[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Proposed Rules]
[Pages 6590-6592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2973]


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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. 75, No. 27 / Wednesday, February 10, 2010 / 
Proposed Rules  

[[Page 6590]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 100 and 109

[Notice 2010-01]


Coordinated Communications

AGENCY: Federal Election Commission.

ACTION: Supplemental Notice of Proposed Rulemaking.

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SUMMARY: The Federal Election Commission is issuing a Supplemental 
Notice of Proposed Rulemaking for the Notice of Proposed Rulemaking on 
Coordinated Communications published on October 21, 2009, in order to 
elicit comments addressing the impact of the Supreme Court's decision 
in Citizens United v. FEC. The Commission is also announcing a public 
hearing on the proposed rules regarding coordinated communications. No 
final decision has been made by the Commission on the issues presented 
in this rulemaking.

DATES: Comments must be received on or before February 24, 2010. The 
hearing will be held on Tuesday and Wednesday, March 2 and 3, 2010 and 
will begin at 10 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. Any person who requested to testify in 
written comments received by the Commission prior to the deadline for 
the initial comment period need not request to testify again.

ADDRESSES: All comments must be in writing, addressed to Ms. Amy L. 
Rothstein, Assistant General Counsel, and submitted in either 
electronic, facsimile or paper 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 paper follow-up. Paper comments and paper 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 website 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, Ms. Jessica Selinkoff, or Ms. Joanna Waldstreicher, 
Attorneys, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or 
(800) 424-9530.

SUPPLEMENTARY INFORMATION: On October 21, 2009, the Commission 
published a Notice of Proposed Rulemaking (``NPRM'') proposing possible 
changes to the ``coordinated communication'' regulations at 11 CFR 
109.21 in response to the decision of the Court of Appeals for the 
District of Columbia Circuit in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 
2008) (``Shays III Appeal''). See Notice of Proposed Rulemaking on 
Coordinated Communications, 74 FR 53893 (Oct. 21, 2009). The deadline 
for comments on the NPRM was January 19, 2010. In the NPRM, the 
Commission stated that it would announce the date of a hearing at a 
later date.

I. Extension of Comment Period

    Two days after the close of the NPRM's comment period, on January 
21, 2010, the Supreme Court issued its decision in Citizens United v. 
FEC, No. 08-205 (U.S. Jan. 21, 2010), available at http://www.fec.gov/law/litigation/cu_sc08_opinion.pdf. Citizens United may raise issues 
relevant to the coordinated communications rulemaking. Therefore, the 
Commission is re-opening the comment period for this rulemaking. The 
Commission seeks additional comment as to the effect of the Citizens 
United decision on the proposed rules, issues, and questions raised in 
the NPRM and in this Supplemental Notice of Proposed Rulemaking 
(``SNPRM'').\1\ Comments are due on or before February 24, 2010.
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    \1\ The Commission is reevaluating a number of other regulations 
in light of the Citizens United decision and intends to begin a 
separate rulemaking to address these other regulations. Commenters 
will have an opportunity to address these other issues at that time.
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a. General Considerations

    In response to Shays III Appeal, the Commission's NPRM proposed 
four alternatives for revising the content prong of the coordinated 
communications test, three alternatives for revising the conduct prong 
of the coordinated communications test, two alternative definitions of 
``promote, support, attack, or oppose'' (``PASO''), and two safe 
harbors.
    The Commission seeks comments on the effect of the Citizens United 
decision on the Commission's proposals in the NPRM. The Commission asks 
broadly whether commenters believe Citizens United affects any aspect 
of the proposed rules and also asks specific questions regarding 
certain aspects of the proposed rules.
    In concluding that ``independent expenditures, including those made 
by corporations, do not give rise to corruption or the appearance of 
corruption,'' the Court explained that `` `[t]he absence of 
prearrangement and coordination of an expenditure with the candidate or 
his agent not only undermines the value of the expenditure to the 
candidate, but also alleviates the danger that expenditures will be 
given as a quid pro quo for improper commitments from the candidate.' 
'' Citizens United, slip op. at 41-42 (quoting Buckley v. Valeo, 424 
U.S. 1, 47 (1976)). Does this statement suggest the need for a more 
robust coordination rule because the presence of prearrangement and 
coordination may result in, or provide the opportunity for, quid pro 
quo corruption?
    The Court further held that the governmental interest in ``[l]aws 
that burden political speech'' is ``limited to quid pro quo 
corruption,'' and that ``[i]ngratiation and access, in any event, are 
not corruption.'' Citizens United, slip op. at 43, 45. In light of 
these statements in Citizens United, is one of the governmental 
interests asserted in Shays III-Appeal for a stricter coordinated 
communications rule--i.e., to prevent third-party sponsors of 
communications from ingratiating themselves with Federal candidates 
(528 F.3d at 925)--still valid after Citizens United? Or, was the 
Court's holding limited to the independent expenditures that were at

