Coordinated Communications, 6590-6592 [2010-2973]

Download as PDF 6590 Proposed Rules Federal Register Vol. 75, No. 27 Wednesday, February 10, 2010 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 Parts 100 and 109 [Notice 2010–01] Coordinated Communications Federal Election Commission. Supplemental Notice of Proposed Rulemaking. AGENCY: cprice-sewell on DSK2BSOYB1PROD with PROPOSALS ACTION: SUMMARY: The Federal Election Commission is issuing a Supplemental Notice of Proposed Rulemaking for the Notice of Proposed Rulemaking on Coordinated Communications published on October 21, 2009, in order to elicit comments addressing the impact of the Supreme Court’s decision in Citizens United v. FEC. The Commission is also announcing a public hearing on the proposed rules regarding coordinated communications. No final decision has been made by the Commission on the issues presented in this rulemaking. DATES: Comments must be received on or before February 24, 2010. The hearing will be held on Tuesday and Wednesday, March 2 and 3, 2010 and will begin at 10 a.m. Anyone wishing to testify at the hearing must file written comments by the due date and must include a request to testify in the written comments. Any person who requested to testify in written comments received by the Commission prior to the deadline for the initial comment period need not request to testify again. ADDRESSES: All comments must be in writing, addressed to Ms. Amy L. Rothstein, Assistant General Counsel, and submitted in either electronic, facsimile or paper form. Commenters are strongly encouraged to submit comments electronically to ensure timely receipt and consideration. Electronic comments should be sent to CoordinationShays3@fec.gov. If the electronic comments include an attachment, the attachment must be in Adobe Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed comments should be sent to (202) 219–3923, with paper follow-up. Paper comments and paper VerDate Nov<24>2008 15:11 Feb 09, 2010 Jkt 220001 follow-up of faxed comments should be sent to the Federal Election Commission, 999 E Street, NW., Washington, DC 20463. All comments must include the full name and postal service address of the commenter or they will not be considered. The Commission will post comments on its website after the comment period ends. The hearing will be held in the Commission’s ninth floor meeting room, 999 E Street, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant General Counsel, Ms. Jessica Selinkoff, or Ms. Joanna Waldstreicher, Attorneys, 999 E Street, NW., Washington, DC 20463, (202) 694–1650 or (800) 424–9530. SUPPLEMENTARY INFORMATION: On October 21, 2009, the Commission published a Notice of Proposed Rulemaking (‘‘NPRM’’) proposing possible changes to the ‘‘coordinated communication’’ regulations at 11 CFR 109.21 in response to the decision of the Court of Appeals for the District of Columbia Circuit in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (‘‘Shays III Appeal’’). See Notice of Proposed Rulemaking on Coordinated Communications, 74 FR 53893 (Oct. 21, 2009). The deadline for comments on the NPRM was January 19, 2010. In the NPRM, the Commission stated that it would announce the date of a hearing at a later date. I. Extension of Comment Period Two days after the close of the NPRM’s comment period, on January 21, 2010, the Supreme Court issued its decision in Citizens United v. FEC, No. 08–205 (U.S. Jan. 21, 2010), available at https://www.fec.gov/law/litigation/ cu_sc08_opinion.pdf. Citizens United may raise issues relevant to the coordinated communications rulemaking. Therefore, the Commission is re-opening the comment period for this rulemaking. The Commission seeks additional comment as to the effect of the Citizens United decision on the proposed rules, issues, and questions raised in the NPRM and in this Supplemental Notice of Proposed Rulemaking (‘‘SNPRM’’).1 Comments are due on or before February 24, 2010. 1 The Commission is reevaluating a number of other regulations in light of the Citizens United decision and intends to begin a separate rulemaking to address these other regulations. Commenters will PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 a. General Considerations In response to Shays III Appeal, the Commission’s NPRM proposed four alternatives for revising the content prong of the coordinated communications test, three alternatives for revising the conduct prong of the coordinated communications test, two alternative definitions of ‘‘promote, support, attack, or oppose’’ (‘‘PASO’’), and two safe harbors. The Commission seeks comments on the effect of the Citizens United decision on the Commission’s proposals in the NPRM. The Commission asks broadly whether commenters believe Citizens United affects any aspect of the proposed rules and also asks specific questions regarding certain aspects of the proposed rules. In concluding that ‘‘independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,’’ the Court explained that ‘‘ ‘[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.’ ’’ Citizens United, slip op. at 41–42 (quoting Buckley v. Valeo, 424 U.S. 1, 47 (1976)). Does this statement suggest the need for a more robust coordination rule because the presence of prearrangement and coordination may result in, or provide the opportunity for, quid pro quo corruption? The Court further held that the governmental interest in ‘‘[l]aws that burden political speech’’ is ‘‘limited to quid pro quo corruption,’’ and that ‘‘[i]ngratiation and access, in any event, are not corruption.’’ Citizens United, slip op. at 43, 45. In light of these statements in Citizens United, is one of the governmental interests asserted in Shays III-Appeal for a stricter coordinated communications rule—i.e., to prevent third-party sponsors of communications from ingratiating themselves with Federal candidates (528 F.3d at 925)— still valid after Citizens United? Or, was the Court’s holding limited to the independent expenditures that were at have an opportunity to address these other issues at that time. E:\FR\FM\10FEP1.SGM 10FEP1 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Proposed Rules cprice-sewell on DSK2BSOYB1PROD with PROPOSALS issue in Citizens United? Given that coordination was not at issue in Citizens United, did the Court’s mention of coordination suggest, in any way, that a different governmental interest would justify regulating non-party speech that may be coordinated? Now that Citizens United permits additional entities, such as public corporations and labor organizations, to make independent expenditures, does the proposed rule on coordinated communications adequately address those organizations? b. Content Standards The Commission seeks comment on the effect, if any, of the Citizens United decision on the proposed content standards. What effect does the decision have on the proposed Modified WRTL content standard, including the proposal’s ‘‘functional equivalent of express advocacy’’ test? See, e.g., NPRM, 74 FR at 53902. Should any parts of 11 CFR 114.15 be included in such a test, or is Section 114.15 simply inapplicable after Citizens United? Does the ‘‘functional equivalent of express advocacy’’ standard still provide a potentially useful coordinated communications content standard to address the Shays III-Appeal court’s concerns? Should the Commission devise alternative criteria for the Modified WRTL content standard, or does the Court’s discussion of the Commission’s ‘‘two part, 11-factor balancing test to implement WRTL’s ruling’’ indicate a general disapproval of such an approach? Citizens United, slip op. at 18 (referring to FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (‘‘WRTL’’)). Are any additional criteria necessary at all, or should the Commission simply rely on the Modified WRTL standard as articulated in the proposed rule text? Did the Court’s application of the test to Hillary: The Movie demonstrate that the Court’s ‘‘functional equivalent of express advocacy’’ standard is sufficiently workable without further explanation? Additionally, the Commission seeks further comment on the examples given in the NPRM—both those in the proposed PASO definitions and those to which the proposed PASO and Modified WRTL content standards may or may not apply—in light of Citizens United. See Citizens United, slip op. at 3, 20–21, and 52–54; see also NPRM, 74 FR at 53903–04 and 53911–12. The Commission also seeks comment on the application of the proposed content standard alternatives to the communications at issue in Citizens United. See Citizens United, slip op. at 3, 52–54. What impact, if any, does the VerDate Nov<24>2008 15:11 Feb 09, 2010 Jkt 220001 Court’s conclusion that Hillary: The Movie is ‘‘the functional equivalent of express advocacy’’ have on the Commission’s coordinated communications rules and in particular to the application of the ‘‘express advocacy’’ content standard outside the 90/120-day windows? Does the analysis change when the ‘‘functional equivalent of express advocacy’’ is not being applied to a communication in order to strike down a speech prohibition, as in Citizens United, but rather to restrict certain speech, as in the proposed coordination rules? See, e.g., Citizens United, slip op. at 10 (‘‘First Amendment standards, however, ‘must give the benefit of any doubt to protecting rather than stifling speech’ ’’) (quoting WRTL, 551 U.S. at 469). Is there anything in the opinion to suggest that the Court intended its conclusion, that Hillary: The Movie is ‘‘the functional equivalent of express advocacy’’ to apply only in limited contexts? Are the proposed PASO definitions sufficiently clear and unambiguous so as not to require ‘‘intricate case-by-case determinations’’ or to require prospective speakers to seek guidance from the Commission as to whether their proposed speech would be coordinated? Id. at 12. Do Citizens United and WRTL provide a constitutional limit on the reach of the proposed PASO standard? Are any content standards broader than express advocacy or its functional equivalent permissible after Citizens United, or are these the only standards that the Court has concluded are sufficiently clear? In light of the Supreme Court’s statements that the PASO components ‘‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,’’ McConnell v. FEC, 540 U.S. 93, 170 n.64 (2003), and that any rule must ‘‘eschew the open-ended roughand-tumble of factors,’’ Citizens United, slip op. at 19 (quoting WRTL, 551 U.S. at 469), should the Commission adopt a PASO content standard without a definition? In the absence of a definition, would the rule provide specific enough guidance to prospective speakers? Would such a rule be enforceable by the Commission? More generally, how should the Commission conduct investigations in enforcement actions arising from allegations of coordination? Does the Court’s holding in Citizens United that corporations have a First Amendment right to make independent expenditures raise concerns about investigating potentially coordinated communications that do not exist in other contexts? Would investigations to PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 6591 determine whether a communication is independent or coordinated (and thus a contribution), chill protected speech? To avoid such a risk, should the Commission require a heightened standard (e.g., requiring more particularity or specificity) in any complaint