[Federal Register Volume 74, Number 143 (Tuesday, July 28, 2009)]
[Proposed Rules]
[Pages 37179-37180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17868]


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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. 74, No. 143 / Tuesday, July 28, 2009 / 
Proposed Rules  

[[Page 37179]]



FEDERAL ELECTION COMMISSION

11 CFR Part 110

[Notice 2009-16]


Candidate Debates

AGENCY: Federal Election Commission.

ACTION: Notice of Disposition of Petitions for Rulemaking.

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SUMMARY: The Commission announces its disposition of two Petitions for 
Rulemaking regarding the Commission's candidate debate regulations. The 
first petition, filed on May 25, 1999 by Mary Clare Wohlford, William 
T. Wohlford, and Martin T. Mortimer (``Wohlford Petition''), urged the 
Commission to amend its rules so that the objective criteria for 
inclusion in Presidential and Vice Presidential debates would be 
established by the Commission itself, and not left to the discretion of 
debate staging organizations. The second petition, filed on April 10, 
2002 by several major news organizations, urged the Commission to amend 
its rules to state explicitly that the sponsorship by a news 
organization (or a related trade association) of a debate among 
candidates does not constitute an illegal corporate campaign 
contribution or expenditure in violation of the Federal Election 
Campaign Act of 1971, as amended (``the Act'') and that the Commission 
would have no jurisdiction over such sponsorship. The Commission has 
decided not to initiate a rulemaking in response to either of these 
petitions. The petitions are available for inspection in the 
Commission's Public Records Office, and on its Web site, http://www.fec.gov.

DATES: July 28, 2009.

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General 
Counsel, or Ms. Esther D. Heiden, Staff Attorney, 999 E Street, NW., 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On May 25, 1999, the Commission received a 
Petition for Rulemaking from Mary Clare Wohlford, William T. Wohlford, 
and Martin T. Mortimer. On April 10, 2002, the Commission received a 
Petition for Rulemaking from CBS Broadcasting Inc.; American 
Broadcasting Companies Inc.; Belo Corp.; Cox Enterprises, Inc.; Gannett 
Co., Inc.; the National Association of Broadcasters; National 
Broadcasting Co., Inc.; News America Incorporated; The New York Times 
Company; Post-Newsweek Stations, Inc.; the Radio and Television News 
Directors Association; the Society of Professional Journalists; and 
Tribune Company (``News Media Petition''). Both petitions concern the 
Commission's candidate debate regulations at 11 CFR 110.13. Section 
110.13(c) states, inter alia, that ``[f]or all debates, staging 
organization(s) must use pre-established objective criteria to 
determine which candidates may participate in a debate.''
    The Wohlford Petition asserts that the objective criteria for 
inclusion in Presidential and Vice Presidential debates should be 
established by the Commission itself, and not left to the discretion of 
debate staging organizations. The petition urges the Commission to 
revise section 110.13(c) to set forth mandatory criteria for 
participation in Presidential and Vice Presidential debates. 
Specifically, the Wohlford Petition recommends that the debates be open 
to any candidate that: (1) Has the mathematical potential to win the 
election in that he or she is on the ballot in enough states to earn 
270 Electoral College votes; and (2) has proven his or her viability by 
having spent at least $500,000 on the campaign by the end of the month 
preceding the date of the first scheduled debate held on or after 
September 1 of the election year. In addition, the Wohlford Petition 
urges that candidates have equal access to debates held before 
September 1 without regard to the above requirements.
    The News Media Petition asserts that 11 CFR 110.13(c) should be 
amended or repealed. Specifically, it asserts that any regulation of 
the sponsorship by a news organization (or a related trade association) 
is: (1) Contrary to the clear intent of Congress in adopting the Act; 
(2) irreconcilable with the Commission's own decisions that media 
entities do not violate the Act by providing free time to candidates; 
and (3) in conflict with long-established policies of the Federal 
Communications Commission concerning the presentation of campaign 
debates by broadcasters. Finally, the News Media Petition asserts that 
11 CFR 110.13(c) is unconstitutional because it does not advance the 
purpose of preventing corruption or the appearance of corruption in the 
political process, which the Supreme Court has held are `the only 
legitimate and compelling government interests thus far identified for 
restricting [First Amendment rights in the regulation] of campaign 
finances.' '' (quoting FEC v. National Conservative Political Action 
Committee, 470 U.S. 480, 96-97 (1985). The News Media Petition urges 
the Commission to draft new regulations that explicitly declare that 
sponsorship of a candidate debate by a news organization or a related 
trade association is legal under the Act and to refrain from any 
further regulatory jurisdiction over such sponsorship.
    The Commission published a Notice of Availability (``first NOA'') 
on June 10, 1999, to seek comment on the Wohlford Petition, 64 FR 31159 
(June 10, 1999), and subsequently extended the comment period on July 
21, 1999, 64 FR 39095 (July 21, 1999). The Commission received 
approximately 1,000 comments in response to the first NOA. Most of the 
comments expressed support for the Wohlford Petition. Several comments, 
however, expressed opposition to the establishment of mandatory 
objective criteria by the Commission for participation in Presidential 
and Vice Presidential debates.
    The Commission published a second Notice of Availability (``second 
NOA'') on May 9, 2002 to seek comment on the News Media Petition. 67 FR 
31164 (May 9, 2002). The Commission received one substantive comment in 
response to the second NOA, which generally supported the News Media 
Petition. The Commission also received a response from the IRS 
indicating it did not have substantive comments. Copies of comments on 
both NOAs are available on the Commission's Web site at http://www.fec.gov and in the Commission's Public Records Office.
    A significant period of time has passed since the petitions were 
filed. During that time many Presidential and Vice Presidential debates 
have taken place. Additionally, with the advent of new ways to 
communicate, including

[[Page 37180]]

the Internet and the new methods of communication it affords, there are 
now many new ways that issues are debated among candidates. The factors 
that precipitated the filing of the petitions may now be viewed much 
differently by some or all of the petitioners. Further, the many 
comments that were received from the public may no longer, in the view 
of those commenters, accurately represent positions they would now 
advocate to the Commission on the issues. Moreover, no formal requests 
have been made by the petitioners in recent times to activate the 
petitions or to invoke the jurisdiction of the Commission to consider 
the petitions.
    In view of the passage of time, the events which have transpired, 
as well as other factors discussed above, the Commission believes that 
any consideration of the issues raised in the Wohlford Petition and the 
News Media Petition should be based on newly filed petitions. 
Accordingly, the Commission declines to open a new rulemaking and will 
not issue a Notice of Proposed Rulemaking in response to either of the 
petitions. The Commission emphasizes that its decision not to initiate 
a rulemaking at this time does not foreclose the Commission from 
considering future petitions seeking the same or similar relief.

    On behalf of the Commission.

    Dated: July 22, 2009.
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. E9-17868 Filed 7-27-09; 8:45 am]
BILLING CODE 6715-01-P