[[Page 6591]]

issue in Citizens United? Given that coordination was not at issue in 
Citizens United, did the Court's mention of coordination suggest, in 
any way, that a different governmental interest would justify 
regulating non-party speech that may be coordinated?
    Now that Citizens United permits additional entities, such as 
public corporations and labor organizations, to make independent 
expenditures, does the proposed rule on coordinated communications 
adequately address those organizations?

b. Content Standards

    The Commission seeks comment on the effect, if any, of the Citizens 
United decision on the proposed content standards. What effect does the 
decision have on the proposed Modified WRTL content standard, including 
the proposal's ``functional equivalent of express advocacy'' test? See, 
e.g., NPRM, 74 FR at 53902. Should any parts of 11 CFR 114.15 be 
included in such a test, or is Section 114.15 simply inapplicable after 
Citizens United? Does the ``functional equivalent of express advocacy'' 
standard still provide a potentially useful coordinated communications 
content standard to address the Shays III-Appeal court's concerns? 
Should the Commission devise alternative criteria for the Modified WRTL 
content standard, or does the Court's discussion of the Commission's 
``two part, 11-factor balancing test to implement WRTL's ruling'' 
indicate a general disapproval of such an approach? Citizens United, 
slip op. at 18 (referring to FEC v. Wis. Right to Life, Inc., 551 U.S. 
449 (2007) (``WRTL'')). Are any additional criteria necessary at all, 
or should the Commission simply rely on the Modified WRTL standard as 
articulated in the proposed rule text? Did the Court's application of 
the test to Hillary: The Movie demonstrate that the Court's 
``functional equivalent of express advocacy'' standard is sufficiently 
workable without further explanation?
    Additionally, the Commission seeks further comment on the examples 
given in the NPRM--both those in the proposed PASO definitions and 
those to which the proposed PASO and Modified WRTL content standards 
may or may not apply--in light of Citizens United. See Citizens United, 
slip op. at 3, 20-21, and 52-54; see also NPRM, 74 FR at 53903-04 and 
53911-12. The Commission also seeks comment on the application of the 
proposed content standard alternatives to the communications at issue 
in Citizens United. See Citizens United, slip op. at 3, 52-54. What 
impact, if any, does the Court's conclusion that Hillary: The Movie is 
``the functional equivalent of express advocacy'' have on the 
Commission's coordinated communications rules and in particular to the 
application of the ``express advocacy'' content standard outside the 
90/120-day windows? Does the analysis change when the ``functional 
equivalent of express advocacy'' is not being applied to a 
communication in order to strike down a speech prohibition, as in 
Citizens United, but rather to restrict certain speech, as in the 
proposed coordination rules? See, e.g., Citizens United, slip op. at 10 
(``First Amendment standards, however, `must give the benefit of any 
doubt to protecting rather than stifling speech' '') (quoting WRTL, 551 
U.S. at 469). Is there anything in the opinion to suggest that the 
Court intended its conclusion, that Hillary: The Movie is ``the 
functional equivalent of express advocacy'' to apply only in limited 
contexts?
    Are the proposed PASO definitions sufficiently clear and 
unambiguous so as not to require ``intricate case-by-case 
determinations'' or to require prospective speakers to seek guidance 
from the Commission as to whether their proposed speech would be 
coordinated? Id. at 12. Do Citizens United and WRTL provide a 
constitutional limit on the reach of the proposed PASO standard? Are 
any content standards broader than express advocacy or its functional 
equivalent permissible after Citizens United, or are these the only 
standards that the Court has concluded are sufficiently clear? In light 
of the Supreme Court's statements that the PASO components ``give the 
person of ordinary intelligence a reasonable opportunity to know what 
is prohibited,'' McConnell v. FEC, 540 U.S. 93, 170 n.64 (2003), and 
that any rule must ``eschew the open-ended rough-and-tumble of 
factors,'' Citizens United, slip op. at 19 (quoting WRTL, 551 U.S. at 
469), should the Commission adopt a PASO content standard without a 
definition? In the absence of a definition, would the rule provide 
specific enough guidance to prospective speakers? Would such a rule be 
enforceable by the Commission?
    More generally, how should the Commission conduct investigations in 
enforcement actions arising from allegations of coordination? Does the 
Court's holding in Citizens United that corporations have a First 
Amendment right to make independent expenditures raise concerns about 
investigating potentially coordinated communications that do not exist 
in other contexts? Would investigations to determine whether a 
communication is independent or coordinated (and thus a contribution), 
chill protected speech? To avoid such a risk, should the Commission 
require a heightened standard (e.g., requiring more particularity or 
specificity) in any complaint alleging coordination before opening an 
enforcement proceeding? Should such a heightened complaint standard be 
adopted with, or regardless of, any revised content standard? Would 
such a heightened complaint standard impair the Commission's ability to 
investigate allegations of contributions via coordination? Does 
anything in the Act (particularly 2 U.S.C. 437g(a)) authorize or 
preclude the Commission from adopting a heightened complaint standard 
for coordination allegations? If the Commission may not require a 
heightened complaint standard for coordination allegations, would that 
then preclude the application of a broader content standard? Why?

