules. Thus the Commission is 
not enacting the blanket exception recommended by these commenters. 
However, the Commission stresses that such contacts, while not 
receiving a blanket exception, do not necessarily result in 
coordination. The test of 11 CFR 100.23 (c) must still be met.

Section 100.23(e) Definitions

    This paragraph defines the terms ``general public political 
communications,'' ``clearly identified,'' and ``agent'' for purposes of 
these rules. The term ``general public political communications'' 
includes those made through a broadcasting station, including a cable 
television operator; newspaper; magazine; outdoor advertising facility; 
mailing or any electronic medium, including over the Internet or on a 
web site. Including cable television broadcasts is consistent with the 
Commission's candidate debate regulations at 11 CFR 110.13(a)(2), while 
including communications made over the Internet reflects the expanding 
role of that medium in federal campaigns.
    The definition is limited to those communications having an 
intended audience of over one hundred people. The exclusion of 
communications with an intended audience of one hundred people or fewer 
mirrors the Commission's disclaimer rules at 11 CFR 110.11(a)(3), which 
exempt from the disclaimer requirements direct mailings of one hundred 
pieces or less.
    The term ``general public political communication'' is similar to 
the term ``general public political advertising,'' which appears in 
three places in the Act and in several sections of the regulations. The 
latter term has similar and generally consistent meanings in the Act 
and the Commission's rules. For example, the definitions of 
``contribution'' and ``expenditure'' at 2 U.S.C. 431(8)(B)(v) and 
431(9)(B)(iv) respectively refer to ``broadcasting stations, 
newspapers, magazines, or similar types of general public political 
advertising.'' Section 441d(a) of the Act, which addresses 
communications that require a disclaimer, includes the same list and 
adds outdoor advertising facilities and direct mailings. The 
corresponding rules are found at 11 CFR 100.7(b)(9) (definition of 
``contribution''), 100.8(b)(10) (definition of ``expenditure''), and 
110.11(a)(1) (communications requiring disclaimers). The Commission 
therefore believes this term is preferable to ``expressive 
communications,'' the term used in the Christian Coalition decision.
    The Commission sought comments on a hypothetical in which a Savings 
and Loan League runs public service announcements intended to reinforce 
the public's confidence in the safety of deposits in savings and loan 
institutions. The announcements, which are run in January of an 
election year, feature a U.S. Senator who is a candidate for 
reelection. The commenters who discussed this hypothetical argued that 
the announcements should not be considered coordinated general public 
political communications, both because of the timing of the 
announcements, early in an election year, and because they had no 
electoral content. Although the Commission is not including a specific 
time period prior to an election in the text of the new rules, timing 
is an element of coordination in 11 CFR 100.23(c)(2)(ii) and (iii). The 
Christian Coalition decision supports the idea that the timing of a 
communication is one aspect of whether it is coordinated with a 
campaign. Christian Coalition, 52 F.Supp. 3d at 92. However, as 
discussed above, the Commission does not believe that the lack of 
electoral content is controlling.
    This is another situation that would turn on the specific facts. 
See discussion of the first hypothetical discussed in connection with 
paragraph (c)(2)(i), supra.

Section 100.23(e)(2) Definition of ``Clearly Identified''

    The new rules at 11 CFR 100.23(b) limit their coverage to 
communications that include a ``clearly identified candidate.'' 
Paragraph (e)(2) of Sec. 100.23 explains that the term ``clearly 
identified candidate'' has the same

[[Page 76145]]

meaning as that in 11 CFR 100.17, which is based on 2 U.S.C. 431(18). 
Thus, it includes communications where the candidate's name, nickname, 
photograph, or drawing appears, or the identity of the candidate is 
otherwise apparent through an unambiguous reference such as ``the 
President,'' ``your Congressman,'' or ``the incumbent,'' or through an 
unambiguous reference to his or her status as a candidate such as ``the 
Democratic Presidential nominee'' or ``the Republican candidate for 
Senate in the State of Georgia.''

