Participation by Federal Candidates and Officeholders at Non-Federal Fundraising Events, 24375-24384 [2010-10571]

Agencies

• Federal Election Commission

[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Rules and Regulations]
[Pages 24375-24384]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10571]



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FEDERAL ELECTION COMMISSION

11 CFR Part 300

[Notice 2010-11]


Participation by Federal Candidates and Officeholders at Non-
Federal Fundraising Events

AGENCY: Federal Election Commission.

ACTION: Final rules.

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SUMMARY: The Federal Election Commission (``Commission'') is revising 
its rules regarding appearances by Federal officeholders and candidates 
at State, district, and local party fundraising events under the 
Federal Election Campaign Act of 1971, as amended. Consistent with the 
decision of the U.S. Court of Appeals for the District of Columbia 
Circuit in Shays v. FEC, Federal candidates and officeholders may no 
longer speak at State, district, and local party fundraising events 
``without restriction or regulation.'' The revised rules address 
participation by Federal candidates and officeholders at all non-
Federal fundraising events that are in connection with an election for 
Federal office or any non-Federal election and in related publicity.

DATES: Effective Date: These rules are effective on June 4, 2010.

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 at 11 CFR 300.64 regarding Federal 
candidate and officeholder solicitations at State, district, and local 
party committee fundraising events. 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''). The 
Commission is revising its rules at 11 CFR 300.64 to implement the 
Shays III decision.
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    \1\ Public Law 107-155, 116 Stat. 81 (2002).
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I. Background Information

A. BCRA

    In 2002, Congress amended the Act by restricting the fundraising 
activity of Federal candidates and officeholders, their agents, and 
entities directly or indirectly established, financed, maintained, 
controlled by, or acting on behalf of, Federal candidates or 
officeholders. See BCRA at Section 323(e) (codified at 2 U.S.C. 
441i(e)). These persons may not ``solicit, receive, direct, transfer or 
spend'' funds in connection with an election for Federal office or any 
non-Federal election unless the funds comply with the amount 
limitations and source prohibitions of the Act.\2\ See 2 U.S.C. 
441i(e)(1)(A) and (e)(1)(B); 11 CFR 300.61 and 300.62. Furthermore, 
Congress prohibited State, district and local party committees from 
accepting or using as Levin funds \3\ any funds that have been 
solicited, received, directed, transferred, or spent by or in the name 
of Federal candidates and officeholders. Thus, Federal candidates and 
officeholders were effectively prohibited from raising Levin funds. See 
2 U.S.C. 441i(b)(2)(C)(i); 11 CFR 300.31(e).
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    \2\ The amount limitations on contributions depend on the type 
of contributor and the recipient. See 2 U.S.C. 441a(a)(1), (2), and 
(3). For example, an individual and a non-multicandidate PAC may 
each contribute up to $2,400 per election to a candidate, up to 
$5,000 per calendar year to a PAC, and up to $10,000 per year to a 
State party committee (or to a State party's respective district and 
local party committees, which share the State party committee's 
combined limit). A multicandidate PAC, by contrast, may contribute 
up to $5,000 per election to a candidate, up to $5,000 per calendar 
year to a PAC, and up to $5,000 per calendar year to a State party 
committee (or to a State party's respective district and local party 
committees, which share the State party committee's combined limit). 
Sources prohibited from making contributions under the Act include 
national banks, corporations, labor organizations, and foreign 
nationals. See 2 U.S.C. 441a, 441b, and 441e; see also 2 U.S.C. 441c 
(government contractors) and 441f (contributions made in the name of 
another). Furthermore, funds raised in connection with an election 
for Federal office are subject to the reporting requirements of the 
Act. See 2 U.S.C. 441i(e)(1)(A).
    \3\ ``Levin funds'' are funds raised by State, district, or 
local party committees pursuant to the restrictions in 11 CFR 300.31 
and disbursed subject to the restrictions in 11 CFR 300.32. See 11 
CFR 300.2(i).
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    As one principal BCRA sponsor noted, ``The basic rule in the bill 
is that federal candidates and officials cannot raise non-federal (or 
soft) money donations--that is, funds that do not comply with federal 
contribution limits and source prohibitions.'' 148 Cong. Rec. H407 
(daily ed. Feb. 13, 2002) (statement of Rep. Shays). As that ban 
related to party committees, another of BCRA's main sponsors noted: 
``The rule here is simple: Federal candidates and officeholders cannot 
solicit soft money funds, funds that do not comply with Federal 
contribution limits and source prohibitions, for any party committee--
national, State, or local.'' 148 Cong. Rec. S2139 (daily ed. March 20, 
2002) (statement of Sen. McCain).
    Notwithstanding these restrictions, though, Section 323(e)(3) of 
BCRA states explicitly that Federal candidates and officeholders are 
permitted to ``attend, speak, or be a featured guest at a fundraising 
event for a State, district, or local committee of a political party.'' 
See 2 U.S.C. 441i(e)(3).

B. 2002 Rulemaking

    In 2002, the Commission commenced a rulemaking to establish rules 
governing Federal candidate and officeholder participation in State, 
district, and local party committee fundraising events. The Commission 
proposed alternative interpretations of 2 U.S.C. 441i(e)(3). One 
interpretation would have allowed Federal candidates and officeholders 
only to attend, speak, or be a featured guest at State, district, and 
local party committee fundraising events, but, consistent with the 
Act's prohibition on the solicitation of funds outside the amount 
limitations and source prohibitions of the Act by Federal candidates 
and officeholders, would have prohibited those persons from soliciting, 
receiving, directing, transferring, or spending funds or participating 
in any other fundraising aspect of a State, district, or local party 
committee fundraising event. See Notice of Proposed Rulemaking on 
Prohibited and Excessive Contributions; Non-Federal Funds or Soft 
Money, 67 FR 35654, 35672, 35688 (May 20, 2002) (``2002 NPRM'').
    An alternative interpretation proposed a ``total exemption from the 
general solicitation ban.'' 2002 NPRM at 35672-73; see also 2 U.S.C. 
441i(e)(1)(B); 11 CFR 300.62. Under this interpretation, Federal 
candidates and officeholders would be permitted to ``speak freely at 
[party fundraising events] without restriction or regulation.'' 2002 
NPRM at 35672-73. The Commission separately explored how 2 U.S.C. 
441i(e)(3)--specifically, its reference to ``featured guests''--
affected the role that Federal candidates and officeholders could play 
in publicizing State, district, and local party committee events. See 
2002 NPRM at 35673. For example, the Commission sought comment on 
whether this provision of BCRA allowed Federal candidates and 
officeholders to be named in invitation materials and to appear as 
members of a host committee. Id.
    The Commission concluded that Section 441i(e)(3) was a total 
exemption from the general solicitation ban. Under the Commission's 
regulation, Federal candidates and officeholders were permitted to 
attend, speak, and appear

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as featured guests at State, district, and local party committee 
fundraising events ``without restriction or regulation.'' See Final 
Rules on Prohibited and Excessive Contributions; Non-Federal Funds or 
Soft Money, 67 FR 49064, 49108 (July 29, 2002) (``2002 Final Rule''); 
11 CFR 300.64(b). The Commission did not, however, interpret 2 U.S.C. 
441i(e)(3) to allow unrestricted participation in publicity by Federal 
candidates and officeholders. Indeed, the Commission concluded that 
Federal candidates and officeholders were ``prohibited from serving on 
`host committees' for a party fundraising event or from personally 
signing a solicitation in connection with a State, local, or district 
party fundraising event on the basis that these pre-event activities 
are outside the permissible activities* * * flowing from a Federal 
candidate's or officeholder's appearance or attendance at the event.'' 
See 2002 Final Rule at 49108.

