Federal Election Activity and Non-Federal Elections, 31473-31477 [E7-10994]

Download as PDF 31473 Proposed Rules Federal Register Vol. 72, No. 109 Thursday, June 7, 2007 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 2007–14] Federal Election Activity and NonFederal Elections Federal Election Commission. ACTION: Notice of proposed rulemaking. jlentini on PROD1PC65 with PROPOSALS AGENCY: SUMMARY: The Federal Election Commission requests comments on proposed revisions to the definition of the phrase ‘‘in connection with an election in which a candidate for Federal office appears on the ballot.’’ This phrase is part of the definition of ‘‘Federal election activity’’ (‘‘FEA’’) and is used to determine whether voter identification, get-out-the-vote activity, and generic campaign activities are FEA, subject to certain funding limits and prohibitions under the Federal Election Campaign Act of 1971 (‘‘FECA’’). The proposed rule would make permanent, with certain minor revisions, an Interim Final Rule that excluded from FEA certain voter identification and get-out-the-vote activities conducted exclusively for non-Federal elections. Further information is provided in the supplementary information that follows. DATES: Comments must be received on or before July 9, 2007. ADDRESSES: All comments must be in writing, must be addressed to Mr. Ron B. Katwan, Assistant General Counsel, and must be submitted in e-mail, facsimile, or paper copy form. Commenters are strongly encouraged to submit comments by e-mail or fax to ensure timely receipt and consideration. E-mail comments must be sent to fea.nonfederal@fec.gov. If e-mail comments include an attachment, the attachment must be in Adobe Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed comments must be sent to (202) 219–3923, with paper copy follow-up. Paper copy comments and paper copy follow-up of faxed comments must be sent to the Federal Election VerDate Aug<31>2005 16:51 Jun 06, 2007 Jkt 211001 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. FOR FURTHER INFORMATION CONTACT: Mr. Ron B. Katwan, Assistant General Counsel, or Ms. Margaret G. Perl, Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694–1650 or (800) 424–9530. SUPPLEMENTARY INFORMATION: I. Background The Bipartisan Campaign Reform Act of 2002, Public Law 107–155, 116 Stat. 81 (2002) (‘‘BCRA’’), amended FECA by adding a new term, ‘‘Federal election activity,’’ to describe certain activities that State, district, and local party committees must pay for with either Federal funds or a combination of Federal and Levin funds.1 See 2 U.S.C. 431(20) and 441i(b)(1). The FEA requirements apply to all State, district, and local party committees and organizations, regardless of whether they are registered as political committees with the Commission. The term also affects fundraising on behalf of tax-exempt organizations.2 A. FEA Statutory and Regulatory Provisions BCRA specifies that voter identification, get-out-the-vote activity (‘‘GOTV activity’’), and generic campaign activity (collectively ‘‘Type II FEA’’) 3 constitute FEA only when these activities are conducted ‘‘in connection 1 ‘‘Federal funds’’ are funds subject to the limitations, prohibitions, and reporting requirements of the Act. See 11 CFR 300.2(g). ‘‘Levin funds’’ are funds raised by State, district, and 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). 2 National, State, district, and local party committees are prohibited from soliciting or directing non-Federal funds to tax-exempt entities organized under 26 U.S.C. 501(c) that engage in FEA or make other disbursements or expenditures in connection with a Federal election. See 2 U.S.C. 441i(d)(1). Also, Federal candidates and officeholders may make only limited solicitations for funds on behalf of tax-exempt entities organized under 26 U.S.C. 501(c) whose principal purpose is to conduct certain types of FEA. See 2 U.S.C. 441i(e)(4). 3 Commission regulations specifically define each kind of Type II FEA activity. See 11 CFR 100.24(a)(3) (GOTV activity), 100.24(a)(4) (voter identification), 100.25 (generic campaign activity). PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 with an election in which a candidate for Federal office appears on the ballot.’’ 2 U.S.C. 431(20)(A)(ii). Commission regulations define ‘‘in connection with an election in which a candidate for Federal office appears on the ballot’’ as the period of time beginning on the earliest filing deadline for access to the primary election ballot for Federal candidates in each particular State, and ending on the date of the general election, up to and including any runoff date. See 11 CFR 100.24(a)(1)(i). For States that do not hold primary elections, the period begins on January 1 of each even-numbered year. Id. For special elections in which Federal candidates are on the ballot, the period begins when the date of the special election is set and ends on the date of the special election. See 11 CFR 100.24(a)(1)(ii). Certain activities by State, district and local parties are exempt from the definition of FEA by BCRA and Commission regulations. See 2 U.S.C. 431(20)(B); 11 CFR 100.24(c). One of these exceptions covers public communications that refer solely to State or local candidates and do not promote, support, attack or oppose a Federal candidate, as long as these communications do not constitute voter registration, voter identification or GOTV activity. See 2 U.S.C. 431(20)(B)(i); 11 CFR 100.24(c)(1). Costs of traditional ‘‘grassroots campaign materials’’ such as buttons, bumper stickers, yard signs and posters that name only State or local candidates are also excluded from the definition of FEA. See 2 U.S.C. 431(20)(B)(iv); 11 CFR 100.24(c)(4). B. Interim Final Rule for Voter Identification and GOTV Activities Connected to Non-Federal Elections One of the principal sponsors of BCRA described its FEA provisions as ‘‘a balanced approach which addresses the very real danger that Federal contribution limits could be evaded by diverting funds to State and local parties,’’ while ‘‘not attempt[ing] to regulate State and local party spending where this danger is not present, and where State and local parties engage in purely non-Federal activities.’’ 148 Cong. Rec. S2138 (daily ed. Mar. 20, 2002) (statement of Sen. McCain). Because Type II FEA is limited to activities in connection with an election E:\FR\FM\07JNP1.SGM 07JNP1 31474 Federal Register / Vol. 72, No. 109 / Thursday, June 7, 2007 / Proposed Rules in which a Federal candidate is on the ballot, the Commission interprets the FEA provisions of BCRA as not regulating voter identification and GOTV activities by State, district, and local political party committees and certain other groups that are exclusively in connection with non-Federal elections. Some municipalities, counties, and States conduct entirely separate nonFederal elections in even-numbered years that fall within the Type II FEA time periods based on Federal elections held later that year.4 The Type II FEA time period in some States begins almost a year before the general election, and the start date of this period is likely to extend even farther back into odd-numbered years as many States move up Presidential primaries into the first few months of the Presidential election year. Thus, the potential also exists for more activity by State, district and local parties connected to nonFederal elections held in odd-numbered years to be swept into the FEA restrictions based on the Type II FEA time periods.5 The effects of the timing of the Type II FEA time period is compounded by recent revisions to the FEA definitions of ‘‘GOTV activity’’ and ‘‘voter identification,’’ which bring nonpartisan associations of local candidates within the FEA funding requirements if their activity targets their local election and occurs within the Type II FEA time period. See Final Rules on the Definition of Federal Election Activity, 71 FR 8926, 8931 (Feb. 22, 2006) (‘‘2006 FEA Final Rules’’).6 In light of these considerations, the Commission published an Interim Final Rule on March 22, 2006 refining the definition of ‘‘in connection with an election in which a candidate for jlentini on PROD1PC65 with PROPOSALS 4 See, e.g., https://www.sbe.virginia.gov/cms/ documents/06_10Calendar.pdf (Virginia municipal elections); https://www.state.tn.us/sos/election/ 2008%20ElectionScheduleevdatesandreg.pdf (Tennessee county elections); https:// elections.state.wi.us/ docview.asp?docid=2924&locid=47 (Wisconsin county and judicial elections); https:// www.lavote.net/VOTER/PDFS/ SCHEDULED_ELECTIONS_2008.pdf (LA County municipal elections). 