[Federal Register Volume 64, Number 236 (Thursday, December 9, 1999)]
[Proposed Rules]
[Pages 68951-68956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31825]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 64, No. 236 / Thursday, December 9, 1999 /
Proposed Rules
[[Page 68951]]
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FEDERAL ELECTION COMMISSION
11 CFR Part 100
[Notice 1999-27]
General Public Political Communications Coordinated With
Candidates
AGENCY: Federal Election Commission.
ACTION: Supplemental Notice of Proposed Rulemaking.
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SUMMARY: The Commission is proposing new rules to address coordinated
communications made in support of or in opposition to clearly
identified candidates, that are paid for by persons other than
candidates, candidates' authorized committees, and party committees.
Please note that the draft rules that follow do not represent a final
decision by the Commission on the issues presented by this rulemaking.
Further information is provided in the supplementary information that
follows.
DATES: Comments must be received on or before January 24, 2000. If the
Commission receives requests to testify, it will hold a hearing on
these proposed rules on February 16, 2000, at 10:00 a.m. Persons
wishing to testify at the hearing should so indicate in their written
or electronic comments.
ADDRESSES: All comments should be addressed to Rosemary C. Smith,
Assistant General Counsel, and must be submitted in either written or
electronic form. Written comments should be sent to the Federal
Election Commission, 999 E Street, NW, Washington, DC 20463. Faxed
comments should be sent to (202) 219-3923, with printed copy follow-up
to insure legibility. Electronic mail comments should be sent to
coordnprm@fec.gov. Commenters sending comments by electronic mail
should include their full name and postal service address within the
text of their comments. Comments that do not contain the full name,
electronic mail address and postal service address of the commenter
will not be considered. The hearing will be held in the Commission's
ninth floor meeting room, 999 E Street, NW, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ms. Rosemary C. Smith, Assistant
General Counsel, or Ms. Rita A. Reimer, Attorney, 999 E Street, NW,
Washington, DC 20463, (202) 694-1650 or (800) 424-9530 (toll free).
SUPPLEMENTARY INFORMATION: The Commission is seeking public comment on
proposed rules that would address coordinated communications made in
support of or in opposition to clearly identified candidates, that are
paid for by persons other than candidates, candidates' authorized
committees, and party committees. The Commission is also seeking
comment on whether these same rules, or a different standard, should
apply to expenditures, including communications, made by party
committees that are coordinated with the parties' candidates.
The Federal Election Campaign Act, 2 U.S.C. 431 et seq. (``FECA''
or the ``Act'') prohibits corporations and labor organizations from
using general treasury funds to make contributions to a candidate for
federal office. 2 U.S.C. 441b(a). It also imposes various limits on the
amount of money or in-kind contributions other persons may contribute
to federal campaigns. 2 U.S.C. 441a(a). While individuals and persons
other than corporations and labor organizations can make independent
expenditures in connection with federal campaigns, these expenditures
must be made without cooperation or consultation with any candidate, or
any authorized committee or agent of a candidate; and they shall not be
made in concert with, or at the request or suggestion of, any
candidate, or any authorized committee or agent of a candidate. 2
U.S.C. 431(17).
Expenditures that are coordinated with a candidate or campaign are
considered in-kind contributions. As such, they are subject to the
various limits and prohibitions set out in the Act. Buckley v. Valeo,
424 U.S. 1, 46-47 (1976) (footnote omitted) (``Buckley''); Federal
Election Commission v. The Christian Coalition, 52 F.Supp.2d 45, 85
(D.D.C. 1999) (``Christian Coalition''). The Act defines
``contribution'' at 2 U.S.C. 431(8) to include any gift, subscription,
loan, advance, or deposit of money or anything of value made by any
person for the purpose of influencing any election for federal office.
The proposed rules, which define the term coordinated general
public political communication, would be located in a new section of
the Commission's rules, 11 CFR 100.23. They are intended to incorporate
into the Commission's rules the standard articulated by the United
States District Court for the District of Columbia in the Christian
Coalition decision, supra. This is a supplemental Notice of Proposed
Rulemaking (``NPRM'') to a 1997 NPRM that addressed coordinated
activities between candidates and political parties. 62 FR 24367 (May
5, 1997).
