Definition of Federal Election Activity, 23068-23072 [05-8864]
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23068
Federal Register / Vol. 70, No. 85 / Wednesday, May 4, 2005 / Proposed Rules
Dated: April 29, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 05–8861 Filed 5–3–05; 8:45 am]
BILLING CODE 3410–02–P
FEDERAL ELECTION COMMISSION
11 CFR Part 100
Definition of Federal Election Activity
Federal Election Commission.
Notice of proposed rulemaking.
AGENCY:
SUMMARY: The Federal Election
Commission seeks comments on
proposed changes to its rules defining
‘‘Federal election activity’’ under the
Federal Election Campaign Act of 1971,
as amended (‘‘FECA’’). The proposed
changes would retain the existing
definition of ‘‘voter registration activity’’
and modify the existing definitions of
‘‘get-out-the-vote activity’’ and ‘‘voter
identification’’ consistent with the
ruling of the U.S. District Court for the
District of Columbia in Shays v. FEC.
The Commission has made no final
decision on the issues presented in this
rulemaking. Further information is
provided in the supplementary
information that follows.
DATES: Comments must be received on
or before June 3, 2005. If the
Commission receives sufficient requests
to testify, it may hold a hearing on these
proposed rules. Anyone wishing to
testify at the hearing must file written
comments by the due date and must
include a request to testify in the
written comments.
ADDRESSES: All comments must be in
writing, addressed to Ms. Mai T. Dinh,
Assistant General Counsel, and
submitted in either electronic, facsimile
or hard copy form. Commenters are
strongly encouraged to submit
comments electronically to ensure
timely receipt and consideration.
Electronic comments must be sent to
either FEAdef@fec.gov or submitted
through the Federal eRegulations Portal
at https://www.regulations.gov. If the
electronic comments include an
attachment, the attachment must be in
Adobe Acrobat (.pdf) or Microsoft Word
(.doc) format. Faxed comments should
be sent to (202) 219–3923, with hard
copy follow-up. Hard copy comments
and hard copy follow-up of faxed
comments should be sent to the Federal
Election Commission, 999 E Street,
NW., Washington, DC 20463. All
comments must include the full name
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Ms.
Mai T. Dinh, Assistant General Counsel,
Mr. J. Duane Pugh Jr., Senior Attorney,
or Ms. Margaret G. Perl, Attorney, 999
E Street, NW., Washington, DC 20463,
(202) 694–1650 or (800) 424–9530.
SUPPLEMENTARY INFORMATION: The
Bipartisan Campaign Reform Act of
2002 (‘‘BCRA’’), Public Law No. 107–
155, 116 Stat. 81 (2002), amended FECA
by adding a new term, ‘‘Federal election
activity’’ (‘‘FEA’’), that describes certain
activities that State, district, and local
party committees must pay for with
either Federal funds 1 or a combination
of Federal and Levin funds.2 2 U.S.C.
431(20) and 441i(b)(1); see also 2 U.S.C.
441i(d)(1) (prohibiting national, State,
district or local party committees from
soliciting or directing non-Federal funds
to 501(c) tax-exempt organizations
which engage in FEA); 2 U.S.C.
441i(e)(4) (limiting Federal candidate
and officeholder solicitations for funds
on behalf of 501(c) tax-exempt
organizations whose principal purpose
is to conduct certain types of FEA). The
Commission further defined FEA in 11
CFR 100.24. In Shays v. FEC, 337 F.
Supp.2d 28, 101, 106–07 (D.D.C. 2004),
appeal docketed, No. 04–5352 (D.C. Cir.
Sept. 28, 2004) (‘‘Shays’’), the district
court held that certain parts of the
definitions of ‘‘voter registration
activity’’ and ‘‘get-out-the-vote activity’’
(‘‘GOTV’’) in 11 CFR 100.24(a)(2) and
(3), respectively, had not been
promulgated with adequate notice and
opportunity for comment. In addition,
the district court held that certain
aspects of the definitions of ‘‘get-outthe-vote activity’’ and ‘‘voter
identification’’ in 11 CFR 100.24(a)(3)
and (4), respectively, were inconsistent
with Congressional intent. Shays at 104,
107 n.83, and 108.3 The district court
FOR FURTHER INFORMATION CONTACT:
[Notice 2005–13]
ACTION:
and postal service address of the
commenter or they will not be
considered. The Commission will post
comments on its Web site after the
comment period ends. If the
Commission decides a hearing is
necessary, the hearing will be held in
the Commission’s ninth floor meeting
room, 999 E Street, NW., Washington,
DC.
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1 ‘‘Federal funds’’ are funds subject to the
limitations, prohibitions, and reporting
requirements of the Act. See 11 CFR 300.2(g).
2 ‘‘Levin funds’’ are funds that are 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).
3 The district court described the first step of the
Chevron analysis, which courts use to review an
agency’s regulations: ‘‘a court firsts asks ‘whether
Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is
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remanded the case for further action
consistent with the court’s decision. The
Commission has initiated this
rulemaking to comply with the district
court order.
1. 11 CFR 100.24(a)(2)—Definition of
‘‘Voter Registration Activity’’
BCRA does not define ‘‘voter
registration activity’’ other than to
specify that it is only FEA when it is
conducted 120 days or fewer before a
regularly scheduled Federal election.
See 2 U.S.C. 431(20)(A)(i). Current
section 100.24(a)(2) defines voter
registration activity to mean ‘‘contacting
individuals by telephone, in person, or
by other individualized means to assist
them in registering to vote.’’ (Emphasis
added). The definition also includes a
non-exhaustive list of examples of costs
that are included, such as printing and
distributing registration and voting
information, providing individuals with
voter registration forms, and assisting
individuals in the completion and filing
of such forms.
In Shays, the plaintiffs argued that the
requirement that voter registration
activity ‘‘assist’’ in the registration of
voters impermissibly narrowed the
definition because it excludes from its
reach encouragement that does not
constitute actual assistance. See Shays
at 98. The district court found that the
Commission’s interpretation of section
431(20)(A) does not conflict with the
expressed intent of Congress. Shays at
99–100. ‘‘[T]he Court note[d] that it is
possible to read the term ‘voter
registration activity’ to encompass those
activities that actually register persons
to vote, as opposed to those that only
encourage persons to do so without
more. [citation omitted]. Moreover, the
Court [did not] find based on the record
presented that the ‘common usage’ of
the term ‘voter registration activity’
necessarily includes the latter type of
activities.’’ Id. at 99.4
The court also held that the question
of whether the regulation satisfies step
two of the Chevron test—whether the
Commission’s interpretation of the
statute is a permissible one—was not
ripe for review. While the court found
that the regulation is not an
impermissible construction of BCRA,
the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously
expressed intent of Congress.’ ’’ See Shays at 51
(quoting Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 842–43 (1984)).
4 The Court also noted an apparent discrepancy
between 11 CFR 100.133 and 11 CFR 106.5(a)(2)(iv)
with regard to the definition of voter registration
and get-out-the-vote activity. See Shays at 99 n.71,
103 n.77. However, any such comparison is no
longer relevant since the latter regulation sunsetted
on December 31, 2002.
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the court concluded that it lacked
sufficient guidance on the scope of the
regulation to determine whether it
‘‘unduly compromises the Act’s
purposes.’’ Shays at 100 (citing Orloski
v. FEC, 795 F.2d 156, 164 (D.C. Cir.
