[Federal Register Volume 67, Number 185 (Tuesday, September 24, 2002)]
[Proposed Rules]
[Pages 60042-60069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X02-10924]



[[Page 60041]]

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Part III





Federal Election Commission





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11 CFR Parts 100, et al.



Coordinated and Independent Expenditures; Proposed Rule

  Federal Register&thnsp/&thnspVol. 67, No. 185&thnsp/
&thnspTuesday, September 24, 2002&thnsp/&thnspProposed Rules  

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FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 102, 104, 105, 109, 110, and 114

[Notice 2002–16]


Coordinated and Independent Expenditures

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Election Commission seeks comments on proposed 
changes to its rules relating to payments for communications that are 
coordinated with a candidate, a candidate's authorized committee, or a 
political party committee. The proposed rules would also address 
independent expenditures and expenditures by political party committees 
that are made either in coordination with, or independently from, 
candidates. These regulations would implement several requirements in 
the Bipartisan Campaign Reform Act of 2002 (“BCRA”) that 
significantly amend the Federal Election Campaign Act of 1971, as 
amended (“FECA” or the “Act”). Further 
information is contained in the Supplementary Information that follows. 
Please note that the Commission has not made a final decision on any of 
these proposals.

DATES: Comments must be received on or before October 11, 2002. The 
Commission will hold a hearing on these proposed rules on October 23 
and 24, 2002, at 9:30 a.m. Commenters wishing to testify at the hearing 
must submit written or electronic comments no later than October 11, 
2002, and must so indicate in their comments.

ADDRESSES: All comments should be addressed to Mr. John Vergelli, 
Acting Assistant General Counsel, and must be submitted in either 
electronic or written form. Electronic mail comments should be sent to 
BCRAcoord@fec.gov and must include the full name, electronic 
mail address, and postal service address of the commenter. Electronic 
mail comments that do not contain the full name, electronic mail 
address, and postal service address of the commenter will not be 
considered. Faxed comments should be sent to (202) 219–3923, with 
printed copy follow-up to ensure legibility. Written comments and 
printed copies of faxed comments should be sent to the Federal Election 
Commission, 999 E Street, NW., Washington, DC 20463. Commenters are 
strongly encouraged to submit comments electronically to ensure timely 
receipt and consideration. The Commission will make every effort to 
post public comments on its website within ten (10) business days of 
the close of the comment period. The hearing will be held in the 
Commission's ninth floor meeting room, 999 E St. NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mr. John Vergelli, Acting Assistant 
General Counsel, or Attorneys Mark Allen (coordinated party 
expenditures), Richard Ewell (coordinated communications paid for by 
other political committees and other persons), Tony Buckley 
(electioneering communications), or Cheryl Fowle (reporting 
requirements), 999 E Street NW., Washington, DC 20463, (202) 
694–1650 or (800) 424–9530.

SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002 
(“BCRA”), Pub. L. 107–155, 116 Stat. 81 (March 27, 
2002), contains extensive and detailed amendments to the Federal 
Election Campaign Act of 1971, as amended (“FECA” or the 
“Act”), 2 U.S.C. 431 et seq. This is one of a series of 
Notices of Proposed Rulemakings (“NPRM”) the Commission is 
publishing over the next several months in order to meet the rulemaking 
deadlines set out in BCRA. The deadline for the promulgation of these 
rules is 270 days after the date of enactment of BCRA, or December 22, 
2002.
    This NPRM primarily addresses communications that are made 
independently from, or in coordination with, a candidate, an authorized 
committee of a candidate, or a political party committee. The proposed 
regulations would set forth the meaning of “coordination.” 
They would also set forth statutory requirements for political party 
committees with respect to the permitted timing of independent and 
coordinated expenditures, and transfers and assignments.

Introduction

I. Statutory Overview

    FECA limits the amount of contributions to Federal candidates, 
their authorized committees, and other political committees. 2 U.S.C. 
441a(a). Under FECA and the Commission's regulations, these 
contributions may take the form of money or “anything of 
value” (the latter would be an “in-kind contribution” 
provided to a candidate or political committee. See 11 CFR 
100.52(d)(1). Candidates must disclose all contributions they receive. 
2 U.S.C. 434(b)(2). Since the recipient does not actually receive a 
cash payment from an in-kind contribution, the recipient must report 
the value of an in-kind contribution as both a contribution received 
and an expenditure made so that the receipt of the contribution will be 
reported without overstating the cash-on-hand in the committee's 
treasury. See 11 CFR 104.13.

II. Overview of BCRA Changes to FECA and Commission Regulations

    In BCRA, Congress revised FECA's definition of “independent 
expenditure.” 2 U.S.C. 431(17). The revision added a reference to 
political party committees and their agents and reworked other aspects 
of the former language. Corresponding revisions would be made to the 
regulations in 11 CFR 100.16.
    Congress repealed the Commission's pre-BCRA regulations regarding 
“coordinated general public political communications” (at 
pre-BCRA 11 CFR 100.23) and directed the Commission to adopt new 
regulations on “coordinated communications” in their place. 
Pub. L. 107–155, sec. 214(b), (c) (March 27, 2002). The 
Commission proposes a new section 11 CFR 109.21 to implement the 
Congressional mandate.
    In addition, the proposed rules would implement several new 
restrictions found in BCRA on the timing of independent and coordinated 
expenditures made by committees of political parties. 2 U.S.C. 
441a(d)(4). Those regulations would be in new 11 CFR part 109, subpart 
D. Similarly, Congress established new restrictions on transfers 
between committees of a political party. 2 U.S.C. 441a(d)(4). Those 
changes, as well as amendments to the rules on the assignment of 
coordinated party expenditure authority in pre-BCRA 11 CFR 110.7, would 
also be reflected in new 11 CFR part 109, subpart D.
    Finally, Congress established new reporting obligations for 
independent expenditures. 2 U.S.C. 434(a)(5) and (g). See proposed 11 
CFR 100.19, 104.4, 104.5, 105.2, and 109.10.

Definition of Independent Expenditure

    The Commission proposes several changes to the definition of
    “independent expenditure” in 11 CFR 100.16 in light of 
several Congressional changes to the statutory definition of the same 
term at 2 U.S.C. 431(17). Most significantly, the statutory definition 
of
    “independent expenditure” was modified to exclude 
coordination with a political party committee or its agents (in 
addition to the pre-BCRA exclusion of coordination with candidates). 
Ibid.
    Proposed section 100.16 would contain two paragraphs. Proposed 
paragraph (a) would include the revised pre-BCRA section 100.16. The 
first sentence of proposed paragraph (a)

[[Page 60043]]

would be changed by adding a reference to political party committees 
and their agents, tracking BCRA's changes in 2 U.S.C. 431(17).
    In BCRA, Congress deleted the term “consultation” from 
the list of activities that compromise the independence of 
expenditures. See 2 U.S.C. 431(17)(B). Proposed paragraph (a), however, 
would retain the term because it remains, post-BCRA, in other related 
provisions of the Act. Expenditures that are made in 
“cooperation, consultation, or concert with, or at the request or 
suggestion of” candidates, political committees, and agents 
thereof are contributions. See 2 U.S.C. 441a(a)(7)(B)(i) (emphasis 
added). Most importantly, the term “consultation” is used 
in a closely related provision added by BCRA itself. See 2 U.S.C. 
441a(7)(B)(ii) as amended by Pub. L. 107–155, sec. 214(a) 
(expenditures made in “cooperation, consultation, or concert, 
with, or at the request or suggestion of, a national, State, or local 
committee of a political party”). Thus, the proposed rules would 
retain the term “consultation” as an element in the 
regulatory definition of “independent expenditure.”
    Similarly, the Commission notes that while Congress referred to 
expenditures “not made in concert or cooperation with 
. . . a political party committee or its agents” in 2 
U.S.C. 431(17) (emphasis added), it did not refer to agents of a party 
committee in 2 U.S.C. 441a(7)(B)(ii) when describing coordination with 
a party committee. The Commission would include agents of political 
party committees as persons who might take actions that would cause a 
communication to be coordinated with that party committee.
    In BCRA, Congress repealed the pre-BCRA regulatory definition of 
“coordinated general public political communication.” See 
11 CFR 100.23, repealed by Pub. L. 107–155, section 214(b) (March 
27, 2002). Therefore, proposed paragraph (a) of section 100.16 would 
delete the term “coordinated general public political 
communication,” and replace it with references to 
“coordinated communications” from proposed section 109.21 
and “party coordinated communications” from proposed 
section 109.37.
    The Commission would move to proposed paragraph (b) of section 
100.16, without other changes, the rule that expenditures made by a 
candidate's authorized committee on behalf of that candidate would 
never qualify as an independent expenditure. This rule, which is found 
at pre-BCRA 11 CFR 109.1(e), clarifies the basic definition of 
“independent expenditure.”

Proposed Reorganization of 11 CFR Part 109

    The Commission proposes to reorganize 11 CFR part 109 into four 
subparts. Subpart A would explain the scope of part 109 and define a 
key term. Subpart B would address reporting of independent 
expenditures. Subpart C would address coordination between a candidate 
or a political party and a person making a communication. Subpart D 
would set forth provisions applicable only to political party 
committees, including some pertaining to independent expenditures and 
support of candidates through coordinated party expenditures. See 2 
U.S.C. 441a(d). The special authority for coordinated expenditures by 
political party committees, previously set forth in pre-BCRA 11 CFR 
110.7, would be relocated to proposed 11 CFR 109.32 and other sections 
in subpart D.

Proposed Subpart A of Part 109: Scope and Definitions

    Proposed new section 109.1 would introduce the scope of part 109. A 
definition found in pre-BCRA section 109.1 would be revised and moved 
to proposed section 109.3. The Commission would move the reporting 
requirements of pre-BCRA 11 CFR 109.2 to proposed 11 CFR 109.10, 
reserving section 109.2 to avoid potential confusion regarding this 
move.
    Proposed 11 CFR 109.3 would define the term “agent” for 
use throughout part 109. This definition of “agent” would 
be based on the same concept that the Commission used in framing the 
definition of “agent” in the non-Federal funds or 
“Soft Money” rulemaking completed earlier this year. Final 
Rules and Explanation and Justification, “Prohibited and 
Excessive Contributions: Non-Federal Funds or Soft Money,” 67 FR 
49081 (July 29, 2002). The definition identifies the principal and 
enumerates particular activities in which the agent may engage on 
behalf of the principal. In order to preclude confusion with other 
regulatory definitions of “agent” (e.g., 11 CFR 300.2(b)), 
this definition would be explicitly limited to 11 CFR part 109. The 
definition would differ in several respects from its pre-BCRA form in 
11 CFR 109.1(b)(5). The proposed definition would encompass political 
party committees because the Act, as amended by BCRA, specifically 
covers, in the context of coordination, payments made by a person on 
behalf of political party committees. See 2 U.S.C. 441a(a)(7)(B)(ii).
    The proposed revised definition of “agent” would focus 
on whether a purported agent has “actual authority, either 
express or implied,” to engage in one or more specified 
activities on behalf of specified principals. The specified activities 
would vary slightly depending on whether the agent engages in those 
activities on behalf of a national, State, district, or local committee 
of a party committee, or on behalf of a Federal candidate or 
officeholder. See proposed 11 CFR 109.3(a) and (b), respectively. The 
activities specified in the proposed rule would closely parallel 
activities associated with coordinated communications, as described in 
proposed 11 CFR 109.21(b), and would include requesting or suggesting 
that a communication be created, produced, or distributed, making or 
authorizing certain campaign-related communications, and material 
involvement in decisions regarding specific aspects of communications. 
See proposed 11 CFR 109.3(a)(1) through (5) and (b)(1) through (5). 
Thus, a person would be an agent when (1) expressly authorized by a 
specific principal to engage in specific activities; (2) engages in 
those activities on behalf of that specific principal; and (3) those 
activities would result in a coordinated communication if done directly 
by the candidate or a political party official.
    The Commission seeks comments on whether the scope of the 
definition of “agent” should explicitly state that a person 
must be “acting within the scope of his or her authority as an 
agent” while engaged in the action in question (e.g., making a 
request, participating in a substantial discussion) before he or she is 
considered an agent. Should the person be required to convey 
information that was only available to that person because of his or 
her role as an agent for the candidate or political party committee? 
Should a person be considered an agent if he or she bases his or her 
recommendations to a third party on information that was gained only 
due to that person's role as an agent for the campaign? The Commission 
also seeks comments on whether, and if so, under what circumstances, a 
person who is authorized by a candidate or political party committee to 
solicit or receive contributions or other transfers of funds, and who 
holds a formal or honorary position or title with the candidate's 
campaign or a political party committee, should be considered per se to 
be an agent of that candidate, an authorized committee of that 
candidate, or political party committee.
    The Commission's pre-BCRA regulations include a special definition 
of “person” for part 109. 11 CFR

[[Page 60044]]

109.1(b)(1). The Commission has not included this separate definition 
of the term “person” in this Notice of Proposed Rulemaking 
because the term is already defined in pre-BCRA 11 CFR 100.10. 
Furthermore, the Commission is concerned that a separate definition of 
“person” in part 109 might be confusing or misinterpreted 
to permit labor organizations, corporations not qualified under 11 CFR 
114.10(c), or other entities or individuals to pay for coordinated 
communications or to make independent expenditures where these entities 
and individuals are otherwise prohibited from making contributions or 
expenditures under the Act and Commission regulations. See, e.g., 11 
CFR 110.4 and 114.2. While the Commission would propose to specifically 
address these prohibitions in proposed 11 CFR 109.22, below, the 
Commission seeks comment on whether, and if so, how, the term 
“person” should be defined separately for the purposes of 
part 109.

Proposed Subpart B of Part 109: Independent Expenditures; Other 
Reporting Rules; Disclaimers

    Under the Act, independent expenditures must be reported as 
follows: Political committees must report all independent expenditures 
on their regularly scheduled reports. In contrast, persons other than 
political committees must report independent expenditures that 
aggregate in excess of $250 in a calendar year. 2 U.S.C. 
434(b)(4)(H)(iii), (c), (d), and (g). Political committees and other 
persons must file additional reports of independent expenditures 
(“24-hour reports”) when independent expenditures totaling 
$1,000 or more are made less than 20 days but more than 24 hours before 
an election (i.e., primary, general, special, or runoff; see 11 CFR 
100.2). BCRA moved the 24-hour reporting provisions from 2 U.S.C. 
434(c)(2)(C) to 2 U.S.C. 434(g)(1). These reports must be received 
within 24 hours of the time the independent expenditures aggregate 
$1,000 or more. 2 U.S.C. 434(g)(1).
    BCRA also adds a third type of report for certain independent 
expenditures. New “48-hour reports” are required when 
independent expenditures made at any time during the campaign, up to 
and including the 20th day before an election, aggregate $10,000 or 
more. 2 U.S.C. 434(g)(2). To implement BCRA's new reporting 
requirements for independent expenditures, the Commission is proposing 
changes to pre-BCRA 11 CFR 100.19, 104.4, 104.5, 105.2, and 109.2, 
which are discussed below.

I. When Must Reports of Independent Expenditures be Filed?

A. 11 CFR 100.19 File, Filed, or Filing (2 U.S.C. 434(a))
    The Commission's regulations at 11 CFR 100.19 define file, filed, 
and filing. Paragraph (a) of section 100.19 would be unaffected by this 
rulemaking. Proposed paragraph (b) of section 100.19 would retain the 
pre-BCRA general rule that a document is considered timely filed if it 
is: (1) Delivered to the appropriate filing office (either the 
Commission or the Secretary of the Senate), or (2) sent by registered 
or certified mail and postmarked by 11:59 p.m. Eastern Standard/
Daylight Time of the prescribed filing date—except for pre-
election reports. The proposed revisions to paragraph (b) of section 
100.19 would clarify that paragraph (b) is the general rule, but does 
not apply to reports addressed by paragraph (c) through proposed new 
paragraph (f). In pre-BCRA paragraph (b), the Commission notes that 
this general rule does not apply to 24-hour reports of independent 
expenditures, although the other exceptions are not mentioned.
    Those exceptions would be as follows: Paragraph (c) for electronic 
filing—“filed” means received by the Commission at or 
before 11:59 p.m. Eastern Standard/Daylight Time on the filing date; 
paragraph (d) for 24-hour and 48-hour reports of independent 
expenditures—“filed” means received by the Commission 
no later than 11:59 p.m. Eastern Standard/Daylight Time of the day 
following (24-hour reports) or the second day following (48-hour 
reports) the date on which the spending threshold is reached in 
accordance with 11 CFR 104.4(f); paragraph (e) for 48-hour notices of 
last-minute contributions—“filed” means received by 
the Commission or the Secretary of the Senate within 48 hours of the 
receipt of a “last-minute” contribution of $1,000 or more.
    Paragraph (c) of section 100.19 would remain unchanged.
    Proposed revisions to paragraph (d) of section 100.19 would also 
require that the new 48-hour reports of independent expenditures, like 
the 24-hour reports, must be received rather than filed by the filing 
deadline. The proposed 48-hour reporting provision would allow filers 
to submit their reports using facsimile machines or electronic mail, as 
long as they are not required under 11 CFR 104.18 to file 
electronically. Under pre-BCRA paragraph (d) of section 100.19, 24-hour 
reports of independent expenditures are only considered timely filed if 
they are received by the Commission or Secretary of the Senate within 
24 hours of the time the expenditure is made.\1\ Thus, sending 24-hour 
reports by mail is not a viable option because it is unlikely that 
these reports will be received by the Commission within 24 hours of the 
making of the expenditure. See Final Rules and Explanation and 
Justification for 11 CFR 100.19, 67 FR 12834 (March 20, 2002.) Pre-BCRA 
paragraph (d) also states that 24-hour reports may be filed by 
facsimile machine or electronic mail, in addition to other permissible 
means of filing (e.g., hand delivery or overnight courier). Because the 
reasons behind the handling of 24-hour reports apply equally to the 
essentially similar 48-hour reports, the Commission is proposing this 
parallel rule.
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    \1\&thnspNote that BCRA, as passed on February 14, 2002, in the 
House and on March 20, 2002, in the Senate, would have required 24-
hour reports to be filed rather than received within 24 hours of the 
time the independent expenditure was made. In technical corrections 
to BCRA, Congress amended section 212 of BCRA by reinstating the 
received requirement. H. Con. Res. 361.
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    Additional proposed changes to 11 CFR 100.19 are being addressed by 
the Commission in a separate rulemaking. See “Electioneering 
Communications” Notice of Proposed Rulemaking, 67 FR 51131 (Aug. 
7, 2002).
B. 11 CFR 104.5 Filing Dates (2 U.S.C. 434(a)(2))
    Proposed paragraph (g) of 11 CFR 104.5 would move the pre-BCRA 
contents of paragraph (g) to proposed paragraph (g)(2) with revisions, 
and would add a new paragraph (g)(1), which would require that 48-hour 
reports of independent expenditures must be received by the Commission 
no later than 11:59 p.m. Eastern Standard/Daylight Time of the second 
day following the date on which a communication is publicly distributed 
or otherwise publicly disseminated. Pre-BCRA paragraph (g) of 11 CFR 
104.5 states that 24-hour reports of independent expenditures must be 
received by the appropriate officers no later than 24 hours after such 
independent expenditure is made.

II. Where Must Reports be Filed? 11 CFR 105.2 Place of Filing; 
Senate Candidates, their Principal Campaign Committees, and Committees 
Supporting Only Senate Candidates (2 U.S.C. 434(g)(3))

    The Commission's pre-BCRA regulations require that 24-hour reports 
of independent expenditures supporting or opposing Senate candidates be 
filed with the Secretary of the Senate. See pre-BCRA 11 CFR 104.4(c), 
109.2(b). In BCRA, Congress establishes the

[[Page 60045]]

Commission as the place of filing for both 24- and 48-hour reports of 
independent expenditures, regardless of the office being sought by the 
clearly identified candidate. 2 U.S.C. 434(g)(3)(A). The proposed 
revisions to section 105.2 would place the text of pre-BCRA 11 CFR 
105.2 in proposed paragraph (a), adding the heading, “General 
Rule.” New proposed paragraph (b) of 11 CFR 105.2 would be 
headed, “Exceptions,” and would state that 24-and 48-hour 
reports of independent expenditures, and electioneering communications, 
see 11 CFR 104.19, must be filed with the Commission even if the 
candidate supported or opposed is running for the Senate. 2 U.S.C. 
434(f).

