Exception for Certain “Grassroots Lobbying” Communications From the Definition of “Electioneering Communication”, 52295-52296 [E6-14638]

Download as PDF 52295 Proposed Rules Federal Register Vol. 71, No. 171 Tuesday, September 5, 2006 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. FEDERAL ELECTION COMMISSION 11 CFR Part 100 [Notice 2006–15] Exception for Certain ‘‘Grassroots Lobbying’’ Communications From the Definition of ‘‘Electioneering Communication’’ Federal Election Commission. Notice of disposition of Petition for Rulemaking. AGENCY: erjones on PRODPC60 with PROPOSALS ACTION: SUMMARY: The Commission announces its disposition of a Petition for Rulemaking (‘‘Petition’’) filed on February 16, 2006, by the AFL–CIO, the Alliance for Justice, the Chamber of Commerce of the United States, the National Education Association, and OMB Watch. The Petition asks the Commission to revise its regulations by exempting from the definition of ‘‘electioneering communication’’ certain communications consisting of ‘‘grassroots lobbying.’’ The Commission has decided not to initiate a rulemaking in response to the Petition at this time. The Petition is available for inspection in the Commission’s Public Records Office and on its Web site, https:// www.fec.gov/. Further information is provided in the SUPPLEMENTARY INFORMATION that follows. FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Acting Assistant General Counsel, or Mr. Ron B. Katwan, Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694–1650 or (800) 424–9530. SUPPLMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002 (‘‘BCRA’’), Public Law 107–55, 116 Stat. 81 (2002), added provisions regarding ‘‘electioneering communications’’ to the Federal Election Campaign Act of 1971, as amended. See 2 U.S.C. 434(f)(3). Electioneering communications are television and radio communications that refer to a clearly identified candidate for Federal office, are publicly distributed within 60 days before a VerDate Aug<31>2005 13:27 Sep 01, 2006 Jkt 208001 general election or 30 days before a primary election, and are targeted to the relevant electorate. See 2 U.S.C. 434(f)(3)(A)(i); 11 CFR 100.29(a). BCRA exempts certain communications from the definition of ‘‘electioneering communication,’’ 2 U.S.C. 434(f)(3)(B)(i) through (iii), and specifically authorizes the Commission to promulgate regulations exempting other communications as long as the exempted communications do not promote, support, attack or oppose (‘‘PASO’’) a Federal candidate, 2 U.S.C. 434(f)(3)(B)(iv), citing 2 U.S.C. 431(20)(A)(iii). Section 100.29(c) of the Commission’s regulations contains the regulatory exemptions to the definition of ‘‘electioneering communication.’’ On February 16, 2006, the Commission received a Petition for Rulemaking (‘‘Petition’’) from the AFL– CIO, the Alliance for Justice, the Chamber of Commerce of the United States, the National Education Association, and OMB Watch (collectively, ‘‘Petitioners’’). The Petitioners asked the Commission to revise 11 CFR 100.29(c) to exempt from the definition of ‘‘electioneering communication’’ certain ‘‘grassroots lobbying’’ communications that reflect all of the following six principles: (1) ‘‘The ‘clearly identified federal candidate’ is an incumbent public officeholder;’’ (2) ‘‘The communication exclusively discusses a particular current legislative or executive branch matter;’’ (3) ‘‘The communication either (a) calls upon the candidate to take a particular position or action with respect to the matter in his or her incumbent capacity, or (b) calls upon the general public to contact the candidate and urge the candidate to do so;’’ (4) ‘‘If the communication discusses the candidate’s position or record on the matter, it does so only by quoting the candidate’s own public statements or reciting the candidate’s official action, such as a vote, on the matter;’’ (5) ‘‘The communication does not refer to an election, the candidate’s candidacy, or a political party;’’ and (6) ‘‘The communication does not refer to the candidate’s character, qualifications or fitness for office.’’ On March 16, 2006, the Commission published a Notice of Availability (‘‘NOA’’) seeking comment on whether to initiate a rulemaking on this proposed exception to the definition of PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 ‘‘electioneering communication.’’ Notice of Availability on Rulemaking Petition: Exception for Certain ‘‘Grassroots Lobbying’’ Communications From the Definition of ‘‘Electioneering Communication,’’ 71 FR 13557 (Mar. 16, 2006). The Commission received nine timely comments and two late comments in response to the NOA. In addition to these comments, the Commission received 180 form letter comments. Most of the commenters supported the Petition primarily on the grounds that the current electioneering communication rules limit the ability of organizations to run ads whose purpose is not to influence Federal elections, but to support or defeat legislation at the most critical time (i.e., when the legislation is before Congress, regardless of the election cycle). These commenters argued that such ‘‘grassroots lobbying’’ ads are entitled to First Amendment protection and should therefore be exempt from the electioneering communication rules. However, one group of commenters opposed the Petition, arguing that the Commission had already considered this question in the 2002 rulemaking that adopted the current electioneering communication rules and had concluded correctly that it lacked statutory authority to promulgate a ‘‘grassroots lobbying’’ exemption.1 These commenters further asserted that ‘‘there are no changed circumstances that warrant reconsideration of that decision.’’ Copies of the comments are available on the Commission’s Web site at https://www.fec.gov/law/ law_rulemakings.shtml#lobbying. On August 29, 2006, the Commission voted to decline to initiate a rulemaking at this time on the proposed exception for certain ‘‘grassroots lobbying’’ communications from the definition of ‘‘electioneering communication,’’ given the Commission’s other administrative priorities. The Commission recognized, however, that it has the statutory authority to create exemptions to the electioneering communication rules (provided the exemptions do not permit PASO communications) and that it may 1 The Commission considered several proposals for ‘‘grassroots lobbying’’ exemptions in the 2002 rulemaking but did not adopt any of them. See Notice of Proposed Rulemaking on Electioneering Communications, 67 FR 51131, 51136, 51145 (Aug. 7, 2002); Final Rules on Electioneering Communications, 67 FR 65190, 65201 (Oct. 23, 2002). E:\FR\FM\05SEP1.SGM 05SEP1 52296 Federal Register / Vol. 71, No. 171 / Tuesday, September 5, 2006 / Proposed Rules consider initiating a rulemaking on this subject in the future. Initiating a rulemaking at this time would not be an efficient or effective use of the Commission’s resources. See 11 CFR 200.5(e). The Commission is currently defending the constitutionality of BCRA’s electioneering communication provisions against two as-applied challenges to the statute involving communications that the plaintiffs claim are ‘‘grassroots lobbying’’ communications. See Wisconsin Right to Life v. FEC, Civ. No. 04–1260 (D.D.C.); Christian Civic League of Maine v. FEC, Civ. No. 06–614 (D.D.C.). Even if the Commission were to grant the Petitioners’ request to begin a rulemaking to create a ‘‘grassroots lobbying’’ exemption, the plaintiffs in these cases may well continue to pursue litigation or to initiate new litigation, particularly if the Commission were to craft an exemption narrower than that contemplated by the plaintiffs. Moreover, any eventual court decisions in these lawsuits may provide the Commission with guidance on whether and how the Commission should exercise its discretion in this area. Judicial guidance may well necessitate a reevaluation of any rules the Commission were to propose now. Therefore, in light of the pending asapplied challenges to the constitutionality of the electioneering communication provisions, the Commission believes that initiating a rulemaking at this time would not be an effective use of its resources or an appropriate way to proceed. Dated: August 29, 2006. Michael E. Toner, Chairman, Federal Election Commission. [FR Doc. E6–14638 Filed 9–1–06; 8:45 am] BILLING CODE 6715–01–P SMALL BUSINESS ADMINISTRATION 13 CFR Part 120 RIN 3245–AF49 Business Loan Program; Lender Examination and Review Fees U.S. Small Business Administration. ACTION: Proposed rule. erjones on PRODPC60 with PROPOSALS AGENCY: SUMMARY: This proposed rule implements a recent amendment to the Small Business Act authorizing the Small Business Administration (SBA) to assess fees to lenders participating in SBA’s 7(a) loan guarantee program (Lenders) to cover the costs of VerDate Aug<31>2005 13:27 Sep 01, 2006 Jkt 208001 examinations, reviews, and other Lender oversight