Coordinated Communications, 73946-73959 [E5-7293]

Agencies

• Federal Election Commission

[Federal Register Volume 70, Number 239 (Wednesday, December 14, 2005)]
[Proposed Rules]
[Pages 73946-73959]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-7293]


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FEDERAL ELECTION COMMISSION

11 CFR Part 109

[Notice 2005-28]


 Coordinated Communications

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Election Commission requests comment on proposed 
revisions to its regulations regarding communications that have been 
coordinated with Federal candidates and political party committees. The 
Commission's current rules set out a three-prong test for determining 
whether a communication is ``coordinated'' with, and therefore an in-
kind contribution to, a Federal candidate or a political party 
committee. In Shays v. FEC, the Court of Appeals invalidated one aspect 
of the so-called content prong of the coordinated communications test, 
because the court believed that the Commission had not provided 
adequate explanation and justification for the current rules under the 
Administrative Procedure Act. To comply with the decision of the Court 
of Appeals, and to address other issues involving the coordinated 
communication rules, the Commission is issuing this Notice of Proposed 
Rulemaking. No final decision has been made by the Commission 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 January 13, 2006. The 
Commission will hold a hearing on the proposed rules on January 25 or 
26, 2006, or both at 9:30 a.m. 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, must be addressed to Mr. 
Brad C. Deutsch, Assistant General Counsel, and must be submitted in 
either e-mail, facsimile, or paper copy form. Commenters are strongly 
encouraged to submit comments by e-mail or fax to

[[Page 73947]]

ensure timely receipt and consideration. E-mail comments must be sent 
to either coordination@fec.gov or submitted through the Federal 
eRegulations Portal at www.regulations.gov. If e-mail comments include 
an attachment, the attachment must be in either Adobe Acrobat (.pdf) or 
Microsoft Word (.doc) format. Faxed comments must be sent to (202) 219-
3923, with paper copy follow-up. Paper comments and paper 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 website after 
the comment period ends. The hearing will be held in the Commission's 
ninth-floor meeting room, 999 E Street, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mr. Brad C. Deutsch, Assistant General 
Counsel, Ms. Amy Rothstein, or Mr. Ron B. Katwan, Attorneys, 999 E 
Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002, 
Pub. L. 107-155, 116 Stat. 81 (2002) (``BCRA''), amended the Federal 
Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. (the 
``Act''), in a number of respects. In the portion of BCRA relevant to 
this proceeding, Congress repealed the Commission's pre-BCRA 
regulations regarding ``coordinated general public political 
communications'' and directed the Commission to promulgate new 
regulations on ``coordinated communications'' in their place. Pub. L. 
107-155, sec. 214(b), (c) (2002). On December 17, 2002, the Commission 
adopted regulations at 11 CFR 109.21 to implement BCRA's provisions 
regarding payments for communications that are coordinated with a 
candidate, a candidate's authorized committee, or a political party 
committee. See Final Rules and Explanation and Justification on 
Coordinated and Independent Expenditures, 68 FR 421 (Jan. 3, 2003) 
(``2002 Coordination Final Rules'').
    Under the Act, as amended by BCRA, an expenditure ``made by any 
person in cooperation, consultation, or concert, with, or at the 
request or suggestion of'' a Federal candidate, a candidate's 
authorized committee, the national, State, or local committee of a 
political party, or agents of any of the foregoing, is an in-kind 
contribution to the candidate or political party committee with which 
it has been coordinated, and is thus subject to the limitations, 
prohibitions, and reporting requirements of the Act. 2 U.S.C. 
441a(a)(7)(B)(i) and (ii). An ``expenditure'' is any payment ``made by 
any person for the purpose of influencing any election for Federal 
office.'' \1\ 2 U.S.C. 431(9)(A)(i).
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    \1\ In addition, the Act specifically provides that the 
financing of the republication of campaign materials prepared by the 
candidate, the candidate's authorized committee, or agents thereof, 
is an expenditure. 2 U.S.C. 441a(a)(7)(B)(iii).
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    Thus, under the Act, a payment for a communication constitutes an 
in-kind contribution if two conditions are satisfied. First, the 
payment must qualify as an ``expenditure''; that is, it must be made 
for the purpose of influencing a Federal election. Second, the payment 
must be made ``in cooperation, consultation, or concert, with, or at 
the request or suggestion of'' a candidate or political party committee 
or agents thereof. In addition, the Act provides that any disbursement 
for an ``electioneering communication'' \2\ that is coordinated with a 
candidate, a candidate's authorized committee, a political party 
committee, or agents thereof, is an in-kind contribution to the 
candidate or political party supported by the communication. 2 U.S.C. 
441a(a)(7)(C).
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    \2\ The Act and Commission regulations define an electioneering 
communication as any broadcast, cable, or satellite communication 
that (1) refers to a clearly identified candidate for Federal 
office; (2) is publicly distributed within 60 days before a general 
election or 30 days before a primary election for the office sought 
by the candidate referenced in the communication; and (3) can be 
received by 50,000 or more persons within the geographic area that 
the candidate referenced in the communication seeks to represent. 
See 2 U.S.C. 434(f)(3)(C); 11 CFR 100.29.
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    To implement these provisions of the Act, 11 CFR 109.21 sets forth 
a three-prong test for determining whether a communication is a 
coordinated communication, and therefore an in-kind contribution to, a 
candidate, a candidate's authorized committee, or a political party 
committee. See 11 CFR 109.21(a). First, the communication must be paid 
for by someone other than a candidate, a candidate's authorized 
committee, a political party committee, or their agents (the ``payment 
prong''). See 11 CFR 109.21(a)(1). Second, the communication must meet 
one of four content standards (the ``content prong''). See 11 CFR 
109.21(a)(2) and (c). Third, the communication must meet one of five 
conduct standards (the ``conduct prong''). See 11 CFR 109.21(a)(3) and 
(d). A communication must satisfy all three prongs to be a 
``coordinated communication.''