III. 11 CFR 104.4 Independent Expenditures by Political Committees 
(2 U.S.C. 434(b), (g))

    The Commission has established reporting requirements for political 
committees making independent expenditures in accordance with 2 U.S.C. 
434(b) and (g). See pre-BCRA 11 CFR 104.4. Paragraph (a) of section 
104.4 would be unaffected, other than the addition of a new heading, a 
grammatical correction and an updated cross-reference.
    Proposed new paragraph (b) would address reports of independent 
expenditures made at any point in the campaign up to and including the 
20th day before an election. Proposed paragraph (b)(1) would address 
independent expenditures aggregating less than $10,000 with respect to 
a given election during the calendar year, up to and including the 20th 
day before an election. This calendar year aggregation would be based 
on 2 U.S.C. 434(b)(4), which requires calendar year aggregation for 
reports of independent expenditures by political committees. The 
Commission requests comments on whether a different time period, such 
as an election cycle, should be employed instead of the calendar year 
period.
    Under this calendar year approach, political committees would 
report the independent expenditures on Schedule E of FEC Form 3X, filed 
no later than the regular reporting date under 11 CFR 104.5. The 
Commission would interpret 2 U.S.C. 434(g), added to the Act by BCRA, 
to require aggregation toward the various thresholds for independent 
expenditure reporting to be done on a per election basis within the 
calendar year. For example, if a political committee made $5,000 in 
independent expenditures with respect to a Senate race, and $5,000 in 
independent expenditures with respect to a House race, and both of 
these events occurred before the twentieth day before the election, 
that political committee would not be required to file 48-hour reports, 
but would be required to disclose the independent expenditures in its 
regularly scheduled reports. If the political committee makes $5,000 in 
independent expenditures with respect to a clearly identified candidate 
in the primary, and an additional $5,000 in independent expenditures 
with respect to the same candidate in the general election, no 48-hour 
reports would be required; but again the committee would be required to 
disclose the independent expenditures in its regularly scheduled 
reports.
    Paragraph (b)(2) would address independent expenditures aggregating 
$10,000 or more during the calendar year up to and including the 20th 
day before an election. These reports would also be filed on Schedule E 
of FEC Form 3X. However, these reports would be required to be received 
by the Commission no later than 11:59 p.m. Eastern Standard/Daylight 
Time of the second day following the date on which a communication 
which constitutes an independent expenditure is publicly distributed or 
otherwise publicly disseminated. Further, political committees would 
have to file an additional 48-hour report each time subsequent 
independent expenditures reach the $10,000 threshold with respect to 
the same election to which the first report related.
    The Commission proposes revisions to renumbered paragraph (c) 
(i.e., pre-BCRA 11 CFR 104.4(b)) stating that 24-hour reports must be 
received by the Commission no later than 11:59 p.m. Eastern Standard/
Daylight Time of the day following the date on which the $1,000 
threshold is reached during the final twenty days before the election. 
Further, proposed revisions to this paragraph would specifically state 
that additional 24-hour reports must be filed each time during the 24-
hour reporting period that subsequent independent expenditures reach or 
exceed the $1,000 threshold with respect to the same election to which 
the previous report related.
    Proposed paragraph (d) would contain the report verification 
information currently found in pre-BCRA paragraph (b) of section 104.4. 
There would be non-substantive grammatical changes to conform this 
paragraph to other changes in the overall section.
    Proposed paragraph (e) would largely restate pre-BCRA paragraph (c) 
of section 104.4. The most significant proposed change to this 
paragraph would be to make the Commission and not the Secretary of the 
Senate the place of filing for 24- and 48-hour reports of independent 
expenditures relating to Senate candidates. 2 U.S.C. 434(g)(3). See the 
discussion of 11 CFR 105.2, above.
    Proposed paragraph (f) of 11 CFR 104.4 would address aggregation of 
independent expenditures for reporting purposes. The provisions of pre-
BCRA 11 CFR 109.1(f) would be redesignated and revised to explain when 
and how political committees and other persons making independent 
expenditures must aggregate independent expenditures for purposes of 
determining whether 48-hour and 24-hour reports must be filed. Note 
that this proposed aggregation rule would apply to independent 
expenditures by political committees, as well as other persons; 
proposed 11 CFR 109.10 (c) and (d) would cross-refer to this paragraph. 
Proposed paragraph (f) would establish that every date on which a 
communication that constitutes an independent expenditure is 
“publicly distributed” or otherwise publicly disseminated 
serves as the date that every person must use to determine whether the 
total amount of independent expenditures has, in the aggregate, reached 
or exceeded the threshold reporting amounts ($1,000 for 24-hour reports 
or $10,000 for 48-hour reports). The term “publicly 
distributed” would have the same meaning as in proposed 11 CFR 
100.29(b)(6), which the Commission has proposed as part of a separate 
rulemaking. See “Electioneering Communications” Notice of 
Proposed Rulemaking, 67 FR 51131 (Aug. 7, 2002). Thus, proposed 
paragraph (f) would set the same date as the starting date from which a 
person would have one or two days, where applicable, to file a 24-hour 
or 48-hour report on independent expenditures.
    In addition, Congress changed the reporting requirements by adding 
the phrase “or contracts to make” to the statute. 2 U.S.C. 
434(g)(1), (2). BCRA ties 24-hour and 48-hour reporting of independent 
expenditures to the time when a person “makes or contracts to 
make independent expenditures * * *” aggregating at or 
above the $1,000 and $10,000 thresholds, respectively. 2 U.S.C. 
434(g)(4). Therefore, under proposed 11 CFR 104.4(f), each person would 
be required to include as of the proposed trigger date, in the 
calculation of the aggregate amount of independent expenditures both 
disbursements for independent expenditures and all contracts obligating 
funds for disbursement for independent expenditures. Under this 
approach and the proposed timing requirements described above, once a 
communication

[[Page 60046]]

that constitutes an independent expenditure is publicly distributed or 
disseminated as explained above, the person who paid for, or who 
contracted to pay for, the communication would be able to determine 
whether the communication satisfied the “express advocacy” 
requirement of the definition of an independent expenditure (See 11 CFR 
100.16) and would be therefore be able to determine whether the 
disbursement for that communication constituted an independent 
expenditure. A person reaching or exceeding the applicable reporting 
threshold would be responsible for submitting a report by 11:59 p.m. 
Eastern Standard/Daylight Time of the day after, for 24-hour reporting, 
or two days after, for 48-hour reporting, the date of the public 
distribution or dissemination of that communication.
    The Commission seeks comment on its proposed interpretation of 
BCRA's “makes or contracts to make” language and the 
triggering mechanism for 24-hour and 48-hour reports. Specifically, the 
Commission seeks comment on an alternative interpretation that would 
make the actual disbursement or the execution of the contract to make 
the disbursement for an independent expenditure, rather than the public 
distribution or dissemination of the resulting communication, the 
triggering mechanism for the reporting requirements once the 
disbursements and obligations equal or exceed the respective 
thresholds. This change would require earlier reporting than is 
currently required or proposed (i.e., when the communication is 
publicly disseminated). The policy reasons for adopting this 
alternative interpretation would be similar to those described in the 
NPRM on reporting of electioneering communications. See 
“Electioneering Communications” Notice of Proposed 
Rulemaking, 67 FR 51131 (Aug. 7, 2002).

IV. Proposed 11 CFR 109.10 How Do Persons Other Than Political 
Committees Report Independent Expenditures (2 U.S.C. 434(c), (d), and 
(g))?

    Proposed new section 109.10 would set forth the revised reporting 
requirements of pre-BCRA section 109.2. Under proposed new section 
109.10, persons other than political committees would have to report 
their independent expenditures on either FEC Form 5 or in a signed 
statement containing certain information regarding the person who made 
the independent expenditure and the nature of the expenditure itself.
    Proposed paragraph (a) of 11 CFR 109.10 would provide a cross-
reference to 11 CFR 104.4 for political committees, under which they 
must report independent expenditures. Paragraph (a) of pre-BCRA 11 CFR 
109.2 would be moved to proposed paragraphs (b) and (c) of section 
109.10.
    Proposed paragraph (c) would address reports of independent 
expenditures aggregating $10,000 or more with respect to a given 
election from the beginning of the calendar year up to and including 
the 20th day before an election. This proposed paragraph would require 
that 48-hour reports of independent expenditures be received rather 
than filed by 11:59 pm of the second day after the date on which the 
$10,000 threshold is reached. See discussion of received versus filed 
in section 100.19, above. Pre-BCRA paragraph (b) of section 109.2 
indicates that 24-hour reports must be received after a disbursement is 
made for an independent expenditure, but no later than 24 hours after 
an independent expenditure is “made” under pre-BCRA 
paragraph 109.1(f). See the discussion of proposed 11 CFR 104.4(f), 
above. Under the proposed rules, paragraph (b) of pre-BCRA section 
109.2 would be moved to new paragraph (d) of 11 CFR 109.10 and revised 
to reflect the modification to the aggregation and filing requirements 
in proposed 11 CFR 100.19(d) and 104.4 that are discussed above.
    Proposed revisions to paragraph (d) of 11 CFR 109.10 (pre-BCRA 11 
CFR 109.2(b)) would also mirror the changes in 11 CFR 104.4(c) as to 
when 24-hour reports of independent expenditures aggregating $1,000 or 
more after the 20th day before the election.
    Proposed paragraph (e) of 11 CFR 109.10 (i.e., pre-BCRA 11 CFR 
109.2(a)(1) and (c)) would address the contents and verification of 
statements filed in lieu of FEC Form 5. Proposed paragraph (e) would 
include one significant change from pre-BCRA 109.2(a)(1) and (c): a 
person making an independent expenditure would now be required to 
certify that the expenditure was made independently from a political 
party committee and its agents, in addition to the pre-BCRA requirement 
of certification that the expenditure was not coordinated with a 
candidate, the candidate's authorized committee, or an agent of either 
of the foregoing. This change reflects the addition of political party 
committees to the definition of “independent expenditure” 
in 2 U.S.C. 431(17) and the description of coordination in 2 U.S.C. 
441a(a)(7)(B)(ii) under BCRA. For the same reasons explained with 
reference to the definition of “independent expenditure” in 
proposed 11 CFR 100.16, the Commission would continue to include 
“consultation” in the description of activity that would 
cause an expenditure to lose its independence (i.e., “in 
cooperation, consultation, or concert with” a candidate or 
political party committee) even though the statutory definition in 2 
U.S.C. 431(17) does not retain the term.

Section 109.11 Non-Authorization Notice (Disclaimers) (2 U.S.C. 
441d)

    The Commission would move the disclaimer requirement for 
independent expenditure communications from pre-BCRA 11 CFR 109.3 to 
proposed section 109.11. There would be no substantive changes to this 
section. Proposed changes to 11 CFR 110.11 itself will be forthcoming 
in a separate rulemaking, in light of BCRA's changes to the statutory 
disclaimer requirement. See 2 U.S.C. 441d.

Proposed Subpart C of Part 109 Coordination

I. Proposed 11 CFR 109.20 What Does “Coordinated” 
Mean?

    Congress did not define the term “coordinated” directly 
in FECA or in BCRA, but it did provide that an expenditure is 
considered to be a contribution to a candidate when it is “made 
by any person in cooperation, consultation, or concert, with, or at the 
request or suggestion of,” that candidate, the authorized 
committee of that candidate, or their agents. 2 U.S.C. 
441a(a)(7)(B)(i). Likewise, in BCRA, Congress added a new paragraph to 
section 441a(a)(7)(B) to require that expenditures “made by any 
person (other than a candidate or candidate's authorized committee) in 
cooperation, consultation, or concert, with, or at the request or 
suggestion of, a national, State, or local committee of a political 
party shall be considered to be contributions made to such party 
committee.” 2 U.S.C. 441a(a)(7)(B)(ii). Also, as explained above, 
an expenditure would not be “independent” if it is 
“made in cooperation, consultation, or concert, with, or at the 
request or suggestion of,” a candidate or a political party 
committee. See proposed 11 CFR 100.16.
    Proposed section 109.20 would incorporate the language in 2 U.S.C. 
441a(a)(7)(B)(i) and (ii) into the Commission's regulations. While the 
definition of “coordinated” in proposed paragraph 109.20(a) 
would potentially encompass a variety of payments made by a person on 
behalf of a candidate or

[[Page 60047]]

party committee, the Commission recognizes that the majority of issues 
regarding coordination involve communications. Therefore, the proposed 
regulations in 11 CFR 109.21 and 109.37 would specifically address the 
meaning of the phrase “made in cooperation, consultation, or 
concert, with, or at the request or suggestion of” in the context 
of communications.
    In addition, proposed paragraph 109.20(b) would address 
expenditures that are not made for communications but that are 
coordinated with a candidate or political party committee. The 
Commission proposes to move pre-BCRA 11 CFR 109.1(c), to proposed 
paragraph (b). This provision would also be revised to make it clear 
that these other expenditures, when coordinated, are also in-kind 
contributions (or coordinated party expenditures, if a political party 
committee so elects) to the candidate or political party committee with 
whom or with which they are coordinated. The exceptions contained in 11 
CFR part 100, subpart C (exceptions to the definition of 
“contribution”) and subpart E (exceptions to the definition 
of “expenditure”) would continue to apply. The Commission 
requests comment on whether these non-communication expenditures should 
be further addressed in a later rulemaking.

II. Background: The Commission's Pre-BCRA Coordination Regulations

    Prior to the enactment of BCRA, the Commission initiated a series 
of rulemakings in response to the Supreme Court's ruling on the 
appropriate application of the so-called “coordinated party 
expenditure” provisions of FECA. See Colorado Republican Federal 
Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996) 
(“Colorado I”). For example, the Commission addressed the 
issue of coordination when it promulgated 11 CFR 100.23 in December 
2000. See Explanation and Justification of General Public Political 
Communications Coordinated with Candidates and Party Committees; 
Independent Expenditures, 65 Fed. Register 76138 (Dec. 6, 2000). 
Section 100.23 defined a new term, “coordinated general public 
political communication,” drawing from judicial guidance in 
Federal Election Commission v. The Christian Coalition, 52 F.Supp.2d 
45, 85 (D.D.C. 1999) (“Christian Coalition”), to determine 
whether expenditures for communications by unauthorized committees, 
advocacy groups, and individuals were coordinated with candidates or 
qualified as independent expenditures. Consistent with Christian 
Coalition, id. at 92, the Commission's regulations stated that such 
coordination could be found when candidates or their representatives 
influenced the creation or distribution of the communications by making 
requests or suggestions regarding, or exercising control or decision-
making authority over, or engaging in “substantial discussion or 
negotiation” regarding, various aspects of the communications. 11 
CFR 100.23(c)(2). The regulations explained that “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.” 11 CFR 
100.23(c)(2)(iii).

III. Proposed 11 CFR 109.21 What is a “Coordinated 
Communication”?

    In BCRA, Congress expressly repealed 11 CFR 100.23, Pub. L. 
107–155, sec. 214(b) (March 27, 2002), and instructed the 
Commission to promulgate new regulations on “coordinated 
communications paid for by persons other than candidates, authorized 
committees of candidates, and party committees.” Pub. L. 
107–155, sec. 214(c) (March 27, 2002). Congress also mandated 
that the new regulations address four specific aspects of coordinated 
communications: republication of campaign materials; the use of a 
common vendor; communications directed or made by a former employee of 
a candidate or political party; and communications made after 
substantial discussion about the communication with a candidate or 
party. See Pub. L. 107–155, sec. 214(c)(1) through (4) (March 27, 
2002).
A. Basic Elements of a “Coordinated Communication”
    Proposed paragraph (a) of section 109.21 would set forth the three 
required elements of a “coordinated communication,” which 
would comprise a three-part test. For a communication to be 
“coordinated” under the proposed rule, all three parts of 
the test would have to be satisfied. While no one of these elements 
standing alone fully answers the question of whether a communication is 
for the purpose of influencing a Federal election, see 11 CFR 
100.52(a), 100.111(a), the Commission proposes that the satisfaction of 
all of the three specific tests set out in the proposed regulation 
justifies the conclusion that payments for the coordinated 
communication are for the purpose of influencing a Federal election.
    The first part of the three-part test, in proposed paragraph 
(a)(1), would be that the communication would have to be paid for by 
someone other than a candidate, an authorized committee, or a political 
party committee. However, a person's status as a candidate would not 
exempt him or her from the coordination regulations with respect to 
payments he or she makes on behalf of a different candidate. Under 
proposed paragraph (a)(2), the second part of the three-part test would 
be a “content standard” regarding the subject matter of the 
communication. The content standards would be addressed in detail in 
proposed paragraph (c) of this section. Under proposed paragraph 
(a)(3), the final part of the test would be a “conduct 
standard” regarding the interactions between the person paying 
for the communication and the candidate or political party committee. 
The conduct standards would be addressed in detail in proposed 
paragraph (d).
B. Treatment of Coordinated Communications as In-Kind Contributions
    Proposed paragraph (b) of section 109.21 would provide that a 
payment for a coordinated communication would be made “for the 
purpose of influencing” an election for Federal office, a phrase 
used by Congress in the definition of both “expenditure” 
and “contribution.” 2 U.S.C. 431(8)(A) and (9)(A). Thus, 
the Commission would make a determination that satisfying the content 
and conduct standards of proposed 11 CFR 109.21 would, in turn, satisfy 
the statutory requirements for an expenditure and a contribution.
    Proposed paragraph (b)(1) would state the general rule that a 
payment for a coordinated communication would constitute an in-kind 
contribution to the candidate or political party committee with whom or 
with which it is coordinated, unless excepted under subpart C of 11 CFR 
part 100. Please note that this section encompasses communications 
described in 11 CFR 100.29(a)(1) (electioneering communications) in 
addition to other communications. Congress expressly provided that when 
these communications are coordinated with a candidate or political 
party committee, they must be treated like other coordinated 
communications in that disbursements for these communications are in-
kind contributions to the candidate or party committee with whom or 
which they were coordinated. See 2 U.S.C. 441a(a)(7)(C).