Section 100.23(e)(3) Definition of ``Agent''

    This paragraph notes that the definition of ``agent'' for purposes 
of these new rules is identical to that found at 11 CFR 109.1(b)(5), 
part of the rules defining independent expenditures. The term ``agent'' 
in this context means any person who has actual oral or written 
authority, either express or implied, to make or to authorize the 
making of expenditures on behalf of a candidate; or any person who has 
been placed in a position within the campaign organization where it 
would reasonably appear that in the ordinary course of campaign-related 
activities he or she may authorize expenditures. The Commission is 
including this cross reference in 11 CFR 100.23 to clarify that the 
term has the same meaning in the context of coordinated general public 
political communications.

Section 109.1 Independent Expenditures

    In its 1997 NPRM, the Commission sought comment on several proposed 
revisions to this section, which defines the term ``independent 
expenditure.'' The commenters and witnesses who addressed this issue at 
the Commission's 1997 public hearing had equally wide-ranging views 
this issue. However, those events took place prior to the Christian 
Coalition decision, which the Commission has determined should serve as 
the basis for this definition.
    The Commission is amending the definition of ``independent 
expenditure'' in paragraph (a) to track more closely the statutory 
definition of independent expenditure. See 2 U.S.C. 431(17). In 
addition, the Sec. 109.1(a) Commission has included a cross-reference 
11 CFR 100.23, to indicate that the meaning of the phrase ``made with 
the cooperation of, or in consultation with, or in concert with, or at 
the request or suggestion of, a candidate or any agent of authorized 
committee of such candidate,'' is now clarified by Sec. 100.23, instead 
of by former paragraph (b)(4) of Sec. 109.1. The Commission is deleting 
paragraph (b)(4) because the standards for coordination set forth in 
that section were overbroad. See Christian Coalition, 52 F.Supp. at 90.
    Former Sec. 109.1(b)(4) explained what was meant by the phrase, 
``made with the cooperation or with the prior consent of, or in 
consultation with, or at the request or suggestion of, a candidate, or 
any agent, or authorized committee of the candidate.'' It indicated 
that this covered ``any arrangement, coordination, or direction by the 
candidate or his or her agent prior to the publication, distribution, 
display, or broadcast of the communication.'' This phrase has been 
clarified, consistent with the Christian Coalition decision, and moved 
to new 11 CFR 100.23(c)(2).
    Former paragraph (b)(4) also addressed contacts between the 
campaign and the person making the expenditure. For example, it 
included, at former paragraph (b)(4)(i)(A), a presumption that 
coordination applied to expenditures ``based on information about the 
candidate's plans, projects, or needs provided to the expending person 
by the candidate, or by the candidate's agents, with a view toward 
having an expenditure made.'' The Christian Coalition court, likening 
this regulation to an ``insider trading'' standard, held it to be 
overbroad. 52 F.Supp. 2d at 89-91. The Commission is accordingly 
revising this paragraph to explain that a communication is ``made with 
the cooperation of, or in consultation with, or at the request or 
suggestion of, a candidate or any agent or authorized committee of such 
candidate'' if it is a coordinated general public political 
communication under 11 CFR 100.23.

Section 110.14 Contributions To and Expenditures By Delegates and 
Delegate Committees

    This section of the Commission's rules sets forth the prohibitions, 
limitations and reporting requirements under the Act applicable to all 
levels of a delegate selection process. Paragraphs (f)(2)(i), 
(f)(2)(ii), (f)(3)(iii), (i)(2)(i), (i)(2)(ii), and (i)(3)(iii) address 
independent expenditures and in-kind contributions. The Commission is 
making conforming amendments to these paragraphs to reflect new 11 CFR 
100.23 and revised 11 CFR 109.1.

Advisory Opinions Superseded

    The Commission has in the past issued Advisory Opinions (``AO'') 
that employed a broader definition of ``coordination'' than is 
contained in these new rules. Many of these AOs addressed the ``insider 
trading'' situation in which a campaign employee later became involved, 
or sought to become involved, with an entity that wished to make 
independent expenditures. This prohibition was found to be overly broad 
by the Christian Coalition court. See discussion of revised 11 CFR 
109.1(b)(4), supra, which has been rewritten to reflect that aspect of 
the decision. The following AOs are superseded, to the extent they 
conflict with these new rules: AOs 1999-17, 1998-22, 1996-1, 1993-18, 
1982-20, 1980-116, 1979-80.

