Electioneering Communications, 72899-72915 [E7-24797]

Agencies

• Federal Election Commission

[Federal Register Volume 72, Number 246 (Wednesday, December 26, 2007)]
[Rules and Regulations]
[Pages 72899-72915]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24797]



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Federal Register / Vol. 72, No. 246 / Wednesday, December 26, 2007 / 
Rules and Regulations

[[Page 72899]]



FEDERAL ELECTION COMMISSION

11 CFR Part 104, 114

[Notice 2007-26]


Electioneering Communications

AGENCY: Federal Election Commission.

ACTION: Final rule and transmittal of rule to Congress.

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SUMMARY: The Federal Election Commission is revising its rules 
governing electioneering communications. These revisions implement the 
Supreme Court's decision in FEC v. Wisconsin Right to Life, Inc., which 
held that the prohibition on the use of corporate and labor 
organization funds for electioneering communications is 
unconstitutional as applied to certain types of electioneering 
communications. Further information is provided in the supplementary 
information that follows.

DATES: Effective Date: December 26, 2007.

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

SUPPLEMENTARY INFORMATION:  The Commission is revising 11 CFR parts 104 
and 114 to implement the recent U.S. Supreme Court decision in FEC v. 
Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (June 25, 2007).

I. Background

A. Statutory and Regulatory Provisions Governing Electioneering 
Communications

    The Bipartisan Campaign Reform Act of 2002 (``BCRA'') \1\ amended 
the Federal Election Campaign Act of 1971, as amended (the ``Act'' or 
``FECA''),\2\ by adding a new category of political communications, 
``electioneering communications,'' to those already governed by the 
Act. See 2 U.S.C. 434(f)(3). Electioneering communications (``ECs'') 
are broadcast, cable or satellite communications that refer to a 
clearly identified candidate for Federal office, are publicly 
distributed within sixty days before a general election or thirty days 
before a primary election, and are targeted to the relevant electorate. 
See 2 U.S.C. 434(f)(3)(A)(i). Individuals and entities that make ECs 
are subject to certain reporting obligations. See 2 U.S.C. 434(f)(1) 
and (2). Corporations and labor organizations are prohibited from using 
general treasury funds to finance ECs, directly or indirectly. See 2 
U.S.C. 441b(b)(2). Finally, all ECs must include a disclaimer including 
the name of the individual or entity who paid for the EC and a 
statement as to whether or not the EC was authorized by a candidate. 
See 2 U.S.C. 441d(a).
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    \1\ Pub. L. 107-155, 116 Stat. 81 (2002).
    \2\ 2 U.S.C. 431 et seq.
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    The Act exempts certain communications from the definition of 
``electioneering communication'' found in 2 U.S.C. 434(f)(3)(B)(i) to 
(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 
candidate. See 2 U.S.C. 434(f)(3)(B)(iv), citing 2 U.S.C. 
431(20)(A)(iii).
    The Commission promulgated regulations to implement BCRA's EC 
provisions. Final Rules and Explanation and Justification for 
Regulations on Electioneering Communications, 67 FR 65190 (Oct. 23, 
2002) (``EC E&J'').\3\ See also 11 CFR 100.29 (defining 
``electioneering communication''); 104.20 (implementing EC reporting 
requirements); 110.11(a) (requiring disclaimers in all ECs); 114.2 
(prohibiting corporations and labor organizations from making ECs); 
114.10 (allowing qualified non-profit corporations (``QNCs'') to make 
ECs); 114.14 (restricting indirect corporate and labor organization 
funding of ECs). Commission regulations exempt five types of 
communications from the definition of ``electioneering communication.'' 
See 11 CFR 100.29(c).\4\
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    \3\ The Commission revised its rule defining ``electioneering 
communication'' in 2005, in response to Shays v. FEC, 337 F. Supp. 
2d 28 (D.D.C. 2004), aff'd, 414 F.3d 76 (D.C. Cir. 2005), reh'g en 
banc denied, No. 04-5352 (D.C. Cir. Oct. 21, 2005). See Final Rules 
and Explanation and Justification for Regulations on Electioneering 
Communications, 70 FR 75713 (Dec. 21, 2005).
    \4\ The exemptions in 11 CFR 100.29(c)(1) (non-broadcast 
communications), 100.29(c)(2) (news stories, commentaries or 
editorials), 100.29(c)(3) (expenditures and independent 
expenditures) and 100.29(c)(4) (candidate debates or forums) are 
based on the express language of the Act. See 2 U.S.C. 
434(f)(3)(B)(i) to (iii). Section 100.29(c)(5) exempts 
communications paid for by State or local candidates that do not 
PASO any Federal candidate.
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B. U.S. Supreme Court Precedent Regarding Electioneering Communications

    In McConnell v. FEC, 540 U.S. 93 (2003) (``McConnell''), the U.S. 
Supreme Court upheld all of BCRA's EC provisions against various 
constitutional challenges. Id. at 194, 201-02, 207-08. Specifically, 
the Supreme Court held that the prohibition on the use of general 
treasury funds by corporations and labor organizations to pay for ECs 
in 2 U.S.C. 441b(b)(2) was not facially overbroad. Id. at 204-06. In 
Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) (``WRTL I''), 
the U.S. Supreme Court explained that McConnell's upholding of section 
441b(b)(2) against a facial constitutional challenge did not preclude 
further as-applied challenges to the corporate and labor organization 
funding prohibitions. See WRTL I, 546 U.S. at 411-12.
    Subsequently, in FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 
2652 (2007) (``WRTL II''), the Supreme Court reviewed an as-applied 
challenge brought by a non-profit corporation seeking to use its own 
general treasury funds, which included donations it had received from 
other corporations, to pay for broadcast advertisements referring to 
Senator Feingold and Senator Kohl during the EC period before the 2004 
general election, in which Senator Feingold, but not Senator Kohl, was 
on the ballot. The plaintiff argued that these communications were 
genuine issue advertisements run as part of a grassroots lobbying 
campaign on the issue of Senate filibusters of judicial nominations. 
WRTL II, 127 S. Ct. at 2660-61. The Supreme Court held that section 
441b(b)(2) was unconstitutional as applied to the plaintiff's 
advertisements because the

[[Page 72900]]

advertisements were not the ``functional equivalent of express 
advocacy.'' Id. at 2670, 2673. A communication is the ``functional 
equivalent of express advocacy'' only if it ``is susceptible of no 
reasonable interpretation other than as an appeal to vote for or 
against a specific candidate.'' Id. at 2667. Thus, WRTL II limited the 
reach of the EC funding prohibitions to communications that were the 
``functional equivalent of express advocacy'' as determined under this 
newly articulated test.