1986)). In this regard, the court noted
that ‘‘[w]hile it is clear that mere
encouragement does not fall within the
scope of the regulation, it is possible
that encouragement coupled with a
direction of how one might register
could constitute ‘assist[ance]’ under the
provision.’’ Shays at 100.
The district court also determined
that the promulgation of this regulation
did not satisfy the APA’s notice
requirement because the notice of
proposed rulemaking did not indicate
that the Commission would seek to limit
the term ‘‘voter registration activity’’ to
those activities that assist the
registration of voters. See Shays at 100–
01. The Commission has, therefore,
initiated this rulemaking to cure what
the court concluded was a notice
problem and to consider the comments
it receives on the current rule.
The Commission is concerned that a
definition of ‘‘voter registration activity’’
that includes merely ‘‘encouraging’’
people to register to vote may sweep too
broadly. The current regulations seek to
balance the need to cover the core voter
registration activity targeted by the
statute with the public policy interest of
encouraging the civic act of voting.
Also, the Commission’s experience
indicates that exhortations to register
and vote are so frequent in political
party communications (and often
spontaneous) that attaching any
campaign finance significance to every
‘‘don’t forget to vote’’ uttered by
speakers at political party events or
written in a political party flyer may be
unduly burdensome to the political
party committees and could overwhelm
the administrative and enforcement
capacity of the Commission. As the
Commission noted when it promulgated
the regulation, ‘‘[a] more expansive
definition would run the risk that
thousands of political committees and
grassroots organizations that merely
encouraged voting as a civic duty, who
have never been subject to Federal
regulation for such conduct, would be
swept into the extensive reporting and
filing requirements mandated under
Federal law.’’ See Explanation and
Justification for Regulations on
Prohibited and Excessive Contributions;
Non-Federal Funds or Soft Money, 67
FR 49064, 49067 (July 29, 2002) (‘‘Soft
Money E&J’’). Consequently, the
proposed regulation, which is identical
to the current rule, would rely on the
individual contact and ‘‘assist’’
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requirements to narrow the scope of
‘‘voter registration activity’’ to a
standard that is enforceable, and yet is
otherwise as broad as possible.
Although the Commission is not
proposing any changes to current 11
CFR 100.24(a)(2), it seeks comment on
whether it should address the concerns
raised by the district court by amending
the regulation, expanding the
explanation and justification for the
final rules, or providing guidance
through a case-by-case application of
the rules in advisory opinions and the
enforcement process. Substantively, the
Commission seeks comment on the
following questions. Should the
Commission define ‘‘assist’’ to include
encouragement coupled with a direction
as to how one might register? Does the
‘‘assist’’ limitation or the
‘‘individualized means’’ requirement
exclude any activities that should be
included in the definition of ‘‘voter
registration activity?’’ Are there other
specific activities that the Commission
should include or exclude from the
definition of ‘‘voter registration
activity?’’
2. Proposed 11 CFR 100.24(a)(3)—
Definition of ‘‘Get-Out-the-Vote
Activity’’
In BCRA, Congress also included
GOTV within the definition of FEA
without further defining the term. See 2
U.S.C. 431(20)(A)(ii). Current section
100.24(a)(3) defines GOTV as
‘‘contacting registered voters by
telephone, in person, or by other
individualized means to assist them in
engaging in the act of voting.’’ See 11
CFR 100.24(a)(3) (emphasis added). For
the reasons stated above, the current
definition of GOTV does not encompass
merely encouraging voters to go to the
polls. Section 100.24(a)(3) includes an
exception to the definition of GOTV for
communications by ‘‘an association or
similar group of candidates for State or
local office or of individuals holding
State or local office’’ where those
communications refer only to State or
local candidates. See 11 CFR
100.24(a)(3). In addition, the current
rule provides a non-exhaustive list of
examples of GOTV activity such as
providing information to individual
voters regarding the date, time and
location of polling places within 72
hours of an election, and offering to
transport, or actually transporting,
voters to the polls. See 11 CFR
100.24(a)(3)(i)–(ii).
The district court found that the term
‘‘get-out-the-vote activity’’ in section
431(20)(A)(ii) was not defined by
Congress and can be read in different
ways, and concluded that excluding
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mere encouragement of people to vote
in section 100.24(a)(3) reflected a
permissible reading under Chevron step
one. See Shays at 101–05. The court also
upheld the 72-hour provision, noting
that current section 100.24(a)(3) makes
clear that the list of examples is nonexhaustive. However, the court
expressed uncertainty regarding ‘‘what,
if any, activity conducted outside the
72-hour window [in 11 CFR
100.24(a)(3)(i)] would be considered
GOTV activity,’’ and therefore, as with
the ‘‘assist’’ requirement in section
100.24(a)(2), could not reach a decision
as to Chevron step two. See Shays at 103
(emphasis in original). With respect to
the exception for State and local
candidate and officeholder associations
in the current GOTV definition, the
court found that it ‘‘runs contrary to
Congress’s clearly expressed intent’’ as
enacted in BCRA and fails step one of
Chevron. See Shays at 104.
To conform to the district court’s
opinion, proposed section 100.24(a)(3)
would remove the exception for
communications by associations or
similar groups of candidates for State or
local office, or of State or local
officeholders, that refer only to State or
local candidates. This exception was
included in the 2002 rules because the
Commission was concerned that the
underlying provision would require
Federal registration and reporting for a
broad swath of State and local election
activity, ‘‘sweep[ing] within Federal
regulation candidates for city council, or
the local school board, who join
together to identify potential voters for
their own candidacies. * * *’’ See Soft
Money E&J, 67 FR at 49070. The
Commission seeks public comment on
whether there are other alternatives to
address the Commission’s concerns
while still satisfying Congressional
intent as determined by the Shays court.
Further, what impact would there be
from removing the exception for groups
of non-Federal candidates? Would such
groups of non-Federal candidates have
to pay for the full amount of FEA with
Federal funds? Compare 2 U.S.C.
441i(b)(1) with (b)(2); see also 11 CFR
300.32(a)(1). Could groups of nonFederal candidates that are political
committees be permitted to allocate
under current 11 CFR 106.6 even though
the FEA allocation regulations at 11 CFR
300.33 do not apply to groups of nonFederal candidates? See also 2 U.S.C.
441i(b)(2). In addition, would groups of
non-Federal candidates that are not
political committees be able to allocate
their FEA given that they are not
covered by 11 CFR 106.6?
The district court also held that the
promulgated regulation defining GOTV
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did not meet the APA’s notice
requirement for the same reasons it
articulated with regard to the definition
of ‘‘voter registration activity.’’ See
Shays at 106–07. The proposed rules do
not include any amendments to the
‘‘assist’’ requirement in section
100.24(a)(3), or the non-exhaustive list
of activities that constitute GOTV
activities in current 11 CFR
100.24(a)(3)(i) and (ii). The Commission
included these two examples of GOTV
to assist in applying the regulation to
particular factual situations. The Shays
court found that ‘‘[t]he regulation makes
clear that the examples it provides are
non-exhaustive.’’ Shays at 103. The
Commission seeks comment on the
examples of GOTV activity identified in
section 100.24(a)(3). Should this nonexclusive list be changed in any way?
Should the specific reference to activity
within 72 hours of an election be
changed in any way? Is 72 hours an
appropriate period within which to
specify activity included as GOTV?
