Reporting Multistate Independent Expenditures and Electioneering Communications, 66590-66596 [2018-27800]

Agencies

• Federal Election Commission

[Federal Register Volume 83, Number 247 (Thursday, December 27, 2018)]
[Rules and Regulations]
[Pages 66590-66596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27800]


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FEDERAL ELECTION COMMISSION

11 CFR Parts 104 and 109

[Notice 2018-17]


Reporting Multistate Independent Expenditures and Electioneering 
Communications

AGENCY: Federal Election Commission.

ACTION: Final rule.

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SUMMARY: The Commission is adopting final rules to address reporting of 
independent expenditures and electioneering communications that relate 
to presidential primary elections and that are publicly distributed in 
multiple states but that do not refer to any particular state's primary 
election.

DATES: This rule is subject to subject to Congressional review. 52 
U.S.C. 30111(d). The effective date is March 31, 2019. However, at the 
conclusion of the Congressional review, if the effective date has been 
changed, the Commission will publish a document in the Federal Register 
to establish the actual effective date.

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General 
Counsel, or Ms. Joanna S. Waldstreicher, Attorney, 1050 First St. NE, 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530. Documents 
relating to the rulemaking record are available on the Commission's 
website at https://sers.fec.gov/fosers, reference REG 2014-02.

SUPPLEMENTARY INFORMATION: The Commission is revising its regulations 
concerning independent expenditures and electioneering communications 
as they apply to communications that relate to presidential primary 
elections and that are publicly distributed in multiple states but that 
do not refer to any particular state's primary election (a ``multistate 
independent expenditure'' or ``multistate electioneering 
communication''). The Act and Commission regulations require persons 
who make independent expenditures and electioneering communications to 
report certain information to the Commission within specified periods 
of time. See 52 U.S.C. 30104(b)-(c), (f), (g); 11 CFR 104.3, 104.4, 
104.20, 109.10. The Commission is revising its regulations to clarify 
when and how multistate independent expenditures and multistate 
electioneering communications must be reported.
    Although the Commission also proposed revising its regulations 
concerning independent expenditures by authorized committees of 
candidates, the Commission could not reach agreement to revise those 
regulations at this time. See Independent Expenditures by Authorized 
Committees; Reporting Multistate Independent Expenditures and 
Electioneering Communications, 83 FR 3996, 3999-4000 (Jan. 29, 2018). 
The Commission may reconsider revisions to those regulations in a 
separate rulemaking at a later date.

Transmission of Final Rules to Congress

    Before final promulgation of any rules or regulations to carry out 
the provisions of the Federal Election Campaign Act, the Commission 
transmits the rules or regulations to the Speaker of the House of 
Representatives and the President of the Senate for a thirty-
legislative-day review period. 52 U.S.C. 30111(d). The effective date 
of this final rule is March 31, 2019. However, at the conclusion of the 
Congressional review, if the effective date has been changed, the 
Commission will publish a document in the Federal Register to establish 
the actual effective date.

Explanation and Justification

I. Background

    The Act and Commission regulations require that political 
committees report all disbursements. 52 U.S.C. 30104(b)(4); 11 CFR 
104.3(b). Political committees must also itemize their disbursements 
according to specific categories. 52 U.S.C. 30104(b)(4); 11 CFR 
104.3(b)(1)-(2). An ``independent expenditure'' is an expenditure that 
expressly advocates the election or defeat of a clearly identified 
federal candidate and is not coordinated with such candidate (or his or 
her opponent) or political party. 52 U.S.C. 30101(17); see also 11 CFR 
100.16(a). Under existing regulations, a political committee (other 
than an authorized committee) that makes independent expenditures must 
itemize those expenditures on its regular periodic reports, stating, 
among other things, the name of the candidate whom the expenditure 
supports or opposes and the office sought by that candidate. 52 U.S.C. 
30104(b)(4)(H)(iii), (6)(B)(iii); 11 CFR 104.4(a). Any person other 
than a political committee that makes independent expenditures 
aggregating in excess of $250 during a calendar year must disclose the 
same information in a statement filed with the Commission.\1\ 52 U.S.C. 
30104(c); 11 CFR 109.10(b).
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    \1\ Further, Commission regulations provide that persons other 
than political committees ``shall file a report or statement . . . 
in any quarterly reporting period thereafter in which additional 
independent expenditures are made.'' 11 CFR 109.10(b).