C. Shays I

    The Commission's 2002 regulation implementing 2 U.S.C. 441i(e)(3) 
was challenged in Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) 
(``Shays I''). The district court held that the meaning of 2 U.S.C. 
441i(e)(3) was ambiguous, and that the Commission's regulation was not 
necessarily contrary to congressional intent. Shays I at 90 (applying 
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 
(1984)). And, while the court acknowledged that the regulation created 
``the potential for abuse,'' it did not find that the regulation unduly 
compromised BCRA's purpose such that it was not entitled to deference 
from the court. Id. at 91. The court did, however, find that the 
Commission's explanation of the rule was inadequate and, therefore, in 
violation of the Administrative Procedure Act, 5 U.S.C. 553. Shays I at 
92-93. The Commission did not challenge this holding by the district 
court.

D. 2005 Rulemaking

    Upon remand, the Commission commenced a rulemaking to implement the 
Shays I district court's opinion. See Revised Explanation and 
Justification, Candidate Solicitation at State, District and Local 
Party Fundraising Events, 70 FR 37649 (June 30, 2005) (``2005 Revised 
E&J''). This rulemaking provided additional explanation and 
justification of the 2002 Final Rule, but it did not change the text of 
that rule. The Commission, as it did in 2002, concluded that 2 U.S.C. 
441i(e)(3) was a total exemption from the general solicitation ban. 
Thus, Federal candidates and officeholders could still attend, speak, 
and appear as featured guests at State, district, and local party 
committee fundraising events ``without restriction or regulation.'' See 
2005 Revised E&J at 37650-51.

E. Shays III

    Against this backdrop, the Commission's rule implementing 2 U.S.C. 
441i(e)(3) was again challenged in court. The District Court for the 
District of Columbia upheld the Commission's regulation. Shays v. FEC, 
508 F. Supp. 2d. 10 (D.D.C. 2007).
    On appeal, however, the United States Court of Appeals for the 
District of Columbia Circuit reversed the district court, concluding 
that the total exemption from the general solicitation ban ``allows 
what BCRA directly prohibits.'' Shays III at 933. In addressing the 
Commission's regulation, the Court first concluded that 2 U.S.C. 
441i(e)(3) did not create an ambiguity in the law, but should be read 
as ``merely clarif[ying] that * * * federal candidates may still 
`attend, speak, or be a featured guest' at State party events where 
soft money is being raised, which the statute might otherwise be read 
as forbidding.'' Id. The court then held that the Commission had ``no 
basis'' to read 2 U.S.C. 441i(e)(3) as creating ``an implied fourth 
exception'' to the solicitation restrictions at Section 441i(e)(1), 
given that Congress had explicitly enumerated the instances in which 
Federal candidates and officeholders could ``solicit'' funds outside 
BCRA's restrictions. Id. at 933-34. The court found compelling the 
specific language in the statute--noting that ``Congress repeatedly 
used the term `solicit' and `solicitation' in Section 441i--over a 
dozen times--yet chose not to do so in Section 441i(e)(3).''

F. Advisory Opinions

    The Commission has also issued several advisory opinions regarding 
aspects of participation by Federal candidates and officeholders in 
non-Federal fundraising events not specifically addressed by the Act 
and regulations. In particular, the Commission has provided guidance on 
the extent to which Federal candidates and officeholders may 
participate in non-Federal fundraising events for entities other than 
State, district, and local party committees and the degree to which 
that participation can be publicized before such an event.
    In Advisory Opinions 2003-02 (Cantor) and 2003-36 (Republican 
Governors Association), the Commission stated that a Federal candidate 
or officeholder may attend and speak at non-Federal fundraising events 
for State and local candidates and other non-Federal political 
organizations, even if non-Federal funds are being raised at the event. 
The Commission concluded that this type of participation would not 
violate BCRA's restrictions on soliciting funds outside the limits and 
prohibitions of the Act because attending such an event or giving a 
speech at such an event is not a solicitation under Commission 
regulations.
    In those same advisory opinions, the Commission also determined 
that Federal candidates and officeholders may solicit funds at events 
at which non-Federal funds are being raised if their solicitations are 
limited to funds that comply with the amount limitations and source 
prohibitions of the Act. To ensure that these solicitations are 
properly limited, Federal candidates and officeholders have had to 
either (1) make a specific solicitation such as ``I am soliciting $500 
from individuals only,'' or (2) condition a general solicitation with a 
disclaimer indicating that the solicitation is only for funds within 
the limitations and prohibitions of the Act. This disclaimer may be 
made orally by the Federal candidate or officeholder or, alternatively, 
in writing by posting at the event a clear and conspicuous notice 
limiting the solicitation.
    The Commission also issued several advisory opinions addressing the 
role that Federal candidates and officeholders may play in publicizing 
non-Federal fundraising events for State, district, and local party 
committees and other non-Federal entities. See Advisory Opinions 2003-
03 (Cantor), 2003-36 (Republican Governors Association), and 2007-11 
(California State Party Committees). The Commission reasoned that if 
publicity does not contain a solicitation, then it is not subject to 
BCRA's solicitation restrictions. Id. If the publicity does contain a 
solicitation, and the Federal candidate or officeholder consents to be 
featured or appear in the publicity, then the publicity must contain a 
clear and conspicuous disclaimer limiting the solicitation to funds 
compliant with the amount limitations and source prohibitions of the 
Act. See Advisory Opinions 2003-03 (Cantor), and 2003-36 (Republican 
Governors Association). The Commission made clear, however, that 
Federal candidates and officeholders may not solicit funds in excess of 
the limitations and prohibitions of the Act and then qualify that 
impermissible solicitation with a limiting disclaimer. See Advisory

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Opinion 2003-36 (Republican Governors Association).
    The Commission was unable to resolve whether a Federal candidate or 
officeholder could be named as honorary chairperson or featured speaker 
in a solicitation for non-Federal funds that is not otherwise signed by 
the Federal candidate or officeholder. See Advisory Opinions 2003-36 
(Republican Governors Association) and 2007-11 (California State Party 
Committees). In addition, the Commission was unable to resolve whether 
a Federal candidate or officeholder may be named as a featured speaker 
on publicity that is mailed with (e.g., in the same envelope as) a 
solicitation for non-Federal funds that does not name a Federal 
candidate or officeholder. See Advisory Opinion 2007-11 (California 
State Party Committees).