Would some other time frame be
appropriate? Should the Commission
provide more specificity as to when it
will consider activity taking place more
than 72 hours before an election to be
GOTV?
3. Proposed 11 CFR 100.24(a)(4)—
Definition of ‘‘Voter Identification’’
‘‘Voter identification’’ is another term
used in the BCRA definition of FEA that
is not defined by the statute. See 2
U.S.C. 431(20)(A)(ii). Current section
100.24(a)(4) defines voter identification
as ‘‘creating or enhancing voter lists by
verifying or adding information about
the voters’ likelihood of voting in an
upcoming election or their likelihood of
voting for specific candidates.’’ 11 CFR
100.24(a)(4). The current definition does
not include voter list acquisition
because the Commission concluded that
political party committees may acquire
voter lists for a number of reasons other
than for voter identification in
connection with an election in which a
Federal candidate appears on the ballot.
Such reasons include fundraising and
off-year party building activities. See
Soft Money E&J, 67 FR at 49069. Section
100.24(a)(4) also contains an exception
for associations of State or local
candidates and/or officeholders
identical to the exception to the
definition of GOTV in section
100.24(a)(3).
The district court in Shays ‘‘agree[d]
that one may obtain a voter list and not
be engaged in an activity aimed at
identifying voters. But whatever the
intent, inherent in the acquisition of
such a list is the identification of
voters.’’ Shays at 108. Because the court
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saw ‘‘no evidence that Congress
intended to exclude certain forms of
activities that identify voters when it
used the term ‘voter identification’ ’’ the
court held that the Commission’s
decision not to include acquisition of
voter lists in the definition of ‘‘voter
identification’’ failed Chevron step one.
Shays at 108 (emphasis in original). The
court held that the exception for State
and local candidate and officeholder
associations violated Chevron step one
for the same reasons discussed above
regarding the same exclusion in the
GOTV regulation. Shays at 107 n.83.
To comport with this ruling, proposed
section 100.24(a)(4) would include
acquisition of voter lists in the
definition of ‘‘voter identification.’’
Thus, the acquisition of voter lists
would be considered FEA if it occurs
after the earliest filing deadline for the
ballot in an even-numbered year and
after the date is set for a special election
in which a candidate for Federal office
appears on the ballot. See 11 CFR
100.24(a)(1) and 100.24(b)(2). The
Commission would use the date the
information was purchased to determine
whether the acquisition of a voter list
falls within the FEA timeframes and
would therefore be a Federal election
activity. This interpretation would have
the advantage of being a bright-line rule
for the Commission and political
parties. In addition, this interpretation
would be consistent with the reporting
requirements, as a political party would
report the disbursement for a voter list
at the time of purchase. The
Commission seeks comment on whether
this application of the rule would
encourage State party committees to
purchase voter lists outside the FEA
window so that they would be able to
allocate their purchases under 11 CFR
106.7(d)(3) (using a mix of Federal and
non-Federal funds) rather than being
required to allocate under 11 CFR
300.33 (using a mix of Federal and
Levin funds). Do voter lists lose
sufficient value over time so that the
benefit of being able to use a mix of
Federal and non-Federal funds would
be outweighed by having an up-to-date
voter list closer to an election? Would
the use of the purchase date raise other
concerns?
Alternatively, the Commission also
seeks comment on an alternative
application of the rule that would use
the date the voter list was used to
determine whether the acquisition of a
voter list falls with the FEA timeframes
and would therefore be a Federal
election activity. Under this alternative,
a voter list that was purchased before
the FEA period would nonetheless be
subject, at least in part, to Federal and
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Levin funds requirements whenever it
was used within the FEA period.
Triggering the FEA provisions based on
the use of a voter list would discourage
any attempts to avoid those
requirements by purchasing a list early
for intended use during the FEA period.
However, this approach could raise
allocation and valuation issues if the
voter list is purchased outside the FEA
window and used by the political party
committee both inside and outside the
window.
The Commission is concerned about
how this proposed rule may affect a
State party committee’s ability to
acquire a voter list in preparation for a
general election in an odd-numbered
year in which a special election to fill
a Federal office is called
contemporaneously with its acquisition
of a voter list. The purpose of the
definition of ‘‘in connection with an
election in which a candidate for
Federal office appears on the ballot’’ in
11 CFR 100.24(a)(1) is to ensure that the
regulation would not affect activities
that are purely non-Federal in nature.
See Soft Money E&J, 67 FR at 49066. In
the situation described above, requiring
a State party committee to use Federal
funds to acquire a voter list that it will
use only for a general election where no
candidate for Federal office is on the
ballot may be beyond the purpose of the
regulations relating to Federal election
activity. The Commission seeks
comment on whether the regulation
should include a limited exception to
the definition of ‘‘voter identification’’
for acquisition of voter lists if the State,
or local party committee does not
actually use the voter list in connection
with any election where a Federal
candidate appears on the ballot.
Proposed section 100.24(a)(4) also
would remove the exception for
associations or groups of candidates for
State or local office, and associations of
State and local officeholders, that
engage in voter identification activity
that refers only to State or local
candidates. Is there another approach
that would address the Commission’s
concerns while still comporting with
Congressional intent, as determined by
the Shays court? As discussed above,
the Commission is also seeking public
comment regarding the impact of
removing this exception for groups of
non-Federal candidates, and the ability
of those groups to pay for FEA by
allocating between Federal and nonFederal funds under existing regulations
at 11 CFR 106.6.
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4. Proposed 11 CFR 100.24(a)(1)—
Definition of ‘‘In Connection With an
Election in Which a Candidate for
Federal Office Appears on the Ballot’’
Voter identification, GOTV, and
generic campaign activity constitute
FEA when those activities are
conducted ‘‘in connection with an
election in which a candidate for
Federal office appears on the ballot.’’ 2
U.S.C. 431(20)(A)(ii). In defining this
phrase, a Commission regulation
establishes the timeframe in which
these activities are FEA, and are
collectively ‘‘type 2 FEA.’’ 11 CFR
100.24(a)(1)(i) and (ii). The Commission
is considering whether to make some
limited exceptions and one change to
the operation of the type 2 FEA time
periods in current 11 CFR 100.24(a)(1)(i)
and (ii).
Proposed revisions to section
100.24(a)(1)(ii) would change the
operation of type 2 FEA time periods
that are related to special elections for
Federal office. Currently, this provision
is limited so that it only applies in odd
numbered years, and the proposed
revisions would eliminate this
limitation. While many special elections
that occur in even numbered years will
fall in time periods already covered by
paragraph (a)(1)(i), the removal of the
limitation could extend the type 2 FEA
time period when a State schedules a
special election for Federal office before
the type 2 FEA time period under
paragraph (a)(1)(i) has begun. The
Commission seeks comment on this
proposed change.
The Commission is concerned that
treating State party committees’ voter
drives that are related to a State or local
election as FEA because of an upcoming
special election for Federal office would
unduly federalize an election that was
initially scheduled to decide State and
local races. To address this issue, the
Commission is considering adopting an
exception to section 100.24(a)(1)(ii) so
that the type 2 FEA time periods would
not include the period before any
special election for Federal office that is
scheduled to be held on the same date
as a previously scheduled State or local
election. This exception does not appear
in the proposed rules that follow. Is
such an exception consistent with
FECA, as amended by BCRA? Would an
exception that is limited to voter drives
that refer only to State or local
candidates be too narrowly tailored to
address this concern? Alternatively,
should any voter drives that refer to
candidates for Federal office be
excluded from the exception so that the
FEA rules would still apply to such
voter drives?
