[Federal Register Volume 71, Number 171 (Tuesday, September 5, 2006)]
[Proposed Rules]
[Pages 52295-52296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14638]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 71, No. 171 / Tuesday, September 5, 2006 / 
Proposed Rules  

[[Page 52295]]



FEDERAL ELECTION COMMISSION

11 CFR Part 100

[Notice 2006-15]


Exception for Certain ``Grassroots Lobbying'' Communications From 
the Definition of ``Electioneering Communication''

AGENCY: Federal Election Commission.

ACTION: Notice of disposition of Petition for Rulemaking.

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SUMMARY: The Commission announces its disposition of a Petition for 
Rulemaking (``Petition'') filed on February 16, 2006, by the AFL-CIO, 
the Alliance for Justice, the Chamber of Commerce of the United States, 
the National Education Association, and OMB Watch. The Petition asks 
the Commission to revise its regulations by exempting from the 
definition of ``electioneering communication'' certain communications 
consisting of ``grassroots lobbying.'' The Commission has decided not 
to initiate a rulemaking in response to the Petition at this time. The 
Petition is available for inspection in the Commission's Public Records 
Office and on its Web site, http://www.fec.gov/. Further information is 
provided in the supplementary information that follows.

FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Acting Assistant 
General Counsel, or Mr. Ron B. Katwan, Attorney, 999 E Street, NW., 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLMENTARY INFORMATION:  The Bipartisan Campaign Reform Act of 2002 
(``BCRA''), Public Law 107-55, 116 Stat. 81 (2002), added provisions 
regarding ``electioneering communications'' to the Federal Election 
Campaign Act of 1971, as amended. See 2 U.S.C. 434(f)(3). 
Electioneering communications are television and radio communications 
that refer to a clearly identified candidate for Federal office, are 
publicly distributed within 60 days before a general election or 30 
days before a primary election, and are targeted to the relevant 
electorate. See 2 U.S.C. 434(f)(3)(A)(i); 11 CFR 100.29(a). BCRA 
exempts certain communications from the definition of ``electioneering 
communication,'' 2 U.S.C. 434(f)(3)(B)(i) through (iii), and 
specifically authorizes the Commission to promulgate regulations 
exempting other communications as long as the exempted communications 
do not promote, support, attack or oppose (``PASO'') a Federal 
candidate, 2 U.S.C. 434(f)(3)(B)(iv), citing 2 U.S.C. 431(20)(A)(iii). 
Section 100.29(c) of the Commission's regulations contains the 
regulatory exemptions to the definition of ``electioneering 
communication.''
    On February 16, 2006, the Commission received a Petition for 
Rulemaking (``Petition'') from the AFL-CIO, the Alliance for Justice, 
the Chamber of Commerce of the United States, the National Education 
Association, and OMB Watch (collectively, ``Petitioners''). The 
Petitioners asked the Commission to revise 11 CFR 100.29(c) to exempt 
from the definition of ``electioneering communication'' certain 
``grassroots lobbying'' communications that reflect all of the 
following six principles: (1) ``The `clearly identified federal 
candidate' is an incumbent public officeholder;'' (2) ``The 
communication exclusively discusses a particular current legislative or 
executive branch matter;'' (3) ``The communication either (a) calls 
upon the candidate to take a particular position or action with respect 
to the matter in his or her incumbent capacity, or (b) calls upon the 
general public to contact the candidate and urge the candidate to do 
so;'' (4) ``If the communication discusses the candidate's position or 
record on the matter, it does so only by quoting the candidate's own 
public statements or reciting the candidate's official action, such as 
a vote, on the matter;'' (5) ``The communication does not refer to an 
election, the candidate's candidacy, or a political party;'' and (6) 
``The communication does not refer to the candidate's character, 
qualifications or fitness for office.''
    On March 16, 2006, the Commission published a Notice of 
Availability (``NOA'') seeking comment on whether to initiate a 
rulemaking on this proposed exception to the definition of 
``electioneering communication.'' Notice of Availability on Rulemaking 
Petition: Exception for Certain ``Grassroots Lobbying'' Communications 
From the Definition of ``Electioneering Communication,'' 71 FR 13557 
(Mar. 16, 2006). The Commission received nine timely comments and two 
late comments in response to the NOA. In addition to these comments, 
the Commission received 180 form letter comments. Most of the 
commenters supported the Petition primarily on the grounds that the 
current electioneering communication rules limit the ability of 
organizations to run ads whose purpose is not to influence Federal 
elections, but to support or defeat legislation at the most critical 
time (i.e., when the legislation is before Congress, regardless of the 
election cycle). These commenters argued that such ``grassroots 
lobbying'' ads are entitled to First Amendment protection and should 
therefore be exempt from the electioneering communication rules. 
However, one group of commenters opposed the Petition, arguing that the 
Commission had already considered this question in the 2002 rulemaking 
that adopted the current electioneering communication rules and had 
concluded correctly that it lacked statutory authority to promulgate a 
``grassroots lobbying'' exemption.\1\ These commenters further asserted 
that ``there are no changed circumstances that warrant reconsideration 
of that decision.'' Copies of the comments are available on the 
Commission's Web site at http://www.fec.gov/law/law_rulemakings.shtml#lobbying.
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    \1\ The Commission considered several proposals for ``grassroots 
lobbying'' exemptions in the 2002 rulemaking but did not adopt any 
of them. See Notice of Proposed Rulemaking on Electioneering 
Communications, 67 FR 51131, 51136, 51145 (Aug. 7, 2002); Final 
Rules on Electioneering Communications, 67 FR 65190, 65201 (Oct. 23, 
2002).
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    On August 29, 2006, the Commission voted to decline to initiate a 
rulemaking at this time on the proposed exception for certain 
``grassroots lobbying'' communications from the definition of 
``electioneering communication,'' given the Commission's other 
administrative priorities. The Commission recognized, however, that it 
has the statutory authority to create exemptions to the electioneering 
communication rules (provided the exemptions do not permit PASO 
communications) and that it may

[[Page 52296]]

consider initiating a rulemaking on this subject in the future.
    Initiating a rulemaking at this time would not be an efficient or 
effective use of the Commission's resources. See 11 CFR 200.5(e). The 
Commission is currently defending the constitutionality of BCRA's 
electioneering communication provisions against two as-applied 
challenges to the statute involving communications that the plaintiffs 
claim are ``grassroots lobbying'' communications. See Wisconsin Right 
to Life v. FEC, Civ. No. 04-1260 (D.D.C.); Christian Civic League of 
Maine v. FEC, Civ. No. 06-614 (D.D.C.). Even if the Commission were to 
grant the Petitioners' request to begin a rulemaking to create a 
``grassroots lobbying'' exemption, the plaintiffs in these cases may 
well continue to pursue litigation or to initiate new litigation, 
particularly if the Commission were to craft an exemption narrower than 
that contemplated by the plaintiffs. Moreover, any eventual court 
decisions in these lawsuits may provide the Commission with guidance on 
whether and how the Commission should exercise its discretion in this 
area. Judicial guidance may well necessitate a reevaluation of any 
rules the Commission were to propose now. Therefore, in light of the 
pending as-applied challenges to the constitutionality of the 
electioneering communication provisions, the Commission believes that 
initiating a rulemaking at this time would not be an effective use of 
its resources or an appropriate way to proceed.

    Dated: August 29, 2006.
Michael E. Toner,
Chairman, Federal Election Commission.
 [FR Doc. E6-14638 Filed 9-1-06; 8:45 am]
BILLING CODE 6715-01-P