Aggregate Biennial Contribution Limits, 62361-62363 [2014-24660]
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Federal Register / Vol. 79, No. 201 / Friday, October 17, 2014 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS
is withdrawn, the NRC will address the
comments received in response to these
proposed revisions in a subsequent final
rule. Absent significant modifications to
the proposed revisions requiring
republication, the NRC will not initiate
a second comment period on this action
in the event the direct final rule is
withdrawn.
A significant adverse comment is a
comment where the commenter
explains why the rule would be
inappropriate, including challenges to
the rule’s underlying premise or
approach, or would be ineffective or
unacceptable without a change. A
comment is significant and adverse if it
meets the following criteria:
(1) The comment opposes the rule and
provides a reason sufficient to require a
substantive response in a notice-andcomment process. For example, the
following comments require a
substantive response:
(a) The comment causes the NRC staff
to reevaluate (or reconsider) its position
or conduct additional analysis;
(b) The comment raises an issue
serious enough to warrant a substantive
response to clarify or complete the
record; or
(c) The comment raises a relevant
issue that was not previously addressed
or considered by the NRC staff.
(2) The comment proposes a change
or an addition to the rule, and it is
apparent that the rule would be
ineffective or unacceptable without
incorporation of the change or addition.
(3) The comment causes the NRC staff
to make a change (other than editorial)
to the rule.
For procedural information and the
regulatory analysis, see the direct final
rule published in the Rules and
Regulations section of this issue of the
Federal Register.
III. Plain Writing
The Plain Writing Act of 2010 (Pub.
L. 111–274) requires Federal agencies to
write documents in a clear, concise,
well-organized manner that also follows
other best practices appropriate to the
subject or field and the intended
audience. The NRC has written this
document to be consistent with the
Plain Writing Act as well as the
Presidential Memorandum, ‘‘Plain
Language in Government Writing,’’
published June 10, 1998 (63 FR 31883).
The NRC requests comment on the
proposed rule with respect to clarity
and effectiveness of the language used.
List of Subjects in 10 CFR Part 50
Antitrust, Classified information,
Criminal penalties, Fire protection,
Intergovernmental relations, Isotopes,
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Medical isotopes, Molybdenum-99,
Nuclear materials, Nuclear power plants
and reactors, Radiation protection,
Reactor siting criteria, Reporting and
recordkeeping requirements, Utilization
facility.
For the reasons set out in this
preamble and the preamble to the
companion direct final rule being
published concurrently with this
proposed rule and under the authority
of the Atomic Energy Act of 1954, as
amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C.
552 and 553, the NRC is proposing to
adopt the following amendment to 10
CFR part 50.
62361
Dated at Rockville, Maryland, this 9th day
of October, 2014.
For the Nuclear Regulatory Commission,
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2014–24733 Filed 10–16–14; 8:45 am]
BILLING CODE 7590–01–P
FEDERAL ELECTION COMMISSION
11 CFR Part 110
[NOTICE 2014–12]
Aggregate Biennial Contribution Limits
Federal Election Commission.
Advance notice of proposed
rulemaking.
AGENCY:
ACTION:
PART 50—DOMESTIC LICENSING OF
PRODUCTION AND UTILIZATION
FACILITIES
1. The authority citation for part 50 is
revised to read as follows:
■
Authority: Atomic Energy Act secs. 11,
102, 103, 104, 105, 147, 149, 161, 181, 182,
183, 186, 189, 223, 234 (42 U.S.C. 2014, 2132,
2133, 2134, 2135, 2167, 2169, 2201, 2231,
2232, 2233, 2236, 2239, 2273, 2282); Energy
Reorganization Act secs. 201, 202, 206 (42
U.S.C. 5841, 5842, 5846); Nuclear Waste
Policy Act sec. 306 (42 U.S.C. 10226);
Government Paperwork Elimination Act sec.
1704 (44 U.S.C. 3504 note); Energy Policy Act
of 2005, Pub. L. 109–58, 119 Stat. 194 (2005).
Section 50.7 also issued under Pub. L. 95–
601, sec. 10, as amended by Pub. L. 102–486,
sec. 2902 (42 U.S.C. 5851). Section 50.10 also
issued under Atomic Energy Act secs. 101,
185 (42 U.S.C. 2131, 2235); National
Environmental Policy Act sec. 102 (42 U.S.C.