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Proposed new section 100.24(a)(1)(iii)
would create an exception to type 2 FEA
time periods for certain municipal
elections. The municipal elections that
would be subject to the exception are
those that take place on a date other
than Federal election dates, but still
during the type 2 FEA timeframes
specified in 11 CFR 100.24(a)(1)(i). The
rationale for such an exception might be
that municipalities have chosen an
election date apart from State or Federal
elections in an effort to disentangle
State and Federal contests from local
elections to leave the local elections
nonpartisan. If that local election date is
nonetheless within the type 2 FEA
timeframes specified in 11 CFR
100.24(a)(1), then all of the FEA
requirements of Federal law would
apply, chief among them the
requirement that State, district or local
committees of political parties use only
Federal or a combination of Federal and
Levin funds to pay for type 2 FEA. 2
U.S.C. 441i(b).
The Commission seeks comment on
this proposed exception, which is
reflected in the proposed regulatory
language that follows. Is the exception
adequate to address the concerns? Is it
consistent with FECA, as amended by
BCRA? Do any practical considerations
tend either to support or to oppose such
an exception?
Alternatively, the regulation could be
revised to address the same concerns
more narrowly. One example of a more
limited exception would be to exclude
GOTV that takes place within 72 hours
before an election that does not include
an election for Federal office. The 72hour standard is borrowed from the
Commission’s first example of the nonexhaustive list of examples of GOTV in
11 CFR 100.24(a)(3)(i). The Commission
seeks comment on whether GOTV that
takes place only shortly before a local
election where no Federal candidates
are on the ballot may merit an exception
from the type 2 FEA time periods, while
an exception for other forms of FEA may
not be appropriate. Would any other
limitations on the exception be more
suitable? Please note that the proposed
regulation text that follows does not
reflect the more narrow alternative
exceptions to the type 2 FEA time
periods.
The Commission also seeks comment
on whether similar exceptions would be
appropriate for voter registration
activity, or type 1 FEA. BCRA
establishes that voter registration
activity is Federal election activity
‘‘during the period that begins on the
date that is 120 days before the date a
regularly scheduled Federal election is
held and ends on the date of the
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23071
election.’’ 2 U.S.C. 431(20)(A)(i). Would
any exceptions to this timeframe to
address any of the situations described
above be permissible under BCRA? If so,
should any such exceptions be adopted?
Certification of No Effect Pursuant to 5
U.S.C. 605(b) (Regulatory Flexibility
Act)
The Commission certifies that the
attached proposed rule, if promulgated,
would not have a significant economic
impact on a substantial number of small
entities. The basis for this certification
is that the organizations affected by this
proposed rule are State, district, and
local party committees, which are not
‘‘small entities’’ under 5 U.S.C. 601.
These not-for-profit committees do not
meet the definition of ‘‘small
organization’’ which requires that the
enterprise be independently owned and
operated and not dominant in its field.
5 U.S.C. 601(4). State political party
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 arena of their State and are
thus dominant in their field. 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 proposed rule is not
substantial.
List of Subjects in 11 CFR Part 100
Elections.
For reasons set out in the preamble,
subchapter A of chapter 1 of title 11 of
the Code of Federal Regulations would
be amended as follows:
PART 100—SCOPE AND DEFINITIONS
(2 U.S.C. 431)
1. The authority citation for 11 CFR
part 100 would continue to read as
follows:
Authority: 2 U.S.C. 431, 434, and 438(a)(8).
2. In § 100.24, paragraphs (1)(i), (ii),
(iii), (2), (3), and (4)(a) would be revised
to read as follows:
§ 100.24 Federal Election Activity (2 U.S.C.
431(20)).
(a) * * *
(1) * * *
E:\FR\FM\04MYP1.SGM
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Federal Register / Vol. 70, No. 85 / Wednesday, May 4, 2005 / Proposed Rules
(i) Except as provided in paragraph
(a)(1)(iii) of this section, the period of
time beginning on the date of the
earliest filing deadline for access to the
primary election ballot for Federal
candidates as determined by State law,
or in those States that do not conduct
primaries, on January 1 of each evennumbered year and ending on the date
of the general election, up to and
including the date of any general runoff.
(ii) The period beginning on the date
on which the date of a special election
in which a candidate for Federal office
appears on the ballot is set and ending
on the date of the special election.
(iii) In municipalities that elect local
officials in elections that do not
coincide with primary or general
elections for Federal office but occur
during the period described in
paragraph (a)(1)(i) of this section, the
following periods of time are excluded
from the periods described in
paragraphs (a)(1)(i) and (a)(1)(ii) of this
section:
(A) For municipalities that hold local
elections before primary elections for
Federal office, from the beginning of the
period described in paragraph (a)(1)(i)
up to and including the date of the
municipal election; and
(B) For municipalities that hold
primary elections for Federal office
before local elections, from the day after
the primary election for Federal office
up to and including the date of the
municipal election.
(2) Voter registration activity means
contacting individuals by telephone, in
person, or by other individualized
means to assist them in registering to
vote. Voter registration activity
includes, but is not limited to, printing
and distributing registration and voting
information, providing individuals with
voter registration forms, and assisting
individuals in the completion and filing
of such forms.
(3) Get-out-the-vote activity means
contacting registered voters by
telephone, in person, or by other
individualized means, to assist them in
engaging in the act of voting. Get-outthe-vote activity includes, but is not
limited to:
(i) Providing to individual voters,
within 72 hours of an election,
information such as the date of the
election, the times when polling places
are open, and the location of particular
polling places; and
(ii) Offering to transport or actually
transporting voters to the polls.
(4) Voter identification means
acquiring information about potential
voters, including, but not limited to,
obtaining voter lists and creating or
enhancing voter lists by verifying or
VerDate jul<14>2003
13:04 May 03, 2005
Jkt 205001
adding information about the voters’
likelihood of voting in an upcoming
election or their likelihood of voting for
specific candidates.
*
*
*
*
*
Dated: April 29, 2005.
Scott E. Thomas,
Chairman, Federal Election Commission.
[FR Doc. 05–8864 Filed 5–3–05; 8:45 am]
BILLING CODE 6715–01–P
FEDERAL ELECTION COMMISSION
11 CFR Parts 106 and 300
[NOTICE 2005–12]
State, District, and Local Party
Committee Payment of Certain Salaries
and Wages
Federal Election Commission.
Notice of proposed rulemaking.
AGENCY:
ACTION:
SUMMARY: The Federal Election
Commission is seeking comment on
proposed changes to regulations
regarding payments by State, district or
local party committees for salaries and
wages of employees who spend 25
percent or less of their compensated
time in a month on Federal election
activity and activity in connection with
Federal elections. Currently, these
committees may use funds whose only
restriction is that they comply with
State law. The proposed changes would
require these expenses to be paid using
at least some Federal funds, consistent
with the ruling of the United States
District Court for the District of
Columbia in Shays v. Federal Election
Commission. The Commission is
appealing this ruling to the DC Circuit.