C. The Commission's Rulemaking After WRTL II

    The Commission published a Notice of Proposed Rulemaking in August 
2007 seeking public comment on alternative proposed rules implementing 
the WRTL II decision. See Notice of Proposed Rulemaking on 
Electioneering Communications, 72 FR 50261, 50262 (August 31, 2007) 
(``NPRM''). The Commission sought public comment generally regarding 
the effect of the WRTL II decision on the Commission's rules governing 
corporate and labor organization funding of ECs, the definition of 
``electioneering communication,'' and the rules governing reporting of 
ECs, as well as comment on the specific requirements of the proposed 
rules. The Commission also requested public comment regarding specific 
examples of communications that should be covered by the proposed rules 
and those that should not be. Id. at 50267-69. Finally, the Commission 
sought public comment regarding the impact, if any, of the WRTL II 
decision on other parts of the Commission's regulations, such as the 
definition of ``express advocacy'' in 11 CFR 100.22. Id. at 50263. The 
comment period ended on October 1, 2007. The Commission received 
twenty-seven written comments on the proposed rules. The Commission 
held a public hearing to discuss the proposed rules on October 17 and 
18, 2007 at which fifteen witnesses testified. All written comments and 
hearing transcripts are available at https://www.fec.gov/law/law_
rulemakings.shtml under the heading ``Electioneering Communications 
(2007).'' For purposes of this document, the terms ``comment'' and 
``commenter'' apply to both written comments and oral testimony at the 
public hearing.
    After consideration of the comments, the Commission has decided to 
implement the WRTL II decision by promulgating an exemption from the 
corporate and labor organization funding prohibitions in part 114 of 
the Commission's rules. Under the final rule, ECs that qualify for the 
WRTL II exemption may be funded with corporate and/or labor 
organization funds, including general treasury funds, but are subject 
to EC reporting and disclaimer requirements. The EC reporting 
requirements in 11 CFR 104.20 are also being revised to accommodate 
both reporting by corporations and labor organizations for ECs 
permissible under the new exemption, and reporting the use of corporate 
and labor organization donations by individuals and unincorporated 
entities to pay for ECs permissible under the new exemption. The 
Commission has decided to leave open possible revisions to the 
definition of ``express advocacy'' in 11 CFR 100.22 and to address the 
issue at a later date.

II. Effective Date and Transmittal of Final Rules to Congress

    The final rule is effective immediately upon publication under 5 
U.S.C. 553(d)(1) and (d)(3). Typically, rules must be published not 
less than thirty days before their effective dates under the 
Administrative Procedure Act (``APA''). See 5 U.S.C. 553(d). However, a 
rule that ``grants or recognizes an exemption or relieves a 
restriction'' is exempted from this requirement under 5 U.S.C. 
553(d)(1). This final rule grants an exemption and relieves the funding 
restrictions for certain communications that meet the definition of 
``electioneering communications.'' Therefore, this final rule meets 
this exception to the APA, is not required to be published thirty days 
prior to its effective date, and will therefore be effective 
immediately upon publication. In addition, 5 U.S.C. 553(d)(3) states 
that an agency may make a rule effective immediately ``for good cause 
found and published with the rule.'' The U.S. Supreme Court's decision 
in WRTL II was issued on June 25, 2007, less than six months before the 
first EC periods began (thirty days before various state Presidential 
caucuses and primaries in January 2008). The Commission has worked 
diligently to promulgate the final rule in time to provide guidance to 
organizations as to the permissible funding and required reporting for 
communications broadcast within the EC periods, which began in early 
December 2007 for certain states. The final rule implementing the WRTL 
II decision should apply to all EC periods for the 2008 election cycle 
and it would be contrary to the public interest to delay the effective 
date of the final rule until some time after the first EC periods 
start. Therefore, the Commission has ``good cause'' under section 
553(d)(3) to make the final rule effective immediately.
    Under the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 
801(a)(1), agencies must submit final rules to the Speaker of the House 
of Representatives and the President of the Senate before they take 
effect. The final rule that follows was transmitted to Congress on 
December 17, 2007.

III. Explanation and Justification

A. Scope of the WRTL II Electioneering Communications Exemption

    The NPRM included two alternative proposals implementing the WRTL 
II decision in the rules governing ECs. Alternative 1 incorporated the 
new exemption into the rules prohibiting the use of corporate and labor 
organization funds for ECs in 11 CFR part 114. See NPRM at 50262. This 
alternative required corporations and labor organizations to comply 
with the reporting and disclaimer requirements for all ECs that qualify 
for the exemption. Alternative 2 incorporated the new exemption into 
the definition of ``electioneering communication'' in 11 CFR 100.29. 
This alternative removed all reporting and disclaimer requirements for 
these communications, whether run by corporations and labor 
organizations, or individuals and unincorporated entities not subject 
to the funding prohibitions in part 114. See NPRM at 50262-63.
    The commenters were divided in their support for each alternative. 
Commenters supporting Alternative 1 pointed out that the plaintiffs in 
WRTL II did not challenge the EC reporting and disclaimer requirements, 
the Court did not address the issue of whether the EC reporting 
requirements were constitutional as applied to genuine issue 
advertisements, and the EC reporting requirements had been upheld 
against a facial challenge in McConnell. These commenters also 
contended that disclosure requirements are held to a less rigorous 
constitutional standard than funding prohibitions, and that a broader 
exemption would violate the Commission's statutory authority. In 
contrast, commenters supporting Alternative 2 argued that WRTL II held 
that the communications at issue were protected from any regulation 
(including disclosure), that the constitutionality of disclosure 
requirements is linked to the constitutionality of the funding 
restrictions on the communication, and that the costs of compliance 
with reporting obligations would chill speech by small nonprofit 
organizations. Some commenters stated their policy preference would be 
to adopt Alternative 2 and remove reporting

[[Page 72901]]