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[[Page 66591]]

    In addition, any person that makes independent expenditures 
aggregating $10,000 or more for an election in any calendar year, up to 
and including the 20th day before an election, must report the 
expenditures within 48 hours. 52 U.S.C. 30104(g)(2)(A); 11 CFR 
104.4(b)(2), 109.10(c). Additional reports must be filed within 48 
hours each time the person makes further independent expenditures 
aggregating $10,000 or more with respect to the same election. 52 
U.S.C. 30104(g)(2)(B); 11 CFR 104.4(b)(2), 109.10(c).
    Any person that makes independent expenditures aggregating at least 
$1,000 less than 20 days, but more than 24 hours, before the date of an 
election must report the expenditures within 24 hours. 52 U.S.C. 
30104(g)(1)(A); 11 CFR 104.4(c), 109.10(d). Additional reports must be 
filed within 24 hours each time the person makes further independent 
expenditures aggregating $1,000 or more with respect to the same 
election. 52 U.S.C. 30104(g)(1)(B); 11 CFR 104.4(c), 109.10(d).
    The 48- and 24-hour filing requirements begin to run when the 
independent expenditures aggregating at least $10,000 or $1,000, 
respectively, are ``publicly distributed or otherwise publicly 
disseminated.'' 11 CFR 104.4(b)(2), (c), (f), 109.10(c)-(d). For 
purposes of calculating these expenditures and determining if a 
communication is ``publicly distributed'' within an applicable 20-day 
pre-election period, each state's presidential primary election is 
considered a separate election. See Advisory Opinion 2003-40 (U.S. Navy 
Veterans' Good Government Fund) at 3-4 (noting that ``publicly 
distributed'' in Sec.  104.4 has same meaning as the term in 11 CFR 
100.29(b)(3)(ii)(A), under which each state's presidential primary 
election is a separate election) (citing Bipartisan Campaign Reform Act 
of 2002 Reporting, 68 FR 404, 407 (Jan. 3, 2003); Electioneering 
Communications, 67 FR 65190, 65194 (Oct. 23, 2002)).
    An ``electioneering communication,'' in the context of a 
presidential election, is a broadcast, cable, or satellite 
communication that refers to a clearly identified candidate for 
President or Vice President and is ``publicly distributed'' within 60 
days before a general election or 30 days before a primary election or 
nominating convention. 52 U.S.C. 30104(f)(3)(A)(i); 11 CFR 100.29(a). 
If the candidate identified in the communication is seeking a party's 
nomination for the presidential or vice presidential election, 
``publicly distributed'' means the communication can be received by at 
least 50,000 people in a state where a primary election is being held 
within 30 days, or that it can be received by at least 50,000 people 
anywhere in the United States within the period between 30 days before 
the first day of the national nominating convention and the conclusion 
of the convention. 11 CFR 100.29(b)(3).
    A person who makes electioneering communications that aggregate in 
excess of $10,000 in a calendar year must file a statement with the 
Commission disclosing certain information about the electioneering 
communication, including the election to which the electioneering 
communication pertains. 52 U.S.C. 30104(f); 11 CFR 104.20(b)-(c). As 
with independent expenditures, each state's presidential primary 
election is considered a separate election for purposes of determining 
whether an electioneering communication is ``publicly distributed'' 
within the pre-election reporting window. See Advisory Opinion 2003-40 
(U.S. Navy Veterans' Good Government Fund) at 3-4.
    The Commission's current regulations do not specifically address 
how the public distribution criteria and other reporting requirements 
apply to independent expenditures or electioneering communications that 
are made in the context of a presidential primary election and that are 
distributed in multiple states. In particular, the regulations do not 
specify which state's primary election date is relevant for determining 
whether the communication falls within the 24-hour reporting window 
(for independent expenditures) or the 30-day definitional window (for 
electioneering communications).
    In a 2012 advisory opinion, the Commission considered how the 
independent expenditure reporting requirements applied to independent 
expenditures that supported or opposed a presidential primary candidate 
and were distributed nationwide without referring to any specific 
state's primary election. See Advisory Opinion 2011-28 (Western 
Representation PAC). In that advisory opinion, the Commission concluded 
that a political committee making such an independent expenditure 
should divide the cost of the independent expenditure by the number of 
states that had not yet held their primary elections, and should use 
the resulting amounts to determine whether the committee must file 24- 
and 48-hour reports and for which states. Id.
    In 2014, the Commission made available for public comment three 
alternative draft interpretive rules on this topic. Draft Notices of 
Interpretive Rule Regarding Reporting Nationwide Independent 
Expenditures in Presidential Primary Elections (Jan. 17, 2014) (``Draft 
Interpretive Rules'').\2\ Draft A would have followed the approach set 
forth in Advisory Opinion 2011-28 (Western Representation PAC), 
instructing persons making a nationwide independent expenditure to 
divide the cost of the nationwide independent expenditure by the number 
of states with upcoming presidential primary elections. Draft B would 
have instructed persons making a nationwide independent expenditure to 
report it as a single expenditure without indicating a state where the 
expenditure was made, instead using ``memo text'' \3\ to indicate that 
the independent expenditure was made nationwide. Draft B also would 
have instructed filers to use the first day of the candidate's national 
nominating convention as the election date for determining whether they 
must file 24- and 48-hour reports. Finally, Draft C would have provided 
the same reporting guidance as Draft B, except that Draft C would have 
instructed filers to use the date of the next presidential primary 
election (rather than the beginning of the national nominating 
convention) as the election date.
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    \2\ Available at https://transition.fec.gov/law/policy/nationwideiereporting/draftnationwideiereporting.pdf. The Draft 
Interpretive Rules referred to the type of independent expenditures 
that are the subject of this rulemaking as ``nationwide independent 
expenditures.'' As discussed below, however, the Commission has 
determined that an independent expenditure or electioneering 
communication need not be distributed in all states to fall under 
the proposed rules. Accordingly, such communications are referred to 
in this document as ``multistate''--rather than ``nationwide'' -- 
independent expenditures and electioneering communications.
    \3\ ``Memo text'' refers to a means of including additional 
information or explanation about a receipt or disbursement on a 
Commission form. See FEC, Campaign Guide for Nonconnected Committees 
(2008), https://www.fec.gov/resources/cms-content/documents/nongui.pdf.
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    The Commission received two comments on the Draft Interpretive 
Rules.\4\ Both comments generally supported Draft B. Both comments also 
argued that the approach in Draft A was unnecessarily complex and would 
not provide clear information to the public about the reported 
independent expenditures. After reviewing the comments and engaging in 
further deliberation, the Commission determined that this issue would 
be better addressed through regulatory