In the interim, the Commission is
initiating this rulemaking. The
Commission has not made any final
decision on the issues presented in this
rulemaking. Further information is
provided in the supplementary
information that follows.
DATES: Comments must be received on
or before June 3, 2005. If the
Commission receives sufficient requests
to testify, it may hold a hearing on the
proposed rules. Anyone wishing to
testify at the hearing must file written
comments by the due date and must
include a request to testify in the
written comments.
ADDRESSES: All comments must be in
writing, addressed to Ms. Mai T. Dinh,
and submitted in either electronic,
facsimile, or hard copy form.
Commenters are strongly encouraged to
submit comments electronically to
ensure timely receipt and consideration.
Electronic comments must be sent to
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
either StatePartyWages@fec.gov or
submitted through the Federal
eRegulations Portal at https://
www.regulations.gov. If the electronic
comments include an attachment, the
attachment must be in the Adobe
Acrobat (.pdf) or Microsoft Word (.doc)
format. Faxed comments must be sent to
(202) 219–3923, with hard copy followup. Hard copy comments and hard copy
follow-up of faxed comments must be
sent to the Federal Election
Commission, 999 E Street, NW.,
Washington, DC 20463. All comments
must include the full name and postal
service address of the commenter or
they will not be considered. The
Commission will post comments on its
Web site after the comment period ends.
If the Commission decides a hearing is
necessary, the hearing will be held in
the Commission’s ninth floor meeting
room, 999 E Street NW., Washington,
DC.
Ms.
Mai T. Dinh, Assistant General Counsel,
or Mr. Anthony T. Buckley, Attorney,
999 E Street, NW., Washington, DC
20463, (202) 694–1650 or (800) 424–
9530.
FOR FURTHER INFORMATION CONTACT:
The
Bipartisan Campaign Reform Act of
2002 (‘‘BCRA’’), Pub. L. 107–155, 116
Stat. 81 (March 27, 2002), contained
extensive and detailed amendments to
the Federal Election Campaign Act of
1971, as amended (the ‘‘Act’’), 2 U.S.C.
431 et seq. Under BCRA, State, district
and local party committees (‘‘State party
committees’’) must pay the salaries and
wages of employees who spend more
than 25 percent of their compensated
time per month on Federal election
activity and activities in connection
with a Federal election (collectively
‘‘Federal-related activities’’) entirely
with Federal funds.1 2 U.S.C.
431(20)(A)(iv) and 441i(b)(1). However,
BCRA is silent on what type of funds
State party committees must use to pay
the salaries and wages of employees
who spend some, but not more than 25
percent, of their compensated time per
month on Federal-related activities. In
2002, the Commission promulgated 11
CFR 106.7(c)(1) and (d)(1)(i), and
300.33(c)(2) to address salaries and
wages for both types of employees.
Under these rules, State party
committees may pay the salaries or
wages of employees who spend 25
percent or less of their compensated
time each month on these activities
SUPPLEMENTARY INFORMATION:
1 ‘‘Federal funds’’ are funds that are subject to the
contribution limitations, source prohibitions, and
reporting requirements of the Act. 11 CFR 300.2(g).
E:\FR\FM\04MYP1.SGM
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Agencies
[Federal Register Volume 70, Number 85 (Wednesday, May 4, 2005)]
[Proposed Rules]
[Pages 23068-23072]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8864]
=======================================================================
-----------------------------------------------------------------------
FEDERAL ELECTION COMMISSION
11 CFR Part 100
[Notice 2005-13]
Definition of Federal Election Activity
AGENCY: Federal Election Commission.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Election Commission seeks comments on proposed
changes to its rules defining ``Federal election activity'' under the
Federal Election Campaign Act of 1971, as amended (``FECA''). The
proposed changes would retain the existing definition of ``voter
registration activity'' and modify the existing definitions of ``get-
out-the-vote activity'' and ``voter identification'' consistent with
the ruling of the U.S. District Court for the District of Columbia in
Shays v. FEC. The Commission has made no final decision on the issues
presented in this rulemaking. Further information is provided in the
supplementary information that follows.
DATES: Comments must be received on or before June 3, 2005. If the
Commission receives sufficient requests to testify, it may hold a
hearing on these proposed rules. Anyone wishing to testify at the
hearing must file written comments by the due date and must include a
request to testify in the written comments.
ADDRESSES: All comments must be in writing, addressed to Ms. Mai T.
Dinh, Assistant General Counsel, and submitted in either electronic,
facsimile or hard copy form. Commenters are strongly encouraged to
submit comments electronically to ensure timely receipt and
consideration. Electronic comments must be sent to either
FEAdef@fec.gov or submitted through the Federal eRegulations Portal at
https://www.regulations.gov. If the electronic comments include an
attachment, the attachment must be in Adobe Acrobat (.pdf) or Microsoft
Word (.doc) format. Faxed comments should be sent to (202) 219-3923,
with hard copy follow-up. Hard copy comments and hard copy follow-up of
faxed comments should be sent to the Federal Election Commission, 999 E
Street, NW., Washington, DC 20463. All comments must include the full
name and postal service address of the commenter or they will not be
considered. The Commission will post comments on its Web site after the
comment period ends. If the Commission decides a hearing is necessary,
the hearing will be held in the Commission's ninth floor meeting room,
999 E Street, NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ms. Mai T. Dinh, Assistant General
Counsel, Mr. J. Duane Pugh Jr., Senior Attorney, or Ms. Margaret G.
Perl, Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694-1650
or (800) 424-9530.
SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002
(``BCRA''), Public Law No. 107-155, 116 Stat. 81 (2002), amended FECA
by adding a new term, ``Federal election activity'' (``FEA''), that
describes certain activities that State, district, and local party
committees must pay for with either Federal funds \1\ or a combination
of Federal and Levin funds.\2\ 2 U.S.C. 431(20) and 441i(b)(1); see
also 2 U.S.C. 441i(d)(1) (prohibiting national, State, district or
local party committees from soliciting or directing non-Federal funds
to 501(c) tax-exempt organizations which engage in FEA); 2 U.S.C.
441i(e)(4) (limiting Federal candidate and officeholder solicitations
for funds on behalf of 501(c) tax-exempt organizations whose principal
purpose is to conduct certain types of FEA). The Commission further
defined FEA in 11 CFR 100.24. In Shays v. FEC, 337 F. Supp.2d 28, 101,
106-07 (D.D.C. 2004), appeal docketed, No. 04-5352 (D.C. Cir. Sept. 28,
2004) (``Shays''), the district court held that certain parts of the
definitions of ``voter registration activity'' and ``get-out-the-vote
activity'' (``GOTV'') in 11 CFR 100.24(a)(2) and (3), respectively, had
not been promulgated with adequate notice and opportunity for comment.
In addition, the district court held that certain aspects of the
definitions of ``get-out-the-vote activity'' and ``voter
identification'' in 11 CFR 100.24(a)(3) and (4), respectively, were
inconsistent with Congressional intent. Shays at 104, 107 n.83, and
108.\3\ The district court remanded the case for further action
consistent with the court's decision. The Commission has initiated this
rulemaking to comply with the district court order.
---------------------------------------------------------------------------
\1\ ``Federal funds'' are funds subject to the limitations,
prohibitions, and reporting requirements of the Act. See 11 CFR
300.2(g).
\2\ ``Levin funds'' are funds that are 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).