[[Page 60048]]

    Proposed paragraph (b)(2) would create an exception to the general 
rule of proposed paragraph (b)(1). Under the general rule in proposed 
paragraph (b)(1), a candidate or a political party committee would be 
deemed to receive an in-kind contribution, subject to the contribution 
limits, prohibitions, and reporting requirements of the Act. As 
explained below, two of the conduct standards, found in proposed 
paragraphs (d)(4) and (d)(5) of section 109.21, would not focus on the 
conduct of the candidate, his or her authorized committee, or his or 
her agents, but would focus on the conduct of the person paying for the 
communication, a common vendor, or a former employee. To avoid the 
result where a candidate or political party committee might be held 
responsible for receiving or accepting an in-kind contribution that did 
not result from its conduct or the conduct of its agents, the 
Commission proposes to explicitly provide that the candidate or 
political party committee would not receive or accept in-kind 
contributions that result from conduct described in the proposed 
conduct standards of paragraphs (d)(4) and (d)(5) of section 109.21. 
This treatment would be generally analogous to the handling of 
republished campaign materials under the Commission's current 
regulations. See 11 CFR 109.1(d)(1). However, please note that the 
person paying for a communication that is coordinated because of 
conduct described in proposed paragraphs (d)(4) or (d)(5) would still 
be responsible for making an in-kind contribution for purposes of the 
contribution limitations, prohibitions, and reporting requirements of 
the Act.
    Proposed paragraph (b)(3) of 11 CFR 109.21 would provide that a 
political committee, other than a political party committee (which 
would be covered in proposed subpart D), must report payments for 
coordinated communications as in-kind contributions to the candidate or 
political party committee with whom or which they are coordinated. 
Proposed paragraph (b) would also clarify that a political party 
committee with which a communication is coordinated must report that 
communication as an in-kind contribution received under 11 CFR 104.13. 
The recipient political party committee must also report making a 
corresponding expenditure in the same amount. 11 CFR 104.13.
C. Content Standards
    The Commission proposes to include “content standards” 
in the definition of “coordinated communication.” Such 
content standards would serve to limit 11 CFR 109.21 to communications 
whose subject matter is reasonably related to an election. The purpose 
of the content standards would not be to definitively decide if the 
content of the communication is for the purpose of influencing a 
Federal election. Answering that larger question would be the purpose 
of the three-part test of which the content standard would be one part.
    Proposed paragraph (c) would set out four possible content 
standards. A communication that satisfies any one of the four would be 
deemed to satisfy the “content” requirement of the proposed 
regulation.
    Under proposed paragraph (c)(1), the first content standard would 
be whether the communication satisfies the requirements of a 
communication described in proposed 11 CFR 100.29 or communication that 
would otherwise be “electioneering communication.” Notice 
of Proposed Rulemaking, “Electioneering Communications,” 67 
FR 51131 (Aug. 7, 2002).
    The second proposed content standard addresses the Congressional 
requirement that the Commission's new rules on coordinated 
communications address the “republication of campaign 
materials.” See Pub. L. 107–155, sec. 214(c)(1) (March 27, 
2002). The Commission proposes to satisfy this mandate by providing, in 
proposed paragraph (c)(2) of section 109.21 that the republication of 
candidate materials in a communication would satisfy the content 
standard if the republication, dissemination, or distribution, in whole 
or in part, amounts to a contribution under proposed 11 CFR 100.57 
(discussed below).
    In light of the candidate's initial role in preparing the campaign 
material that is subsequently incorporated into a different, 
“republished” communication, it is possible that the 
candidate's involvement in the original preparation of part or all of 
that content might be construed as triggering one or more of the 
proposed conduct standards in paragraph (d) of this section. To avoid 
this result, the Commission would clarify that the candidate's actions 
in preparing the original campaign materials are not to be considered 
in the conduct analysis of proposed paragraph (d). Instead, the 
proposed rules in 11 CFR 109.21(d)(6) would only focus on the conduct 
of the candidate that occurs after the initial preparation of the 
campaign materials. For example, if a candidate requests or suggests 
that a supporter pay for the republication of a campaign ad, the 
resulting communication paid for by the supporter would satisfy both a 
content standard (republication) and conduct standard (request or 
suggestion, see discussion of proposed 11 CFR 109.21(d)(1) below) and 
would therefore be a coordinated communication. The Commission also 
proposes a second sentence in proposed paragraph (a)(3) of section 
109.21 indicating that the republication content standard of proposed 
paragraph (c)(2) is evaluated under the conduct standard in proposed 
paragraph (d)(6).
    The third content standard in proposed paragraph (c)(3) of section 
109.21 would state that a communication would also satisfy the content 
standard if it “expressly advocates” the election or defeat 
of a clearly identified candidate for Federal office.
    In addition to electioneering communications described in proposed 
11 CFR 100.29, communications that republish campaign materials, and 
communications that “expressly advocate” the election or 
defeat of a clearly identified candidate, the Commission is considering 
a number of other possible content standards. In this NPRM, the 
Commission presents and discusses three other possible content 
standards, which are labeled Alternatives A through C in the proposed 
rules. Any, all, or none of these alternatives could be adopted in the 
final rules.
    Each of these alternatives is framed in terms of a “public 
communication,” a term added to the Act by BCRA. 2 U.S.C. 
431(22); 11 CFR 100.26. The use of the term “public 
communication” would provide consistency within the regulations 
and would distinguish covered communications from, for example, private 
correspondence and internal communications between a corporation or 
labor organization and its restricted class. In addition, although the 
term “public communication” covers a broad range of 
communications, it does not cover some forms of communications, such as 
those transmitted using the Internet and electronic mail. 11 CFR 
100.26. The Commission seeks comment on whether it is appropriate to 
limit the scope of coordinated communications through the use of the 
term “public communication,” or whether it would be 
adequate for this purpose to require only that the communication be 
“made available to the public.” The Commission also seeks 
comment on these three alternatives, as well as any other possible 
standards.

Alternative A

    The first alternative, labeled “Alternative A” in the 
proposed rules, would require that the communication

[[Page 60049]]

be a public communication, as defined in 11 CFR 100.26, and that it 
clearly identify a Federal candidate. The terms “clearly 
identified” and “candidate” are defined in 11 CFR 
100.17 and 100.3, respectively. This alternative would seem to cover 
the widest range of public communications of all the alternatives.

Alternative B

    The second alternative, labeled “Alternative B” in the 
proposed rules, would require that the communication promote or support 
or attack or oppose a clearly identified candidate. This standard would 
be modeled on one of the definitions of “Federal election 
activity” added to the Act by BCRA. 2 U.S.C. 431(20)(A)(iii), 11 
CFR 100.24. A public communication that refers to a clearly identified 
Federal candidate, and “that promotes or supports * * * 
or attacks or opposes” the candidate or his or her opponent is 
one type of Federal election activity. The phrase “promote or 
support, or attack or oppose” is also the key component of the 
alternative statutory definition of “electioneering 
communication.” See 2 U.S.C. 434(f)(3)(A)(ii).
    The content standards set out in proposed paragraph (c) would apply 
to any person who or which pays for a communication, including 
political party committees. See proposed 11 CFR 109.37(a)(2), discussed 
below, which would cover coordination of communications paid for by 
political party committees. The Commission seeks comment on whether, in 
the context of coordination, communications paid for by political party 
committees should be analyzed under different or additional content 
standards. For example, should the promote-or-support or attack-or-
oppose content standard set out in Alternative B apply only to 
communications paid for by political party committees, and not to other 
persons? Should it be the only content standard applicable to 
communications paid for by political party committees?

Alternative C

    The third alternative, labeled “Alternative C” in the 
proposed rules, would represent a new approach. This possible content 
standard would attempt to focus as much as possible on the face of the 
public communication or on facts on the public record. This latter 
point is important. The intent would be to require as little 
characterization of the meaning or the content of communication, or 
inquiry into the subjective effect of the communication on the reader, 
viewer, or listener as possible. See Buckley v. Valeo, 424 U.S. 1, 
42–44 (1975). For example, it should not require inquiry into 
whether the communication “garners or diminishes support” 
for the candidate or was designed to urge the public to elect a certain 
candidate or party. Cf. AO 1984–15 and 1985–14 (the former 
“electioneering message” standard). Alternative C would be 
applied by asking if certain things are true or false about the face of 
the public communication or with limited reference to external facts on 
the public record.
    The proposed content standard would consist of a test based on 
three factors. If the public communication satisfies all three factors 
of the test, it would be deemed to satisfy the content standard.
    The first factor would be proximity in time to a Federal election. 
Proposed paragraph (c)(4)(i) would require that the public 
communication must be made 120 days or fewer before either a primary 
election or a general election in which a Federal candidate appears on 
the ballot. The 120-day time-frame would be borrowed from 2 U.S.C. 
431(20)(A)(i) (see 11 CFR 100.24(b)(1)), and it would have several 
advantages. First, it would be a “bright-line” rule. 
Second, it would focus the regulation on activity reasonably close to 
an election, but not so distant from the election as to implicate 
political discussion at other times. The Commission seeks comment on 
what, if any, regulation should apply more than 120 days from an 
election in this context.
    The second factor would relate to the intended audience of the 
public communication. Proposed paragraph (c)(4)(ii) would provide that 
a public communication must be “directed to voters in the 
jurisdiction of the clearly identified Federal candidate.” For 
example, a public communication that otherwise makes express statements 
about promoting or attacking Representative X or Senator Y for their 
stance on the “X–Y Bill” would not satisfy this 
requirement if it were only broadcast in Washington, DC, and not in 
either member's district or State. For purposes of this paragraph, 
“jurisdiction” would mean a member of Congress' district, 
the State of a U.S. Senator, and the entire United States for the 
President and Vice President in the general election or before the 
national nominating convention.
    The third factor, which would be in paragraph (c)(4)(iii), would 
focus on public communications that are specifically linked to a 
clearly identified candidate. This factor would look to whether the 
public communication, on its face, makes express statements about the 
record or position or views on an issue, or the character, or the 
qualifications or fitness for office, or party affiliation of a clearly 
identified candidate. If this factor is satisfied, in a context where 
the factors in proposed paragraphs (c)(4)(i) and (ii) are also 
satisfied, the combination of these factors would lead to the 
conclusion that the public communication satisfies the content 
standard.
    The Commission seeks comment on whether the third factor in 
Alternative C should be deleted from this proposed content standard. By 
deleting the third factor, the resulting content standard would 
resemble the “electioneering communication” content 
standard in proposed paragraph (c)(1), but with a broader time frame 
(120 days compared with 30 or 60 days) and with a different 
“targeting” requirement. Eliminating the third factor from 
Alternative C would allow for coordination to be established in the 
case of a communication that does not refer to a candidate's position 
on an issue, but rather refers specifically to a candidate along with 
his or her party's position on the issue or with the stand of another 
politician on the issue.
    The Commission notes that most of the proposed content standards 
would require that a communication refer to a clearly identified 
candidate. The Commission seeks comment on whether a person whose 
interactions with a political party committee satisfy the conduct 
standard, and who pays for a communication that merely says “Vote 
Democratic” or “Vote Republican,” should be deemed to 
have made a coordinated communication, even though no specific 
candidate is mentioned. Should proposed 11 CFR 109.21(c) include a 
content standard that would cover this type of communication?
D. Conduct Standards
    Proposed paragraph (d) of section 109.21 would list special types 
of conduct that would satisfy the “conduct standard” of the 
proposed, three-part coordination formula. Under the proposed rules, if 
one of these types of conduct is present, and the other requirements 
described in paragraphs (a) and (c) are satisfied, the communication 
would not be made “totally independently” from the 
candidate or party committee, see Buckley, 424 U.S. at 47, and thus 
would be coordinated. The Commission emphasizes that the conduct 
standards in proposed paragraph (d) would only apply if the 
communication in question also satisfies one or more of the 
“content standards” in proposed paragraph (c) of section 
109.21. The introductory sentence of proposed

[[Page 60050]]

paragraph (d) would implement a Congressional mandate in BCRA that the 
coordination regulation not require “agreement or formal 
collaboration.” Pub. L. 107–155, sec. 214(c) (March 27, 
2002); see more complete discussion below.

1. Request or Suggestion

    Under the Act, as amended by BCRA, an expenditure made by any 
person at the “request or suggestion” of a candidate, an 
authorized committee, a political party committee, or an agent of any 
of the foregoing is a contribution to the candidate or political party 
committee. 2 U.S.C. 441a(a)(7)(B)(i), (ii). The first proposed conduct 
standard, in proposed 11 CFR 109.21(d)(1), would implement this 
“request or suggestion” statutory language, which would 
have two prongs. Satisfying either prong would satisfy the proposed 
conduct standard.
    The first prong, in proposed paragraph (d)(1)(i), would be 
satisfied if the person creating, producing, or distributing the 
communication does so at the request or suggestion of a candidate, 
authorized committee, political party committee, or agent of any of the 
foregoing. The Buckley court originally drew on the 1974 House and 
Senate reports accompanying the 1974 Amendments to the Act when it 
upheld language in that Act that distinguished a communication made 
“at the request or suggestion” of the candidate or 
political party committee from those that are made “totally 
independently from the candidate and his campaign.” Buckley, 424 
U.S. at 47 (citing H.R. Rep. No. 93–1239, p. 6 (1974) and S. Rep. 
No. 93–689, p. 18 (1974)). A “request or suggestion” 
is therefore a form of coordination under the Act, as approved by 
Buckley. A request or suggestion encompasses the most direct form of 
coordination, given that the candidate or political party committee 
communicates desires to another person who effectuates them.
    The Commission notes that this provision, for example, would not 
apply to general appeals for support, such as a speech at a campaign 
rally, but, in appropriate cases, would apply to requests or 
suggestions to specific individuals or small groups for the creation, 
production, or distribution of communications.
    The second prong of the proposed “request or 
suggestion” conduct standard (proposed paragraph (d)(1)(ii)) 
would be satisfied if a person paying for the communication suggests 
the creation, production, or distribution of the communication to the 
candidate, authorized committee, political party committee, or agent of 
any of the foregoing, and the candidate or political party committee 
assents to the suggestion. This second prong of the proposed conduct 
standard would be intended to prevent circumvention of the statutory 
“request or suggestion” language (2 U.S.C. 
441a(a)(7)(B)(i), (ii)) by, for example, the expedient of implicit 
understandings that a candidate or political party committee never 
formally requests or suggests a communication, but nonetheless creates 
the expectation that the suggestion should be made by a person paying 
for the communication.
    The requirement of assent would limit the reach of the proposed 
regulation. A candidate or a political party committee would have 
accepted an in-kind contribution only if there is assent to the 
suggestion; by rejecting the suggestion, the candidate or political 
party committee may unilaterally avoid any coordination. The Commission 
requests comments on whether “express” assent should be 
required. Should the rule cover situations where assent is implied, and 
if so, how?
    As discussed above, the Buckley Court expressly recognized a 
request or suggestion by a candidate as a direct form of coordination 
resulting in a contribution. Buckley, 424 U.S. at 47. The Commission 
seeks comment on whether this unique nature of requests or suggestions 
by candidates or political party committees indicates that such conduct 
should be handled differently under the proposed coordination 
regulations. Specifically, should a request or suggestion for a 
communication by a candidate or political party committee be viewed as 
a special case, and as sufficient, in and of itself and without 
reference to a “content standard,” to establish 
coordination?

2. Materially Involved in Decisions

    The second conduct standard proposed 11 CFR 109.21(d)(2), would 
address situations in which a candidate, authorized committee, or a 
political party committee is “materially involved in 
decisions” regarding specific aspects of a public communication 
paid for by someone else. Those specific aspects would be listed in 
proposed paragraphs (i) through (vi) of paragraph (d)(2): (i) The 
content of the communication; (ii) the intended audience; (iii) the 
means and mode of the communication; (iv) the specific media outlet 
used; (v) the timing or frequency of the communication; or (vi) the 
size or prominence of a printed communication or duration of a 
communication on a television, radio, or cable station or by telephone.
    In this proposed regulation, “material” would have its 
ordinary legal meaning, which is “important; more or less 
necessary; having influence or effect; going to the merits.” 
Black's Law Dict. (6th ed. 1990) p. 976. Thus, the term 
“materially involved in decisions” would not be intended to 
encompass all interactions, only those which are important to the 
communication. In addition to the materiality of the candidate's 
involvement in decisions regarding the communication under proposed 
paragraph (d)(3) through (d)(5), the Commission would focus on the 
materiality of the information conveyed, and its specific use.
    A candidate or political party committee would be considered 
“materially involved” in the decisions enumerated in 
paragraph (d)(2) if either shares material information about campaign 
plans, projects, activities, or needs with the person making the 
communication. Likewise, a candidate or political party committee would 
be “materially involved in decisions” if the candidate, 
political party committee, or agent conveys approval or disapproval of 
the other person's plans. The Commission notes, however, that as with 
the “request or suggest” standard, the “materially 
involved” standard would not apply to general appeals for 
support, such as a speech, but specifically to the creation, 
production, or distribution of communications.
    The Commission invites comments on the wording and scope of this 
standard. In particular, the Commission welcomes comment on whether, 
and if so, how, the phrases “materially involved” and 
“decisions” should be further defined in the rules.

3. Substantial Discussion

    In BCRA, Congress also directed the Commission to address 
“payments for communications made by a person after substantial 
discussion about the communication with a candidate or political 
party.” Pub. L. 107–155, sec. 214(c)(4) (March 27, 2002). 
Under proposed paragraph (d)(3) of 11 CFR 109.21, a communication would 
meet the conduct standard if it is created, produced, or distributed 
after one or more substantial discussions between the person paying for 
the communication, or the person's agents, and the candidate clearly 
identified in the communication, his or her authorized committee, his 
or her opponent, or the opponent's authorized committee, a political 
party committee, or their agents. Proposed paragraph (d)(3) would 
explain that a “discussion”

[[Page 60051]]

would be “substantial” if information about the plans, 
projects, activities, or needs of the candidate or political party 
committee that is material to the creation, production or distribution 
of the communication is conveyed to a person paying for the 
communication. “Discuss” would have its plain and ordinary 
meaning, which the Commission understands to mean an interactive 
exchange of views or information. “Material” would have the 
meaning explained above in the context of proposed paragraph (d)(2) of 
section 109.21 (“material involvement”). In other words, 
the substantiality of the discussion would be measured by the 
materiality of the information conveyed in the discussion. The 
Commission seeks comments as to whether additional explanation or 
examples should be provided to further refine the term 
“substantial discussion.”

4. Employment of Common Vendor

    In BCRA, Congress required the Commission to address “the use 
of a common vendor” in the context of coordination. Pub. L. 
107–155, sec. 214(c)(2) (March 27, 2002). Proposed paragraph 
(d)(4) of section 109.21 would create a conduct standard to implement 
this Congressional mandate. It would explain what a common vendor is, 
and provide that the use of a common vendor in the creation, 
production, or distribution of a communication satisfies the conduct 
standard if three conditions are all met.
    The first condition, in proposed paragraph (d)(4)(i), would be that 
the person paying for the communication, or the agent of such a person, 
must contract with, or employ, a “commercial vendor” to 
create, produce, or distribute the communication. The term 
“commercial vendor” is defined in the Commission's pre-BCRA 
regulations as “any person[] providing goods or services to a 
candidate or political committee whose usual and normal business 
involves the sale, rental, lease, or provision of those goods or 
services.” 11 CFR 116.1(c). Thus, this standard would only apply 
to a vendor whose usual and normal business includes the creation, 
production, or distribution of communications, and would not apply to 
the activities of persons who do not create, produce, or distribute 
communications as a commercial venture.
    The second condition, in proposed paragraph (d)(4)(ii), would be 
that the commercial vendor must have a previous or current relationship 
with the candidate or political party committee that puts the 
commercial vendor in a position to acquire material information about 
the plans, projects, activities, or needs of the candidate or political 
party committee. This previous or current relationship would be defined 
in terms of nine specific services related to campaigning and campaign 
communications, which would be enumerated in proposed paragraphs 
(d)(4)(ii)(A) through (I). Note that these services would have to have 
been rendered during the current election cycle. Such a previous or 
current relationship, as defined, would put the “common 
vendor” in a position to convey material information about the 
plans, projects, activities, or needs of the candidate or political 
party committee to the person paying for the communication.
    The proposed regulation refers to the current election cycle as a 
temporal limit on the operation of the regulation. “Election 
cycle” would have the meaning defined in 11 CFR 100.3. The 
Commission seeks comment on whether a different time period, such as a 
fixed two-year period, would more accurately align the proposed rule 
with existing campaign practices. Or, should the time limit be the 
“the current election cycle, but not more than the previous two 
years of that election cycle”?
    The third condition, in proposed paragraph (d)(4)(iii), would 
require that the commercial vendor make use of or convey material 
information about, the plans, projects, activities, or needs of the 
candidate or political party committee, or material information used by 
the commercial vendor in serving the candidate or political party 
committee, to the person paying for the communication. This requirement 
would be intended to encompass situations in which the vendor assumes 
the role of a conduit of information between a candidate or political 
party committee and the person making or paying for the communication, 
as well as situations in which the vendor makes use of the information 
received from the candidate or political party committee without 
actually transferring that information to another person.
    The Commission seeks comment about whether the conduct standard in 
proposed paragraph (d)(4) would adequately address the Congressional 
mandate in section 214(c)(2) of BCRA. The Commission also seeks comment 
on whether purchasing advertising time slots for television, radio, or 
other media should be added to the list of common vendor services 
covered in proposed paragraph (d)(4)(ii).