I. The Content Prong

    This rulemaking is being initiated in response to court decisions 
that invalidated one aspect of the ``content prong'' of the coordinated 
communication test. See Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) 
(``Shays District''), aff'd, Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) 
(``Shays Appeal'') (pet. for reh'g en banc denied Oct. 21, 2005) (No. 
04-5352). As described more fully below, the District Court held the 
content prong as a whole to be invalid, while the Court of Appeals held 
the Commission's justification for one aspect of the content prong 
(specifically, the 120-day time frame in the fourth content standard) 
to be inadequate.
    The purpose of the content prong is to ``ensure that the 
coordination regulations do not inadvertently encompass communications 
that are not made for the purpose of influencing a Federal election.'' 
2002 Coordination Final Rules at 426. Accordingly, each of the four 
content standards that comprise the ``content prong'' identifies a 
category of communications that satisfies the content prong because its 
``subject matter is reasonably related to an election.'' Id. at 427.
    The first content standard is satisfied if the communication is an 
electioneering communication. See 11 CFR 109.21(c)(1). This content 
standard implements the statutory directive, described above, that 
disbursements for coordinated electioneering communications be treated 
as in-kind contributions to the candidate or political party supported 
by the communication.
    The second content standard is satisfied by a public communication 
\3\ made at any time that disseminates, distributes, or republishes 
campaign materials prepared by the candidate, the

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candidate's authorized committee, or agents thereof. See 11 CFR 
109.21(c)(2). This content standard implements the Congressional 
mandate that the Commission's rules on coordinated communications 
address the ``republication of campaign materials.'' See Pub. L. 107-
155, sec. 214(c)(1) (2002).
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    \3\ 11 CFR 100.26 defines ``public communication'' as ``a 
communication by means of any broadcast, cable or satellite 
communication, newspaper, magazine, outdoor advertising facility, 
mass mailing or telephone bank to the general public, or any other 
form of general public political advertising. The term public 
communication shall not include communications over the Internet.'' 
The District Court rejected the definition of ``public 
communication'' in the Commission's regulations because the 
definition categorically excludes all Internet communications. Shays 
District at 70. To comply with the Shays District decision, the 
Commission issued a Notice of Proposed Rulemaking that proposes to 
include certain Internet communications in the definition of 
``public communication.'' See Notice of Proposed Rulemaking on 
Internet Communications, 70 FR 16967 (April 4, 2005). The proposed 
revision to the definition of ``public communication'' would have 
the effect of including certain Internet communications in the 
definition of ``coordinated communication,'' as well. The Commission 
has not yet issued final rules in this rulemaking.
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    The third content standard is satisfied if a public communication 
made at any time expressly advocates the election or defeat of a 
clearly identified candidate for Federal office. See 11 CFR 
109.21(c)(3); see also 11 CFR 100.22. The Commission concluded that 
express advocacy communications, no matter when such communications are 
made, can be reasonably construed only as for the purpose of 
influencing an election.
    The fourth content standard is satisfied if a public communication 
(1) refers to a political party or a clearly identified Federal 
candidate; (2) is publicly distributed or publicly disseminated 120 
days or fewer before an election; \4\ and (3) is directed to voters in 
the jurisdiction of the clearly identified Federal candidate or to 
voters in a jurisdiction in which one or more candidates of the 
political party appear on the ballot. See 11 CFR 109.21(c)(4).
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    \4\ The term ``election'' includes general elections, primary 
elections, runoff elections, caucuses or conventions, and special 
elections. See 11 CFR 100.2.
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    In adopting the 120-day time frame for public communications for 
the fourth content standard, the Commission sought to create a bright-
line rule for public communications that fall short of express advocacy 
and do not republish campaign materials. The 120-day time frame 
``focuses the regulation on activity reasonably close to an election, 
but not so distant from the election as to implicate political 
discussion at other times.'' 2002 Coordination Final Rules at 430. The 
Commission noted that its intent was ``to require as little 
characterization of the meaning or the content of the communication, or 
inquiry into the subjective effect of the communication on the reader, 
viewer, or listener as possible.'' 2002 Coordination Final Rules at 430 
(citing Buckley v. Valeo, 424 U.S. 1, 42-44 (1976)). The Commission 
emphasized that the regulation ``is applied by asking if certain things 
are true or false about the face of the public communication or with 
limited reference to external facts on the public record.'' Id.
    In adopting this time frame, the Commission relied on the fact 
that, in BCRA, Congress defined ``Federal election activity'' 
(``FEA''), in part, as voter registration activity ``during the period 
that begins on the date that is 120 days'' before a Federal election. 
The Commission reasoned that, in doing so, Congress ``deem[ed] that 
period of time before an election to be reasonably related to that 
election.'' Id. (citing 2 U.S.C. 431(20)(A)(i)).

II. Overview of Court Decisions in Shays v. FEC

    In Shays District, the District Court held that the Commission's 
coordinated communication regulations did not survive the second step 
of Chevron review.\5\ Shays District at 61-62. Specifically, the court 
concluded that limiting the coordinated communication definition to 
communications that satisfy the content standards at 11 CFR 
109.21(c)(1) through (4) would ``undercut[] [the Act's] statutory 
purpose of regulating campaign finance and preventing circumvention of 
the campaign finance rules.'' Id. at 63. The District Court reasoned 
that communications that have been coordinated with a candidate, a 
candidate's authorized committee, or a political party committee have 
value for, and therefore are in-kind contributions to, that candidate 
or committee, regardless of the content, timing, or geographic reach of 
the communications. See Shays District at 63-64.
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    \5\ The District Court described the first step of the Chevron 
analysis, which courts use to review an agency's regulations: ``a 
court first 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 District, at 51 (quoting Chevron, U.S.A., Inc. v. Natural 
Res. Def. Council, 467 U.S. 837, 842-43 (1984)). According to the 
District Court, in the second step of the Chevron analysis, the 
court determines if the agency's interpretation is a permissible 
construction of the statute that does not ``unduly compromise'' [the 
Act's] purposes by ``creat[ing] the potential for gross abuse.'' See 
Shays District at 91, citing Orloski v. FEC, 795 F.2d 156, 164-65 
(D.C. Cir. 1986) (internal citations omitted).
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    The Court of Appeals, however, disagreed ``with the district 
court's suggestion that any standard looking beyond collaboration to 
content would necessarily `create an immense loophole,' thus exceeding 
the range of permissible readings under Chevron step two.'' Shays 
Appeal at 99-100. The Court of Appeals noted that ``we can hardly fault 
the [Commission's] effort to develop an objective, bright-line test 
[that] does not unduly compromise the Act's purposes.'' Shays Appeal at 
99 (internal quotations omitted). Moreover, the Court of Appeals 
expressly ``reject[ed] Shays and Meehan's argument that [the Act] 
precludes content-based standards under Chevron Step One.'' Id. As the 
Court of Appeals emphasized, ``time, place, and content may be critical 
indicia of communicative purpose. While election-related intent is 
obvious, for example, in statements urging voters to `elect' or 
`defeat' a specified candidate or party, the same may not be true of 
[other types of] ads [.]'' Id. Instead, the Court of Appeals found that 
``the challenged regulation's fatal defect is not that the [Commission] 
drew distinctions based on content, time, and place, but rather that, 
contrary to the [Administrative Procedure Act], the Commission offered 
no persuasive justification for * * * the 120-day time-frame and the 
weak restraints applying outside of it.'' Id. at 100. Specifically, the 
Court of Appeals concluded that, by limiting ``coordinated 
communications'' made outside of the 120-day window to communications 
containing express advocacy or the republication of campaign materials, 
``the [Commission] has in effect allowed a coordinated communication 
free-for-all for much of each election cycle.'' Id.
    The Court of Appeals found that the Commission had not adequately 
explained why ``120 days reasonably defines the period before an 
election when non-express advocacy likely relates to purposes other 
than `influencing' a Federal election.'' Id. at 101. Regarding the 
Commission's reliance on Congress's use of a 120-day time frame in 
BCRA's definition of FEA as voter registration activity, the Court 
observed that the Commission had provided no evidence that voter 
registration activity occurs on cycles similar to ``coordinated 
communications.'' Id. at 100.
    For these reasons, the Court of Appeals concluded that the 
Commission had not provided adequate explanation under the 
Administrative Procedure Act (``APA'') for the Commission's decision to 
exclude communications distributed more than 120 days before an 
election, unless a communication contains express advocacy or 
republishes campaign materials. Therefore, the Court of Appeals 
affirmed the District Court's invalidation of the Commission's 
coordinated communication rules. Id. at 101.