\3\ The district court described the first step of the Chevron
analysis, which courts use to review an agency's regulations: ``a
court firsts asks `whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress.' ''
See Shays at 51 (quoting Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 842-43 (1984)).
---------------------------------------------------------------------------
1. 11 CFR 100.24(a)(2)--Definition of ``Voter Registration Activity''
BCRA does not define ``voter registration activity'' other than to
specify that it is only FEA when it is conducted 120 days or fewer
before a regularly scheduled Federal election. See 2 U.S.C.
431(20)(A)(i). Current section 100.24(a)(2) defines voter registration
activity to mean ``contacting individuals by telephone, in person, or
by other individualized means to assist them in registering to vote.''
(Emphasis added). The definition also includes a non-exhaustive list of
examples of costs that are included, such as printing and distributing
registration and voting information, providing individuals with voter
registration forms, and assisting individuals in the completion and
filing of such forms.
In Shays, the plaintiffs argued that the requirement that voter
registration activity ``assist'' in the registration of voters
impermissibly narrowed the definition because it excludes from its
reach encouragement that does not constitute actual assistance. See
Shays at 98. The district court found that the Commission's
interpretation of section 431(20)(A) does not conflict with the
expressed intent of Congress. Shays at 99-100. ``[T]he Court note[d]
that it is possible to read the term `voter registration activity' to
encompass those activities that actually register persons to vote, as
opposed to those that only encourage persons to do so without more.
[citation omitted]. Moreover, the Court [did not] find based on the
record presented that the `common usage' of the term `voter
registration activity' necessarily includes the latter type of
activities.'' Id. at 99.\4\
---------------------------------------------------------------------------
\4\ The Court also noted an apparent discrepancy between 11 CFR
100.133 and 11 CFR 106.5(a)(2)(iv) with regard to the definition of
voter registration and get-out-the-vote activity. See Shays at 99
n.71, 103 n.77. However, any such comparison is no longer relevant
since the latter regulation sunsetted on December 31, 2002.
---------------------------------------------------------------------------
The court also held that the question of whether the regulation
satisfies step two of the Chevron test--whether the Commission's
interpretation of the statute is a permissible one--was not ripe for
review. While the court found that the regulation is not an
impermissible construction of BCRA,
[[Page 23069]]
the court concluded that it lacked sufficient guidance on the scope of
the regulation to determine whether it ``unduly compromises the Act's
purposes.'' Shays at 100 (citing Orloski v. FEC, 795 F.2d 156, 164
(D.C. Cir. 1986)). In this regard, the court noted that ``[w]hile it is
clear that mere encouragement does not fall within the scope of the
regulation, it is possible that encouragement coupled with a direction
of how one might register could constitute `assist[ance]' under the
provision.'' Shays at 100.
The district court also determined that the promulgation of this
regulation did not satisfy the APA's notice requirement because the
notice of proposed rulemaking did not indicate that the Commission
would seek to limit the term ``voter registration activity'' to those
activities that assist the registration of voters. See Shays at 100-01.
The Commission has, therefore, initiated this rulemaking to cure what
the court concluded was a notice problem and to consider the comments
it receives on the current rule.
The Commission is concerned that a definition of ``voter
registration activity'' that includes merely ``encouraging'' people to
register to vote may sweep too broadly. The current regulations seek to
balance the need to cover the core voter registration activity targeted
by the statute with the public policy interest of encouraging the civic
act of voting. Also, the Commission's experience indicates that
exhortations to register and vote are so frequent in political party
communications (and often spontaneous) that attaching any campaign
finance significance to every ``don't forget to vote'' uttered by
speakers at political party events or written in a political party
flyer may be unduly burdensome to the political party committees and
could overwhelm the administrative and enforcement capacity of the
Commission. As the Commission noted when it promulgated the regulation,
``[a] more expansive definition would run the risk that thousands of
political committees and grassroots organizations that merely
encouraged voting as a civic duty, who have never been subject to
Federal regulation for such conduct, would be swept into the extensive
reporting and filing requirements mandated under Federal law.'' See
Explanation and Justification for Regulations on Prohibited and
Excessive Contributions; Non-Federal Funds or Soft Money, 67 FR 49064,
49067 (July 29, 2002) (``Soft Money E&J''). Consequently, the proposed
regulation, which is identical to the current rule, would rely on the
individual contact and ``assist'' requirements to narrow the scope of
``voter registration activity'' to a standard that is enforceable, and
yet is otherwise as broad as possible.
Although the Commission is not proposing any changes to current 11
CFR 100.24(a)(2), it seeks comment on whether it should address the
concerns raised by the district court by amending the regulation,
expanding the explanation and justification for the final rules, or
providing guidance through a case-by-case application of the rules in
advisory opinions and the enforcement process. Substantively, the
Commission seeks comment on the following questions. Should the
Commission define ``assist'' to include encouragement coupled with a
direction as to how one might register? Does the ``assist'' limitation
or the ``individualized means'' requirement exclude any activities that
should be included in the definition of ``voter registration
activity?'' Are there other specific activities that the Commission
should include or exclude from the definition of ``voter registration
activity?''
2. Proposed 11 CFR 100.24(a)(3)--Definition of ``Get-Out-the-Vote
Activity''
In BCRA, Congress also included GOTV within the definition of FEA
without further defining the term. See 2 U.S.C. 431(20)(A)(ii). Current
section 100.24(a)(3) defines GOTV as ``contacting registered voters by
telephone, in person, or by other individualized means to assist them
in engaging in the act of voting.'' See 11 CFR 100.24(a)(3) (emphasis
added). For the reasons stated above, the current definition of GOTV
does not encompass merely encouraging voters to go to the polls.
Section 100.24(a)(3) includes an exception to the definition of GOTV
for communications by ``an association or similar group of candidates
for State or local office or of individuals holding State or local
office'' where those communications refer only to State or local
candidates. See 11 CFR 100.24(a)(3). In addition, the current rule
provides a non-exhaustive list of examples of GOTV activity such as
providing information to individual voters regarding the date, time and
location of polling places within 72 hours of an election, and offering
to transport, or actually transporting, voters to the polls. See 11 CFR
100.24(a)(3)(i)-(ii).
The district court found that the term ``get-out-the-vote
activity'' in section 431(20)(A)(ii) was not defined by Congress and
can be read in different ways, and concluded that excluding mere
encouragement of people to vote in section 100.24(a)(3) reflected a
permissible reading under Chevron step one. See Shays at 101-05. The
court also upheld the 72-hour provision, noting that current section
100.24(a)(3) makes clear that the list of examples is non-exhaustive.
However, the court expressed uncertainty regarding ``what, if any,
activity conducted outside the 72-hour window [in 11 CFR
100.24(a)(3)(i)] would be considered GOTV activity,'' and therefore, as
with the ``assist'' requirement in section 100.24(a)(2), could not
reach a decision as to Chevron step two. See Shays at 103 (emphasis in
original). With respect to the exception for State and local candidate
and officeholder associations in the current GOTV definition, the court
found that it ``runs contrary to Congress's clearly expressed intent''
as enacted in BCRA and fails step one of Chevron. See Shays at 104.
