Federal Register: December 14, 2005 (Volume 70, Number 238)
DOCID: FR Doc E5-7293
FEDERAL ELECTION COMMISSION
Federal Election Commission
CFR Citation: 11 CFR Part 109
DOCUMENT ID: [Notice 2005-28]
NOTICE: PROPOSED RULES
ACTION: Coordinated and independent expenditures:
DOCUMENT ACTION: Notice of proposed rulemaking.
SUBJECT CATEGORY:
Coordinated Communications
DATES: Comments must be received on or before January 13, 2006. The Commission will hold a hearing on the proposed rules on January 25 or 26, 2006, or both at 9:30 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.
DOCUMENT SUMMARY:
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 threeprong 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 socalled 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.
SUMMARY:
Coordinated communications,
SUPPLEMENTAL INFORMATION
The Bipartisan Campaign Reform Act of 2002, Pub. L. 107155, 116 Stat. 81 (2002) (``BCRA''), amended the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. (the ``Act''), in a number of respects. In the portion of BCRA relevant to this proceeding, Congress repealed the Commission's preBCRA regulations regarding ``coordinated general public political communications'' and directed the Commission to promulgate new regulations on ``coordinated communications'' in their place. Pub. L. 107155, sec. 214(b), (c) (2002). On December 17, 2002, the Commission adopted regulations at 11 CFR 109.21 to implement BCRA's provisions regarding payments for communications that are coordinated with a candidate, a candidate's authorized committee, or a political party committee. See Final Rules and Explanation and Justification on Coordinated and Independent Expenditures, 68 FR 421 (Jan. 3, 2003) (``2002 Coordination Final Rules'').
Under the Act, as amended by BCRA, an expenditure ``made by any
person in cooperation, consultation, or concert, with, or at the
request or suggestion of'' a Federal candidate, a candidate's
authorized committee, the national, State, or local committee of a
political party, or agents of any of the foregoing, is an inkind
contribution to the candidate or political party committee with which
it has been coordinated, and is thus subject to the limitations,
prohibitions, and reporting requirements of the Act. 2 U.S.C.
441a(a)(7)(B)(i) and (ii). An ``expenditure'' is any payment ``made by
any person for the purpose of influencing any election for Federal office.'' \1\ 2 U.S.C. 431(9)(A)(i).
\1\ In addition, the Act specifically provides that the
financing of the republication of campaign materials prepared by the
candidate, the candidate's authorized committee, or agents thereof, is an expenditure. 2 U.S.C. 441a(a)(7)(B)(iii).
Thus, under the Act, a payment for a communication constitutes an
inkind contribution if two conditions are satisfied. First, the
payment must qualify as an ``expenditure''; that is, it must be made
for the purpose of influencing a Federal election. Second, the payment
must be made ``in cooperation, consultation, or concert, with, or at
the request or suggestion of'' a candidate or political party committee
or agents thereof. In addition, the Act provides that any disbursement
for an ``electioneering communication'' \2\ that is coordinated with a
candidate, a candidate's authorized committee, a political party
committee, or agents thereof, is an inkind contribution to the
candidate or political party supported by the communication. 2 U.S.C. 441a(a)(7)(C).
\2\ The Act and Commission regulations define an electioneering
communication as any broadcast, cable, or satellite communication
that (1) refers to a clearly identified candidate for Federal
office; (2) is publicly distributed within 60 days before a general
election or 30 days before a primary election for the office sought
by the candidate referenced in the communication; and (3) can be
received by 50,000 or more persons within the geographic area that
the candidate referenced in the communication seeks to represent. See 2 U.S.C. 434(f)(3)(C); 11 CFR 100.29.
To implement these provisions of the Act, 11 CFR 109.21 sets forth a threeprong test for determining whether a communication is a coordinated communication, and therefore an inkind contribution to, a candidate, a candidate's authorized committee, or a political party committee. See 11 CFR 109.21(a). First, the communication must be paid for by someone other than a candidate, a candidate's authorized committee, a political party committee, or their agents (the ``payment prong''). See 11 CFR 109.21(a)(1). Second, the communication must meet one of four content standards (the ``content prong''). See 11 CFR 109.21(a)(2) and (c). Third, the communication must meet one of five conduct standards (the ``conduct prong''). See 11 CFR 109.21(a)(3) and (d). A communication must satisfy all three prongs to be a ``coordinated communication.''