activities. The proposed rule describes the methodology for fee assessment. Under the proposed rule, Lenders would pay the actual costs to SBA of the on-site examinations and reviews, and would be allocated off-site review/monitoring costs based on each Lender’s proportionate share of loan dollars that SBA has guaranteed in the SBA portfolio. The proposed rule also describes the billing and payment processes. DATES: Comments must be received on or before October 5, 2006. ADDRESSES: You may submit comments, identified by [RIN number 3245–AF49], by any of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. • Agency Web Site: proprule@sba.gov. Follow the instructions for submitting comments. • E-mail: lender.oversight@sba.gov. • Fax: (202) 205–6831. • Mail: Bryan Hooper, Associate Administrator for Lender Oversight, Small Business Administration, 409 3rd Street, SW., 8th floor, Washington, DC 20416. • Hand Delivery/Courier: 409 3rd Street, SW., 8th floor, Washington, DC 20416. FOR FURTHER INFORMATION CONTACT: John White, Deputy Associate Administrator for Lender Oversight, (202) 205–6345, john.white@sba.gov; or Paul Bishop, Financial Analyst, Office of Lender Oversight, (202) 205–7516, paul.bishop@sba.gov. SUPPLEMENTARY INFORMATION: I. Background Section 7(a) of the Small Business Act, 15 U.S.C. 636(a), authorizes SBA to guarantee loans made by Lenders to eligible small businesses. Currently, there are over 5,000 Lenders authorized to make such SBA guaranteed loans. SBA conducts off-site reviews/ monitoring and on-site exams/reviews of these Lenders to ensure they are processing loans in accordance with prescribed standards, and to minimize losses. Section 5(b)(14) of the Small Business Act (15 U.S.C. 634(b)(14)), authorizes SBA to require these Lenders to pay fees to cover ‘‘the costs of [the] examinations, reviews, and other Lender oversight activities.’’ Congress granted SBA this new fee authority under section 131 of Division K of Public Law 108–447, enacted December 8, 2004. Examination and review costs primarily consist of contractor charges PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 for assistance with (i) on-site examinations; (ii) on-site reviews; and (iii) off-site reviews/monitoring activities. SBA’s contractors for on-site exams and reviews bill SBA separately for each examination/review as it is conducted. The contractor supporting off-site reviews/monitoring generally bills SBA on a quarterly basis to cover its contract price. A discussion of the proposal and a section-by-section analysis follows. II. Proposal A. Review and Examination SBA conducts the following examinations and reviews of Lenders: (i) Off-site reviews/monitoring; (ii) on-site examinations; and (iii) on-site reviews. Under the proposed rule, the fee that SBA would charge a Lender would generally depend on the reviews/ examinations that SBA conducts for that Lender. B. All Lenders All Lenders receive a quarterly off-site review. The off-site review is conducted using SBA’s Loan and Lender Monitoring System (L/LMS). This L/ LMS review is the primary method of monitoring all of SBA’s approximately 5,200 Lenders. For lower volume Lenders, it also may be SBA’s sole method of reviewing them. L/LMS is also used in conjunction with SBA’s onsite exams/reviews, for purposes of planning and prioritization of exams/ reviews. Under the proposed rule, SBA’s cost of off-site review/monitoring (primarily the L/LMS contract cost) would be recovered through fees charged to all Lenders. The cost would be allocated according to each Lender’s respective outstanding SBA guarantees (guaranteed dollars) relative to the total guaranteed dollars SBA has outstanding in its 7(a) loan portfolio. Both Lenders’ outstanding SBA guarantees and the total guaranteed SBA dollars would be calculated using September 30 portfolio figures. Guaranteed dollars outstanding includes guarantees of both loans held by the Lender and loans sold into the secondary market, securitized, or for which a Lender has sold a participation interest. It also includes loans that have been purchased by SBA but have not yet been charged off. The annual cost of the L/LMS reviews under SBA’s current contract is about $82 per $1 million in outstanding guarantees. SBA proposes to use this ratio in calculating the Lender’s fee for off-site monitoring/reviews. Should SBA’s costs under the contract change, the ratio would change accordingly. SBA does not plan at this time to E:\FR\FM\05SEP1.SGM 05SEP1

