[Federal Register Volume 89, Number 172 (Thursday, September 5, 2024)]
[Proposed Rules]
[Pages 72346-72348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19900]


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FEDERAL ELECTION COMMISSION

11 CFR Part 104

[Notice 2024-21]


Requiring Reporting of Exchanges of Email Lists

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 filed on June 28, 2019. The Petition asks the Commission to 
revise existing reporting rules to state that mailing lists received or 
disbursed as part of an equal-value exchange must be reported. For the 
reasons described below, the Commission is not initiating a rulemaking 
at this time.

DATES: September 5, 2024.

ADDRESSES: Copies of the comments and the Petition for Rulemaking are 
available on the Commission's website, https://www.fec.gov/fosers/ (REG 
2019-03 Requiring Reporting of Exchanges of Email Lists (2019)), 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.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Rothstein, Assistant General 
Counsel, or Ms. Sarah Herman Peck, Attorney, 1050 First Street NE, 
Washington, DC, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Federal Election Campaign Act, 52 U.S.C. 
30101-45 (the ``Act''), and Commission regulations require political 
committees to report ``all receipts'' \1\ and ``all disbursements.'' 
\2\ Specifically, 52 U.S.C. 30104(b)(2) requires political committees 
to report both the ``total amount of all receipts'' generally and the 
``total amount of all receipts'' in certain specified categories, 
namely: contributions; loans; Federal funds; rebates; refunds; offsets 
to operating expenditures; transfers from affiliated committees (and, 
for political party committees, transfers from another political party 
committee regardless of whether it is affiliated); and dividends, 
interest, and ``other forms of receipts.'' \3\
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    \1\ 52 U.S.C. 30104(b)(2); see also 11 CFR 104.3(a)(2)(ix).
    \2\ 52 U.S.C. 30104(b)(4); see also 11 CFR 104.3(b).
    \3\ 52 U.S.C. 30104(b)(2). The Act contains a similar reporting 
provision for disbursements. See id. section 30104(b)(4).
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    Through a series of advisory opinions, the Commission has concluded 
that an equal-value exchange of mailing lists is neither a 
contribution, donation, or transfer of funds or any other thing of 
value.\4\ Therefore, it is ``a non-reportable event.'' \5\
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    \4\ See Advisory Opinion 1981-46 (Dellums); Advisory Opinion 
1982-41 (Dellums); Advisory Opinion 2002-14 (Libertarian National 
Committee).
    \5\ Advisory Opinion 2002-14 (Libertarian National Committee) at 
5.
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    Then, in REG 2003-03 (Mailing Lists), the Commission proposed, and 
ultimately declined, to issue new regulations on mailing list sales, 
rentals, and equal-value exchanges. In the notice of proposed 
rulemaking, the Commission proposed ``to adopt formally its historical 
approach . . . or to modify those approaches . . . and to provide 
candidates and political committees with more comprehensive guidance on 
commercial transactions involving mailing lists.'' \6\ For equal-value 
exchanges, the Commission proposed to treat them neither as a 
contribution nor a reportable receipt if the exchange satisfies three 
elements.\7\ First, the parties must ascertain in advance the ``usual 
and normal charge'' for the mailing list.\8\ Second, the mailing lists 
must be of ``equal value.'' \9\ And third, the mailing list exchange 
must be a ``bona fide arm's length transaction with commercially 
reasonable terms.'' \10\
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    \6\ Mailing Lists of Political Committees, 68 FR 52531, 52532 
(Sept. 4, 2003).
    \7\ Id. at 52535.
    \8\ Id.
    \9\ Id.
    \10\ Id.
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    After reviewing the comments received on the proposed rule and 
holding a public hearing, the Commission decided not to proceed to 
final rules.\11\ In doing so, the Commission relied on comments 
asserting that the appropriate factors for determining the usual and 
normal charge and whether a transaction is commercially reasonable will 
``vary considerably depending upon the circumstances.'' \12\ Because 
the Commission could not conclude that any particular test would be 
``sufficiently flexible and comprehensive to address all circumstances 
to which the proposed rules would apply,'' it terminated the rulemaking 
through a Notice of Disposition.\13\
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    \11\ Mailing Lists of Political Committees, 68 FR 64571, 64571-
72 (Nov. 14, 2003).
    \12\ Id. at 64572.
    \13\ Id.