alleging coordination before opening an enforcement proceeding? Should such a heightened complaint standard be adopted with, or regardless of, any revised content standard? Would such a heightened complaint standard impair the Commission’s ability to investigate allegations of contributions via coordination? Does anything in the Act (particularly 2 U.S.C. 437g(a)) authorize or preclude the Commission from adopting a heightened complaint standard for coordination allegations? If the Commission may not require a heightened complaint standard for coordination allegations, would that then preclude the application of a broader content standard? Why? c. Safe Harbors Additionally, the NPRM proposes safe harbors that would exempt certain communications sponsored by 501(c)(3) organizations or candidates’ businesses from being treated as coordinated. NPRM, 74 FR at 53907–53910. Are these proposed safe harbors consistent with the Citizens United decision? See, e.g., slip op. at 24 (‘‘Prohibited too, are restrictions distinguishing among different speakers, allowing speech by some but not others.’’). Should the proposed safe harbors apply broadly regardless of the types of entities involved? For example, should there be a safe harbor from the coordination rules for any public communication in which a candidate for Federal office expresses or seeks support for any type of organization, or for a position on a public policy or legislative proposal espoused (or opposed) by that organization? Similarly, should the safe harbor for commercial transactions include any public communication in which a candidate for Federal office proposes any type of commercial transaction, regardless of whether it is for a business that the candidate owns or operates, or whether the business existed prior to the candidacy? Would such safe harbors be overbroad or undermine the efficacy of the rule? d. Consequences of Court’s Media Exemption Analysis In Citizens United, the Court stated, ‘‘There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,’’ and ‘‘[t]his differential E:\FR\FM\10FEP1.SGM 10FEP1 6592 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Proposed Rules treatment [between corporations with and without media outlets] cannot be squared with the First Amendment.’’ Slip op. at 37. Does the Court’s analysis of the media exemption affect the proposed rule changes, or the coordination rules generally? If so, how? II. Notice of Hearing The Commission announces that a hearing will be held on Tuesday, March 2, 2010 and Wednesday, March 3, 2010 (see DATES and ADDRESSES, above). The witnesses will be those individuals who indicated in their timely comments, whether to the NPRM published on October 21, 2009 or to this notice, that they wish to testify at the hearing. Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact the Commission Secretary’s office at (202) 694–1040, at least 72 hours prior to the hearing date. Dated: February 5, 2010. On behalf of the Commission, Matthew S. Petersen, Chairman, Federal Election Commission. [FR Doc. 2010–2973 Filed 2–9–10; 8:45 am] BILLING CODE 6715–01–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA–2009–1153; Airspace Docket No. 09–ACE–13] Proposed Amendment of Class E Airspace; Emmetsburg, IA cprice-sewell on DSK2BSOYB1PROD with PROPOSALS AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: This action proposes to amend Class E airspace at Emmetsburg, IA. Additional controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAPs) at Emmetsburg Municipal Airport, Emmetsburg, IA. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations for SIAPs at the airport. DATES: 0901 UTC. Comments must be received on or before March 29, 2010. ADDRESSES: Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. You must VerDate Nov<24>2008 15:11 Feb 09, 2010 Jkt 220001 identify the docket number FAA–2009– 1153/Airspace Docket No. 09–ACE–13, at the beginning of your comments. You may also submit comments through the Internet at https://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1–800–647– 5527), is on the ground floor of the building at the above address. FOR FURTHER INFORMATION CONTACT: Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd, Fort Worth, TX 76137; telephone: (817) 321– 7716. 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 and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: ‘‘Comments to Docket No. FAA–2009–1153/Airspace Docket No. 09–ACE–13.’’ The postcard will be date/time stamped and returned to the commenter. Availability of NPRMs An electronic copy of this document may be downloaded through the Internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA’s Web page at https:// www.faa.gov/airports_airtraffic/ air_traffic/publications/ airspace_amendments/. 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 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 Federal holidays. An informal docket may also be examined during normal business hours at the office of the Central Service Center, 2601 Meacham Blvd, Fort Worth, TX 76137. Persons interested in being placed on a mailing list for future NPRM’s should contact the FAA’s Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by adding additional Class E airspace extending upward from 700 feet above the surface for SIAPs operations at Emmetsburg Municipal Airport, Emmetsburg, IA. Controlled airspace is needed for the safety and management of IFR operations at the airport. Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9T, dated August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA’s authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency’s authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the E:\FR\FM\10FEP1.SGM 10FEP1