requirements for communications qualifying for the WRTL II exemption, 
but argued that the Commission's authority was confined to creating an 
exemption from the funding restrictions on ECs unless the EC reporting 
and disclaimer provisions are successfully challenged in court.
    After consideration of the comments, the Commission has decided to 
adopt a revised version of Alternative 1 and create an exemption solely 
from the prohibition on the use of corporate and labor organization 
funds to finance ECs. Accordingly, the revisions to 11 CFR 114.2 and 
new section 114.15 do not create (1) an exemption from the overall 
definition of ``electioneering communication'' in section 100.29, (2) 
an exemption from the EC reporting requirements in section 104.20, or 
(3) an exemption from the EC disclaimer requirements in section 110.11. 
Corporations and labor organizations are permitted to use general 
treasury funds for ECs that are permissible under section 114.15, but 
are also required to file EC disclosure reports once they spend more 
than $10,000 in a calendar year on such communications. See revised 11 
CFR 104.20.
    The plaintiff in WRTL II challenged only BCRA's corporate and labor 
organization funding restrictions in section 441b(b)(2) and did not 
contest either the separate statutory definition of ``electioneering 
communication'' in section 434(f)(3), the separate reporting 
requirement in section 434(f)(1), or the separate disclaimer 
requirement in section 441d. See WRTL II, 127 S. Ct. at 2658-59; see 
also Verified Complaint for Declaratory and Injunctive Relief, ] 36 
(July 28, 2004) in Wisconsin Right to Life, Inc. v. FEC (No. 04-1260), 
available at https://fecds005.fec.gov/law/litigation_
related.shtml#wrtl_dc (``WRTL does not challenge the reporting and 
disclaimer requirements for electioneering communications, only the 
prohibition on using its corporate funds for its grass-roots lobbying 
advertisements.''). Nor did any of the four separate opinions issued by 
the Justices in WRTL II discuss the EC reporting or disclaimer 
requirements. Accordingly, the Commission agrees with the commenters 
who argued that WRTL II's holding that the Act's EC funding 
restrictions are unconstitutional as applied to certain advertisements 
does not extend to the EC reporting or disclaimer requirements.
    Because WRTL II did not address the issue, McConnell continues to 
be the controlling constitutional holding regarding the EC reporting 
and disclaimer requirements. McConnell held that the overall definition 
of ``electioneering communication'' in section 434(f)(3) is facially 
valid. McConnell, 540 U.S. at 193-94. Moreover, eight Justices in 
McConnell voted to uphold the EC reporting requirements (including 
three Justices who separately voted to strike down the EC funding 
prohibitions). Id., 540 U.S. at 196 (Stevens, J.) and 321 (Kennedy, 
J.). The EC disclaimer requirements were similarly upheld as 
constitutional by a vote of 8-1. McConnell, 540 U.S. at 230 (Rehnquist, 
C.J., joined by all Justices except Thomas, J.). Thus, because 
McConnell has upheld the definition of ECs, as well as the reporting 
and disclaimer requirements, as facially valid, and because WRTL II did 
not address these provisions, the Commission has no mandate to revise 
the underlying definition of ``electioneering communication'' or remove 
the reporting and disclaimer requirements. WRTL II requires that the 
Commission implement an as-applied exemption to the EC funding 
requirements and nothing more. By adopting a revised version of 
Alternative 1, the Commission is acting in accordance with WRTL II.
    The Commission disagrees with the comments that contended that 
Alternative 2 is more consistent with the Congressional intent because 
they believed BCRA did not contemplate reporting by corporations and 
labor organizations. While it is true that under BCRA, corporations and 
labor organizations were prohibited from funding any ECs, the statute 
requires every ``person'' (which by definition includes corporations 
and labor organizations) funding ECs over the reporting threshold to 
report. 2 U.S.C. 431(11). Moreover, incorporating the WRTL II exemption 
into the regulatory definition would remove certain ECs that are 
currently subject to reporting and disclaimer requirements when run by 
individuals, QNCs, or unincorporated entities from public disclosure 
entirely. While Congress provided for certain possible effects of 
judicial review of the definition of ``electioneering communication'' 
(see 2 U.S.C. 434(f)(3)(A)(ii)), Congress did not expressly address the 
consequences for the reporting provisions in the event of a successful 
as applied challenge to the funding restrictions. Thus, the Commission 
cannot conclude that Congress has spoken directly to this issue.
    Finally, while understanding that some nonprofit organizations and 
their donors have privacy interests and that some donors request to 
remain anonymous, the Commission disagrees with the commenters who 
argue the only constitutional way to protect those interests is to 
adopt Alternative 2, thereby allowing all ECs that qualify for the WRTL 
II exemption to be run without any disclaimers or reporting. First, 
under revised section 104.20 described below, the reporting 
requirements for corporations and labor organizations funding ECs that 
qualify for the WRTL II exemption are narrowly tailored to address many 
of the commenters' concerns regarding individual donor privacy. See 
Section D below. Second, as some commenters noted, there are other ways 
of protecting donor privacy. When upholding the EC reporting 
requirements, McConnell recognized that these privacy interests are 
adequately protected on a case-by-case basis for certain organizations 
that espouse positions such that their donors or members might be 
subject to reprisal or harassment. See McConnell, 540 U.S. at 198-99 
(citing Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 
87, 98-99 (1982)). Organizations with significant and serious threats 
of reprisal or harassment may seek as-applied exemptions to the 
disclosure requirements under Socialist Workers through advisory 
opinions and court filings. See, e.g., Advisory Opinion 2003-02 
(Socialist Workers Party). Therefore, the Commission believes that the 
carefully designed reporting requirements detailed below do not create 
unreasonable burdens on the privacy rights of donors to nonprofit 
organizations.
    The Commission notes that the final rule does not affect the 
coordinated communications rules in section 109.21, because ECs that 
are permissible under section 114.15 would still meet the 
``electioneering communication'' content standard in 11 CFR 
109.21(c)(1).\5\ Thus, an EC that may be paid for with corporation or 
labor organization funds under the new exemption in section 114.15 may 
nevertheless be a prohibited corporate or labor organization in-kind 
contribution to a candidate or political party if that EC is 
coordinated with a candidate or party under the coordinated 
communications rules. In

[[Page 72902]]

addition, the revisions to section 114.14 clarify that individuals and 
unincorporated entities may receive and spend corporate or labor 
organization funds for ECs that are permissible under new section 
114.15. However, individuals and unincorporated entities are still 
subject to the general prohibition on using such funds to pay for any 
EC that is not permissible under section 114.15.
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    \5\ The coordinated communication rules set forth a three-prong 
test: A payment prong, a content prong and a conduct prong. See 11 
CFR 109.21(a). If a communication meets one of the standards under 
the content or conduct prong, it is deemed to have met that prong. 
Any communication that meets all three prongs is considered an in 
kind contribution to the candidate or political party with which the 
coordination occurs. See 11 CFR 109.21(b). Portions of the 
coordination regulations at 11 CFR 109.21 were held invalid in Shays 
v. FEC, 508 F. Supp.2d 10 (2007). However, the Commission is 
appealing the ruling and the current regulations remain in full 
force and effect pending the outcome of the proceeding.
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B. Revised 11 CFR 114.2--General Prohibition on Corporations and Labor 
Organizations Making Electioneering Communications