A. History of the Rulemaking
In 1997, the Commission published a Notice of Proposed Rulemaking
(``NPRM'') seeking comments on proposed revisions to 11 CFR 110.7,
which implements the provisions of 2 U.S.C. 441a(d) regarding party
committee coordinated expenditures and spending limits. 62 FR 24367
(May 5, 1997). Section 441a(d) of the FECA permits national, state, and
local committees of political parties to make limited general election
campaign expenditures on behalf of their candidates, which are in
addition to the amounts they may contribute directly to those
candidates. These section 441a(d) expenditures are commonly referred to
as ``coordinated party expenditures'' because such expenditures can be
made after extensive consultation with the candidates and their
campaign staffs.
Former 11 CFR 110.7(b)(4) had presumed that party committees were
incapable of making independent expenditures, because of the close
relationship between candidates and their party. This regulation was
implicated by the Supreme Court's plurality opinion in Colorado
Republican Federal Campaign Committee v. Federal Election Commission,
518 U.S. 604 (1996) (Colorado). In that decision, the Court concluded
that political parties are capable of making independent expenditures
on behalf of their candidates for federal office, and that it would
violate the First Amendment to subject such independent expenditures to
the coordinated expenditure limits found in section 441a(d) of the
FECA. Id. at 613-14.
Following the Colorado Supreme Court decision, and in response to a
[[Page 68952]]
rulemaking petition, the Commission promulgated a Final Rule on August
7, 1996 that repealed paragraph (b)(4) of section 110.7 to the extent
that this paragraph prohibited national and state committees of
political parties from making independent expenditures for
congressional candidates. 61 FR 40961 (Aug. 7, 1996). On the same date,
the Commission published a Notice of Availability seeking comment on
other significant issues arising from the Colorado decision. 61 FR
41036 (Aug. 7, 1996). These included possible amendments to 11 CFR Part
109, the Commission's rules addressing independent expenditures by any
person, and 11 CFR 110.7 to provide standards for determining when
party committee expenditures qualify as ``independent'' or are
considered ``coordinated'' with federal candidates. Another issue
raised was whether to modify or repeal the rule barring national party
committees from making independent expenditures on behalf of
Presidential candidates in the general election. See 11 CFR
110.7(a)(5). No statements supporting or opposing the petition were
received by the close of the comment period.
On May 5, 1997 the Commission issued an NPRM in which it sought
comments on proposed revisions to these regulations. 62 FR 24367 (May
5, 1997). Ten comments were received in response to this NPRM. On June
18, 1997, the Commission held a public hearing on this rulemaking, at
which six witnesses testified.
The Commission subsequently decided to hold the 1997 rulemaking in
abeyance until it received further direction from the courts. The
coordinated spending limits were invalidated on Constitutional grounds
by the district court in Colorado Republican Federal Campaign Committee
v. Federal Election Commission, 41 F.Supp.2d 1197 (D. Colo. 1999), on
remand from the Colorado Supreme Court decision. This case is currently
on appeal to the Court of Appeals for the Tenth Circuit, with oral
argument scheduled for early next year.
On December 16, 1998, the Commission published a new NPRM putting
forth proposed amendments to its rules governing publicly financed
Presidential primary and general election candidates. 63 FR 69524 (Dec.
16, 1998). Issues concerning coordination between party committees and
their Presidential candidates, which had been raised in the earlier
NPRM, were addressed in the public funding rulemaking. For example, the
1998 NPRM put forward narrative proposals regarding a content-based
standard for coordinated communications made to the general public. It
also sought comment on coordination between the national committees of
political parties and their Presidential candidates with respect to
poll results, media production, consultants, and employees whose
services are intended to benefit the parties' eventual Presidential
nominees.
The Commission received seven written comments on coordinated
expenditures in response to the 1998 NPRM. The Commission subsequently
reopened the comment period and held a public hearing on March 24,
1999, at which four witnesses presented testimony on coordination
issues.
On November 3, 1999, the Commission promulgated new paragraph (d)
of section 110.7, addressing pre-nomination coordinated expenditures.
64 FR 59606 (Nov. 3, 1999). The new paragraph states that party
committees may make coordinated expenditures in connection with the
general election campaign before their candidates have been nominated.
It further states that all pre-nomination coordinated expenditures
shall be subject to the section 441a(d) coordinated expenditure
limitations, whether or not the candidate with whom they are
coordinated receives the party's nomination. Please note that new
paragraph 110.7(d) applies to all federal elections. For additional
information, see Explanation and Justification to Section 110.7, Party
Committee Coordinated Expenditures and Spending Limits (2 U.S.C.