5. Former Employee/Independent Contractor

    In BCRA, Congress required the Commission to address “persons 
who previously served as an employee of” a candidate or political 
party committee in the context of coordination. Pub. L. 107–155, 
sec. 214(c)(3) (March 27, 2002). Proposed paragraph (d)(5) of section 
109.21 would create a conduct standard to implement this Congressional 
mandate.
    Proposed paragraph (d)(5) would apply to communications paid for by 
a person who was previously an employee or an independent contractor of 
a candidate, authorized committee, or political party committee, or by 
the employer of such a person. Note that this employment or independent 
contractor relationship would have to exist during the current election 
cycle, as a temporal limit on the operation of the regulation. 
“Election cycle” would have the meaning defined in 11 CFR 
100.3. As discussed above with regard to proposed paragraph (d)(4) on 
common vendors, the Commission requests comments on whether this time 
period should be a fixed two-year period, or the same election cycle, 
but not more than two years.
    This proposed conduct standard would expressly extend to a person 
who had previously served as an “independent contractor” of 
a candidate or political party committee to preclude circumvention of 
the rule by the expedient of characterizing an “employee” 
as an “independent contractor” where the characterization 
makes no difference in the person's relationship with the candidate or 
political party committee. This proposed coordination standard would 
also apply to the employer of a person who was an employee or 
independent contractor of a candidate, authorized committee, or 
political party committee. The Commission interprets the Congressional 
intent behind section 214(c)(3) of BCRA to encompass situations in 
which former employees, who by virtue of their former employment have 
been in a position to acquire material information about the plans, 
projects, activities, or needs of the candidate or political party 
committee, may subsequently use that information or convey it to a 
person paying for a communication.
    Proposed paragraph (d)(5) would require that the former employee 
actually make use of, or convey material information about, the plans, 
projects, activities, or needs of the candidate or political party 
committee, or material information used by the former

[[Page 60052]]

employee in serving the candidate or political party committee, to the 
person paying for the communication. As with the proposed conduct 
standard covering common vendors, this requirement would be intended to 
encompass both situations in which the former employee assumes the role 
of a conduit of information and situations in which the former employee 
makes use of the information but does not share it with the person who 
is paying for the communication.
    The Commission proposes this conduct standard to address what it 
understands to be Congress' primary concern, which is a situation in 
which a former employee of a candidate goes to work for a third party 
that pays for a communication that promotes or supports the former 
employer/candidate or attacks or opposes the former employer/
candidate's opponent. The conduct standard, as proposed, does not 
require that the former employee act under the continuing direction or 
control of, at the behest of, or on behalf of, his or her former 
employer. This is because a former employee who acts under such 
circumstances is a present agent, and would presumably be regulated as 
an agent, not as a former employee. To give effect to the statutory 
language that mandates the Commission's coordination regulations 
address “former employees” (see Pub. L. 107–155, sec. 
214(c)(3)) the Commission assumes that a “former employee,” 
as that term is used in the statute, must be different from 
“agent.”
    The Commission seeks comment on whether a requirement of continuing 
direction or control by the former employer/candidate should be added 
to the proposed conduct standard. Consider, for example, an employee of 
a candidate in a contested primary who leaves the employment of that 
candidate to work for a third-party organization that makes a 
communication satisfying one or more of the proposed content standards. 
Under the proposed conduct standard, that third-party organization 
could be found to make an in-kind contribution. Assuming that the 
former employee is not acting under the continuing direction or control 
of, at the behest of, or on behalf of, his or her former employer, it 
can be argued that the third-party organization is making an 
independent expenditure or a non-coordinated disbursement for an 
electioneering communication, albeit with the windfall of the former 
employee's knowledge. Should the regulation provide that the third-
party organization does not make an in-kind contribution in this 
specific circumstance?
    The Commission also seeks comment on a related situation 
illustrated by the following example. Consider an employee, disgruntled 
or otherwise, of a candidate in a contested primary who leaves the 
employment of that candidate to work for a third-party organization 
that makes a communication satisfying one or more of the proposed 
content standards. Under the proposed conduct standard, that third-
party organization could be found to make an in-kind contribution. But 
suppose the third-party organization uses information gained by the 
employee to run ads critical of the former employer or that favor the 
opponent of the former employer? Assume also that the third-party 
organization has no contact with the opponent, his campaign or any 
agent of the opponent. Should the Commission consider those 
communications to be in-kind contributions to the candidate who is the 
intended beneficiary? Or, assuming that the communication would 
otherwise qualify as an independent expenditure or electioneering 
communication, should the Commission merely consider this third-party 
communication to be either an independent expenditure or a no-
coordinated disbursement for an electioneering communication?
    The Commission seeks comment about whether this proposed conduct 
standard should be extended to volunteers, such as “fundraising 
partners,” who by virtue of their relationship with a candidate 
or a political party committee, have been in a position to acquire 
material information about the plans, projects, activities, or needs of 
the candidate or political party committee.
E. No Requirement of Agreement or Formal Collaboration
    When Congress, in BCRA, required the Commission to promulgate new 
regulations on coordinated communications, it specifically barred any 
regulatory requirement of “agreement or formal 
collaboration” to establish coordination. Pub. L. 107–155, 
sec. 214(c) (March 27, 2002). The proposed regulation at 11 CFR 
109.21(e) would explicitly implement that Congressional mandate. 
Although Congress did not define this term, the Commission notes that 
earlier versions of BCRA stated that “collaboration or 
agreement” would not be required to show coordination. See S. 27, 
107th Cong., 1st Sess. (as passed by the Senate and transferred to the 
House, 478 Cong. Rec. H2547 (May 22, 2001)). The phrase 
“agreement or formal collaboration” reached its final form 
through a substitute amendment to H.R. 2356 offered by Representative 
Shays. See H. Amdt. 417, 478 Cong. Rec. H393 through H492 (February 13, 
2002).
    The Commission would therefore attach significance to the addition 
of the term “formal” as it modifies the term 
“collaboration.” Thus, the conduct standards proposed in 
paragraph (d) of section 109.21 would require some degree of 
collaboration. However, proposed paragraph (e) would state that this 
collaboration need not be “formal,” in the sense of being 
planned or systematically approved or executed.
    Under proposed paragraph (e), the word “agreement” 
would be explained as well. A finding of coordination under proposed 
section 109.21 would not require a showing of a mutual understanding or 
meeting of the minds as to all, or even most, of the material aspects 
of a communication. Even a minimal amount of agreement would mean the 
communication would not be made “totally independently” 
from the candidate or party. See Buckley, 424 U.S. at 47. In the case 
of a request or suggestion under proposed paragraph (d)(1) of section 
109.21, agreement is not required at all.
F. Should Exceptions Apply to the Content and Conduct Standards?
    Proposed 11 CFR 109.21 does not include any exceptions. The 
Commission seeks comment on whether exceptions to the proposed content 
or conduct standards should be included in the final rule. For example, 
should there be an exception to the content standards for 
communications that refer to the “popular name” of a bill 
or law that includes the name of a Federal candidate who was a sponsor 
of the bill or law? Should there be an exception to the conduct 
standards for a candidate's response to an inquiry about his or her 
position on legislative or policy issues?

IV. Proposed 109.22 Who Is Prohibited From Making Coordinated 
Communications?

    The Commission proposes a separate section to make it clear that 
any person who is otherwise prohibited from making a contribution or 
expenditure is also prohibited from making a coordinated communication. 
The Commission seeks comment on whether it is necessary to include this 
separate section.

[[Page 60053]]

Proposed Subpart D of Part 109—Special Provisions for Political 
Party Committees

I. Proposed 11 CFR 109.30 How are Political Party Committees 
Treated for Purposes of Coordinated and Independent Expenditures?

    National, State, and subordinate committees of political parties 
may make expenditures up to prescribed limits in connection with the 
general election campaigns of Federal candidates without counting such 
expenditures against the committees' contribution limits. See 2 U.S.C. 
441a(d). These expenditures are commonly referred to as 
“coordinated party expenditures.” Political party 
committees, however, need not demonstrate actual coordination with 
their candidates to avail themselves of this additional spending 
authority.
    In BCRA, Congress sets certain new restrictions on these 
“coordinated party expenditures” and related restrictions 
on political party committee independent expenditures. There are also 
certain new restrictions on transfers and assignments of coordinated 
party expenditure authorizations between party committees. 2 U.S.C. 
441a(d)(4)(A) through (C).
    The Commission proposes an introduction to subpart D of part 109 
that would state how political party committees are treated for 
purposes of coordinated and independent expenditures. Proposed section 
109.30 would first clarify that party committees may make independent 
expenditures subject to the provisions of proposed sections 109.35 and 
109.36. (See discussion below.) Second, proposed section 109.30 would 
explain that political party committees may support candidates with 
“coordinated party expenditures,” a term that would be 
defined at proposed 11 CFR 109.31, and would state that these 
coordinated party expenditures are subject to limits that are separate 
from and in addition to the contribution limits at 11 CFR 110.1 and 
110.2.

II. Proposed 11 CFR 109.31 What Is a “Coordinated Party 
Expenditure”?

    FECA provides a special expenditure authority for coordinated party 
expenditures that is available only to certain political party 
committees. 2 U.S.C. 441a(d). The Commission would, in proposed section 
109.31, define “coordinated party expenditures” to include 
payments made by a national committee of a political party and a State 
committee of a political party, including any subordinate committee of 
a State committee, for something of value in connection with the 
general election campaign of a candidate. Proposed section 109.31 would 
also introduce the term “party coordinated communication” 
(which would be defined in proposed section 109.37) as an example of 
something of value for which political party committees may make a 
coordinated party expenditure.

III. Proposed 11 CFR 109.32 What Are the Coordinated Party 
Expenditure Limits?

    The Commission proposes to move the coordinated party expenditure 
limits found at pre-BCRA 11 CFR 110.7(a) and (b) to proposed section 11 
CFR 109.32. This new section would retain the basic organizational 
structure of paragraphs (a) and (b) of pre-BCRA section 110.7.
    The Commission would set forth in proposed paragraph (a), in 
amended fashion, the coordinated party expenditure limit for the 
national committee of a political party for presidential elections that 
appears at pre-BCRA section 110.7(a). Because political party 
committees may also make independent expenditures, Colorado I, 518 U.S. 
at 618, the Commission would clarify that the 
“expenditures” referred to in proposed section 109.32 are 
“coordinated party expenditures.” This change also appears 
in proposed paragraphs (a)(1), (2), (3), and (4) of section 109.32. In 
addition, proposed paragraph (a)(2), setting out the coordinated party 
expenditure limit at two cents multiplied by the voting age population 
of the United States, would state that this limit shall be increased in 
accordance with 11 CFR 110.17, which would amend pre-BCRA 11 CFR 
110.9(c). See Notice of Proposed Rulemaking, Contribution Limitations 
and Prohibitions, 67 FR 54366 (August 22, 2002.) In addition, proposed 
paragraph (a)(2) of section 109.32 would refer to the term 
“voting age population” at proposed 11 CFR 110.18, 
discussed below.
    Further, proposed 11 CFR 109.32(a)(4), to which pre-BCRA 11 CFR 
110.7(a)(6) would be moved, would provide that coordinated party 
expenditures on behalf of presidential candidates do not count against 
the candidate's expenditure limitations under 11 CFR 110.8. Proposed 
paragraph (a)(4) of section 109.32 would also state that the national 
party committee may make such expenditures and may assign their 
spending authority to other political party committees to do so under 
proposed section 109.33, which is discussed below.
    Proposed paragraph (b) would set forth, and make minor changes to, 
the regulations, pre-BCRA, at 11 CFR 110.7(b) addressing coordinated 
party expenditure limits of the national committee of a political party 
and a State committee of a political party, including any subordinate 
committee of a State committee, for Federal elections other than 
presidential elections. As in proposed paragraph (a) above, proposed 
paragraph (b) would specify that the “expenditures” 
referred to in paragraphs (b)(1), (2), and (4) are coordinated party 
expenditures. In addition, proposed paragraph (b)(2), setting out the 
coordinated party expenditure limits of two cents multiplied by the 
voting age population of the United States and dollar figures of 
$10,000 and $20,000, would be subject to proposed paragraphs (b)(3) and 
(b)(4) regarding inflation adjustments and the relationship with 
contribution limits.

IV. Proposed 11 CFR 109.33 May a Political Party Committee Assign 
Its Coordinated Party Expenditure Authority to Another Political Party 
Committee?

    Proposed 11 CFR 109.33 would continue the pre-BCRA rule permitting 
assignment of coordinated party expenditure authority between political 
party committees by consolidating the authorizing provisions found in 
the pre-BCRA regulations at 11 CFR 110.7(a)(4) and (c). Such 
assignments, however, would be prohibited under certain circumstances 
in which the assigning political party committee had made coordinated 
party expenditures (using part of the spending authority) and the 
intended assignee political party committee had made or intends to make 
independent expenditures with respect to the same candidate during an 
election cycle. See 2 U.S.C. 441a(d)(4)(C) and proposed 11 CFR 
109.35(c).
    Proposed paragraph (a) of section 109.33 would also restate the 
Commission's longstanding policy that a political party committee with 
authority to make coordinated party expenditures may assign all or part 
of that authority to other political party committees, and that this 
interpretation extends to both national and State committees of 
political parties. See Campaign Guide for Political Party Committees at 
p.16 (1996). Proposed paragraph (a) of section 109.33 would also state 
that coordinated party expenditure authority may be assigned only to 
other political party committees. See 2 U.S.C. 441a(d), and pre-BCRA 11 
CFR 110.7(a)(4), which indicates that coordinated expenditures may be 
made “through any designated agent, including State and 
subordinate party committees.” The Commission makes this change 
to

[[Page 60054]]

preclude confusion, and possible circumvention of the restrictions on 
transfers and assignments between political party committees found in 
BCRA. 2 U.S.C. 441a(d)(4)(B), (C).
    Proposed paragraph (a) would provide that whenever a political 
party committee authorized to make coordinated party expenditures 
assigns another political party committee to use part or all of its 
spending authority, the assignment must be in writing, must specify a 
dollar amount, and must be made before the assigned party committee 
actually makes the coordinated party expenditure. See Campaign Guide 
for Political Party Committees at p.16 (1996). This would apply to both 
national and State party committees.
    Proposed paragraph (b) of section 109.33 would continue the pre-
BCRA rule in 11 CFR 110.7(c) that, for purposes of the coordinated 
spending limits, a State committee includes subordinate committees of 
the State committee. Proposed paragraph (b) of section 109.33 would add 
district and local political party committees (see 11 CFR 100.14(b)) to 
the extent that they are assigned authority to make coordinated party 
expenditures by another political party committee.
    Finally, proposed paragraphs (b)(1) and (2) of section 109.33 would 
contain the pre-BCRA rule in 11 CFR 110.7(c)(1) and (2) setting out 
State committees' methods of administering the coordinated party 
expenditure authority.
    The Commission seeks comments on whether to require political party 
committees to attach copies of written assignments to reports they file 
with the Commission, or to fax or e-mail them if they are electronic 
filers.

V. Proposed 11 CFR 109.34 When May a Political Party Committee 
Make Coordinated Party Expenditures?

    Proposed 11 CFR 109.34 would continue the pre-BCRA rule in 11 CFR 
110.7(d) permitting a political party committee to make coordinated 
party expenditures in connection with the general election campaign 
before or after its candidate has been nominated. All pre-nomination 
coordinated expenditures would continue to be subject to the 
coordinated party expenditure limitations, whether or not the candidate 
on whose behalf they are made receives the party's nomination.

VI. Proposed 11 CFR 109.35 What are the Restrictions on a 
Political Party Committee Making Both Independent Expenditures and 
Coordinated Party Expenditures in Connection with a Candidate's 
Campaign?

    Under BCRA, Congress prohibits political party committees, under 
certain conditions, from making coordinated party expenditures, 
independent expenditures, and transfers and assignments to other 
political party committees. 2 U.S.C. 441a(d)(4). Congress plainly 
intended to combine certain political party committees into a 
collective entity or entities for purposes of these prohibitions. 2 
U.S.C. 441a(d)(4)(B). The statutory language and legislative history 
raise a significant threshold question of statutory interpretation: 
Whether an entire, nationwide political party is to be treated as a 
single entity or as separate national and State political party 
entities for the purposes of these restrictions. The Commission would 
adopt the latter approach in proposed 11 CFR 109.35. This 
interpretation, in turn, raises additional issues regarding which 
political party committees are to be included in certain defined groups 
of political party committees for the purposes of the new restrictions 
in BCRA.
A. Applicability of Prohibitions

1. Statutory Interpretation

    Congress provided that for the purposes of these new prohibitions, 
sbull “all political committees established and maintained 
by a national political party (including all Congressional campaign 
committees) and all political committees established and maintained by 
a State political party (including any subordinate committee of a State 
committee) shall be considered to be a single political 
committee.” 2 U.S.C. 441a(d)(4)(B).
    One reading of this statutory provision would combine all 
committees established and maintained by a political party at all 
levels into “a single political committee” for the purposes 
of the prohibitions discussed below. An alternative reading would 
provide that all committees established and maintained by a national 
political party, including Congressional campaign committees, would be 
“a single political committee,” while all committees 
established and maintained by a given State political party, including 
any subordinate committee of a State committee, would be another 
“single political committee.” The Commission notes that the 
Senate sponsors of BCRA stated that all national and State committees 
of a political party are considered to be one entity for the purposes 
of the prohibitions codified at 2 U.S.C. 441a(d)(4). See 148 Cong. Rec. 
S1993 (daily ed. March 18, 2002) (section-by-section analysis included 
by Sen. Feingold in the Record); 148 Cong. Rec. S2144 (daily ed. March 
20, 2002) (statement of Sen. McCain).
    One of the new prohibitions, regarding political party committee 
transfers and assignments, would appear to imply that political parties 
are inherently divisible into different groups of political committees. 
See 2 U.S.C. 441a(d)(4)(C). This is because, without more than one 
group of political party committees, no transfers or assignments 
between political party committee groups could occur. In other words, 
if there were only a single group, there could be no transfers or 
assignments and thus this provision would be without effect. See 
Colautti v. Franklin, 439 U.S. 379, 392 (1979) (it is an 
“elementary canon of construction that a statute should be 
interpreted so as not to render one part inoperative”). 
Therefore, to give the transfers and assignments provision effect, the 
Commission believes that BCRA may contemplate multiple groups of 
political party committees. See 2 U.S.C. 441a(d)(4). The Commission 
seeks comment on this interpretation of the statute.