    Section 114.2(b)(2)(iii) implements the funding restrictions of 2 
U.S.C. 441b(b)(2) by prohibiting corporations and labor organizations 
from ``[m]aking payments for an electioneering communication to those 
outside the restricted class.'' However, as explained in the NPRM, 
placing a detailed exemption based on the WRTL II decision within 
section 114.2(b) could be confusing and difficult for the reader to 
locate. See id. Therefore, in the NPRM, the Commission proposed to 
place the exemption in new section 114.15. None of the commenters 
opposed the placement of the exemption in new section 114.15.
    The final rule follows the approach proposed in the NPRM by setting 
forth the WRTL II exemption in new section 114.15, and amending section 
114.2(b) to include a cross-reference to this new section. Revised 
section 114.2(b) states that corporations and labor organizations are 
prohibited from making ECs ``unless permissible under 11 CFR 114.10 or 
114.15.'' See revised 11 CFR 114.2(b)(3) (adding the new WRTL II 
exemption reference to the existing reference to the QNC exemption in 
section 114.10).\6\ The language of the final rule is slightly changed 
from the proposed rule to conform the cross-reference in section 
114.2(b)(3) to similar revisions in other sections of part 114. See, 
e.g., revised 11 CFR 104.20(c)(7) and 114.14(a)(1) discussed below.
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    \6\ To increase clarity and readability, the final rule also 
revises the title of section 114.2 to include ECs explicitly, and to 
renumber paragraph (b)(2)(iii) as paragraph (b)(3) with conforming 
changes as necessary in the text of that paragraph.
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C. New 11 CFR 114.15--Permissible Use of Corporate and Labor 
Organization Funds for Certain Electioneering Communications

    The exemption proposed in the NPRM was substantively the same under 
both Alternative 1 and 2. See NPRM at 50264. Under Alternative 1, 
proposed section 114.15(a) set forth the general standard for 
determining whether the use of corporate and labor organization funds 
for an EC is permissible under WRTL II. Proposed section 114.15(b) 
included safe harbor provisions for two common types of ECs: Grassroots 
lobbying communications and commercial and business advertisements. The 
NPRM explained that the safe harbors were intended to provide 
additional guidance as to which ECs would qualify for the general 
exemption and that an EC that did not qualify for the safe harbor could 
still come within the general exemption. See id. Finally, proposed 
section 114.15(c) addressed reporting obligations for corporations and 
labor organizations that choose to use general treasury funds to pay 
for ECs permissible under section 114.15. See id.
    Some commenters favored the proposed rule's approach of including 
both a general exemption and one or more safe harbors. A few commenters 
suggested that the final rule should include not only safe harbors, but 
also ``capture nets or red flags'' that would indicate when an EC would 
generally be considered to be the functional equivalent of express 
advocacy and therefore not qualify for the general exemption. Other 
commenters were concerned that the safe harbors would become the de 
facto rule and groups would feel chilled from making ECs that do not 
qualify for one of the safe harbors without additional guidance in the 
general rule. Some commenters thought that the safe harbor provisions 
were too narrow to be useful. Some commenters also suggested that the 
Commission include a list of those factors that the Commission would 
consider in determining whether an EC qualifies for the exemption.
    After consideration of the comments, the Commission has decided to 
modify the NPRM's proposed approach by adopting a rule that both 
incorporates a safe harbor for certain types of EC and sets forth a 
multi-step analysis for determining whether ECs that do not qualify for 
the safe harbor nevertheless qualify for the general exemption. First, 
the final rule includes a revised articulation of the general exemption 
in new section 114.15(a). Second, the Commission is broadening the safe 
harbor to provide more detailed guidance as to which ECs qualify for 
the exemption under the safe harbor. See 11 CFR 114.15(b). Third, the 
final rule contains a provision explaining the Commission's rules of 
interpretation for determining if an EC that does not qualify for the 
safe harbor in section 114.15(b) is nonetheless permissible under the 
general exemption in section 114.15(a). See 11 CFR 114.15(c). The final 
rule also includes three additional paragraphs. First, new paragraph 
(d) explains what contextual information the Commission may consider in 
its analysis of ECs under the general exemption and safe harbor. 
Second, new paragraph (e) indicates that a list of examples of ECs 
analyzed under the general exemption and safe harbor will be placed on 
the Commission's Web site. Lastly, new paragraph (f) states that 
corporations and labor organizations funding ECs that are permissible 
under section 114.15(a) are subject to certain reporting requirements 
under 11 CFR 104.20.
1. 11 CFR 114.15(a)--Articulation of the WRTL II Exemption
    In the NPRM, proposed section 114.15(a) provided that corporations 
and labor organizations may make an EC (as defined in 11 CFR 100.29) 
without violating the prohibition in section 114.2(b)(3), ``if the 
communication is susceptible of a reasonable interpretation other than 
as an appeal to vote for or against a clearly identified Federal 
candidate.'' See NPRM at 50264. Many commenters agreed with this 
proposed implementation of the WRTL II test as a general exemption. 
However, some commenters urged the Commission to use the exact words 
used in the WRTL II decision and phrase the general exemption so that 
corporations or labor organizations may make an EC ``unless the 
communication is susceptible of no reasonable interpretation other than 
as an appeal to vote for or against a clearly identified Federal 
candidate.'' These commenters argued that the NPRM's formulation of the 
standard shifted the burden of proving whether an EC qualifies for the 
exemption from the Commission to the speaker making the EC.
    While the Commission disagrees with those commenters who argued 
that the effect of the NPRM's language was to shift the burden of 
proof, it appears that the formulation proposed in the NPRM could be 
misunderstood. Therefore, in the final rule, paragraph (a) tracks the 
WRTL II decision's language: ``Corporations or labor organizations may 
make an electioneering communication, as defined in 11 CFR 100.29, to 
those outside the restricted class unless the communication is 
susceptible of no reasonable interpretation other than as an appeal to 
vote for or against a clearly identified Federal candidate.'' See 11 
CFR 114.15(a).

[[Page 72903]]