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[[Page 72347]]

    A decade and a half later, on June 28, 2019, the Commission 
received a Petition for Rulemaking (``Petition'') from Campaign Legal 
Center (``CLC'') asking the Commission to ``amend 11 CFR 104.3 to 
clarify that the receipt or disbursement of a mailing list or other 
valuable information is subject to the reporting requirements in 
section 104.3.'' \14\ Specifically, CLC asked the Commission to 
``clarify'' that a list not subject to disclosure as a ``contribution'' 
or ``expenditure,'' such as a list received or provided as part of an 
equal-value exchange, ``must nevertheless be reported as `other 
receipts' under 11 CFR 104.3(a)(2)(viii), or `other disbursements,' 
under 11 CFR 104.3(b)(ix).'' \15\ The Petition argued that Advisory 
Opinions 1981-46 (Dellums), 1982-41 (Dellums), and 2002-14 (Libertarian 
National Committee)--in which the Commission concluded that the equal-
value exchange of mailing lists consistent with industry practice is 
neither a contribution nor otherwise reportable under the Act--are 
``contrary to the plain text of the law, which requires disclosure of 
`all receipts' and `all disbursements,' not merely contributions, 
expenditures, or transfers.'' \16\
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    \14\ Campaign Legal Center, Petition for Rulemaking at 1 (June 
28, 2019), REG 2019-03, https://sers.fec.gov/fosers/showpdf.htm?docid=408334.
    \15\ Id.
    \16\ Id. at 3.
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    The Commission published a notification of availability on August 
28, 2019, asking for public comment on the Petition.\17\ The Commission 
received three timely comments from individuals and three late comments 
from CLC. Of the individual comments, two supported and one opposed the 
Petition.\18\ CLC's comments urged the Commission to prioritize this 
and other pending regulatory matters.\19\
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    \17\ See Requiring Reporting of Exchanges of Email Lists, 84 FR 
45116 (Aug. 28, 2019).
    \18\ One comment supporting the Petition characterized the 
Commission's treatment of mailing list exchanges as a ``loophole'' 
that allows ``independent expenditure-only committees (i.e. super 
PACs) to provide direct, valuable aid to candidate committees, in 
contravention of the law.'' Samir Sheth & Professor Michael D. 
Gilbert, Comment at 1 (Oct. 28, 2019), https://sers.fec.gov/fosers/showpdf.htm?docid=410225. The comment opposing the Petition asserted 
that the proposed rulemaking would ``place[ ] an undue onerous 
burden upon citizen activists.'' Christine Kramar, Comment at 1 
(Oct. 20, 2019), https://sers.fec.gov/fosers/showpdf.htm?docid=410224.
    \19\ Campaign Legal Center, Comment at 2-3 (June 5, 2023), 
https://sers.fec.gov/fosers/showpdf.htm?docid=423361; Campaign Legal 
Center, Comment at 12 (Jan. 13, 2021), https://sers.fec.gov/fosers/showpdf.htm?docid=413005; Campaign Legal Center, Comment at 6-7 
(June 16, 2020), https://sers.fec.gov/fosers/showpdf.htm?docid=411922.
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    In deciding whether to initiate a rulemaking in response to a 
petition, the Commission generally considers five factors. They are (1) 
the Commission's statutory authority; (2) policy considerations; (3) 
the desirability of proceeding on a case-by-case basis; (4) the 
necessity or desirability of statutory revision; and (5) available 
agency resources.\20\
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    \20\ 11 CFR 200.5.
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    After considering these factors and reviewing the comments received 
on the Petition, the Commission has decided not to initiate a 
rulemaking at this time. The Commission previously expended 
considerable resources on this issue during its consideration of REG 
2003-03 (Mailing Lists); indeed, construing the Act to require the 
reporting of equal-value exchanges of mailing lists, as the Petition 
requests, would likely raise the same thorny questions of valuation 
that led the Commission to terminate the 2003 rulemaking.\21\ 
Commenters in that rulemaking explained that the value of a particular 
mailing list often depends on factors outside of the content of the 
list itself, such as the identities of the buyers and sellers, the 
number of times the recipient plans to use the list, whether there are 
any restrictions placed on using the names received, and even media 
coverage of a particular issue, event, or candidate.\22\ Absent 
compelling evidence of a need to reopen these issues in a new 
rulemaking, doing so would not be a good use of agency resources, 
particularly given the Commission's numerous other pending rulemaking 
petitions and ongoing rulemaking projects.
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    \21\ One such issue is who would be responsible for determining 
a list's value and how. See, e.g., Transcript of Hearing on 
Candidate Travel, Multi-Candidate Committee Status, Biennial 
Contribution Limits at 182-85 (Oct. 1, 2003), REG 2003-03 (Mailing 
Lists) (``Hearing Transcript''), https://sers.fec.gov/fosers/showpdf.htm?docid=425177 (discussing use of list brokers and means 
of list-price negotiations). Several commenters questioned the use 
of independent appraisers. See Lyn Utrecht, Eric Kleinfeld, James 
Lamb, and Pat Fiori, Comment at 1-2 (Sept. 25, 2003), https://sers.fec.gov/fosers/showpdf.htm?docid=13912. One cautioned that 
deferring to the valuation by ``the SDRS [sic] and similar 
directories'' would discount price negotiations that are 
``ubiquitous'' in these transactions. Hearing Transcript at 184.
    \22\ See Hearing Transcript, supra note 21, at 57-58, 163, 202-
03; Utrecht, Kleinfeld, Lamb, and Fiori, supra note 21, at 1.
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    Nor is the Commission aware of any widespread misuse of mailing 
list exchanges to thwart the purposes of the Act and warrant Commission 
rulemaking action. The Petition provided only a single example of 
potential misuse, which the Commission appropriately addressed through 
its enforcement process.\23\
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    \23\ See Petition for Rulemaking, supra note 14, at 3-4 
(pointing to MUR 6932 (Hillary Rodham Clinton) (failing by vote of 
2-2 to approve First General Counsel's Report recommendation that 
Commission find reason to believe email-list exchange was not bona 
fide). The Petition did not identify other examples of mailing list 
exchanges that were resolved through the Commission's enforcement 
process, such as MUR 6888 (Republican National Committee, et al.), 
in which the Commission approved the First General Counsel's 
Report's recommendation of no reason to believe that a data exchange 
was not an arm's length, commercial arrangement for an exchange of 
equal value, and MUR 5396 (Bauer for President 2000, Inc.), which 
resulted in a conciliation agreement where the parties agreed that 
lists exchanged were not of equal value.
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    Furthermore, the context in which the terms ``all receipts'' and 
``all disbursements'' appear in the Act validates the Commission's 
longstanding conclusion that equal-value exchanges of mailing lists are 
``non-reportable events.'' \24\ Unlike the exchange of one list for 
another list of equal value, the forms of ``receipts'' enumerated in 
section 30104(b)(2) all serve to improve the reporting committee's 
financial position.\25\ Thus, under traditional canons of statutory 
construction,\26\ the equal-value exchange of mailing lists--which 
would not itself change the reporting committee's financial position--
does not lend itself to being a ``receipt'' subject to the Act's 
reporting requirements.\27\ Moreover, reading the statutory term 
``receipt'' to require reporting the value of a mailing list received 
in an equal-value exchange because it is ``received'' in the most 
literal sense of the word (as the Petition

