[Federal Register Volume 74, Number 201 (Tuesday, October 20, 2009)]
[Proposed Rules]
[Pages 53674-53681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25107]


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FEDERAL ELECTION COMMISSION

11 CFR Part 100

[Notice 2009-22]


Definition of Federal Election Activity

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 regarding the definitions of ``voter registration 
activity'' and ``get-out-the-vote activity'' under the Federal Election 
Campaign Act of 1971, as amended. These proposed changes are in 
response to the decision of the U.S. Court of Appeals for the District 
of Columbia Circuit in Shays v. FEC. The Commission has made no final 
decision on the issues presented in this rulemaking. Further 
information is provided in the supplementary information that follows.

DATES: Comments must be received on or before November 20, 2009. The 
Commission will hold a hearing on these proposed rules on Wednesday, 
December 16, 2009 at 9:30 a.m. and, if necessary, Thursday, December 
17, 2009 at 9:30 a.m. Anyone wishing to testify at the hearing must 
file written comments by the due date and must include a request to 
testify in the written comments.

ADDRESSES: All comments must be in writing, addressed to Ms. Amy L. 
Rothstein, Assistant General Counsel, and submitted in either 
electronic, facsimile or hard copy form. Commenters are strongly 
encouraged to submit comments electronically to ensure timely receipt 
and consideration. Electronic comments should be sent to 
[email protected]. If the electronic comments include an attachment, 
the attachment must be in Adobe Acrobat (.pdf) or Microsoft Word (.doc) 
format. Faxed comments should be sent to (202) 219-3923, with hard copy 
follow-up. Hard copy comments and hard copy follow-up of faxed comments 
should be sent to the Federal Election Commission, 999 E Street, NW., 
Washington, DC 20463. All comments must include the full name and 
postal service address of the commenter or they will not be considered. 
The Commission will post comments on its web site after the comment 
period ends. The hearing will be held in the Commission's ninth floor 
meeting room, 999 E Street, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant 
General Counsel, or Attorneys Mr. David C. Adkins or Mr. Neven F. 
Stipanovic, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or 
(800) 424-9530.

SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002 
\1\ (``BCRA'') contained extensive and detailed amendments to the 
Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. 
(``the Act''). The Commission promulgated a number of rules to 
implement BCRA, including rules defining the terms ``voter registration 
activity'' and ``get-out-the-vote activity'' (``GOTV activity'') at 11 
CFR 100.24(a). The Court of Appeals for the District of Columbia 
Circuit found aspects of these rules invalid in Shays v. FEC, 528 F.3d 
914 (D.C. Cir. 2008) (``Shays III Appeal''). The Commission seeks 
comment on proposed changes to the rules at 11 CFR 100.24 to implement 
the Shays III Appeal decision.
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    \1\ Pub. L. 107-155, 116 Stat. 81 (2002).
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I. Background

A. BCRA

    The Act, as amended by BCRA, and Commission regulations provide 
that a State, district, or local committee of a political party must 
pay for certain ``Federal election activities'' with either entirely 
Federal funds \2\ or, in other instances, a mix of Federal funds and 
``Levin funds.'' \3\ See 2 U.S.C. 441i(b); 11 CFR 300.32. The Act 
identifies four types of activity that are subject to these funding 
restrictions, including ``voter registration activity''--Type I Federal 
election activity--and GOTV activity--Type II Federal election 
activity. See 2 U.S.C. 431(20)(A)(i) and (ii); 441i(b); 11 CFR 
100.24(a)(2) and (3).\4\
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    \2\ ``Federal funds'' are funds subject to the limitations, 
prohibitions, and reporting requirements of the Act. See 11 CFR 
300.2(g).
    \3\ ``Levin funds'' are funds raised and disbursed by State, 
district, or local party committees pursuant to certain 
restrictions. See 2 U.S.C. 441i(b); see also 11 CFR 300.2(i).
    \4\ In addition to GOTV activity, Type II Federal election 
activity also includes ``voter identification'' and ``generic 
campaign activity.'' See 2 U.S.C. 431(20)(A)(ii); 11 CFR 100.24; 
100.25. Types III and IV Federal election activity are outside the 
scope of this rulemaking and are not discussed. They pertain to 
public communications that refer to a clearly identified Federal 
candidate and promote, support, attack or oppose a candidate for 
Federal office (Type III), and services provided by an employee of a 
State, district, or local committee of a political party who spends 
more than 25 percent of his or her compensated time on activities in 
connection with a Federal election (Type IV). Types I and II Federal 
election activity may be funded with a combination of Federal and 
Levin funds; Types III and IV Federal election activity must be 
funded entirely with Federal funds.
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    Application of BCRA's Federal election activity funding 
restrictions for Types I and II Federal election activity is 
conditioned upon the timing of the activity. Voter registration 
activity (Type

[[Page 53675]]

