Federal Election Commission – Federal Register Recent Federal Regulation Documents
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Definition of Federal Election Activity
The Federal Election Commission (``Commission'') is revising the regulation defining the phrase ``in connection with an election in which a candidate for Federal office appears on the ballot.'' The Bipartisan Campaign Reform Act of 2002 (``BCRA'') amended the Federal Election Campaign Act of 1971 (``FECA''), to provide that when voter identification, get-out-the-vote activity, and generic campaign activities are in connection with an election in which a candidate for Federal office appears on the ballot, they are ``Federal election activity'' (``FEA''), subject to certain funding limits and prohibitions. In its new interim final rule, the Commission specifies when voter identification and get-out-the-vote activity are conducted exclusively in connection with non-Federal elections and are therefore not FEA. The Commission is soliciting comments on all aspects of the interim final rule and may amend the interim rule as appropriate in response to comments received. Further information is provided in the SUPPLEMENTARY INFORMATION that follows.
Price Index Increases for Coordinated Party Expenditure Limitations
As mandated by provisions of the Bipartisan Campaign Reform Act of 2002 (``BCRA''), the Federal Election Commission (``the Commission'') is adjusting the coordinated party expenditure limits set forth in the Federal Election Campaign Act of 1971, as amended, to account for increases in the consumer price index. Additional details appear in the supplemental information that follows.
Definitions of “Solicit” and “Direct”
The Federal Election Commission is revising its definitions of the terms ``to solicit'' and ``to direct'' for its regulations on raising and spending Federal and non-Federal funds. The new definition of ``to solicit'' encompasses written and oral communications that, construed as reasonably understood in the context in which they are made, contain a clear message asking, requesting, or recommending, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide something of value. Mere statements of political support and mere guidance as to the application of the law are not included. The revised definition also contains a list of examples, to provide practical guidance to Federal candidates, officeholders, political committee officials, and others. The new definition of ``to direct'' focuses on guidance provided directly or indirectly to a person who has expressed an intent to make a contribution, donation, or transfer of funds. Further information is provided in the supplementary information that follows.
Rulemaking Petition: Exception for Certain “Grassroots Lobbying” Communications From the Definition of “Electioneering Communication”
On February 16, 2006, the Commission received a Petition for Rulemaking (``Petition'') from the AFL-CIO, the Alliance for Justice, the Chamber of Commerce of the United States, the National Education Association, and OMB Watch. The Petition asks the Commission to revise its regulations by exempting certain communications consisting of ``grassroots lobbying'' that otherwise meet the definition of an ``electioneering communication'' under the Federal Election Campaign Act of 1971, as amended. The Petition is available for inspection in the Commission's Public Records Office and on its website, https:// www.fec.gov. Further information is provided in the supplementary information that follows.
Coordinated Communications
The Federal Election Commission is making public data related to its ongoing rulemaking regarding coordinated communications and is re-opening the public comment period for the Notice of Proposed Rulemaking (``NPRM'') published on December 14, 2005. The Commission requests additional comments on alternatives presented in the NPRM in light of data regarding the timing of campaign advertising in recent elections. No final decision has been made by the Commission on the issues presented in this rulemaking. Further information is provided in the supplementary information that follows.
Definition of Federal Election Activity
The Federal Election Commission (``Commission'') is revising its rules defining ``Federal election activity'' (``FEA'') under the Federal Election Campaign Act of 1971, as amended (``FECA''). These final rules modify the definitions of ``get-out-the-vote activity'' and ``voter identification'' consistent with the ruling of the U.S. District Court for the District of Columbia in Shays v. FEC. The final rules retain the definition of ``voter registration activity'' that the Commission promulgated in 2002, and provide a fuller explanation of what this term encompasses in response to the district court's decision. The Commission is also revising the definition of ``in connection with an election in which a candidate for Federal office appears on the ballot'' for FEA purposes. Further information is provided in the supplementary information that follows.
Definitions of “Agent” for BCRA Regulations on Non-Federal Funds or Soft Money and Coordinated and Independent Expenditures
The Federal Election Commission is publishing a revised Explanation and Justification for its definitions of ``agent'' in its regulations on coordinated and independent expenditures, and non- Federal funds, which are commonly referred to as ``soft money.'' The regulations, which are being retained, implement the Bipartisan Campaign Reform Act of 2002 by defining ``agent'' as ``any person who has actual authority, either express or implied'' to perform certain actions. These definitions do not include persons acting only with apparent authority. These revisions to the Explanation and Justification are in response to the decision of the U.S. District Court for the District of Columbia in Shays v. FEC. Further information is provided in the supplementary information that follows.
Filing Dates for the California Special Election in the 50th Congressional District
California has scheduled a special general election on April 11, 2006, to fill the U.S. House of Representatives seat in the Fiftieth Congressional District vacated by Representative Randy ``Duke'' Cunningham. Under California law, a majority winner in a special election is declared elected. Should no candidate achieve a majority vote, a special runoff election will be held on June 6, 2006, among the top vote-getters of each qualified political party, including qualified independent candidates. Committees participating in the California special elections are required to file pre- and post-election reports. Filing dates for these reports are affected by whether one or two elections are held.
