[Federal Register Volume 59, Number 192 (Wednesday, October 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24622]
[[Page Unknown]]
[Federal Register: October 5, 1994]
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FEDERAL ELECTION COMMISSION
11 CFR Part 110
[Notice 1994--14]
Communications Disclaimer Requirements
agency: Federal Election Commission.
action: Notice of proposed rulemaking.
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summary: The Federal Election Commission is seeking comments to help
determine whether changes in its regulations governing disclaimers on
campaign communications are warranted. The current rules require a
disclaimer notice on communications by any person that expressly
advocate the election or defeat of a clearly identified candidate, or
solicit contributions, through any form of general public political
advertising. One proposed change would create a presumption that
communications by authorized political committees or political party
committees that refer to a clearly identified federal candidate are
express advocacy, thereby triggering the disclaimer requirement. Other
modifications would clarify that oral disclaimers are required under
appropriate circumstances; clarify how these requirements apply to
coordinated party expenditures; broadly define ``direct mail'' in this
context; require a disclaimer on all communications included in a
package of materials that are intended for separate distribution; and
clarify the meaning of ``clear and conspicuous'' as that term is used
in these rules.
dates: Comments must be received on or before December 5, 1994. Persons
wishing to testify at a hearing on these rules should so indicate in
their written comments. If sufficient requests to testify are received,
the Commission will announce the date of the hearing in a separate
notice.
addresses: Comments must be in writing and addressed to: Ms. Susan E.
Propper, Assistant General Counsel, 999 E Street NW., Washington, DC
20463.
for further information contact: Ms. Susan E. Propper, Assistant
General Counsel, 999 E Street NW., Washington, DC 20463, (202) 219-3690
or (800) 424-9530.
supplementary information: The Federal Election Campaign Act [``FECA''
or ``the Act''] at 2 U.S.C. 441d(a) requires a disclaimer on
communications by any person that expressly advocate the election or
defeat of a clearly identified federal candidate, or solicit
contributions, through any form of general public political
advertising. The Commission is proposing to revise the implementing
regulations, found at 11 CFR 110.11, to address issues that have arisen
since the rules were last amended, and to clarify their scope and
applicability.
New Definition
Proposed 11 CFR 110.11(a) includes a definition for the term
``direct mailing.'' For purposes of these requirements, ``direct
mailing'' would be broadly defined to include any number of
substantially similar pieces of mail, except for mailings of fifty
pieces or less, by any person. The definition would exclude permissible
activities by a corporation or labor organization communicating with a
restricted class under 11 CFR 114.3 or 114.5, because such activities
do not involve general public political advertising.
Express Advocacy
The current disclaimer requirements were enacted as part of the
1976 amendments to the Federal Election Campaign Act. They replaced
those contained in former 18 U.S.C. 612, a broadly-worded criminal code
provision that required identifying information to be included on any
political statement published, mailed or distributed on behalf of a
federal candidate.
The present statutory and regulatory language applies to
communications that expressly advocate the election or defeat of a
clearly identified federal candidate, a standard the Supreme Court held
in Buckley v. Valeo, 424 U.S. 1, 80 (1976), to be constitutionally
mandated for the disclosure of expenditures by individuals and groups
that are not candidates or political committees. 424 U.S. at 80.
However, neither Buckley nor other pertinent case law prohibits the
imposition of further requirements on communications made by candidates
and political committees. It is the Commission's experience that an
inordinate amount of Commission time and resources are diverted to the
question of whether a campaign mailing or advertisement paid for by a
candidate constituted ``express advocacy'' and therefore required a
disclaimer.
Since political committees are in the business of electing
candidates to political office, the Commission believes it is
appropriate for them to be subject to a different standard under
section 441d(a) in certain circumstances. The Commission is therefore
proposing to include in the regulatory text a presumption that all
communications by authorized political committees, or by party
political committees, that refer to a clearly identified federal
candidate contain express advocacy, and thus trigger the section
441d(a) disclaimer requirements. This interpretation would further a
major goal of the FECA, that of more complete disclosure on political
communications directed to the general public. It would also eliminate
problems that have arisen in determining whether specific
communications contain ``express advocacy'' in this context.
This presumption would be rebuttable, since certain communications,
e.g., those limited to one candidate's placing a newspaper ad offering
another sympathy on a bereavement, are clearly not election advocacy.
The Commission welcomes comments on the advisability of adopting this
presumption, as well as suggested alternatives to and/or specific
exemptions from the presumption.
Alternatively, the Commission is soliciting comments on whether the
statutory language should be interpreted to require disclaimers on all
communications by political committees, whether or not they include
express advocacy. This, too, would further the disclosure aims of the
Act, as well as eliminate possible problems in determining whether the
``express advocacy'' standard has been met.