Agencies

[Federal Register Volume 71, Number 171 (Tuesday, September 5, 2006)]
[Proposed Rules]
[Pages 52295-52296]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-14638]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 71, No. 171 / Tuesday, September 5, 2006 / 
Proposed Rules

[[Page 52295]]



FEDERAL ELECTION COMMISSION

11 CFR Part 100

[Notice 2006-15]


Exception for Certain ``Grassroots Lobbying'' Communications From 
the Definition of ``Electioneering Communication''

AGENCY: Federal Election Commission.

ACTION: Notice of disposition of Petition for Rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Commission announces its disposition of a Petition for 
Rulemaking (``Petition'') filed on February 16, 2006, by the AFL-CIO, 
the Alliance for Justice, the Chamber of Commerce of the United States, 
the National Education Association, and OMB Watch. The Petition asks 
the Commission to revise its regulations by exempting from the 
definition of ``electioneering communication'' certain communications 
consisting of ``grassroots lobbying.'' The Commission has decided not 
to initiate a rulemaking in response to the Petition at this time. The 
Petition is available for inspection in the Commission's Public Records 
Office and on its Web site, https://www.fec.gov/. Further information is 
provided in the supplementary information that follows.

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

SUPPLMENTARY INFORMATION:  The Bipartisan Campaign Reform Act of 2002 
(``BCRA''), Public Law 107-55, 116 Stat. 81 (2002), added provisions 
regarding ``electioneering communications'' to the Federal Election 
Campaign Act of 1971, as amended. See 2 U.S.C. 434(f)(3). 
Electioneering communications are television and radio communications 
that refer to a clearly identified candidate for Federal office, are 
publicly distributed within 60 days before a general election or 30 
days before a primary election, and are targeted to the relevant 
electorate. See 2 U.S.C. 434(f)(3)(A)(i); 11 CFR 100.29(a). BCRA 
exempts certain communications from the definition of ``electioneering 
communication,'' 2 U.S.C. 434(f)(3)(B)(i) through (iii), and 
specifically authorizes the Commission to promulgate regulations 
exempting other communications as long as the exempted communications 
do not promote, support, attack or oppose (``PASO'') a Federal 
candidate, 2 U.S.C. 434(f)(3)(B)(iv), citing 2 U.S.C. 431(20)(A)(iii). 
Section 100.29(c) of the Commission's regulations contains the 
regulatory exemptions to the definition of ``electioneering 
communication.''
    On February 16, 2006, the Commission received a Petition for 
Rulemaking (``Petition'') from the AFL-CIO, the Alliance for Justice, 
the Chamber of Commerce of the United States, the National Education 
Association, and OMB Watch (collectively, ``Petitioners''). The 
Petitioners asked the Commission to revise 11 CFR 100.29(c) to exempt 
from the definition of ``electioneering communication'' certain 
``grassroots lobbying'' communications that reflect all of the 
following six principles: (1) ``The `clearly identified federal 
candidate' is an incumbent public officeholder;'' (2) ``The 
communication exclusively discusses a particular current legislative or 
executive branch matter;'' (3) ``The communication either (a) calls 
upon the candidate to take a particular position or action with respect 
to the matter in his or her incumbent capacity, or (b) calls upon the 
general public to contact the candidate and urge the candidate to do 
so;'' (4) ``If the communication discusses the candidate's position or 
record on the matter, it does so only by quoting the candidate's own 
public statements or reciting the candidate's official action, such as 
a vote, on the matter;'' (5) ``The communication does not refer to an 
election, the candidate's candidacy, or a political party;'' and (6) 
``The communication does not refer to the candidate's character, 
qualifications or fitness for office.''
    On March 16, 2006, the Commission published a Notice of 
Availability (``NOA'') seeking comment on whether to initiate a 
rulemaking on this proposed exception to the definition of 
``electioneering communication.'' Notice of Availability on Rulemaking 
Petition: Exception for Certain ``Grassroots Lobbying'' Communications 
From the Definition of ``Electioneering Communication,'' 71 FR 13557 
(Mar. 16, 2006). The Commission received nine timely comments and two 
late comments in response to the NOA. In addition to these comments, 
the Commission received 180 form letter comments. Most of the 
commenters supported the Petition primarily on the grounds that the 
current electioneering communication rules limit the ability of 
organizations to run ads whose purpose is not to influence Federal 
elections, but to support or defeat legislation at the most critical 
time (i.e., when the legislation is before Congress, regardless of the 
election cycle). These commenters argued that such ``grassroots 
lobbying'' ads are entitled to First Amendment protection and should 
therefore be exempt from the electioneering communication rules. 
However, one group of commenters opposed the Petition, arguing that the 
Commission had already considered this question in the 2002 rulemaking 
that adopted the current electioneering communication rules and had 
concluded correctly that it lacked statutory authority to promulgate a 
``grassroots lobbying'' exemption.\1\ These commenters further asserted 
that ``there are no changed circumstances that warrant reconsideration 
of that decision.'' Copies of the comments are available on the 
Commission's Web site at https://www.fec.gov/law/law_
rulemakings.shtml#lobbying.
---------------------------------------------------------------------------