To conform to the district court's opinion, proposed section
100.24(a)(3) would remove the exception for communications by
associations or similar groups of candidates for State or local office,
or of State or local officeholders, that refer only to State or local
candidates. This exception was included in the 2002 rules because the
Commission was concerned that the underlying provision would require
Federal registration and reporting for a broad swath of State and local
election activity, ``sweep[ing] within Federal regulation candidates
for city council, or the local school board, who join together to
identify potential voters for their own candidacies. * * *'' See Soft
Money E&J, 67 FR at 49070. The Commission seeks public comment on
whether there are other alternatives to address the Commission's
concerns while still satisfying Congressional intent as determined by
the Shays court.
Further, what impact would there be from removing the exception for
groups of non-Federal candidates? Would such groups of non-Federal
candidates have to pay for the full amount of FEA with Federal funds?
Compare 2 U.S.C. 441i(b)(1) with (b)(2); see also 11 CFR 300.32(a)(1).
Could groups of non-Federal candidates that are political committees be
permitted to allocate under current 11 CFR 106.6 even though the FEA
allocation regulations at 11 CFR 300.33 do not apply to groups of non-
Federal candidates? See also 2 U.S.C. 441i(b)(2). In addition, would
groups of non-Federal candidates that are not political committees be
able to allocate their FEA given that they are not covered by 11 CFR
106.6?
The district court also held that the promulgated regulation
defining GOTV
[[Page 23070]]
did not meet the APA's notice requirement for the same reasons it
articulated with regard to the definition of ``voter registration
activity.'' See Shays at 106-07. The proposed rules do not include any
amendments to the ``assist'' requirement in section 100.24(a)(3), or
the non-exhaustive list of activities that constitute GOTV activities
in current 11 CFR 100.24(a)(3)(i) and (ii). The Commission included
these two examples of GOTV to assist in applying the regulation to
particular factual situations. The Shays court found that ``[t]he
regulation makes clear that the examples it provides are non-
exhaustive.'' Shays at 103. The Commission seeks comment on the
examples of GOTV activity identified in section 100.24(a)(3). Should
this non-exclusive list be changed in any way? Should the specific
reference to activity within 72 hours of an election be changed in any
way? Is 72 hours an appropriate period within which to specify activity
included as GOTV? Would some other time frame be appropriate? Should
the Commission provide more specificity as to when it will consider
activity taking place more than 72 hours before an election to be GOTV?
3. Proposed 11 CFR 100.24(a)(4)--Definition of ``Voter Identification''
``Voter identification'' is another term used in the BCRA
definition of FEA that is not defined by the statute. See 2 U.S.C.
431(20)(A)(ii). Current section 100.24(a)(4) defines voter
identification as ``creating or enhancing voter lists by verifying or
adding information about the voters' likelihood of voting in an
upcoming election or their likelihood of voting for specific
candidates.'' 11 CFR 100.24(a)(4). The current definition does not
include voter list acquisition because the Commission concluded that
political party committees may acquire voter lists for a number of
reasons other than for voter identification in connection with an
election in which a Federal candidate appears on the ballot. Such
reasons include fundraising and off-year party building activities. See
Soft Money E&J, 67 FR at 49069. Section 100.24(a)(4) also contains an
exception for associations of State or local candidates and/or
officeholders identical to the exception to the definition of GOTV in
section 100.24(a)(3).
The district court in Shays ``agree[d] that one may obtain a voter
list and not be engaged in an activity aimed at identifying voters. But
whatever the intent, inherent in the acquisition of such a list is the
identification of voters.'' Shays at 108. Because the court saw ``no
evidence that Congress intended to exclude certain forms of activities
that identify voters when it used the term `voter identification' ''
the court held that the Commission's decision not to include
acquisition of voter lists in the definition of ``voter
identification'' failed Chevron step one. Shays at 108 (emphasis in
original). The court held that the exception for State and local
candidate and officeholder associations violated Chevron step one for
the same reasons discussed above regarding the same exclusion in the
GOTV regulation. Shays at 107 n.83.
To comport with this ruling, proposed section 100.24(a)(4) would
include acquisition of voter lists in the definition of ``voter
identification.'' Thus, the acquisition of voter lists would be
considered FEA if it occurs after the earliest filing deadline for the
ballot in an even-numbered year and after the date is set for a special
election in which a candidate for Federal office appears on the ballot.
See 11 CFR 100.24(a)(1) and 100.24(b)(2). The Commission would use the
date the information was purchased to determine whether the acquisition
of a voter list falls within the FEA timeframes and would therefore be
a Federal election activity. This interpretation would have the
advantage of being a bright-line rule for the Commission and political
parties. In addition, this interpretation would be consistent with the
reporting requirements, as a political party would report the
disbursement for a voter list at the time of purchase. The Commission
seeks comment on whether this application of the rule would encourage
State party committees to purchase voter lists outside the FEA window
so that they would be able to allocate their purchases under 11 CFR
106.7(d)(3) (using a mix of Federal and non-Federal funds) rather than
being required to allocate under 11 CFR 300.33 (using a mix of Federal
and Levin funds). Do voter lists lose sufficient value over time so
that the benefit of being able to use a mix of Federal and non-Federal
funds would be outweighed by having an up-to-date voter list closer to
an election? Would the use of the purchase date raise other concerns?
Alternatively, the Commission also seeks comment on an alternative
application of the rule that would use the date the voter list was used
to determine whether the acquisition of a voter list falls with the FEA
timeframes and would therefore be a Federal election activity. Under
this alternative, a voter list that was purchased before the FEA period
would nonetheless be subject, at least in part, to Federal and Levin
funds requirements whenever it was used within the FEA period.
Triggering the FEA provisions based on the use of a voter list would
discourage any attempts to avoid those requirements by purchasing a
list early for intended use during the FEA period. However, this
approach could raise allocation and valuation issues if the voter list
is purchased outside the FEA window and used by the political party
committee both inside and outside the window.
The Commission is concerned about how this proposed rule may affect
a State party committee's ability to acquire a voter list in
preparation for a general election in an odd-numbered year in which a
special election to fill a Federal office is called contemporaneously
with its acquisition of a voter list. The purpose of the definition of
``in connection with an election in which a candidate for Federal
office appears on the ballot'' in 11 CFR 100.24(a)(1) is to ensure that
the regulation would not affect activities that are purely non-Federal
in nature. See Soft Money E&J, 67 FR at 49066. In the situation
described above, requiring a State party committee to use Federal funds
to acquire a voter list that it will use only for a general election
where no candidate for Federal office is on the ballot may be beyond
the purpose of the regulations relating to Federal election activity.
The Commission seeks comment on whether the regulation should include a
limited exception to the definition of ``voter identification'' for
acquisition of voter lists if the State, or local party committee does
not actually use the voter list in connection with any election where a
Federal candidate appears on the ballot.
Proposed section 100.24(a)(4) also would remove the exception for
associations or groups of candidates for State or local office, and
associations of State and local officeholders, that engage in voter
identification activity that refers only to State or local candidates.
Is there another approach that would address the Commission's concerns
while still comporting with Congressional intent, as determined by the
Shays court? As discussed above, the Commission is also seeking public
comment regarding the impact of removing this exception for groups of
non-Federal candidates, and the ability of those groups to pay for FEA
by allocating between Federal and non-Federal funds under existing
regulations at 11 CFR 106.6.