5 See, e.g., https://www.sbe.virginia.gov/cms/ documents/06_10Calendar.pdf (Virginia state-wide election); https://elect.ky.gov/NR/rdonlyres/ F98ADBAA–79E2–4D25–AA35–A85ABB921BEC/0/ electionschedule.pdf (Kentucky state-wide officer election); https://vote.nyc.ny.us/ electioncalendar.html (New York City election); https://www.usmayors.org/uscm/elections/ electioncitiesfall2007.pdf (various municipal elections). 6 The district court ruling in Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005), required certain changes to the rules defining GOTV activity and voter identification activity at 11 CFR 100.24(a)(3) and (a)(4). VerDate Aug<31>2005 16:51 Jun 06, 2007 Jkt 211001 Federal office appears on the ballot’’ to specify when activities and communications are in connection with a non-Federal election, instead of a Federal election, and are therefore not Type II FEA. See Interim Final Rule Regarding Definition of Federal Election Activity, 71 FR 14357 (Mar. 22, 2006) (‘‘Interim Final Rule’’).7 The Interim Final Rule added new paragraph (a)(1)(iii) to 11 CFR 100.24 to ‘‘ensure[] that the FEA requirements do not extend to activities that are solely in connection with these upcoming nonFederal elections and are therefore beyond the scope of FECA.’’ See Interim Final Rule, 71 FR at 14357. New section 100.24(a)(1)(iii) exempts ‘‘any activity or communication that is in connection with a non-Federal election that is held on a date separate from a date of any Federal election’’ and that refers exclusively to: (1) Non-Federal candidates participating in the nonFederal election, provided the nonFederal candidates are not also Federal candidates; (2) ballot referenda or initiatives scheduled for the date of the non-Federal election; or (3) the date, polling hours and locations of the nonFederal election. See 11 CFR 100.24(a)(1)(iii)(A)(1)–(3); Interim Final Rule, 71 FR at 14359–60. This rule was promulgated as an Interim Final Rule and expires on September 1, 2007. See 11 CFR 100.24(a)(1)(iii)(B); Interim Final Rule, 71 FR at 14358. The Commission sought public comment on the Interim Final Rule, and received two comments. The comments are available at https:// www.fec.gov/law/ law_rulemakings.shtml under the heading ‘‘Definition of Federal Election Activity.’’ II. Proposed Revisions to 11 CFR 100.24(a)(1)—Type II FEA Time Periods The proposed rule would make permanent section 100.24(a)(1)(iii) as added by the Interim Final Rule (with some stylistic and technical changes explained below). The Commission seeks public comment on whether nonFederal candidates and State, district or local party committees conducted voter identification and GOTV activities under the exemption in the Interim Final Rule in the 2006 election cycle, and invites commenters to suggest modifications of the proposed rule based on their experience, if any, with 7 A proposed exception to the Type II FEA time periods for activity in the time period leading up to a municipal election was included in the proposed rules but was not adopted. See Notice of Proposed Rulemaking on the Definition of Federal Election Activity, 70 FR 23068, 23071–72 (May 4, 2005). PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 the Interim Final Rule. Would such a rule exclude ‘‘purely non-Federal’’ voter identification and GOTV activities by State, district and local committees? Would such a rule be consistent with Congressional intent? A. Proposed 11 CFR 100.24(a)(1)(iii)— Activities Solely in Connection With Certain Non-Federal Elections First, the proposed rule provides that voter identification or GOTV activities that are ‘‘solely in connection with a non-Federal election held on a date separate from any Federal election’’ are exempt from Type II FEA. See proposed 11 CFR 100.24(a)(1)(iii) (emphasis added). For example, a GOTV program offering to transport voters to the polls on the day of an exclusively nonFederal election would be eligible for the proposed exemption. However, a voter identification program collecting information both about voters’ preferences in a non-Federal election in March and a Federal primary election in April would not qualify. Thus, the proposed rule would not exclude all activities by State, district and local parties in the weeks (or months) between the start of the Type II FEA time period and a non-Federal election. The Commission seeks comment on this approach. In addition, the proposed rule would only apply if the non-Federal election were held on a wholly separate date from any Federal election. See proposed 11 CFR 100.24(a)(1)(iii). This proposed rule is based on the premise that this voter identification and GOTV activity for non-Federal elections held on a different date from any Federal election will have no effect on previous or subsequent Federal elections. The Commission intends the proposed exemption to be narrowly tailored and not to apply to activities that are also in connection with a Federal election.8 For example, if a GOTV communication provides the date of a non-Federal election and offers transportation to voters for such a non-Federal election, is it likely that such activity would have any effect on voter turnout for a Federal election held on a separate, and perhaps much later, date? The Commission seeks comments, especially in the form of empirical data, on whether voter identification and GOTV efforts in connection with a non-Federal election have a measurable effect on voter turnout in a subsequent Federal election, or otherwise confer benefits on 8 The Interim Final Rule did not include the word ‘‘solely,’’ but explained that ‘‘[a]ny activity that is also in connection with a Federal election renders the interim final rule inapplicable.’’ Interim Final Rule, 71 FR at 14359–60. E:\FR\FM\07JNP1.SGM 07JNP1 Federal Register / Vol. 72, No. 109 / Thursday, June 7, 2007 / Proposed Rules Federal candidates. Are there any relevant data from the 2006 elections to indicate whether activities conducted under the interim rule had any effect on turnout in 2006 Federal elections? Should the exemption take into account the proximity of the next Federal election? For example, should the rule distinguish between situations where the next Federal election is only six days later, as opposed to six months? The proposed exemption would not extend to any activities conducted in connection with a non-Federal election held on the same date as a Federal election, even if the activity does not refer to any Federal candidates. Are there certain conditions under which an activity in connection with a nonFederal election held on the same date as a Federal election should also be exempted from the Type II FEA time periods? For example, should the proposed rule apply if both elections were held at the same polling sites but used separate ballots? jlentini on PROD1PC65 with PROPOSALS B. Proposed 11 CFR 100.24(a)(1)(iii)(A)– (C)—Content of Voter Identification and GOTV Communications The final requirement to be eligible for the proposed exemption is that the voter identification or GOTV activity must involve a communication that refers exclusively to one or more of the following: (1) The non-Federal candidates on the non-Federal election ballot who are not also Federal candidates; (2) ballot initiatives or referenda included in the non-Federal election; or (3) the date, times, or polling locations of the non-Federal election.9 See proposed 11 CFR 100.24(a)(1)(iii)(A)–(C). This proposed requirement implements proposed section 100.24(a)(1)(iii)’s general restriction that the voter identification or GOTV activity be solely in connection with the non-Federal election. The proposed rule’s formulation is also consistent with statutory exclusions from the definition of FEA that are limited to certain types of activity that refer only to State or local candidates, as discussed above. See 2 U.S.C. 431(20)(B)(i) and (iv); 11 CFR 100.24(c)(1) and (4). Should the ballot initiative prong be limited to 9 Under Commission regulations, ‘‘voter identification’’ activity includes ‘‘acquiring information about potential voters’’ and creating or modifying voter lists with information regarding ‘‘voters’ likelihood of voting in an upcoming election or their likelihood of voting for specific candidates.’’ See 11 CFR 100.24(a)(4). GOTV activity includes contacting voters ‘‘to assist them in engaging in the act of voting,’’ such as providing information about date, times and locations of polling places and offering transport to polling places. See 11 CFR 100.24(a)(3). VerDate Aug<31>2005 16:51 Jun 06, 2007 Jkt 211001 ballot issues that have no impact on Federal elections? The Commission seeks comments on whether this proposed list of subjects in proposed section 100.24(a)(1)(iii)(A) through (C) should be expanded or narrowed. Should the Commission require that communications include a reference to the date of the non-Federal election for the proposed exemption to apply? Should the exception be expanded to include communications discussing specific issues that are exclusively a state or local concern? Should ‘‘the date, polling hours, or polling locations of the non-Federal election’’ be defined to include absentee ballot or vote-by-mail information? With respect to candidate references, the proposed rule would specify that if a non-Federal candidate is also seeking Federal office and satisfies FECA’s definition of ‘‘candidate,’’ then the proposed exemption would not apply. See proposed 11 CFR 100.24(a)(1)(iii)(A). The proposed rule would apply to communications containing specific references to nonFederal candidates by name, nickname, photograph or other likeness, as well as to general references to non-Federal candidates by party. For example, assuming that the non-Federal election is held on a date separate from a Federal election, a GOTV phone bank that urges voters to vote for ‘‘Smith for Mayor’’ and that also refers to ‘‘the great Democratic team’’ would qualify under the proposed rule. The proposed exemption would also apply to a communication that otherwise meets the definition of GOTV 10 if such a communication also includes language such as ‘‘Vote Republican on May 5’’ even though no individual non-Federal candidate is mentioned by name, because it refers exclusively to non-Federal candidates on the ballot on the date of the nonFederal election. The Commission seeks comment on this approach. Moreover, should the exception be limited to cover only references to clearly identified non-Federal candidates? With regard to references to the date or the polling hours or the polling locations of the non-Federal election, this proposed rule would revise the Interim Final Rule to clarify that it is not necessary to include all three categories of information in order to qualify for the proposed exemption. For example, a GOTV communication that refers only the date of the non-Federal election without any information regarding 10 See 11 CFR 100.24(a)(3) (2006); Final Rule: Definition of Federal Election Activity, 71 FR 8926 (Feb. 22, 2006); Advisory Opinion 2006–19 (Los Angeles County Democratic Party Central Committee). PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 31475 polling hours or locations would satisfy this proposed requirement. The Commission seeks comment on this approach. C. Type II FEA Activity Included in Proposed Rule As discussed above, three kinds of activity are governed by the Type II FEA time periods in 11 CFR 100.24(a)(1): voter identification, GOTV, and generic campaign activity. See 2 U.S.C. 431(20)(A)(ii). The proposed rule would only apply to voter identification and GOTV activity in connection with nonFederal elections. See proposed 11 CFR 100.24(a)(1)(iii). The Commission seeks comment on this approach. These types of activities, such as identifying voter preferences for updating a voter list or phone calls reminding voters to vote for a particular candidate on Election Day, are usually for the purpose of promoting specific candidates and can be conducted solely in connection with a non-Federal election. The proposed rule does not exempt generic campaign activity. Generic campaign activity is defined as ‘‘a public communication that promotes or opposes a political party and does not promote or oppose a clearly identified Federal candidate or a non-Federal candidate.’’ See 2 U.S.C. 431(21); 11 CFR 100.25. For example, ‘‘Vote for the Democrats on May 4th’’ could constitute generic campaign activity under this definition. The Commission notes that some generic campaign activity could be presumed to be in connection with both Federal and non-Federal elections. Should the Commission include generic campaign activity in the final rule? How could the Commission draft such a rule to ensure that only generic campaign activity affecting (and made solely in connection with) non-Federal elections is exempted? Does the inclusion of the phrase ‘‘on May 4th’’ in the above example serve to ensure that the communication will affect only the election held on May 4th? Alternatively, should generic campaign activity be excluded from the final rule? Although voter identification is included in the proposed rule, initial acquisition or purchase of voter lists generally would not meet the requirements of the proposed rule because most State, district and local party committees and organizations will acquire voter lists for use in connection with more than one election. However, if a State, district, or local party committee or organization were able to show that it acquired a voter list to conduct GOTV activities and/or voter identification solely for a non-Federal election held on a date separate from E:\FR\FM\07JNP1.SGM 07JNP1 jlentini on PROD1PC65 with PROPOSALS 31476 Federal Register / Vol. 72, No. 109 / Thursday, June 7, 2007 / Proposed Rules any Federal election, acquisition of the voter list could meet the requirements of the proposed rule.11 To qualify for the proposed exemption, the voter list must be the closest available to the list of eligible voters in the qualifying non-Federal election. For example, a county-wide voter list may not be the closest matching voter list for some non-Federal elections (e.g., a municipal election), unless there were no more specific list available. Choosing a list of voters that goes beyond the voters participating in a municipal election would demonstrate that the voter identification program is not exclusively in connection with the municipal election. Accordingly, the costs of such a voter list would be treated as FEA. Are there situations in which this conclusion would not be warranted? For example, if the smaller voter list were significantly more expensive than the larger list, should acquisition of the larger list be permitted? Similarly, if a list is acquired and used for a non-Federal election, but is then also used for any activity in connection with a subsequent Federal election, or for a non-Federal election held on the same date as a Federal election, the acquisition of the list would not meet the requirements of the proposed rule and the cost of the voter list would be treated as FEA. Should the party organization be permitted to allocate the cost of the list in proportion to its use in connection with nonFederal and Federal elections? The Commission seeks comment on this approach to voter list acquisition under the proposed rule. Is it feasible for State, district and local parties to show that the acquisition of a voter list was solely in connection with a nonFederal election by tracking when a certain voter list is ‘‘used’’ in connection with certain elections? Section 100.24(a)(4) states that the date the list was purchased governs whether the costs of the voter list must be treated as FEA, regardless of the party’s use of that list. However, the proposed exemption for voter identification would depend upon when and how the party uses a voter list. Is the proposed rule’s approach to voter list acquisition inconsistent with the general definition of ‘‘voter identification?’’ How should the Commission apply the proposed rule to other types of voter identification activities, such as updating a voter list with revised 11 State, district and local party committees would also have to use the voter list for a communication that refers exclusively to one or more of the three topics listed in proposed section 100.24(a)(1)(iii) (A) through (C), as discussed above. VerDate Aug<31>2005 16:51 Jun 06, 2007 Jkt 211001 contact information or voter preferences? Should a State, district or local party that expends time and resources to update and add voter information to a list in connection with a non-Federal election be barred from using updated information in subsequent Federal elections, or would the costs be allocated if the list is used in a subsequent Federal election? As an alternative, should the Commission eliminate voter list acquisition and maintenance, i.e. voter identification, from the proposed exemption? D. Allocating the Costs for Activity Under the Proposed Exemption Although voter identification and GOTV activities meeting the requirements of the proposed rule would not be considered FEA, a State, district or local party committee may be required to pay the costs of those activities using a ratio of Federal and non-Federal funds under the Commission’s existing allocation rules at 11 CFR 106.7. State, district or local party committees that conduct activities in connection with non-Federal elections, but do not conduct any activity in connection with Federal elections, are not subject to the allocation rules in section 106.7. See 11 CFR 106.7(b). Under the proposed rule and section 106.7, those organizations may continue to pay for the activities described in the proposed rule entirely with non-Federal funds. However, State, district, and local political party committees that make expenditures and disbursements in connection with both Federal and non-Federal elections during an election cycle are required to use an allocable mix of Federal and nonFederal funds to pay for certain expenses that are not FEA pursuant to 11 CFR 100.24. See 11 CFR 106.7(b) and (c).12 Section 106.7(c) lists five categories of costs which must be allocated between Federal and non-Federal funds according to specific ratios: (1) Certain salaries and wages; (2) administrative costs; (3) exempt party activities that are not FEA (such as slate cards and sample ballots); (4) certain fundraising costs; and (5) certain voter drive activities that are not FEA or party exempt activities. Some voter identification and GOTV activities that are eligible for the 12 Pursuant to 11 CFR 106.7(b), political party organizations that are not political committees under FECA may establish separate Federal and non-Federal accounts or use a ‘‘reasonable accounting method approved by the Commission’’ to allocate their voter drive expenses between Federal and non-Federal funds. As an alternative to allocating expenses, party committees may pay allocable expenses entirely with Federal funds. See 11 CFR 106.7(b) PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 proposed exemption may also qualify as allocable voter drive activities under section 106.7(c)(5). Section 106.7(c)(5) requires allocation of certain voter identification, voter registration, GOTV activities, and any other activities that urge the general public to register or vote, or that promote or oppose a political party without promoting or opposing a Federal or non-Federal candidate. Thus, for example, a GOTV communication that exclusively refers to the date and polling location for a non-Federal election held on a date separate from any Federal election would be eligible for the proposed exemption under proposed section 100.24(a)(1)(iii)(C). This GOTV communication would, however, also be considered voter drive activity subject to allocation under section 106.7(c)(5) because it is not FEA or exempt party activity and it encourages the general public to vote without promoting or opposing any Federal or non-Federal candidates. Thus, even under the proposed rule, use of non-Federal funds would be limited for those voter identification and GOTV activities that are conducted ‘‘solely in connection with a nonFederal election,’’ but also qualify as allocable voter drive activity. The Commission seeks comment on this application of the allocation rules to activities eligible for the proposed exemption. Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory Flexibility Act) The Commission certifies that the attached proposed rule, if adopted, will 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 political 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 E:\FR\FM\07JNP1.SGM 07JNP1 Federal Register / Vol. 72, No. 109 / Thursday, June 7, 2007 / Proposed Rules 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. Finally, the proposed rule would operate to relieve funding restrictions, which reduces the economic impact on any affected entities. List of Subjects in 11 CFR Part 100 Elections. For the reasons set out in the preamble, the Federal Election Commission proposes to amend Subchapter A of Chapter 1 of Title 11 of the Code of Federal Regulations 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, paragraph (a)(1)(iii) would be revised to read as follows: jlentini on PROD1PC65 with PROPOSALS § 100.24 Federal Election Activity (2 U.S.C. 431(20)). (a) * * * (1) * * * (iii) Notwithstanding paragraphs (a)(1)(i) and (ii) of this section, in connection with an election in which a candidate for Federal office appears on the ballot does not include any voter identification or get-out-the-vote activity that is solely in connection with a nonFederal election held on a date separate from any Federal election, and that involves a communication that refers exclusively to: (A) Non-Federal candidates participating in the non-Federal election, provided the non-Federal candidates are not also Federal candidates; (B) Ballot referenda or initiatives scheduled for the date of the nonFederal election; or (C) The date, polling hours or polling locations of the non-Federal election. * * * * * Dated: June 1, 2007. Robert D. Lenhard, Chairman, Federal Election Commission. [FR Doc. E7–10994 Filed 6–6–07; 8:45 am] BILLING CODE 6715–01–P VerDate Aug<31>2005 16:51 Jun 06, 2007 Jkt 211001 DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA–2007–28134; Airspace Docket No. 07–ASW–1] RIN 2120–AA66 Proposed Revision of Jet Routes J–29 and J–101; South Central United States Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). AGENCY: SUMMARY: This action proposes to revise Jet Routes J–29 and J–101 over the South Central United States in support of the Houston Area Air Traffic System Project. These actions would allow for more effective utilization of airspace and would enhance the management of aircraft operations over the Houston terminal area. DATES: Comments must be received on or before July 23, 2007. ADDRESSES: Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone: (202) 366–9826. You must identify FAA Docket No. FAA–2007–28134 and Airspace Docket No. 07–ASW–1, at the beginning of your comments. You may also submit comments through the Internet at https://dms.dot.gov. FOR FURTHER INFORMATION CONTACT: Steve Rohring, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267–8783. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA– 2007–28134 and Airspace Docket No. 07-ASW–1) and be submitted in PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 31477 triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at https://dms.dot.gov. Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: ‘‘Comments to FAA Docket No. FAA–2007–28134 and Airspace Docket No. 07–ASW–1.’’ The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRM’s An electronic copy of this document may be downloaded through the Internet at https://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA’s web page at https://www.faa.gov, or the Federal Register’s web page at https:// www.gpoaccess.gov/fr/. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, Central Service Center, 2601 Meacham Blvd. Fort Worth, TX 76137–4298. Persons interested in being placed on a mailing list for future NPRM’s should contact the FAA’s Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. History As part of the Houston Area Air Traffic System Project, a review of aircraft operations has identified a need to revise the jet route structure over the South Central United States by realigning jet airways J–29 and J–101. The FAA believes this action would E:\FR\FM\07JNP1.SGM 07JNP1