G. Present Rulemaking

    In response to the circuit court's decision in Shays III, the 
Commission published a Notice of Proposed Rulemaking on December 7, 
2009. See Notice of Proposed Rulemaking on Participation by Federal 
Candidates and Officeholders at Non-Federal Fundraising Events, 74 FR 
64016 (Dec. 7, 2009) (``NPRM''). The NPRM proposed three alternative 
revisions to the Commission's rule at 11 CFR 300.64. The first 
alternative proposed a surgical revision to the rule, striking the 
``without restriction or regulation'' language but leaving the other 
language unchanged. The other two alternatives effected the same change 
but also proposed new rules governing Federal candidate and 
officeholder participation in all non-Federal fundraising events--those 
for State, district, and local party committees as well as other 
entities, including State and local candidates and State political 
committees and organizations--and related publicity.
    The initial public comment period for the NPRM closed on February 
8, 2010, and a reply comment period concluded on February 22, 2010. In 
total, the Commission received seven comments (six initial comments and 
one reply comment) from seven commenters. The Commission held a public 
hearing on the proposed rules on March 16, 2010, at which four 
witnesses testified. All comments and a public transcript of the 
hearing are available at https://www.fec.gov/law/law_rulemakings.shtml#solicitationshays3. For purposes of this document, 
the terms ``comment'' and ``commenter'' apply to both written comments 
and oral testimony at the public hearing.
    These final rules address participation by Federal candidates and 
officeholders at all fundraising events in connection with an election 
for Federal office or any non-Federal election--both those for State, 
district, and local party committees and those for other entities--at 
which funds outside the amount limitations and source prohibitions of 
the Act, or Levin funds, are solicited, even if funds that comply with 
the amount limitations and source prohibitions are also solicited at 
the event. The final rules cover participation by Federal candidates 
and officeholders at the event as well as participation by Federal 
candidates and officeholders in publicizing the event. Importantly, 
they set forth the manner in which Federal candidates, officeholders, 
and their agents can be involved in such activities without making a 
solicitation of funds outside the amount limitations and source 
prohibitions of the Act.
    Under the APA, 5 U.S.C. 553(d), and the Congressional Review of 
Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final 
rules to the Speaker of the House of Representatives and the President 
of the Senate and publish them in the Federal Register at least 30 
calendar days before they take effect. The final rules that follow were 
transmitted to Congress on April 30, 2010.

II. Explanation and Justification

    The Commission is amending 11 CFR 300.64 in response to the circuit 
court's decision in Shays III. In the NPRM, the Commission proposed 
three alternative rules. Alternative 1 would have removed the ``without 
restriction or regulation'' language from 11 CFR 300.64 pursuant to the 
decision of the Shays III court, and would have left the rest of the 
rule largely intact. Under Alternative 1, 11 CFR 300.64 would have 
continued to address only fundraising events for State, district, and 
local party committees.
    Alternatives 2 and 3 proposed more extensive revisions of 11 CFR 
300.64. Like Alternative 1, and in response to the court of appeals' 
decision, both Alternatives 2 and 3 would have removed the ``without 
restriction or regulation'' language from 11 CFR 300.64. Unlike 
Alternative 1, Alternatives 2 and 3 also proposed addressing more 
broadly participation by Federal candidates and officeholders at all 
fundraising events at which funds outside the limits and prohibitions 
of the Act are raised (``non-Federal fundraising events''), and not 
just party committee events. Alternatives 2 and 3 proposed detailed 
guidance on Federal candidate and officeholder participation at non-
Federal fundraising events. In addition, the alternatives proposed 
guidance on the manner in which Federal candidates and officeholders 
could participate in publicizing such events. While Alternatives 2 and 
3 addressed the same range of activities, their treatment of those 
activities differed. Alternative 2 proposed a single set of rules for 
all non-Federal fundraising events and related publicity; it did not 
distinguish State, district, and local party events from other non-
Federal fundraising events. Alternative 3, though, proposed two 
different standards: One for State, district, and local party committee 
fundraising events and another for non-party fundraising events.
    The contrasting approaches in Alternatives 2 and 3 were rooted in 
differing interpretations of 2 U.S.C. 441i(e)(3), particularly in the 
wake of the Shays III decision. Alternative 2 was predicated on the 
statement in the Shays III decision that 2 U.S.C. 441i(e)(3) ``merely 
clarifies'' that Federal candidates may attend, speak, and appear as 
featured guests at State, district, and local party committee events 
without such activities constituting an unlawful ``solicitation.'' 
Shays III at 933. As a ``mere[ ] clarif[ication],'' 2 U.S.C. 441i(e)(3) 
neither affords special permissions with regard to Federal candidate 
and officeholder participation in State, district, and local party 
committee fundraising events, nor does it imply any restrictions with 
regard to other non-Federal fundraising events. Accordingly, 
Alternative 2 did not distinguish between State, district, and local 
party events and other non-Federal fundraising events.
    Alternative 3 was instead informed by an interpretation of 2 U.S.C. 
441i(e)(3) as establishing a limited statutory exception for Federal 
candidates to attend, speak and be featured guests at State, district, 
and local party committee fundraisers--activities that the court in 
Shays III acknowledged ``might otherwise be read as forbid[den]'' by 
the Act's fundraising restrictions--which did not extend to non-party 
fundraisers because they were not addressed by the statutory provision. 
Shays III at 933. Accordingly, Alternative 3 proposed one standard for 
Federal candidate and officeholder participation at State, district, 
and local party committee events and another--more restrictive--
standard for Federal candidate and officeholder participation at other 
non-Federal fundraising events.
    The Commission sought comments on the three alternatives, 
specifically

