2010-2973. Coordinated Communications

AGENCY:

Federal Election Commission.

ACTION:

Supplemental Notice of Proposed Rulemaking.

SUMMARY:

The Federal Election Commission is issuing a Supplemental Notice of Proposed Rulemaking for the Notice of Proposed Rulemaking on Coordinated Communications published on October 21, 2009, in order to elicit comments addressing the impact of the Supreme Court's decision in Citizens United v. FEC. The Commission is also announcing a public hearing on the proposed rules regarding coordinated communications. No final decision has been made by the Commission on the issues presented in this rulemaking.

DATES:

Comments must be received on or before February 24, 2010. The hearing will be held on Tuesday and Wednesday, March 2 and 3, 2010 and will begin at 10 a.m. Anyone wishing to testify at the hearing must file written comments by the due date and must include a request to testify in the written comments. Any person who requested to testify in written comments received by the Commission prior to the deadline for the initial comment period need not request to testify again.

ADDRESSES:

All comments must be in writing, addressed to Ms. Amy L. Rothstein, Assistant General Counsel, and submitted in either electronic, facsimile or paper form. Commenters are strongly encouraged to submit comments electronically to ensure timely receipt and consideration. Electronic comments should be sent to [e-mail]. If the electronic comments include an attachment, the attachment must be in Adobe Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed comments should be sent to [phone], with paper follow-up. Paper comments and paper follow-up of faxed comments should be sent to the Federal Election Commission, 999 E Street, NW., Washington, DC 20463. All comments must include the full name and postal service address of the commenter or they will not be considered. The Commission will post comments on its website after the comment period ends. The hearing will be held in the Commission's ninth floor meeting room, 999 E Street, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Ms. Amy L. Rothstein, Assistant General Counsel, Ms. Jessica Selinkoff, or Ms. Joanna Waldstreicher, Attorneys, 999 E Street, NW., Washington, DC 20463, [phone] or [phone].

SUPPLEMENTARY INFORMATION:

On October 21, 2009, the Commission published a Notice of Proposed Rulemaking (“NPRM”) proposing possible changes to the “coordinated communication” regulations at 11 CFR 109.21 in response to the decision of the Court of Appeals for the District of Columbia Circuit in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III Appeal”). See Notice of Proposed Rulemaking on Coordinated Communications, 74 FR 53893 (Oct. 21, 2009). The deadline for comments on the NPRM was January 19, 2010. In the NPRM, the Commission stated that it would announce the date of a hearing at a later date.

I. Extension of Comment Period

Two days after the close of the NPRM's comment period, on January 21, 2010, the Supreme Court issued its decision in Citizens United v. FEC, No. 08-205 (U.S. Jan. 21, 2010), available at http://www.fec.gov/​law/​litigation/​cu_​sc08_​opinion.pdf. Citizens United may raise issues relevant to the coordinated communications rulemaking. Therefore, the Commission is re-opening the comment period for this rulemaking. The Commission seeks additional comment as to the effect of the Citizens United decision on the proposed rules, issues, and questions raised in the NPRM and in this Supplemental Notice of Proposed Rulemaking (“SNPRM”).^[1] Comments are due on or before February 24, 2010.

a. General Considerations

In response to Shays III Appeal, the Commission's NPRM proposed four alternatives for revising the content prong of the coordinated communications test, three alternatives for revising the conduct prong of the coordinated communications test, two alternative definitions of “promote, support, attack, or oppose” (“PASO”), and two safe harbors.

The Commission seeks comments on the effect of the Citizens United decision on the Commission's proposals in the NPRM. The Commission asks broadly whether commenters believe Citizens United affects any aspect of the proposed rules and also asks specific questions regarding certain aspects of the proposed rules.

In concluding that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” the Court explained that “ ‘[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.’ ” Citizens United, slip op. at 41-42 (quoting Buckley v. Valeo, 424 U.S. 1, 47 (1976)). Does this statement suggest the need for a more robust coordination rule because the presence of prearrangement and coordination may result in, or provide the opportunity for, quid pro quo corruption?

The Court further held that the governmental interest in “[l]aws that burden political speech” is “limited to quid pro quo corruption,” and that “[i]ngratiation and access, in any event, are not corruption.” Citizens United, slip op. at 43, 45. In light of these statements in Citizens United, is one of the governmental interests asserted in Shays III-Appeal for a stricter coordinated communications rule—i.e., to prevent third-party sponsors of communications from ingratiating themselves with Federal candidates (528 F.3d at 925)—still valid after Citizens United? Or, was the Court's holding limited to the independent expenditures that were at issue in Citizens United? Given that coordination was not at issue in Citizens United, did the Court's mention of coordination suggest, in any way, that a different governmental interest would justify regulating non-party speech that may be coordinated?

Now that Citizens United permits additional entities, such as public corporations and labor organizations, to make independent expenditures, does the proposed rule on coordinated communications adequately address those organizations?

b. Content Standards

The Commission seeks comment on the effect, if any, of the Citizens United decision on the proposed content standards. What effect does the decision have on the proposed Modified WRTL content standard, including the proposal's “functional equivalent of express advocacy” test? See, e.g., NPRM, 74 FR at 53902. Should any parts of 11 CFR 114.15 be included in such a test, or is Section 114.15 simply inapplicable after Citizens United? Does the “functional equivalent of express advocacy” standard still provide a potentially useful coordinated communications content standard to address the Shays III-Appeal court's concerns? Should the Commission devise alternative criteria for the Modified WRTL content standard, or does the Court's discussion of the Commission's “two part, 11-factor balancing test to implement WRTL' s ruling” indicate a general disapproval of such an approach? Citizens United, slip op. at 18 (referring to FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”)). Are any additional criteria necessary at all, or should the Commission simply rely on the Modified WRTL standard as articulated in the proposed rule text? Did the Court's application of the test to Hillary: The Movie demonstrate that the Court's “functional equivalent of express advocacy” standard is sufficiently workable without further explanation?