    \1\ The Commission considered several proposals for ``grassroots 
lobbying'' exemptions in the 2002 rulemaking but did not adopt any 
of them. See Notice of Proposed Rulemaking on Electioneering 
Communications, 67 FR 51131, 51136, 51145 (Aug. 7, 2002); Final 
Rules on Electioneering Communications, 67 FR 65190, 65201 (Oct. 23, 
2002).
---------------------------------------------------------------------------

    On August 29, 2006, the Commission voted to decline to initiate a 
rulemaking at this time on the proposed exception for certain 
``grassroots lobbying'' communications from the definition of 
``electioneering communication,'' given the Commission's other 
administrative priorities. The Commission recognized, however, that it 
has the statutory authority to create exemptions to the electioneering 
communication rules (provided the exemptions do not permit PASO 
communications) and that it may

[[Page 52296]]

consider initiating a rulemaking on this subject in the future.
    Initiating a rulemaking at this time would not be an efficient or 
effective use of the Commission's resources. See 11 CFR 200.5(e). The 
Commission is currently defending the constitutionality of BCRA's 
electioneering communication provisions against two as-applied 
challenges to the statute involving communications that the plaintiffs 
claim are ``grassroots lobbying'' communications. See Wisconsin Right 
to Life v. FEC, Civ. No. 04-1260 (D.D.C.); Christian Civic League of 
Maine v. FEC, Civ. No. 06-614 (D.D.C.). Even if the Commission were to 
grant the Petitioners' request to begin a rulemaking to create a 
``grassroots lobbying'' exemption, the plaintiffs in these cases may 
well continue to pursue litigation or to initiate new litigation, 
particularly if the Commission were to craft an exemption narrower than 
that contemplated by the plaintiffs. Moreover, any eventual court 
decisions in these lawsuits may provide the Commission with guidance on 
whether and how the Commission should exercise its discretion in this 
area. Judicial guidance may well necessitate a reevaluation of any 
rules the Commission were to propose now. Therefore, in light of the 
pending as-applied challenges to the constitutionality of the 
electioneering communication provisions, the Commission believes that 
initiating a rulemaking at this time would not be an effective use of 
its resources or an appropriate way to proceed.

    Dated: August 29, 2006.
Michael E. Toner,
Chairman, Federal Election Commission.
 [FR Doc. E6-14638 Filed 9-1-06; 8:45 am]
BILLING CODE 6715-01-P
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