c. Safe Harbors

    Additionally, the NPRM proposes safe harbors that would exempt 
certain communications sponsored by 501(c)(3) organizations or 
candidates' businesses from being treated as coordinated. NPRM, 74 FR 
at 53907-53910. Are these proposed safe harbors consistent with the 
Citizens United decision? See, e.g., slip op. at 24 (``Prohibited too, 
are restrictions distinguishing among different speakers, allowing 
speech by some but not others.''). Should the proposed safe harbors 
apply broadly regardless of the types of entities involved? For 
example, should there be a safe harbor from the coordination rules for 
any public communication in which a candidate for Federal office 
expresses or seeks support for any type of organization, or for a 
position on a public policy or legislative proposal espoused (or 
opposed) by that organization? Similarly, should the safe harbor for 
commercial transactions include any public communication in which a 
candidate for Federal office proposes any type of commercial 
transaction, regardless of whether it is for a business that the 
candidate owns or operates, or whether the business existed prior to 
the candidacy? Would such safe harbors be overbroad or undermine the 
efficacy of the rule?

d. Consequences of Court's Media Exemption Analysis

    In Citizens United, the Court stated, ``There is no precedent 
supporting laws that attempt to distinguish between corporations which 
are deemed to be exempt as media corporations and those which are 
not,'' and ``[t]his differential

[[Page 6592]]

treatment [between corporations with and without media outlets] cannot 
be squared with the First Amendment.'' Slip op. at 37. Does the Court's 
analysis of the media exemption affect the proposed rule changes, or 
the coordination rules generally? If so, how?

II. Notice of Hearing

    The Commission announces that a hearing will be held on Tuesday, 
March 2, 2010 and Wednesday, March 3, 2010 (see DATES and ADDRESSES, 
above). The witnesses will be those individuals who indicated in their 
timely comments, whether to the NPRM published on October 21, 2009 or 
to this notice, that they wish to testify at the hearing. Individuals 
who plan to attend and require special assistance, such as sign 
language interpretation or other reasonable accommodations, should 
contact the Commission Secretary's office at (202) 694-1040, at least 
72 hours prior to the hearing date.

    Dated: February 5, 2010.
    On behalf of the Commission,
Matthew S. Petersen,
Chairman, Federal Election Commission.
[FR Doc. 2010-2973 Filed 2-9-10; 8:45 am]
BILLING CODE 6715-01-P