[[Page 66592]]

amendments than through an interpretive rule.
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    \4\ These comments are available on the Commission's website at 
https://www.fec.gov/law/policy.shtml.
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    The Commission published a Notice of Proposed Rulemaking (``NPRM'') 
in the Federal Register on January 29, 2018. Independent Expenditures 
by Authorized Committees; Reporting Multistate Independent Expenditures 
and Electioneering Communications, 83 FR 3996 (Jan. 29, 2018). The NPRM 
provided three alternative sets of proposed rules--Alternative A, 
Alternative B, and Alternative C--and sought public comment on each of 
them. The comment period ended on March 30, 2018. The Commission 
received 11 substantive comments from 14 commenters in response to the 
NPRM.\5\
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    \5\ The Internal Revenue Service also submitted a comment 
indicating that it sees no conflict between this rulemaking and the 
Internal Revenue Code or Treasury regulations. See 52 U.S.C. 
30111(f).
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II. Revised 11 CFR 104.3 and 104.4--Reporting Multistate Independent 
Expenditures by Political Committees

    As set forth below, the Commission is revising Sec.  104.3, 
concerning the content of independent expenditure reports by political 
committees, and Sec.  104.4, concerning the timing of independent 
expenditure reports by political committees. The Commission is making 
these revisions to clarify the reporting obligations of a political 
committee when it makes a multistate independent expenditure. Of the 
three alternatives proposed in the NPRM for revising these regulations, 
the Commission is adopting Alternative B.