4332). Sections 50.13, 50.54(d), and 50.103
also issued under Atomic Energy Act sec. 108
(42 U.S.C. 2138).
Sections 50.23, 50.35, 50.55, and 50.56 also
issued under Atomic Energy Act sec. 185 (42
U.S.C. 2235). Appendix Q also issued under
National Environmental Policy Act sec. 102
(42 U.S.C. 4332). Sections 50.34 and 50.54
also issued under sec. 204 (42 U.S.C. 5844).
Sections 50.58, 50.91, and 50.92 also issued
under Pub. L. 97–415 (42 U.S.C. 2239).
Section 50.78 also issued under Atomic
Energy Act sec. 122 (42 U.S.C. 2152).
Sections 50.80—50.81 also issued under
Atomic Energy Act sec. 184 (42 U.S.C. 2234).
2. In § 50.2, revise the definition of
‘‘utilization facility’’ to read as follows:
■
§ 50.2
Definitions.
*
*
*
*
*
Utilization facility means:
(1) Any nuclear reactor other than one
designed or used primarily for the
formation of plutonium or U–233; or
(2) An accelerator-driven subcritical
operating assembly used for the
irradiation of materials containing
special nuclear material and described
in the application assigned docket
number 50–608.
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In addition to publishing in
today’s Federal Register an Interim
Final Rule to remove the aggregate
contribution limits from the
Commission’s regulations, the
Commission requests comments on
whether to begin a rulemaking to revise
other regulations in light of certain
language from the Supreme Court’s
recent decision in McCutcheon v. FEC.
The Commission intends to review the
comments it receives as it decides what
revisions, if any, it will propose making
to its rules.
DATES: Comments must be received on
or before January 15, 2015. The
Commission will hold a hearing on
these issues on February 11, 2015.
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.
ADDRESSES: All comments must be in
writing. Comments may be submitted
electronically via the Commission’s
Web site at sers.fec.gov, reference REG
2014–01. Commenters are encouraged to
submit comments electronically to
ensure timely receipt and consideration.
Alternatively, comments may be
submitted in paper form. Paper
comments must be sent to the Federal
Election Commission, Attn.: Amy L.
Rothstein, Assistant General Counsel,
999 E Street NW., Washington, DC
20463. All comments must include the
full name and postal service address of
a commenter, and of each commenter if
filed jointly, or they will not be
considered. The Commission will post
comments on its Web site at the
conclusion of the comment period.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy L. Rothstein, Assistant General
Counsel, or Mr. Theodore M. Lutz,
Attorney, 999 E Street NW.,
Washington, DC 20463, (202) 694–1650
or (800) 424–9530.
SUMMARY:
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Federal Register / Vol. 79, No. 201 / Friday, October 17, 2014 / Proposed Rules
SUPPLEMENTARY INFORMATION:
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Background
The Federal Election Campaign Act,
52 U.S.C. 30101–46 (formerly 2 U.S.C.
431–57) (‘‘FECA’’), imposes two types of
limits on the amount that individuals
may contribute in connection with
federal elections. The ‘‘base limits’’
restrict how much an individual may
contribute to a particular candidate or
political committee per election or
calendar year. See 52 U.S.C. 30116(a)(1)
(formerly 2 U.S.C. 441a(a)(1)). The
‘‘aggregate limits’’ restrict how much an
individual may contribute to all
candidate committees, political party
committees, and other political
committees in each two-year election
cycle.1 See 52 U.S.C. 30116(a)(3)
(formerly 2 U.S.C. 441a(a)(3)). The
Commission has implemented the
aggregate limits in its regulations at 11
CFR 110.5.
On April 2, 2014, the United States
Supreme Court held that the aggregate
contribution limits at 52 U.S.C.
30116(a)(3) (formerly 2 U.S.C.
441a(a)(3)) are unconstitutional.
McCutcheon v. FEC, 572 U.S. l, 134 S.
Ct. 1434, 1442, 1450–59 (2014)
(plurality op.). The Court’s decision did
not affect the base limits. See id. at
1442. Accordingly, in an Interim Final
Rule published today in the Federal
Register, the Commission deleted 11
CFR 110.5 and made technical and
conforming changes to 11 CFR 110.1(c),
110.14(d) and (g), 110.17(b), and 110.19
to conform its regulations to the
McCutcheon decision.