III. Alternative Proposals for Revising the Content Prong in 11 CFR 
109.21(c)

    The Commission is considering the seven alternatives described 
below to comply with the Court of Appeals decision in Shays Appeal. The 
regulatory text for each alternative,

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except one,\6\ is set forth at the end of this NPRM. The Commission 
seeks comment on each alternative, including responses to the following 
questions: Is the alternative too broad or too narrow? Would the 
alternative potentially include public communications that are not made 
for the purpose of influencing a Federal election and that therefore 
should not be restricted and treated as in-kind contributions? 
Conversely, would the alternative potentially exclude public 
communications that are made for the purpose of influencing a Federal 
election and therefore should be treated as an in-kind contribution, 
provided that the payment and conduct prongs are also satisfied? The 
Commission invites commenters to provide examples of communications 
from previous election cycles demonstrating that an alternative may be 
either underinclusive or overinclusive. Would the alternative address 
the Court of Appeals' concerns regarding the potential for 
circumvention of the Act and for corruption or the appearance of 
corruption? Would the alternative properly effectuate congressional 
intent? Would the alternative provide sufficient guidance to 
individuals and organizations seeking to be actively involved in 
politics and to comply with the Commission's coordination rules?
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    \6\ See note 11 below.
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    The Commission notes that the alternatives presented in this NPRM 
are not limited to the exact terms of the regulatory language set forth 
for each alternative at the end of the NPRM. Instead, as the narrative 
describing each alternative makes clear, the final rules may be a 
variation of one of the alternatives or even a combination of 
components from different alternatives. The Commission specifically 
invites comment on whether a combination of components from several 
different alternatives would be appropriate. The Commission also seeks 
comment on whether it should adopt a content standard that is not 
presented as one of the alternatives in this NPRM.
    In addition, given that the content prong and the conduct prong of 
the coordinated communication test were intended to work together, the 
Commission seeks comment on whether adopting a given alternative with 
respect to the content prong would necessitate changing the conduct 
prong in 11 CFR 109.21(d) to ensure that only communications made for 
the purpose of influencing a Federal election are covered. If so, what 
amendments to the conduct prong should the Commission consider making?

Alternative 1--Retain Current 11 CFR 109.21(c)(4) but Revise the 
Explanation and Justification

    Alternative 1 would retain the current coordinated communication 
test at 11 CFR 109.21, including the 120-day time frame in the fourth 
content standard at 11 CFR 109.21(c)(4)(ii), but would revise the 
Explanation and Justification for 11 CFR 109.21(c)(4)(ii) by providing 
further explanation supporting the 120-day time frame.\7\
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    \7\ Although this first alternative proposal to implement the 
appellate court's decision in Shays Appeal would not change 11 CFR 
109.21(c)(4), the regulatory text of Alternative 1 as set forth at 
the end of this NPRM reflects proposed changes to 11 CFR 
109.21(c)(4)(ii), to address situations in which multiple candidates 
for Federal office appear in a given public communication. See 
Section IV-3 below.
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    The Court of Appeals emphasized that justifying the 120-day time 
frame, or another time frame, requires the Commission to undertake a 
factual inquiry to determine whether the temporal line that it draws 
``reasonably defines the period before an election when non-express 
advocacy likely relates to purposes other than `influencing' a Federal 
election'' or whether it ``will permit exactly what BCRA aims to 
prevent: evasion of campaign finance restrictions through unregulated 
collaboration.'' Shays Appeal at 101-02. Accordingly, the Commission 
seeks comment on the following questions raised by the Court of Appeals 
in Shays Appeal regarding the 120-day time frame:
    (1) Are a significant number of communications outside the 120-day 
period made for the purpose of influencing Federal elections, or are 
communications to influence Federal elections predominantly made within 
120 days of an election? Are there specific examples from the 2004 
election cycle of communications that the current coordination rules 
should have reached but did not or, conversely, examples of 
communications that the current rules should not have reached but did? 
Id. at 102.
    (2) Do communications made for the purpose of influencing House, 
Senate, and Presidential races--all covered by this rule--occur during 
approximately the same periods in relation to the general election or 
the primary election, or should different time frames apply to each? 
Id.
    (3) If the Commission were to retain the 120-day time frame, would 
persons aiming to influence elections shift spending outside of that 
period to avoid the rules' restrictions? Would the same phenomenon 
potentially take place if the Commission adopted a time frame longer or 
shorter than 120 days before a Federal election? In 2004, was there any 
evidence that spending shifted outside the 120-day period to avoid the 
rules' restrictions? Id.
    The Commission specifically invites comments in the form of 
empirical data that show the time periods before an election in which 
electoral communications generally occur. Do outside persons make 
electoral communications during time frames that differ from candidates 
or parties? Do early electoral communications, for example, that occur 
more than 120 days before an election, have an effect on election 
results?
    On its website, the Commission posts reports filed pursuant to the 
Act and Commission regulations. Some of these reports include 
information on independent expenditures by political committees filed 
under 11 CFR 104.4 and by persons other than political committees under 
11 CFR 109.10. Additionally, all political committees must report 
coordinated expenditures along with all other in-kind contributions 
under 11 CFR 109.21(b)(3), while political party committees must report 
their coordinated party expenditures separately under 11 CFR 109.37. 
See Form 3X, line 25 (summarizing entries from Schedule F). For the 
convenience of commenters, the Commission has extracted these data from 
the reports and posted them on its website.\8\ Do the data provide an 
empirical basis for retaining the 120-day time frame or establishing 
another time frame? For example, the data appear to indicate that, 
during the 2004 election cycle, (1) coordinated party expenditures made 
in connection with the general election were made mostly after 
September 1, 2004--roughly within 60 days of the general election, and 
(2) independent expenditures were made mostly after July 27, 2004--
roughly within 90 days of the general election.\9\ The Commission 
invites statistical analyses of these data. Specifically, to what 
extent is it possible to extrapolate from any identified patterns in 
party committee coordinated expenditures to