Agencies

Federal Election Commission

[Federal Register Volume 72, Number 109 (Thursday, June 7, 2007)]
[Proposed Rules]
[Pages 31473-31477]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-10994]


========================================================================
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. 72, No. 109 / Thursday, June 7, 2007 / 
Proposed Rules

[[Page 31473]]


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FEDERAL ELECTION COMMISSION

11 CFR Part 100

[Notice 2007-14]


Federal Election Activity and Non-Federal Elections

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Election Commission requests comments on proposed 
revisions to the definition of the phrase ``in connection with an 
election in which a candidate for Federal office appears on the 
ballot.'' This phrase is part of the definition of ``Federal election 
activity'' (``FEA'') and is used to determine whether voter 
identification, get-out-the-vote activity, and generic campaign 
activities are FEA, subject to certain funding limits and prohibitions 
under the Federal Election Campaign Act of 1971 (``FECA''). The 
proposed rule would make permanent, with certain minor revisions, an 
Interim Final Rule that excluded from FEA certain voter identification 
and get-out-the-vote activities conducted exclusively for non-Federal 
elections. Further information is provided in the supplementary 
information that follows.

DATES: Comments must be received on or before July 9, 2007.

ADDRESSES: All comments must be in writing, must be addressed to Mr. 
Ron B. Katwan, Assistant General Counsel, and must be submitted in e-
mail, facsimile, or paper copy form. Commenters are strongly encouraged 
to submit comments by e-mail or fax to ensure timely receipt and 
consideration. E-mail comments must be sent to fea.nonfederal@fec.gov. 
If e-mail comments include an attachment, the attachment must be in 
Adobe Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed comments 
must be sent to (202) 219-3923, with paper copy follow-up. Paper copy 
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 Web site after the comment period ends.

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

SUPPLEMENTARY INFORMATION:

I. Background

    The Bipartisan Campaign Reform Act of 2002, Public Law 107-155, 116 
Stat. 81 (2002) (``BCRA''), amended FECA by adding a new term, 
``Federal election activity,'' to describe certain activities that 
State, district, and local party committees must pay for with either 
Federal funds or a combination of Federal and Levin funds.\1\ See 2 
U.S.C. 431(20) and 441i(b)(1). The FEA requirements apply to all State, 
district, and local party committees and organizations, regardless of 
whether they are registered as political committees with the 
Commission. The term also affects fundraising on behalf of tax-exempt 
organizations.\2\
---------------------------------------------------------------------------

    \1\ ``Federal funds'' are funds subject to the limitations, 
prohibitions, and reporting requirements of the Act. See 11 CFR 
300.2(g). ``Levin funds'' are funds raised by State, district, and 
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).
    \2\ National, State, district, and local party committees are 
prohibited from soliciting or directing non-Federal funds to tax-
exempt entities organized under 26 U.S.C. 501(c) that engage in FEA 
or make other disbursements or expenditures in connection with a 
Federal election. See 2 U.S.C. 441i(d)(1). Also, Federal candidates 
and officeholders may make only limited solicitations for funds on 
behalf of tax-exempt entities organized under 26 U.S.C. 501(c) whose 
principal purpose is to conduct certain types of FEA. See 2 U.S.C. 
441i(e)(4).
---------------------------------------------------------------------------

A. FEA Statutory and Regulatory Provisions

    BCRA specifies that voter identification, get-out-the-vote activity 
(``GOTV activity''), and generic campaign activity (collectively ``Type 
II FEA'') \3\ constitute FEA only when these 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). Commission 
regulations define ``in connection with an election in which a 
candidate for Federal office appears on the ballot'' as the period of 
time beginning on the earliest filing deadline for access to the 
primary election ballot for Federal candidates in each particular 
State, and ending on the date of the general election, up to and 
including any runoff date. See 11 CFR 100.24(a)(1)(i). For States that 
do not hold primary elections, the period begins on January 1 of each 
even-numbered year. Id. For special elections in which Federal 
candidates are on the ballot, the period begins when the date of the 
special election is set and ends on the date of the special election. 
See 11 CFR 100.24(a)(1)(ii).
---------------------------------------------------------------------------

    \3\ Commission regulations specifically define each kind of Type 
II FEA activity. See 11 CFR 100.24(a)(3) (GOTV activity), 
100.24(a)(4) (voter identification), 100.25 (generic campaign 
activity).
---------------------------------------------------------------------------

    Certain activities by State, district and local parties are exempt 
from the definition of FEA by BCRA and Commission regulations. See 2 
U.S.C. 431(20)(B); 11 CFR 100.24(c). One of these exceptions covers 
public communications that refer solely to State or local candidates 
and do not promote, support, attack or oppose a Federal candidate, as 
long as these communications do not constitute voter registration, 
voter identification or GOTV activity. See 2 U.S.C. 431(20)(B)(i); 11 
CFR 100.24(c)(1). Costs of traditional ``grassroots campaign 
materials'' such as buttons, bumper stickers, yard signs and posters 
that name only State or local candidates are also excluded from the 
definition of FEA. See 2 U.S.C. 431(20)(B)(iv); 11 CFR 100.24(c)(4).

B. Interim Final Rule for Voter Identification and GOTV Activities 
Connected to Non-Federal Elections

    One of the principal sponsors of BCRA described its FEA provisions 
as ``a balanced approach which addresses the very real danger that 
Federal contribution limits could be evaded by diverting funds to State 
and local parties,'' while ``not attempt[ing] to regulate State and 
local party spending where this danger is not present, and where State 
and local parties engage in purely non-Federal activities.'' 148 Cong. 
Rec. S2138 (daily ed. Mar. 20, 2002) (statement of Sen. McCain). 
Because Type II FEA is limited to activities in connection with an 
election

[[Page 31474]]

in which a Federal candidate is on the ballot, the Commission 
interprets the FEA provisions of BCRA as not regulating voter 
identification and GOTV activities by State, district, and local 
political party committees and certain other groups that are 
exclusively in connection with non-Federal elections.
    Some municipalities, counties, and States conduct entirely separate 
non-Federal elections in even-numbered years that fall within the Type 
II FEA time periods based on Federal elections held later that year.\4\ 
The Type II FEA time period in some States begins almost a year before 
the general election, and the start date of this period is likely to 
extend even farther back into odd-numbered years as many States move up 
Presidential primaries into the first few months of the Presidential 
election year. Thus, the potential also exists for more activity by 
State, district and local parties connected to non-Federal elections 
held in odd-numbered years to be swept into the FEA restrictions based 
on the Type II FEA time periods.\5\ The effects of the timing of the 
Type II FEA time period is compounded by recent revisions to the FEA 
definitions of ``GOTV activity'' and ``voter identification,'' which 
bring non-partisan associations of local candidates within the FEA 
funding requirements if their activity targets their local election and 
occurs within the Type II FEA time period. See Final Rules on the 
Definition of Federal Election Activity, 71 FR 8926, 8931 (Feb. 22, 
2006) (``2006 FEA Final Rules'').\6\
---------------------------------------------------------------------------