I), for example, constitutes Federal election activity, and therefore 
is subject to BCRA's funding restrictions, only if it is conducted 
``120 days before the date a regularly scheduled Federal election is 
held.'' 2 U.S.C. 431(20)(A)(i). Similarly, voter identification, GOTV 
activity, and generic campaign activity are Federal election activity 
only if they are conducted ``in connection with an election in which a 
candidate for Federal office appears on the ballot.'' 2 U.S.C. 
431(20)(A)(ii).
    In BCRA, Congress chose to restrict the funds that State, district, 
and local party committees could use for Federal election activity 
because it determined that these activities influence Federal 
elections. See 148 Cong. Rec. S2139 (daily ed. Mar. 20, 2002) 
(statement of Sen. McCain) (noting, for example, that ``get-out-the-
vote and voter registration drives * * * are designed to, and do have 
an unmistakable impact on both Federal and non-Federal elections'').
    Restrictions on the funding of Federal election activity by State, 
district, and local party committees are critical because they prevent 
evasion of BCRA's restrictions on the raising and spending of non-
Federal funds by national party committees and Federal candidates and 
officeholders. See Final Rules on Prohibited and Excessive 
Contributions: Non-Federal Funds or Soft Money, 67 FR 49064-65 (July 
29, 2002) (``2002 Final Rule''). Indeed, in passing BCRA's Federal 
election activity provisions, Congress had in mind ``the very real 
danger that Federal contribution limits could be evaded by diverting 
funds to State and local parties, which then use those funds for 
Federal election activity.'' See 148 Cong. Rec. S2138 (daily ed. Mar. 
20, 2002) (statement of Sen. McCain).
    The Supreme Court upheld BCRA's Federal election activity 
provisions in McConnell v. FEC, 124 S. Ct. 619, 670-77 (2003). The 
Court found that non-Federal funds given to State, district, and local 
party committees could have the same corrupting influence as non-
Federal funds given to the national parties and therefore held that 
BCRA's Federal election activity restrictions were justified by an 
important government interest. Id. at 672-73. Indeed, the Court held 
that BCRA's Federal election activity provisions were likely necessary 
to prevent ``corrupting activity from shifting wholesale to state 
committees and thereby eviscerating [the Act].'' Id. at 673.
    In reaching its decision, the Court noted that BCRA regulated only 
``those contributions to State and local parties that can be used to 
benefit federal candidates directly'' and therefore posed the greatest 
threat of corruption. Id. at 673-74. As such, the Court found BCRA's 
regulation of voter registration activities, which ``directly assist 
the party's candidates for federal office,'' and GOTV activities, from 
which Federal candidates ``reap substantial rewards,'' to be 
permissible methods of countering both corruption and the appearance of 
corruption. Id. at 674; see also id. at 675 (finding that voter 
registration activities and GOTV activities ``confer substantial 
benefits on federal candidates'' and ``the funding of such activities 
creates a significant risk of actual and apparent corruption,'' which 
BCRA aims to minimize).

B. Rulemakings

    Although BCRA defines Federal election activity to include ``voter 
registration activity'' and ``GOTV activity,'' it did not specifically 
define those underlying terms. See 2 U.S.C. 431(20)(A)(ii)-(iii). 
Accordingly, the Commission promulgated definitions of these terms.
1. 2002 Rulemaking
    The Commission first promulgated definitions of ``voter 
registration activity'' and ``GOTV activity'' on July 29, 2002. See 
2002 Final Rule, 67 FR at 49067. The 2002 Final Rule defined ``voter 
registration activity'' as ``contacting individuals by telephone, in 
person, or by other individualized means to assist them in registering 
to vote.'' Id. at 49110. The Explanation and Justification (``E&J'') 
accompanying the rule noted that the definition was limited to 
``individualized contact for the specific purpose of assisting 
individuals with the process of registering to vote.'' Id. at 49067. 
The Commission expressly rejected an approach whereby mere 
encouragement to register to vote would have constituted voter 
registration activity. The Commission was concerned that taking such an 
approach would result in ``thousands of political committees and 
grassroots organizations that merely encouraged voting as a civic duty, 
who have never been subject to Federal regulation for such conduct, 
[being] swept into the extensive reporting and filing requirements 
mandated under Federal law.'' Id.
    The Commission similarly defined ``GOTV activity'' in 2002 as 
``contacting registered voters by telephone, in person, or by other 
individualized means to assist them in engaging in the act of voting.'' 
Id. at 49111. In adopting this construction, the Commission sought to 
distinguish GOTV activity from ``ordinary or usual campaigning,'' to 
avoid ``federaliz[ing] a vast percentage'' of the campaign activity 
that a State, district, or local party committee may conduct on behalf 
of its candidates. Id. at 49067. The Commission's definition focused on 
actions directed toward registered voters that had the particular 
purpose of ``assisting registered voters to take any and all steps to 
get to the polls and cast their ballots, or to vote by absentee ballot 
or other means provided by law.'' Id. The definition was not intended 
to cover activity aimed at ``generally increasing public support for a 
candidate or decreasing public support for an opposing candidate.'' Id.
    The Commission's 2002 definition of GOTV activity also expressly 
excluded ``any communication by an association or similar group of 
candidates for State and local office or of individuals holding State 
or local office if such communication refers only to one or more 
[S]tate or local candidates,'' in order to keep ``State and local 
candidates' grassroots and local political activity a question of 
State, not Federal, law.'' Id. The Commission declined to read BCRA as 
extending ``to purely State and local activity by State and local 
candidates'' and concluded that such ``a vast federalization of State 
and local activity'' required ``greater direction from Congress.'' Id.
    The Commission's 2002 definitions of voter registration activity 
and GOTV activity were challenged in Shays v. FEC, 337 F. Supp. 2d 28 
(D.D.C. 2004) (``Shays I District''). The district court held that the 
definition of ``voter registration activity,'' which required actual 
assistance, was neither inconsistent with congressional intent nor an 
impermissible construction of BCRA. See Shays I District, 337 F. Supp. 
2d at 100 (applying Chevron U.S.A., Inc. v. Natural Res. Def. Council, 
Inc., 467 U.S. 837 (1984)). The court further held that the ``exact 
parameters'' of the regulatory definition were unclear and, therefore, 
it was unable to determine if the definition ``unduly compromised'' 
BCRA's purpose. Id. Nevertheless, the court found that the Commission's 
definition was promulgated without adequate notice and opportunity for 
comment, contrary to the Administrative Procedure Act; see 5 U.S.C. 
553, and remanded the regulation to the Commission. See Shays I 
District, 337 F. Supp. 2d at 100.
    The court reached similar conclusions as to the definition of 
``GOTV activity,'' holding that the definition of ``voter registration 
activity,'' which required actual assistance, was neither inconsistent 
with congressional intent nor an impermissible construction of