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

    The Commission certifies that these rules will not have a 
significant economic impact on a substantial number of small entities. 
The basis for this certification is that the rules follow court 
decisions that expand the definition of certain coordinated 
communications made in support of or in opposition to clearly 
identified federal candidates. The rules also permit, but do not 
require, small entities to make independent expenditures. Therefore, 
there will be no significant economic impact on a substantial number of 
small entities.

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 109

    Elections, Reporting and recordkeeping requirements.

11 CFR Part 110

    Campaign funds, Political committees and parties.

    For the reasons set out in the preamble, Subchapter A, Chapter I of 
title 11 of the Code of Federal Regulations is amended to read as 
follows:

PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)

    1. The authority citation for Part 100 continues to read as 
follows:

    Authority: 2 U.S.C. 431, 434(a)(11), and 438(a)(8).

    2. Section 100.16 is revised to read as follows:


Sec. 100.16  Independent expenditure (2 U.S.C. 431(17)).

    The term independent expenditure means an expenditure by a person 
for a communication expressly advocating the election or defeat of a 
clearly identified candidate that is not made with the cooperation of 
or in consultation with, or in concert with, or

[[Page 76146]]

at the request or suggestion of, a candidate or any agent or authorized 
committee of such candidate. A communication is ``made with the 
cooperation of, or in consultation with, or in concert with, or at the 
request or suggestion of, a candidate or any agent or authorized 
committee of such candidate'' if it is a coordinated general public 
political communication under 11 CFR 100.23. See 11 CFR 109.1.

    3. Section 100.23 is added to read as follows:


Sec. 100.23  Coordinated General Public Political Communications.

    (a) Scope.
    (1) This section applies to expenditures for general public 
political communications paid for by persons other than candidates, 
authorized committees, and party committees.
    (2) Coordinated party expenditures made on behalf of a candidate 
pursuant to 2 U.S.C. 441a(d) are governed by 11 CFR 110.7.
    (b) Treatment of expenditures for general public political 
communications as expenditures and contributions. Any expenditure for 
general public political communication that includes a clearly 
identified candidate and is coordinated with that candidate, an 
opposing candidate or a party committee supporting or opposing that 
candidate is both an expenditure under 11 CFR 100.8(a) and an in-kind 
contribution under 11 CFR 100.7(a)(1)(iii).
    (c) Coordination with candidates and party committees. An 
expenditure for a general public political communication is considered 
to be coordinated with a candidate or party committee if the 
communication--
    (1) Is paid for by any person other than the candidate, the 
candidate's authorized committee, or a party committee, and
    (2) Is created, produced or distributed--
    (i) At the request or suggestion of the candidate, the candidate's 
authorized committee, a party committee, or the agent of any of the 
foregoing;
    (ii) After the candidate or the candidate's agent, or a party 
committee or its agent, has exercised control or decision-making 
authority over the content, timing, location, mode, intended audience, 
volume of distribution, or frequency of placement of that 
communication; or
    (iii) After substantial discussion or negotiation between the 
creator, producer or distributor of the communication, or the person 
paying for the communication, and the candidate, the candidate's 
authorized committee, a party committee, or the agent of such candidate 
or committee, regarding the content, timing, location, mode, intended 
audience, volume of distribution or frequency of placement of that 
communication, the result of which is collaboration or agreement. 
Substantial discussion or negotiation may be evidenced by one or more 
meetings, conversations or conferences regarding the value or 
importance of the communication for a particular election.
    (d) Exception. A candidate's or political party's response to an 
inquiry regarding the candidate's or party's position on legislative or 
public policy issues does not alone make the communication coordinated.
    (e) Definitions. For purposes of this section:
    (1) General public political communications include those made 
through a broadcasting station (including a cable television operator), 
newspaper, magazine, outdoor advertising facility, mailing or any 
electronic medium, including the Internet or on a web site, with an 
intended audience of over one hundred people.
    (2) Clearly identified has the same meaning as set forth in 11 CFR 
100.17.
    (3) Agent has the same meaning as set forth in 11 CFR 109.1(b)(5).