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asking whether each would faithfully implement the statute, whether 
each was responsive to the Shays III decision, and whether each would 
provide sufficient guidance to Federal candidates and officeholders; 
State, district, and local party committees; and other affected 
entities.
    Regarding Alternative 1, commenters acknowledged that it was 
technically responsive to the Shays III opinion, but that it would 
leave unanswered many important questions regarding Federal candidate 
and officeholder participation in non-Federal fundraising events. In 
particular, the commenters pointed out that Alternative 1 would not 
address the Commission's previous guidance regarding Federal candidate 
and officeholder participation in publicity for non-Federal fundraising 
events and whether--or how--a Federal candidate or officeholder could 
solicit funds at a State, district, or local party committee non-
Federal fundraising event.\4\ One commenter suggested that failure to 
address these related areas would create ``uncertainty and trepidation 
for State and local parties'' that would chill involvement between them 
and Federal candidates and officeholders and ultimately limit the 
parties' ability ``to communicate their message and to fully 
participate in the political process.'' No commenters objected to the 
Commission's proposal to establish rules addressing more broadly 
Federal candidate and officeholder participation at all non-Federal 
fundraising events.
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    \4\ While the latter issue was addressed by the Commission in 
advisory opinions with respect to non-Federal fundraising events for 
State candidates and 527 political organizations, see Advisory 
Opinions 2003-03 (Cantor) and 2003-36 (Republican Governors 
Association), the advisory opinions did not address Federal 
candidate and officeholder solicitation at State, district, or local 
party committee non-Federal fundraising events because 11 CFR 300.64 
permitted Federal candidates and officeholders to solicit funds at 
such events ``without restriction or regulation.'' The invalidation 
of this aspect of 11 CFR 300.64 in Shays III raised the question for 
the first time.
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    A number of commenters supported the approach of Alternative 2, 
which applied the same framework to non-Federal fundraising events for 
State, district, and local party committees and to other non-Federal 
fundraising events. These commenters stated that Alternative 2 properly 
balanced the concerns of the Shays III court with the congressional 
intent behind BCRA, and that it better implemented the court's 
interpretation of 441i(e)(3). None of the commenters objected to this 
alternative.
    With regard to Alternative 3, commenters generally did not favor 
its distinction between party committee events and other non-Federal 
fundraising events. Those commenters suggested that Alternative 3's 
approach went further than is required by the court's holding in Shays 
III, and that it would reverse previous Commission guidance that had 
come to be relied on by Federal candidates, officeholders, and party 
committees alike. One commenter predicted that Alternative 3 would 
effectively end participation by Federal candidates and officeholders 
at non-Federal fundraising events. The commenters that did not object 
to Alternative 3 nevertheless noted that the Act did not require ``a 
distinction between different types of nonfederal fundraising events,'' 
as proposed in Alternative 3.
    The Commission agrees that Alternative 1, while responsive to the 
Shays III decision, would leave unanswered many important questions 
regarding Federal candidate and officeholder participation in non-
Federal fundraising events. Although the Shays III decision does not 
mandate the adoption of a single rule that addresses participation by 
Federal candidates and officeholders at all non-Federal fundraising 
events, Federal candidates and officeholders, as well as entities that 
solicit non-Federal funds in connection with elections, would benefit 
from the explicit guidance of a more comprehensive rule.
    Accordingly, the Commission is revising 11 CFR 300.64 to provide 
guidance on participation by Federal candidates and officeholders in 
all non-Federal fundraising events in connection with an election for 
Federal office or any non-Federal election. As set forth in more detail 
below, the Commission's final rule explicitly addresses participation 
by Federal candidates and officeholders at such fundraising events, as 
well as participation by Federal candidates, officeholders, and their 
agents in publicizing these events. In addition, the rule covers 
participation by Federal candidates and officeholders regardless of 
whether the entity sponsoring the event is a State or local candidate 
committee, State political committee, or any other organization that 
hosts a fundraising event in connection with an election for Federal 
office or any non-Federal election.
    The Commission's final rule is based on Alternative 2 in the NPRM. 
The Commission has determined that Alternative 2 best accomplishes two 
important goals: (1) Implementing 2 U.S.C. 441i(e) in accordance with 
the Shays III decision, and (2) providing clear, comprehensive guidance 
regarding Federal candidate and officeholder participation in non-
Federal fundraising events and related publicity.

A. 300.64(a)--Scope

    The scope of new 11 CFR 300.64 is set out in paragraph (a). The 
rule applies to all fundraising events in connection with an election 
for Federal office or any non-Federal election at which funds outside 
the limitations and source prohibitions of the Act, or Levin funds, are 
solicited. The rule applies even if funds within the amount limitations 
and source prohibitions of the Act are also solicited at an event or in 
publicity. The rule does not cover events at which funds outside the 
amount limitations and source prohibitions of the Act or Levin funds 
are not solicited but are, nevertheless, received. Nor does the rule 
cover fundraising events at which only Federal funds are solicited or 
fundraising events in connection with any non-Federal election at which 
only funds subject to the limitations and prohibitions of the Act are 
solicited, such as an event soliciting small-dollar, non-corporate, 
non-union funds for a State candidate.
    The rule covers only non-Federal fundraising events that are ``in 
connection with an election for Federal office or any non-Federal 
election.'' It does not apply to Federal candidate and officeholder 
participation in fundraising events that are not in connection with an 
election, consistent with the Act's prohibition on Federal candidates 
and officeholders from soliciting, receiving, directing, transferring, 
spending, or disbursing funds in connection with an election for 
Federal office or any non-Federal elections. See 2 U.S.C. 
441i(e)(1)(B).
    The scope of the final rule is very similar to the scope proposed 
in the NPRM, except that the proposed rule would have covered non-
Federal fundraising events at which funds outside the limitations and 
prohibitions of the Act are raised, and the final rule covers non-
Federal fundraising events at which funds outside the limitations and 
prohibitions of the Act are solicited. The Commission made this change 
in response to a comment that a solicitation-based standard more 
accurately captured the intent behind 2 U.S.C. 441i(e), which governs 
solicitations by Federal candidates and officeholders. The commenter 
expressed concern that a standard based on whether non-Federal funds 
are raised at an event could be triggered when, for example, a donor 
spontaneously donates a large, corporate check at a non-Federal 
fundraising event, even though no one, including the participating 
Federal candidate or

[[Page 24379]]