The Commission also seeks comment
on whether it should further modify its
regulations or practices in response to
certain language from the McCutcheon
decision.2 The Commission
acknowledges that these issues are not
presented in this Advance Notice of
Proposed Rulemaking in a way to fully
apprise interested parties with sufficient
clarity and specificity for the
Commission to enact a final rule.
Although it held the aggregate limits
to be unconstitutional, the Supreme
Court indicated that there are ‘‘multiple
alternatives available to Congress that
would serve the Government’s interest
in preventing circumvention while
1 Under the aggregate limits, as indexed for
inflation in the 2013–14 election cycle, an
individual could contribute up to $48,600 to
candidates and their authorized committees, and up
to $74,600 to other political committees, of which
no more than $48,600 could be contributed to
political committees other than national party
committees. See Price Index Adjustments for
Contribution and Expenditure Limitations and
Lobbyist Bundling Disclosure Threshold, 78 FR
8530, 8532 (Feb. 6, 2013).
2 McCutcheon, 134 S. Ct. at 1453–54, 1458–60.
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avoiding ‘unnecessary abridgment’ of
First Amendment rights.’’ McCutcheon,
134 S. Ct. at 1458 (quoting Buckley v.
Valeo, 424 U.S. 1, 25 (1976)). The Court
identified mechanisms that could be
implemented or amended to prevent
circumvention of the base limits,
including: Earmarking regulations, 11
CFR part 110; affiliation factors, 11 CFR
100.5; joint fundraising committee
regulations, 11 CFR 102.17; and
disclosure regulations, 11 CFR part 104.
The Commission seeks comment on
whether it should modify its regulations
or practices in these areas, as discussed
below. The Commission also seeks
comment on whether it should make
any other regulatory changes in light of
the decision.
Earmarking
The Act provides that ‘‘all
contributions made by a person, either
directly or indirectly, on behalf of a
particular candidate, including
contributions which are in any way
earmarked or otherwise directed
through an intermediary or conduit to
such candidate,’’ are contributions from
that person to the candidate. 52 U.S.C.
30116(a)(8) (formerly 2 U.S.C.
441a(a)(8)). The Commission’s
regulations define the term ‘‘earmarked’’
to mean ‘‘a designation, instruction, or
encumbrance, whether direct or
indirect, express or implied, oral or
written, which results in all or any part
of a contribution or expenditure being
made to, or expended on behalf of, a
clearly identified candidate or a
candidate’s authorized committee.’’ 11
CFR 110.6(b)(1).
In analyzing whether the aggregate
contribution limits served to prevent
circumvention of the base limits, the
Court relied on this ‘‘broad[ ]’’
definition of ‘‘earmarked’’ at 11 CFR
110.6(b)(1) to conclude that Commission
rules already cover ‘‘implicit agreements
to circumvent the base limits.’’
McCutcheon, 134 S. Ct. at 1447, 1452–
56, 1459; see also id. at 1453 (‘‘[A
donor] cannot . . . even imply that he
would like his money recontributed to
[a candidate].’’). In enforcement actions,
however, the Commission has
determined that funds are considered to
be ‘‘earmarked’’ only when there is
‘‘clear documented evidence of acts by
donors that resulted in their funds being
used’’ as contributions.3 Should the
3 Factual & Legal Analysis at 6–7, MUR 5732
(Matt Brown for U.S. Senate) (Apr. 4, 2007)
(concluding that there was no reason to believe
earmarking had occurred where ‘‘there were no
cover letters or other instructions accompanying the
checks’’ or ‘‘on the checks themselves’’) (citing
MURs 4831/5274 (Nixon)); see also First General
Counsel’s Report at 14–16, MUR 5445 (Geoffrey
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Commission revisit the manner in
which it enforces its earmarking
regulations to encompass the ‘‘implicit
agreements’’ addressed by the Court?
In its discussion of the Commission’s
earmarking regulations, the Court also
considered 11 CFR 110.1(h).
