[Federal Register Volume 88, Number 101 (Thursday, May 25, 2023)]
[Rules and Regulations]
[Pages 33816-33817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11055]


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FEDERAL ELECTION COMMISSION

11 CFR Part 110

[Notice 2023-09]


Contributions in the Name of Another

AGENCY: Federal Election Commission.

ACTION: Interim final rule.

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SUMMARY: The Commission is removing the regulatory prohibition on 
knowingly helping or assisting any person in making a contribution in 
the name of another. The Commission is taking this action to implement 
the order of the United States District Court in FEC v.

[[Page 33817]]

Swallow, which enjoined the Commission from enforcing the provision and 
ordered the Commission to strike it from the Code of Federal 
Regulations. The Commission is accepting comments on this revision to 
its regulations and any comments received may be addressed in a 
subsequent rulemaking document.

DATES: This interim final rule is effective August 5, 2023. Comments 
must be received on or before June 26, 2023.

ADDRESSES: All comments must be in writing. Commenters are encouraged 
to submit comments electronically via the Commission's website at 
https://sers.fec.gov/fosers, reference REG 2018-06, to ensure timely 
receipt and consideration. Alternatively, comments may be submitted in 
paper form addressed to the Federal Election Commission, Attn.: Amy L. 
Rothstein, Assistant General Counsel, 1050 First Street NE, Washington, 
DC 20463.
    Each commenter must provide, at a minimum, the commenter's first 
name, last name, city, and state. All properly submitted comments, 
including attachments, will become part of the public record, and the 
Commission will make comments available for public viewing on the 
Commission's website and in the Commission's Public Records Office. 
Accordingly, commenters should not provide in their comments any 
information that they do not wish to make public, such as a home street 
address, personal email address, date of birth, phone number, social 
security number, or driver's license number, or any information that is 
restricted from disclosure, such as trade secrets or commercial or 
financial information that is privileged or confidential.

FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant 
General Counsel, or Ms. Cheryl A. Hemsley, Attorney, (202) 694-1650 or 
(800) 424-9530.

SUPPLEMENTARY INFORMATION: The Federal Election Campaign Act, 52 U.S.C. 
30101-30145 (``FECA''), states that ``[n]o person shall make a 
contribution in the name of another person or knowingly permit his name 
to be used to effect such a contribution, and no person shall knowingly 
accept a contribution made by one person in the name of another 
person.'' 52 U.S.C. 30122. The Commission has implemented this 
provision at 11 CFR 110.4, which states that no person may 
``[k]nowingly help or assist any person in making a contribution in the 
name of another.'' 11 CFR 110.4(b)(1)(iii).
    On April 6, 2018, the United States District Court for the District 
of Utah issued a memorandum decision and order holding that the 
Commission's regulation at 11 CFR 110.4(b)(1)(iii) was invalid, 
enjoining the Commission from enforcing that provision, and ordering 
the Commission to strike the provision from the Code of Federal 
Regulations.\1\ FEC v. Swallow (Swallow I), 304 F. Supp. 3d 1113 (D. 
Utah 2018); FEC v. Swallow (Swallow II), No. 2:15-CV-00439 (D. Utah 
Sept. 20, 2018) (Westlaw) (order granting partial final judgment). To 
conform its regulation to the court orders in Swallow I and II, the 
Commission is removing 11 CFR 110.4(b)(1)(iii) and renumbering 
paragraph (b)(1)(iv) as paragraph (b)(1)(iii). The Commission is 
accepting comments on this revision and any comments received may be 
addressed in a subsequent rulemaking document.
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    \1\ After adverse decisions, agencies are permitted in certain 
circumstances to maintain the invalidated interpretation of the 
statute or regulation in later matters that will come before courts 
in other jurisdictions. See, e.g., Indep. Petroleum Ass'n v. 
Babbitt, 92 F.3d 1248, 1261 (D.C. Cir. 1996). Agencies may only 
decline to accord court rulings nation-wide effect, however, as part 
of a search for eventual rulings from different Courts of Appeals 
and the Supreme Court. See, e.g., Va. Soc'y for Human Life, Inc. v. 
FEC, 263 F.3d 379, 393-94 (4th Cir. 2001) (overturning nationwide 
injunction against Commission to permit development of the law). In 
declining to appeal to the Court of Appeals, the Commission chose 
not to take this path in this case. See Indep. Petroleum Ass'n, 92 
F.3d at 1261.
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    The Commission is taking this action without advance notice and 
comment because it falls under the ``good cause'' exception of the 
Administrative Procedure Act (``APA''), 5 U.S.C. 553(b)(B). The 
revisions are necessary to conform the Commission's regulations to the 
court's orders. Because this action does not involve any Commission 
discretion or policy judgments, notice and comment are unnecessary. 5 
U.S.C. 553(b)(B), (d)(3). Moreover, because this interim final rule is 
exempt from the APA's notice and comment procedure under 5 U.S.C. 
553(b), the Commission is not required to conduct a regulatory 
flexibility analysis under 5 U.S.C. 603 or 604. See 5 U.S.C. 601(2), 
604(a).

List of Subjects in 11 CFR Part 110

    Campaign funds, Political committees and parties.

    For the reasons set out in the preamble, the Federal Election 
Commission amends 11 CFR chapter I as follows:

PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS

0
1. The authority citation for part 110 continues to read as follows:

    Authority: 52 U.S.C. 30101(8), 30101(9), 30102(c)(2) and (g), 
30104(i)(3), 30111(a)(8), 30116, 30118, 30120, 30121, 30122, 30123, 
30124, and 36 U.S.C. 510.


Sec.  110.4  [Amended]

0
2. Amend Sec.  110.4 by:
0
a. Adding the word ``or'' at the end of paragraph (b)(1)(ii);
0
b. Removing paragraph (b)(1)(iii); and
0
c. Redesignating paragraph (b)(1)(iv) as paragraph (b)(1)(iii).

    Dated: May 18, 2023.

    On behalf of the Commission.
Dara S. Lindenbaum,
Chair, Federal Election Commission.
[FR Doc. 2023-11055 Filed 5-24-23; 8:45 am]
BILLING CODE 6715-01-P