[[Page 53676]]

BCRA. Id. at 103, 105 (applying Chevron). The court also concluded that 
there was ``ambiguity as to what acts are encompassed by the 
regulation,'' which rendered the court unable to determine whether the 
definition of ``GOTV activity'' unduly compromised BCRA. Id. at 105. As 
it had with the definition of ``voter registration activity,'' however, 
the court found that the Commission's definition was promulgated 
without adequate notice and opportunity for comment and remanded the 
regulation to the Commission. See id. at 106.
    The court also found that the exemption from the GOTV activity 
definition for communications made by associations or groups of State 
or local candidates or officeholders ran contrary to Congress's clearly 
expressed intent. See id. at 104. However, the court found that BCRA 
provided no support for such an exemption, and it rejected all 
federalism concerns raised by the Commission in defense of the 
exemption, holding that ``Congress was sensitive to federalism concerns 
in drafting BCRA'' and that the Supreme Court in McConnell had rejected 
the general federalism challenge brought against BCRA's Federal 
election activity provisions. Id.
2. 2005 Rulemaking
    The Commission commenced a rulemaking in 2005 to address the 
court's concerns, rather than appeal these aspects of Shays I District. 
Following another notice and period for comment, the Commission 
promulgated definitions of ``voter registration activity'' and ``GOTV 
activity'' that were substantially similar to those promulgated in 
2002. The final rules were accompanied by an E&J that sought to address 
many of the Shays I District court's concerns. See Final Rules on 
Definition of Federal Election Activity, 71 FR 8926, 8928 (Feb. 22, 
2006) (``2006 Final Rule'').
    The Commission's decision to leave unchanged the core aspects of 
the definitions of ``voter registration activity'' and ``GOTV 
activity'' was based on its continued concern that definitions which 
captured ``mere encouragement[s]'' would be ``overly broad,'' were 
unnecessary ``to effectively implement BCRA,'' and ``could have an 
adverse impact on grassroots political activity.'' \5\ Accordingly, the 
2006 definitions were designed to encompass activities that actually 
registered persons to vote and resulted in voters going to the polls. 
Id. at 8928-29. Thus, the Commission sought to ``regulate the funds 
used to influence Federal elections'' and not ``incidental speech.'' 
Id.
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    \5\ The Commission did change other aspects of the GOTV activity 
definition in response to the Shays I District court decision. The 
Commission removed from the definition of ``GOTV activity'' the 
exemption for communications by associations and groups of State or 
local candidates or officeholders. See 2006 Final Rule, 71 FR at 
8931. The Commission also removed from the examples of GOTV activity 
the phrase ``within 72 hours of an election,'' to clarify that the 
definition covered activity conducted more than 72 hours before an 
election. See id. at 8930-31.
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    The Commission noted in its 2006 E&J that its regulations would not 
lead to the circumvention of the Act precisely because they captured 
``the use of non-Federal funds for disbursements that State, district, 
and local parties make for those activities that actually register 
individuals to vote.'' Id. Moreover, ``many programs for widespread 
encouragement of voter registration to influence Federal elections 
would be captured as public communications under Type III [Federal 
election activity].'' Id. The 2006 E&J also provided a nonexclusive 
list of examples of activity that would--and would not--constitute 
voter registration activity. Id.