1. New 11 CFR 104.3(b)(3)(vii)(C)--Content of Reports

    As described above, political committees--other than authorized 
committees--must provide for each reported disbursement in connection 
with an independent expenditure the date, amount, and purpose of the 
independent expenditure, a statement indicating whether the independent 
expenditure was in support of, or in opposition to, a candidate, the 
name and office sought by that candidate, and a certification that the 
expenditure was, in fact, independent. 52 U.S.C. 30104(b)(6)(B); 11 CFR 
104.3(b)(3)(vii).
    The Commission proposed three alternatives for revising this 
paragraph to more clearly indicate how political committees should 
provide the required information for multistate independent 
expenditures. Alternatives A and B both would add a new paragraph 
(b)(3)(vii)(C), requiring that when a political committee makes an 
independent expenditure in support of or in opposition to a candidate 
in a presidential primary election, and the communication is publicly 
distributed or otherwise disseminated in more than a specified number 
of states but does not refer to any particular state, the political 
committee must report the independent expenditure as a single 
expenditure and use memo text to indicate the states where the 
communication is distributed. Under Alternatives A and B, the 
Commission would also redesignate current paragraph (b)(3)(vii)(C) as 
paragraph (b)(3)(vii)(D).
    Under Alternative C, which also would have added a new paragraph 
(b)(3)(vii)(C), political committees would allocate the amount of the 
independent expenditure among the states where it is distributed whose 
primary elections have yet to occur, according to a ratio based on the 
number of U.S. House of Representatives districts apportioned to each 
state, and report the amount spent for each such state.
    In addition to comments on the proposals generally, the Commission 
specifically sought comment on the number of states that would be the 
threshold for a communication to fall within the new paragraph. 
Requiring an independent expenditure to be ``nationwide''--i.e., 
disseminated in all fifty states plus the District of Columbia (and 
possibly Puerto Rico, Guam, and American Samoa)--would exclude some 
independent expenditures that are distributed in a large number of 
states (e.g., the entire continental United States). This would 
significantly limit the benefits and application of the proposed 
reporting rule. Alternatively, applying the new provision to 
independent expenditures that are disseminated in only a handful of 
states might result in independent expenditures that are targeted to a 
specific state's primary--but partially distributed in neighboring 
states that share its media markets--being misleadingly reported as 
``multistate'' communications.
    Most of the commenters were in agreement that either Alternative A 
or Alternative B would be preferable to the reporting method identified 
in the Western Representation PAC advisory opinion or the one proposed 
in Alternative C. These commenters generally agreed that Alternatives A 
and B are both improvements over the existing guidance, in terms of the 
transparency and accuracy of the information provided to the public as 
well as the burden on the filer. Many of the commenters also agreed 
that Alternative C is similar to the approach of Advisory Opinion 2011-
28 (Western Representation PAC), and is more complex and less 
transparent than Alternatives A and B.
    Many of the commenters expressed a preference for Alternative A due 
to its simplicity for filers, and one commenter also opined that 
Alternative A would operate better for digital ads because they are 
more frequently intended to influence the general election on a 
national basis. One commenter preferred Alternative B, contending that 
Alternative A would not satisfy the 24-hour reporting requirement of 
the Act. Another commenter argued that both alternatives would 
effectively require reporting multistate independent expenditures of 
more than $1,000 in the aggregate rather than $1,000 per state of 
distribution as required by statute. The commenter recommended that the 
Commission modify either of these alternatives to set the threshold 
amount for reporting multistate independent expenditures at $1,000 per 
state in which it is distributed, to better implement the statutory 
reporting requirement. Id.
    Six commenters addressed the minimum number of states in which a 
communication would have to be publicly distributed before being 
considered a multistate independent expenditure. The suggested number 
of states ranged from two to ten, though there was no consensus among 
commenters on the actual number that should be used. However, several 
commenters did agree that the Commission should take into consideration 
the fact that many media markets cross state lines, and that a 
communication distributed in multiple states may in fact be targeted at 
only one state's primary election.
    Based on the comments received and the applicable statutory 
requirements, the Commission has decided to add new paragraph 
(b)(3)(vii)(C) in Sec.  104.3, as proposed in Alternatives A and B. The 
Commission agrees with the commenters who expressed the view that these 
Alternatives are preferable to Alternative C because Alternatives A and 
B would be less complex than Alternative C and would provide more 
accurate information to the public concerning the true costs of 
multistate independent expenditures. The new paragraph requires that 
when a political committee makes an independent expenditure in support 
of or in opposition to a candidate in a presidential primary election, 
and the communication is publicly distributed or otherwise disseminated 
in six or more states but does not refer to any particular state, the 
political committee must report the independent

[[Page 66593]]