441a(d)), 64 FR 42579, 42580-81 (Aug. 5, 1999).
At this point, the Commission is continuing to evaluate possible
amendments to 11 CFR 110.7 and 109.1 regarding the definitions of
``coordinated'' and ``independent'' expenditures, the standards
applicable to party committee advertisements directed to the general
public, and the possible repeal or modification of 11 CFR 110.7(a)(5),
which currently bars national party committees from making independent
expenditures in connection with Presidential general election
campaigns. Consequently, revised proposals on these topics may be put
out for additional public comment in the future. In addition, the
Commission may consider amending 11 CFR 109.1(b)(4) to refer to the
coordination standard in 11 CFR 100.23 applicable to general public
political communications. However, in addition to the specific
proposals discussed below that address other types of coordinated
communications, comments are sought as to whether it would be advisable
to continue to await further judicial resolution of the Constitutional
question involving the limits on coordinated party expenditures before
issuing new rules on such spending.
B. Post-Colorado Judicial Opinions
1. The Christian Coalition Decision
The Christian Coalition case arose out of an FEC enforcement action
alleging coordination between the Christian Coalition and various
federal campaigns in connection with the 1990, 1992, and 1994
elections, resulting in disbursements from the general corporate
treasury for voter guides, ``get out the vote'' activities, direct
mailings and payments to speakers. The Christian Coalition
characterized these activities as independent corporate speech, and the
FEC alleged that because of the varying degrees of interaction between
the Christian Coalition and those candidates and their campaigns, the
activities should be treated as in-kind contributions that violated the
Act's contribution limits and/or prohibitions.
In setting out a working definition of ``coordination'' to address
this situation, the Christian Coalition court explained that ``the
standard for coordination must be restrictive, limiting the universe of
cases triggering potential enforcement actions to those situations in
which the coordination is extensive enough to make the potential for
corruption through legislative quid pro quo palpable without chilling
protected contact between candidates and corporations and unions.'' 52
F.Supp.2d at 88-89. The court continued that ``First Amendment clarity
demands a definition of 'coordination'' that provides the clearest
possible guidance to candidates and constituents, while balancing the
Government's compelling interest in preventing corruption of the
electoral process with fundamental First Amendment rights to engage in
political speech and political association.'' Id. at 91. In its opinion
the district court referred to ``expressive expenditures,'' as opposed
to expenditures for other types of campaign support, and defined a
``coordinated expressive expenditure'' as ``one for a communication
made for the purpose of influencing a federal election in which the
spender is responsible for a substantial portion of the speech and for
which the spender's choice of speech has been arrived at after
coordination with the campaign.'' Id. at 85, n. 45.
The court went on to explain that ``an expressive expenditure
becomes `coordinated,' where the candidate or her agents can exercise
control over, or
[[Page 68953]]
where there has been substantial discussion or negotiation between the
campaign and the spender over a communication's: (1) contents; (2)
timing; (3) location, mode, or intended audience (e.g., choice between
newspaper or radio advertisement); or (4) `volume' (e.g., number of
copies of printed materials or frequency of media spots). `Substantial
discussion or negotiation' is such that the candidate and spender
emerge as partners or joint venturers in the expressive expenditure,
but the candidate and spender need not be equal partners.'' Id. at 92.
The court acknowledged that ``a standard that requires 'substantial'
anything leaves room for factual dispute,'' but reasoned that the
standard reflects a reasonable balance between possibly chilling some
protected speech and the need to protect against the ``real dangers to
the integrity of the electoral process'' expressive expenditures may
present. Id.
The district court proceeded to apply this standard to the
challenged campaign activities. In most instances the court did not
find coordination. For example, the court found no coordination between
the Christian Coalition and the Bush-Quayle campaign in the preparation
of voter guides in connection with the 1992 Presidential campaign,
explaining that, while the campaign was generally aware President Bush
would compare favorably in the eyes of the target audience with the
other candidates profiled in the guides, the campaign staff did not
seek to discuss the issues that would be profiled or how they would be
worded. Nor did they seek to influence the Coalition's decisions as to
how many guides would be produced, and when and where they would be
distributed. Id. at 93-95. Similarly, the fact that a Coalition
official served as a volunteer in a 1994 House campaign and also made
decisions as to where the Coalition's voter guides would be distributed
in connection with the House campaign did not amount to coordination
where the official did not make his decisions based on any discussions
or negotiations with the campaign for which he volunteered. Id. at 95-
96. In contrast, the court found coordination where the Coalition
provided a Senate campaign consultant with a commercially valuable
mailing list. Id. at 96. The Commission subsequently decided not to
appeal the district court's decision.