officeholder, had solicited funds outside the amount limitations or 
source prohibitions of the Act. The Commission agrees that a 
solicitation-based standard is more consistent with the Act's 
prohibition on solicitation than a standard based on whether funds are 
raised at an event. See 2 U.S.C. 441i(e)(1).
    Commenters generally supported the proposed scope of the 
Commission's rule in the NPRM. They differed, however, on whether the 
rule's applicability should be limited to fundraising events that are 
``in connection with an election for Federal office or any non-Federal 
election.'' One commenter supported the proposal to limit the scope of 
the rule in this manner, while noting the Commission's articulation of 
the standard in previous advisory opinions, such as Advisory Opinions 
2003-12 (Flake) and 2005-10 (Berman/Doolittle). One commenter urged the 
Commission to supersede Advisory Opinion 2005-10 (Berman/Doolittle), 
which, in the commenter's view, had incorrectly applied the ``in 
connection with an election for Federal office or any non-Federal 
election'' standard. Another commenter explicitly urged the Commission 
not to supersede the same.
    The Commission declines to supersede Advisory Opinion 2005-10 
(Berman/Doolittle) in this rulemaking and continues to be guided by its 
prior advisory opinions on the ``in connection with an election for 
Federal office or any non-Federal election'' standard. See, e.g., 
Advisory Opinions 2005-10 (Berman/Doolittle) (solicitation of donations 
by Federal officeholders to a State ballot measure committee was not in 
connection with any election under the circumstances described in the 
request); 2004-14 (Davis) (solicitation of donations by a Federal 
officeholder to a charity was not in connection with any election); 
2003-20 (Hispanic College Fund) (solicitation of donations by a Federal 
officeholder to a scholarship fund was not in connection with any 
election); and 2003-12 (Flake) (solicitation of donations by Federal 
officeholders for a political organization supporting a State 
referendum was in connection with an election under the circumstances 
described in the request). Further guidance from the Commission on 
which activities are in connection with an election for Federal office 
or any non-Federal election, and which are not, is best offered through 
the advisory opinion process.
    The rule does not alter the fundraising exception for Federal 
candidates and officeholders who are also State candidates, found at 11 
CFR 300.63, or the fundraising exceptions for certain tax-exempt 
organizations, found at 11 CFR 300.65. See also 2 U.S.C. 441i(e)(2) and 
(e)(4). Thus, in the event of any inconsistencies with new 11 CFR 
300.64, the provisions of 11 CFR 300.63 and 300.65 govern.

B. 300.64(b)--Participation at Non-Federal Fundraising Events

    Paragraph (b) of new 11 CFR 300.64 addresses participation by 
Federal candidates and officeholders at non-Federal fundraising events. 
Paragraph (b)(1) addresses attendance, speeches, and appearances as 
featured guests by Federal candidates and officeholders at non-Federal 
fundraising events. Paragraph (b)(2) addresses solicitations made by 
Federal candidates and officeholders at non-Federal fundraising events.
1. 300.64(b)(1)--Attending, Speaking or Being a Featured Guest at Non-
Federal Fundraising Events
    New 11 CFR 300.64(b)(1) provides that Federal candidates and 
officeholders may attend, speak at, and be featured guests at non-
Federal fundraising events. This provision is consistent with the Shays 
III decision, which stated that 2 U.S.C. 441i(e)(3) ``merely clarifies 
that despite the statute's ban on soliciting soft money, federal 
candidates may still `attend, speak or be a featured guest' at state 
party events where soft money is raised, which the statute might 
otherwise be read as forbidding.'' Shays III at 933. If 2 U.S.C. 
441i(e)(3) is a ``mere[ ] clarifi[cation],'' it follows that the same 
underlying framework applies to all fundraising events. Thus, if the 
statutory ban on soliciting soft money does not prohibit a Federal 
candidate or officeholder from attending, speaking at, or being a 
featured guest at a State, district, or local party committee's non-
Federal fundraising event, then the statutory ban also does not 
prohibit the same person from engaging in the same activities at any 
other non-Federal fundraising event.
    This portion of the final rule is identical to that proposed in 
Alternative 2 of the NPRM. No comments were received on this provision, 
although the commenters generally supported the Commission's broader 
proposal to treat Federal candidates' and officeholders' participation 
in all non-Federal fundraising events the same.
2. 300.64(b)(2)--Solicitations at Non-Federal Fundraising Events
    Under new 11 CFR 300.64(b)(2), Federal candidates and officeholders 
may solicit funds at non-Federal fundraising events, provided that the 
solicitation is limited to funds that comply with the limitations and 
prohibitions of the Act and that are consistent with State law. Federal 
candidates and officeholders may no longer speak ``without restriction 
or regulation'' at any non-Federal fundraising event, consistent with 
the circuit court's decision in Shays III.
    New 11 CFR 300.64(b)(2) provides that Federal candidates and 
officeholders may limit solicitations made at non-Federal fundraising 
events by displaying at the event a clear and conspicuous written 
notice or by making a clear and conspicuous oral statement that the 
solicitation is not for Levin funds (if the beneficiary of the 
fundraiser has a Levin fund account and is raising funds for that 
account), does not seek funds in excess of Federally permissible 
amounts, and does not seek funds from sources prohibited under the Act, 
including corporations, labor organizations, national banks, Federal 
contractors, or foreign nationals. A notice or statement limiting a 
solicitation will not be considered ``clear and conspicuous'' for 
purposes of the final rule if it is difficult to read or hear or if its 
placement is easily overlooked by any significant number of those in 
attendance. The Commission's regulation at 11 CFR 100.11(c) further 
informs the ``clear and conspicuous'' standard.
    One example of a limited solicitation under new 11 CFR 300.64(b)(2) 
is for the Federal candidate or officeholder to say at a non-Federal 
fundraising event for a State or local candidate: ``I am only asking 
for donations of up to $[applicable Federally permissible amount, 
currently $2,400 per election] from individuals and for donations of up 
to $[applicable Federally permissible amount, currently $5,000 per 
year] from multi-candidate political committees. I am not asking for 
donations in excess of these amounts or for donations from 
corporations, labor organizations, foreign nationals, Federal 
contractors, or national banks.'' When delivered to the general 
audience, this type of statement need be made only once; Federal 
candidates and officeholders are not obligated to repeat it during one-
on-one discussions with individuals at the fundraising event. Federal 
candidates and officeholders may not, however, recite a limitation 
publicly, and then encourage event attendees to disregard the 
limitation during one-on-one discussions.
    If a Federal candidate or officeholder wishes to make a general 
solicitation that does not expressly refer to the amount limitations 
and source

[[Page 24380]]

prohibitions of the Act at a non-Federal fundraising event, then the 
candidate or officeholder may limit the solicitation by displaying a 
clear and conspicuous written notice or by making a clear and 
conspicuous oral statement at the event that the solicitation is 
limited to funds that comply with the limitations and prohibitions of 
the Act. An example of an adequate written notice is a placard 
prominently displayed so that it cannot be overlooked at the entrance 
to a fundraising event for a State or local candidate at which the 
Federal candidate or officeholder is appearing, or a card placed on 
every table at the event, stating:

    Solicitations made by Federal candidates and officeholders at 
this event are limited by Federal law. The Federal candidates and 
officeholders speaking tonight are soliciting only donations of up 
to $[applicable Federally permissible amount, currently $2,400 per 
election] from individuals and up to $[applicable Federally 
permissible amount, currently $5,000 per year] from multi-candidate 
political committees. They are not soliciting donations in any 
amount from corporations, labor organizations, national banks, 
Federal contractors, or foreign nationals.