2. Proposed Rule

    In light of the foregoing statutory interpretation, proposed 11 CFR 
109.35 would contemplate multiple political party committee groups. 
Proposed paragraphs (a)(1) and (a)(2) would apply this interpretation 
by combining all political committees established and maintained by a 
national political party into one group and all political committees 
established and maintained by a given State political party into 
another group. See 2 U.S.C. 441a(d)(4)(B). The Commission would use 
these “political party groups” to implement the 
prohibitions discussed below.
    Under proposed paragraph (a)(1), the national “political 
party group” would combine the national committee of a given 
political party, all Congressional campaign committees of that 
political party, and all political committees established, financed, 
maintained, or controlled by any of the foregoing. The Commission notes 
that the phrase, sbull I11“established, financed, 
maintained, or controlled” would differ from the statutory 
phrase, “established and maintained.” The proposed 
formulation, however, would be

[[Page 60055]]

consistent with, and serve the same purposes as, the analogous anti-
proliferation provision in FECA. 2 U.S.C. 441a(a)(5). Under section 
441a(a)(5), for the purposes of the contribution limitations, all 
contributions made by political committees “established or 
financed or maintained or controlled” by the same person or 
entity shall be considered to have been made by a single political 
committee. 2 U.S.C. 441a(a)(5).
    A State “political party group” would combine the State 
committee of a given political party in a given State, all subordinate 
committees of that State committee, and all district or local 
committees of that political party within that State that meet the 
definition of “political committee” under 11 CFR 100.5. See 
proposed 11 CFR 109.35(a)(2). Subordinate committees are expressly 
mentioned in the statute. 2 U.S.C. 441a(d)(4)(B).
    The Commission notes that the prohibitions discussed below would 
appear to apply to district or local committees because those 
prohibitions apply to any “committee of a political party.” 
See 2 U.S.C. 441a(d)(4)(A) and (C). The regulatory definition of 
district and local committee includes the requirement that the 
organization be part of the “official party structure.” 11 
CFR 100.14(b).
    The Commission notes that the phrase “established, financed, 
maintained, or controlled” would differ from the statutory phrase 
“established and maintained.” See 2 U.S.C. 441a(d)(4)(B). 
The proposed rule would be based on the Commission's definitions of 
“State committee” and “subordinate committee” 
at 11 CFR 100.14(a) and (c), which both use the phrase 
“established, financed, maintained, or controlled,” given 
that both would be included in the proposed State political party 
group.
    The Commission seeks comment on the proposed combinations of 
committees of a political party into a national political party group 
and into State political party groups. For example, should the State 
political party group in a given State include district or local 
committees in that State only to the extent that the State party 
exercises functional control over them?
B. Prohibition on Certain Coordinated and Independent Expenditures
    Congress provided in BCRA that on or after the date on which a 
political party nominates a candidate, no “committee of the 
political party” may make: (1) Any coordinated expenditure under 
2 U.S.C. 441a(d) with respect to the candidate during the election 
cycle at any time after “it” makes any independent 
expenditure with respect to the candidate during the election cycle; or 
(2) any independent expenditure with respect to the candidate during 
the election cycle at any time after “it” makes any 
coordinated expenditure under 2 U.S.C. 441a(d) with respect to the 
candidate during the election cycle. 2 U.S.C. 441a(d)(4)(A).
    Arguably, the use of the pronoun “it” in the statute is 
ambiguous in that it could be construed to refer either to the entire 
political party or to only a committee within the party. However, as 
explained above, the Commission would interpret the statute in terms of 
national and State “political party groups.” In the terms 
of this proposed interpretation, “it” would be construed to 
mean a given “political party group.” Thus, the Commission 
would interpret the prohibition on making both independent and 
coordinated expenditures with respect to a given candidate after 
nomination as applying to the “political party groups” 
defined above, and not to the party as a whole.
    The language of proposed paragraph (b) would generally track the 
statutory language, but would employ new terms in places to clarify its 
application. Proposed 11 CFR 109.35(b)(1) would prohibit a political 
committee within a political party group from making any post-
nomination coordinated party expenditure under section 109.32 in 
connection with the general election campaign of a candidate at any 
time after any committee within that political party group makes any 
post-nomination independent expenditure with respect to that candidate. 
2 U.S.C. 441a(d)(4). Proposed paragraph (b)(2) would prohibit a 
political committee within a political party group from making any 
post-nomination independent expenditure with respect to a candidate at 
any time after any political committee within that political party 
group makes any post-nomination coordinated expenditure under section 
109.32 in connection with the general election campaign of that 
candidate. As soon as a political committee within a political party 
group makes an independent expenditure or a coordinated party 
expenditure with respect to a candidate after nomination, all political 
committees within that political party group are bound during the 
remainder of the election cycle to whichever type of expenditure the 
first political committee makes. 2 U.S.C. 441a(d)(4).
    The restrictions in proposed paragraphs (b)(1) and (b)(2) would 
apply “during the remainder of the election cycle.” See 2 
U.S.C. 441a(d)(4)(A). This would clarify that proposed paragraph (b) 
would apply to exclusively post-nomination events through the end of 
the election cycle. The prohibitions would apply to political 
committees within a political party group upon the first post-
nomination independent or coordinated expenditure by a committee within 
that political party group and would run until the end of the election 
cycle.
    The Commission notes that coordinated party expenditures and 
independent expenditures made by a political committee within a 
political party group before nomination would have no bearing on the 
application of proposed paragraph (b).
    Under proposed paragraph (d)(2) of section 109.35, the term 
“election cycle” has the meaning in 11 CFR 100.3(b), except 
that the election cycle ends on the date of the general election 
runoff, if one is held. For purposes of 11 CFR 109.35, “election 
cycle” would thus begin on the first day following the date of 
the previous general election for the office or seat which the 
candidate seeks and ending on the date on which the general election 
for the office or seat that the individual seeks is held, or on the 
date of any general election runoff is held. Since proposed paragraph 
(b) of section 109.35 would only apply after nomination, see 2 U.S.C. 
441a(d)(4), the “election cycle” period for this provision 
would effectively extend from nomination through the general election 
or general election runoff. Finally, the Commission notes that the 
political party of a candidate running in a general election runoff 
would not be permitted an additional coordinated party expenditure 
authority with respect to that candidate for the runoff. See Democratic 
Senatorial Campaign Committee v. FEC, No. 93–1321 (D.D.C., 
November 14, 1994.)
    In proposed paragraph (d)(1), the Commission would define when 
independent expenditures that are made by a political party committee 
are “with respect to” a candidate, for purposes of section 
109.35. Independent expenditures made “with respect to” a 
candidate would include those independent expenditures expressly 
advocating the defeat of any other candidate seeking nomination for 
election, or election, to the Federal office sought by that party's 
candidate. The Commission's proposed definition would facilitate the 
appropriate coverage, and help avoid circumvention, of the prohibitions 
at proposed paragraph (b) of section 109.35 discussed above and 
proposed paragraph (c) of section 109.35 discussed below. See proposed 
11 CFR 100.16 (definition of express advocacy

[[Page 60056]]

that includes communications expressly advocating the “election 
or defeat” of a clearly identified candidate).
C. Prohibition on Certain Transfers and Assignments
    Congress provided in BCRA that a “committee of a political 
party” that makes coordinated party expenditures with respect to 
a candidate shall not, during an election cycle, transfer any funds to, 
assign authority to make coordinated party expenditures under 2 U.S.C. 
441a(d) to, or receive a transfer of funds from, a “committee of 
the political party” that has made or intends to make an 
independent expenditure with respect to the candidate. 2 U.S.C. 
441a(d)(4)(C). Congress apparently intended to prevent a circumvention 
of the prohibition against making both coordinated and independent 
expenditures by means of transfers or assignments. On its face, this 
prohibition applies only to a “committee of a political 
party” that is making coordinated party expenditures with respect 
to a candidate. Although Congress prohibits transfers in either 
direction between a party committee making coordinated party 
expenditures and a political party committee making or intending to 
make independent expenditures with respect to the same candidate, 
Congress prohibits assignments of coordinated party expenditure 
spending authority only from the political party committee making 
coordinated expenditures to a political party committee making or 
intending to make independent expenditures, and not in the other 
direction.
    Proposed paragraph (c) of 11 CFR 109.35 would generally track the 
statutory language in 2 U.S.C. 441a(d)(4)(C), employing the terms 
defined in proposed section 109.35. It would prohibit transfers of 
funds and some assignments of authority to make coordinated party 
expenditures between political committees in different political party 
groups after the occurrence of two events: (1) A political committee 
within a political party group makes a coordinated party expenditure in 
connection with the general election campaign of a candidate, and (2) a 
political committee within another political party group makes an 
independent expenditure or declares its intention to do so with respect 
to the same candidate. After these two events take place, no political 
committee within one political party group would be able make any 
transfers to, or receive any transfers from, any political committee 
within the other political party group during the remainder of the 
election cycle. Also, after these two events take place, no political 
committee within a political party group electing to make coordinated 
party expenditures would be able to assign authority to make 
coordinated party expenditures in connection with the general election 
campaign of a candidate to any political committee within the political 
party group electing to make independent expenditures during the 
remainder of the election cycle. This proposed provision would not, 
however, prohibit transfers and assignments between committees within a 
given political party group.
    The Commission seeks comment on the approach in proposed 11 CFR 
109.35(c). Should the Commission set forth rules requiring party 
committees to keep track of the expenditure activities of other party 
committees, within the same or another political party group? Cf. 
proposed section 109.33, pre-BCRA 11 CFR 110.7(c), which places 
responsibility on the State committee to insure that the coordinated 
party expenditures of the entire party organization are within the 
limitations.
    In proposed 11 CFR 109.35(c), the Commission would replace the 
statutory phrase “during the election cycle” in the statute 
with “during the remainder of the election cycle.” See 2 
U.S.C. 441a(d)(4)(C). As noted above, the transfer prohibitions would 
only go into effect after the occurrence of the two specific events. 
Thus, the period during which the prohibitions would apply would start 
after the occurrence of both events and run until the end of the 
election cycle.
    In contrast to the prohibition on a party committee making both 
independent and coordinated expenditures with respect to a candidate, 
that is expressly limited to the post-nomination period, the transfers 
and assignments provision does not include the same restriction and 
thus could apply prior to nomination as well as after nomination. See 2 
U.S.C. 441a(d)(4)(A) and (C); proposed 11 CFR 109.34, which would be 
renumbered from 11 CFR 110.7(d) (party committees may make coordinated 
expenditures in connection with the general election campaign before 
their candidates have been nominated); see also Colorado I (involved 
pre-nomination independent expenditures by a State party committee). 
Indeed, the Commission's proposed rules regarding “election 
cycle” would clarify that the prohibitions in proposed 11 CFR 
109.35(c) could take effect prior to nomination. As noted above, 
“election cycle” begins on the first day following the date 
of the previous general election, and may span a two, four, or six year 
period depending on the office sought, although in practice it would be 
unusual for the prohibitions of proposed 11 CFR 109.35(c) to go into 
effect far before the date of nomination. In addition, such 
prohibitions would only go into effect. After a committee within one 
political party group made a coordinated party expenditure with respect 
to the candidate and a committee within another political party group 
made or intended to make an independent expenditure with respect to the 
same candidate. See proposed 11 CFR 109.35(c).
    Comment is sought on the distinction between the post-nomination 
application of proposed 11 CFR 109.35(b) and the pre- and post-
nomination application of proposed 11 CFR 109.35(c). As an alternative 
approach, is there an interpretation of the transfers and assignments 
provision in the statute such that the prohibitions would only apply 
after nomination? See 2 U.S.C. 441a(d)(4)(C).
    Comment is also sought on whether the prohibitions in proposed 
paragraph (c) should only go into effect after the occurrence of the 
two specified expenditures. Is there an interpretation of 2 U.S.C. 
441a(d)(4)(C) that would restrict transfers and assignments prior to a 
political party group making coordinated expenditures with respect to a 
candidate and the other political party group making or intending to 
make independent expenditures with respect to the candidate?
    Finally, the Commission notes that it is not at this time proposing 
specific rules to implement the statutory language “intends to 
make” an independent expenditure with respect to the candidate. 2 
U.S.C. 441a(d)(4)(C). The Commission seeks comment on whether such 
rules are necessary, and if so, how would they implement the statutory 
language.
D. Impact of Political Party Committee Activity Carried Out Pursuant to 
Contribution Limits
    2 U.S.C. 441a(d)(4) applies to coordinated party expenditures and 
to political party committee independent expenditures. Congress did not 
directly address political party committees' monetary and in-kind 
contributions to candidates that are subject to the contribution limits 
under 2 U.S.C. 441a(a) and 441a(h). See 2 U.S.C 441a(d)(1) 
(”Notwithstanding any other provision of law with respect to 
. . . limitations on contributions, [political party 
committees] may make expenditures in connection with the

[[Page 60057]]

general election campaign of candidates for Federal office, subject to 
the limitations contained [in this subsection]” [emphasis 
added]). See also proposed 11 CFR 109.30, 109.32.
    Political party committees may make in-kind contributions to a 
candidate in the form of party coordinated communications, as addressed 
in proposed 11 CFR 109.37. The Commission notes that such coordination 
between political party committee and candidate may compromise the 
actual independence of any simultaneous or subsequent independent 
expenditures the political party committee may attempt with respect to 
that candidate. See Buckley v. Valeo, 424 U.S. at 47 (in striking down 
limits on independent expenditures, the Court described such 
expenditures as made “totally independently of the candidate and 
his campaign” [emphasis added]). Comment is sought on this 
analysis.
E. Transfers under 11 CFR 102.6(a)(1)(ii)
    As a result of the enactment of 2 U.S.C. 441a(d)(4) and other 
provisions from BCRA affecting transfers between political party 
committees, the Commission proposes to revise 11 CFR 102.6(a)(1)(ii) to 
clarify the interaction of this section with certain provisions of 
BCRA. Before BCRA, the Commission permits unlimited transfers between 
or among national party committees, State party committees and/or any 
subordinate committees. See pre-BCRA 11 CFR 102.6(a)(1)(ii).
    First, in BCRA, Congress provided that a national committee of a 
political party, including a national Congressional campaign committee 
of a political party, may not solicit, receive, or direct to another 
person a contribution, donation, or transfer of funds or other thing of 
value, or spend any funds, that are not subject to the limitations, 
prohibitions, and reporting requirements of FECA. 2 U.S.C. 441i(a); see 
Explanation and Justification for 11 CFR 300.10(a), 67 FR 49122 (July 
29, 2002).
    Second, in the “Levin Amendment,” Congress placed 
restrictions on how State, district, and local party committees raise 
“Levin funds” and prohibited certain transfers between 
political party committees. See 2 U.S.C. 441i(b)(2)(C)(i); Explanation 
and Justification for 11 CFR 300.31, 67 FR 49124 (July 29, 2002).
    Third, also in the Levin Amendment, Congress provided that a State, 
district, or local committee of a political party that spends Federal 
funds and Levin funds for Federal election activity must raise those 
funds solely by itself. These committees may not receive or use 
transferred funds in contravention of such requirements. 2 U.S.C. 
441i(b)(2)(B)(iv); see Explanation and Justification for 11 CFR 
300.34(a) and (b), 67 FR 49127 (July 29, 2002).
    Fourth, Congress provided in BCRA that a committee of a political 
party that makes coordinated party expenditures under 2 U.S.C. 441a(d) 
in connection with the general election campaign of a candidate shall 
not, during that election cycle, transfer any funds to, assign 
authority to make coordinated party expenditures under this subsection 
to, or receive a transfer from, a committee of the political party that 
has made or intends to make an independent expenditure with respect to 
the candidate. 2 U.S.C. 441a(d)(4)(C); see proposed 11 CFR 109.35(c), 
discussed above.
    The Commission proposes the addition of a new opening clause in 
paragraph (a)(1)(ii) of section 102.6 incorporating these restrictions 
by reference into the rules regarding the transfer of funds and the use 
of transferred funds.

VII. Proposed 11 CFR 109.36 Are There Additional Circumstances 
Under Which a Party Committee Is Prohibited From Making Independent 
Expenditures?

    Prior to the enactment of BCRA, a national committee of a political 
party was prohibited from making independent expenditures in connection 
with the general election campaign of a candidate for President. See 11 
CFR 110.7(a)(5). In Colorado I, the Supreme Court held that political 
party committees may make independent expenditures, but indicated that 
its decision involved only Congressional races, and did not address 
issues that might grow out of the public funding of presidential 
campaigns. 518 U.S. at 611–612. Of course, not all presidential 
campaigns are publicly-funded, thus raising an additional category of 
circumstances not addressed by the Court in Colorado I.
    However, Congress may have effectively repealed the prohibition at 
11 CFR 110.7(a)(5). See 2 U.S.C. 441a(d)(4). Under a new statutory 
provision, Congress prohibits political party committees from making 
both post-nomination independent expenditures and post-nomination 
coordinated expenditures in support of a candidate. See 2 U.S.C. 
441a(d)(4)(A). A national party committee could thus make independent 
expenditures with respect to a candidate after nomination unless the 
committee had already made post-nomination coordinated expenditures 
with respect to that candidate. Because this provision appears to 
equally apply to party committee expenditures in support of 
presidential or Congressional candidates, a national party committee 
would appear able to make independent expenditures with respect to a 
presidential candidate. Thus, Congress appears to have superseded 11 
CFR 110.7(a)(5). Finally, this interpretation appears to apply 
regardless of whether a presidential candidate accepts public funding. 
The legislative history of BCRA does not appear to address the issue of 
prohibitions on independent expenditures by national party committees 
in connection with presidential elections.
    Rather than completely delete the prohibition at 11 CFR 
110.7(a)(5), however, the Commission proposes to limit its application 
to certain limited circumstances in which the national committee of a 
political party serves as the principal campaign committee or 
authorized committee of its presidential candidate, as permitted under 
2 U.S.C. 432(e)(3)(A)(i) and 441a(d)(2). See 11 CFR 102.12(c)(1) and 
9002.1(c). Such a prohibition would be consistent with proposed 11 CFR 
100.16(b) (redesignated from pre-BCRA section 109.1(e)) providing that 
no expenditure by an authorized committee of a candidate on behalf of 
that candidate shall qualify as an independent expenditure.
    Comments are sought on whether the prohibition at pre-BCRA 11 CFR 
110.7(a)(5) should be limited to the circumstances identified in 
proposed 11 CFR 109.36 or whether the prohibition should be removed 
completely.

VIII. Proposed 11 CFR 109.37 What Is a “Party Coordinated 
Communication”?

    In BCRA, Congress requires the Commission to promulgate new 
regulations on “coordinated communications” that are paid 
for by persons other than candidates, authorized committees of 
candidates, and party committees. Pub. L. 107–155, sec. 214(b), 
(c); see proposed 11 CFR 109.21 above. Although Congress did not 
specifically direct the Commission to address coordinated 
communications paid for by political party committees, the Commission 
proposes to do so to give clear guidance to those affected by BCRA.
    Proposed section 109.37 would generally apply the same regulatory 
analysis to communications paid for by the political party committees 
that would be applied to communications paid for by other persons. See 
proposed 11 CFR 109.21(a) through (e). This

[[Page 60058]]

analysis would determine when communications paid for by a political 
party committee would be considered to be coordinated with a candidate, 
a candidate's authorized committee, or their agents. The Commission 
bases the proposed similarity of coordination standards on two Supreme 
Court cases, Colorado I and Federal Election Commission v. Colorado 
Republican Federal Campaign Committee, 533 U.S. 431 (2001) 
(“Colorado II”). In Colorado I, the Supreme Court in a 
plurality opinion concluded that political parties, like other persons 
paying for political communications, 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 independent 
expenditures to the 2 U.S.C. 441a(d) expenditure limits. Colorado I, 
518 U.S. at 615–616. Subsequently in Colorado II, the Supreme 
Court, in upholding the constitutionality of coordinated party 
expenditure limits at 2 U.S.C. 441a(d), stated that political parties 
are in the same position as other persons who have contribution limits 
potentially affected by coordination. Colorado II, 533 U.S. at 455.
    Comment is sought on this approach. Should political party 
committee communications be subject to the same conduct standards at 
proposed 11 CFR 109.21(d) for coordination with candidates as are 
communications by other persons? Should the “content 
standards” at proposed 11 CFR 109.21(c) be the same for political 
party committee communications as for communications by other persons? 
If not, how should the standards vary? Would such variations be 
confusing? Are any of the possible content standards set forth at 
proposed 11 CFR 109.21(c)(4) alternatives (A) through (C) appropriate 
for political party committees? In light of the relationship between 
political party committees and candidates, should any of the conduct 
standards set forth at proposed 11 CFR 109.21(d) be excluded from 
application to political party committee communications? On the other 
hand, in light of such relationship, should there be additional or 
different conduct standards that would only apply to political party 
committees? Should any exceptions apply to party committee 
communications? Should the conduct standards set forth at proposed 11 
CFR 109.21(d) vary depending on whether the party communication was 
made prior to nomination or after nomination? Finally, should the 
“content” standard of communications other than 
electioneering communications vary depending on whether the political 
party communication was made prior to nomination or after nomination?
    Following proposed 11 CFR 109.21(a), proposed section 109.37(a) 
would define the circumstances in which communications paid for by 
political party committees would be considered to be coordinated with a 
candidate, a candidate's authorized committee, or agents thereof. Under 
proposed 11 CFR 109.37(a)(1) through (3), such communications would be 
deemed to be “party coordinated communications” when they 
were paid for by a political party committee or its agent, satisfy at 
least one of the content standards in 11 CFR 109.21(c), and satisfy at 
least one of the conduct standards in 11 CFR 109.21(d).
    For the content standards for party coordinated communications, in 
proposed paragraph (a)(2) of section 109.37, the Commission would refer 
to the content standards proposed in 11 CFR 109.21(c). The Commission 
also proposes a second sentence in proposed paragraph (a)(2) of section 
109.37 indicating that the republication content standard of proposed 
11 CFR 109.21(c)(2) is evaluated under the conduct standard in proposed 
11 CFR 109.21(d)(6). See the discussion above of proposed 11 CFR 
109.21(c).
    For the conduct standards for party coordinated communications, in 
proposed paragraph (a)(3) of section 109.37, the Commission would refer 
to the conduct standards proposed in 11 CFR 109.21(d). As in proposed 
11 CFR 109.21(d), agreement or formal collaboration would not be 
necessary for a finding that a communication is coordinated. See the 
discussion above of proposed 11 CFR 109.21(d) and (e). The Commission 
also proposes a second sentence in proposed paragraph (a)(3) of section 
109.37 addressing circumstances in which the in-kind contribution 
results solely from conduct in 11 CFR 109.21(d)(4) or (d)(5). Under 
these circumstances, the candidate would not receive or accept an in-
kind contribution. See the discussion above regarding proposed 11 CFR 
109.21(b)(2).
    Proposed 11 CFR 109.37(b) would explain the treatment of party 
coordinated communications. This paragraph would provide that political 
party committees must treat payments for communications coordinated 
with candidates as either in-kind contributions or coordinated party 
expenditures.
    The Commission would except from proposed 11 CFR 109.37(b) such 
payments that are otherwise excepted from the definitions of 
“contribution” and “expenditure” found at 11 
CFR part 100 subparts C and E. For example, the payment by a State or 
local committee of a political party of the costs of preparation, 
display, or mailing or other distribution incurred by such committee 
with respect to a printed slate card, sample ballot, palm card, or 
other printed listing(s) of three or more candidates for any public 
office for which an election is held in the State in which the 
committee is organized is not a contribution or an expenditure. 11 CFR 
100.80 and 100.140. Thus, if such communications were coordinated with 
candidates, the payments for such communications would not be treated 
as either in-kind contributions or as coordinated party expenditures.
    For such a payment that a political party committee treats as an 
in-kind contribution, proposed paragraph (b)(1) of section 109.37 would 
state that it is made for the purpose of influencing a Federal 
election. See the discussion above regarding proposed 11 CFR 109.21(b).
    For such a payment that a political party committee treats as a 
coordinated party expenditure, proposed paragraph (b)(2) of section 
109.37 would state that such expenditure is made pursuant to 
coordinated party expenditure authority under proposed 11 CFR 109.32 in 
connection with the general election campaign of the candidate with 
whom it was coordinated.
    Finally, proposed paragraphs (b)(1) and (b)(2) of section 109.37 
would each refer to the reporting obligations flowing from party 
coordinated communications under 11 CFR part 104.