2. The Clifton and Public Citizen Decisions
In Clifton v. Federal Election Commission, 114 F.3d 1309 (1st Cir.
1997), cert. denied, 118 S.Ct. 1036 (1998) (``Clifton''), a three-judge
panel of the United States Court of Appeals for the First Circuit ruled
in a split decision that coordination in the context of voter guides
``implie[s] some measure of collaboration beyond a mere inquiry as to
the position taken by a candidate on an issue.'' 114 F.3d at 1311,
citing Buckley, 424 U.S. at 46-47 and n. 53 (1976). Over a strong
dissent, the panel invalidated those portions of the Commission's voter
guide regulations at 11 CFR 114.4(c)(5)(i), (ii)(C) that limit any
contact with candidates to written inquiries and replies, and generally
require all candidates for the same office to receive equal space and
prominence in the guide. Id. at 1317. The court also invalidated the
Commission's voting record rules at 11 CFR 114.4(c)(4) to the extent
they limit contact with candidates to written inquiries on candidates'
positions. Id. In Federal Election Commission v. Public Citizen, Inc.,
1999 WL 731056 (N.D. Ga. 1999), a federal district court followed the
Clifton ``collaboration'' language in holding that contacts between a
public interest group and a candidate made in connection with an
advertising campaign to defeat a candidate for the House of
Representatives were not coordinated for purposes of the FECA. The
Commission did not appeal that portion of the Public Citizen decision
that addresses the coordination standard.
C. Proposed Rules
The Commission is proposing to add a new section 11 CFR 100.23 to
its rules, to address coordinated communications made in connection
with federal campaigns that are paid for by persons other than
candidates, candidates' authorized committees, and party committees.
The Commission believes it is appropriate to place this language in a
separate section of the rules to properly alert the regulated community
of this standard.
The proposed new section, which would be entitled Coordinated
General Public Political Communications, would largely follow the
language of the Christian Coalition decision, discussed above. The
Commission is, however, proposing to use the phrase ``general public
political communication'' in place of ``expressive expenditure,'' the
term used by the Christian Coalition court, because that term may not
give the regulated community adequate notice of the types of
communications that would be covered by these rules.
The Commission is proposing to define the term ``general public
political communications'' to include those made through a broadcasting
station, including a cable television operator; newspaper; magazine;
outdoor advertising facility; mailing or any electronic medium,
including over the Internet or on a web site. It would be limited to
those communications having an intended audience of over one hundred
people. See proposed 11 CFR 100.23(e)(1). Including cable television
broadcasts is consistent with the Commission's candidate debate
regulations at 11 CFR 100.13(a)(2), while including communications made
over the Internet reflects the expanding role of that medium in federal
campaigns. The exclusion of communications with an intended audience of
one hundred people or fewer mirrors the Commission's disclaimer rules
at 11 CFR 110.11(a)(3), which exempt from the disclaimer requirements
direct mailings of one hundred pieces or less.
Please note that the term ``general public political
communication'' is similar to the term ``general public political
advertising,'' which appears in three places in the Act and in several
sections of the regulations. The term has similar and generally
consistent meanings in the Act and the Commission's rules. For example,
the definitions of ``contribution'' and ``expenditure'' at 2 U.S.C.
431(8)(B)(v) and 431(9)(B)(iv) respectively refer to ``broadcasting
stations, newspapers, magazines, or similar types of general public
political advertising.'' Section 441d(a) of the Act, which addresses
communications that require a disclaimer, includes the same list and
adds outdoor advertising facilities and direct mailings. The
corresponding rules are found at 11 CFR 100.7(b)(9) (definition of
``contribution''), 100.8(b)(10) (definition of ``expenditure''), and
110.11(a)(1) (communications requiring disclaimers). Consequently, the
Commission believes the term ``general public political
communications'' describes the types of communications the court had in
mind in Christian Coalition in a manner consistent with sections 431(8)
and (9) and 441d(a) of the Act.