2. 11 CFR 114.15(b)--Safe Harbor Provision
    As proposed in the NPRM, the final rule supplements the general 
exemption in section 114.15(a) with a safe harbor provision in section 
114.15(b). Satisfying the safe harbor provision demonstrates that the 
EC is susceptible of a reasonable interpretation other than as an 
appeal to vote for or against a Federal candidate. Accordingly, an EC 
that qualifies for the safe harbor would be deemed to be permissible 
under section 114.15(a) and may be paid for with corporate or labor 
organization funds. However, an EC that does not qualify for the safe 
harbor may still come within the general exemption under the analysis 
described below in section 114.15(c).
    The NPRM's proposed safe harbor provisions for grassroots lobbying 
communications and commercial and business advertisements each 
contained four prongs, all of which would have had to be met for an EC 
to qualify for the proposed safe harbor. The first two prongs of both 
proposed safe harbors would have focused on the content of the 
communication, while the last two prongs of both safe harbors would 
have focused on the presence of ``indicia of express advocacy'' as 
described in the WRTL II decision. See NPRM at 50265, 50269.
    In order to simplify the final rule, the Commission has adopted one 
safe harbor provision with three prongs. An EC qualifies for the safe 
harbor if it (1) does not mention ``any election, candidacy, political 
party, opposing candidate, or voting by the general public;'' (2) does 
not take a position on the candidate's ``character, qualifications, or 
fitness for office;'' and (3) either ``focuses on a legislative, 
executive or judicial matter or issue'' or ``proposes a commercial 
transaction.'' See 11 CFR 114.15(b)(1)-(3). An EC will qualify for the 
safe harbor only if it satisfies all three prongs. The safe harbor 
provision in the final rule applies both to ECs that would have been 
considered ``grassroots lobbying communications'' and to ECs that would 
have been considered ``commercial and business advertisements'' under 
the rule proposed in the NPRM.
a. 11 CFR 114.15(b)(1) and (2)--Mentioning an Election or Candidacy and 
Taking a Position on Character or Qualifications
    The Supreme Court determined that WRTL's advertisements were not 
the ``functional equivalent of express advocacy'' because the 
communications' content was ``consistent with that of a genuine issue 
ad'' and the communications lacked ``indicia of express advocacy.'' 
WRTL II, 127 S. Ct. at 2667. The Court found that WRTL's communications 
lacked ``indicia of express advocacy'' because they did not mention 
``an election, candidacy, political party, or challenger,'' and the 
communications did not ``take a position on a candidate's character, 
qualifications, or fitness for office.'' Id. The first two prongs of 
the safe harbor in the final rule incorporate the factors the Court 
used to determine whether a communication lacks ``indicia of express 
advocacy.'' In order to satisfy the safe harbor's first prong, the EC 
must not ``mention any election, candidacy, political party, opposing 
candidate, or voting by the general public.'' See 11 CFR 114.15(b)(1). 
To satisfy the safe harbor's second prong, the EC must not ``take a 
position on any candidate or officeholder's character, qualifications, 
or fitness for office.'' See 11 CFR 114.15(b)(2).
    The NPRM included these same provisions as the last two prongs of 
the proposed safe harbors for grassroots lobbying communications and 
commercial and business advertisements. See NPRM at 50266-67, 50270. 
Some commenters believed that these provisions adequately limited the 
scope of the proposed rule. A few commenters urged the Commission to 
refrain from adding anything to the list of references in the WRTL II 
decision, such as the reference to ``voting by the general public'' 
proposed in the NPRM. However, the final rule retains this addition, 
which applies to ECs that include tag lines that suggest voting by the 
general public in elections, such as ``Vote. It's important to your 
future,'' but does not apply to other references to voting such as 
``ask Congressman Smith to support the Voting Rights Bill.''
    The NPRM sought public comment on whether certain examples 
constitute ``mentioning'' elections, candidacy, political parties, or 
opposing candidates, or take a position on a candidate's character, 
qualifications or fitness for office sufficient to transform an EC into 
the functional equivalent of express advocacy or to remove them from 
the proposed new safe harbors. See NPRM at 50266-67. Some commenters 
noted that many of the examples were actually references to 
officeholder status or to an officeholder's conduct of his or her 
official duties and should not be construed as mentioning a 
``candidacy'' or taking a position on ``character.'' Other commenters 
believed that everything in the proposed list of references that would 
constitute indicia of express advocacy should be allowed in an EC so 
long as the EC focuses on issue advocacy. Some commenters argued that 
issue advocacy groups should be free to run ECs that comment on 
officeholders' character and fitness for office in order to hold those 
officeholders accountable. Other commenters argued that condemning the 
record or past actions of a candidate or officeholder should 
automatically disqualify an EC from the exemption.
    The following is a non-exclusive list of examples that will be 
considered to ``mention'' an election, candidacy, political party, 
opposing candidate or voting by the general public under section 
114.15(b)(1), thereby causing an EC to fail to satisfy the first prong 
of the safe harbor. The Commission notes that because these examples 
only apply to the safe harbor provisions and to one factor in the rules 
of interpretation for the general exemption, use of these words or 
phrases will not necessarily disqualify any EC from the general 
exemption in section 114.15(a).
     Specific references to an election date such as ``Support 
gun rights this November 5'' or references to election-related themes, 
such as pictures of a ballot or voting booth.
     General references to voting such as ``Remember to vote to 
protect the environment.''
     Specific references to the named candidate's office or 
candidacy, such as ``Bob Jones is running for Senate.''
     References to political parties by official names, such as 
``Democrats,'' or by nicknames or proxy descriptions such as ``GOP.''
     Comparative references to incumbent and opposing 
candidate, such as ``Bob Smith supports our troops; Bill Jones cut 
veteran's benefits by 20%.''
     Implied references to incumbents such as ``It's time to 
take out the trash, select real change with Bob Smith'' or ``This 
November, we can do better.''
    The Commission agrees with the many commenters who argued that a 
reference to the past voting record of the officeholder or candidate on 
a particular issue does not by itself constitute taking a position on a 
candidate's or officeholder's character, qualifications, or fitness for 
office. Therefore, in determining whether an EC takes a position on the 
candidate's or officeholder's ``character, qualifications, or fitness 
for office'' under section 114.15(b)(2) the Commission will examine the 
entirety of the content of the EC. The Commission is providing examples 
of ECs below (see section 114.15(e)) that illustrate this analysis.

[[Page 72904]]