Additional Proposed Regulatory Changes

Proposed 11 CFR 100.57 Dissemination, Distribution, or 
Republication of Candidate Campaign Materials

    The FECA categorizes a payment of the dissemination, distribution, 
or republication of campaign materials created by a candidate as an 
expenditure made by the person making the payment. See 2 U.S.C. 
441a(7)(B)(iii) (redesignated from pre-BCRA 2 U.S.C. 441a(7)(B)(ii)). 
In addition, when such an expenditure is coordinated with a candidate, 
it is treated as an in-kind contribution received by the candidate with 
whom the communication was coordinated. See 2 U.S.C. 441a(7)(B)(i). 
Likewise, under BCRA, when such an expenditure is coordinated with a 
political party committee, it is also a contribution received by the 
political party committee with which it is coordinated. See 2 U.S.C. 
441a(7)(B)(ii).

[[Page 60059]]

Under the pre-BCRA regulations at 11 CFR 109.1(d)(1), payments for the 
dissemination, distribution, or republication of the campaign material 
count against the contribution limits of the person financing the 
dissemination, distribution, or republication, and political committees 
and any other person who is otherwise required to report expenditures 
are required to report the payment in the same manner as other 
expenditures, regardless of whether coordination occurred. A candidate 
does not incur any reporting obligations regarding the dissemination, 
distribution, or republication of campaign material by another person 
in the absence of coordination.
    The Commission's pre-BCRA regulation at 11 CFR 109.1(d)(1) would be 
moved to the definition of contribution at proposed 11 CFR 100.57 as 
part of the proposed reorganization of 11 CFR part 109. The Commission 
would make changes to reflect Congress's determination that 
dissemination, distribution, or republication of campaign material in 
coordination with a political party committee, as well as with a 
candidate, constitutes a contribution. In addition, the dissemination, 
distribution, or republication of campaign material would be 
coordinated if the dissemination, distribution, or republication 
satisfies the conduct standards set forth in proposed 11 CFR 
109.21(d)(6). The only other substantive change would be the addition 
of several exceptions explained below. The Commission seeks comment on 
the proposed location of the new regulation (that is, whether the 
dissemination, distribution, or republication of campaign material 
should be made a part of the definition of “contribution”), 
and whether a corresponding provision should be added to the definition 
of an “expenditure” in 11 CFR part 100, subpart D, to 
maintain a parallel structure with the contribution definition. 
Alternatively, given that the pre-BCRA statute and BCRA categorize 
dissemination, distribution, or republication of campaign materials as 
“expenditures”, 2 U.S.C. 441a(a)(7)(B)(iii), the Commission 
seeks comment on whether such dissemination, distribution, or 
republication should be considered a contribution by the person paying 
for the materials absent coordination with the campaign. Please note 
that this alternative is not included in the text of the draft 
regulations.
    In addition, the Commission notes that 2 U.S.C. 441a(a)(7)(B)(iii) 
refers to “campaign materials prepared by the candidate, his 
campaign committees, or their authorized agents,” but does not 
include campaign materials prepared by political party committees. The 
Commission requests comment on whether the latter campaign materials 
should be included in light of the fact that Congress now considers 
coordination with a political party committee to result in a 
contribution. 2 U.S.C. 441a(a)(7)(B)(ii).
    In proposed 11 CFR 100.57, the Commission would include new 
exceptions for different types of republication of campaign material so 
that they would not constitute contributions. In proposed 11 CFR 
100.57(b)(1), the Commission would make it clear that candidates and 
political party committees are permitted to republish or disseminate 
their own materials without making a contribution. Proposed paragraph 
(b)(2) would exempt the use of material when it is used to advocate the 
defeat of the candidate or party who prepared the material. For 
example, Person A would not make a contribution to Candidate B if 
Person A incorporates part of Candidate B's campaign material into its 
own public communication that advocates the defeat of Candidate B. 
However, if the same public communication also urged the election of 
Candidate B's opponent, Candidate C, and incorporated a picture or 
quote that had been prepared by Candidate C's campaign, then the result 
would constitute a contribution to Candidate C.
    A third exception in paragraph (b)(3) would make it clear that 
campaign material may be republished as part of a bona fide news story 
as provided in 11 CFR 100.73 or 11 CFR 100.132. In proposed paragraph 
(b)(4), the Commission would continue to allow a corporation or labor 
organization to make limited use of candidate materials in 
communications to its restricted class, as provided in 11 CFR 
114.3(c)(1).
    Finally, in proposed paragraph (b)(5), the Commission would 
recognize that a national, State, or subordinate committee of a 
political party would make a coordinated party expenditure rather than 
an in-kind contribution when it pays for the dissemination, 
distribution, or republication of campaign material using coordinated 
party expenditure authority under 11 CFR 109.32. This proposed rule is 
somewhat broader than pre-BCRA 11 CFR 109.1(d)(2), which provided that 
a State or subordinate party committee could engage in such 
dissemination, distribution, or republication as agents designated by a 
national committee pursuant to 11 CFR 110.7(a)(4).
    The Commission seeks comments on whether any additional exceptions 
should be added in proposed paragraph (b), such as an exception for the 
republication of campaign materials in a non-partisan voter guide, and 
whether the proposed exceptions are appropriate.

Contribution and Expenditure Limitations and Prohibitions

I. Proposed 11 CFR 110.1 and 110.2 Limits on Contributions Made to 
Political Committees Making Independent Expenditures

    The Commission proposes to clarify that the section 110.1 and 110.2 
limitations on contributions to political committees making independent 
expenditures would apply to contributions made by multicandidate 
committees and other persons to political party committees that make 
independent expenditures. See proposed 11 CFR 110.1(n) and 110.2(k). 
Paragraphs 110.1(n) and 110.2(k) would apply to contributions by 
multicandidate committees and contributions by persons other than 
multicandidate committees, respectively. These two proposed paragraphs 
would replace pre-BCRA paragraphs (d)(2) of sections 110.1 and 110.2 
regarding the application of the contribution limits to contributions 
to committees that make independent expenditures.
    These sections need to be updated because under pre-BCRA paragraphs 
(d)(2) of each section, the Commission recognized that political 
committees other than party committees may make independent 
expenditures, but did not contemplate party committees doing so. See 
Colorado I, 518 U.S. at 618. For example, national party committees may 
receive contributions aggregating $20,000 per year from individuals, a 
contribution limit that Congress increased to $25,000 for contributions 
made on or after January 1, 2003. See 2 U.S.C. 441a(a)(1)(B). 
Consequently, under the proposed new language, the $20,000 ($25,000) 
contribution limit would continue to apply when the recipient national 
party committee uses the contribution to make independent expenditures. 
The Commission notes that 11 CFR 110.1(h) regarding contributions to 
political committees supporting the same candidate, remains in effect 
and unchanged except to the extent that the support to candidates by 
political party committees may now include independent expenditures. 
The Commission requests comments on proposed new paragraph (n) of 
section 110.1 and new paragraph (k) of section 110.2.

[[Page 60060]]

    Additional proposed changes to 11 CFR 110.1 and 110.2 are being 
addressed in a separate rulemaking on BCRA's increased contribution 
limits. See Notice of Proposed Rulemaking, 67 FR 54366 (August 22, 
2002).

II. Proposed 11 CFR 110.7 Removed and Reserved

    The pre-BCRA regulations at 11 CFR 110.7 contain the coordinated 
party expenditure limits and related provisions. As noted above, the 
Commission proposes to incorporate section 110.7, in amended form, into 
11 CFR part 109, subpart D. Specifically, the provisions in section 
110.7 would be revised and redesignated as follows: 11 CFR 110.7(a) and 
(b) to 11 CFR 109.32(a) and (b) and 109.36; section 110.7(c) to section 
109.33; and section 110.7(d) to section 109.34.

Presidential Candidate Expenditure Limitations

Proposed 11 CFR 110.8 Presidential Candidate Expenditure Limitations

    As in proposed 11 CFR 109.32(a) and (b) discussed above, the 
Commission would clarify that the expenditure limits for publicly 
funded Presidential candidates would be increased in accordance with 11 
CFR 110.9(c). See proposed 11 CFR 110.8(a)(2). To accommodate this 
proposed new section 110.8(a)(2), the Commission proposes to re-
designate pre-BCRA paragraphs (a)(1) and (a)(2) as (a)(1)(i) and 
(a)(1)(ii), respectively.
    In proposed 11 CFR 110.8(a)(3), the Commission would reference the 
definition of “voting age population” at proposed 11 CFR 
110.18. The voting age population is a factor in the calculation of 
expenditure limitations in 11 CFR 110.8(a). Finally, the Commission is 
proposing additional changes to 11 CFR 110.9(c) in a separate 
rulemaking. See Notice of Proposed Rulemaking, 67 FR 54366 (August 22, 
2002). Comment is sought on these proposals.

Voting Age Population

Proposed 11 CFR 110.18 Voting Age Population

    The Commission proposes a redesignation of pre-BCRA section 
110.9(d) regarding voting age population (“VAP”) to 
proposed 11 CFR 110.18 as part of a reorganization of section 110.9. 
This provision is referenced in proposed paragraphs 109.32(a) and (b) 
(coordinated party expenditure limits) and 110.8(a)(3) (presidential 
candidate expenditure limits) where the VAP is used as a factor in 
calculating the limits. Proposed section 110.18 would be revised from 
pre-BCRA section 110.9(d) only by noting the fact of, rather than the 
Commission assuring, that the Secretary of Commerce shall each year 
certify to the Commission and publish in the Federal Register an 
estimate of the VAP pursuant to 2 U.S.C. 441a(e). Proposed changes to 
the other provisions of section 110.9, including section 110.9(c) as 
noted above, are included in a separate rulemaking. See Notice of 
Proposed Rulemaking, 67 FR 54366 (August 22, 2002). Comment is sought 
on this proposal.

Corporate and Labor Organization Activity

Proposed 11 CFR 114.4(c)(5) Voter Guides

    Paragraph (c)(5) of section 114.4 pertains to voter guides paid for 
by corporations and labor organizations. The Commission proposes 
several changes to this paragraph to conform with other regulatory 
changes proposed in response to BCRA.
    The pre-BCRA version of paragraphs (c)(5)(i) and (ii) of section 
114.4 provides that a corporation or labor organization must not, among 
other things, “contact” a candidate in the preparation of a 
voter guide, except in writing. In this rulemaking, the Commission 
proposes coordination rules that would allow a person, such as a 
corporation or labor union, to contact a candidate to inquire about the 
candidate's positions on the issues without a subsequent communication 
paid for by that person being deemed coordinated with the candidate 
(assuming there was no other evidence of coordination). See 109.21(f). 
Accordingly, proposed paragraphs (c)(5)(i) and (ii) of section 114.4 
would be amended to delete the prohibition against any contact with a 
candidate in the preparation of a voter guide.
    Pre-BCRA paragraph (c)(5)(ii) of section 114.4 provides that a 
corporation or a labor union preparing a voter guide may direct 
questions in writing to a candidate. In the coordination rules proposed 
in this rulemaking, a person, such as a corporation or labor union, may 
informally contact a candidate to inquire about the candidate's 
positions on the issues without a subsequent communication paid for by 
that person being deemed coordinated with the candidate (assuming there 
was no other evidence of coordination). See 109.21(f). That is, the 
inquiry would not need be in writing. Accordingly, proposed paragraph 
(c)(5)(ii) of section 114.4 would be amended to delete the requirement 
that contact with the candidate be in writing.
    The Commission would also make several non-substantive changes to 
proposed paragraphs (c)(5)(i) and (ii) to conform these provisions to 
the statutory provisions on which they are based. Compare 2 U.S.C. 
441a(a)(7)(B) with 11 CFR 114.5(c)(5)(i) and (ii).
    The Commission notes that an appeals court in one circuit has 
invalidated portions of pre-BCRA 11 CFR 114.4(c)(5). See Clifton v. 
Federal Election Commission, 927 F.Supp. 493 (D. Me. 1996), modified in 
part and remanded in part, 114 F.3d 1309 (1st Cir. 1997), cert. denied, 
522 U.S. 1108 (1998). Subsequently, in 1999, the Commission received a 
Petition for Rulemaking asking the Commission to repeal its voter guide 
regulation. The Commission published a Notice of Availability. See 64 
FR 46319 (Aug. 25, 1999). The Commission's present rulemaking proposes 
changes necessitated by BCRA, and the Commission would reserve any 
additional changes to the voter guide regulations to a future 
rulemaking. Comment is sought on this approach.

Certification of No Effect Pursuant to 5 U.S.C. 605(b)

[Regulatory Flexibility Act]

    The Commission certifies that the attached proposed rules, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities. The basis of this certification 
is that the national, State, and local party committees of the two 
major political parties, and other political committees are not small 
entities under 5 U.S.C. 601 because they are not small businesses, 
small organizations, or small governmental jurisdictions. Further, 
individual citizens operating under these rules are not small entities.
    To the extent that any political committee may fall within the 
definition of “small entities,” their numbers are not 
substantial, particularly the number that would coordinate expenditures 
with candidates or political party committees in connection with a 
Federal election.
    In addition, the small entities to which the rules would apply 
would not be unduly burdened by the proposed rules because there is no 
significant extra cost involved, as independent expenditures must 
already be reported. Collectively, the differential costs will not 
exceed 100 million dollars per year. In addition, new reporting 
requirements would not significantly increase costs, as they only apply 
to those spending $10,000 or more on independent expenditures, and the 
actual reporting requirements are the minimum

[[Page 60061]]

necessary to comply with the new statute enacted by Congress.

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 102

    Political committees and parties, reporting and recordkeeping 
requirements.

11 CFR Part 104

    Campaign funds, political committees and parties, reporting and 
recordkeeping requirements.

11 CFR Part 105

    Document filing.

11 CFR Part 109

    Elections, reporting and recordkeeping requirements.

11 CFR Part 110

    Campaign funds, political committees and parties.

11 CFR Part 114

    Business and industry, elections, labor.
    For the reasons set out in the preamble, the Federal Election 
Commission proposes to amend subchapter A of chapter I of title 11 of 
the Code of Federal Regulations as follows:

PART 100—SCOPE AND DEFINITIONS

    1. The authority citation for part 100 would be revised to read as 
follows:

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

    2. Section 100.16 would be revised to read as follows:


§&thnsp100.16  Independent expenditure (2 U.S.C. 431(17)).

    (a) 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 in cooperation, 
consultation, or concert with, or at the request or suggestion of, a 
candidate, a candidate's authorized committee, or their agents, or a 
political party committee or its agents. A communication is “made 
in cooperation, consultation, or concert with, or at the request or 
suggestion of, a candidate, a candidate's authorized committee, or 
their agents, or a political party committee or its agents” if it 
is a coordinated communication under 11 CFR 109.21 or a party 
coordinated communication under 11 CFR 109.37.
    (b) No expenditure by an authorized committee of a candidate on 
behalf of that candidate shall qualify as an independent expenditure.
    3. In §&thnsp100.19, paragraphs (b) and (d) would be revised 
to read as follows:


§&thnsp100.19   File, filed, or filing (2 U.S.C. 434(a)).

* * * * *
    (b) Timely filed. General rule. A document other than those 
addressed in paragraphs (c) through (f) of this section is timely filed 
upon deposit as registered or certified mail in an established U.S. 
Post Office and postmarked no later than 11:59 p.m. Eastern Standard/
Daylight Time of the day of the filing date, except that pre-election 
reports so mailed must be postmarked no later than 11:59 p.m. Eastern 
Standard/Daylight Time of the fifteenth day before the date of the 
election. Documents sent by first class mail must be received by the 
close of business on the prescribed filing date to be timely filed.
* * * * *
    (d) 48-hour and 24-hour reports of independent expenditures.
    (1) 48-hour reports of independent expenditures. A 48-hour report 
of independent expenditures under 11 CFR 104.4(b) or 109.10(c) is 
timely filed when it is received by the Commission no later than 11:59 
p.m. Eastern Standard/Daylight Time of the second day following the 
date on which independent expenditures aggregate $10,000 or more in 
accordance with 11 CFR 104.4(f), any time during the calendar year up 
to and including the 20th day before an election.
    (2) 24-hour reports of independent expenditures. A 24-hour report 
of independent expenditures under 11 CFR 104.4(c) or 109.2(c) is timely 
filed when it is received by the Commission no later than 11:59 p.m. 
Eastern Standard/Daylight Time of the day following the date on which 
independent expenditures aggregate at least $1,000, in accordance with 
11 CFR 104.4(f), during the period less than 20 days but more than 24 
hours before an election.
    (3) Permissible means of filing. In addition to other permissible 
means of filing, a 24-hour report or 48-hour report of independent 
expenditures may be filed using a facsimile machine or by electronic 
mail if the filer is not required to file electronically in accordance 
with 11 CFR 104.18.
* * * * *


§&thnsp100.23  [Removed and reserved]

    4. Part 100 would be amended by removing and reserving 
§100.23:
    5. Part 100, subpart B would be revised by adding §100.57 to 
read as follows:


§&thnsp100.57  Dissemination, distribution, or republication of 
candidate campaign materials (2 U.S.C. 441a(a)(7)(B)(iii)).

    (a) Except as provided in paragraph (b) of this section, a payment 
for the dissemination, distribution, or republication, in whole or in 
part, of any broadcast or of any written, graphic, or other form of 
campaign materials prepared by a candidate, the candidate's authorized 
committee, or an agent of any of the foregoing is a contribution to the 
candidate or political party committee if the dissemination, 
distribution, or republication or campaign materials satisfies any of 
the conduct standards set forth in 11 CFR 109.21(d)(6) with respect to 
any conduct other than the original preparation of campaign materials. 
If the dissemination, distribution, or republication of campaign 
materials is not coordinated with a candidate or political party 
committee, then the payment for such dissemination, distribution, or 
republication is a contribution by the person making the payment for 
the purposes of that person's contribution limits and reporting 
requirements. The candidate who prepared the campaign material does not 
receive or accept an in-kind contribution that results solely from the 
dissemination, distribution, or republication of campaign material 
originally prepared by that candidate, unless the dissemination, 
distribution, or republication of the campaign materials is coordinated 
with that candidate or a political party committee as a result of 
conduct other than the original preparation of campaign materials.
    (b) The following uses of campaign materials do not constitute a 
contribution to the candidate who originally prepared the materials:
    (1) The campaign material is disseminated, distributed, or
    republished by the candidate, the candidate's authorized committee, 
or an agent of either of the foregoing who prepared that material;
    (2) The campaign material is incorporated into a communication that 
advocates the defeat of the candidate or party that prepared the 
material;
    (3) The campaign material is disseminated, distributed, or 
republished in a news story, commentary, or editorial exempted under 11 
CFR 100.73 or 11 CFR 100.132;
    (4) The campaign material used consists of a brief quote or 
portions of materials that demonstrate a candidate's

[[Page 60062]]

position as part of a corporation's or labor organization's expression 
of its own views to its restricted class under 11 CFR 114.3(c)(1); or
    (5) A national political party committee or a State or subordinate 
political party committee pays for such dissemination, distribution, or 
republication of campaign materials using coordinated party expenditure 
authority under 11 CFR 109.32.