McCutcheon, 134 S. Ct. at 1453–56. That
rule ‘‘governs the circumstances under
which contributions to a candidate . . .
must be aggregated with contributions
to other political committees for
purposes of the [Act’s] contribution
limits.’’ Contribution and Expenditure
Limitations and Prohibitions;
Contributions by Persons and
Multicandidate Political Committees, 52
FR 760, 765 (Jan. 9, 1987). Section
110.1(h) provides that a person may
contribute both to a candidate for a
given election and to a political
committee that supports the same
candidate for the same election so long
as: (1) The political committee is not an
authorized committee or a singlecandidate committee; (2) the contributor
does not give with the knowledge that
a substantial portion of the contribution
will be contributed to, or expended on
behalf of, that candidate for the same
election; and (3) the contributor does
not retain control over the funds. 11
CFR 110.1(h).4 These criteria help to
‘‘disarm’’ the risk of circumvention,
McCutcheon, 134 S. Ct. at 1453, and the
Court accordingly suggested that the
Commission ‘‘might strengthen’’ 11 CFR
110.1(h)(2) by ‘‘defining how many
candidates a PAC must support in order
to ensure that ‘a substantial portion’ of
a donor’s contribution is not rerouted to
a certain candidate.’’ Id. at 1459. Should
the Commission make such a change to
11 CFR 110.1(h), for example, by
establishing a minimum number of
candidates a PAC must support or by
establishing a maximum percentage of a
PAC’s funds that can go to a single
candidate? 5 Would such a change
Davis for Congress) (Feb. 2, 2005); First General
Counsel’s Report at 9, MUR 5125 (Paul Perry for
Congress) (Dec. 20, 2002) (finding no reason to
believe where there was no ‘‘designation,
instruction, or encumbrance on the contribution’’).
4 In Advisory Opinion 2010–09 (Club for Growth)
at 5, the Commission concluded that ‘‘11 CFR
110.1(h) and its rationale do not apply to [an
independent-expenditure-only political
committee’s] solicitations or any contributions it
receives that are earmarked for specific
independent expenditures.’’
5 In 1985, the Commission proposed revising 11
CFR 110.1(h) to clarify its interpretation of the
regulation and included a proposal to articulate
‘‘indicia of a contributor’s ‘knowledge.’ ’’ See
Contribution and Expenditure Limitations and
Prohibitions: Contributions by Persons and
Multicandidate Political Committees, 50 FR 15169,
15172–75 (Apr. 17, 1985). Ultimately, the
Commission decided not to revise that section.
Contribution and Expenditure Limitations and
Prohibitions; Contributions by Persons and
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Federal Register / Vol. 79, No. 201 / Friday, October 17, 2014 / Proposed Rules
unnecessarily limit the ability of PACs
to associate with candidates? In light of
the McCutcheon decision and
discussion above, should the
Commission revise any of its other
earmarking rules? If so, how?
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Affiliation
In addition to the earmarking
provisions discussed above, the Court
cited the anti-proliferation provisions of
the Act and Commission regulations as
mechanisms that limit circumvention of
the base limits. McCutcheon, 134 S. Ct.
at 1453–54 (citing former 2 U.S.C.
441a(a)(5); 11 CFR 100.5(g)).
Commission regulations provide that
‘‘[a]ll committees . . . established,
financed, maintained, or controlled, by
the same . . . person, or group of
persons . . . are affiliated,’’ and thus are
subject to a single contribution limit. 11
CFR 100.5(g)(2), 110.3(a)(1)(ii). These
regulations include a number of
affiliation factors, see 11 CFR
100.5(g)(4), 110.3(a)(3), which the Court
indicated the Commission could use—
when presented with ‘‘suspicious
patterns of PAC donations’’—to
determine whether political committees
are affiliated. See McCutcheon, 134 S.
Ct. at 1454. Are the current affiliation
factors at 11 CFR 100.5(g)(4) and
110.3(a)(3) adequate to prevent
circumvention of the base contribution
limits? Should the Commission revisit
its affiliation factors? If so, how?
Joint Fundraising Committees
The Act and Commission regulations
authorize the creation of joint
fundraising committees, see 52 U.S.C.
30102(e)(3)(A)(ii) (formerly 2 U.S.C.
432(e)(3)(A)(ii)); 11 CFR 102.17, as well
as the transfer of funds between and
among participating committees. See 11
CFR 102.6(a)(1)(iii), 110.3(c)(2). The
Court noted that these rules could be
revised to limit the opportunity for
using joint fundraising committees to
circumvent the base limits. See
McCutcheon, 134 S. Ct. at 1458–59. The
Court suggested, for instance, that joint
fundraising committees could be limited
in size, or that funds received by
participants in a joint fundraising
committee could be spent only ‘‘by their
recipients.’’ Id.