b. 11 CFR 114.15(b)(3)--Lobbying Communications or Commercial 
Advertisements
    The third prong of the final rule's safe harbor combines the first 
two prongs of the NPRM's proposed grassroots lobbying communications 
safe harbor and the commercial and business advertisements safe harbor. 
In order to satisfy the third prong, an EC must meet either section 
114.15(b)(3)(i) describing certain lobbying communications or section 
114.15(b)(3)(ii) describing certain commercial advertisements.
    In addition to finding an absence of ``indicia of express 
advocacy,'' the WRTL II decision concluded that WRTL's communications 
contained content ``consistent with that of a genuine issue ad'' 
because they ``focus on a legislative issue, take a position on the 
issue, exhort the public to adopt the position, and urge the public to 
contact public officials with respect to the matter.'' See WRTL, 127 S. 
Ct. at 2667. Based on the Court's analysis, the NPRM's proposed safe 
harbor for grassroots lobbying communications covered any EC that 
``exclusively discusses a pending legislative or executive matter or 
issue'' and ``urges an officeholder to take a particular position or 
action with respect to the matter or issue, or urges the public to 
adopt a particular position and to contact the officeholder with 
respect to the matter or issue.'' See NPRM at 50265-66.
    Many commenters argued that the first prong of the safe harbor 
would be too narrow in several respects, including: (1) It required 
that the EC discuss the issue ``exclusively;'' (2) it required that the 
issue be ``pending;'' and (3) it was limited to ECs discussing 
``legislative or executive'' issues. Some commenters also argued that 
the second prong of the safe harbor would be too narrow because it 
would be limited to officeholders and would not cover ECs that urged 
the public to contact the candidate simply to ascertain the candidate's 
position on a particular issue. Other commenters supported the proposed 
safe harbor's prongs as written and urged the Commission to limit the 
scope of the safe harbor. These commenters noted that a safe harbor 
should be narrower than the general exemption.
    In response to some of these comments, the final rule incorporates 
certain modifications in the third prong of the safe harbor. Section 
114.15(b)(3)(i) covers any EC that ``focuses on a legislative, 
executive or judicial matter or issue'' and either ``urges a candidate 
to take a particular position or action with respect to the matter or 
issue'' or ``urges the public to adopt a particular position and to 
contact the candidate with respect to the matter or issue.'' See 11 CFR 
114.15(b)(3)(i)(A)-(B). This formulation adopts the WRTL II decision's 
language that describes issue advertisements as ECs that ``focus'' on 
an issue rather than the NPRM's more narrow language that limits the 
safe harbor to ECs that ``exclusively discuss'' the issue. Thus, under 
this prong, an EC may qualify for the safe harbor even if it mentions 
other issues in addition to focusing on matters or issues listed in the 
safe harbor. In addition, the Commission agrees with the commenters 
that the safe harbor should cover not only legislative and executive 
issues as proposed in the NPRM, but also judicial matters. Furthermore, 
the final rule does not, as did the proposed rule, limit the subject 
matter of the EC to ``pending'' issues or matters. Instead, the new 
rule covers ECs that focus on any legislative, executive or judicial 
issue regardless of whether it is pending before one or more branches 
of government. This revision allows organizations to address, for 
example, issues that they believe should be placed on the legislative, 
executive, or judicial agenda in the future.
    Finally, the Commission agrees with those commenters who pointed 
out that issue advocacy groups may urge a candidate who is not a 
sitting officeholder to take a certain position on a legislative, 
executive, or judicial issue, not because they want to advocate the 
candidate's election or defeat, but because they want the candidate to 
commit to taking action on a certain issue if the candidate is elected. 
Therefore, unlike the rule proposed in the NPRM, the final rule 
includes not only references to sitting officeholders but also 
references to any Federal candidates. However, in order to qualify for 
the safe harbor, the EC must either urge the candidates themselves to 
take a position, or urge the public to take a position and contact the 
candidates. General appeals to the public to ``educate themselves'' or 
to contact an organization to learn more about the issue will not 
satisfy this prong of the safe harbor. Appeals to the public to donate 
to the organization to help spread the word about the issue will not 
alone satisfy this prong of the safe harbor. However, such appeals to 
learn more or contribute will not disqualify from the safe harbor a 
communication which also includes exhortations to candidates or to the 
public to contact candidates. In addition, an appeal to learn about 
issues or to raise awareness (such as asking for donations to ``help 
spread the word'') may qualify as a ``call to action or other appeal'' 
under 11 CFR 114.15(c)(2)(iii) (see below).
    The second part of the safe harbor's third prong in section 
114.15(b)(3)(ii) is also based upon the safe harbor for commercial and 
business advertisements proposed in the NPRM, but includes slightly 
revised language. The NPRM proposed a safe harbor for any EC that 
``exclusively advertises a Federal candidate's or officeholder's 
business or professional practice or any other product or service'' and 
that ``is made in the ordinary course of business of the entity paying 
for the communication.'' See NPRM at 50270. Many commenters supported 
the creation of a commercial and business advertisements safe harbor as 
consistent with the WRTL II decision. However, some commenters 
supporting the safe harbor argued that the proposed provision was too 
narrow to be useful to the business community. Specifically, a few 
commenters argued that the Commission should remove the ``ordinary 
course of business'' prong in the proposed rule. Another commenter 
criticized the proposed safe harbor as too ambiguous and difficult for 
advertisers to apply when deciding whether a particular EC may be run.
    Other commenters urged the Commission not to adopt any additional 
safe harbors besides one for grassroots lobbying communications as 
specifically addressed in the WRTL II decision. However, the language 
of the Supreme Court's general test for determining whether an EC is 
exempt from the EC funding restrictions is not limited just to 
grassroots lobbying advertisements but covers any EC that is 
susceptible of a reasonable interpretation other than as an appeal to 
vote. As explained in the NPRM, many ECs could reasonably be 
interpreted as having a non-electoral, business or commercial purpose. 
Therefore, the Commission believes that explaining how the WRTL II 
exemption applies to commercial and business advertisements is helpful 
to provide adequate guidance to those seeking to comply with the EC 
provisions.
    Accordingly, the last part of the safe harbor's third prong applies 
to an EC that ``proposes a commercial transaction, such as purchase of 
a book, video or other product or service, or such as attendance (for a 
fee) at a film exhibition or other event.'' See 11 CFR 
114.15(b)(3)(ii). The final rule substitutes ``proposes a commercial 
transaction'' for the ``in the ordinary course of business'' 
requirement proposed in the NPRM. As several

[[Page 72905]]

commenters pointed out, determining whether an EC is made in the 
ordinary course of business would require the Commission to look beyond 
the four corners of the EC and probe into the outside business affairs 
of the speaker. By contrast, the new ``proposes a commercial 
transaction'' language appropriately focuses the Commission's inquiry 
on the objective meaning of the content of the EC.
    This prong of the safe harbor will be satisfied regardless of 
whether the product or service is provided by a business owned or 
operated by, or employing, the candidate referred to in the EC.\7\ Both 
ECs advertising a Federal candidate's appearance to promote a business 
or other commercial product or service, and ECs in which the Federal 
candidate is referred to as the subject of a book, video, or movie will 
be eligible for the safe harbor. The final rule clarifies that an 
advertisement urging the public to attend a film exhibition or other 
commercial event for a fee is also eligible for the safe harbor. By 
contrast, advertisements for non-commercial events, such as for 
charities or political events, do not meet this prong and do not 
qualify for the safe harbor, although they may qualify for the general 
exemption.
---------------------------------------------------------------------------

    \7\ The Commission notes that these communications may 
nevertheless be subject to the Commission's coordination 
regulations. 11 CFR 109.21
---------------------------------------------------------------------------