    \4\ See, e.g., https://www.sbe.virginia.gov/cms/documents/06_
10Calendar.pdf (Virginia municipal elections); https://
www.state.tn.us/sos/election/
2008%20ElectionScheduleevdatesandreg.pdf (Tennessee county 
elections); https://elections.state.wi.us/
docview.asp?docid=2924&locid=47 (Wisconsin county and judicial 
elections); https://www.lavote.net/VOTER/PDFS/SCHEDULED_ELECTIONS_
2008.pdf (LA County municipal elections).
    \5\ See, e.g., https://www.sbe.virginia.gov/cms/documents/06_
10Calendar.pdf (Virginia state-wide election); https://elect.ky.gov/
NR/rdonlyres/F98ADBAA-79E2-4D25-AA35-A85ABB921BEC/0/
electionschedule.pdf (Kentucky state-wide officer election); https://
vote.nyc.ny.us/electioncalendar.html (New York City election); 
https://www.usmayors.org/uscm/elections/electioncitiesfall2007.pdf 
(various municipal elections).
    \6\ The district court ruling in Shays v. FEC, 337 F. Supp. 2d 
28 (D.D.C. 2004), aff'd, 414 F.3d 76 (D.C. Cir. 2005), required 
certain changes to the rules defining GOTV activity and voter 
identification activity at 11 CFR 100.24(a)(3) and (a)(4).
---------------------------------------------------------------------------

    In light of these considerations, the Commission published an 
Interim Final Rule on March 22, 2006 refining the definition of ``in 
connection with an election in which a candidate for Federal office 
appears on the ballot'' to specify when activities and communications 
are in connection with a non-Federal election, instead of a Federal 
election, and are therefore not Type II FEA. See Interim Final Rule 
Regarding Definition of Federal Election Activity, 71 FR 14357 (Mar. 
22, 2006) (``Interim Final Rule'').\7\ The Interim Final Rule added new 
paragraph (a)(1)(iii) to 11 CFR 100.24 to ``ensure[] that the FEA 
requirements do not extend to activities that are solely in connection 
with these upcoming non-Federal elections and are therefore beyond the 
scope of FECA.'' See Interim Final Rule, 71 FR at 14357. New section 
100.24(a)(1)(iii) exempts ``any activity or communication that is in 
connection with a non-Federal election that is held on a date separate 
from a date of any Federal election'' and that refers exclusively to: 
(1) Non-Federal candidates participating in the non-Federal election, 
provided the non-Federal candidates are not also Federal candidates; 
(2) ballot referenda or initiatives scheduled for the date of the non-
Federal election; or (3) the date, polling hours and locations of the 
non-Federal election. See 11 CFR 100.24(a)(1)(iii)(A)(1)-(3); Interim 
Final Rule, 71 FR at 14359-60.
---------------------------------------------------------------------------

    \7\ A proposed exception to the Type II FEA time periods for 
activity in the time period leading up to a municipal election was 
included in the proposed rules but was not adopted. See Notice of 
Proposed Rulemaking on the Definition of Federal Election Activity, 
70 FR 23068, 23071-72 (May 4, 2005).
---------------------------------------------------------------------------

    This rule was promulgated as an Interim Final Rule and expires on 
September 1, 2007. See 11 CFR 100.24(a)(1)(iii)(B); Interim Final Rule, 
71 FR at 14358. The Commission sought public comment on the Interim 
Final Rule, and received two comments. The comments are available at 
https://www.fec.gov/law/law_rulemakings.shtml under the heading 
``Definition of Federal Election Activity.''

II. Proposed Revisions to 11 CFR 100.24(a)(1)--Type II FEA Time Periods

    The proposed rule would make permanent section 100.24(a)(1)(iii) as 
added by the Interim Final Rule (with some stylistic and technical 
changes explained below). The Commission seeks public comment on 
whether non-Federal candidates and State, district or local party 
committees conducted voter identification and GOTV activities under the 
exemption in the Interim Final Rule in the 2006 election cycle, and 
invites commenters to suggest modifications of the proposed rule based 
on their experience, if any, with the Interim Final Rule. Would such a 
rule exclude ``purely non-Federal'' voter identification and GOTV 
activities by State, district and local committees? Would such a rule 
be consistent with Congressional intent?

A. Proposed 11 CFR 100.24(a)(1)(iii)--Activities Solely in Connection 
With Certain Non-Federal Elections

    First, the proposed rule provides that voter identification or GOTV 
activities that are ``solely in connection with a non-Federal election 
held on a date separate from any Federal election'' are exempt from 
Type II FEA. See proposed 11 CFR 100.24(a)(1)(iii) (emphasis added). 
For example, a GOTV program offering to transport voters to the polls 
on the day of an exclusively non-Federal election would be eligible for 
the proposed exemption. However, a voter identification program 
collecting information both about voters' preferences in a non-Federal 
election in March and a Federal primary election in April would not 
qualify. Thus, the proposed rule would not exclude all activities by 
State, district and local parties in the weeks (or months) between the 
start of the Type II FEA time period and a non-Federal election. The 
Commission seeks comment on this approach.
    In addition, the proposed rule would only apply if the non-Federal 
election were held on a wholly separate date from any Federal election. 
See proposed 11 CFR 100.24(a)(1)(iii). This proposed rule is based on 
the premise that this voter identification and GOTV activity for non-
Federal elections held on a different date from any Federal election 
will have no effect on previous or subsequent Federal elections. The 
Commission intends the proposed exemption to be narrowly tailored and 
not to apply to activities that are also in connection with a Federal 
election.\8\ For example, if a GOTV communication provides the date of 
a non-Federal election and offers transportation to voters for such a 
non-Federal election, is it likely that such activity would have any 
effect on voter turnout for a Federal election held on a separate, and 
perhaps much later, date? The Commission seeks comments, especially in 
the form of empirical data, on whether voter identification and GOTV 
efforts in connection with a non-Federal election have a measurable 
effect on voter turnout in a subsequent Federal election, or otherwise 
confer benefits on

[[Page 31475]]

Federal candidates. Are there any relevant data from the 2006 elections 
to indicate whether activities conducted under the interim rule had any 
effect on turnout in 2006 Federal elections?
---------------------------------------------------------------------------

    \8\ The Interim Final Rule did not include the word ``solely,'' 
but explained that ``[a]ny activity that is also in connection with 
a Federal election renders the interim final rule inapplicable.'' 
Interim Final Rule, 71 FR at 14359-60.
---------------------------------------------------------------------------

    Should the exemption take into account the proximity of the next 
Federal election? For example, should the rule distinguish between 
situations where the next Federal election is only six days later, as 
opposed to six months?
    The proposed exemption would not extend to any activities conducted 
in connection with a non-Federal election held on the same date as a 
Federal election, even if the activity does not refer to any Federal 
candidates. Are there certain conditions under which an activity in 
connection with a non-Federal election held on the same date as a 
Federal election should also be exempted from the Type II FEA time 
periods? For example, should the proposed rule apply if both elections 
were held at the same polling sites but used separate ballots?