C. Shays III

    The revised definitions of voter registration activity and GOTV 
activity were challenged again in Shays v. FEC, 508 F. Supp. 2d. 10, 
63-70 (D.D.C. 2007) (``Shays III District''). Analyzing the definitions 
of ``voter registration activity'' and ``GOTV activity,'' the district 
court noted that the Commission's 2006 E&J addressed only the most 
obvious instances of what was--and was not--covered activity but not 
the ``vast gray area'' of activities that State and local parties may 
conduct and that may benefit Federal candidates. Shays III District, 
508 F. Supp. 2d at 65, 69-70.
    Regarding GOTV activities, in particular, the district court 
focused on Advisory Opinion 2006-19, issued to the Los Angeles County 
Democratic Party Central Committee, in which the Commission concluded 
that a local party committee's mass mailing and pre-recorded, 
electronically dialed telephone calls (``robocalls'') to the party's 
registered voters would not constitute get-out-the-vote activity. \6\ 
The district court stated that Advisory Opinion 2006-19 had announced a 
much narrower interpretation of the scope of GOTV activity than ``might 
otherwise [have been] presumed on the face of the definition.'' Id. at 
69.
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    \6\ The proposed communications would have been made four or 
more days before the election, would have informed recipients of the 
date of the election, would have urged them to vote for local, but 
not Federal, candidates, and would not have included additional 
information such as the hours and location of the individual voter's 
polling place. The Commission concluded that the communications 
would provide neither actual assistance nor sufficiently 
individualized assistance to constitute GOTV activity and that, as a 
result, the communications could be funded exclusively with non-
Federal funds.
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    The district court held that the Commission's failure to address 
these vast gray areas, and to explain whether activities falling within 
them would affect Federal elections, unduly compromised BCRA's 
purposes. Id. at 65-66, 69-70. Accordingly, the court remanded the 
definitions to the Commission. Id. at 70-71.
    The court of appeals upheld the lower court's decision invalidating 
the Commission's definitions of ``voter registration activity'' and 
``GOTV activity,'' although on slightly different grounds. See Shays 
III Appeal, 528 F.3d at 931. The court of appeals recognized that the 
Commission had discretion to promulgate definitions that left 
unaddressed large gray areas of activity and to fill them in later 
through enforcement actions and the advisory opinion process. See id.
    Nevertheless, the court of appeals held that the Commission's 
definitions of ``voter registration activity'' and ``GOTV activity'' 
were deficient because they served to ``create `two distinct 
loopholes.' '' Id. The flaws in both definitions were: (1) the 
``assist'' requirements, which excluded efforts that ``actively 
encourage people to vote or register to vote;'' and (2) the 
``individualized means'' requirements, which excluded ``mass 
communications targeted to many people,'' and had the effect of 
``dramatically narrowing which activities [were] covered'' by the 
rules. Id. Accordingly, the court of appeals concluded that the 
definitions would ``allow the use of soft money for many efforts that 
influence federal elections,'' which is directly counter to BCRA's 
purpose. Id.
    The court rejected the Commission's justifications for the 
definitions--to exclude mere exhortations from coverage and to give 
clear guidance as to the scope of the rules--because the Commission 
could craft definitions that exclude ``routine or speech-ending 
exhortations'' and that provided clear guidance to State, district, and 
local party committees in a way that is more consistent with BCRA. Id. 
at 932. Accordingly, the court of appeals remanded the regulations to 
the Commission.

[[Page 53677]]

II. Proposed Revisions to 11 CFR 100.24(a)(2) and 100.24(a)(3)

    To comply with the court's decision in Shays III Appeal, the 
Commission proposes revising the definitions of voter registration 
activity and GOTV activity at 11 CFR 100.24(a)(2)-(3). The Commission 
seeks comment on the proposal and is particularly interested in whether 
the proposed definitions would satisfy the court's decision in Shays 
III Appeal. The Commission has not made any final determinations 
regarding which aspects of the following proposal it will adopt in the 
final rule.

A. General Definitions

    To comply with the Shays III Appeal decision, the Commission 
proposes revising the definitions of voter registration activity and 
GOTV activity at 11 CFR 100.24(a)(2) and (a)(3). Specifically, the 
Commission's proposal would define voter registration activity as 
``encouraging or assisting potential voters in registering to vote'' 
and would define GOTV activity as ``encouraging or assisting potential 
voters to vote.'' The Commission has not made a final determination to 
adopt these general definitions and seeks comment on them.
    These proposals are intended to close the ``two distinct 
loopholes'' in the current definitions that were identified by the 
Shays III Appeal court as allowing the use of non-Federal funds in 
connection with Federal elections. See Shays III Appeal, 528 F.3d at 
931-32. The proposed definitions would eliminate the requirement that 
voter registration activity and GOTV activity must actually assist 
persons in registering to vote or in the act of voting. Instead, the 
proposed definitions cover both activities that encourage voting or 
voter registration, as well as activities that actually assist 
potential voters in voting or registering to vote.
    Similarly, the proposed definitions would eliminate the requirement 
that voter registration activity and GOTV activity be conducted by 
``individualized means.'' The proposed definitions cover both 
activities targeted towards individual persons and activities directed 
at groups of persons--for example, mass mailings, all electronically 
dialed telephone calls (or, as they are commonly known, ``robocalls''), 
or radio advertisements--so long as they encourage or assist voting or 
voter registration.
    The Commission seeks comment on whether the proposed definitions 
adequately address the concerns articulated by the court in the Shays 
III Appeal decision. Do they provide sufficient guidance as to which 
activities are covered and which are not? Do the proposed definitions, 
in fact, close the ``two distinct loopholes'' identified by the Shays 
III Appeal court? Alternatively, do the proposed definitions cover 
activity that Congress did not intend to regulate in BCRA? If so, what 
specific activities would be covered by the proposed rules that would 
not have any effect on Federal elections?
    More specifically, the proposed definition of ``voter registration 
activity'' is intended to cover, inter alia, the following activities: 
(1) Providing an individual with a flier that reads ``Register to 
Vote'' and that includes the URL and address of the appropriate State 
or local office handling voter registration; (2) providing an 
individual with a voter registration form and verbally encouraging the 
recipient to fill out the form and submit it to the appropriate State 
or local office handling voter registration; or (3) mailing voter 
registration forms to individuals and encouraging them, in a cover 
letter, to fill out and submit the forms in advance of the registration 
deadline. Should the definition cover such activities? What, if any, 
additional activities should it cover?
    Similarly, the proposed definition of ``GOTV activity'' is intended 
to cover, inter alia, these activities: (1) Driving a sound truck 
through a neighborhood that plays a message urging listeners to ``Vote 
next Tuesday at the Main Street community center''; (2) mailing a flier 
to registered voters with the date of the election but not the location 
of polling places or their hours of operation; and (3) making telephone 
calls (including robocalls) reminding the recipient of the times during 
which the polls are open on election day. Should the proposed 
definition of GOTV activity cover such activities? What, if any, 
additional activities should it cover?
    What, if any, enforcement difficulties might the proposed 
definitions present?