The Act includes the following
provisions that can affect transfers
between committees engaged in joint
fundraising. Candidates may transfer
contributions they receive, ‘‘without
limitation, to a national, State, or local
committee of a political party.’’ 52
U.S.C. 30114(a)(4) (formerly 2 U.S.C.
439a(a)(4)). The limits on contributions
found at 52 U.S.C. 30116(a)(1) and (2)
(formerly 2 U.S.C. 441a(a)(1) and (2)) do
not apply to transfers ‘‘between and
among political committees which are
national, State, district or local
committees (including any subordinate
committee thereof) of the same political
party.’’ 52 U.S.C. 30116(a)(4) (formerly 2
U.S.C. 441a(a)(4)). The Act provides that
contributions made by political
committees that are ‘‘established or
financed or maintained or controlled’’
by the same entity shall be considered
to have been made by a single
committee, except that this provision
does not ‘‘limit transfers between
political committees of funds raised
through joint fundraising efforts.’’ 52
U.S.C. 30116(a)(5)(A) (formerly 2 U.S.C.
441a(a)(5)(A)).
In light of the McCutcheon decision
and the statutory provisions described
above, can or should the Commission
revise its joint fundraising rules? If so,
how?
Disclosure
The Supreme Court observed that
disclosure requirements ‘‘may . . .
‘deter actual corruption and avoid the
appearance of corruption by exposing
large contributions and expenditures to
the light of publicity.’ ’’ McCutcheon,
134 S. Ct. at 1459–60 (quoting Buckley
v. Valeo, 424 U.S. 1, 67 (1976)).
Particularly due to developments in
technology—primarily the internet—the
Court observed that ‘‘disclosure offers
much more robust protections against
corruption’’ because ‘‘[r]eports and
databases are available on the FEC’s
Web site almost immediately after they
are filed.’’ Id. at 1460.
Given these developments in modern
technology, what regulatory changes or
other steps should the Commission take
to further improve its collection and
presentation of campaign finance data?
On behalf of the Commission,
Dated: October 9, 2014.
Lee E. Goodman,
Chairman, Federal Election Commission.
[FR Doc. 2014–24660 Filed 10–16–14; 8:45 am]
BILLING CODE 6715–01–P
Multicandidate Political Committees, 52 FR 760,
765 (Jan. 9, 1987).
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62363
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2014–0752; Directorate
Identifier 2014–NM–079–AD]
RIN 2120–AA64
Airworthiness Directives; Bombardier,
Inc. Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
We propose to supersede
Airworthiness Directive (AD) 2014–06–
08, for certain Bombardier, Inc. Model
DHC–8–100, –200, and –300 series
airplanes. AD 2014–06–08 currently
requires repetitive functional checks of
the nose and main landing gear, and
corrective actions if necessary; and also
provides optional terminating action
modification for the repetitive
functional checks. Since we issued AD
2014–06–08, we have determined that
the optional terminating action
modification is necessary to address the
identified unsafe condition. This
proposed AD would also require the
terminating action modification. We are
proposing this AD to detect and correct
a false down-and-locked landing gear
indication, which, on landing, could
result in possible collapse of the landing
gear.
DATES: We must receive comments on
this proposed AD by December 1, 2014.
ADDRESSES: You may send comments by
any of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
• Hand Delivery: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
For service information identified in
this proposed AD, contact Bombardier,
Inc., Q-Series Technical Help Desk, 123
Garratt Boulevard, Toronto, Ontario
M3K 1Y5, Canada; telephone 416–375–
4000; fax 416–375–4539; email
thd.qseries@aero.bombardier.com;
Internet https://www.bombardier.com.
You may view this referenced service
SUMMARY:
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Agencies
[Federal Register Volume 79, Number 201 (Friday, October 17, 2014)]
[Proposed Rules]
[Pages 62361-62363]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24660]
=======================================================================
-----------------------------------------------------------------------
FEDERAL ELECTION COMMISSION
11 CFR Part 110
[NOTICE 2014-12]
Aggregate Biennial Contribution Limits
AGENCY: Federal Election Commission.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: In addition to publishing in today's Federal Register an
Interim Final Rule to remove the aggregate contribution limits from the
Commission's regulations, the Commission requests comments on whether
to begin a rulemaking to revise other regulations in light of certain
language from the Supreme Court's recent decision in McCutcheon v. FEC.