    Alternatively, an event official or the Federal candidate or 
officeholder could make the same or a similar statement orally before 
any general solicitations are made by the Federal candidate or 
officeholder, such as in welcoming remarks to persons attending the 
fundraising event. These types of public, limiting statements need not 
be repeated in one-on-one discussions between the Federal candidate or 
officeholder and event attendees, so long as the Federal candidate or 
officeholder does not encourage event attendees to disregard the 
limitation during one-on-one discussions.
    The provisions of new 11 CFR 300.64(b) are substantially the same 
as those proposed in paragraph (b) of Alternative 2 of the NPRM. Most 
of the comments on the proposal focused on the requirement that Federal 
candidates and officeholders limit their solicitations at non-Federal 
fundraising events. Two commenters asked the Commission to provide in 
its final rule more explicit guidance on how to limit such 
solicitations. In particular, the commenters requested additional 
examples of acceptable oral and written limitations and a clearer 
articulation of the ``clear and conspicuous'' standard. In response to 
these commenters, and to facilitate compliance with the regulations, 
the Commission has provided examples of acceptable statements.
    Two other commenters suggested that it would be unnecessary and 
``awkward and confusing'' to require Federal candidates and 
officeholders to limit their solicitations at non-Federal fundraising 
events with clear and conspicuous oral or written statements. The 
Commission concludes that any solicitation that is not limited either 
by its express terms or otherwise (such as through a clear and 
conspicuous oral statement or written notice) risks being understood as 
soliciting donations in amounts and from sources prohibited under the 
Act, especially if other individuals at the fundraising event 
explicitly solicit funds that are not consistent with the limitations 
and prohibitions of the Act. See 11 CFR 300.2(m) (defining ``to 
solicit'' to include ``an oral or written communication that, construed 
as reasonably understood in the context in which it is made, contains a 
clear message, asking, requesting, or recommending that another person 
make a contribution, donation, transfer of funds, or otherwise provide 
anything of value'').

C. 300.64(c)--Publicity for Non-Federal Fundraising Events

    Paragraph (c) of new 11 CFR 300.64 addresses participation by 
Federal candidates and officeholders in publicity for non-Federal 
fundraising events. The final rule applies to Federal candidate and 
officeholder participation in all types of publicity for non-Federal 
fundraising events, including publicity soliciting funds. The term 
``publicity'' as used in new 11 CFR 300.64 includes all methods used to 
publicize a non-Federal fundraising event, including advertisements, 
announcements, and pre-event invitations, regardless of form or medium 
(and includes phone calls, mail, e-mail, facsimile, and text messages), 
as well as follow-up contacts. New paragraph (c) is intended to ensure 
that Federal candidates and officeholders do not, in the course of 
publicizing a non-Federal fundraising event, solicit funds outside the 
amount limitations and source prohibitions of the Act.
    Paragraph (c) of the final rules is substantially similar to 
paragraph (c) of Alternative 2 in the NPRM, except as described below. 
All commenters supported the Commission's proposal to address publicity 
for non-Federal fundraising events in the rule and to clarify guidance 
provided by the Commission in previous advisory opinions and Matters 
Under Review. As one commenter noted, ``these rules regarding pre-event 
publicity in practice are what * * * really matter.'' Another commenter 
expressed a similar sentiment: ``Frankly, once you're at the event, 
it's very rare that solicitations are ever made regardless. So it is 
appropriate that you've opened the door to revisiting the guidance and 
the rules regarding pre-event publicity. And clarity really is an 
important thing in these rules[.]''
1. 300.64(c)(1)--Publicity Not Containing a Solicitation
    Paragraph (c)(1) of new 11 CFR 300.64 provides that if publicity 
for, or information about, a non-Federal fundraising event does not 
solicit funds, then Federal candidates, officeholders, or their agents 
may approve, authorize, agree to, or consent to the use of the Federal 
candidates' or officeholders' name and likenesses in it. Such publicity 
may, for example, use the name or likeness of a Federal candidate or 
officeholder to indicate that such person will attend, speak, or be a 
featured guest at the event. The publicity may also indicate the 
Federal candidate's or officeholder's involvement or role in the event. 
See discussion of paragraph (c)(3), below. No Federal disclaimer or 
attribution statement is required on such publicity.
    Paragraph (c)(1) is nearly identical to proposed paragraph (c)(1) 
in Alternative 2 of the NPRM, except that it now explicitly applies to 
agents of Federal candidates and officeholders.
    The Commission did not receive any comments specifically addressing 
this provision, although the commenters generally supported the 
Commission's proposed treatment of publicity for non-Federal 
fundraising events. One commenter, for example, indicated that the mere 
listing of a Federal candidate or officeholder on an invitation for a 
non-Federal fundraising event does not constitute a solicitation.
    The Commission agrees that, in the context of publicity that does 
not otherwise contain a solicitation, merely approving, authorizing, 
agreeing to, or consenting to the use of the Federal candidate's or 
officeholder's name or likeness does not, in and of itself, constitute 
a solicitation by that Federal candidate or officeholder.
    The Commission also concludes that paragraph (c)(1) gives full 
effect to 2 U.S.C. 441i(e)(3), as interpreted by the court in Shays 
III, which states that Federal candidates and officeholders may be 
featured guests at State, district, and local party committee 
fundraising events. One aspect of being a featured guest is being 
identified as such in publicity. Thus, paragraph (c)(1) is consistent 
with the Act and the Shays III court decision.

[[Page 24381]]