Electioneering Communications
The Federal Election Commission is amending its rules defining ``electioneering communication'' under the Federal Election Campaign Act of 1971, as amended (``FECA'' or the ``Act''). The changes modify the definition of ``publicly distributed'' and the exemptions to the definition of ``electioneering communication'' consistent with the ruling of the U.S. District Court for the District of Columbia in Shays v. FEC, portions of which were affirmed by the U.S. Court of Appeals for the District of Columbia Circuit. Specifically, the changes eliminate the exemption from the electioneering communication provisions for certain tax-exempt organizations and revise the definition of ``publicly distributed,'' a term used in the regulatory definition of ``electioneering communication.'' The Commission is not adopting any other regulatory exemptions considered in this rulemaking. The Commission is also deferring further consideration of a proposed exemption for advertisements promoting films, books and plays until after completing the rulemakings that respond to Shays v. FEC. Further information is provided in the supplementary information that follows.
Extension of Administrative Fines Program
Section 721 of the Transportation, Treasury, Housing and Urban Development, Judiciary, District of Columbia, and Independent Agencies Appropriations Act, 2006 (``2006 Appropriations Act'') amended the Treasury and General Government Appropriations Act, 2000, to extend the expiration date for the Administrative Fines Program (``AFP''). Under the AFP, the Federal Election Commission (``Commission'') may assess civil monetary penalties for violations of the reporting requirements of section 434(a) of the Federal Election Campaign Act (``Act'' or ``FECA''). Accordingly, the Commission is extending the applicability of its rules and penalty schedules in implementing the AFP. Further information is provided in the Supplementary Information that follows.
State, District, and Local Party Committee Payment of Certain Salaries and Wages
The Federal Election Commission is amending its rules to revise the method by which State, district and local party committees (collectively ``State party committees'') may pay salaries and wages of employees who spend 25 percent or less of their compensated time in a month on Federal election activity or activity in connection with Federal elections (``Federal-related activity'' or ``Federal-related activities''). These final rules implement the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Shays v. FEC, which held that the Commission had not provided an adequate explanation for its former rules under the Administrative Procedure Act. The Commission is also changing its requirements regarding the method State party committees use to pay for employees' fringe benefits and clarifying its rules regarding the use of funds raised in joint Federal and non-Federal fundraising events. Further information is provided in the Supplementary Information that follows.
Coordinated Communications
The Federal Election Commission requests comment on proposed revisions to its regulations regarding communications that have been coordinated with Federal candidates and political party committees. The Commission's current rules set out a three-prong test for determining whether a communication is ``coordinated'' with, and therefore an in- kind contribution to, a Federal candidate or a political party committee. In Shays v. FEC, the Court of Appeals invalidated one aspect of the so-called content prong of the coordinated communications test, because the court believed that the Commission had not provided adequate explanation and justification for the current rules under the Administrative Procedure Act. To comply with the decision of the Court of Appeals, and to address other issues involving the coordinated communication rules, the Commission is issuing this Notice of Proposed Rulemaking. No final decision has been made by the Commission on the issues presented in this rulemaking. Further information is provided in the supplementary information that follows.
$5,000 Exemption for Disbursements of Levin Funds by State, District, and Local Party Committees and Organizations
The Federal Election Commission is eliminating from its regulations an exemption allowing State, district, and local committees and organizations of a political party to use only Levin funds to pay for certain types of Federal election activity aggregating $5,000 or less in a calendar year. In Shays v. FEC, the District Court invalidated the exemption and remanded the regulation to the Commission for further action consistent with the court's opinion. The Commission appealed this ruling, and the Court of Appeals for the D.C. Circuit affirmed the District Court's decision. The repeal of this rule means that State, district, and local political party committees and organizations must pay for these specific types of Federal election activity either entirely with Federal funds, or with a mix of Federal funds and Levin funds. Further information is provided in the supplementary information that follows.
Electioneering Communications
The Federal Election Commission is announcing a public hearing on the proposed changes to its rule defining ``electioneering communications'' under the Federal Election Campaign Act of 1971, as amended.
Definitions of “Solicit” and “Direct''
The Federal Election Commission requests comments on proposed revisions to its definitions of the terms ``to solicit'' and ``to direct'' for its regulations on raising and spending Federal and non- Federal funds. Current Commission regulations define ``to solicit'' as ``to ask that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.'' The regulations define ``to direct'' as ``to ask a person who has expressed an intent to make a contribution, donation, or transfer of funds, or to provide anything of value, to make that contribution, donation, or transfer of funds, or to provide that thing of value.'' These rules were challenged in Shays v. FEC. Upholding a District Court decision, the Court of Appeals held that the Commission's definitions of ``to solicit'' and ``to direct'' were invalid because they violated Congress's intent. The Commission has filed a petition for a rehearing en banc of the Court of Appeals decision. At the same time, to comply with the decisions of the District Court and the Court of Appeals, the Commission is issuing this Notice of Proposed Rulemaking regarding its definitions of ``to solicit'' and ``to direct.'' No final decision has been made by the Commission on the issues presented in this rulemaking. Further information is provided in the supplementary information that follows.