[[Page 23071]]
4. Proposed 11 CFR 100.24(a)(1)--Definition of ``In Connection With an
Election in Which a Candidate for Federal Office Appears on the
Ballot''
Voter identification, GOTV, and generic campaign activity
constitute FEA when those activities are conducted ``in connection with
an election in which a candidate for Federal office appears on the
ballot.'' 2 U.S.C. 431(20)(A)(ii). In defining this phrase, a
Commission regulation establishes the timeframe in which these
activities are FEA, and are collectively ``type 2 FEA.'' 11 CFR
100.24(a)(1)(i) and (ii). The Commission is considering whether to make
some limited exceptions and one change to the operation of the type 2
FEA time periods in current 11 CFR 100.24(a)(1)(i) and (ii).
Proposed revisions to section 100.24(a)(1)(ii) would change the
operation of type 2 FEA time periods that are related to special
elections for Federal office. Currently, this provision is limited so
that it only applies in odd numbered years, and the proposed revisions
would eliminate this limitation. While many special elections that
occur in even numbered years will fall in time periods already covered
by paragraph (a)(1)(i), the removal of the limitation could extend the
type 2 FEA time period when a State schedules a special election for
Federal office before the type 2 FEA time period under paragraph
(a)(1)(i) has begun. The Commission seeks comment on this proposed
change.
The Commission is concerned that treating State party committees'
voter drives that are related to a State or local election as FEA
because of an upcoming special election for Federal office would unduly
federalize an election that was initially scheduled to decide State and
local races. To address this issue, the Commission is considering
adopting an exception to section 100.24(a)(1)(ii) so that the type 2
FEA time periods would not include the period before any special
election for Federal office that is scheduled to be held on the same
date as a previously scheduled State or local election. This exception
does not appear in the proposed rules that follow. Is such an exception
consistent with FECA, as amended by BCRA? Would an exception that is
limited to voter drives that refer only to State or local candidates be
too narrowly tailored to address this concern? Alternatively, should
any voter drives that refer to candidates for Federal office be
excluded from the exception so that the FEA rules would still apply to
such voter drives?
Proposed new section 100.24(a)(1)(iii) would create an exception to
type 2 FEA time periods for certain municipal elections. The municipal
elections that would be subject to the exception are those that take
place on a date other than Federal election dates, but still during the
type 2 FEA timeframes specified in 11 CFR 100.24(a)(1)(i). The
rationale for such an exception might be that municipalities have
chosen an election date apart from State or Federal elections in an
effort to disentangle State and Federal contests from local elections
to leave the local elections nonpartisan. If that local election date
is nonetheless within the type 2 FEA timeframes specified in 11 CFR
100.24(a)(1), then all of the FEA requirements of Federal law would
apply, chief among them the requirement that State, district or local
committees of political parties use only Federal or a combination of
Federal and Levin funds to pay for type 2 FEA. 2 U.S.C. 441i(b).
The Commission seeks comment on this proposed exception, which is
reflected in the proposed regulatory language that follows. Is the
exception adequate to address the concerns? Is it consistent with FECA,
as amended by BCRA? Do any practical considerations tend either to
support or to oppose such an exception?
Alternatively, the regulation could be revised to address the same
concerns more narrowly. One example of a more limited exception would
be to exclude GOTV that takes place within 72 hours before an election
that does not include an election for Federal office. The 72-hour
standard is borrowed from the Commission's first example of the non-
exhaustive list of examples of GOTV in 11 CFR 100.24(a)(3)(i). The
Commission seeks comment on whether GOTV that takes place only shortly
before a local election where no Federal candidates are on the ballot
may merit an exception from the type 2 FEA time periods, while an
exception for other forms of FEA may not be appropriate. Would any
other limitations on the exception be more suitable? Please note that
the proposed regulation text that follows does not reflect the more
narrow alternative exceptions to the type 2 FEA time periods.
The Commission also seeks comment on whether similar exceptions
would be appropriate for voter registration activity, or type 1 FEA.
BCRA establishes that voter registration activity is Federal election
activity ``during the period that begins on the date that is 120 days
before the date a regularly scheduled Federal election is held and ends
on the date of the election.'' 2 U.S.C. 431(20)(A)(i). Would any
exceptions to this timeframe to address any of the situations described
above be permissible under BCRA? If so, should any such exceptions be
adopted?
Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory
Flexibility Act)
The Commission certifies that the attached proposed rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities. The basis for this certification
is that the organizations affected by this proposed rule are State,
district, and local party committees, which are not ``small entities''
under 5 U.S.C. 601. These not-for-profit committees do not meet the
definition of ``small organization'' which requires that the enterprise
be independently owned and operated and not dominant in its field. 5
U.S.C. 601(4). State political party 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 arena of their State and are thus dominant in their field.
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 proposed rule is not substantial.
List of Subjects in 11 CFR Part 100
Elections.
For reasons set out in the preamble, subchapter A of chapter 1 of
title 11 of the Code of Federal Regulations would be amended as
follows:
PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)
1. The authority citation for 11 CFR part 100 would continue to
read as follows:
Authority: 2 U.S.C. 431, 434, and 438(a)(8).
2. In Sec. 100.24, paragraphs (1)(i), (ii), (iii), (2), (3), and
(4)(a) would be revised to read as follows:
Sec. 100.24 Federal Election Activity (2 U.S.C. 431(20)).
(a) * * *
(1) * * *
[[Page 23072]]
(i) Except as provided in paragraph (a)(1)(iii) of this section,
the period of time beginning on the date of the earliest filing
deadline for access to the primary election ballot for Federal
candidates as determined by State law, or in those States that do not
conduct primaries, on January 1 of each even-numbered year and ending
on the date of the general election, up to and including the date of
any general runoff.
(ii) The period beginning on the date on which the date of a
special election in which a candidate for Federal office appears on the
ballot is set and ending on the date of the special election.
(iii) In municipalities that elect local officials in elections
that do not coincide with primary or general elections for Federal
office but occur during the period described in paragraph (a)(1)(i) of
this section, the following periods of time are excluded from the
periods described in paragraphs (a)(1)(i) and (a)(1)(ii) of this
section:
(A) For municipalities that hold local elections before primary
elections for Federal office, from the beginning of the period
described in paragraph (a)(1)(i) up to and including the date of the
municipal election; and
(B) For municipalities that hold primary elections for Federal
office before local elections, from the day after the primary election
for Federal office up to and including the date of the municipal
election.
(2) Voter registration activity means contacting individuals by
telephone, in person, or by other individualized means to assist them
in registering to vote. Voter registration activity includes, but is
not limited to, printing and distributing registration and voting
information, providing individuals with voter registration forms, and
assisting individuals in the completion and filing of such forms.
(3) Get-out-the-vote activity means contacting registered voters by
telephone, in person, or by other individualized means, to assist them
in engaging in the act of voting. Get-out-the-vote activity includes,
but is not limited to:
(i) Providing to individual voters, within 72 hours of an election,
information such as the date of the election, the times when polling
places are open, and the location of particular polling places; and
(ii) Offering to transport or actually transporting voters to the
polls.
(4) Voter identification means acquiring information about
potential voters, including, but not limited to, obtaining voter lists
and creating or enhancing voter lists by verifying or adding
information about the voters' likelihood of voting in an upcoming
election or their likelihood of voting for specific candidates.
* * * * *
Dated: April 29, 2005.
Scott E. Thomas,
Chairman, Federal Election Commission.
[FR Doc. 05-8864 Filed 5-3-05; 8:45 am]
BILLING CODE 6715-01-P