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expenditures for coordinated communications by outside groups? Do the 
data support the conclusion that communications made for the purpose of 
influencing an election are almost always made, or are generally made, 
within the last 60 to 90 days before an election?
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    \8\ These data are available at https://www.fec.gov/press/
coordruledata.shtml.
    \9\ A political party committee authorized to make coordinated 
expenditures may make such expenditures in connection with the 
general election before or after its candidate has been nominated. 
See 2 U.S.C. 441a(d), 11 CFR 109.34. See also 11 CFR 109.32(a). 
Generally, it is less likely that such expenditures would be made 
much before a candidate has been nominated. The Commission also 
notes that expenditures reported by political party committees as 
``coordinated expenditures'' include not only expenditures for 
communications but also all other coordinated expenditures.
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    The Commission also seeks comment on whether other existing 
analyses provide a basis for choosing a particular time frame. See, 
e.g., Michael M. Franz et al., The Election after Reform: Money, 
Politics and the Bipartisan Campaign Reform Act ch. 7 (Michael J. 
Malbin ed., Rowman and Littlefield, forthcoming Mar. 2006), available 
at https://www.cfinst.org/studies/ElectionAfterReform/chapters.html; Ken 
Goldstein & Joel Rivlin, Political Advertising in the 2002 Elections 
ch. 3 (forthcoming), available at https://polisci.wisc.edu/
tvadvertising; Craig B. Holman, Buying Time 2000: Television 
Advertising in the 2000 Federal Elections 52-59 (2001), available at 
https://www.brennancenter.org/programs/buyingtime2000.html; Jonathan 
Krasno & Kenneth Goldstein, The Facts About Television Advertising and 
the McCain-Feingold Bill, 35(2) PS: Political Science and Politics 207 
(2002), draft available at https://www.cfinst.org/studies/papers/
goldstein&krasno.pdf; Donald F. McGahn, Remarks at Campaign Finance 
Reform Forum, Campaign Finance Institute (Jan. 14, 2005),\10\ available 
at www.cfinst.org/transcripts/pdf/1-14-05_Transcript_PanelThree.pdf.; 
see also data compiled by the University of Wisconsin Advertising 
Project, available at https://polisci.wisc.edu/tvadvertising.
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    \10\ ``The hotspot of the campaign didn't start until late 
September. * * * This cycle was very compressed when it came to the 
heavy spending. It eventually had in essence a four-week sprint as 
opposed to the eight- to ten-week sprint that we used to pay for.''
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Alternative 2--Adopt a Different Time Frame

    The Commission seeks comment on whether a time frame other than 120 
days would be more appropriate in bringing public communications that 
are made for the purpose of influencing a Federal election within the 
coordination regulations, while filtering out public communications 
that are not made for this purpose.\11\ Does empirical evidence support 
the adoption of a different time frame? Some States hold primary 
elections early in the election year. Under the current rule, a public 
communication that refers to a clearly identified candidate and is 
distributed within the 120-day period preceding a primary election 
would satisfy the content standard at 11 CFR 109.21(c)(4), but the same 
public communication distributed shortly after the primary but still 
more than 120 days before the subsequent general election would not 
satisfy that standard. Accordingly, rather than retain the current rule 
covering communications made within the 120-day period before an 
election, whether primary or general, should the Commission adopt a 
time frame that covers an uninterrupted period of time starting 120 
days (or some other time period) before the primary election up to and 
including the day of the general election?
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    \11\ Because Alternative 2 does not propose a specific time 
frame, this NPRM does not set forth regulatory text for Alternative 
2.
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    The Commission also invites comment on whether to adopt a time 
frame covering the period from January 1 of each election year through 
the day of the general election. Would such an ``election year'' time 
frame begin too late for States that hold primaries early in the year? 
Conversely, would an ``election year'' time frame begin too early for 
States that hold primaries in September? Would such a time frame be 
appropriate for Presidential elections?
    In addition, the Commission seeks comment on whether to adopt a 
tiered approach, under which the range of communications that satisfy 
the fourth content standard would depend on the communication's 
proximity to an election. For example, for communications made within 
120 days before an election, the fourth content standard could be 
modified to capture any public communication that refers to a political 
party or clearly identified Federal candidate and is directed to the 
voters in the relevant geographical areas. For communications made 
between 120 and 240 days before an election, the fourth content 
standard could capture only public communications that promote, attack, 
support, or oppose (``PASO'') a political party or a clearly identified 
Federal candidate.\12\ The Commission invites commenters to provide 
examples of communications from previous election cycles to show 
whether a given time frame would be either underinclusive or 
overinclusive.
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    \12\ See Alternative 4 below for a more detailed discussion of 
the PASO standard.
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Alternative 3--Eliminate the Time Restriction From 11 CFR 109.21(c)(4)