The Commission intends to review the comments it receives as it decides
what revisions, if any, it will propose making to its rules.
DATES: Comments must be received on or before January 15, 2015. The
Commission will hold a hearing on these issues on February 11, 2015.
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.
ADDRESSES: All comments must be in writing. Comments may be submitted
electronically via the Commission's Web site at sers.fec.gov, reference
REG 2014-01. Commenters are encouraged to submit comments
electronically to ensure timely receipt and consideration.
Alternatively, comments may be submitted in paper form. Paper comments
must be sent to the Federal Election Commission, Attn.: Amy L.
Rothstein, Assistant General Counsel, 999 E Street NW., Washington, DC
20463. All comments must include the full name and postal service
address of a commenter, and of each commenter if filed jointly, or they
will not be considered. The Commission will post comments on its Web
site at the conclusion of the comment period.
FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant
General Counsel, or Mr. Theodore M. Lutz, Attorney, 999 E Street NW.,
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
[[Page 62362]]
SUPPLEMENTARY INFORMATION:
Background
The Federal Election Campaign Act, 52 U.S.C. 30101-46 (formerly 2
U.S.C. 431-57) (``FECA''), imposes two types of limits on the amount
that individuals may contribute in connection with federal elections.
The ``base limits'' restrict how much an individual may contribute to a
particular candidate or political committee per election or calendar
year. See 52 U.S.C. 30116(a)(1) (formerly 2 U.S.C. 441a(a)(1)). The
``aggregate limits'' restrict how much an individual may contribute to
all candidate committees, political party committees, and other
political committees in each two-year election cycle.\1\ See 52 U.S.C.
30116(a)(3) (formerly 2 U.S.C. 441a(a)(3)). The Commission has
implemented the aggregate limits in its regulations at 11 CFR 110.5.
---------------------------------------------------------------------------
\1\ Under the aggregate limits, as indexed for inflation in the
2013-14 election cycle, an individual could contribute up to $48,600
to candidates and their authorized committees, and up to $74,600 to
other political committees, of which no more than $48,600 could be
contributed to political committees other than national party
committees. See Price Index Adjustments for Contribution and
Expenditure Limitations and Lobbyist Bundling Disclosure Threshold,
78 FR 8530, 8532 (Feb. 6, 2013).
---------------------------------------------------------------------------
On April 2, 2014, the United States Supreme Court held that the
aggregate contribution limits at 52 U.S.C. 30116(a)(3) (formerly 2
U.S.C. 441a(a)(3)) are unconstitutional. McCutcheon v. FEC, 572 U.S. _,
134 S. Ct. 1434, 1442, 1450-59 (2014) (plurality op.). The Court's
decision did not affect the base limits. See id. at 1442. Accordingly,
in an Interim Final Rule published today in the Federal Register, the
Commission deleted 11 CFR 110.5 and made technical and conforming
changes to 11 CFR 110.1(c), 110.14(d) and (g), 110.17(b), and 110.19 to
conform its regulations to the McCutcheon decision.
The Commission also seeks comment on whether it should further
modify its regulations or practices in response to certain language
from the McCutcheon decision.\2\ The Commission acknowledges that these
issues are not presented in this Advance Notice of Proposed Rulemaking
in a way to fully apprise interested parties with sufficient clarity
and specificity for the Commission to enact a final rule.
---------------------------------------------------------------------------
\2\ McCutcheon, 134 S. Ct. at 1453-54, 1458-60.
---------------------------------------------------------------------------
Although it held the aggregate limits to be unconstitutional, the
Supreme Court indicated that there are ``multiple alternatives
available to Congress that would serve the Government's interest in
preventing circumvention while avoiding `unnecessary abridgment' of
First Amendment rights.'' McCutcheon, 134 S. Ct. at 1458 (quoting
Buckley v. Valeo, 424 U.S. 1, 25 (1976)). The Court identified
mechanisms that could be implemented or amended to prevent
circumvention of the base limits, including: Earmarking regulations, 11
CFR part 110; affiliation factors, 11 CFR 100.5; joint fundraising
committee regulations, 11 CFR 102.17; and disclosure regulations, 11
CFR part 104. The Commission seeks comment on whether it should modify
its regulations or practices in these areas, as discussed below. The
Commission also seeks comment on whether it should make any other
regulatory changes in light of the decision.
