Interpretive Rule on When Certain Independent Expenditures Are “Publicly Disseminated” for Reporting Purposes, 61254-61255 [2011-25568]

Agencies

• Federal Election Commission

[Federal Register Volume 76, Number 192 (Tuesday, October 4, 2011)]
[Rules and Regulations]
[Pages 61254-61255]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25568]


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FEDERAL ELECTION COMMISSION

11 CFR Parts 104 and 109

[Notice 2011-13]


Interpretive Rule on When Certain Independent Expenditures Are 
``Publicly Disseminated'' for Reporting Purposes

AGENCY: Federal Election Commission.

ACTION: Notice of interpretive rule.

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SUMMARY: The Federal Election Commission is issuing guidance on when 
independent expenditure communications that take the form of yard 
signs, mini-billboards, handbills, t-shirts, hats, buttons, and similar 
items are ``publicly disseminated'' for purposes of certain reporting 
requirements in Commission regulations.

DATES: Effective October 4, 2011.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Rothstein, Assistant General 
Counsel, Ms. Cheryl A.F. Hemsley or Mr. Theodore M. Lutz, Attorneys, 
999 E Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-
9530.

SUPPLEMENTARY INFORMATION: An independent expenditure is ``an 
expenditure by a person for a communication expressly advocating the 
election or defeat of a clearly identified candidate that is not made 
in cooperation, consultation, or concert with, or at the request or 
suggestion of, a candidate, a candidate's authorized committee, or 
their agents, or a political party committee or its agents.'' 11 CFR

[[Page 61255]]

100.16; see also 2 U.S.C. 431(17). Political committees and other 
persons making independent expenditures (``Filers'') must file reports 
disclosing their independent expenditures at certain regular intervals. 
See 2 U.S.C. 434(a)(4) and (c); 11 CFR 104.4 and 109.10(b). In 
addition, Filers must report all independent expenditures that 
aggregate more than certain dollar amounts during certain reporting 
periods within either 24 hours or 48 hours of the date on which the 
person makes or contracts to make independent expenditures. 2 U.S.C. 
434(g). The Commission's regulation requires that Filers ``ensure that 
the Commission receives these reports by [either 24 hours or 48 hours] 
following the date on which a communication that constitutes an 
independent expenditure is publicly distributed or otherwise publicly 
disseminated.'' 11 CFR 104.4(b)(2); see also 11 CFR 104.4(c), and (f), 
and 109.10(c) and (d).
    The actual public dissemination date of independent expenditure 
communications that take the form of items such as yard signs, mini-
billboards, handbills, t-shirts, hats, and buttons may be difficult to 
ascertain, however, particularly where the items are disseminated in 
stages or where the Filer is an organization that purchases the items 
from a vendor, and then retains the items for a period of time before 
distributing them to affiliate or member organizations or to 
individuals, such as the organization's employees, members or 
customers, to wear or display in public. For this reason, the 
Commission is issuing this notice to clarify that a range of acceptable 
dates may be used as the public dissemination date \1\ for these forms 
of independent expenditure communications for both individual and 
organizational Filers.
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    \1\ This notice focuses on the date on which independent 
expenditures are ``publicly disseminated,'' rather than the date on 
which they are ``publicly distributed.'' Generally, independent 
expenditures that are made public by broadcast, cable or satellite 
are ``publicly distributed.'' See 11 CFR 100.29(b)(2); see also 
Explanation and Justification for Final Rules on Bipartisan Campaign 
Reform Act of 2002 Reporting, 68 FR 404, 407 (Jan. 3, 2003). In 
contrast, all other forms of independent expenditure communications, 
such as those made public in newspapers, magazines, or via handbills 
are considered to be ``publicly disseminated.'' See Explanation and 
Justification for Final Rules on Bipartisan Campaign Reform Act of 
2002 Reporting, 68 FR 404, 407 (Jan. 3, 2003). This particular rule 
interprets ``publicly disseminated'' for those items that do not 
have an inherent date certain for public dissemination, such as yard 
signs, mini-billboards, handbills, t-shirts, hats, and buttons.
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    For purposes of the reporting requirements in 11 CFR 104.4(b)(2), 
(c), and (f), and 109.10(c) and (d), the Commission hereby clarifies 
that the Filer may report independent expenditure communications that 
take the form of items such as yard signs, mini-billboards, handbills, 
t-shirts, hats, buttons, as ``publicly disseminated'' on any reasonable 
date starting with the date the Filer receives or exercises control 
over the items in the usual and normal course of dissemination, up to 
and including the date that the communications are actually 
disseminated to the public.\2\ Reasonable dates that may be treated as 
the date of public dissemination include, but are not limited to (1) 
The date that a Filer receives delivery of the communication, (2) the 
date that a Filer distributes the communication to its members or 
employees for later public dissemination, (3) the date that a Filer 
distributes the communications to its affiliate or member organizations 
for later public dissemination, (4) the date as of which the Filer 
authorizes its members or employees to display the communication, or 
(5) the date of actual public dissemination, if that date is known to 
the Filer.\3\ In no event, however, may a Filer choose a date that is 
later than the actual date of dissemination. Similarly, in no event may 
a Filer choose a date that is subsequent to the date of the election to 
which the independent expenditure communication pertains.
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    \2\ Once the public dissemination date is established, 
independent expenditure communications must be reported pursuant to 
11 CFR 104.4(b)(2), (c), and (f), and 109.10(c) and (d).
    \3\ The Commission notes that, for any given independent 
expenditure communication, Filers should list the same date of 
dissemination on their regularly scheduled FEC reports as the date 
they listed on their 24- and 48-Hour Independent Expenditure 
reports.
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    The Commission believes that this interpretation of its regulations 
provides Filers with an administratively workable method for 
determining the date of dissemination for these types of independent 
expenditure communications, consistent with the ``[c]ongressional 
intent to emphasize and ensure timely disclosure'' of independent 
expenditures. Explanation and Justification for Final Rules on 
Independent Expenditure Reporting, 67 FR 12834, 12837 (Mar. 20, 2002).
    This document is an interpretive rule announcing the general course 
of action that the Commission intends to follow. This interpretive rule 
does not constitute an agency action requiring notice of proposed 
rulemaking, opportunities for public participation, prior publication, 
or delay in effective date under 5 U.S.C. 553 of the Administrative 
Procedures Act. It does not bind the Commission or any members of the 
general public, nor does it create or remove any rights, duties, or 
obligations. The provisions of the Regulatory Flexibility Act, which 
apply when notice and comment are required by the Administrative 
Procedures Act or another statute, do not apply. See 5 U.S.C. 603(a).

    Dated: September 29, 2011.

    On behalf of the Commission.
Cynthia L. Bauerly,
Chair, Federal Election Commission.
[FR Doc. 2011-25568 Filed 10-3-11; 8:45 am]
BILLING CODE 6715-01-P