    Alternative 3 would revise 11 CFR 109.21(c)(4) by eliminating any 
time restriction from the fourth content standard. Specifically, 
Alternative 3 would remove the requirement that a public communication 
be publicly distributed or otherwise publicly disseminated 120 days or 
fewer before an election. See 11 CFR 109.21(c)(4)(ii). Alternative 3 
would, however, retain the requirements that (1) the public 
communication refer to a political party or clearly identified 
candidate and (2) be directed to voters in the jurisdiction of the 
clearly identified candidate or to voters in the jurisdiction in which 
one or more candidates of the political party appear on the ballot. See 
11 CFR 109.21(c)(4)(i) and (iii). Thus, under this alternative, any 
public communication that refers to a clearly identified candidate or 
political party and is directed to voters in the relevant jurisdiction 
would satisfy the content prong of the coordinated communication test, 
regardless of when it is distributed.
    The Commission seeks comment on whether the fourth content standard 
without a time frame would still be effective in distinguishing 
communications made for the purpose of influencing a Federal election 
from communications made for other purposes, such as communications 
made for the purpose of lobbying for or against certain legislation. 
The Court of Appeals noted that ``to qualify as `expenditure' in the 
first place, spending must be undertaken `for the purpose of 
influencing' a federal election * * * [T]ime, place, and content may be 
critical indicia of communicative purpose. While election-related 
intent is obvious, for example, in statements urging voters to `elect' 
or `defeat' a specified candidate or party, the same may not be true of 
ads identifying a federal politician but focusing on pending 
legislation[.]'' Shays Appeal at 99. Does the fact that a communication 
refers to a clearly identified candidate or a political party and is 
directed to voters in the relevant geographical area by itself provide 
strong evidence that the communication is made for the purpose of 
influencing a Federal election, even if the communication is made a 
year or more before that election? Does the Commission have the 
statutory authority to regulate ``other categories of non-
electioneering speech--non-express advocacy, for example--outside the 
120 days''? Id. at 101. How should the Commission separate 
communications made for the purpose of influencing a Federal election 
from those without such purpose?
    The Commission also invites commenters to provide examples of 
communications from previous election cycles to show whether 
Alternative 3

[[Page 73951]]

would be either underinclusive or overinclusive.

Alternative 4--Replace the Content Standard in 11 CFR 109.21(c)(4) With 
a ``PASO'' Test

    Alternative 4 would replace the content standard in 11 CFR 
109.21(c)(4) with a new standard providing that a public communication 
would satisfy the content prong of the coordinated communication test 
if it refers to a political party or a clearly identified Federal 
candidate, is directed to voters in the jurisdiction of the clearly 
identified Federal candidate or to voters in a jurisdiction in which 
one or more Federal candidates of a political party are on the ballot, 
and the communication PASOs the political party or the clearly 
identified Federal candidate.\13\ Would such a standard have the 
potential to be unconstitutionally vague in practical application? Or, 
conversely, would such a standard `` `provide explicit standards for 
those who apply them ' and `give the person of ordinary intelligence a 
reasonable opportunity to know what is prohibited' ''? McConnell v. 
FEC, 540 U.S. 93, 170 n.64 (2003) (quoting Grayned v. City of Rockford, 
408 U.S. 104, 108-109 (1972)).
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    \13\ The PASO standard is found in BCRA and applies primarily to 
candidates and political party committees with respect to FEA. See 2 
U.S.C. 431(20)(A)(iii). But Congress also applied the PASO standard 
to the activity of certain tax-exempt organizations. For example, 
BCRA prohibits party committees from soliciting funds for, or making 
or directing donations to, certain tax-exempt organizations that 
make expenditures or disbursements for FEA, which includes public 
communications that PASO a Federal candidate. See 2 U.S.C. 
431(20)(A)(iii) and 441i(d)(1). BCRA also directed the Commission 
not to exempt any communications that PASO a clearly identified 
Federal candidate from the electioneering communication provisions. 
See 2 U.S.C. 434(f)(3)(B)(iv). The Commission provided examples of 
communications that PASO and communications that do not PASO in 
Advisory Opinion 2003-25.
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    Alternatively, the Commission invites comment on whether 
Alternative 4, instead of using a PASO standard, should create a safe 
harbor exemption from the coordinated communication rules for certain 
kinds of communications. A communication that satisfies these criteria 
would, as a matter of law, not be treated as a coordinated 
communication. For example, such criteria could include the following:
     The communication is devoted exclusively to a particular 
pending legislative or executive branch matter.
     The communication's reference to a clearly identified 
Federal candidate is limited to urging the public to contact that 
candidate to persuade the candidate to take a particular position on 
the pending legislative or executive branch matters.
     The communication does not refer to the political party 
affiliation or the political ideology (e.g., ``liberal,'' 
``conservative,'' etc.) of a clearly identified Federal candidate.
     The communication does not refer to a clearly identified 
Federal candidate's record or position on any issue.
     The communication does not refer to a clearly identified 
Federal candidate's character, qualifications, or fitness for office.
     The communication does not refer to an election, voters or 
the voting public, or anyone's candidacy.
    If this criteria-based approach is adopted, should any of the 
criteria be eliminated from, or added to, the list? If adopted, should 
the regulation provide that a communication must meet all of the 
criteria on the list to qualify for the safe harbor exemption or should 
the regulation follow a more flexible approach and provide that a 
communication may meet some but not necessarily all of the criteria on 
the list and still qualify for the exemption? Should satisfaction of 
one or more specific criteria on the list, by itself, be sufficient to 
qualify for the exemption? By contrast, should any one or more criteria 
be critical to the analysis such that failure to meet these criteria 
would prohibit an organization from taking advantage of the safe 
harbor?
    The Commission seeks comment as to whether Alternative 4 should 
incorporate a time period limitation, such as a specific number of days 
before an election. If so, should this time period be 120 days before 
an election or should a different time frame be adopted? The Commission 
invites commenters to submit supporting empirical data. The Commission 
also invites commenters to provide examples of communications from 
previous election cycles to show whether Alternative 4 would be either 
underinclusive or overinclusive.