Agencies

Federal Election Commission

[Federal Register Volume 75, Number 27 (Wednesday, February 10, 2010)]
[Proposed Rules]
[Pages 6590-6592]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2973]


========================================================================
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. 75, No. 27 / Wednesday, February 10, 2010 / 
Proposed Rules

[[Page 6590]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 100 and 109

[Notice 2010-01]


Coordinated Communications

AGENCY: Federal Election Commission.

ACTION: Supplemental Notice of Proposed Rulemaking.

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SUMMARY: The Federal Election Commission is issuing a Supplemental 
Notice of Proposed Rulemaking for the Notice of Proposed Rulemaking on 
Coordinated Communications published on October 21, 2009, in order to 
elicit comments addressing the impact of the Supreme Court's decision 
in Citizens United v. FEC. The Commission is also announcing a public 
hearing on the proposed rules regarding coordinated communications. No 
final decision has been made by the Commission on the issues presented 
in this rulemaking.

DATES: Comments must be received on or before February 24, 2010. The 
hearing will be held on Tuesday and Wednesday, March 2 and 3, 2010 and 
will begin at 10 a.m. Anyone wishing to testify at the hearing must 
file written comments by the due date and must include a request to 
testify in the written comments. Any person who requested to testify in 
written comments received by the Commission prior to the deadline for 
the initial comment period need not request to testify again.