The proposed rules in 11 CFR 100.23 would also be limited to
communications that include a ``clearly identified candidate.'' The
term ``clearly identified candidate'' would have the same meaning as
that in 11 CFR 100.17 and 2 U.S.C. 431(17). Thus, it would include
instances where the candidate's name, nickname, photograph, or drawing
appears, or the identity of the candidate is otherwise apparent through
an unambiguous reference such as ``the President,'' ``your
Congressman,'' or ``the incumbent,'' or through an
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unambiguous reference to his or her status as a candidate such as ``the
Democratic Presidential nominee'' or ``the Republican candidate for
Senate in the State of Georgia.''
Proposed paragraph 11 CFR 100.23(c) contains the text of the
coordination standard. The Commission is seeking comments on
alternative language at two places in this paragraph. The first would
appear in the introductory portion of the paragraph. Under Alternative
1-A, a communication would be considered to be coordinated if the
communication was paid for by persons other than the candidate, the
candidate's authorized committee, or a party committee, and was
created, produced or distributed as discussed below.
Alternative 1-B would add the additional qualification that the
communication be distributed primarily in the geographic area in which
the candidate was running in order to be considered coordinated with a
candidate or party committee. Alternative 1-B is intended to address
the concern that the costs of national legislative campaigns that refer
to clearly-identified candidates, and may be endorsed by or designed by
one or more of the named candidates, not be considered expenditures on
behalf of those candidates' campaigns. For example, expenditures made
in connection with a national campaign to support the so-called
``Shays-Meehan'' campaign finance legislation would not be considered
contributions to Rep. Shays or Rep. Meehan, even if the group
distributing the advertisement had consulted with them to design the
national advertising campaign in support of their legislation and
referred to it as the ``Shays-Meehan bill'' in the advertising.
One potential concern with the geographic limitation language
proposed in Alternative 1-B is that in many parts of the country the
media market may cover several adjacent states. Thus, political
advertisements broadcast from a station in these areas arguably may not
be ``distributed primarily in the geographic area in which [a]
candidate [is] running.'' For example, much television and radio
advertising made in connection with New Hampshire elections is aired
over Boston broadcast media, because there is no other major city from
which to air these broadcasts. Many broadcasts aimed at New Jersey
elections are aired over New York City media because a large number of
New Jersey voters receive these broadcasts.
Alternative 1-B would also exclude from the definition of
coordination communications in which a candidate in one state solicits
funds on behalf of a candidate in another, as long as contributors were
asked to send their contributions directly to the candidate on whose
behalf they were made. Similarly, Alternative 1-B would not cover an
outside organization's solicitations on behalf of a candidate, if these
were made primarily outside the geographic area in which the candidate
was running, and if the outside organization does not collect and
forward the contributions to the candidate.
The Commission welcomes comments on alternative ways to accomplish
the desired result of Alternative 1-B through means other than the
proposed geographic limitation language.
The Commission is also seeking comment on two alternatives of a
provision to be located in 11 CFR 100.23(c)(1) that addresses
communications made at the request or suggestion of the candidate or
campaign. Alternative 2-A would state that coordination occurs when a
communication is created, produced or distributed at the request or
suggestion of, or when authorized by, a candidate, candidate's
authorized committee, a party committee, or the agent of any of the
foregoing. Alternative 2-B would limit such coordination to those
instances where the parties also discuss the content, timing, location,
mode, intended audience, volume of distribution or frequency of
placement of that communication, the result of which is collaboration
or agreement.
Alternative 2-A reflects the following language in the Christian
Coalition decision, in which the court stated, ``The fact that the
candidate has requested or suggested that a spender engage in certain
speech indicates that the speech is valuable to the candidate, giving
such expenditures sufficient contribution-like qualities to fall within
the Act's prohibition on contributions.'' 52 F.Supp.2d at 91.
Alternative 2-B would further restrict coordinated communications to
those instances in which discussion of these additional topics takes
place.
Proposed 11 CFR 100.23(c)(2) would treat communications as
coordinated after the candidate or the candidate's agent, or a party
committee or its agent, has exercised control or decision-making
authority over the content, timing, location, mode, intended audience,
volume of distribution, or frequency of placement of the communication.