I. The Content Prong
This rulemaking is being initiated in response to court decisions that invalidated one aspect of the ``content prong'' of the coordinated communication test. See Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) (``Shays District''), aff'd, Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) (``Shays Appeal'') (pet. for reh'g en banc denied Oct. 21, 2005) (No. 045352). As described more fully below, the District Court held the content prong as a whole to be invalid, while the Court of Appeals held the Commission's justification for one aspect of the content prong (specifically, the 120day time frame in the fourth content standard) to be inadequate.
The purpose of the content prong is to ``ensure that the coordination regulations do not inadvertently encompass communications that are not made for the purpose of influencing a Federal election.'' 2002 Coordination Final Rules at 426. Accordingly, each of the four content standards that comprise the ``content prong'' identifies a category of communications that satisfies the content prong because its ``subject matter is reasonably related to an election.'' Id. at 427.
The first content standard is satisfied if the communication is an electioneering communication. See 11 CFR 109.21(c)(1). This content standard implements the statutory directive, described above, that disbursements for coordinated electioneering communications be treated as inkind contributions to the candidate or political party supported by the communication.
The second content standard is satisfied by a public communication
\3\ made at any time that disseminates, distributes, or republishes campaign materials prepared by the candidate, the
[[Page 73948]]
candidate's authorized committee, or agents thereof. See 11 CFR
109.21(c)(2). This content standard implements the Congressional
mandate that the Commission's rules on coordinated communications
address the ``republication of campaign materials.'' See Pub. L. 107 155, sec. 214(c)(1) (2002).
\3\ 11 CFR 100.26 defines ``public communication'' as ``a
communication by means of any broadcast, cable or satellite
communication, newspaper, magazine, outdoor advertising facility,
mass mailing or telephone bank to the general public, or any other
form of general public political advertising. The term public
communication shall not include communications over the Internet.'' The District Court rejected the definition of ``public
communication'' in the Commission's regulations because the
definition categorically excludes all Internet communications. Shays
District at 70. To comply with the Shays District decision, the
Commission issued a Notice of Proposed Rulemaking that proposes to
include certain Internet communications in the definition of
``public communication.'' See Notice of Proposed Rulemaking on
Internet Communications, 70 FR 16967 (April 4, 2005). The proposed
revision to the definition of ``public communication'' would have
the effect of including certain Internet communications in the
definition of ``coordinated communication,'' as well. The Commission has not yet issued final rules in this rulemaking.
The third content standard is satisfied if a public communication made at any time expressly advocates the election or defeat of a clearly identified candidate for Federal office. See 11 CFR 109.21(c)(3); see also 11 CFR 100.22. The Commission concluded that express advocacy communications, no matter when such communications are made, can be reasonably construed only as for the purpose of influencing an election.
The fourth content standard is satisfied if a public communication (1) refers to a political party or a clearly identified Federal candidate; (2) is publicly distributed or publicly disseminated 120 days or fewer before an election; \4\ and (3) is directed to voters in the jurisdiction of the clearly identified Federal candidate or to voters in a jurisdiction in which one or more candidates of the political party appear on the ballot. See 11 CFR 109.21(c)(4). \4\ The term ``election'' includes general elections, primary elections, runoff elections, caucuses or conventions, and special elections. See 11 CFR 100.2.
In adopting the 120day time frame for public communications for the fourth content standard, the Commission sought to create a bright line rule for public communications that fall short of express advocacy and do not republish campaign materials. The 120day time frame ``focuses the regulation on activity reasonably close to an election, but not so distant from the election as to implicate political discussion at other times.'' 2002 Coordination Final Rules at 430. The Commission noted that its intent was ``to require as little characterization of the meaning or the content of the communication, or inquiry into the subjective effect of the communication on the reader, viewer, or listener as possible.'' 2002 Coordination Final Rules at 430 (citing Buckley v. Valeo, 424 U.S. 1, 4244 (1976)). The Commission emphasized that the regulation ``is applied by asking if certain things are true or false about the face of the public communication or with limited reference to external facts on the public record.'' Id.
In adopting this time frame, the Commission relied on the fact that, in BCRA, Congress defined ``Federal election activity'' (``FEA''), in part, as voter registration activity ``during the period that begins on the date that is 120 days'' before a Federal election. The Commission reasoned that, in doing so, Congress ``deem[ed] that period of time before an election to be reasonably related to that election.'' Id. (citing 2 U.S.C. 431(20)(A)(i)).
