[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;/&thnsp;Vol. 67, No. 185&thnsp;/
&thnsp;Tuesday, September 24, 2002&thnsp;/&thnsp;Proposed Rules
[[Page 60042]]
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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\&thnsp;Note 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:
§&thnsp;100.16 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 §&thnsp;100.19, paragraphs (b) and (d) would be revised
to read as follows:
§&thnsp;100.19 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.
* * * * *
§&thnsp;100.23 [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:
§&thnsp;100.57 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:
§&thnsp;102.6 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:
§&thnsp;104.4 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:
§&thnsp;104.5 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:
§&thnsp;105.2 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
§&thnsp;109.1 When will this part apply?
§&thnsp;109.2 [Reserved]
§&thnsp;109.3 Definitions.
Subpart B—Independent Expenditures
§&thnsp;109.10 How do political committees and other
persons report independent expenditures?
§&thnsp;109.11 When is a “non-authorization
notice” (disclaimer) required?
Subpart C—Coordination
§&thnsp;109.20 What does “coordinated” mean?
§&thnsp;109.21 What is a “coordinated
communication”?
§&thnsp;109.22 Who is prohibited from making coordinated
communications?
Subpart D—Special Provisions for Political Party Committees
§&thnsp;109.30 How are political party committees treated
for purposes of independent expenditures and coordination?
§&thnsp;109.31 What is a “coordinated party
expenditure”?
§&thnsp;109.32 What are the coordinated party expenditure
limits?
§&thnsp;109.33 May a political party committee assign its
coordinated party expenditure limit to another political party
committee?
§&thnsp;109.34 When can a political party committee make
coordinated party expenditures?
§&thnsp;109.35 What are the restrictions on a political
party making both independent expenditures and coordinated party
expenditures in connection with a candidate?
§&thnsp;109.36 Are there additional circumstances under
which a political party committee is prohibited from making
independent expenditures?
§&thnsp;109.37 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
§&thnsp;109.1 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.
§&thnsp;109.2 [Reserved]
§&thnsp;109.3 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
§&thnsp;109.10 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.
§&thnsp;109.11 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
§&thnsp;109.20 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.
§&thnsp;109.21 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.
§&thnsp;109.22 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
§&thnsp;109.30 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.
§&thnsp;109.31 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.
§&thnsp;109.32 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.
§&thnsp;109.33 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.
§&thnsp;109.34 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.
§&thnsp;109.35 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.
§&thnsp;109.36 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).
§&thnsp;109.37 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:
§&thnsp;110.1 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:
§&thnsp;110.2 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.
§&thnsp;110.7 [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:
§&thnsp;110.8 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:
§&thnsp;110.18 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:
§&thnsp;114.4 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'
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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