Additionally, the Commission seeks further comment on the examples given in the NPRM—both those in the proposed PASO definitions and those to which the proposed PASO and Modified WRTL content standards may or may not apply—in light of Citizens United. See Citizens United, slip op. at 3, 20-21, and 52-54; see also NPRM, 74 FR at 53903-04 and 53911-12. The Commission also seeks comment on the application of the proposed content standard alternatives to the communications at issue in Citizens United. See Citizens United, slip op. at 3, 52-54. What impact, if any, does the Court's conclusion that Hillary: The Movie is “the functional equivalent of express advocacy” have on the Commission's coordinated communications rules and in particular to the application of the “express advocacy” content standard outside the 90/120-day windows? Does the analysis change when the “functional equivalent of express advocacy” is not being applied to a communication in order to strike down a speech prohibition, as in Citizens United, but rather to restrict certain speech, as in the proposed coordination rules? See, e.g., Citizens United, slip op. at 10 (“First Amendment standards, however, `must give the benefit of any doubt to protecting rather than stifling speech’ ”) (quoting WRTL, 551 U.S. at 469). Is there anything in the opinion to suggest that the Court intended its conclusion, that Hillary: The Movie is “the functional equivalent of express advocacy” to apply only in limited contexts?

Are the proposed PASO definitions sufficiently clear and unambiguous so as not to require “intricate case-by-case determinations” or to require prospective speakers to seek guidance from the Commission as to whether their proposed speech would be coordinated? Id. at 12. Do Citizens United and WRTL provide a constitutional limit on the reach of the proposed PASO standard? Are any content standards broader than express advocacy or its functional equivalent permissible after Citizens United, or are these the only standards that the Court has concluded are sufficiently clear? In light of the Supreme Court's statements that the PASO components “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” McConnell v. FEC, 540 U.S. 93, 170 n.64 (2003), and that any rule must “eschew the open-ended rough-and-tumble of factors,” Citizens United, slip op. at 19 (quoting WRTL, 551 U.S. at 469), should the Commission adopt a PASO content standard without a definition? In the absence of a definition, would the rule provide specific enough guidance to prospective speakers? Would such a rule be enforceable by the Commission?

More generally, how should the Commission conduct investigations in enforcement actions arising from allegations of coordination? Does the Court's holding in Citizens United that corporations have a First Amendment right to make independent expenditures raise concerns about investigating potentially coordinated communications that do not exist in other contexts? Would investigations to determine whether a communication is independent or coordinated (and thus a contribution), chill protected speech? To avoid such a risk, should the Commission require a heightened standard (e.g., requiring more particularity or specificity) in any complaint alleging coordination before opening an enforcement proceeding? Should such a heightened complaint standard be adopted with, or regardless of, any revised content standard? Would such a heightened complaint standard impair the Commission's ability to investigate allegations of contributions via coordination? Does anything in the Act (particularly 2 U.S.C. 437g(a)) authorize or preclude the Commission from adopting a heightened complaint standard for coordination allegations? If the Commission may not require a heightened complaint standard for coordination allegations, would that then preclude the application of a broader content standard? Why?

c. Safe Harbors

Additionally, the NPRM proposes safe harbors that would exempt certain communications sponsored by 501(c)(3) organizations or candidates' businesses from being treated as coordinated. NPRM, 74 FR at 53907-53910. Are these proposed safe harbors consistent with the Citizens United decision? See, e.g., slip op. at 24 (“Prohibited too, are restrictions distinguishing among different speakers, allowing speech by some but not others.”). Should the proposed safe harbors apply broadly regardless of the types of entities involved? For example, should there be a safe harbor from the coordination rules for any public communication in which a candidate for Federal office expresses or seeks support for any type of organization, or for a position on a public policy or legislative proposal espoused (or opposed) by that organization? Similarly, should the safe harbor for commercial transactions include any public communication in which a candidate for Federal office proposes any type of commercial transaction, regardless of whether it is for a business that the candidate owns or operates, or whether the business existed prior to the candidacy? Would such safe harbors be overbroad or undermine the efficacy of the rule?

d. Consequences of Court's Media Exemption Analysis

In Citizens United, the Court stated, “There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” and “[t]his differential treatment [between corporations with and without media outlets] cannot be squared with the First Amendment.” Slip op. at 37. Does the Court's analysis of the media exemption affect the proposed rule changes, or the coordination rules generally? If so, how?

II. Notice of Hearing

The Commission announces that a hearing will be held on Tuesday, March 2, 2010 and Wednesday, March 3, 2010 (see DATES and ADDRESSES, above). The witnesses will be those individuals who indicated in their timely comments, whether to the NPRM published on October 21, 2009 or to this notice, that they wish to testify at the hearing. Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact the Commission Secretary's office at [phone], at least 72 hours prior to the hearing date.

Dated: February 5, 2010.

On behalf of the Commission,

Matthew S. Petersen,

Chairman, Federal Election Commission.

Footnotes

1.  The Commission is reevaluating a number of other regulations in light of the Citizens United decision and intends to begin a separate rulemaking to address these other regulations. Commenters will have an opportunity to address these other issues at that time.