B. Examples

    Each proposed definition includes a non-exhaustive list of 
examples. Several activities that would either encourage or assist 
voter registration are provided at proposed paragraphs (a)(2)(i)(A-E). 
Some of the examples involve actual assistance (``assisting individuals 
in completing or filing [voter registration] forms'' and ``submitting 
on behalf of a potential voter a completed voter registration form''), 
while others involve encouragement of persons to register to vote 
(``urging individuals to register to vote * * * by any * * * means'').
    Similarly, several activities that would either encourage or assist 
persons in voting are provided at proposed paragraph (a)(3)(i)(A)-(B). 
Some examples from the existing rule would be retained (such as 
``offering to transport, or actually transporting, voters to the 
polls'') and new examples would be added to illustrate the new 
``encourage'' component of the proposed definition. Informing voters of 
the date of an election or the times or locations of polling locations, 
for example, would constitute GOTV activity under the proposed 
definition.
    The Commission has not settled on the proposed examples of voter 
registration activity and GOTV activity and seeks comments on them. By 
providing these examples, does the proposal make clear that the 
definitions of voter registration activity and GOTV activity would not 
require actual assistance? Would the examples help State, district, and 
local party committees distinguish activities that are covered under 
the proposed definitions from activities that are not covered? Do the 
examples clarify any potential ambiguities in the general definition? 
Are there other examples that should be added? Should any of the 
proposed examples be revised or deleted? Finally, is it clear that the 
lists of examples provided in the proposal are not exhaustive and that 
each example would, by itself, constitute voter registration activity 
or GOTV activity?

C. Exemption for ``Mere Exhortations''

    Although the Shays III Appeal court required the Commission to 
promulgate definitions of voter registration activity and GOTV activity 
that included encouragements to vote and to register to vote, the court 
of appeals acknowledged that it would be permissible to exclude from 
the definitions ``routine or spontaneous speech-ending exhortations'' 
and ``mere exhortations * * * made at the end of a political event or 
speech.'' Shays III Appeal, 528 F.3d at 932. Accordingly, proposed 11 
CFR 100.24(a)(2)(ii) and (a)(3)(ii) recognize that ``speeches'' or 
``events'' that include exhortations to vote or to register to vote 
that are incidental to the speech or event are exempt from the 
regulatory definitions of GOTV activity and voter registration 
activity. The proposals provide examples of the types of incidental 
exhortations that would qualify under the exemption.
    The exemption would be limited to exhortations made during a speech 
or at an event, such as a rally. It would not apply to exhortations 
made by any other means or in any other forum, such as robocalls, 
mailers, or television and

[[Page 53678]]

radio advertisements. Further, the proposed exemption would apply only 
if an exhortation to vote or to register to vote is incidental to the 
speech or event.
    The Commission has not made a final determination to adopt this 
exemption and seeks comment on it. Does it provide clear guidance as to 
the activities exempted from the definitions of voter registration 
activity and GOTV activity? Do the examples make clear what types of 
statements qualify as ``mere exhortations''?
    Has the Commission properly established the scope of the proposed 
exemption? Is it appropriate to limit the exemption to cover only those 
exhortations that are incidental to a speech or event? Does this 
requirement capture the type of ``speech-ending'' exhortations 
discussed by the court in the Shays III Appeal decision? Does the 
requirement that an exhortation be incidental to a speech or event 
create a workable and enforceable standard? How should the Commission 
determine whether an exhortation is incidental to a speech or event? 
Should the Commission consider the frequency with which a ``mere 
exhortation'' is offered? Is there a material difference between 
stating ``Vote next Tuesday'' once and stating it multiple times over 
the course of a speech or event?
    Are there other factors that the Commission should consider in 
determining whether the exemption applies? For example, should the 
spontaneity of an exhortation play a role in making this determination, 
and how would the Commission determine the spontaneity of an 
exhortation? Does it matter at what point in a speech an exhortation is 
offered? Is an exhortation offered at the end of a speech different 
from one offered at the beginning or middle of a speech?
    Further, is it proper to limit application of the exemption to 
incidental exhortations made at speeches and events, or should other 
communications be included as well? If so, what other types of 
activities and communications should be covered by the exemption? 
Should it cover direct mailings, robocalls, radio and television 
advertisements, and all other ``communications'' that contain 
incidental exhortations to vote or to register to vote? Should the 
exemption cover, for example, robocalls made a few days before a 
Federal election that detail Mayor Smith's record and exhorts listeners 
to ``Vote for Mayor Smith on Election Day''? \7\ Would an exemption 
that included these types of communications be consistent with the 
court's opinion in Shays III Appeal?
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    \7\ A similar communication that urged a vote for a Federal 
candidate would be Type III Federal election activity, see 11 CFR 
100.24(b)(3), and would be subject to BCRA's funding restrictions 
for that reason, regardless of whether the activity was also deemed 
to be GOTV activity.
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    Does the medium in which a statement is made affect whether it is a 
``mere exhortation'' at all? Are scripted communications incapable of 
containing incidental exhortations? In other words, are scripted 
exhortations to vote or to register to vote the types of communications 
which the Shays III Appeal court was referring to in its opinion? If 
the exemption is expanded to cover exhortations made in other media, 
how could the Commission determine if they were incidental? Would such 
a determination be made by examining the proportion of space or time 
devoted to the exhortation in relation to the rest of the 
communication? See, e.g., 11 CFR 106.1 (requiring that payments for 
communications discussing multiple Federal or non-Federal candidates be 
attributed to each candidate based on the time or space devoted to each 
one). Would the Commission have to establish threshold percentages that 
defined whether an exhortation was, in fact, incidental to a 
communication?
    How would the proposed general definitions of ``voter registration 
activity'' and ``GOTV activity'' be affected by altering the scope of 
the exemption? Would the examples in proposed paragraphs (a)(2)(i)(A)-
(E) and (a)(3)(i)(A)-(B) need to be revised if the Commission adopted a 
broader exemption? Would allowing a broader exemption potentially allow 
communications that affect Federal elections to be funded with non-
Federal funds, contrary to BCRA's purpose?
    This exemption is not intended to inoculate speeches or events that 
otherwise would meet the proposed definitions of ``voter registration 
activity'' or ``GOTV activity.'' For example, a speech given 60 days 
before an election that provides listeners with information on how to 
register to vote would constitute Federal election activity even if it 
also contains an exhortation to register to vote (such as ``Register 
and make your voice heard!''). Should the Commission make this 
limitation explicit in the rule itself? Without an explicit limitation, 
could the general exemption be interpreted as applying to voter 
registration activity or GOTV activity for reasons other than their 
inclusion of an exhortation? Would adding an explicit limitation be 
helpful or would it be redundant and therefore unnecessary?