B. Proposed 11 CFR 100.24(a)(1)(iii)(A)-(C)--Content of Voter 
Identification and GOTV Communications

    The final requirement to be eligible for the proposed exemption is 
that the voter identification or GOTV activity must involve a 
communication that refers exclusively to one or more of the following: 
(1) The non-Federal candidates on the non-Federal election ballot who 
are not also Federal candidates; (2) ballot initiatives or referenda 
included in the non-Federal election; or (3) the date, times, or 
polling locations of the non-Federal election.\9\ See proposed 11 CFR 
100.24(a)(1)(iii)(A)-(C). This proposed requirement implements proposed 
section 100.24(a)(1)(iii)'s general restriction that the voter 
identification or GOTV activity be solely in connection with the non-
Federal election. The proposed rule's formulation is also consistent 
with statutory exclusions from the definition of FEA that are limited 
to certain types of activity that refer only to State or local 
candidates, as discussed above. See 2 U.S.C. 431(20)(B)(i) and (iv); 11 
CFR 100.24(c)(1) and (4). Should the ballot initiative prong be limited 
to ballot issues that have no impact on Federal elections?
---------------------------------------------------------------------------

    \9\ Under Commission regulations, ``voter identification'' 
activity includes ``acquiring information about potential voters'' 
and creating or modifying voter lists with information regarding 
``voters' likelihood of voting in an upcoming election or their 
likelihood of voting for specific candidates.'' See 11 CFR 
100.24(a)(4). GOTV activity includes contacting voters ``to assist 
them in engaging in the act of voting,'' such as providing 
information about date, times and locations of polling places and 
offering transport to polling places. See 11 CFR 100.24(a)(3).
---------------------------------------------------------------------------

    The Commission seeks comments on whether this proposed list of 
subjects in proposed section 100.24(a)(1)(iii)(A) through (C) should be 
expanded or narrowed. Should the Commission require that communications 
include a reference to the date of the non-Federal election for the 
proposed exemption to apply? Should the exception be expanded to 
include communications discussing specific issues that are exclusively 
a state or local concern? Should ``the date, polling hours, or polling 
locations of the non-Federal election'' be defined to include absentee 
ballot or vote-by-mail information?
    With respect to candidate references, the proposed rule would 
specify that if a non-Federal candidate is also seeking Federal office 
and satisfies FECA's definition of ``candidate,'' then the proposed 
exemption would not apply. See proposed 11 CFR 100.24(a)(1)(iii)(A). 
The proposed rule would apply to communications containing specific 
references to non-Federal candidates by name, nickname, photograph or 
other likeness, as well as to general references to non-Federal 
candidates by party. For example, assuming that the non-Federal 
election is held on a date separate from a Federal election, a GOTV 
phone bank that urges voters to vote for ``Smith for Mayor'' and that 
also refers to ``the great Democratic team'' would qualify under the 
proposed rule. The proposed exemption would also apply to a 
communication that otherwise meets the definition of GOTV \10\ if such 
a communication also includes language such as ``Vote Republican on May 
5'' even though no individual non-Federal candidate is mentioned by 
name, because it refers exclusively to non-Federal candidates on the 
ballot on the date of the non-Federal election. The Commission seeks 
comment on this approach. Moreover, should the exception be limited to 
cover only references to clearly identified non-Federal candidates?
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    \10\ See 11 CFR 100.24(a)(3) (2006); Final Rule: Definition of 
Federal Election Activity, 71 FR 8926 (Feb. 22, 2006); Advisory 
Opinion 2006-19 (Los Angeles County Democratic Party Central 
Committee).
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    With regard to references to the date or the polling hours or the 
polling locations of the non-Federal election, this proposed rule would 
revise the Interim Final Rule to clarify that it is not necessary to 
include all three categories of information in order to qualify for the 
proposed exemption. For example, a GOTV communication that refers only 
the date of the non-Federal election without any information regarding 
polling hours or locations would satisfy this proposed requirement. The 
Commission seeks comment on this approach.

C. Type II FEA Activity Included in Proposed Rule

    As discussed above, three kinds of activity are governed by the 
Type II FEA time periods in 11 CFR 100.24(a)(1): voter identification, 
GOTV, and generic campaign activity. See 2 U.S.C. 431(20)(A)(ii). The 
proposed rule would only apply to voter identification and GOTV 
activity in connection with non-Federal elections. See proposed 11 CFR 
100.24(a)(1)(iii). The Commission seeks comment on this approach. These 
types of activities, such as identifying voter preferences for updating 
a voter list or phone calls reminding voters to vote for a particular 
candidate on Election Day, are usually for the purpose of promoting 
specific candidates and can be conducted solely in connection with a 
non-Federal election.
    The proposed rule does not exempt generic campaign activity. 
Generic campaign activity is defined as ``a public communication that 
promotes or opposes a political party and does not promote or oppose a 
clearly identified Federal candidate or a non-Federal candidate.'' See 
2 U.S.C. 431(21); 11 CFR 100.25. For example, ``Vote for the Democrats 
on May 4th'' could constitute generic campaign activity under this 
definition. The Commission notes that some generic campaign activity 
could be presumed to be in connection with both Federal and non-Federal 
elections. Should the Commission include generic campaign activity in 
the final rule? How could the Commission draft such a rule to ensure 
that only generic campaign activity affecting (and made solely in 
connection with) non-Federal elections is exempted? Does the inclusion 
of the phrase ``on May 4th'' in the above example serve to ensure that 
the communication will affect only the election held on May 4th? 
Alternatively, should generic campaign activity be excluded from the 
final rule?
    Although voter identification is included in the proposed rule, 
initial acquisition or purchase of voter lists generally would not meet 
the requirements of the proposed rule because most State, district and 
local party committees and organizations will acquire voter lists for 
use in connection with more than one election. However, if a State, 
district, or local party committee or organization were able to show 
that it acquired a voter list to conduct GOTV activities and/or voter 
identification solely for a non-Federal election held on a date 
separate from

[[Page 31476]]

any Federal election, acquisition of the voter list could meet the 
requirements of the proposed rule.\11\
---------------------------------------------------------------------------