    The Commission is providing examples of ECs that illustrate the 
analysis of this third prong of the safe harbor provision below (see 
section 114.15(e)).
3. 11 CFR 114.15(c)--Rules of Interpretation for Electioneering 
Communications That Do Not Qualify for the Safe Harbor
    The Commission has added new section 114.15(c) to explain how the 
Commission will analyze ECs that do not qualify for the safe harbor, 
given that the safe harbor does not include every EC that is 
permissible under section 114.15(a). Specifically, paragraph (c) of the 
final rule states that if an EC does not qualify for the safe harbor in 
section 114.15(b), the Commission will consider: ``whether the 
communication includes any indicia of express advocacy and whether the 
communication has an interpretation other than as an appeal to vote for 
or against a clearly identified Federal candidate in order to determine 
whether, on balance, the communication is susceptible of no reasonable 
interpretation other than as an appeal to vote for or against a clearly 
identified Federal candidate.'' As with the three prongs of the safe 
harbor, this analysis is drawn from the WRTL II decision's analysis of 
``indicia of express advocacy'' and the content of WRTL's 
communications.
    Sections 114.15(c)(1) and (c)(2) describe in more detail the two 
factors that the Commission will consider in determining whether an EC 
qualifies for the general exemption in section 114.15(a). The 
Commission will consider both factors in all cases and will balance the 
findings under both parts of the test to determine whether an EC has no 
reasonable interpretation other than as an appeal to vote and is 
therefore not permissible under section 114.15(a).
    For example, even if the Commission found that an EC includes no 
``indicia of express advocacy,'' it could still determine that the EC 
does not have content that would support a determination the EC has an 
interpretation other than as an appeal to vote, and conclude overall 
that the EC is not permissible under section 114.15(a) because, on 
balance, the EC has no reasonable interpretation other than as an 
appeal to vote. Conversely, even if the Commission found that an EC 
does include ``indicia of express advocacy,'' it could determine that 
the EC nevertheless has content that would support a determination that 
a EC has an interpretation other than a call to electoral action, and 
conclude overall that the EC is permissible under section 114.15(a) 
because, on balance, that interpretation is reasonable despite the 
presence of indicia of express advocacy. The Commission could also find 
no indicia of express advocacy in an EC, decide that there is content 
in the EC to support an interpretation of the EC as something other 
than a call to electoral action, but conclude overall that the EC is 
not permissible under section 114.15(a) because, on balance, that 
interpretation is not reasonable.
a. 11 CFR 114.15(c)(1)--Indicia of Express Advocacy
    Section 114.15(c)(1) states that under the first factor of this 
analysis, an EC ``includes indicia of express advocacy'' if it 
``mentions any election, candidacy, political party, opposing 
candidate, or voting by the general public'' or ``takes a position on 
any candidate's or officeholder's character, qualifications, or fitness 
for office.'' See 11 CFR 114.15(c)(1)(i)-(ii). This list is taken from 
the WRTL II decision, and is a combination of the two lists contained 
in the first two prongs of the safe harbor in section 114.15(b).
    The Commission agrees with the many commenters who argued that 
mentioning an election or opposing candidate, referring to a 
candidate's qualifications, or commenting on a sitting officeholder's 
character should not by itself disqualify an EC from the general 
exemption in section 114.15(a). Thus, although an EC that includes any 
one of the references on the list is automatically disqualified from 
the safe harbor, such an EC may still qualify for the general exemption 
under the analysis in section 114.15(c).
b. 11 CFR 114.15(c)(2)--Content of Communications
    The second factor in paragraph (c)(2) states: ``Content that would 
support a determination that a communication has an interpretation 
other than as an appeal to vote for or against a clearly identified 
Federal candidate includes'' three types of content. See 11 CFR 
114.15(c)(2). This list of the three types of content is non-exhaustive 
and the Commission may also consider other types of content to 
determine whether an EC has some other interpretation besides urging 
electoral action.
    The first type of content that supports a determination that an EC 
has an interpretation other than as an appeal to vote is content that 
``focuses on a public policy issue and either urges a candidate to take 
a position on the issue or urges the public to contact the candidate 
about the issue.'' See 11 CFR 114.15(c)(2)(i). This provision is 
broader than the issue advocacy provision of the safe harbor in section 
114.15(b) in two ways. First, it considers whether the EC focuses on a 
``public policy issue'' rather than, as required by the safe harbor, a 
``legislative, executive, or judicial matter.'' Thus, an EC's content 
may support a determination that it has an interpretation other than as 
an appeal to vote if it discusses any matter of public importance even 
if the matter is not a ``legislative, executive, or judicial matter,'' 
but is instead, for example, a State action or an international event. 
Second, this provision considers whether an EC urges viewers to contact 
the candidate about the issue, rather than, as required by the safe 
harbor, urge viewers ``to adopt a particular position'' and contact the 
candidate about the issue.
    Paragraph (c)(2)(ii) sets out the second type of content that 
supports a determination that an EC has an interpretation other than as 
an appeal to vote. This consists of content that ``proposes a 
commercial transaction, such as purchase of a book, video or other 
product or service, or such as attendance (for a fee) at a film 
exhibition

[[Page 72906]]

or other event.'' This provision is identical to the commercial 
transaction provision of the safe harbor in section 114.15(b)(3)(ii). 
However, the Commission might have to analyze an EC that satisfies the 
commercial transaction provision of the safe harbor under the rules of 
interpretation in section 114.15(c), because the EC included references 
to candidacies or elections that preclude qualification for the safe 
harbor. For example, a commercial advertisement for a book with the 
title ``50 Reasons Not to Vote for Congressman Smith'' would not 
satisfy the first prong of the safe harbor in section 114.15(b)(1). 
Therefore, the Commission would analyze such an advertisement under 
section 114.15(c)(2)(ii).
    Section 114.15(c)(2)(iii) is a more general provision intended to 
apply to other types of ECs not covered by the public policy issue and 
commercial transaction provisions. The final rule states that an EC has 
content supporting a determination of an interpretation other than as 
an appeal to vote if it ``includes a call to action or other appeal 
that interpreted in conjunction with the rest of the communication as 
urging action other than voting for or against or contributing to a 
clearly identified Federal candidate or political party.'' See 11 CFR 
114.15(c)(2)(iii). The Commission will look at the entire content of 
the EC to determine whether an EC includes such a ``call to action.''
    This third provision was added, in part, to respond to commenters 
who urged the Commission to create a safe harbor provision for other 
categories of ECs, such as public service announcements. See NPRM at 
50270-71. These commenters argued that public service announcements and 
charity advertisements can easily be interpreted as something other 
than an appeal to vote even though they simply provide information to 
the public without any specific ``call to action.'' For example, an EC 
that urges the public to sign up for a preventative screening for a 
particular type of cancer and includes a Federal candidate endorsing 
the organization's work on cancer research, would likely be deemed to 
have content that supports a determination that the EC has an 
interpretation other than as an appeal to vote.\8\ Another common 
example is an EC that urges viewers to ``find out more'' or visit a Web 
site for ``more information.'' In analyzing this type of EC, the 
Commission will look to the actual content of the EC itself to 
determine whether the ``find out more'' call to action can be 
interpreted as something other than a call to vote for or against a 
Federal candidate. Other possible ``calls to action'' under this 
provision are requests to donate money to a particular charitable 
organization or disaster relief fund. However, the final rule excludes 
from this provision requests to make contributions to any clearly 
identified Federal candidate or political party. Finally, as discussed 
above, the Commission will analyze ECs promoting charity events under 
this provision.
---------------------------------------------------------------------------