State, District, and Local Party Committee Payment of Certain Salaries and Wages
This notice reopens the comment period for a notice of proposed rulemaking for proposed changes to regulations regarding payments by State, district or local party committees for salaries and wages of employees who spend 25 percent or less of their compensated time in a month on activities in connection with a Federal election. The proposed changes would require these expenses to be paid using at least some Federal funds, consistent with the rulings of the United States District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in Shays v. Federal Election Commission.
Definition of Federal Election Activity
This notice reopens the comment period for a notice of proposed rulemaking to amend the definition of ``Federal election activity.'' The comment period will be open for thirty days. The NPRM includes proposals that would retain the existing definition of ``voter registration activity'' and modify the existing definitions of ``get- out-the-vote activity'' and ``voter identification'' to conform Commission rules to the ruling of the U.S. District Court for the District of Columbia in Shays v. Federal Election Commission.
Filing Dates For the California Special Election in the 48th Congressional District
California has scheduled a special general election on October 4, 2005, to fill the U.S. House of Representatives seat in the Forty- Eighth Congressional District vacated by Representative Christopher Cox. Under California law, a majority winner in a special election is declared elected. Should no candidate achieve a majority vote, a special runoff election will be held on December 6, 2005, among the top vote-getters of each qualified political party, including qualified independent candidates. Committees participating in the California special elections are required to file pre- and post-election reports. Filing dates for these reports are affected by whether one or two elections are held.
Electioneering Communications
The Federal Election Commission is seeking comment on proposed changes to its rule defining ``electioneering communications'' under the Federal Election Campaign Act of 1971, as amended (``FECA''). The proposed changes would modify the definition of ``publicly distributed'' and the exemptions to the definition of ``electioneering communications'' consistent with the ruling of the U.S. District Court for the District of Columbia in Shays v. FEC, portions of which were affirmed by the U.S. Court of Appeals for the District of Columbia Circuit. With regard to possible exemptions, the Commission is considering a range of options, including: Retaining the section 501(c)(3) organization exemption and the State candidate exemption; narrowing the section 501(c)(3) organization exemption; repealing the two current exemptions for section 501(c)(3) organizations and State candidates; and replacing all of the current exemptions with a broad new exemption covering all communications that do not promote, support, attack or oppose a Federal candidate. The Commission has made no final decision on the issues presented in this rulemaking. Further information is provided in the supplementary information that follows.
State, District, and Local Party Committee Payment of Certain Salaries and Wages; Definition of Federal Election Activity
The Federal Election Commission is announcing public hearings on the following rulemakings: The proposed rules regarding payments by State, district or local party committees for salaries and wages of employees who spend 25 percent or less of their compensated time in a month on Federal election activity and activity in connection with Federal elections; and proposed rules defining Federal election activity.
Payroll Deductions by Member Corporations for Contributions to a Trade Association's Separate Segregated Fund
The Federal Election Commission is amending its rules regarding contributions to the separate segregated fund (``SSF'') of a trade association by employee-stockholders and executive and administrative personnel of corporations that are members of the trade association (collectively, ``solicitable class employees''). The revised rules will no longer prohibit corporate members of a trade association from using a payroll deduction or check-off system for employee contributions to the trade association's SSF. Instead, these final rules will allow a corporate member of a trade association to provide incidental services to collect and forward contributions from its solicitable class employees to the SSF of the trade association, including use of a payroll deduction or check-off system, upon written request of the trade association. These final rules will also require any member corporation that provides incidental services for contributions to a trade association's SSF, as well as the corporation's subsidiaries, divisions, branches and affiliates, to provide the same services for contributions to the SSF of any labor organization that represents members working for the corporation, or the corporation's subsidiaries, divisions, branches or affiliates, upon written request of the labor organization and at a cost not to exceed actual expenses incurred. Additional information appears in the Supplementary Information that follows.
Candidate Solicitation at State, District, and Local Party Fundraising Events
The Federal Election Commission is publishing a revised Explanation and Justification for its rule regarding appearances by Federal officeholders and candidates at State, district, and local party fundraising events under the Federal Election Campaign Act of 1971, as amended (``FECA''). The rule, which is not being amended, contains an exemption permitting Federal officeholders and candidates to speak at State, district, and local party fundraising events ``without restriction or regulation.'' These revisions to the Explanation and Justification conform to the decision of the U.S. District Court for the District of Columbia in Shays v. FEC. Further information is provided in the supplementary information that follows.
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