Party Political Committee Communications
The Commission is also seeking comments on whether the required
authorization statement should be dropped or modified for
communications and solicitations that refer to a clearly identified
federal candidate, made by political party committees prior to the time
the party's candidate is nominated. There are several possible
approaches to this issue. One option would be for such communications
to state only who paid for the communication. Please note that this
would not change the Commission's long-standing conclusion that such
communications may count against the committee's coordinated party
expenditure limits.
If a state or national party committee chooses not to make the
coordinated expenditures permitted by section 441a(d), it may assign
its right to make those expenditures to a designated agent, such as the
senatorial campaign committee of the party. FEC v. Democratic
Senatorial Campaign Committee, 454 U.S. 27 (1981). The proposed rules
would clarify that the disclaimer on a communication made as a
coordinated party expenditure should identify the committee that made
the actual expenditure as the person who paid for the communication,
regardless of whether that committee was acting as a designated agent
or in its own capacity.
Unauthorized Committee Solicitations That Mention Candidates
While the Act requires communications by unauthorized committees to
state both who paid for the communication and whether it was authorized
by any candidate or candidate's committee, the text of the current rule
does not include the second requirement for unauthorized committee
solicitations. The proposed rule would clarify that an authorization
statement would be required if the solicitation refers to a clearly
identified federal candidate.
The ``Clear and Conspicuous'' Requirement
The proposal would provide guidance on the meaning of the term
``clear and conspicuous'' as that phrase is used in current 11 CFR
110.11(a)(1) and proposed paragraph 110.11(c). The Commission recently
completed a rulemaking revising its regulations on the FECA's
requirement that treasurers of political committees exercise best
efforts to obtain, maintain, and report the complete identification of
each contributor whose contributions aggregate more than $200 per
calendar year. 2 U.S.C. 432(i), 11 CFR 104.7. See 58 FR 57725 (Oct. 27.
1993). For purposes of that rulemaking, a required notice to
contributors is stated not to be ``clear and conspicuous'' if it is in
small type in comparison to the remainder of the material, or if the
printing is difficult to read or if the placement is easily overlooked.
11 CFR 104.7(b)(1), 58 FR 57729. This NPRM proposes the same language
with regard to the disclaimers covered by this section.
Oral Disclaimers
The draft rules would clarify that oral communications and
solicitations must meet the same disclaimer requirements as their
written counterparts. The Act does not distinguish between written and
oral communications. The Commission held in Advisory Opinion 1988-1
that oral disclaimers were not required as part of phone bank campaign
communications with express advocacy content. The draft rules would
supersede this opinion. This approach is consistent with the
Commission's recently-adopted ``best efforts'' rules, which require at
11 CFR 104.7(b)(2) that both written and oral follow-up requests for
contributor identification information include a required statement.
Packaged Materials
The proposal would clarify that a separate disclaimer is required
on all communications included in a package of materials if the
communications are intended for separate public distribution. In the
past, questions have arisen as to whether a single disclaimer per
package would satisfy the purposes of this requirement. All items
intended for separate distribution (e.g., a poster included in a
package of campaign handouts) would be covered by this requirement.
Exceptions
The current rules at paragraph 110.11(a)(2) exempt from the
disclaimer requirement small items, such as pins, buttons, or pens; and
``impractical'' items, such as watertowers and skywriting. The
Commission is proposing in paragraph (b)(1)(i) to add to these exempted
items checks, receipts and similar items of minimal value that do not
contain a political message and that are used for purely administrative
purposes. Also, the question has at times arisen as to whether the
``impractical'' exception applies to wearing apparel, such as T-shirts
or baseball caps, that contain a political message. This Notice
proposes no language requiring a disclaimer on such material. However,
if commenters believe the Commission should consider a disclaimer
requirement for such materials, the Commission would encourage
suggestions for practical application of such a requirement.
Disbursements by Candidates or Party Committees for Exempt Activity
The Commission is proposing language that would require a
disclaimer on a communication by a candidate or party committee that
qualifies as an exempt activity though on behalf of a clearly
identified federal candidate. This would ensure that a disclaimer is
included on all communications, including those which qualify as exempt
activities by state and local party committees or candidates under the
Act. See 2 U.S.C. 431(8)(B)(v), (x), (xi), and (xii).
This proposed amendment is consistent with the Act's interest in
full disclosure of who authorized and paid for campaign communications.
The Commission welcomes comments on this approach.
Comments are invited on any of the specific amendments discussed
above, as well as any related issues that might relate to this topic.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) [Regulatory
Flexibility Act]
The attached proposed regulations, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
The basis for this certification is that any affected entities are
already required to comply with the Act's requirements in this area.