Alternative 5--Eliminate the Time Restriction From 11 CFR 109.21(c)(4) 
for Political Committees Only

    Alternative 5 would adopt a bifurcated test under which application 
of the 120-day time frame would depend on the identity of the person 
paying for the public communication. If a registered political 
committee, or an organization that is required to register as a 
political committee, pays for a public communication that refers to a 
political party or a clearly identified Federal candidate and the 
public communication is directed to voters in the jurisdiction of the 
clearly identified candidate or to voters in a jurisdiction in which 
one or more of the candidates of the political party appear on the 
ballot, then that public communication would be deemed as a matter of 
law to have been made for the purpose of influencing a Federal 
election. Such a public communication, when paid for by a political 
committee, would be deemed to have been made for the purpose of 
influencing a Federal election regardless of when it is distributed, 
because a political committee is an organization whose major purpose is 
to influence elections.\14\ Alternatively, should the time frame be 
eliminated only for public communications that are paid for by 
registered political committees or organizations that are required to 
register as political committees if the communication PASOs a political 
party or a clearly identified Federal candidate?
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    \14\ The Act defines a ``political committee'' as any committee, 
club, association, or other group of persons that receives 
``contributions'' or makes ``expenditures'' aggregating in excess of 
$1,000 during a calendar year. 2 U.S.C. 431(4)(A). See also 11 CFR 
100.5. In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court, in 
order to avoid vagueness, narrowed the Act's references to 
``political committee'' to prevent their ``reach [to] groups engaged 
purely in issue discussion.'' 424 U.S. at 79. The Court concluded 
that ``[t]o fulfill the purposes of the Act [the words `political 
committee'] need only encompass organizations that are under the 
control of a candidate or the major purpose of which is the 
nomination or election of a candidate.'' Id.
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    Under Alternative 5, if the person paying for the public 
communication is not a registered political committee or an 
organization that is required to register as a political committee, 
then the public communication would satisfy the content standard at 11 
CFR 109.21(c)(4) only if it occurs 120 days or fewer before an election 
or during whatever other time frame might be adopted. Are there data to 
justify the 120-day window? Do the data support another time frame?
    The Commission seeks comment on how such a bifurcated test would 
apply to other entities, such as non-Federal candidates and their 
campaign organizations. The Commission further seeks comment on how 
such a bifurcated test should apply to entities organized under section 
527 of the Internal Revenue Code that are not registered with the 
Commission as political committees. The Commission also seeks comment 
on the effect that this alternative approach would have on a candidate 
who has contacts that meet the conduct standard with an organization 
that is not registered as a political committee. If that organization

[[Page 73952]]

is subsequently found to have inappropriately failed to register as a 
political committee based on activity that was not known to the 
candidate, should the Commission provide in the regulation that the 
candidate would not be deemed to have accepted an in-kind contribution 
from the organization?
    In addition, the Commission invites commenters to provide examples 
of communications from previous election cycles to show whether 
Alternative 5 would be either underinclusive or overinclusive.

Alternative 6--Replace the Fourth Content Standard in 11 CFR 
109.21(c)(4) With a Standard Covering Public Communications Made for 
the Purpose of Influencing a Federal Election

    Alternative 6 would replace the fourth content standard in 11 CFR 
109.21(c)(4) with a new standard that would closely track the statute 
and simply require a communication to be a public communication made 
for the purpose of influencing a Federal election. The effect of 
adopting Alternative 6 would be to restrict some public communications 
that are not covered by current 11 CFR 109.21(c)(4), i.e., 
communications that are made for the purpose of influencing a Federal 
election but that are either: (1) Made more than 120 days before an 
election, or (2) made at any time and do not refer to a political party 
or a clearly identified Federal candidate. In addition, Alternative 6 
would exclude from regulation some communications that are covered by 
current 11 CFR 109.21(c)(4), i.e., communications that are made within 
120 days of an election and that do refer to a political party or a 
clearly identified Federal candidate but that are not made for the 
purpose of influencing a Federal election.
    Whether a given public communication is for the purpose of 
influencing a Federal election would depend on the facts and would be 
decided on a case-by-case basis. This is the approach some 
Commissioners used before 2002 when the Commission adopted a content 
prong for its coordinated communication regulations. Under such a case-
by-case approach, some public communications would be treated as having 
been made for the purpose of influencing a Federal election, even 
though no Federal candidate or political party is referenced in the 
communication, and regardless of how far in advance of an election such 
a communication is made. This approach would result in some public 
communications being restricted as coordinated communications without 
having to meet a content standard defined in the Commission's 
regulations. The Commission seeks comment on whether such a case-by-
case approach is appropriate and whether it would provide sufficient 
guidance to candidates, their authorized committees, political party 
committees, and outside organizations. Would such a standard have the 
potential to be unconstitutionally vague in practical application? Or, 
conversely, would such a standard `` `provide explicit standards for 
those who apply them' and `give the person of ordinary intelligence a 
reasonable opportunity to know what is prohibited' ''? McConnell, 540 
U.S. at 170 n.64 (quoting Grayned, 408 U.S. at 108-109); compare 
Buckley v. Valeo, 424 U.S. 1, 24, n. 24, 46-47, n. 53, 78 (Payments for 
media advertisements ``controlled by or coordinated with the 
candidate'' are treated as contributions, and ``for the purpose of 
influencing'' phrase ``presents fewer problems in connection with the 
definition of a contribution because of the limiting connotation 
created by the general understanding of what constitutes a political 
contribution.''). The Commission also invites commenters to provide 
examples of communications from previous election cycles to show 
whether Alternative 6 would be either underinclusive or overinclusive.

Alternative 7--Eliminate the Content Prong in 11 CFR 109.21(c) and 
Replace It With the Requirement That the Communication Be a Public 
Communication as Defined in 11 CFR 100.26