II. Overview of Court Decisions in Shays v. FEC
In Shays District, the District Court held that the Commission's
coordinated communication regulations did not survive the second step
of Chevron review.\5\ Shays District at 6162. Specifically, the court
concluded that limiting the coordinated communication definition to
communications that satisfy the content standards at 11 CFR
109.21(c)(1) through (4) would ``undercut[] [the Act's] statutory
purpose of regulating campaign finance and preventing circumvention of
the campaign finance rules.'' Id. at 63. The District Court reasoned
that communications that have been coordinated with a candidate, a
candidate's authorized committee, or a political party committee have
value for, and therefore are inkind contributions to, that candidate
or committee, regardless of the content, timing, or geographic reach of the communications. See Shays District at 6364.
\5\ The District Court described the first step of the Chevron
analysis, which courts use to review an agency's regulations: ``a
court first asks `whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress.'''
See Shays District, at 51 (quoting Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, 467 U.S. 837, 84243 (1984)). According to the
District Court, in the second step of the Chevron analysis, the
court determines if the agency's interpretation is a permissible
construction of the statute that does not ``unduly compromise'' [the
Act's] purposes by ``creat[ing] the potential for gross abuse.'' See
Shays District at 91, citing Orloski v. FEC, 795 F.2d 156, 16465 (D.C. Cir. 1986) (internal citations omitted).
The Court of Appeals, however, disagreed ``with the district court's suggestion that any standard looking beyond collaboration to content would necessarily `create an immense loophole,' thus exceeding the range of permissible readings under Chevron step two.'' Shays Appeal at 99100. The Court of Appeals noted that ``we can hardly fault the [Commission's] effort to develop an objective, brightline test [that] does not unduly compromise the Act's purposes.'' Shays Appeal at 99 (internal quotations omitted). Moreover, the Court of Appeals expressly ``reject[ed] Shays and Meehan's argument that [the Act] precludes contentbased standards under Chevron Step One.'' Id. As the Court of Appeals emphasized, ``time, place, and content may be critical indicia of communicative purpose. While electionrelated intent is obvious, for example, in statements urging voters to `elect' or `defeat' a specified candidate or party, the same may not be true of [other types of] ads [.]'' Id. Instead, the Court of Appeals found that ``the challenged regulation's fatal defect is not that the [Commission] drew distinctions based on content, time, and place, but rather that, contrary to the [Administrative Procedure Act], the Commission offered no persuasive justification for * * * the 120day timeframe and the weak restraints applying outside of it.'' Id. at 100. Specifically, the Court of Appeals concluded that, by limiting ``coordinated communications'' made outside of the 120day window to communications containing express advocacy or the republication of campaign materials, ``the [Commission] has in effect allowed a coordinated communication freeforall for much of each election cycle.'' Id.
The Court of Appeals found that the Commission had not adequately explained why ``120 days reasonably defines the period before an election when nonexpress advocacy likely relates to purposes other than `influencing' a Federal election.'' Id. at 101. Regarding the Commission's reliance on Congress's use of a 120day time frame in BCRA's definition of FEA as voter registration activity, the Court observed that the Commission had provided no evidence that voter registration activity occurs on cycles similar to ``coordinated communications.'' Id. at 100.
For these reasons, the Court of Appeals concluded that the
Commission had not provided adequate explanation under the
Administrative Procedure Act (``APA'') for the Commission's decision to
exclude communications distributed more than 120 days before an
election, unless a communication contains express advocacy or
republishes campaign materials. Therefore, the Court of Appeals
affirmed the District Court's invalidation of the Commission's coordinated communication rules. Id. at 101.
III. Alternative Proposals for Revising the Content Prong in 11 CFR 109.21(c)
The Commission is considering the seven alternatives described
below to comply with the Court of Appeals decision in Shays Appeal. The regulatory text for each alternative,
[[Page 73949]]
except one,\6\ is set forth at the end of this NPRM. The Commission
seeks comment on each alternative, including responses to the following
questions: Is the alternative too broad or too narrow? Would the
alternative potentially include public communications that are not made
for the purpose of influencing a Federal election and that therefore
should not be restricted and treated as inkind contributions?