Earmarking
The Act provides that ``all contributions made by a person, either
directly or indirectly, on behalf of a particular candidate, including
contributions which are in any way earmarked or otherwise directed
through an intermediary or conduit to such candidate,'' are
contributions from that person to the candidate. 52 U.S.C. 30116(a)(8)
(formerly 2 U.S.C. 441a(a)(8)). The Commission's regulations define the
term ``earmarked'' to mean ``a designation, instruction, or
encumbrance, whether direct or indirect, express or implied, oral or
written, which results in all or any part of a contribution or
expenditure being made to, or expended on behalf of, a clearly
identified candidate or a candidate's authorized committee.'' 11 CFR
110.6(b)(1).
In analyzing whether the aggregate contribution limits served to
prevent circumvention of the base limits, the Court relied on this
``broad[ ]'' definition of ``earmarked'' at 11 CFR 110.6(b)(1) to
conclude that Commission rules already cover ``implicit agreements to
circumvent the base limits.'' McCutcheon, 134 S. Ct. at 1447, 1452-56,
1459; see also id. at 1453 (``[A donor] cannot . . . even imply that he
would like his money recontributed to [a candidate].''). In enforcement
actions, however, the Commission has determined that funds are
considered to be ``earmarked'' only when there is ``clear documented
evidence of acts by donors that resulted in their funds being used'' as
contributions.\3\ Should the Commission revisit the manner in which it
enforces its earmarking regulations to encompass the ``implicit
agreements'' addressed by the Court?
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\3\ Factual & Legal Analysis at 6-7, MUR 5732 (Matt Brown for
U.S. Senate) (Apr. 4, 2007) (concluding that there was no reason to
believe earmarking had occurred where ``there were no cover letters
or other instructions accompanying the checks'' or ``on the checks
themselves'') (citing MURs 4831/5274 (Nixon)); see also First
General Counsel's Report at 14-16, MUR 5445 (Geoffrey Davis for
Congress) (Feb. 2, 2005); First General Counsel's Report at 9, MUR
5125 (Paul Perry for Congress) (Dec. 20, 2002) (finding no reason to
believe where there was no ``designation, instruction, or
encumbrance on the contribution'').
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In its discussion of the Commission's earmarking regulations, the
Court also considered 11 CFR 110.1(h). McCutcheon, 134 S. Ct. at 1453-
56. That rule ``governs the circumstances under which contributions to
a candidate . . . must be aggregated with contributions to other
political committees for purposes of the [Act's] contribution limits.''
Contribution and Expenditure Limitations and Prohibitions;
Contributions by Persons and Multicandidate Political Committees, 52 FR
760, 765 (Jan. 9, 1987). Section 110.1(h) provides that a person may
contribute both to a candidate for a given election and to a political
committee that supports the same candidate for the same election so
long as: (1) The political committee is not an authorized committee or
a single-candidate committee; (2) the contributor does not give with
the knowledge that a substantial portion of the contribution will be
contributed to, or expended on behalf of, that candidate for the same
election; and (3) the contributor does not retain control over the
funds. 11 CFR 110.1(h).\4\ These criteria help to ``disarm'' the risk
of circumvention, McCutcheon, 134 S. Ct. at 1453, and the Court
accordingly suggested that the Commission ``might strengthen'' 11 CFR
110.1(h)(2) by ``defining how many candidates a PAC must support in
order to ensure that `a substantial portion' of a donor's contribution
is not rerouted to a certain candidate.'' Id. at 1459. Should the
Commission make such a change to 11 CFR 110.1(h), for example, by
establishing a minimum number of candidates a PAC must support or by
establishing a maximum percentage of a PAC's funds that can go to a
single candidate? \5\ Would such a change
[[Page 62363]]
unnecessarily limit the ability of PACs to associate with candidates?
In light of the McCutcheon decision and discussion above, should the
Commission revise any of its other earmarking rules? If so, how?
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\4\ In Advisory Opinion 2010-09 (Club for Growth) at 5, the
Commission concluded that ``11 CFR 110.1(h) and its rationale do not
apply to [an independent-expenditure-only political committee's]
solicitations or any contributions it receives that are earmarked
for specific independent expenditures.''