expenditure as a single expenditure and use memo text to indicate the 
states where the communication is distributed. The political committee 
must also indicate the state with the next upcoming presidential 
primary among those states where the independent expenditure is 
distributed, as specified in new Sec.  104.4(f)(2) and explained below. 
The Commission is also redesignating current paragraph (b)(3)(vii)(C) 
as paragraph (b)(3)(vii)(D).
    The Commission's determination that the new Sec.  
104.3(b)(3)(vii)(C) should apply to an independent expenditure that is 
publicly distributed or otherwise disseminated in at least six states 
is based on the fact that U.S. media markets often overlap state lines. 
Some media markets include parts of up to four states, and in one case, 
four states and the District of Columbia.\6\ An independent expenditure 
distributed in a single such media market could be targeted to a single 
state's primary election, but would be considered a ``multistate'' 
independent expenditure if the Commission set the threshold number for 
the new provision lower than six.
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    \6\ Comment from Campaign Legal Center, March 29, 2018, at 3 
(citing Kantar Media, DMA County Coverage as Defined by Nielsen 
Media Research (Fall 2016)).
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    The Commission also proposed modifying the instructions for its 
forms to conform them to the new reporting provisions. The Commission 
intends that the instructions will provide a political committee with 
flexibility on how to report the states where a multistate independent 
expenditure is distributed, in order to allow for timely and complete 
information to be available to the public. After considering the 
comments received, the Commission has concluded that filers may use 
descriptive memo text to indicate either the specific states or the 
regions where a multistate independent expenditure is distributed, such 
as ``nationwide'' or ``New England,'' so long as the description is 
sufficient to allow a member of the public to understand where the 
communication was distributed. The Commission will publish non-
exhaustive lists of adequate and inadequate descriptions similar to its 
existing lists of adequate and inadequate ``purpose of disbursement'' 
descriptions. See Purposes of Disbursement, https://www.fec.gov/help-candidates-and-committees/purposes-disbursement/. Filers should also 
indicate the state with the next upcoming presidential primary among 
those states where the independent expenditure is distributed, as 
specified in Sec.  104.4(f)(2).
    For independent expenditures distributed in fewer than six states, 
there is no change in reporting requirements. Each state's presidential 
primary election is deemed a separate election, and therefore filers 
will continue to report independent expenditures that do not fall 
within new Sec.  104.3(b)(3)(vii)(C) by itemizing each such independent 
expenditure by state and aggregating the amount allocated to each state 
with other independent expenditures in that state.

2. New 11 CFR 104.4(f)(2)--Timing of Reports

    In Sec.  104.4, the Commission proposed to redesignate current 
paragraph (f) as paragraph (f)(1) and add new paragraph (f)(2), 
concerning when a political committee must file a 24- or 48-hour report 
for a multistate independent expenditure. As described above, the Act 
and Commission regulations require any person who makes independent 
expenditures aggregating at or above certain threshold amounts and 
within certain periods prior to an election to report those independent 
expenditures within 48 or 24 hours. 52 U.S.C. 30104(g)(1)(A), (2)(A); 
11 CFR 104.4(b)(2), (c), 109.10(c)-(d). The Commission proposed three 
alternative revisions to Sec. Sec.  104.4 and 109.10 to clarify which 
state's primary election date is relevant for determining whether the 
communication falls within the 24-hour reporting window when an 
independent expenditure is publicly distributed in multiple states but 
the communication does not refer to a particular state's primary.
    Under Alternative A, a political committee making a multistate 
independent expenditure would report it as a single expenditure, as 
discussed above, and would use the date of the national nominating 
convention for the clearly identified candidate's party as the date of 
the election for purposes of determining whether the independent 
expenditure is within the 20 days before the election and is therefore 
subject to the 24-hour reporting requirement under 52 U.S.C. 
30104(g)(1). Under Alternative B, the political committee would use the 
date of the next upcoming presidential primary among those to be held 
in the states in which the independent expenditure is distributed or 
disseminated. Under Alternative C, the political committee would 
allocate the amount of the expenditure among the states where it is 
distributed whose primary elections have yet to occur, according to a 
ratio based on the number of U.S. House of Representatives districts 
apportioned to each state. The political committee would use the date 
of the next upcoming primary election among the states where the 
independent expenditure was distributed to determine whether the 
independent expenditure was distributed within the 20 days before the 
election, and the amount of the expenditure allocated to that state to 
determine whether the political committee's aggregate spending in that 
state had exceeded the applicable threshold for reporting.
    Most of the commenters agreed that either Alternative A or 
Alternative B would be preferable to the existing reporting method 
described in Advisory Opinion 2011-28 (Western Representation PAC) or 
the proposal in Alternative C. The commenters were generally in 
agreement that both Alternative A and Alternative B would provide 
greater transparency and more accurate information to the public, and 
would reduce the burden on filers. Many of the commenters expressed a 
preference for Alternative A due to its simplicity for filers, while 
one commenter preferred Alternative B, contending that Alternative A 
would not satisfy the 24-hour reporting requirement of the Act.
    After considering the comments received and the applicable 
statutory requirements, the Commission has decided to redesignate 
current paragraph (f) in Sec.  104.4 as paragraph (f)(1) and add new 
paragraph (f)(2) as proposed in Alternative B, concerning when a 
political committee must file a 24- or 48-hour report for a multistate 
independent expenditure. As described in the NPRM, a political 
committee that makes a multistate independent expenditure must report 
it as a single expenditure, as discussed above, and the political 
committee must use the date of the next upcoming presidential primary 
among the presidential primaries to be held in the states in which the 
independent expenditure is distributed or disseminated as the date of 
the election to determine whether the independent expenditure is within 
the 20 days before the election and is therefore subject to the 24-hour 
reporting requirement under 52 U.S.C. 30104(g)(1).
    The Commission agrees with those commenters who expressed the view 
that Alternative C is complex and would not improve the information 
available to the public about the true costs of multistate independent 
expenditures. The Commission is adopting the new paragraph (f)(2) as 
proposed in Alternative B because it implements the requirement in 52 
U.S.C. 30104(g)(1)