    Alternative 7 would eliminate the entire content prong in 11 CFR 
109.21(c), and would replace it with the requirement that the 
communication be a public communication as defined in 11 CFR 
100.26.\15\ Alternative 7 would also make some conforming amendments. 
Alternative 7 would be based on the assumption that if an organization 
or individual works with a candidate or a political party in making a 
public communication, then the communication inherently has value to 
the political entity it is coordinated with, regardless of timing or 
content. Accordingly, in Alternative 7, any public communication that 
satisfies the conduct prong of the coordinated communication test at 11 
CFR 109.21(d) would be deemed to have been made for the purpose of 
influencing a Federal election and thus be a ``coordinated 
communication,'' regardless of whether it refers to a clearly 
identified Federal candidate or political party and regardless of when 
or to whom the communication is distributed.
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    \15\ See note 3 above.
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    The Commission notes that, even though Alternative 7 would 
eliminate the entire content prong, it would nonetheless comply with 
the statutory requirement that disbursements for coordinated 
electioneering communications be in-kind contributions to the candidate 
supported by them and with the congressional mandate that the 
Commission's coordination rules address the ``republication of campaign 
materials.'' Specifically, under Alternative 7, all public 
communications (including electioneering communications and 
communications that republish campaign materials) would be coordinated 
communications as long as they satisfy the conduct prong.
    The Commission seeks comment on whether the conduct prong by 
itself, without any content prong, would be effective in distinguishing 
between public communications made for the purpose of influencing a 
Federal election and public communications made for other purposes, 
such as public communications made for the purpose of lobbying for or 
against certain legislation, or for supporting charitable or other non-
political causes. Assuming that it is true that a candidate or 
political party would not coordinate with an outside organization or 
individual if the resulting communication did not have value for the 
candidate or political party, does such value necessarily consist of 
influencing the candidate's election or the election of a political 
party's candidates? Would the conduct prong by itself, without any 
content prong, have the potential to be unconstitutionally vague in 
practical application? Or, conversely, would such a regulation `` 
`provide explicit standards for those who apply them' and `give the 
person of ordinary intelligence a reasonable opportunity to know what 
is prohibited' ''? McConnell, 540 U.S. at 170 n.64 (quoting Grayned, 
408 U.S. at 108-109). The Commission also invites commenters to provide 
examples of communications from previous election cycles to show 
whether Alternative 7 would be either underinclusive or overinclusive.

IV. Other Issues Regarding the Content Prong

    The Commission also seeks comment on the following related issues.

[[Page 73953]]

1. The ``Directed to Voters'' Requirement in 11 CFR 109.21(c)(4)(iii)
    In the event that the Commission decides to retain a content prong, 
the Commission seeks comment on modifying the requirement in the fourth 
content standard that a public communication must be directed to voters 
in the jurisdiction of the clearly identified candidate or to voters in 
a jurisdiction in which one or more candidates of the political party 
appear on the ballot. See 11 CFR 109.21(c)(4)(iii). While the Act and 
Commission regulations defining ``electioneering communications'' 
require that 50,000 or more persons be able to receive the 
communication in the relevant geographic area, the fourth content 
standard does not specify how many persons must be able to receive a 
communication for it to be classified as a coordinated communication. 
See 2 U.S.C. 434(f)(3)(C); 11 CFR 100.29(b)(3)(ii)(A) and (b)(5). 
Should 109.21(c)(4)(iii) be deemed satisfied if any person in the 
relevant geographic area can receive the communication? Should 11 CFR 
109.21(c)(4)(iii) be changed to specify a minimum number of persons 
that must be able to receive the communication? If so, what should the 
required minimum number of persons be? Has the current regulation 
without a required minimum number presented any difficulties to, or 
created any confusion for, those seeking to comply with it?
    The Commission notes that the fourth content standard applies to 
``public communications,'' and thus to communications made by means of 
newspapers, magazines, periodicals, billboards, mass mailing, and 
telephone banks. See 11 CFR 100.26. Is it appropriate to set a minimum 
for the ``directed to voters'' requirement that would exclude small and 
medium sized publications? If so, should the minimum number be based on 
the number of copies distributed or on estimates of the number of 
readers reached by the publications? Similarly, the definition of 
``public communication'' includes limited communications, such as 501 
pieces of mail or 501 telephone calls of an identical or substantially 
similar nature. See 2 U.S.C. 431(23) and (24); 11 CFR 100.26, 100.27, 
100.29. Would it be appropriate to exclude such limited mass mailings 
or telephone banks from the ``directed to voters'' requirement as de 
minimis even though they come within the Commission's definition of 
``public communication''?
    Under the current rules, the second and third content standards 
(i.e., the republication of campaign material and the express advocacy 
standards) do not contain a ``directed to voters'' requirement. Are 
communications that satisfy these standards so clearly made for the 
purpose of influencing a Federal election that a ``directed to voters'' 
requirement is unnecessary? In the alternative, should such a 
requirement be added to these two content standards as well?
    The Commission also seeks comment on whether to exempt from the 
coordination regulations communications that are distributed in the 
jurisdiction of a clearly identified congressional candidate when such 
distribution is part of, and incidental to, a larger advertising 
campaign. For example, an advertisement distributed nationally on cable 
television that refers to a U.S. Representative seeking reelection as 
one of several sponsors of a piece of legislation will presumably reach 
voters in the U.S. Representative's district. In such a case, the 
voters in the U.S. Representative's district would be reached only 
incidentally as part of the larger lobbying campaign. Would an 
exemption for communications that reach voters in the jurisdiction of 
the clearly identified congressional candidate only incidentally 
provide a reliable way of distinguishing communications that are made 
for the purpose of influencing a Federal election from lobbying or 
issue advocacy communications? Would such a standard be sufficiently 
clear to provide persons with prior notice of the types of 
communications that are affected? For such a standard to provide 
effective prior notice, must the Commission specify how many viewers 
are ``incidental''? In the alternative, should the Commission define 
``incidental'' in terms of a certain ratio between the number of 
persons who can receive the communication in the State or district of 
the clearly identified Senate or House candidate and the number of 
persons who can receive the communication outside that State or 
district? Should such an exemption be limited to public communications 
that are distributed nationwide? The Commission also invites comment on 
whether the regulations should provide that such an exemption would 
apply only if a communication does not PASO the clearly identified 
candidate.
2. Federal Candidate Endorsements of, and Solicitations of Funds for, 
Other Federal or Non-Federal Candidates or State Ballot Initiatives
    The Commission invites comment regarding the application of the 
coordinated communication test to situations in which Federal 
candidates endorse, or solicit funds for, other Federal and non-Federal 
candidates or State ballot initiatives. In Advisory Opinion 2004-01, 
the Commission considered a television advertisement that featured 
President Bush endorsing a congressional candidate. The advertisement 
was publicly distributed within 120 days of the Presidential primary in 
the State in which the advertisement aired. The Commission concluded 
that the ``material involvement'' conduct standard in 11 CFR 
109.21(d)(2) was satisfied because the President's agents ``review[ed] 
the final script in advance of the President's appearance in the 
advertisements for legal compliance, factual accuracy, quality, 
consistency with the President's position and any content that 
distracts from or distorts the `endorsement' message that the President 
wishes to convey.'' \16\ Advisory Opinion 2004-01. Similarly, in 
Advisory Opinion 2003-25, the Commission considered an advertisement 
featuring a U.S. Senator's endorsement of a candidate for mayor. In 
that opinion, the Commission determined that it was highly implausible 
that a Federal candidate would appear in a communication endorsing a 
local candidate without being materially involved in one or more of the 
decisions listed in the ``material involvement'' conduct standard.
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    \16\ The Commission further determined that, for advertisements 
distributed within 120 days of the Presidential primary in the State 
in which the advertisement aired, the advertisements' production and 
distribution costs paid for by the congressional candidate's 
committee but attributable to the President's authorized committee 
were contributions to the President's committee by the congressional 
candidate's committee, but that no contribution would result if the 
President's committee reimbursed the congressional candidate's 
committee for its attributable share of the costs.
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    The Commission seeks comment on whether to exempt from the 
coordinated communication rules a Federal candidate's appearance or use 
of a candidate's name in a communication to endorse other Federal or 
non-Federal candidates. Do such endorsements benefit the endorsing 
candidate? The Commission also invites comment on whether any such 
exemption should be limited to communications that do not PASO the 
endorsing candidate. Does the fact that the endorsing candidate appears 
in the communication inevitably promote the endorsing candidate?
    Similarly, the Commission seeks comment on whether to exempt from 
the coordinated communication rules a Federal candidate's appearance in 
a communication that solicits funds for