[[Page 72348]]

appears to suggest) would lead to absurd results, such as requiring 
political committees to assign a value to and report everything they 
have ``received,'' including uncompensated volunteer services \28\ and 
other goods and services that are not ``contributions'' under the Act.
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    \24\ See Advisory Opinion 2002-14 (Libertarian National 
Committee) at 5.
    \25\ See 52 U.S.C. 30104(b)(2) (requiring reporting of 
contributions; loans; Federal funds; rebates; refunds; offsets to 
operating expenditures; transfers from affiliated committees (and, 
for party committees, transfers from another party committee 
regardless of whether it is affiliated); and dividends, interest, 
and ``other forms of receipts''). The Act contains a similar 
reporting provision for ``disbursements.'' See id. section 
30104(b)(4).
    \26\ ``Under the `ejusdem generis' principle (that's Latin for 
`of the same kind'), a more general phrase that comes at the end of 
a specific list takes on the qualities of the list.'' Revitalizing 
Auto Communities Env't Response Tr. v. Nat'l Grid USA, 92 F.4th 415, 
445 (2d Cir. 2024). ``[T]he scope-of-subparts canon of statutory 
interpretation . . . holds that `[m]aterial contained in unindented 
text relates to all the following . . . indented subparts.' '' 
United States v. Lowell, 2 F.4th 1291, 1296 (10th Cir. 2021) 
(quoting A. Scalia & B. Garner, Reading Law: The Interpretation of 
Legal Texts 156 (2012)).
    \27\ See Advisory Opinion 1981-46 (Dellums) at 2 (concluding 
that if there is ``an exchange of names of equal `value' according 
to accepted industry practice, the exchange would be considered full 
consideration for services rendered,'' and, ``[t]hus, no 
contribution or expenditure would result and the transaction would 
not be reportable under the Act'').
    \28\ 11 CFR 100.74.
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    Additionally, the equal-value exchange of mailing lists is better 
suited to disposition on a case-by-case basis through advisory opinions 
and the enforcement process, as the Commission has been doing for the 
past 40 years. The Commission has issued several advisory opinions over 
the course of four decades on the treatment of mailing lists, several 
of which are referred to above. The Commission also previously 
conducted the 2003 rulemaking to consider whether to change its 
historical case-by-case practice to valuing mailing list exchanges and 
ultimately concluded that a case-by-case approach is the right way to 
go. Further, a case-by-case approach is more appropriate if, as several 
commenters in the prior rulemaking indicated, the proper valuation of a 
mailing list often depends on case-by-case facts.
    Finally, there does not appear to be great public interest in the 
proposed rulemaking. The Commission received only six public comments 
in response to its Notice of Availability, half of which came from the 
petitioner here.
    Accordingly, after considering the comments received regarding the 
Petition and in consideration of each of the factors discussed, the 
Commission declines to initiate a rulemaking in response to the 
Petition.

    Dated: August 29, 2024.

    On behalf of the Commission,
Sean J. Cooksey,
Chairman, Federal Election Commission.
[FR Doc. 2024-19900 Filed 9-4-24; 8:45 am]
BILLING CODE 6715-01-P