PART 109--INDEPENDENT EXPENDITURES (2 U.S.C. 431(17), 434(c))

    4. The authority citation for part 109 continues to read as 
follows:

    Authority: 2 U.S.C. 431(17), 434(c), 438(a)(8), 441d.

    5. Section 109.1 is amended by revising paragraphs (a), (b)(4) and 
(d)(1) to read as follows:


Sec. 109.1  Definitions (2 U.S.C. 431(17)).

    (a) Independent expenditure means an expenditure by a person for a 
communication expressly advocating the election or defeat of a clearly 
identified candidate that is not made with the cooperation of, or in 
consultation with, or in concert with, or at the request or suggestion 
of, a candidate or any agent or authorized committee of such candidate.
    (b) * * *
    (4) A communication is ``made with the cooperation of, or in 
consultation with, or in concert with, or at the request or suggestion 
of, a candidate or any agent or authorized committee of such 
candidate'' if it is a coordinated general public political 
communication under 11 CFR 100.23.
* * * * *
    (d)(1) The financing of the dissemination, distribution, or 
republication, in whole or in part, of any broadcast or any written, 
graphic, or other form of campaign materials prepared by the candidate, 
his campaign committees, or their authorized agents shall be considered 
a contribution for the purposes of contribution limitations and 
reporting responsibilities by the person making the expenditure but 
shall not be considered an expenditure by the candidate or his 
authorized committees unless the dissemination, distribution, or 
republication of campaign materials is a coordinated general public 
political communication under 11 CFR 100.23
* * * * *

PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS

    6. The authority citation for 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.

    7. Section 110.14 is amended by revising the introductory text to 
paragraphs (f)(2)(i) and (f)(2)(ii); paragraph (f)(3)(iii); the 
introductory text to paragraphs (i)(2)(i) and (i)(2)(ii); and paragraph 
(i)(3)(iii) to read as follows:


Sec. 110.14  Contributions to and expenditures by delegates and 
delegate committees.

* * * * *
    (f) * * *
    (2) * * *
    (i) Such expenditures are independent expenditures under 11 CFR 
part 109 if they are made for a communication expressly advocating the 
election or defeat of a clearly identified Federal candidate that is 
not a coordinated general public political communication under 11 CFR 
100.23.
* * * * *
    (ii) Such expenditures are independent expenditures under 11 CFR 
part 109 if they are made for a communication expressly advocating the 
election or defeat of a clearly identified Federal candidate that is 
not a coordinated general public political communication under 11 CFR 
100.23.
* * * * *
    (3) * * *
    (iii) Such expenditures are not chargeable to the presidential 
candidate's expenditure limitation under 11 CFR 110.8 unless they were 
coordinated general public political communications under 11 CFR 
100.23.
* * * * *
    (i) * * *
    * * *

[[Page 76147]]

    (2) * * *
    (i) Such expenditures are in-kind contributions to a Federal 
candidate if they are coordinated general public political 
communications under 11 CFR 100.23.
* * * * *
    (ii) Such expenditures are independent expenditures under 11 CFR 
part 109 if they are made for a communication expressly advocating the 
election or defeat of a clearly identified Federal candidate that is 
not a coordinated general public political communication under 11 CFR 
100.23.
* * * * *
    (3) * * *
    (iii) Such expenditures are not chargeable to the presidential 
candidate's expenditure limitation under 11 CFR 110.8 unless they were 
coordinated general public political communications under 11 CFR 
100.23.
* * * * *

    Dated: November 30, 2000.
Darryl R. Wold,
Chairman, Federal Election Commission.
[FR Doc. 00-31013 Filed 12-5-00; 8:45 am]
BILLING CODE 6715-01-P