Conversely, would the alternative potentially exclude public
communications that are made for the purpose of influencing a Federal
election and therefore should be treated as an inkind contribution,
provided that the payment and conduct prongs are also satisfied? The
Commission invites commenters to provide examples of communications
from previous election cycles demonstrating that an alternative may be
either underinclusive or overinclusive. Would the alternative address
the Court of Appeals' concerns regarding the potential for
circumvention of the Act and for corruption or the appearance of
corruption? Would the alternative properly effectuate congressional
intent? Would the alternative provide sufficient guidance to
individuals and organizations seeking to be actively involved in
politics and to comply with the Commission's coordination rules? \6\ See note 11 below.
The Commission notes that the alternatives presented in this NPRM are not limited to the exact terms of the regulatory language set forth for each alternative at the end of the NPRM. Instead, as the narrative describing each alternative makes clear, the final rules may be a variation of one of the alternatives or even a combination of components from different alternatives. The Commission specifically invites comment on whether a combination of components from several different alternatives would be appropriate. The Commission also seeks comment on whether it should adopt a content standard that is not presented as one of the alternatives in this NPRM.
In addition, given that the content prong and the conduct prong of the coordinated communication test were intended to work together, the Commission seeks comment on whether adopting a given alternative with respect to the content prong would necessitate changing the conduct prong in 11 CFR 109.21(d) to ensure that only communications made for the purpose of influencing a Federal election are covered. If so, what amendments to the conduct prong should the Commission consider making? Alternative 1Retain Current 11 CFR 109.21(c)(4) but Revise the Explanation and Justification
Alternative 1 would retain the current coordinated communication
test at 11 CFR 109.21, including the 120day time frame in the fourth
content standard at 11 CFR 109.21(c)(4)(ii), but would revise the
Explanation and Justification for 11 CFR 109.21(c)(4)(ii) by providing further explanation supporting the 120day time frame.\7\
\7\ Although this first alternative proposal to implement the
appellate court's decision in Shays Appeal would not change 11 CFR
109.21(c)(4), the regulatory text of Alternative 1 as set forth at the end of this NPRM reflects proposed changes to 11 CFR
109.21(c)(4)(ii), to address situations in which multiple candidates
for Federal office appear in a given public communication. See Section IV3 below.
The Court of Appeals emphasized that justifying the 120day time
frame, or another time frame, requires the Commission to undertake a
factual inquiry to determine whether the temporal line that it draws
``reasonably defines the period before an election when nonexpress
advocacy likely relates to purposes other than `influencing' a Federal
election'' or whether it ``will permit exactly what BCRA aims to
prevent: evasion of campaign finance restrictions through unregulated
collaboration.'' Shays Appeal at 10102. Accordingly, the Commission
seeks comment on the following questions raised by the Court of Appeals in Shays Appeal regarding the 120day time frame:
(1) Are a significant number of communications outside the 120day
period made for the purpose of influencing Federal elections, or are
communications to influence Federal elections predominantly made within
120 days of an election? Are there specific examples from the 2004
election cycle of communications that the current coordination rules
should have reached but did not or, conversely, examples of
communications that the current rules should not have reached but did? Id. at 102.
(2) Do communications made for the purpose of influencing House,
Senate, and Presidential racesall covered by this ruleoccur during
approximately the same periods in relation to the general election or
the primary election, or should different time frames apply to each? Id.
(3) If the Commission were to retain the 120day time frame, would
persons aiming to influence elections shift spending outside of that
period to avoid the rules' restrictions? Would the same phenomenon
potentially take place if the Commission adopted a time frame longer or
shorter than 120 days before a Federal election? In 2004, was there any
evidence that spending shifted outside the 120day period to avoid the rules' restrictions? Id.
The Commission specifically invites comments in the form of empirical data that show the time periods before an election in which electoral communications generally occur. Do outside persons make electoral communications during time frames that differ from candidates or parties? Do early electoral communications, for example, that occur more than 120 days before an election, have an effect on election results?
On its website, the Commission posts reports filed pursuant to the
Act and Commission regulations. Some of these reports include
information on independent expenditures by political committees filed
under 11 CFR 104.4 and by persons other than political committees under
11 CFR 109.10. Additionally, all political committees must report
coordinated expenditures along with all other inkind contributions
under 11 CFR 109.21(b)(3), while political party committees must report
their coordinated party expenditures separately under 11 CFR 109.37.
