[Federal Register Volume 88, Number 202 (Friday, October 20, 2023)]
[Proposed Rules]
[Pages 72406-72407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23124]


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FEDERAL ELECTION COMMISSION

11 CFR Part 112

[NOTICE 2023-16]


Advisory Opinion Comment Procedures

AGENCY: Federal Election Commission.

ACTION: Notification of disposition of Petition for Rulemaking.

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SUMMARY: The Commission announces its disposition of a Petition for 
Rulemaking. The Petition asked the Commission to modify its regulation 
on written comments on advisory opinion requests to provide time for 
the public to comment on drafts of advisory opinions before the 
Commission votes on the drafts. For the reasons described in detail 
below, the Commission is not initiating a rulemaking at this time.

DATES: October 20, 2023.

FOR FURTHER INFORMATION CONTACT: Robert M. Knop, Assistant General 
Counsel, or Mr. Evan R. Christopher, Attorney, 1050 First Street NE, 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Federal Election Campaign Act (the 
``Act''), 52 U.S.C. 30101-45, authorizes the Commission to issue 
advisory opinions on written questions about the applicability of the 
Act or Commission regulations to a specific transaction or activity 
that the requesting person plans to undertake or is presently 
undertaking and intends to undertake in the future.\1\ The persons 
involved in the specific activity described in the request, as well as 
any person involved in an activity ``which is indistinguishable in all 
its material aspects'' from the specific activity described in the 
request, may rely on the advisory opinion to avoid sanction by the 
Commission for engaging in that activity.\2\
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    \1\ See 52 U.S.C. 30108(a); see also 11 CFR part 112.
    \2\ 11 CFR 112.5.
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    The Act and Commission regulations require the Commission to 
respond to all requests for advisory opinions.\3\ The Commission must 
respond to any advisory opinion request (``AOR'') that is complete and 
qualified under 11 CFR 112.1(b) \4\ with either a formal advisory 
opinion (``AO'') or notice that the Commission was unable to issue an 
AO with the required minimum of four affirmative votes.\5\ The 
Commission must publicize receipt of a complete and qualified AOR and 
formally respond within 20 or 60 days of receiving a complete AOR.\6\
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    \3\ See 52 U.S.C. 30108(a); 11 CFR 112.4(a) and (b).
    \4\ The Commission must respond to a person who submits an 
incomplete AOR or one that does not qualify under 11 CFR 112.1(b) 
within 10 days to ``specify the deficiencies in the request.'' 11 
CFR 112.1(d).
    \5\ See 52 U.S.C. 30108(a); 11 CFR 112.4(a) and (b).
    \6\ Id. Candidates are entitled to receive a response to a AOR 
within 20 days if the request is made within 60 days of an election 
in which the candidate is participating and it presents a specific 
transaction or activity related to the election that may invoke the 
20 day period if the connection is explained in the request. See 52 
U.S.C. 30108(a)(2); 11 CFR 112.4(b). Further, the Commission has an 
informal process under which it may, upon request, issue an opinion 
within 30 days under certain circumstances. See Notice of New 
Advisory Opinion Procedures and Explanation of Existing Procedures, 
74 FR 32160 (July 7, 2009).
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    Requestors and interested persons are provided several 
opportunities to participate in the Commission's AOR process. First, 
the Act requires that the Commission provide a 10-day window for public 
comment on complete, qualified, AORs before the Commission issues a 
formal response.\7\ Second, beginning provisionally in 1993 and adopted 
formally in 2009, it is the Commission's policy to seek comments on 
drafts of advisory opinions, which it endeavors to release at least one 
week before the meeting at which it will consider the AOR and any draft 
AOs.\8\ Third, the Commission allows an AOR requestor to ask to appear 
before the Commission to answer questions about the AOR at the open 
meeting at which the Commission considers the AOR and

[[Page 72407]]