D. Exclusion of Public Communications Relating to State and Local 
Elections

    Finally, proposed 11 CFR 100.24(a)(3)(iii) excludes from the 
definition of ``GOTV activity'' a ``public communication that refers 
solely to one or more clearly identified candidates for State or local 
office and notes the date of the election.'' The proposal under 
consideration, if adopted, would ensure that the expansion of the GOTV 
activity definition, which is required by the Shays III Appeal court, 
does not, in effect, render meaningless the statutory definition of 
``Federal election activity,'' which specifically does not include 
amounts disbursed or expended for ``a public communication that refers 
solely to a clearly identified candidate for State or local office, if 
the communication is not a Federal election activity described in 
subparagraph (A)(i) or (ii).'' 2 U.S.C. 431(20)(B)(i); 11 CFR 
100.24(c)(1).
    The Commission has not made a final determination to adopt the 
proposed exclusion and seeks comment on it. Does the proposed exclusion 
correctly implement the statutory definition? Is the proposed exclusion 
necessary to ensure that the expansion of the definition of ``GOTV 
activity'' does not render meaningless the exclusion for communications 
that refer solely to non-Federal candidates? Is it necessary to ensure 
that the Commission does not federalize purely State and local campaign 
activity?
    Conversely, would the proposed provision exclude from regulation 
the types of activities from which ``federal candidates reap 
substantial rewards''? See McConnell, 124 S. Ct. at 168. Similarly, is 
the proposed exclusion materially different from the exception for 
associations of State and local candidates that was included in the 
Commission's first definition of GOTV activities and that was 
invalidated by the district court in the Shays I District decision? See 
Shays I District, 337 F. Supp. 2d at 102-03; see also discussion above 
in part I.B-C.

E. Other Issues

    In Shays III Appeal, the court of appeals cited Advisory Opinion 
2006-19 (Los Angeles County Democratic Party Central), in which the 
Commission concluded that letters and pre-recorded telephone calls 
encouraging certain Democrats to vote in an upcoming local election did 
not count as GOTV activity, in part, because the communications did not 
provide individualized assistance to voters. See Shays III Appeal, 528 
F.3d at 932. The court held that this overly restrictive

[[Page 53679]]

definition of GOTV activity was contrary to the statute. See id. The 
court did not address, however, whether communications made solely in 
connection with a non-Federal election may be excluded from the 
definition of GOTV activity or Federal election activity.
    In light of the Shays III Appeal decision and the definitions 
proposed above, must the Commission explicitly supersede, in whole or 
in part, Advisory Opinion 2006-19? If so, should the Commission, either 
in its E&J or in the regulation explicitly address the circumstances 
involved with that advisory opinion? For example, should the E&J or 
final regulation acknowledge explicitly that communications made four 
or more days before an election are ``GOTV activity'' if they encourage 
or assist individuals in voting, provided that neither of the proposed 
exclusions at 11 CFR 100.24(a)(3)(iii) (State and local elections) or 
11 CFR 100.24(c)(5) (voter identification or GOTV activity solely in 
connection with a non-Federal election; see above)--if adopted--is met? 
What other aspects of that advisory opinion should be addressed in a 
similarly explicit manner?