[[Page 66594]]

that independent expenditures aggregating $1,000 or more after the 20th 
day, but more than 24 hours, before an election be reported within 24 
hours, more accurately than Alternative A would do. The major parties' 
nominating conventions are held after all of the presidential primary 
elections have taken place, more than five months after the earliest 
state presidential primary elections and typically more than 20 days 
after even the latest primary elections.\7\ Under Alternative A, 
multistate independent expenditures distributed in proximity to most, 
if not all, state primary elections would effectively not be subject to 
the 24-hour reporting requirement because they would be distributed 
more than 20 days before the nominating conventions, and the public 
would be deprived of timely information about expenditures intended to 
influence those primary elections. Because the state presidential 
primary elections are typically held more than 20 days before the 
national nominating conventions, Alternative A would, in practice, 
require 24-hour reports only for multistate independent expenditures 
intended to influence the national conventions or the general election, 
even though such independent expenditures would fall outside the 20-day 
window before the general election. By contrast, under Alternative B, 
the 24-hour reporting requirement would apply to independent 
expenditures with the ability to influence multiple states' 
presidential primary elections, such as those held on Super Tuesday,\8\ 
as well as those distributed within the 20-day period before the 
national nominating conventions. See 52 U.S.C. 30101(1)(B) (defining an 
``election,'' in part, to include ``a convention or caucus of a 
political party, which has authority to nominate a candidate'').
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    \7\ For example, in 2016 the Republican national nominating 
convention was held July 18-21 and the Democratic national 
nominating convention was held July 25-28, while the earliest state 
primary election was Feb. 9 (New Hampshire) and the latest was June 
14 (District of Columbia). The full calendar of 2016 state 
presidential primary elections can be found at https://www.nytimes.com/interactive/2016/us/elections/primary-calendar-and-results.html?.
    \8\ In 2016, Super Tuesday was March 1, when 11 states held 
presidential primary elections. See https://www.nytimes.com/elections/2016/results/2016-03-01.
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    The Commission acknowledges that it might be less burdensome for 
reporting committees to comply with Alternative A because that proposal 
relies on a single election date rather than multiple dates, but the 
Commission may not opt for ease of compliance at the expense of 
conforming to the statute. Therefore the Commission is adopting 
Alternative B, because it best complies with the statutory reporting 
requirement while also serving the public's interest in timely 
disclosure.

IV. Revised 11 CFR 109.10--Reporting Multistate Independent 
Expenditures by Persons Other Than Political Committees

    The Commission proposed to incorporate into 11 CFR 109.10(e)--which 
addresses the content of independent expenditure reports filed by 
persons other than political committees--the new requirements for 
reporting multistate independent expenditures that the Commission is 
adding to Sec.  104.3(b)(3)(vii)(C). Two commenters addressed this 
proposal, agreeing generally that the same 24- and 48-hour reporting 
framework proposed for multistate independent expenditures should apply 
to political committees and other persons.
    Taking into account the comments received and the reasons explained 
above regarding the adoption of new Sec.  104.3(b)(3)(vii)(C), the 
Commission concludes that applying the same 24- and 48-hour independent 
expenditure reporting requirements to persons other than political 
committees would lessen the chance of confusion among both filers and 
the public, best serving the public's interest in timely disclosure. 
Accordingly, the Commission is incorporating into 11 CFR 109.10(e)--
which addresses the content of independent expenditure reports filed by 
persons other than political committees--the requirements for reporting 
multistate independent expenditures that the Commission is adding to 
Sec.  104.3(b)(3)(vii)(C). Specifically, revised Sec.  109.10(e)(1)(iv) 
provides that when a person other than a political committee makes an 
expenditure meeting the criteria set forth in Sec.  104.3(b)(3)(vii)(C) 
(i.e., an independent expenditure that supports or opposes a 
presidential primary candidate and that is distributed in six or more 
states but does not refer to any particular state), the person must 
report the expenditure pursuant to the provisions of Sec.  
104.3(b)(3)(vii)(C).