List of Subjects in 11 CFR Part 110
Campaign funds, Political candidates, Political committees and
parties.
For reasons set out in the preamble it is proposed to amend
Subchapter A, chapter I of Title 11 of the Code of Federal Regulations
as follows:
PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS
1. The authority citation would continue to read as follows:
Authority: 2 U.S.C. 431(8), 431(9), 432(c)(2), 437d(a)(8),
438(a)(8), 441a, 441b, 441d, 441e, 441f, 441g, and 441h.
2. Part 110 would be amended by revising section 110.11 to read as
follows:
Sec. 110.11 Communications; advertising.
(a) Definition. For purposes of paragraph (b)(1) of this section
only, ``direct mailing'' includes any number of substantially similar
pieces of mail but does not include:
(1) a mailing of fifty pieces or less by any person; or
(2) mailings by a corporation or labor organization to the
corporation's or labor organization's restricted class under 11 CFR
114.3 or 114.5.
(b)(1) (i) General Rule. Except as otherwise provided in this
section, whenever any person makes an expenditure for the purpose of
financing a communication that expressly advocates the election or
defeat of a clearly identified candidate or that solicits any
contribution, through any broadcast station, phone bank, newspaper,
magazine, outdoor advertising facility, poster, yard sign, direct
mailing or other form of general public political advertising, that
communication or solicitation shall clearly state who paid for it. If
authorized by a candidate, an authorized committee of a candidate or an
agent thereof, but paid for by some other person, the communication or
solicitation shall clearly state that it is authorized by such
candidate, authorized committee, or agent. If not authorized by a
candidate, authorized committee of a candidate or its agent, the
communication or solicitation shall clearly state that it is not
authorized by any candidate, candidate's committee, or agent. For
purposes of this paragraph, it is presumed that a communication or
solicitation by a political committee that refers to a clearly
identified federal candidate contains express advocacy.
(ii) Exceptions. The requirements of paragraph (b)(1)(i) of this
section do not apply to:
(A) bumper stickers, pins, buttons, pens and similar small items
upon which the disclaimer cannot be conveniently printed;
(B) skywriting, watertowers or other means of displaying an
advertisement of such a nature that the inclusion of a disclaimer would
be impracticable;
(C) checks, receipts and similar items of minimal value which do
not contain a political message and which are used for purely
administrative purposes; or
(D) communications by a corporation or labor organization to the
corporation's or labor organization's restricted class under 11 CFR
114.3 and 114.5.
(2) For a communication or solicitation paid for by a party
committee pursuant to 2 U.S.C. 441a(d), the disclaimer required by
paragraph (b)(1)(i) of this section shall identify the committee that
makes the expenditure as the person who paid for the communication,
regardless of whether the committee was acting in its own capacity or
as the designated agent of another committee.
(3) A solicitation other than one covered by paragraph
(b)(1)(ii)(D) of this section by an unauthorized political committee
that does not refer to a clearly identified federal candidate need only
state who paid for it.
(4) For purposes of paragraphs (b)(1)(i) of this section, the term
``expenditure'' includes a communication by a candidate or party
committee that qualifies as an exempt activity under 11 CFR 100.8(b)
(10), (16), (17), or (18).
(c) Placement of Disclaimer. The disclaimers specified in paragraph
(b)(1)(i) of this section shall be presented in a clear and conspicuous
manner, to give the reader, observer or listener adequate notice of the
identity of the person or committee that paid for, and, where required,
that authorized the communication. A disclaimer is not clear and
conspicuous if it is in small type in comparison to the rest of the
printed material, or if the printing is difficult to read or if the
placement is easily overlooked.
(1) The disclaimer need not appear on the front or cover page of
the communication as long as it appears within the communication,
except on communications, such as billboards, that contain only a front
face.
(2) Each communication that is included in a package of materials
but that is also intended for separate public distribution shall
include a disclaimer.
(d) (1) Newspaper or magazine space. No person who sells space in a
newspaper or magazine to a candidate, an authorized committee of a
candidate, or an agent of the candidate, for use in connection with the
candidate's campaign for nomination or for election, shall charge an
amount for space which exceeds the comparable rate for the space for
non-campaign purposes.
(2) For purposes of this section, ``comparable rate'' means the
rate charged to a national or general rate advertiser, and shall
include discount privileges usually and normally available to a
national or general rate advertiser.
Dated: September 30, 1994.
Trevor Potter,
Chairman.
[FR Doc. 94-24622 Filed 10-4-94; 8:45 am]
BILLING CODE 6715-01-M