III. Voter Identification and GOTV Activity in Connection With a Non-
Federal Election

A. Background

    BCRA limits regulation of Type II FEA to activities that are 
conducted ``in connection with an election in which a candidate for 
Federal office appears on the ballot.'' See 2 U.S.C. 441i(b)(1); 
431(20)(A)(ii). In 2002, the Commission defined ``in connection with an 
election in which a candidate for Federal office appears on the 
ballot'' generally to mean the period of time beginning on the earliest 
filing deadline for access to the primary election ballot for Federal 
candidates in each particular State, and ending on the date of the 
general election, up to and including any runoff date. See 11 CFR 
100.24(a)(1)(i). For States not holding a primary election, the covered 
period began on January 1 of each even-numbered year. Id. For special 
elections in which Federal candidates were on the ballot, the period 
was deemed to begin when the date of the special election was set and 
to end on the date of the special election. See 11 CFR 
100.24(a)(1)(ii).
    This definition did not, however, account for municipalities, 
counties, and States that conducted separate, non-Federal elections 
within the ``in connection with an election'' time windows. As such, 
Type II Federal election activities conducted in connection with these 
non-Federal elections were subject to BCRA's restrictions. Therefore, 
in 2006, the Commission adopted an Interim Final Rule that revised the 
definition of ``in connection with an election in which a candidate for 
Federal office appears on the ballot'' to exclude purely non-Federal 
voter identification and GOTV activity. See Interim Final Rule on 
Definition of Federal Election Activity, 71 FR 14357 (Mar. 22, 2006) 
(``Interim Final Rule'').
    The Interim Final Rule added new paragraph (a)(1)(iii) to 11 CFR 
100.24 to exclude voter identification or GOTV activities that were 
``in connection with a non-Federal election that is held on a date 
separate from a date of any Federal election'' and that refers 
exclusively to: (1) Non-Federal candidates participating in the non-
Federal election, provided the non-Federal candidates are not also 
Federal candidates; (2) ballot referenda or initiatives scheduled for 
the date of the non-Federal election; or (3) the date, polling hours 
and locations of the non-Federal election. See 11 CFR 
100.24(a)(1)(iii)(A)(1)-(3); Interim Final Rule, 71 FR at 14359-60. By 
its own terms, the provision expired on September 1, 2007. See 11 CFR 
100.24(a)(1)(iii)(B); Interim Final Rule at 14358.

B. Proposal

    The Commission is considering adding 11 CFR 100.24(c)(5), which 
would exclude from the definition of ``Federal election activity'' any 
voter identification activities or GOTV activities that are ``solely in 
connection with a non-Federal election held on a date separate from any 
Federal election.'' For example, a GOTV program offering to transport 
voters to the polls on the day of an exclusively non-Federal election 
would be eligible for the proposed exclusion. However, a voter 
identification program collecting information about voters' preferences 
in both a non-Federal election in March and a Federal primary in April 
would not qualify, since such a program would not be ``solely in 
connection with a non-Federal election.'' This proposal largely tracks 
the Interim Final Rule, although, as proposed here, it would be located 
in a different paragraph within 11 CFR 100.24.
    The proposed rule under consideration is based on the premise that 
voter identification and GOTV activity for non-Federal elections held 
on a different date from any Federal election will have no effect on 
subsequent Federal elections. The Commission seeks comments, especially 
in the form of empirical data, on whether voter identification and GOTV 
efforts in connection with a non-Federal election have any meaningful 
effect on voter turnout in a subsequent Federal election, or otherwise 
confer benefits on Federal candidates. For example, if a GOTV 
communication provides the date of a non-Federal election and offers 
transportation to voters for such a non-Federal election, what effect, 
if any, would such activity have on a Federal election held on a 
separate date, that is weeks or months later?
    The proposed exclusion would be narrowly drawn and not apply to 
activities that are also in connection with a Federal election. To that 
end, the Commission seeks comment on whether the exclusion should take 
into account the proximity of the next Federal election. For example, 
should the rule distinguish between situations where the next Federal 
election is only six days later, as opposed to six months? How much 
time should pass between a Federal and State or local election to 
ensure activities associated with the State or local election have no 
affect on the Federal one? Should the time required to pass be 
different for voter identification activity than it is for GOTV 
activity?
    Additionally, many states currently allow voters to cast a ballot, 
either in person or by mail, prior to Election Day--a process known 
generally as ``early voting.'' See U.S. Election Assistance Comm'n, A 
Voter's Guide to Federal Elections 5 (2008), available at http://www.eac.gov/voter/voter/a-voters-guide-to-federal-elections/attachment_download/file. However, the exclusion in proposed section 
100.24(c)(5) distinguishes excluded local activity, in part, based on 
whether the dates of Federal and non-Federal elections coincide. The 
Commission seeks comment on whether early voting affects the relevance 
of the dates on which elections are held. Do the early voting periods 
for Federal elections overlap with the dates of State and local 
elections or State and local early voting periods? Can early voters 
cast ballots at the same time for both Federal and State or local 
elections when the actual date of those elections do not coincide? How 
does GOTV activity for early voting in non-Federal elections affect 
turnout and voting patterns for early voting in Federal elections? The 
Commission particularly welcomes comments in the form of empirical 
data.
    The proposed exclusion further requires that voter identification 
or GOTV activity refer exclusively to non-Federal candidates 
participating in the non-Federal election (provided that the non-
Federal candidates are not also

[[Page 53680]]

Federal candidates); ballot referenda or initiatives scheduled for the 
date of the non-Federal election; or the date, polling hours, and 
locations of the non-Federal election. These limitations are intended 
to ensure that the only activity excluded from the definition of 
``Federal election activity'' is solely in connection with a non-
Federal election.
    To effectuate this intention better, the Commission invites 
comments on any changes that it should make to proposed 11 CFR 
100.24(c)(5). Do the proposal's limitations ensure that the exclusion 
covers only non-Federal activity? The Commission seeks comment on 
whether proposed 11 CFR 100.24(c)(5) excludes ``purely non-Federal'' 
activities. Is the proposed exclusion consistent with congressional 
intent?
    Finally, the current proposal is different from previous Commission 
approaches to this issue. In the Interim Final Rule, and subsequently 
in a Notice of Proposed Rulemaking,\8\ the Commission had proposed 
excluding non-Federal voter identification and GOTV activity from 
regulation by amending the definition of ``in connection with an 
election in which a candidate for Federal office appears on the 
ballot.'' The current proposal would instead address non-Federal 
elections by adding a new exclusion to the definition of ``Federal 
election activity'' at 11 CFR 100.24(c)(5). Would this approach have a 
different effect from the approach in the Interim Final Rule and the 
NPRM, and if so, should the Commission adopt the prior approach or the 
proposed approach? Does the Commission have the authority to add this 
provision, even though it is not expressly provided for in the 
statutory text? Alternatively, does the statute's definition of Federal 
election activity at 2 U.S.C. 431(20)(A), which does not include the 
type of activities described under proposed 11 CFR 100.24(c)(5), permit 
this provision?
---------------------------------------------------------------------------