\5\ In 1985, the Commission proposed revising 11 CFR 110.1(h) to
clarify its interpretation of the regulation and included a proposal
to articulate ``indicia of a contributor's `knowledge.' '' See
Contribution and Expenditure Limitations and Prohibitions:
Contributions by Persons and Multicandidate Political Committees, 50
FR 15169, 15172-75 (Apr. 17, 1985). Ultimately, the Commission
decided not to revise that section. Contribution and Expenditure
Limitations and Prohibitions; Contributions by Persons and
Multicandidate Political Committees, 52 FR 760, 765 (Jan. 9, 1987).
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Affiliation
In addition to the earmarking provisions discussed above, the Court
cited the anti-proliferation provisions of the Act and Commission
regulations as mechanisms that limit circumvention of the base limits.
McCutcheon, 134 S. Ct. at 1453-54 (citing former 2 U.S.C. 441a(a)(5);
11 CFR 100.5(g)). Commission regulations provide that ``[a]ll
committees . . . established, financed, maintained, or controlled, by
the same . . . person, or group of persons . . . are affiliated,'' and
thus are subject to a single contribution limit. 11 CFR 100.5(g)(2),
110.3(a)(1)(ii). These regulations include a number of affiliation
factors, see 11 CFR 100.5(g)(4), 110.3(a)(3), which the Court indicated
the Commission could use--when presented with ``suspicious patterns of
PAC donations''--to determine whether political committees are
affiliated. See McCutcheon, 134 S. Ct. at 1454. Are the current
affiliation factors at 11 CFR 100.5(g)(4) and 110.3(a)(3) adequate to
prevent circumvention of the base contribution limits? Should the
Commission revisit its affiliation factors? If so, how?
Joint Fundraising Committees
The Act and Commission regulations authorize the creation of joint
fundraising committees, see 52 U.S.C. 30102(e)(3)(A)(ii) (formerly 2
U.S.C. 432(e)(3)(A)(ii)); 11 CFR 102.17, as well as the transfer of
funds between and among participating committees. See 11 CFR
102.6(a)(1)(iii), 110.3(c)(2). The Court noted that these rules could
be revised to limit the opportunity for using joint fundraising
committees to circumvent the base limits. See McCutcheon, 134 S. Ct. at
1458-59. The Court suggested, for instance, that joint fundraising
committees could be limited in size, or that funds received by
participants in a joint fundraising committee could be spent only ``by
their recipients.'' Id.
The Act includes the following provisions that can affect transfers
between committees engaged in joint fundraising. Candidates may
transfer contributions they receive, ``without limitation, to a
national, State, or local committee of a political party.'' 52 U.S.C.
30114(a)(4) (formerly 2 U.S.C. 439a(a)(4)). The limits on contributions
found at 52 U.S.C. 30116(a)(1) and (2) (formerly 2 U.S.C. 441a(a)(1)
and (2)) do not apply to transfers ``between and among political
committees which are national, State, district or local committees
(including any subordinate committee thereof) of the same political
party.'' 52 U.S.C. 30116(a)(4) (formerly 2 U.S.C. 441a(a)(4)). The Act
provides that contributions made by political committees that are
``established or financed or maintained or controlled'' by the same
entity shall be considered to have been made by a single committee,
except that this provision does not ``limit transfers between political
committees of funds raised through joint fundraising efforts.'' 52
U.S.C. 30116(a)(5)(A) (formerly 2 U.S.C. 441a(a)(5)(A)).
In light of the McCutcheon decision and the statutory provisions
described above, can or should the Commission revise its joint
fundraising rules? If so, how?
Disclosure
The Supreme Court observed that disclosure requirements ``may . . .
`deter actual corruption and avoid the appearance of corruption by
exposing large contributions and expenditures to the light of
publicity.' '' McCutcheon, 134 S. Ct. at 1459-60 (quoting Buckley v.
Valeo, 424 U.S. 1, 67 (1976)). Particularly due to developments in
technology--primarily the internet--the Court observed that
``disclosure offers much more robust protections against corruption''
because ``[r]eports and databases are available on the FEC's Web site
almost immediately after they are filed.'' Id. at 1460.
Given these developments in modern technology, what regulatory
changes or other steps should the Commission take to further improve
its collection and presentation of campaign finance data?
On behalf of the Commission,
Dated: October 9, 2014.
Lee E. Goodman,
Chairman, Federal Election Commission.
[FR Doc. 2014-24660 Filed 10-16-14; 8:45 am]
BILLING CODE 6715-01-P