    \11\ State, district and local party committees would also have 
to use the voter list for a communication that refers exclusively to 
one or more of the three topics listed in proposed section 
100.24(a)(1)(iii) (A) through (C), as discussed above.
---------------------------------------------------------------------------

    To qualify for the proposed exemption, the voter list must be the 
closest available to the list of eligible voters in the qualifying non-
Federal election. For example, a county-wide voter list may not be the 
closest matching voter list for some non-Federal elections (e.g., a 
municipal election), unless there were no more specific list available. 
Choosing a list of voters that goes beyond the voters participating in 
a municipal election would demonstrate that the voter identification 
program is not exclusively in connection with the municipal election. 
Accordingly, the costs of such a voter list would be treated as FEA. 
Are there situations in which this conclusion would not be warranted? 
For example, if the smaller voter list were significantly more 
expensive than the larger list, should acquisition of the larger list 
be permitted?
    Similarly, if a list is acquired and used for a non-Federal 
election, but is then also used for any activity in connection with a 
subsequent Federal election, or for a non-Federal election held on the 
same date as a Federal election, the acquisition of the list would not 
meet the requirements of the proposed rule and the cost of the voter 
list would be treated as FEA. Should the party organization be 
permitted to allocate the cost of the list in proportion to its use in 
connection with non-Federal and Federal elections?
    The Commission seeks comment on this approach to voter list 
acquisition under the proposed rule. Is it feasible for State, district 
and local parties to show that the acquisition of a voter list was 
solely in connection with a non-Federal election by tracking when a 
certain voter list is ``used'' in connection with certain elections? 
Section 100.24(a)(4) states that the date the list was purchased 
governs whether the costs of the voter list must be treated as FEA, 
regardless of the party's use of that list. However, the proposed 
exemption for voter identification would depend upon when and how the 
party uses a voter list. Is the proposed rule's approach to voter list 
acquisition inconsistent with the general definition of ``voter 
identification?''
    How should the Commission apply the proposed rule to other types of 
voter identification activities, such as updating a voter list with 
revised contact information or voter preferences? Should a State, 
district or local party that expends time and resources to update and 
add voter information to a list in connection with a non-Federal 
election be barred from using updated information in subsequent Federal 
elections, or would the costs be allocated if the list is used in a 
subsequent Federal election? As an alternative, should the Commission 
eliminate voter list acquisition and maintenance, i.e. voter 
identification, from the proposed exemption?

D. Allocating the Costs for Activity Under the Proposed Exemption

    Although voter identification and GOTV activities meeting the 
requirements of the proposed rule would not be considered FEA, a State, 
district or local party committee may be required to pay the costs of 
those activities using a ratio of Federal and non-Federal funds under 
the Commission's existing allocation rules at 11 CFR 106.7. State, 
district or local party committees that conduct activities in 
connection with non-Federal elections, but do not conduct any activity 
in connection with Federal elections, are not subject to the allocation 
rules in section 106.7. See 11 CFR 106.7(b). Under the proposed rule 
and section 106.7, those organizations may continue to pay for the 
activities described in the proposed rule entirely with non-Federal 
funds. However, State, district, and local political party committees 
that make expenditures and disbursements in connection with both 
Federal and non-Federal elections during an election cycle are required 
to use an allocable mix of Federal and non-Federal funds to pay for 
certain expenses that are not FEA pursuant to 11 CFR 100.24. See 11 CFR 
106.7(b) and (c).\12\
---------------------------------------------------------------------------

    \12\ Pursuant to 11 CFR 106.7(b), political party organizations 
that are not political committees under FECA may establish separate 
Federal and non-Federal accounts or use a ``reasonable accounting 
method approved by the Commission'' to allocate their voter drive 
expenses between Federal and non-Federal funds. As an alternative to 
allocating expenses, party committees may pay allocable expenses 
entirely with Federal funds. See 11 CFR 106.7(b)
---------------------------------------------------------------------------

    Section 106.7(c) lists five categories of costs which must be 
allocated between Federal and non-Federal funds according to specific 
ratios: (1) Certain salaries and wages; (2) administrative costs; (3) 
exempt party activities that are not FEA (such as slate cards and 
sample ballots); (4) certain fundraising costs; and (5) certain voter 
drive activities that are not FEA or party exempt activities. Some 
voter identification and GOTV activities that are eligible for the 
proposed exemption may also qualify as allocable voter drive activities 
under section 106.7(c)(5). Section 106.7(c)(5) requires allocation of 
certain voter identification, voter registration, GOTV activities, and 
any other activities that urge the general public to register or vote, 
or that promote or oppose a political party without promoting or 
opposing a Federal or non-Federal candidate. Thus, for example, a GOTV 
communication that exclusively refers to the date and polling location 
for a non-Federal election held on a date separate from any Federal 
election would be eligible for the proposed exemption under proposed 
section 100.24(a)(1)(iii)(C). This GOTV communication would, however, 
also be considered voter drive activity subject to allocation under 
section 106.7(c)(5) because it is not FEA or exempt party activity and 
it encourages the general public to vote without promoting or opposing 
any Federal or non-Federal candidates.
    Thus, even under the proposed rule, use of non-Federal funds would 
be limited for those voter identification and GOTV activities that are 
conducted ``solely in connection with a non-Federal election,'' but 
also qualify as allocable voter drive activity. The Commission seeks 
comment on this application of the allocation rules to activities 
eligible for the proposed exemption.

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

    The Commission certifies that the attached proposed rule, if 
adopted, will 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 political 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

[[Page 31477]]

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. Finally, the proposed rule would operate to relieve 
funding restrictions, which reduces the economic impact on any affected 
entities.

List of Subjects in 11 CFR Part 100

    Elections.

    For the reasons set out in the preamble, the Federal Election 
Commission proposes to amend Subchapter A of Chapter 1 of Title 11 of 
the Code of Federal Regulations 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, paragraph (a)(1)(iii) would be revised to read 
as follows:


Sec.  100.24  Federal Election Activity (2 U.S.C. 431(20)).

    (a) * * *
    (1) * * *
    (iii) Notwithstanding paragraphs (a)(1)(i) and (ii) of this 
section, in connection with an election in which a candidate for 
Federal office appears on the ballot does not include any voter 
identification or get-out-the-vote activity that is solely in 
connection with a non-Federal election held on a date separate from any 
Federal election, and that involves a communication that refers 
exclusively to:
    (A) Non-Federal candidates participating in the non-Federal 
election, provided the non-Federal candidates are not also Federal 
candidates;
    (B) Ballot referenda or initiatives scheduled for the date of the 
non-Federal election; or
    (C) The date, polling hours or polling locations of the non-Federal 
election.
* * * * *

    Dated: June 1, 2007.
Robert D. Lenhard,
Chairman, Federal Election Commission.
 [FR Doc. E7-10994 Filed 6-6-07; 8:45 am]
BILLING CODE 6715-01-P

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