See Form 3X, line 25 (summarizing entries from Schedule F). For the
convenience of commenters, the Commission has extracted these data from
the reports and posted them on its website.\8\ Do the data provide an
empirical basis for retaining the 120day time frame or establishing
another time frame? For example, the data appear to indicate that,
during the 2004 election cycle, (1) coordinated party expenditures made
in connection with the general election were made mostly after
September 1, 2004roughly within 60 days of the general election, and
(2) independent expenditures were made mostly after July 27, 2004
roughly within 90 days of the general election.\9\ The Commission
invites statistical analyses of these data. Specifically, to what
extent is it possible to extrapolate from any identified patterns in party committee coordinated expenditures to
[[Page 73950]]
expenditures for coordinated communications by outside groups? Do the
data support the conclusion that communications made for the purpose of
influencing an election are almost always made, or are generally made, within the last 60 to 90 days before an election?
\8\ These data are available at http://www.fec.gov/press/coordruledata.shtml .
\9\ A political party committee authorized to make coordinated
expenditures may make such expenditures in connection with the
general election before or after its candidate has been nominated.
See 2 U.S.C. 441a(d), 11 CFR 109.34. See also 11 CFR 109.32(a).
Generally, it is less likely that such expenditures would be made
much before a candidate has been nominated. The Commission also
notes that expenditures reported by political party committees as
``coordinated expenditures'' include not only expenditures for
communications but also all other coordinated expenditures.
The Commission also seeks comment on whether other existing
analyses provide a basis for choosing a particular time frame. See,
e.g., Michael M. Franz et al., The Election after Reform: Money,
Politics and the Bipartisan Campaign Reform Act ch. 7 (Michael J.
Malbin ed., Rowman and Littlefield, forthcoming Mar. 2006), available
at http://www.cfinst.org/studies/ElectionAfterReform/chapters.html; Ken
Goldstein & Joel Rivlin, Political Advertising in the 2002 Elections
ch. 3 (forthcoming), available at http://polisci.wisc.edu/tvadvertising ; Craig B. Holman, Buying Time 2000: Television
Advertising in the 2000 Federal Elections 5259 (2001), available at
http://www.brennancenter.org/programs/buyingtime2000.html; Jonathan
Krasno & Kenneth Goldstein, The Facts About Television Advertising and
the McCainFeingold Bill, 35(2) PS: Political Science and Politics 207
(2002), draft available at http://www.cfinst.org/studies/papers/goldstein&krasno.pdf ; Donald F. McGahn, Remarks at Campaign Finance
Reform Forum, Campaign Finance Institute (Jan. 14, 2005),\10\ available
at http://www.cfinst.org/transcripts/pdf/11405_Transcript_PanelThree.pdf.;
see also data compiled by the University of Wisconsin Advertising
Project, available at http://polisci.wisc.edu/tvadvertising.
\10\ ``The hotspot of the campaign didn't start until late
September. * * * This cycle was very compressed when it came to the
heavy spending. It eventually had in essence a fourweek sprint as
opposed to the eight to tenweek sprint that we used to pay for.'' Alternative 2Adopt a Different Time Frame
The Commission seeks comment on whether a time frame other than 120
days would be more appropriate in bringing public communications that
are made for the purpose of influencing a Federal election within the
coordination regulations, while filtering out public communications
that are not made for this purpose.\11\ Does empirical evidence support
the adoption of a different time frame? Some States hold primary
elections early in the election year. Under the current rule, a public
communication that refers to a clearly identified candidate and is
distributed within the 120day period preceding a primary election
would satisfy the content standard at 11 CFR 109.21(c)(4), but the same
public communication distributed shortly after the primary but still
more than 120 days before the subsequent general election would not
satisfy that standard. Accordingly, rather than retain the current rule
covering communications made within the 120day period before an
election, whether primary or general, should the Commission adopt a
time frame that covers an uninterrupted period of time starting 120
days (or some other time period) before the primary election up to and including the day of the general election?
\11\ Because Alternative 2 does not propose a specific time
frame, this NPRM does not set forth regulatory text for Alternative 2.
The Commission also invites comment on whether to adopt a time frame covering the period from January 1 of each election year through the day of the general election. Would such an ``election year'' time frame begin too late for States that hold primaries early in the year? Conversely, would an ``election year'' time frame begin too early for States that hold primaries in September? Would such a time frame be appropriate for Presidential elections?
In addition, the Commission seeks comment on whether to adopt a
tiered approach, under which the range of communications that satisfy
the fourth content standard would depend on the communication's
proximity to an election. For example, for communications made within
120 days before an election, the fourth content standard could be
modified to capture any public communication that refers to a political
party or clearly identified Federal candidate and is directed to the
voters in the relevant geographical areas. For communications made
between 120 and 240 days before an election, the fourth content
standard could capture only public communications that promote, attack,
support, or oppose (``PASO'') a political party or a clearly identified
Federal candidate.\12\ The Commission invites commenters to provide
examples of communications from previous election cycles to show
whether a given time frame would be either underinclusive or overinclusive.