PART 102—REGISTRATION, ORGANIZATION, AND RECORDKEEPING BY 
POLITICAL COMMITTEES (2 U.S.C. 433)

    6. The authority citation for Part 102 would continue to read as 
follows:

    Authority: 2 U.S.C. 432, 433 434(a)(11), 438(a)(8), and 441d.
    7. Section 102.6(a)(1)(ii) would be revised to read as follows:


§&thnsp102.6  Transfers of funds; collecting agents.

    (a) * * *
    (1) * * *
    (ii) Subject to the restrictions set forth at 11 CFR 109.35(c), 
300.10(a), 300.31, 300.34(a) and (b), transfers of funds may be made 
without limit on amount between or among a national party committee, a 
State party committee and/or any subordinate party committee whether or 
not they are political committees under 11 CFR 100.5 and whether or not 
such committees are affiliated.
* * * * *

PART 104—REPORTS BY POLITICAL COMMITTEES (2 U.S.C. 434)

    8. The authority citation for part 104 would continue to read as 
follows:

    Authority: 2 U.S.C. 431(1), 431(8), 431(9), 432(i), 434, 
438(a)(8) and (b), and 439a.

    9. Section 104.4 would be revised to read as follows:


§&thnsp104.4  Independent expenditures by political committees (2 
U.S.C. 434(b), (d), and (g)).

    (a) Regularly scheduled reporting. Every political committee that 
makes independent expenditures must report all such independent 
expenditures on Schedule E in accordance with 11 CFR 104.3(b)(3)(vii). 
Every person other than a political committee must report independent 
expenditures in accordance with 11 CFR 109.10.
    (b) Reports of independent expenditures made at any time up to and 
including the 20th day before an election.
    (1) Independent expenditures aggregating less than $10,000 in a 
calendar year. Political committees must report on Schedule E of FEC 
Form 3X at the time of their regular reports in accordance with 11 CFR 
104.3, 104.5 and 104.9, all independent expenditures aggregating less 
than $10,000 with respect to a given election any time during the 
calendar year up to and including the 20th day before an election.
    (2) Independent expenditures aggregating $10,000 or more in a 
calendar year. Political committees must report on Schedule E of FEC 
Form 3X all independent expenditures aggregating $10,000 or more with 
respect to a given election any time during the calendar year up to and 
including the 20th day before an election. Political committees must 
ensure that the Commission receives these reports no later than 11:59 
p.m. Eastern Standard/Daylight Time of the second day following the 
date on which a communication that constitutes an independent 
expenditure is publicly distributed or otherwise publicly disseminated. 
Each time subsequent independent expenditures relating to the same 
election aggregate an additional $10,000 or more, the political 
committee must ensure that the Commission receives a new 48-hour report 
of the subsequent independent expenditures. See 11 CFR 104.4(f) for 
aggregation. Each 48-hour report must contain the information required 
by 11 CFR 104.3(b)(3)(vii) indicating whether the independent 
expenditure is made in support of, or in opposition to, the candidate 
involved. In addition to other permissible means of filing, a political 
committee may file the 48-hour reports under this section by any of the 
means permissible under 11 CFR 100.19(d)(3).
    (c) Reports of independent expenditures made less than 20 days, but 
more than 24 hours before the day of an election. Political committees 
must ensure that the Commission receives reports of independent 
expenditures aggregating $1,000 or more with respect to a given 
election, after the 20th day, but more than 24 hours, before 12:01 a.m. 
of the day of the election, no later than 11:59 p.m. Eastern Standard/
Daylight Time of the day following the date on which a communication is 
publicly distributed or otherwise publicly disseminated. Each time 
subsequent independent expenditures relating to the same election 
aggregate $1,000 or more, the political committee must ensure that the 
Commission receives a new 24-hour report of the subsequent independent 
expenditures. Each 24-hour report shall contain the information 
required by 11 CFR 104.3(b)(3)(vii) indicating whether the independent 
expenditure is made in support of, or in opposition to, the candidate 
involved. Political committees may file reports under this section by 
any of the means permissible under 11 CFR 100.19(d)(3).
    (d) Verification. Political committees shall verify reports of 
independent expenditures filed under paragraph (b) or (c) of this 
section by one of the methods stated in paragraph (d)(1) or (2) of this 
section. Any report verified under either of these methods shall be 
treated for all purposes (including penalties for perjury) in the same 
manner as a document verified by signature.
    (1) For reports filed on paper (e.g., by hand delivery, U.S. Mail 
or facsimile machine), the treasurer of the political committee that 
made the independent expenditure shall certify, under penalty of 
perjury, the independence of the expenditure by handwritten signature 
immediately following the certification required by 11 CFR 
104.3(b)(3)(vii).
    (2) For reports filed by electronic mail, the treasurer of the 
political committee that made the independent expenditure shall 
certify, under penalty of perjury, the independence of the expenditure 
by typing the treasurer's name immediately following the certification 
required by 11 CFR 104.3(b)(3)(vii).
    (e) Where to file. Political committees must file reports of 
independent expenditures under this section and part 109 as set forth 
at paragraphs (c)(1) and (2) of this section.
    (1) For independent expenditures in support of or in opposition to, 
a candidate for President or Vice President: with the Commission and 
the Secretary of State for the State in which the expenditure is made.
    (2) For independent expenditures in support of, or in opposition 
to, a candidate for the Senate or the House of Representatives: with 
the Commission and the Secretary of State for the State in which the 
candidate is seeking election.
    (f) Aggregating independent expenditures for reporting purposes. 
For purposes of determining whether 24-hour and 48-hour reports must be 
filed in accordance with paragraphs (b) and (c) of this section and 11 
CFR 109.10(c) and (d), aggregations of independent expenditures must be 
calculated as of the first date during the calendar year on which a 
communication that constitutes an independent expenditure is publicly 
distributed or otherwise publicly disseminated, and as of the date that 
any such communication with respect to the same election is 
subsequently publicly distributed or otherwise publicly disseminated. 
Every

[[Page 60063]]

person must include in the aggregate total all disbursements for 
independent expenditures, and all enforceable contracts, either oral or 
written, obligating funds for disbursements for independent 
expenditures, made with respect to any communication that has been 
publicly distributed or otherwise publicly disseminated, during the 
calendar year, with respect to a given election for Federal office.
    10. In §104.5, paragraph (g) would be revised to read as 
follows:


§&thnsp104.5  Filing dates (2 U.S.C. 434(a)(2)).

* * * * *
    (g) Reports of independent expenditures.
    (1) 48-hour reports of independent expenditures. Every person who 
or which must file a 48-hour report under 11 CFR 104.4(b) must ensure 
the Commission receives the report no later than 11:59 p.m. Eastern 
Standard/Daylight Time of the second day following the date on which a 
communication that constitutes an independent expenditure is publicly 
distributed or otherwise publicly disseminated. Each time subsequent 
independent expenditures by that person relating to the same election 
as that to which the previous report relates aggregate $10,000 or more, 
that person must ensure that the Commission receives a new 48-hour 
report of the subsequent independent expenditures no later than 11:59 
p.m. Eastern Standard/Daylight Time of the second day following the 
date on which the $10,000 threshold is reached or exceeded. See 11 CFR 
104.4(f) for aggregation.
    (2) 24-hour report of independent expenditures. Every person who or 
which must file a 24-hour report under 11 CFR 104.4(c) must ensure that 
the Commission receives the report no later than 11:59 p.m. Eastern 
Standard/Daylight Time of the day following the date on which a 
communication that constitutes an independent expenditure is publicly 
distributed or otherwise publicly disseminated. Each time subsequent 
independent expenditures by that person relating to the same election 
as that to which the previous report relates aggregate $1,000 or more, 
that person must ensure that the Commission receives a 24-hour report 
of the subsequent independent expenditures no later than 11:59 p.m. 
Eastern Standard/Daylight Time of the day following the date on which 
the $1,000 threshold is reached or exceeded. See 11 CFR 104.4(f) for 
aggregation.
    (3) Each 24-hour or 48-hour report of independent expenditures 
filed under this section shall contain the information required by 11 
CFR 104.3(b)(3)(vii) indicating whether the independent expenditure is 
made in support of, or in opposition to, the candidate involved.
    (4) For purposes of this part, a communication that is mailed to 
its intended audience is publicly disseminated when it is relinquished 
to the U.S. Postal Service.
* * * * *

PART 105—DOCUMENT FILING (2 U.S.C. 432(g))

    11. The authority citation for part 105 would be revised to read as 
follows:

    Authority: 2 U.S.C. 432(g), 434, 438(a)(8).

    12. Section 105.2 would be revised to read as follows:


§&thnsp105.2  Place of filing; Senate candidates, their principal 
campaign committees, and committees supporting only Senate candidates 
(2 U.S.C. 432(g)(2), 434(g)(3)).

    (a) General Rule. Except as provided in paragraph (b) of this 
section, all designations, statements, reports, and notices as well as 
any modification(s) or amendment(s) thereto, required to be filed under 
11 CFR parts 101, 102, and 104 by a candidate for nomination or 
election to the office of United States Senator, by his or her 
principal campaign committee or by any other political committee(s) 
that supports only candidates for nomination for election or election 
to the Senate of the United States shall be filed in original form 
with, and received by, the Secretary of the Senate, as custodian for 
the Federal Election Commission.
    (b) Exceptions. The following statements and reports must be filed 
with the Commission and not with the Secretary of the Senate, even if 
the communication refers to a Senatorial candidate:
    (1) 48-hour statements of electioneering communications; and
    (2) 24-hour and 48-hour reports of independent expenditures.
    13. Part 109 would be revised to read as follows:

PART 109—COORDINATED AND INDEPENDENT EXPENDITURES (2 U.S.C. 
431(17), 441a, Pub. L. 107–155 sec. 214(c) (March 27, 2002)).

Sec.
Subpart A—Scope and Definitions
§&thnsp109.1  When will this part apply?
§&thnsp109.2  [Reserved]
§&thnsp109.3  Definitions.
Subpart B—Independent Expenditures
§&thnsp109.10  How do political committees and other 
persons report independent expenditures?
§&thnsp109.11  When is a “non-authorization 
notice” (disclaimer) required?
Subpart C—Coordination
§&thnsp109.20  What does “coordinated” mean?
§&thnsp109.21  What is a “coordinated 
communication”?
§&thnsp109.22  Who is prohibited from making coordinated 
communications?
Subpart D—Special Provisions for Political Party Committees
§&thnsp109.30  How are political party committees treated 
for purposes of independent expenditures and coordination?
§&thnsp109.31  What is a “coordinated party 
expenditure”?
§&thnsp109.32  What are the coordinated party expenditure 
limits?
§&thnsp109.33  May a political party committee assign its 
coordinated party expenditure limit to another political party 
committee?
§&thnsp109.34  When can a political party committee make 
coordinated party expenditures?
§&thnsp109.35  What are the restrictions on a political 
party making both independent expenditures and coordinated party 
expenditures in connection with a candidate?
§&thnsp109.36  Are there additional circumstances under 
which a political party committee is prohibited from making 
independent expenditures?
§&thnsp109.37  What is a “party coordinated 
communication”?

    Authority: 2 U.S.C. 431(17), 434(c), 441a; Pub. L. 155–107 
214(c).

Subpart A—Scope and Definitions


§&thnsp109.1  When will this part apply?

    This part applies to expenditures that are made independently from 
a candidate, an authorized committee, a political party committee, or 
their agents, and to those payments that are made in coordination with 
a candidate, a political party committee, or their agents. The 
regulations in this part explain the differences between the two kinds 
of payments and state how each type of payment must be reported and who 
must report it. In addition, subpart D of part 109 describes procedures 
and limits that apply only to payments, transfers, and assignments made 
by political party committees.


§&thnsp109.2  [Reserved]


§&thnsp109.3  Definitions.

    For the purposes of 11 CFR part 109 only, agent means any person 
who has actual authority, either express or implied, to engage in any 
of the following activities on behalf of the specified persons:

[[Page 60064]]

    (a) In the case of a national, State, district, or local committee 
of a political party, any one or more of the activities listed in 
paragraphs (a)(1) through (a)(5) of this section:
    (1) To request or suggest that a communication be created, 
produced, or distributed.
    (2) To make or authorize any communication described in 11 CFR 
100.29(a)(1), or to make or authorize a public communication that meets 
the content standard set forth in 11 CFR 109.21(c).
    (3) To create, produce, or distribute any communication at the 
request or suggestion of a candidate.
    (4) To be materially involved in decisions regarding:
    (i) The content of the communication;
    (ii) The intended audience;
    (iii) The specific media outlet used;
    (iv) The timing or frequency of the communication;
    (v) The size or prominence of a printed communication or duration 
of a communication on a television, radio, or cable station or by 
telephone; or,
    (vi) The script of a telephone message.
    (5) To make or direct a communication that is created, produced, or 
distributed with the use of material or information derived from a 
substantial discussion about the communication with a candidate.
    (b) In the case of an individual who is a Federal candidate or an 
individual holding Federal office, any one or more of the activities 
listed in paragraphs (b)(1) through (b)(5) of this section:
    (1) To request or suggest that a communication be created, 
produced, or distributed.
    (2) To make or authorize any communication described in 11 CFR 
100.29(a)(1), or to make or authorize a public communication that meets 
the content criteria set forth in 11 CFR 109.21(c).
    (3) To request or suggest that any other person create, produce, or 
distribute any communication.
    (4) To be materially involved in decisions regarding:
    (i) The content of the communication;
    (ii) The intended audience;
    (iii) The specific media outlet used;
    (iv) The timing or frequency of the communication;
    (v) The size or prominence of a printed communication or duration 
of a communication on a television, radio, or cable station or by 
telephone; or,
    (vi) The script of a telephone message.
    (5) To provide material or information to assist another person in 
the creation, production, or distribution of any communication.

Subpart B—Independent Expenditures


§&thnsp109.10  How do political committees and other persons 
report independent expenditures?

    (a) Political committees, including political party committees, 
must report independent expenditures under 11 CFR 104.4.
    (b) Every person, other than a political committee, who makes 
independent expenditures aggregating in excess of $250 with respect to 
a given election in a calendar year shall file a verified statement, or 
report on FEC Form 5 with the Commission or Secretary of the Senate 
containing the information required by paragraph (e) of this section. 
Every person filing a report or statement under this section shall do 
so at the end of the reporting period during which any such independent 
expenditures that aggregate in excess of $250 is made and in any 
reporting period thereafter in which additional independent 
expenditures are made.
    (c) Every person, other than a political committee, who makes 
independent expenditures aggregating $10,000 or more with respect to a 
given election any time during the calendar year up to and including 
the 20th day before an election, must report the independent 
expenditures on FEC Form 5, or by signed statement if the person is not 
otherwise required to file electronically under 11 CFR 104.18. (See 11 
CFR 104.4(f) for aggregation). The person making the independent 
expenditures aggregating $10,000 or more must ensure that the 
Commission receives the report or statement no later than 11:59 p.m. 
Eastern Standard/Daylight Time of the second day following the date on 
which a communication is publicly distributed or otherwise publicly 
disseminated. Each time subsequent independent expenditures relating to 
the same election aggregate an additional $10,000 or more, the person 
making the independent expenditures must ensure that the Commission 
receives a new 48-hour report of the subsequent independent 
expenditures. Each 48-hour report must contain the information required 
by paragraph (e)(1) of this section.
    (d) Every person making, after the 20th day, but more than 24 hours 
before 12:01 a.m. of the day of an election, independent expenditures 
aggregating $1,000 or more with respect to a given election must report 
those independent expenditures and ensure that the Commission receives 
the report or signed statement no later than 11:59 p.m. Eastern 
Standard/Daylight Time of the day following the date on which a 
communication is publicly distributed or otherwise publicly 
disseminated. Each time subsequent independent expenditures relating to 
the same election aggregate $1,000 or more, the person making the 
independent expenditures must ensure that the Commission receives a new 
24-hour report of the subsequent independent expenditures. See 11 CFR 
104.4(f) for aggregation. Such report or statement shall contain the 
information required by paragraph (e) of this section.
    (e) Verified statements.
    (1) Contents of verified statement. If a signed statement is 
submitted, the statement shall include:
    (i) The reporting person's name, mailing address, occupation, and 
the name of his or her employer, if any;
    (ii) The identification (name and mailing address) of the person to 
whom the expenditure was made;
    (iii) The amount, date and purpose of each expenditure;
    (iv) A statement that indicates whether such expenditure was in 
support of, or in opposition to a candidate, together with the 
candidate's name and office sought;
    (v) A verified certification under penalty of perjury as to whether 
such expenditure was made in cooperation, consultation or concert with, 
or at the request or suggestion of a candidate, a candidate's 
authorized committee, or their agents, or a political party committee 
or its agents; and
    (vi) The identification of each person who made a contribution in 
excess of $200 to the person filing such report, which contribution was 
made for the purpose of furthering the reported independent 
expenditure.
    (2) Verification of independent expenditure statements and reports. 
Every person shall verify reports of independent expenditures filed 
pursuant to the requirements of this section by one of the methods 
stated in paragraph (2)(i) or (ii) of this section. Any report verified 
under either of these methods shall be treated for all purposes 
(including penalties for perjury) in the same manner as a document 
verified by signature.
    (i) For reports filed on paper (e.g., by hand delivery, U.S. Mail 
or facsimile machine), the person who made the independent expenditure 
shall certify, under penalty of perjury, the independence of the 
expenditure by handwritten signature immediately following the 
certification required by paragraph (e)(1)(v) of this section.
    (ii) For reports filed by electronic mail, the person who made the 
independent expenditure shall certify, under penalty of perjury, the 
independence of the expenditure by

[[Page 60065]]

typing the treasurer's name immediately following the certification 
required by paragraph (e)(1)(v) of this section.


§&thnsp109.11  When is a “non-authorization notice” 
(disclaimer) required?

    Whenever any person makes an independent expenditure for the 
purpose of financing communications expressly advocating the election 
or defeat of a clearly identified candidate, such person shall comply 
with the requirements of 11 CFR 110.11.

Subpart C—Coordination


§&thnsp109.20  What does “coordinated” mean?

    (a) Coordinated means made in cooperation, consultation or concert 
with, or at the request or suggestion of, a candidate, a candidate's 
authorized committee, or their agents, or a political party committee 
or its agents.
    (b) Any expenditure that is coordinated within the meaning of 
paragraph (a) of this section, but is not made for a coordinated 
communication under 11 CFR 109.21 or a party coordinated communication 
under 11 CFR 109.37, is an in-kind contribution or a coordinated party 
expenditure with respect to the candidate or political party committee 
with whom or with which it was coordinated, unless otherwise exempted 
under 11 CFR part 100, subparts C or E.


§&thnsp109.21  What is a “coordinated communication”?