    \8\ The Commission notes that these communications may 
nevertheless be subject to the Commission's coordination 
regulations. 11 CFR 109.21.
---------------------------------------------------------------------------

c. 11 CFR 114.15(c)(3)--Interpreting the Communication
    Several commenters argued that in analyzing whether an EC qualifies 
for the WRTL exemption, the Commission should be guided by the 
principle, articulated by the Supreme Court in WRTL II, that ``[w]here 
the First Amendment is implicated, the tie goes to the speaker.'' See 
WRTL II, 127 S. Ct. at 2669. New section 114.15(c)(3) incorporates the 
principle that ``the tie goes to the speaker'' by providing that ``in 
interpreting a communication under paragraph (a), any doubt will be 
resolved in favor of permitting the communication.'' See 11 CFR 
114.15(c)(3). The Commission intends to follow this principle in 
determining whether, on balance, the EC is susceptible of a reasonable 
interpretation other than as an appeal to vote and therefore is 
permissible under section 114.15(a).
4. 11 CFR 114.15(d)--Information Permissibly Considered
    As the NPRM explained, the exemption in section 114.15(a) is 
objective, focusing on the substance of the EC rather than ``amorphous 
considerations of intent and effect.'' WRTL II, 127 S. Ct. at 2666. In 
determining whether a particular EC is susceptible of a reasonable 
interpretation other than as an appeal to vote for or against a clearly 
identified Federal candidate, the Commission may consider ``basic 
background information that may be necessary to put an ad in context.'' 
Id. at 2669.\9\ According to the WRTL II decision, this information 
could include whether a communication ``describes a legislative issue 
that is either currently the subject of legislative scrutiny or likely 
to be the subject of such scrutiny in the near future.'' Id. (internal 
citation omitted). See also NPRM at 50264. However, the Court cautioned 
that inquiry into such relevant background should not require 
burdensome or broad inquiries with extensive discovery. See WRTL II, 
127 S. Ct. at 2669.
---------------------------------------------------------------------------

    \9\ The Commission must also consider certain basic facts such 
as the timing and targeting of the communication in order to 
determine whether a communication satisfies the basic definition of 
EC under BCRA and section 100.29(a) (i.e., whether the communication 
was broadcast within the last thirty or sixty days before a Federal 
election within the district of the referenced Federal candidate).
---------------------------------------------------------------------------

    Many commenters urged the Commission to clarify in the rule the 
extent to which the Commission would consider contextual information 
outside the actual text and visuals of the EC itself when applying the 
WRTL II exemption. The final rule in new section 114.15 includes a new 
paragraph (d), which limits the contextual information the Commission 
will consider when analyzing ECs under the WRTL II exemption. Some 
commenters urged the Commission to include in the rule text a list of 
the types of information that the Commission would consider in 
evaluating ECs, such as legislative calendars and news stories, and a 
list of the types of contextual information that the Commission would 
not consider in its analysis, such as timing of the EC, prior 
communications or outside activities of the speaker, and the EC's 
actual effect on elections. Instead of attempting to create exhaustive 
lists that would fit every circumstance, the final rule sets forth 
general principles that will guide the Commission's consideration of 
``external facts'' beyond the four corners of the EC.
    Specifically, section 114.15(d) states that when evaluating an EC 
under the general exemption or the safe harbor, the Commission may 
consider only the EC itself and ``basic background information that may 
be necessary to put the communication in context and which can be 
established with minimal, if any, discovery.'' See 11 CFR 114.15(d). 
The rule provides the following examples of such basic background 
information: Whether a named individual is a candidate or whether an EC 
describes a public policy issue. The Commission will also consider 
similar background facts about the public policy issue, commercial 
product or service, or other topics discussed in the EC, so long as 
these facts may be established with minimal discovery.
5. 11 CFR 114.15(e)--Examples of Communications
    In the NPRM, the Commission included a number of examples of 
communications that would, and would not, qualify for the proposed 
grassroots

[[Page 72907]]

lobbying communications safe harbor. See NPRM at 50267-69. The 
Commission sought public comment on whether the final rule should 
include such examples in the E&J or the rule text itself. See NPRM at 
50267. The Commission also asked whether there were additional examples 
of communications that should be included in the list. The commenters 
that discussed the question of where examples of communications should 
be published all favored inclusion of those examples in the E&J instead 
of the rule text.
    After consideration of the comments, the Commission has decided to 
include examples of communications in the E&J instead of the rule. In 
addition, section 114.15(e) includes a statement to direct readers of 
the regulation to the Commission's web site on which the Commission 
will place the examples discussed in this E&J. The Commission intends 
to update this web page to include examples from court cases, advisory 
opinions and enforcement matters that apply the WRTL II exemption in 
the future.
    The following examples are illustrative only and are not intended 
to create a requirement for any particular words or phrases to be 
included before an EC will be permissible under the WRTL II exemption. 
These examples are drawn from past court cases and Commission advisory 
opinions and enforcement matters.
a. Examples of Communications that Qualify for the Safe Harbor in 11 
CFR 114.15(b)
Example 1

    LOAN OFFICER: Welcome Mr. and Mrs. Shulman. We've reviewed your 
loan application, along with your credit report, the appraisal on 
the house, the inspections, and well * * *
    COUPLE: Yes, yes * * * we're listening.
    OFFICER: Well, it all reminds me of a time I went fishing with 
my father. We were on the Wolf River Waupaca * * *
    VOICE-OVER: Sometimes it's just not fair to delay an important 
decision.
    But in Washington, it's happening. A group of Senators is using 
the filibuster delay tactic to block federal judicial nominees from 
a simple ``yes'' or ``no'' vote. So qualified candidates aren't 
getting a chance to serve.
    It's politics at work, causing gridlock and backing up some of 
our courts to a state of emergency.
    Contact Senators Feingold and Kohl and tell them to oppose the 
filibuster.
    Visit: BeFair.org
    Paid for by Wisconsin Right to Life (befair.org), which is 
responsible for the content of this advertising and not authorized 
by any candidate or candidate's committee.\10\
---------------------------------------------------------------------------

    \10\ ``Loan,'' Wisconsin Right to Life, Inc. v. FEC, 466 F. 
Supp. 2d 195, 198 n.4 (D.D.C. 2006). The Supreme Court held that 
this advertisement was not the ``functional equivalent of express 
advocacy. WRTL II, .127 S. Ct at 2670.

    All commenters that discussed the examples agreed with the NPRM's 
assessment that this example would qualify for the proposed grassroots 
lobbying communications safe harbor. See NPRM at 50267. This example 
also qualifies for the final rule's safe harbor. First, the 
communication does not mention any election, candidacy, political 
party, opposing candidate, or voting by the general public (section 
114.15(b)(1)). Second, the communication does not take a position on 
the character, qualifications, or fitness for office of either Senator 
Feingold or Senator Kohl (section 114.15(b)(2)), or any other 
candidate. Third, this communication satisfies section 114.15(b)(3)(i) 
because it focuses on the legislative matter of Senate filibuster votes 
on judicial nominees, and urges the public to oppose the filibuster and 
to contact Senators Feingold and Kohl to take a position with respect 
to t