any draft AOs; if the Commission does not release a copy of all draft 
AOs under consideration at least one week before the open meeting at 
which the draft AOs are to be considered, the requestor is 
automatically entitled to appear before the Commission at that 
meeting.\9\
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    \7\ See 52 U.S.C. 30108(d); see also11 CFR 112.3.
    \8\ See Revision to Advisory Opinion Comment Procedure, 58 FR 
62259 (Nov. 26, 1993); Notice of Advisory Opinion Procedure, 74 FR 
32160 (July 7, 2009). The Commission endeavors to release at least 
one draft AO at least one week in advance. Drafts that are not 
available by the one-week deadline are required to be identified as 
``late submitt[ed]'' and subject to additional procedural 
requirements before the Commission may consider them. See Comm'n 
Dir. No. 17 (effective date May 6, 2021), available at https://www.fec.gov/resources/cms-content/documents/directive_17.pdf.
    \9\ See Notice of Advisory Opinion Procedure, 74 FR 32160.
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    On February 10, 2016, the Commission received a Petition for 
Rulemaking from Make Your Laws PAC, Inc., Make Your Laws Advocacy, 
Inc., Make Your Laws, Inc., and Dan Backer, Esq. (``Petition''). The 
Petition asked the Commission to amend 11 CFR 112.3 to provide a right 
to the public to comment on draft AOs with a fixed comment period and a 
requirement that the Commission publish ``redlines''--copies of 
documents showing the differences between drafts--when releasing 
multiple draft AOs.\10\ The Petition argued that the ``spirit of the 
rule is to encourage the public to participate in the Commission's 
decision-making process. However, without the corresponding draft 
opinions, requests alone may not enable the public to fully appreciate 
the impact of such requests or to make fully informed comments.'' \11\
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    \10\ Petition at 4.
    \11\ Id. at 1.
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    The Commission published a Notification of Availability (``NOA'') 
on December 3, 2018, asking for public comment on the Petition.\12\ The 
Commission received one comment in response to the NOA. The comment 
supported the Petition for several reasons. The comment argued that 
amending the regulation as proposed by the Petition would bring greater 
``transparency to the Commission's advisory opinion process and to 
ensure the public has a meaningful opportunity to weigh in'' before the 
Commission votes on the drafts.\13\ The comment further stated that 
allowing comments on AO drafts is important because AOs, ``in practice, 
often provide general answers to unresolved legal questions in a manner 
that affects broad categories of individuals and entities.'' \14\
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    \12\ Rulemaking Petition: Advisory Opinion Procedures, 83 FR 
62283 (Dec. 3, 2018).
    \13\ Comment from Campaign Legal Center at 2.
    \14\ Id.
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    After considering the Petition and the comment, the Commission has 
decided not to initiate a rulemaking at this time. As outlined here, 
the Act and existing regulations provide for a meaningful opportunity 
for public comment on AORs; adding to that, the Commission has 
substantially expanded opportunities for public comment by committing 
to releasing draft AOs in advance, soliciting comments on those drafts, 
and allowing AOR requestors to appear before the Commission when their 
AOR and any draft AOs are being considered.
    Neither the Act nor existing Commission regulations require the 
Commission to accommodate this level of public participation in the AO 
drafting process. However, the Act and accompanying regulations do 
impose strict timing requirements on when the Commission must respond 
to AORs: as soon as 20 days and in no event later than 60 days after 
receiving a complete AOR. These are binding, bright-line requirements; 
the Commission cannot bend or break them. As a result, the Commission 
must balance its strict obligations under Federal law with any desire 
it may have to encourage participation by requestors and the public. To 
date, the Commission has done so by adopting policies that expand 
opportunities for public participation wherever possible while still 
retaining the flexibility the Commission requires to meet its 
obligations under Federal law. Those obligations are not insignificant; 
the Commission notes that 10 of the 20 or 60 days it is allotted to 
respond to a typical AOR are devoted to receiving public comments, each 
of which the Commission must consider in addition to analyzing the 
facts and materials submitted with the AOR, researching relevant legal 
authority, developing a legal theory and draft response, circulating 
drafts, and building a majority consensus behind a final opinion the 
Commission can approve.
    For that reason, the Commission believes that creating additional, 
expanded, and strictly defined rights to public comment on draft AOs is 
not necessary and would likely prove unworkable within the Commission's 
short deadlines for issuing AOs. Requiring the Commission to devote 
resources to marking up and circulating one or multiple draft AOs 
within a fixed timeframe, as proposed by the Petition, would unduly 
constrain the Commission in ways that could impair its ability to 
timely and effectively respond to AORs. The potential adverse effects 
of this constraint outweigh any prospective benefit to public input or 
transparency, particularly in light of the Commission's existing 
policies ensuring robust public engagement.
    For the above reasons, the Commission therefore declines to 
commence a rulemaking to amend its regulation at 11 CFR 112.3 to 
provide a right to comment on one or multiple advisory opinion drafts a 
certain amount of time in advance of the Commission meeting at which 
those drafts will be discussed and to require the Commission to release 
``redlines'' showing edits among multiple drafts.
    Copies of the Comments and the Petition are available on the 
Commission's website, https://www.fec.gov/fosers/ (REG 2016-01 Advisory 
Opinion Procedures) and at the Commission's Public Records Office, 1050 
First Street NE, Washington, DC, Monday through Friday between the 
hours of 9 a.m. and 5 p.m.

    Dated: October 16, 2023.

    On behalf of the Commission,
Dara Lindenbaum,
Chair, Federal Election Commission.
[FR Doc. 2023-23124 Filed 10-19-23; 8:45 am]
BILLING CODE 6715-01-P