ADDRESSES: All comments must be in writing, addressed to Ms. Amy L. 
Rothstein, Assistant General Counsel, and submitted in either 
electronic, facsimile or paper form. Commenters are strongly encouraged 
to submit comments electronically to ensure timely receipt and 
consideration. Electronic comments should be sent to 
CoordinationShays3@fec.gov. If the electronic comments include an 
attachment, the attachment must be in Adobe Acrobat (.pdf) or Microsoft 
Word (.doc) format. Faxed comments should be sent to (202) 219-3923, 
with paper follow-up. Paper comments and paper follow-up of faxed 
comments should be sent to the Federal Election Commission, 999 E 
Street, NW., Washington, DC 20463. All comments must include the full 
name and postal service address of the commenter or they will not be 
considered. The Commission will post comments on its website after the 
comment period ends. The hearing will be held in the Commission's ninth 
floor meeting room, 999 E Street, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant 
General Counsel, Ms. Jessica Selinkoff, or Ms. Joanna Waldstreicher, 
Attorneys, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or 
(800) 424-9530.

SUPPLEMENTARY INFORMATION: On October 21, 2009, the Commission 
published a Notice of Proposed Rulemaking (``NPRM'') proposing possible 
changes to the ``coordinated communication'' regulations at 11 CFR 
109.21 in response to the decision of the Court of Appeals for the 
District of Columbia Circuit in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 
2008) (``Shays III Appeal''). See Notice of Proposed Rulemaking on 
Coordinated Communications, 74 FR 53893 (Oct. 21, 2009). The deadline 
for comments on the NPRM was January 19, 2010. In the NPRM, the 
Commission stated that it would announce the date of a hearing at a 
later date.

I. Extension of Comment Period

    Two days after the close of the NPRM's comment period, on January 
21, 2010, the Supreme Court issued its decision in Citizens United v. 
FEC, No. 08-205 (U.S. Jan. 21, 2010), available at https://www.fec.gov/law/litigation/cu_sc08_opinion.pdf. Citizens United may raise issues 
relevant to the coordinated communications rulemaking. Therefore, the 
Commission is re-opening the comment period for this rulemaking. The 
Commission seeks additional comment as to the effect of the Citizens 
United decision on the proposed rules, issues, and questions raised in 
the NPRM and in this Supplemental Notice of Proposed Rulemaking 
(``SNPRM'').\1\ Comments are due on or before February 24, 2010.
---------------------------------------------------------------------------

    \1\ The Commission is reevaluating a number of other regulations 
in light of the Citizens United decision and intends to begin a 
separate rulemaking to address these other regulations. Commenters 
will have an opportunity to address these other issues at that time.
---------------------------------------------------------------------------

a. General Considerations

    In response to Shays III Appeal, the Commission's NPRM proposed 
four alternatives for revising the content prong of the coordinated 
communications test, three alternatives for revising the conduct prong 
of the coordinated communications test, two alternative definitions of 
``promote, support, attack, or oppose'' (``PASO''), and two safe 
harbors.
    The Commission seeks comments on the effect of the Citizens United 
decision on the Commission's proposals in the NPRM. The Commission asks 
broadly whether commenters believe Citizens United affects any aspect 
of the proposed rules and also asks specific questions regarding 
certain aspects of the proposed rules.
    In concluding that ``independent expenditures, including those made 
by corporations, do not give rise to corruption or the appearance of 
corruption,'' the Court explained that `` `[t]he absence of 
prearrangement and coordination of an expenditure with the candidate or 
his agent not only undermines the value of the expenditure to the 
candidate, but also alleviates the danger that expenditures will be 
given as a quid pro quo for improper commitments from the candidate.' 
'' Citizens United, slip op. at 41-42 (quoting Buckley v. Valeo, 424 
U.S. 1, 47 (1976)). Does this statement suggest the need for a more 
robust coordination rule because the presence of prearrangement and 
coordination may result in, or provide the opportunity for, quid pro 
quo corruption?
    The Court further held that the governmental interest in ``[l]aws 
that burden political speech'' is ``limited to quid pro quo 
corruption,'' and that ``[i]ngratiation and access, in any event, are 
not corruption.'' Citizens United, slip op. at 43, 45. In light of 
these statements in Citizens United, is one of the governmental 
interests asserted in Shays III-Appeal for a stricter coordinated 
communications rule--i.e., to prevent third-party sponsors of 
communications from ingratiating themselves with Federal candidates 
(528 F.3d at 925)--still valid after Citizens United? Or, was the 
Court's holding limited to the independent expenditures that were at