Under proposed 11 CFR 100.23(c)(3), a communication would be
considered coordinated if it was made after substantial discussion or
negotiation between the creator, producer or distributor of the
communication, or person paying for the communication, and a candidate,
candidate's authorized committee or a party committee, regarding the
content, timing, location, mode, intended audience, volume of
distribution or frequency of placement of that communication, the
result of which is collaboration or agreement. It would further provide
that substantial discussion or negotiation could be evidenced by one or
more meetings, conversations or conferences regarding the value or
importance of that communication for a particular election.
The Commission recognizes, as did the Christian Coalition court,
that use of the term ``substantial'' means that enforcement matters
involving this standard will likely be fact-specific. 52 F.Supp.2d at
92. However, it may be possible to clarify the application of this
standard to specific facts and circumstances by use of the Commission's
advisory opinion process. See 2 U.S.C. 437f.
Consistent with the Buckley, Christian Coalition and Clifton
decisions, the proposed rules would provide at 11 CFR 100.23(d) that a
candidate's or political party's response to an inquiry regarding the
candidate's or the party's position on legislative or public policy
issues does not alone make the communication coordinated.
As discussed above, although money spent on these communications is
referred to as a coordinated expenditure, the expenditure is treated
under the FECA as an in-kind contribution. Thus, the proposed rules
state at 11 CFR 100.23(b) that any general public political
communication that includes a clearly identified candidate and is
coordinated with that candidate, an opposing candidate, or a party
committee supporting or opposing that candidate is both an expenditure
under 11 CFR 100.8(a) and an in-kind contribution under 11 CFR
100.7(a)(1)(iii). As such, it is subject to the contribution limits of
2 U.S.C. 441a and must be reported as a contribution and an expenditure
as required at 2 U.S.C. 434.
D. Hypotheticals
In order to properly evaluate the practical effect of the proposed
coordination regulations, certain Commissioners seek comment on the
following hypotheticals. In particular, the Commissioners would like
comments on whether (1) the activities described in the hypotheticals
constitute coordination under the draft language contained in the
Notice of
[[Page 68955]]
Proposed Rulemaking; and (2) whether the communications described in
the hypotheticals are subject to the Commission's jurisdiction.
I. Candidate Smith is slightly behind in the polls, low on money,
and needs help. It is the week before the election and he knows that a
wealthy contributor is planning to run an independent expenditure
advertisement to assist the Smith campaign. Smith contacts the
contributor and complains that nobody has focused on an important
matter in the campaign: various problems in the personal life of his
opponent, Congressman Jones. Because of this oversight, candidate Smith
believes that Congressman Jones is viewed in a better light by the
electorate. Candidate Smith, however, does not want to run such an
advertisement himself for fear of being accused of negative
advertising.
During his meeting with candidate Smith, the wealthy supporter
says, ``That's a great idea! Thanks for the information.'' After the
meeting, the wealthy supporter changes the advertisement to say:
``Congressman Jones is a liar, tax cheat, wife-beater, and absentee
legislator--keep that in mind on Tuesday.'' The advertisement runs on
the weekend before the election. Is this a coordinated expenditure?
Would it make a difference if the wealthy supporter said nothing during
his meeting with the candidate?
II. The Texas Savings and Loan League would like to reinforce the
public's confidence in the safety of deposits in federally insured
Texas Savings and Loan institutions. To this end, it runs a public
service announcement featuring the State's senior United States Senator
who is also a candidate for re-election. The advertisement, which runs
in January of the election year, opens with a live picture of the
Senator against a background with the Texas Savings and Loan
Association and logo:
ANNOUNCER: ``Senator William Moore.''
SENATOR MOORE: ``For fifty-four years now, savings and loan
deposits have been guaranteed by the United States government.
Throughout all of that time, not one penny of insured deposits has been
lost in Texas, or anywhere else in the country. Your deposit of up to
$100,000 is as good as gold in a federally insured Texas savings and
loan. As safe as Fort Knox.''
BILLBOARD: ``This message brought to you as a public service by
your local Savings and Loan Association.''
Since the candidate appeared in the advertisement, it would appear
to have been ``coordinated'' or made in cooperation with the candidate.
As such, should the advertisement be viewed as an in-kind contribution
to the Moore campaign? Or, does content and timing matter? What if the
advertisement ran the week before the election and concluded with the
words, ``Please support Senator William Moore!''? Before deciding
whether to apply the Commission's coordination regulations, should the
Commission decide whether the content of the advertisement is ``in
connection with'' or ``for the purpose of influencing'' an election? If
so, should the Commission provide guidance to the regulated community
and define those terms in the coordination rulemaking?