V. Revised 11 CFR 104.20--Electioneering Communications

    In Sec.  104.20(c), which concerns the content of reports regarding 
electioneering communications, the Commission proposed to add a new 
paragraph if it adopted Alternative A or B described above. The new 
paragraph would apply when the relevant election is a presidential 
primary election and the electioneering communication is distributed in 
more than a specified number of states but does not refer to any 
particular state's primary election. This new paragraph would parallel 
the new reporting requirements for multistate independent expenditures 
discussed above, providing that the reporting person must report the 
electioneering communication as a single communication and use a memo 
text to indicate the states in which the communication constitutes an 
electioneering communication (as defined in 11 CFR 100.29(a)). Two 
commenters addressed this proposal, one supporting it and one calling 
for modifications to clarify the threshold amount for reporting.
    The Commission concludes that adopting reporting requirements for 
multistate electioneering communications that parallel the reporting 
requirements for multistate independent expenditures will lessen the 
chance of confusion among both filers and the public, best serving the 
public's interest in timely disclosure. Accordingly, the Commission is 
adding a new paragraph (c)(7) in Sec.  104.20, and redesignating 
current paragraphs (c)(7)-(9) as paragraphs (c)(8)-(10). New paragraph 
(c)(7) applies when the relevant election, which the reporting person 
must identify under paragraph (c)(5), is a presidential primary 
election and the electioneering communication is distributed in six or 
more states but does not refer to any particular state's primary 
election. In such situations, this new paragraph parallels the new 
reporting requirements for multistate independent expenditures in new 
Sec.  104.3(b)(3)(vii)(C). New paragraph (c)(7) of Sec.  104.20 
provides that the reporting person must report the electioneering 
communication as a single communication and use a memo text to indicate 
the states in which the communication constitutes an electioneering 
communication (as defined in 11 CFR 100.29(a)).

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

    The Commission certifies that the attached rules will not have a 
significant economic impact on a substantial number of small entities. 
The rules provide for consolidated reporting of certain independent 
expenditures and electioneering communications that the Commission's 
current reporting guidance indicates should be allocated among 
elections in multiple states. The Commission anticipates that the 
consolidation of these reports will generally result in a modest 
reduction of the administrative burdens on reporting entities, and it 
will not impose any new

[[Page 66595]]

reporting obligations. Thus, to the extent that any entities affected 
by these proposed rules might fall within the definition of ``small 
businesses'' or ``small organizations,'' the economic impact of 
complying with these rules will not be significant.

List of Subjects

11 CFR Part 104

    Campaign funds, Political committees and parties, Reporting and 
recordkeeping requirements.

11 CFR Part 109

    Elections, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble, subchapter A of chapter I 
of title 11 of the Code of Federal Regulations is amended as follows:

PART 104--REPORTS BY POLITICAL COMMITTEES AND OTHER PERSONS (52 
U.S.C. 30104)

0
1. The authority citation for part 104 continues to read as follows:

    Authority:  52 U.S.C. 30101(1), 30101(8), 30101(9), 30102(i), 
30104, 30111(a)(8) and (b), 30114, 30116, 36 U.S.C. 510.


0
2. In Sec.  104.3:
0
a. Revise paragraph (b)(3)(vii)(B).
0
b. Redesignate paragraph (b)(3)(vii)(C) as paragraph (b)(3)(vii)(D) and 
revise newly redesignated paragraph (b)(3)(vii)(D).
0
c. Add new paragraph (b)(3)(vii)(C).
    The revision and addition read as follows:


Sec.  104.3   Contents of Reports (52 U.S.C. 30104(b), 30114).

* * * * *
    (b) * * *
    (3) * * *
    (vii) * * *
    (B) For each independent expenditure reported, the committee must 
also provide a statement which indicates whether such independent 
expenditure is in support of, or in opposition to a particular 
candidate, as well as the name of the candidate and the office sought 
by such candidate (including State and Congressional district, when 
applicable), and a certification, under penalty of perjury, as to 
whether such independent expenditure is made in cooperation, 
consultation or concert with, or at the request or suggestion of, any 
candidate or authorized committee or agent of such committee; and
    (C) For an independent expenditure that is made in support of or 
opposition to a presidential primary candidate and is publicly 
distributed or otherwise publicly disseminated in six or more states 
but does not refer to any particular state, the political committee 
must report the independent expenditure as a single expenditure--i.e., 
without allocating it among states--and must indicate the state with 
the next upcoming presidential primary among those states where the 
independent expenditure is distributed, as specified in Sec.  
104.4(f)(2). The political committee must use memo text to indicate the 
states in which the communication is distributed.
    (D) The information required by paragraphs (b)(3)(vii)(A) through 
(C) of this section shall be reported on Schedule E as part of a report 
covering the reporting period in which the aggregate disbursements for 
any independent expenditure to any person exceed $200 per calendar 
year. Schedule E shall also include the total of all such expenditures 
of $200 or less made during the reporting period.
* * * * *