[[Page 6591]]

issue in Citizens United? Given that coordination was not at issue in 
Citizens United, did the Court's mention of coordination suggest, in 
any way, that a different governmental interest would justify 
regulating non-party speech that may be coordinated?
    Now that Citizens United permits additional entities, such as 
public corporations and labor organizations, to make independent 
expenditures, does the proposed rule on coordinated communications 
adequately address those organizations?

b. Content Standards

    The Commission seeks comment on the effect, if any, of the Citizens 
United decision on the proposed content standards. What effect does the 
decision have on the proposed Modified WRTL content standard, including 
the proposal's ``functional equivalent of express advocacy'' test? See, 
e.g., NPRM, 74 FR at 53902. Should any parts of 11 CFR 114.15 be 
included in such a test, or is Section 114.15 simply inapplicable after 
Citizens United? Does the ``functional equivalent of express advocacy'' 
standard still provide a potentially useful coordinated communications 
content standard to address the Shays III-Appeal court's concerns? 
Should the Commission devise alternative criteria for the Modified WRTL 
content standard, or does the Court's discussion of the Commission's 
``two part, 11-factor balancing test to implement WRTL's ruling'' 
indicate a general disapproval of such an approach? Citizens United, 
slip op. at 18 (referring to FEC v. Wis. Right to Life, Inc., 551 U.S. 
449 (2007) (``WRTL'')). Are any additional criteria necessary at all, 
or should the Commission simply rely on the Modified WRTL standard as 
articulated in the proposed rule text? Did the Court's application of 
the test to Hillary: The Movie demonstrate that the Court's 
``functional equivalent of express advocacy'' standard is sufficiently 
workable without further explanation?
    Additionally, the Commission seeks further comment on the examples 
given in the NPRM--both those in the proposed PASO definitions and 
those to which the proposed PASO and Modified WRTL content standards 
may or may not apply--in light of Citizens United. See Citizens United, 
slip op. at 3, 20-21, and 52-54; see also NPRM, 74 FR at 53903-04 and 
53911-12. The Commission also seeks comment on the application of the 
proposed content standard alternatives to the communications at issue 
in Citizens United. See Citizens United, slip op. at 3, 52-54. What 
impact, if any, does the Court's conclusion that Hillary: The Movie is 
``the functional equivalent of express advocacy'' have on the 
Commission's coordinated communications rules and in particular to the 
application of the ``express advocacy'' content standard outside the 
90/120-day windows? Does the analysis change when the ``functional 
equivalent of express advocacy'' is not being applied to a 
communication in order to strike down a speech prohibition, as in 
Citizens United, but rather to restrict certain speech, as in the 
proposed coordination rules? See, e.g., Citizens United, slip op. at 10 
(``First Amendment standards, however, `must give the benefit of any 
doubt to protecting rather than stifling speech' '') (quoting WRTL, 551 
U.S. at 469). Is there anything in the opinion to suggest that the 
Court intended its conclusion, that Hillary: The Movie is ``the 
functional equivalent of express advocacy'' to apply only in limited 
contexts?
    Are the proposed PASO definitions sufficiently clear and 
unambiguous so as not to require ``intricate case-by-case 
determinations'' or to require prospective speakers to seek guidance 
from the Commission as to whether their proposed speech would be 
coordinated? Id. at 12. Do Citizens United and WRTL provide a 
constitutional limit on the reach of the proposed PASO standard? Are 
any content standards broader than express advocacy or its functional 
equivalent permissible after Citizens United, or are these the only 
standards that the Court has concluded are sufficiently clear? In light 
of the Supreme Court's statements that the PASO components ``give the 
person of ordinary intelligence a reasonable opportunity to know what 
is prohibited,'' McConnell v. FEC, 540 U.S. 93, 170 n.64 (2003), and 
that any rule must ``eschew the open-ended rough-and-tumble of 
factors,'' Citizens United, slip op. at 19 (quoting WRTL, 551 U.S. at 
469), should the Commission adopt a PASO content standard without a 
definition? In the absence of a definition, would the rule provide 
specific enough guidance to prospective speakers? Would such a rule be 
enforceable by the Commission?
    More generally, how should the Commission conduct investigations in 
enforcement actions arising from allegations of coordination? Does the 
Court's holding in Citizens United that corporations have a First 
Amendment right to make independent expenditures raise concerns about 
investigating potentially coordinated communications that do not exist 
in other contexts? Would investigations to determine whether a 
communication is independent or coordinated (and thus a contribution), 
chill protected speech? To avoid such a risk, should the Commission 
require a heightened standard (e.g., requiring more particularity or 
specificity) in any complaint alleging coordination before opening an 
enforcement proceeding? Should such a heightened complaint standard be 
adopted with, or regardless of, any revised content standard? Would 
such a heightened complaint standard impair the Commission's ability to 
investigate allegations of contributions via coordination? Does 
anything in the Act (particularly 2 U.S.C. 437g(a)) authorize or 
preclude the Commission from adopting a heightened complaint standard 
for coordination allegations? If the Commission may not require a 
heightened complaint standard for coordination allegations, would that 
then preclude the application of a broader content standard? Why?