E. Coordinated Party Expenditures
As explained above, the Commission has an ongoing rulemaking
addressing coordinated party expenditures, i.e., political party
expenditures that are coordinated with particular candidates. The
details of those proposals, which included several alternatives, can be
found in the NPRM published on May 5, 1997. 62 FR 24367 (May 5, 1997).
That rulemaking had been held in abeyance because the issues are
involved in ongoing litigation. However, the Commission welcomes
comments on whether the standard for coordination proposed in this
supplemental NPRM on coordination should be applied to political party
expenditures for general public political communications that are
coordinated with particular candidates. If not, (1) why should a
different standard be applied to coordination in that context? (2) What
should that different standard be?
The Commission also welcomes comments on any related issue.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) [Regulatory
Flexibility Act]
These proposed rules will not, if promulgated, have a significant
economic impact on a substantial number of small entities. The basis
for this certification is that the rules would conform to court
decisions that expand the definition of certain coordinated
communications made in support of or in opposition to clearly
identified candidates. Therefore, no significant economic impact would
result.
List of Subjects in 11 CFR Part 100
Elections.
For the 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 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)
1. The authority citation for Part 100 would continue to read as
follows:
Authority: 2 U.S.C. 431, 438(a)(8).
2. Part 100 would be amended by adding new section 100.23 to read
as follows:
Sec. 100.23 Coordinated General Public Political Communications.
(a) Scope. This section applies to general public political
communications paid for by persons other than candidates, authorized
committees, and party committees.
(b) Treatment as expenditures and contributions. Any general public
political communication that includes a clearly identified candidate
and is coordinated with that candidate, an opposing candidate or a
party committee supporting or opposing that candidate is both an
expenditure under 11 CFR 100.8(a) and an in-kind contribution under 11
CFR 100.7(a)(1)(iii).
Alternative 1-A for Paragraph (c) Introductory Text
(c) Coordination with candidates and party committees. A general
public political communication is considered to be coordinated if the
communication is paid for by any person other than the candidate, the
candidate's authorized committee, or a party committee, and is created,
produced or distributed--
Alternative 1-B for Paragraph (c) Introductory Text
(c) Coordination with candidates and party committees. A general
public political communication is considered to be coordinated if the
communication is distributed primarily in the geographic area in which
a candidate is running, is paid for by any person other than that
candidate, the candidate's authorized committee, or a party committee,
and is created, produced or distributed--
Alternative 2-A for Paragraph (c)(1)
(1) At the request or suggestion of, or authorized by, the
candidate, the candidate's authorized committee, a party committee, or
the agent of any of the foregoing;
Alternative 2-B for Paragraph (c)(1)
(1) At the request or suggestion of, or authorized by, the
candidate, the candidate's authorized committee, a party committee, or
the agent of any of the foregoing regarding the content, timing,
location, mode, intended audience, volume of distribution or
[[Page 68956]]
frequency of placement of that communication, the result of which is
collaboration or agreement;
(2) After the candidate or the candidate's agent, or a party
committee or its agent, has exercised control or decision-making
authority over the content, timing, location, mode, intended audience,
volume of distribution, or frequency of placement of that
communication; or
(3) After substantial discussion or negotiation between the
creator, producer or distributor of the communication, or the person
paying for the communication, and the candidate, the candidate's
authorized committee or a party committee, regarding the content,
timing, location, mode, intended audience, volume of distribution or
frequency of placement of that communication, the result of which is
collaboration or agreement. Substantial discussion or negotiation may
be evidenced by one or more meetings, conversations or conferences
regarding the value or importance of that communication for a
particular election.
(d) Exception. A candidate's or political party's response to an
inquiry regarding the candidate's or party's position on legislative or
public policy issues does not alone make the communication coordinated.
(e) Definitions. For purposes of this section:
(1) General public political communications include those made
through a broadcasting station (including a cable television operator),
newspaper, magazine, outdoor advertising facility, mailing or any
electronic medium, including the Internet or on a web site, with an
intended audience of over one hundred people.
(2) Clearly identified has the same meaning as set forth in 11 CFR
100.17.
Dated: December 3, 1999.
Scott E. Thomas,
Chairman, Federal Election Committee.
[FR Doc. 99-31825 Filed 12-8-99; 8:45 am]
BILLING CODE 6715-01-P