0
3. In Sec.  104.4:
0
a. In paragraph (b), remove ``FEC Form 3X'' everywhere it appears and 
add in its place the words ``the applicable FEC Form''.
0
b. Revise paragraph (f).
    The revision reads as follows:


Sec.  104.4   Independent expenditures by political committees (52 
U.S.C. 30104(b), (d), and (g)).

* * * * *
    (f) Aggregating independent expenditures for reporting purposes. 
(1) For purposes of determining whether 24-hour and 48-hour reports 
must be filed in accordance with paragraphs (b) and (c) of this section 
and 11 CFR 109.10(c) and (d), aggregations of independent expenditures 
must be calculated as of the first date on which a communication that 
constitutes an independent expenditure is publicly distributed or 
otherwise publicly disseminated, and as of the date that any such 
communication with respect to the same election is subsequently 
publicly distributed or otherwise publicly disseminated. Every person 
must include in the aggregate total all disbursements during the 
calendar year for independent expenditures, and all enforceable 
contracts, either oral or written, obligating funds for disbursements 
during the calendar year for independent expenditures, where those 
independent expenditures are made with respect to the same election for 
Federal office.
    (2) For purposes of determining whether 24-hour or 48-hour reports 
must be filed in accordance with paragraphs (b) and (c) of this section 
and 11 CFR 109.10(c) and (d), if the independent expenditure is made in 
support of or opposition to a candidate in a presidential primary 
election and is publicly distributed or otherwise publicly disseminated 
in six or more states but does not refer to any particular state, the 
date of the election is the date of the next upcoming presidential 
primary election among the presidential primary elections to be held in 
the states in which the independent expenditure is publicly distributed 
or disseminated.

0
4. In Sec.  104.20:
0
a. Revise paragraphs (c)(5) and (6).
0
b. Redesignate paragraphs (c)(7) through (9) as paragraphs (c)(8) 
through (10).
0
c. Add new paragraph (c)(7).
    The revision and addition read as follows:


Sec.  104.20   Reporting electioneering communications (52 U.S.C. 30104 
(f)).

* * * * *
    (c) * * *
    (5) All clearly identified candidates referred to in the 
electioneering communication and the elections in which they are 
candidates; and
    (6) The disclosure date, as defined in paragraph (a) of this 
section.
    (7) If the election identified pursuant to paragraph (c)(5) of this 
section is a presidential primary election and the electioneering 
communication is publicly distributed or otherwise disseminated in six 
or more states but does not refer to any particular state, the 
electioneering communication shall be reported as a single 
communication, indicating the state with the next upcoming presidential 
primary among those states where the electioneering communication is 
distributed, and the states in which it constitutes an electioneering 
communication (as defined in 11 CFR 100.29(a)) shall be indicated in 
memo text.
* * * * *

PART 109--COORDINATED AND INDEPENDENT EXPENDITURES (52 U.S.C. 
30101(17), 30116(a) AND (d), AND PUB. L. 107-155 SEC. 214(C))

0
5. The authority citation for part 109 continues to read as follows:

    Authority:  52 U.S.C. 30101(17), 30104(c), 30111(a)(8), 30116, 
30120; Sec. 214(c), Pub. L. 107-155, 116 Stat. 81.


0
6. Revise Sec.  109.10(e)(1)(iv) to read as follows:


Sec.  109.10   How do political committees and other persons report 
independent expenditures?

* * * * *
    (e) * * *

[[Page 66596]]

    (1) * * *
    (iv) A statement that indicates whether such expenditure was in 
support of, or in opposition to a candidate, together with the 
candidate's name and office sought; if the expenditure meets the 
criteria set forth in 11 CFR 104.3(b)(3)(vii)(C), memo text must be 
used to indicate the states in which the communication is distributed, 
as prescribed in that section;
* * * * *

    On behalf of the Commission.

    Dated: December 18, 2018.
Caroline C. Hunter,
Chair, Federal Election Commission.
[FR Doc. 2018-27800 Filed 12-26-18; 8:45 am]
 BILLING CODE 6715-01-P