c. Safe Harbors

    Additionally, the NPRM proposes safe harbors that would exempt 
certain communications sponsored by 501(c)(3) organizations or 
candidates' businesses from being treated as coordinated. NPRM, 74 FR 
at 53907-53910. Are these proposed safe harbors consistent with the 
Citizens United decision? See, e.g., slip op. at 24 (``Prohibited too, 
are restrictions distinguishing among different speakers, allowing 
speech by some but not others.''). Should the proposed safe harbors 
apply broadly regardless of the types of entities involved? For 
example, should there be a safe harbor from the coordination rules for 
any public communication in which a candidate for Federal office 
expresses or seeks support for any type of organization, or for a 
position on a public policy or legislative proposal espoused (or 
opposed) by that organization? Similarly, should the safe harbor for 
commercial transactions include any public communication in which a 
candidate for Federal office proposes any type of commercial 
transaction, regardless of whether it is for a business that the 
candidate owns or operates, or whether the business existed prior to 
the candidacy? Would such safe harbors be overbroad or undermine the 
efficacy of the rule?

d. Consequences of Court's Media Exemption Analysis

    In Citizens United, the Court stated, ``There is no precedent 
supporting laws that attempt to distinguish between corporations which 
are deemed to be exempt as media corporations and those which are 
not,'' and ``[t]his differential

[[Page 6592]]

treatment [between corporations with and without media outlets] cannot 
be squared with the First Amendment.'' Slip op. at 37. Does the Court's 
analysis of the media exemption affect the proposed rule changes, or 
the coordination rules generally? If so, how?

II. Notice of Hearing

    The Commission announces that a hearing will be held on Tuesday, 
March 2, 2010 and Wednesday, March 3, 2010 (see DATES and ADDRESSES, 
above). The witnesses will be those individuals who indicated in their 
timely comments, whether to the NPRM published on October 21, 2009 or 
to this notice, that they wish to testify at the hearing. Individuals 
who plan to attend and require special assistance, such as sign 
language interpretation or other reasonable accommodations, should 
contact the Commission Secretary's office at (202) 694-1040, at least 
72 hours prior to the hearing date.

    Dated: February 5, 2010.
    On behalf of the Commission,
Matthew S. Petersen,
Chairman, Federal Election Commission.
[FR Doc. 2010-2973 Filed 2-9-10; 8:45 am]
BILLING CODE 6715-01-P

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