[[Page 73954]]

other Federal or non-Federal candidates, party committees, political 
action committees, or other political committees. Do such solicitations 
benefit the candidate who makes them? The Commission also invites 
comment on whether any such exemption should be limited to 
communications that do not PASO the soliciting candidate, or, in the 
alternative, do not expressly advocate the election or defeat of the 
soliciting candidate.
    The Commission also seeks comment on whether a similar exemption 
from the coordinated communication rules should also apply to a Federal 
candidate's appearance in communications that endorse, or solicit funds 
for, State ballot initiatives.
3. Proposed Clarification of Application of 120-day Time Frame 
Requirement in 11 CFR 109.21(c)(4)(ii)
    Advisory Opinion 2004-01, discussed above, concerned President 
Bush's appearance in a television advertisement paid for by a 
congressional candidate where President Bush endorsed that 
congressional candidate. The Commission determined that any airing of 
the advertisement that occurred more than 120 days before the 
Presidential primary in the State in which the advertisement aired was 
not an in-kind contribution to President Bush because it did not 
satisfy the fourth content standard (i.e., 11 CFR 109.21(c)(4)). In 
making this determination, the Commission looked at whether the 
communication was aired within 120 days before the non-paying 
candidate's (i.e., President Bush's) election rather than whether it 
was aired within 120 days before the paying congressional candidate's 
election. The regulatory text for Alternative 1 reflects the 
Commission's proposal to amend its coordinated communication rules to 
incorporate the approach taken in Advisory Opinion 2004-01 and to make 
clear that the time frame applies only to the election of a Federal 
candidate who is clearly identified and who has not paid for the 
communication.
    This alteration would clarify that no in-kind contribution is made 
under the coordinated communication regulations to a candidate for 
Federal office who is referred to in a public communication if the 
referenced candidate will not appear as a Federal candidate on a ballot 
within 120 days of the distribution of the communication. See Advisory 
Opinion 2005-18, Concurring Opinion of Chairman Thomas, Vice Chairman 
Toner, Commissioners Mason, McDonald, and Weintraub.
    For example, a Senator whose reelection is not until 2008 appears 
in an advertisement with a 2006 House candidate. The advertisement is 
aired within 120 days of the House candidate's election, is paid for by 
the House candidate's campaign committee, and is aired in the State 
where the Senator will seek reelection in 2008. This advertisement 
would not be an in-kind contribution to the Senator because the 
advertisement was not aired within 120 days of the Senator's 2008 
election.
    The Commission seeks comment on whether the proposed language 
properly effectuates this clarification.

V. Issues Regarding the Conduct Prong

    The conduct prong of the Commission's coordinated communication 
regulations was not challenged in Shays v. FEC. Nonetheless, the 
Commission is taking this opportunity to evaluate how certain aspects 
of the conduct prong work in practice.

1. The ``Request or Suggest'' Conduct Standard in 11 CFR 109.21(d)(1)

    The first conduct standard of the coordinated communications test 
is satisfied if a communication is created, produced or distributed at 
the request or suggestion of a candidate, a candidate's authorized 
committee, or a political party committee, or their agents. See 11 CFR 
109.21(d)(1). The Commission invites comment on whether, even if the 
Commission decides to retain the content prong of the coordinated 
communication test, it should provide that if the first conduct 
standard is satisfied, the communication would automatically qualify as 
a coordinated communication without also having to satisfy any of the 
standards contained in the content prong. If a public communication is 
made at the request or suggestion of a candidate or a political party, 
then does that communication presumptively have value to the political 
entity that it was coordinated with, regardless of timing or content? 
Would such a proposal capture communications that are not made for the 
purpose of influencing elections? Are there examples of public 
communications, such as lobbying communications or communications 
supporting charitable or other non-political causes, that are made at 
the ``request or suggestion'' of a Federal candidate but that do not 
have value for the candidate's campaign?

2. The ``Common Vendor'' and ``Former Employee'' Conduct Standards in 
11 CFR 109.21(d)(4) and (5)

    The fourth standard of the conduct prong of the coordinated 
communication rules involves common vendors, and the fifth standard 
involves former employees. See 11 CFR 109.21(d)(4) and (5). The 
Commission intended these standards to implement Congress's requirement 
in BCRA that the Commission address ``the use of a common vendor'' and 
``persons who previously served as an employee of a candidate or a 
political party committee'' in the context of coordination. BCRA, Pub. 
L. No. 107-55, sec. 214(c)(2) and (3) (2002).
    The ``common vendor'' conduct standard is satisfied if (1) the 
person paying for the communication contracts with, or employs, a 
``commercial vendor'' to create, produce, or distribute the 
communication, (2) the commercial vendor has a previous or current 
relationship with the political party committee or the clearly 
identified candidate referred to in the communication that puts the 
commercial vendor in a position to acquire material information about 
the plans, projects, activities, or needs of the candidate or political 
party committee, and (3) the commercial vendor uses or conveys material 
information to the person paying for the communication about the plans, 
projects, activities, or needs of the candidate or political