    \8\ See Notice of Proposed Rulemaking on Federal Election 
Activity and Non-Federal Elections, 72 FR 31473 (June 7, 2007).
---------------------------------------------------------------------------

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

    The Commission certifies that the attached proposed rule, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities. The basis for this certification 
is that this proposed rule would affect State, district, and local 
party committees, which are not ``small entities'' as defined in 5 
U.S.C. 601. The term ``small entities'' includes not-for-profit 
enterprises that are ``small organizations'' under 5 U.S.C. 601(4) and 
601(6). State, district, and local party committees are not-for-profit 
enterprises, but they are not ``small organizations'' under 5 U.S.C. 
601(4) because they are not independently owned and operated and are 
not dominant in their field. 5 U.S.C. 601(4). State political party 
committees are not independently owned and operated because they are 
not financed and controlled by a small identifiable group of 
individuals, and they are affiliated with the larger national political 
party organizations. In addition, the State political party committees 
representing the Democratic and Republican parties have a major 
controlling influence within the political arena of their States and 
are thus dominant in their field. District and local party committees 
are generally considered affiliated with the State committees and need 
not be considered separately. To the extent that any State party 
committees representing minor political parties might be considered 
``small organizations,'' the number affected by this proposed rule is 
not substantial.

List of Subjects in 11 CFR Part 100

    Elections.

    For the reasons set out in the preamble, subchapter A of chapter 1 
of title 11 of the Code of Federal Regulations is proposed to be 
amended as follows:

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

    1. The authority citation for 11 CFR part 100 continues to read as 
follows:

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

    2. Section 100.24 is amended by removing paragraph (a)(1)(iii), by 
revising paragraphs (a)(2) and (a)(3), and by adding paragraph (c)(5) 
to read as follows:


Sec.  100.24  Federal election activity (2 U.S.C. 431(20)).

    (a) * * *
    (2) Voter registration activity means encouraging or assisting 
potential voters in registering to vote.
    (i) Except as provided in paragraph (a)(2)(ii) of this section, 
voter registration activity includes, but is not limited to, any of the 
following:
    (A) Urging, whether by mail (including direct mail), in person, by 
telephone (including robocalls), or by any other means, potential 
voters to register to vote;
    (B) Preparing and distributing information about registration and 
voting;
    (C) Distributing voter registration forms or instructions to 
potential voters;
    (D) Answering questions about how to complete or file a voter 
registration form, or assisting potential voters in completing or 
filing such forms; or
    (E) Submitting a completed voter registration form on behalf of a 
potential voter.
    (ii) A speech or event is not voter registration activity solely 
because it includes an exhortation to register to vote that is 
incidental to the speech or event, such as:
    (A) ``Register and make your voice heard'';
    (B) ``Don't forget to register to vote'';
    (C) ``Register by September 5th''; or
    (D) ``Don't forget to register to vote by next Wednesday.''
    (3) Get-out-the-vote activity means encouraging or assisting 
potential voters to vote.
    (i) Except as provided in paragraph (a)(3)(ii) of this section, 
get-out-the-vote activity includes, but is not limited to, any of the 
following:
    (A) Informing potential voters, whether by mail (including direct 
mail), in person, by telephone (including robocalls), or by any other 
means, about:
    (1) The date of an election;
    (2) Times when polling places are open;
    (3) The location of particular polling places;
    (4) Early voting or voting by absentee ballot; or
    (B) Offering to transport, or actually transporting, potential 
voters to the polls.
    (ii) A speech or event is not get-out-the-vote activity solely 
because it includes an exhortation to vote that is incidental to the 
speech or event, such as:
    (A) ``Your vote is very important'';
    (B) ``Don't forget to vote'';
    (C) ``Don't forget to vote on November 4th''; or
    (D) ``Your vote is very important next Tuesday.''
    (iii) Get-out-the-vote activity does not include a public 
communication that refers solely to one or more clearly identified 
candidates for State or local office, but does not refer to a clearly 
identified Federal candidate, and notes the date of the election, such 
as:
    (A) A broadcast advertisement stating ``Vote Smith for mayor on 
November 4th''; or
    (B) A mailer sent to at least 500 persons stating ``Get out and 
show your support for State Delegate Jones next Tuesday.''
* * * * *
    (c) * * *

[[Page 53681]]

    (5) Voter identification or get-out-the-vote activity that is 
solely in connection with a non-Federal election that is held on a date 
on which no Federal election is held and that refers exclusively to:
    (i) Non-Federal candidates participating in the non-Federal 
election, provided the non-Federal candidates are not also Federal 
candidates;
    (ii) Ballot referenda or initiatives scheduled for the date of the 
non-Federal election; or
    (iii) The date, polling hours and locations of the non-Federal 
election.

    Dated: October 14, 2009.

    On behalf of the Commission.
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. E9-25107 Filed 10-19-09; 8:45 am]
BILLING CODE 6715-01-P