2. 300.64(c)(2)--Publicity Containing a Solicitation Limited to Funds 
That Comply With the Amount Limitations and Source Prohibitions of the 
Act
    Paragraph (c)(2) of new 11 CFR 300.64 provides that Federal 
candidates, officeholders, or their agents may approve, authorize, 
agree to, or consent to the use of the Federal candidates' or 
officeholders' names and likenesses in publicity for a non-Federal 
fundraising event if the publicity solicits only funds that comply with 
the amount limitations and source prohibitions of the Act. Federal 
candidates and officeholders may be identified on the publicity in a 
manner specifically related to fundraising, such as honorary 
chairperson of the fundraising event, and may also sign the 
solicitation letters themselves, if the solicitation is limited to 
funds that comply with the amount limitations and source prohibitions 
of the Act.
    This provision merely makes explicit what was implicit in the 
proposed rule, and reiterates what is expressly provided for in 2 
U.S.C. 441i(e)(1): That Federal candidates and officeholders may 
solicit funds that comply with the amount limitations and source 
prohibitions of the Act.
3. 300.64(c)(3)--Publicity Containing a Solicitation Outside the Amount 
Limitations and Source Prohibitions of the Act
    Paragraph (c)(3) of new 11 CFR 300.64 addresses publicity that 
solicits funds outside the amount limitations and source prohibitions 
of the Act or Levin funds. This provision is based on the Commission's 
determination that a Federal candidate, officeholder, or an agent of 
either may approve, authorize, agree to, or consent to the use of the 
Federal candidate's or officeholder's name or likeness on publicity for 
a non-Federal fundraising event in a manner that does not result in the 
solicitation being attributed to the Federal candidate or officeholder.
    Under paragraph (c)(3)(i), a Federal candidate, officeholder, or an 
agent of either may approve, authorize, agree to, or consent to the use 
of the Federal candidate's or officeholder's name or likeness in 
publicity for a non-Federal fundraising event that contains a 
solicitation of funds outside the amount limitations and source 
prohibitions of the Act or Levin funds, but only if: (1) The Federal 
candidate or officeholder is identified in the publicity in a manner 
not specifically related to fundraising, and (2) the publicity includes 
a clear and conspicuous disclaimer that the solicitation is not being 
made by the Federal candidate or officeholder.
    New 11 CFR 300.64(c)(3)(i)(A) provides nonexhaustive examples of 
the positions that a Federal candidate or officeholder may be 
identified as holding that are not specifically related to fundraising. 
They include featured guest, honored guest, special guest, featured 
speaker, or honored speaker. Thus, merely identifying a Federal 
candidate or officeholder as holding a position not specifically 
related to fundraising on publicity does not constitute a solicitation 
of funds outside the amount limitations and source prohibitions of the 
Act or Levin funds by the Federal candidate or officeholder. The 
Commission is not requiring that all Federal candidates or 
officeholders be identified by one of the listed titles. Rather, the 
Federal candidate or officeholder may be identified in any manner not 
specifically related to fundraising. For example, the Federal candidate 
or officeholder may be identified simply by name, as in ``Please join 
the State Party at a reception with Senator Jones and Governor Smith.''
    To avoid any confusion in this regard, paragraph (c)(3)(i)(B) 
requires the publicity to include a clear and conspicuous disclaimer 
stating that the solicitation is not being made by the Federal 
candidate or officeholder. New 11 CFR 300.64(c)(3)(ii) provides that 
disclaimers on written publicity must meet the requirements in 11 CFR 
110.11(c)(2). For publicity disseminated via non-written means, such as 
by telephone calls, a disclaimer is required if the publicity is 
recorded, follows any form of a written script, or is conducted 
according to a structured or organized program. A script for these 
purposes means any written text that callers use to guide their 
conversations with potential attendees, regardless of whether it takes 
the form of complete paragraphs, bullet points, notes, or other written 
prompts. As long as the text includes appropriate disclaimers, the 
Commission will presume (absent evidence to the contrary) that the 
requirements of the rule were met. When non-written solicitations are 
conducted according to a structured or organized program, the 
Commission will similarly presume that the requirements of the rule 
were met where a sworn statement that appropriate disclaimers were made 
is submitted by the person making the solicitation or by the Federal 
candidate or officeholder who authorized the use of his or her name. A 
structured or organized program includes the making, at a designated 
time, of telephone calls that invite people to and solicit funds for a 
non-Federal fundraising event, and which is authorized, requested, or 
agreed to by the Federal candidate or officeholder.
    New paragraph (c)(3)(iv) provides two examples of disclaimers that 
would satisfy the requirement. Both examples state that the Federal 
candidate or officeholder is not soliciting funds in connection with 
the fundraising event. These examples are intended to serve as guidance 
for Federal candidates, officeholders, and sponsors of non-Federal 
fundraising events. Importantly, written disclaimers, including those 
that conform to the examples provided in the rule, are not sufficient 
unless they are ``clear and conspicuous'' under 11 CFR 110.11(c)(2). To 
the extent the publicity already has a disclaimer required by 11 CFR 
100.11 (Federal disclaimer), the disclaimer required by this paragraph 
may be included in the same box as the Federal ``Paid for by'' 
disclaimer. Some additional limitations on the use of disclaimers are 
addressed in new paragraph (c)(3)(v) of 11 CFR 300.64, as discussed 
below.
    Paragraph (c)(3)(v) of new 11 CFR 300.64 states that a Federal 
candidate, officeholder, or an agent of either may not approve, 
authorize, agree to, or consent to the use of the Federal candidate's 
or officeholder's name or likeness in publicity that contains a 
solicitation of non-Federal or Levin funds if the Federal candidate or 
officeholder is identified in the publicity as serving in a position 
specifically related to fundraising. Positions specifically related to 
fundraising include, for example, honorary chair of the fundraising 
event or member of the host committee. Nor may a Federal candidate, 
officeholder, or an agent of either approve, authorize, agree to, or 
consent to the use of the Federal candidate's or officeholder's name or 
likeness if the Federal candidate or officeholder is identified on 
publicity containing a solicitation of non-Federal or Levin funds as 
extending an invitation to the event. For example, an invitation 
stating ``Featured guest Congressman X invites you to join him at next 
week's reception'' would fall into this category, as would an 
invitation signed by the Federal candidate or officeholder.
    The Commission has concluded that participation by the Federal 
candidate or officeholder in this manner would be an impermissible 
solicitation of funds outside the amount limitations and source 
prohibitions of the Act or Levin funds. As such, no disclaimer, even 
one that complies with paragraph (c)(3)(i)(B) of new 11 CFR 300.64, 
would be capable of curing the violation of 2 U.S.C.

[[Page 24382]]