    (a) Definition. A communication is coordinated with a candidate, an 
authorized committee, or their agents, or a political party committee 
or its agents when the communication:
    (1) Is paid for by a person other than that candidate, or an 
authorized committee, a political party committee, or agent of any of 
the foregoing;
    (2) Satisfies at least one of the content standards in paragraph 
(c) of this section; and
    (3) Satisfies at least one of the conduct standards in paragraph 
(d) of this section. For a communication that satisfies the content 
standard in paragraph (c)(2) of this section, the conduct standard in 
paragraph (d)(6) of this section must be satisfied for the 
communication to be deemed coordinated.
    (b) Treatment as an in-kind contribution; Reporting.
    (1) General rule. A payment for a communication that is coordinated 
with a candidate or political party committee is made for the purpose 
of influencing a Federal election, and is an in-kind contribution under 
11 CFR 100.52(d) to the candidate or political party committee with 
whom or which it was coordinated, unless excepted under 11 CFR part 
100, subpart C.
    (2) In-kind contributions resulting from conduct described in 
paragraphs (d)(4) or (d)(5) of this section. Notwithstanding paragraph 
(b)(1) of this section, the candidate, authorized committee, or 
political party committee with whom or which a communication is 
coordinated does not receive or accept an in-kind contribution that 
results from conduct described in paragraphs (d)(4) or (d)(5) of this 
section, unless the candidate, authorized committee, or political party 
committee engages in conduct described in paragraphs (d)(1) through 
(d)(3) of this section.
    (3) Reporting of coordinated communications. A political committee, 
other than a political party committee, that makes a coordinated 
communication must report the payments for the communication as a 
contribution made to the candidate or political party committee with 
whom or which it was coordinated and as an expenditure in accordance 
with 11 CFR 104.3(b)(1)(v). A political party committee with which a 
communication paid for by another person is coordinated must report the 
usual and normal value of the communication as an in-kind contribution 
received and as an expenditure in accordance with 11 CFR 104.13.
    (c) Content standards. Any one of the following types of content 
satisfies the content standard of this section:
    (1) The communication would otherwise be considered an 
electioneering communication under 11 CFR 100.29; or
    (2) The communication disseminates, distributes, or republishes, in 
whole or in part, campaign materials prepared by a candidate, the 
candidate's authorized committee, or an agent of any of the foregoing, 
unless the dissemination, distribution, or republication is excepted 
under 11 CFR 100.57(b); or
    (3) The public communication expressly advocates the election or 
defeat of a clearly identified candidate for Federal office; or
Alternative A for Paragraph (c)(4)
    (4) The communication is a public communication, as defined in 11 
CFR 100.26, that refers to a clearly identified candidate for Federal 
office.
Alternative B for Paragraph (c)(4)
    (4) The communication is a public communication, as defined in 11 
CFR 100.26, that promotes or supports or attacks or opposes a clearly 
identified candidate for Federal office.
Alternative C for Paragraph (c)(4)
    (4) The communication is a public communication, as defined in 11 
CFR 100.26, and each of the following statements in paragraphs 
(c)(4)(i), (ii), and (iii) of this section are true.
    (i) The public communication is made 120 days or fewer before a 
general, special, or runoff election, or 120 days or fewer before a 
primary or preference election, or a convention or caucus of a 
political party that has authority to nominate a candidate;
    (ii) The public communication is directed to voters in the 
jurisdiction of the clearly identified candidate; and
    (iii) The public communication makes express statements about the 
record or position or views on an issue, or the character, or the 
qualifications or fitness for office, or party affiliation, of a 
clearly identified Federal candidate.
    (d) Conduct standards. Any one of the following types of conduct 
satisfies the conduct standard of this section whether or not there is 
agreement or formal collaboration, as defined in paragraph (e) of this 
section:
    (1) Request or suggestion.
    (i) The communication is created, produced, or distributed at the 
request or suggestion of a candidate or an authorized committee, 
political party committee, or agent of any of the foregoing; or
    (ii) The communication is created, produced, or distributed at the 
suggestion of a person paying for the communication and the candidate, 
authorized committee, political party committee, or agent of any of the 
foregoing, assents to the suggestion.
    (2) Material involvement. A candidate, an authorized committee, a 
political party committee, or an agent of any of the foregoing, is 
materially involved in decisions regarding:
    (i) The content of the communication;
    (ii) The intended audience for the communication;
    (iii) The means or mode of the communication;
    (iv) The specific media outlet used for the communication;
    (v) The timing or frequency of the communication; or
    (vi) The size or prominence of a printed communication, or duration 
of a communication by means of broadcast, cable, or satellite.
    (3) Substantial discussion. The communication is created, produced, 
or distributed after one or more substantial discussions about the 
communication between the person paying for the communication, or the 
employees or agents of the person paying for the communication, and the 
candidate who

[[Page 60066]]

is clearly identified in the communication, or his or her authorized 
committee, or his or her opponent or the opponent's authorized 
committee, or a political party committee, or an agent of any of the 
foregoing. A discussion is substantial within the meaning of this 
paragraph if information about the plans, projects, activities, or 
needs of the candidate or political party committee is conveyed to a 
person paying for the communication, and that information is material 
to the creation, production, or distribution of the communication.
    (4) Common vendor. All of the following statements in paragraphs 
(d)(4)(i) through (d)(4)(iii) of this section are true:
    (i) The person paying for the communication, or an agent of such 
person, contracts with or employs a commercial vendor to create, 
produce, or distribute the communication;
    (ii) That commercial vendor, including any employee of the 
commercial vendor, has provided any of the following services to the 
candidate who is clearly identified in the communication, or his or her 
authorized committee, or his or her opponent or the opponent's 
authorized committee, or a political party committee, or an agent of 
any of the foregoing, in the current election cycle:
    (A) Development of media strategy;
    (B) Selection of audiences;
    (C) Polling;
    (D) Fundraising;
    (E) Developing the content of a public communication;
    (F) Producing a public communication;
    (G) Identifying or developing voter lists, mailing lists, or donor 
lists;
    (H) Selecting personnel, contractors, or subcontractors; or
    (I) Consulting or otherwise providing political or media advice; 
and
    (iii) That commercial vendor makes use of or conveys to the person 
paying for the communication:
    (A) Material information about the plans, projects, activities, or 
needs of the candidate who is clearly identified in the communication, 
or his or her authorized committee, or his or her opponent or the 
opponent's authorized committee, or a political party committee, or an 
agent of any of the foregoing; or
    (B) Material information used previously by the commercial vendor 
in providing services to the candidate who is clearly identified in the 
communication, or his or her authorized committee, or his or her 
opponent or the opponent's authorized committee, or a political party 
committee, or an agent of any of the foregoing.
    (5) Former employee or independent contractor. Both of the 
following statements in paragraph (d)(5)(i) and (d)(5)(ii) of this 
section are true:
    (i) The communication is paid for by a person, or by the employer 
of a person, who was an employee or independent contractor of the 
candidate who is clearly identified in the communication, or his or her 
authorized committee, or his or her opponent or the opponent's 
authorized committee, or a political party committee, or an agent of 
any of the foregoing, during the current election cycle; and,
    (ii) That former employee or independent contractor makes use of or 
conveys to the person paying for the communication:
    (A) Material information about the plans, projects, activities, or 
needs of the candidate who is clearly identified in the communication, 
or his or her authorized committee, or his or her opponent or the 
opponent's authorized committee, or a political party committee, or an 
agent of any of the foregoing; or
    (B) Material information used by the former employee or independent 
contractor in providing services to the candidate who is clearly 
identified in the communication, or his or her authorized committee, or 
his or her opponent or the opponent's authorized committee, or a 
political party committee, or an agent of any of the foregoing.
    (6) Conduct pertaining to communications that disseminate, 
distribute, or republish campaign material prepared by a candidate. A 
communication that satisfies the content requirement of paragraph 
(c)(2) of this section shall only be considered to satisfy one or more 
of the conduct standards of this section if the candidate or authorized 
committee that initially prepared the campaign material engages in any 
of the conduct described in paragraphs (d)(1) through (d)(3) of this 
section with respect to the subsequent dissemination, distribution, or 
republication of the campaign materials.
    (e) Agreement or formal collaboration. Agreement or formal 
collaboration between the person paying for the communication and the 
candidate clearly identified in the communication, his or her 
authorized committee, his or her opponent, or the opponent's authorized 
committee, a political party committee, or an agent of any of the 
foregoing, is not required for a communication to be considered a 
coordinated communication. Agreement means a mutual understanding or 
meeting of the minds on all or any part of the material aspects of the 
communication or its dissemination. Formal collaboration means planned, 
or systematically organized, work on the communication.


§&thnsp109.22  Who is prohibited from making coordinated 
communications?

    Any person who is otherwise prohibited from making contributions or 
expenditures under any part of the Act or Commission regulations is 
prohibited from paying for a coordinated communication.

Subpart D—Special Provisions for Political Party Committees


§&thnsp109.30  How are political party committees treated for 
purposes of coordinated and independent expenditures?

    Political party committees may make independent expenditures 
subject to the provisions in this subpart. See 11 CFR 109.35 and 
109.36. Political party committees may also make coordinated party 
expenditures in connection with the general election campaign of a 
candidate, subject to the limits and other provisions in this subpart. 
See 11 CFR 109.31 through 11 CFR 109.35.


§&thnsp109.31  What is a “coordinated party 
expenditure”?

    Coordinated party expenditures include payments made by a national 
committee of a political party, including a national Congressional 
campaign committee, or a State committee of a political party, 
including any subordinate committee of a State committee, under 2 
U.S.C. 441a(d) for anything of value in connection with the general 
election campaign of a candidate, including party coordinated 
communications defined at 11 CFR 109.37.


§&thnsp109.32  What are the coordinated party expenditure limits?

    (a) Coordinated party expenditures in presidential elections.
    (1) The national committee of a political party may make 
coordinated party expenditures in connection with the general election 
campaign of the party's candidate for President of the United States 
affiliated with the party.
    (2) The coordinated party expenditures shall not exceed an amount 
equal to two cents multiplied by the voting age population of the 
United States. See 11 CFR 110.18. This limitation shall be increased in 
accordance with 11 CFR 110.17.
    (3) Any coordinated party expenditure under paragraph (a) of this 
section shall be in addition to—

[[Page 60067]]

    (i) Any expenditure by a national committee of a political party 
serving as the principal campaign committee of a candidate for 
President of the United States; and
    (ii) Any contribution by the national committee to the candidate 
permissible under 11 CFR 110.1 or 110.2.
    (4) Any coordinated party expenditures made by the national 
committee of a political party pursuant to paragraph (a) of this 
section, or made by any other party committee designated by a national 
committee of a political party under 11 CFR 109.33, on behalf of that 
party's presidential candidate shall not count against the candidate's 
expenditure limitations under 11 CFR 110.8.
    (b) Coordinated party expenditures in other Federal elections.
    (1) The national committee of a political party, and a State 
committee of a political party, including any subordinate committee of 
a State committee, may each make coordinated party expenditures in 
connection with the general election campaign of the party's candidate 
for Federal office in that State.
    (2) The coordinated party expenditures shall not exceed:
    (i) In the case of a candidate for election to the office of 
Senator, or of Representative from a State which is entitled to only 
one Representative, the greater of—
    (A) Two cents multiplied by the voting age population of the State 
(see 11 CFR 110.18); or
    (B) Twenty thousand dollars.
    (ii) In the case of a candidate for election to the office of 
Representative, Delegate, or Resident Commissioner in any other State, 
$10,000.
    (3) The limitations in paragraph (b)(2) of this section shall be 
increased in accordance with 11 CFR 110.17(c).
    (4) Any coordinated party expenditure under paragraph (b) of this 
section shall be in addition to any contribution by a political party 
committee to the candidate permissible under 11 CFR 110.1 or 110.2.


§&thnsp109.33  May a political party committee assign its 
coordinated party expenditure limit to another political party 
committee?

    (a) Except as provided in 11 CFR 109.35(c), the national committee 
of a political party and a State committee of a political party, 
including any subordinate committee of a State committee, may assign 
its authority to make coordinated party expenditures authorized in 11 
CFR 109.32 to another political party committee, provided that before 
the coordinated party expenditure is made, the national or State 
committee specifies in writing to the assigned political party 
committee the amount the assigned political party committee may spend.
    (b) For purposes of the coordinated party expenditure limits, State 
committee includes a subordinate committee of a State committee and 
includes a district or local committee. State committees and 
subordinate State committees and district or local committees combined 
shall not exceed the coordinated party expenditure limits set forth in 
11 CFR 109.32. The State committee shall administer the limitation in 
one of the following ways:
    (1) The State committee shall be responsible for insuring that the 
coordinated party expenditures of the entire party organization are 
within the coordinated party expenditure limits, including receiving 
reports from any subordinate committee of a State committee or district 
or local committee making coordinated party expenditures under 11 CFR 
109.32, and filing consolidated reports showing all coordinated party 
expenditures in the State with the Commission; or
    (2) Any other method, submitted in advance and approved by the 
Commission, that permits control over coordinated party expenditures.


§&thnsp109.34  When may a political party committee make 
coordinated party expenditures?

    A political party committee authorized to make coordinated party 
expenditures may make such expenditures in connection with the general 
election campaign before or after its candidate has been nominated. All 
pre-nomination coordinated party expenditures shall be subject to the 
coordinated party expenditure limitations of this subpart, whether or 
not the candidate on whose behalf they are made receives the party's 
nomination.


§&thnsp109.35  What are the restrictions on a political party 
committee making both independent expenditures and coordinated party 
expenditures in connection with the general election of a candidate?

    (a) Applicability. For the purposes of this subpart:
    (1) The national committee of a given political party, all 
Congressional campaign committees of that political party, and all 
political committees established, financed, maintained, or controlled 
by any of the foregoing, together comprise a political party group.
    (2) The State committee of a given political party in a given 
State, all subordinate committees of that State committee, and all 
district or local committees of that political party within that State 
that meet the definition of political committee under 11 CFR 100.5, 
together comprise a political party group. See 11 CFR 100.14.
    (b) Restrictions on certain expenditures. On or after the date on 
which a political party nominates a candidate for election to Federal 
office, no political committee within a given political party group may 
do any of the following during the remainder of the election cycle:
    (1) Make any coordinated party expenditure under 11 CFR 109.32 in 
connection with the general election campaign of that candidate at any 
time after any political committee within that political party group 
makes any independent expenditure with respect to that candidate; or
    (2) Make any independent expenditure with respect to that candidate 
at any time after any political committee within that political party 
group makes any coordinated party expenditure under 11 CFR 109.32 in 
connection with the general election campaign of that candidate.
    (c) Restrictions on certain transfers and assignments. On or after 
the date that a political committee within a political party group 
makes any coordinated party expenditure under 11 CFR 109.32 in 
connection with the general election campaign of a candidate, no 
political committee within that same political party group may do any 
of the following during the remainder of the election cycle:
    (1) Transfer any funds to, or receive a transfer of any funds from, 
any political committee within another political party group if any 
political committee within that other political party group has made or 
intends to make an independent expenditure with respect to that 
candidate; or
    (2) Assign all or any portion of its authority to make coordinated 
party expenditures under 11 CFR 109.32 in connection with the general 
election campaign of that candidate to any political committee within 
another political party group if any political committee within that 
other political party group has made or intends to make an independent 
expenditure with respect to that candidate. See 11 CFR 109.33.
    (d) Definitions. For the purposes of this section:
    (1) An independent expenditure made by a political party committee 
with respect to a candidate includes independent expenditures expressly 
advocating the election of that party's candidate, as well as 
independent expenditures expressly advocating the

[[Page 60068]]

defeat of any other candidate seeking nomination for election, or 
election, to the Federal office sought by that party's candidate.
    (2) Election cycle has the meaning in 11 CFR 100.3(b), except that 
the election cycle ends on the date of the general election runoff, if 
any.


§&thnsp109.36  Are there additional circumstances under which a 
political party committee is prohibited from making independent 
expenditures?

    The national committee of a political party must not make 
independent expenditures in connection with the general election 
campaign of a candidate for President of the United States if the 
national committee of a political party is designated as the authorized 
committee of its presidential candidate pursuant to 11 CFR 9002.1(c).


§&thnsp109.37  What is a “party coordinated 
communication”?

    (a) Definition. A political party communication is coordinated with 
a candidate, a candidate's authorized committee, or their agents, when 
the communication satisfies the conditions set forth in paragraphs 
(a)(1), (a)(2), and (a)(3) of this section.
    (1) The communication is paid for by a political party committee or 
its agent.
    (2) The communication satisfies at least one of the content 
standards in 11 CFR 109.21(c). For a communication that satisfies the 
content standard in 11 CFR 109.21(c)(2), the conduct standard in 11 CFR 
109.21(d)(6) must be satisfied before the communication shall be deemed 
coordinated.
    (3) The communication satisfies at least one of the conduct 
standards in 11 CFR 109.21(d). Notwithstanding paragraph (b)(1) of this 
section, the candidate with whom a party coordinated communication is 
coordinated does not receive or accept an in-kind contribution that 
results from conduct described in 11 CFR 109.21(d)(4) or (d)(5), unless 
the candidate or authorized committee engages in conduct described in 
11 CFR 109.21 (d)(1) through (d)(3).
    (b) Treatment of a party coordinated communication. A payment by a 
political party committee for a communication that is coordinated with 
a candidate, and that is not otherwise exempted under 11 CFR part 100, 
subpart C or E, must be treated by the political party committee making 
the payment as either:
    (1) An in-kind contribution for the purpose of influencing a 
Federal election under 11 CFR 100.52(d) to the candidate with whom it 
was coordinated, which must be reported under 11 CFR part 104; or
    (2) A coordinated party expenditure pursuant to coordinated party 
expenditure authority under 11 CFR 109.32 in connection with the 
general election campaign of the candidate with whom it was 
coordinated, which must be reported under 11 CFR part 104.

PART 110—CONTRIBUTION AND EXPENDITURE LIMITATIONS AND 
PROHIBITIONS

    14. The authority citation for part 110 would be revised to read as 
follows:

    Authority: 2 U.S.C. 431(8), 431(9), 432(c)(2), 437d(a)(8), 441a, 
441b, 441d, 441e, 441f, 441g, 441h, and 441k.
    15. In §110.1, paragraph (d) would be revised and paragraph 
(n) would be added to read as follows:


§&thnsp110.1  Contributions by persons other than multicandidate 
political committees. (2 U.S.C. 441a(a)(2)).

* * * * *
    (d) Contributions to other political committees. No person shall 
make contributions to any other political committee in any calendar 
year which, in the aggregate, exceed $5,000.
* * * * *
    (n) Contributions to committees making independent expenditures. 
The limitations on contributions of this section also apply to 
contributions made to political committees making independent 
expenditures under 11 CFR part 109.
    16. In §110.2, paragraph (d) would be revised and paragraph 
(k) would be added to read as follows:


§&thnsp110.2  Contributions by multicandidate political 
committees.

* * * * *
    (d) Contributions to other political committees. No multicandidate 
political committee shall make contributions to any other political 
committee in any calendar year which, in the aggregate, exceed $5,000.
* * * * *
    (k) Contributions to multicandidate political committees making 
independent expenditures. The limitations on contributions of this 
section also apply to contributions made to multicandidate political 
committees making independent expenditures under 11 CFR part 109.


§&thnsp110.7  [Removed and reserved]

    17. Section 110.7 would be removed and reserved.
    18. In §110.8, paragraph (a) would be amended as follows:
    (a) The introductory text would be redesignated as paragraph 
(a)(1);
    (b) Paragraph (a)(1) would be redesignated as paragraph (a)(1)(i);
    (c) Paragraph (a)(2) would be redesignated as paragraph (a)(1)(ii);
    (d) A new paragraph (a)(2) would be added to read as follows; and
    (e) A paragraph (a)(3) would be added to read as follows:


§&thnsp110.8  Presidential candidate expenditure limitations.

    (a) * * *
    (2) The expenditure limitations in paragraph (a)(1) of this section 
shall be increased in accordance with 11 CFR 110.9(c).
    (3) Voting age population is defined at 11 CFR 110.18.
* * * * *
    19. In part 110 §110.18 would be added to read as follows:


§&thnsp110.18  Voting age population.

    There is annually published by the Department of Commerce in the 
Federal Register an estimate of the voting age population based on an 
estimate of the voting age population of the United States, of each 
State, and of each Congressional district. The term voting age 
population means resident population, 18 years of age or older.

PART 114—CORPORATE AND LABOR ORGANIZATION ACTIVITY

    20. The authority citation for part 114 would continue to read as 
follows:

    Authority: 2 U.S.C. 431(8)(B), 431(9)(B), 432, 434(a)(11), 
437d(a)(8), 438(a)(8), and 441b.
    21. In section 114.4, paragraphs (c)(5)(i) and (c)(5)(ii)(A) would 
be revised to read as follows:


§&thnsp114.4  Disbursements for communications beyond the 
restricted class in connection with a Federal election.

     * * *
    (c) Communications by a corporation or labor organization to the 
general public.
     * * *
    (5) Voter guides.
     * * *
    (i) The corporation or labor organization must not act in 
cooperation, consultation, or concert with or at the request or 
suggestion of the candidates, the candidates' committees or agents 
regarding the preparation, contents and distribution of the voter 
guide, and no portion of the voter guide may expressly advocate the 
election or defeat of one or more clearly identified candidate(s) or 
candidates of any clearly identified political party.
    (ii) (A) The corporation or labor organization must not act in 
cooperation, consultation, or concert with or at the request or 
suggestion of the candidates, the candidates'

[[Page 60069]]

committees or agents regarding the preparation, contents and 
distribution of the voter guide;
* * * * *

    Dated: September 13, 2002.
Scott E. Thomas,
Commissioner, Federal Election Commission.
[FR Doc. 02–23813 Filed 9–23–02; 8:45 am]
BILLING CODE 6715–01–P