441i(e), no matter how clear or conspicuous the disclaimer may be.
    Finally, paragraph (c)(3)(vi) prohibits Federal candidates, 
officeholders, and their agents from disseminating publicity for a non-
Federal fundraising event if the publicity solicits funds outside the 
amount limitations and source prohibitions of the Act or Levin funds. 
This paragraph is a logical outgrowth of the proposal in the NPRM; the 
Commission has decided to implement this provision to prohibit conduct 
that could result in an impermissible solicitation by Federal 
candidates and officeholders.
    The final rule covers much of the same activity as the rule 
proposed in Alternative 2 of the NPRM, but is organized differently. 
The proposed rule did not, for example, explicitly address publicity 
that solicits only funds within the limitations and prohibitions of the 
Act, whereas the final rule does. More significantly, the structure of 
the proposed rule depended on whether the solicitation in the publicity 
was made by the Federal candidate or officeholder. By contrast, the 
structure of the final rule depends on whether the publicity solicits 
funds within the amount limitations and source prohibitions of the Act. 
The final rule also applies to the agents of Federal candidates and 
officeholders.
    The comments received on this aspect of the proposed rule focused 
for the most part on the disclaimer requirement for publicity naming a 
Federal candidate or officeholder and including a solicitation by a 
person other than the Federal candidate or officeholder. Four 
commenters disagreed with the disclaimer requirement, arguing that the 
disclaimers would confuse the average person. These commenters observed 
that the average recipient of publicity could easily conclude that the 
mere listing of a Federal candidate or officeholder--as a featured 
guest, for example--on publicity was not a solicitation by that Federal 
candidate or officeholder, even if the publicity included a 
solicitation of funds outside the amount limitations and source 
prohibitions of the Act. Moreover, one commenter opined that 
fundraising hosts would bear a substantial burden if employees and 
volunteers were required to issue such disclaimers during the telephone 
calls and conversations that frequently follow the distribution of 
written publicity for a non-Federal fundraising event. Instead, two 
commenters suggested that the Commission require such disclaimers only 
when a Federal candidate or officeholder signs a solicitation or 
explicitly solicits funds.
    Other commenters supported the Commission's proposed disclaimer 
requirement, stating that it would make ``infinitely clear to the 
recipient of the solicitation'' that the Federal candidate or 
officeholder was not asking for funds outside the limitations or 
prohibitions of the Act. Another commenter asked the Commission to 
provide specific examples of statements that would satisfy the 
disclaimer requirement.
    The Commission has considered the comments and has concluded that 
identifying a Federal candidate or officeholder as serving in a role 
not specifically related to fundraising does not, by itself, result in 
a solicitation by the Federal candidate or officeholder. However, just 
as the circuit court concluded in Shays III that 2 U.S.C. 441i(e)(3) 
``merely clarifies'' the reach of ``the statute's ban on soliciting 
soft money,'' the Commission also seeks to make it unmistakably clear 
that Federal candidates and officeholders who participate at non-
Federal fundraising events and in publicity are not making a 
solicitation that would be prohibited under the law. Shays III at 933. 
The disclaimer requirement helps to ensure that persons receiving 
publicity for non-Federal fundraising events understand that any 
solicitation of funds outside the amount limitations and source 
prohibitions of the Act is made by a person other than the Federal 
candidate or officeholder identified in the publicity. The disclaimer 
requirement may also help to protect Federal candidates and 
officeholders against complaints filed with the Commission that result 
from a misunderstanding as to who is soliciting funds in connection 
with the fundraising event.

D. Effect of This Rulemaking on Prior Commission Advisory Opinions

    The Commission has addressed the issue of participation by Federal 
candidates and officeholders in non-Federal fundraising events in 
Advisory Opinions 2007-11 (California State Party Committees), 2005-02 
(Corzine II), 2004-12 (Democrats for the West), 2003-36 (Republican 
Governors Association), and 2003-03 (Cantor). As explained below, the 
Commission is superseding the aspects of these advisory opinions that 
address this issue.
    In Advisory Opinions 2005-02 (Corzine II) and 2004-12 (Democrats 
for the West), the Commission concluded, in part, that Federal 
candidates and officeholders could appear, speak, and be featured 
guests at non-Federal fundraising events ``without restriction or 
regulation'' under former 11 CFR 300.64(b). Given that this provision 
of the rule was explicitly struck down by the Shays III court and has 
been removed by the Commission, the Commission is superseding the parts 
of Advisory Opinions 2004-12 (Democrats for the West) and 2005-02 
(Corzine II) that apply the ``without restriction or regulation'' 
standard. Specifically, the Commission is superseding the answer to 
Question 7 in Advisory Opinion 2004-12 (Democrats for the West), as to 
whether Democrats for the West may invite Federal candidates, 
officeholders, or their agents to appear as guests or featured speakers 
at fundraising events, and the second paragraph in the answer to 
Question 2 in Advisory Opinion 2005-02 (Corzine II), regarding Federal 
candidate and officeholder participation in raising funds for the non-
Federal accounts of State and local party committees.
    Advisory Opinions 2007-11 (California State Party Committees), 
2003-36 (Republican Governors Association), and 2003-03 (Cantor) also 
addressed participation by Federal candidates and officeholders at non-
Federal fundraising events in connection with elections, and related 
publicity. Some of the conclusions are consistent with new 11 CFR 
300.64, such as the conclusion in Advisory Opinions 2003-36 (Republican 
Governors Association) and 2003-03 (Cantor) that the mere attendance of 
a Federal candidate or officeholder at a non-Federal fundraiser does 
not, in and of itself, give rise to a violation of the Act or 
Commission regulations. On the other hand, some of the conclusions in 
these prior advisory opinions may not be consistent with new 11 CFR 
300.64.
    To help avoid potential confusion as to which parts of the prior 
advisory opinions are consistent with the new rule and which parts are 
inconsistent, the Commission is superseding Advisory Opinion 2003-03 
(Cantor), except for the answer to Question 6 regarding agency, and 
Advisory Opinion 2003-36 (Republican Governors Association), except for 
the answer to Question 3 regarding corporate donations to the 
Republican Governors Association's conference account and the last 
paragraph of the answer to Question 2 regarding whether the conference 
account's activities are in connection with an election. The Commission 
is also superseding in its entirety Advisory Opinion 2007-11 
(California State Party Committees), which addressed three types of 
proposed communications related to State party fundraising events that 
identified Federal candidates or officeholders as featured speakers or 
honored guests.

[[Page 24383]]

    These actions are consistent with a comment received in response to 
the NPRM. The comment noted the potential tension and confusion that 
could result from having to reconcile past advisory opinions with the 
Commission's new rule. The comment suggested that the Commission 
indicate explicitly that the series of advisory opinions on this issue 
no longer articulate the correct standard of law and are thus 
superseded.
    The Commission agrees that where the new rule addresses the same 
issue as a prior advisory opinion, the new rule provides the applicable 
standard of law, and the advisory opinion is superseded. However, the 
Commission declines to supersede the entire series of advisory opinions 
that reference this issue. As discussed above, sections of certain 
advisory opinions are not affected by the new rule and hence remain in 
force. Accordingly, the Commission has explicitly indicated which 
advisory opinions are now superseded, in whole or in part. Although new 
11 CFR 300.64 is in part informed by, and adopts, some of the 
Commission's conclusions in prior advisory opinions, the new rule is 
based entirely on the reasoning set forth in this explanation and 
justification and does not rely on any prior Commission advisory 
opinions.

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

    The Commission certifies that the attached final rule will not have 
a significant economic impact on a substantial number of small 
entities. The basis for this certification is that the entities 
affected by this rule do not meet the definition of ``small entity'' 
under 5 U.S.C. 601. That definition requires that the enterprise be 
independently owned and operated and not dominate in its field. 5 
U.S.C. 601(4).
    This final rule affects State, district, and local party 
committees, as well as Federal candidates and their campaign 
committees. Federal candidates, as individuals, do not fall within the 
definition at 5 U.S.C. 601, and campaign committees are not 
independently owned and operated because they are not financed and 
controlled by a small identifiable group of individuals.
    State, district, and local party committees also fall outside the 
definition of ``small entity.'' These 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 arenas of their States and are thus dominant in their fields. 
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 final rule is not substantial.

List of Subjects in 11 CFR Part 300

    Campaign funds, nonprofit organizations, political committees and 
parties, political candidates, reporting and recordkeepi