\12\ See Alternative 4 below for a more detailed discussion of the PASO standard.
Alternative 3Eliminate the Time Restriction From 11 CFR 109.21(c)(4)
Alternative 3 would revise 11 CFR 109.21(c)(4) by eliminating any time restriction from the fourth content standard. Specifically, Alternative 3 would remove the requirement that a public communication be publicly distributed or otherwise publicly disseminated 120 days or fewer before an election. See 11 CFR 109.21(c)(4)(ii). Alternative 3 would, however, retain the requirements that (1) the public communication refer to a political party or clearly identified candidate and (2) be directed to voters in the jurisdiction of the clearly identified candidate or to voters in the jurisdiction in which one or more candidates of the political party appear on the ballot. See 11 CFR 109.21(c)(4)(i) and (iii). Thus, under this alternative, any public communication that refers to a clearly identified candidate or political party and is directed to voters in the relevant jurisdiction would satisfy the content prong of the coordinated communication test, regardless of when it is distributed.
The Commission seeks comment on whether the fourth content standard
without a time frame would still be effective in distinguishing
communications made for the purpose of influencing a Federal election
from communications made for other purposes, such as communications
made for the purpose of lobbying for or against certain legislation.
The Court of Appeals noted that ``to qualify as `expenditure' in the
first place, spending must be undertaken `for the purpose of
influencing' a federal election * * * [T]ime, place, and content may be
critical indicia of communicative purpose. While electionrelated
intent is obvious, for example, in statements urging voters to `elect'
or `defeat' a specified candidate or party, the same may not be true of
ads identifying a federal politician but focusing on pending
legislation[.]'' Shays Appeal at 99. Does the fact that a communication
refers to a clearly identified candidate or a political party and is
directed to voters in the relevant geographical area by itself provide
strong evidence that the communication is made for the purpose of
influencing a Federal election, even if the communication is made a
year or more before that election? Does the Commission have the statutory authority to regulate ``other categories of non
electioneering speechnonexpress advocacy, for exampleoutside the
120 days''? Id. at 101. How should the Commission separate
communications made for the purpose of influencing a Federal election from those without such purpose?
The Commission also invites commenters to provide examples of
communications from previous election cycles to show whether Alternative 3
[[Page 73951]]
would be either underinclusive or overinclusive.
Alternative 4Replace the Content Standard in 11 CFR 109.21(c)(4) With a ``PASO'' Test
Alternative 4 would replace the content standard in 11 CFR
109.21(c)(4) with a new standard providing that a public communication
would satisfy the content prong of the coordinated communication test
if it refers to a political party or a clearly identified Federal
candidate, is directed to voters in the jurisdiction of the clearly
identified Federal candidate or to voters in a jurisdiction in which
one or more Federal candidates of a political party are on the ballot,
and the communication PASOs the political party or the clearly
identified Federal candidate.\13\ Would such a standard have the
potential to be unconstitutionally vague in practical application? Or,
conversely, would such a standard `` `provide explicit standards for
those who apply them ' and `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) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108109 (1972)).
\13\ The PASO standard is found in BCRA and applies primarily to
candidates and political party committees with respect to FEA. See 2
U.S.C. 431(20)(A)(iii). But Congress also applied the PASO standard
to the activity of certain taxexempt organizations. For example,
BCRA prohibits party committees from soliciting funds for, or making
or directing donations to, certain taxexempt organizations that
make expenditures or disbursements for FEA, which includes public
communications that PASO a Federal candidate. See 2 U.S.C.
431(20)(A)(iii) and 441i(d)(1). BCRA also directed the Commission
not to exempt any communications that PASO a clearly identified
Federal candidate from the electioneering communication provisions.
See 2 U.S.C. 434(f)(3)(B)(iv). The Commission provided examples of
communications that PASO and communications that do not PASO in Advisory Opinion 200325.
Alternatively, the Commission invites comment on whether Alternative 4, instead of using a PASO standard, should create a safe harbor exemption from the coordinated communication rules for certain kinds of communications. A communication that satisfies these criteria would, as a matter of law, not be treated as a coordinated communication. For example, such criteria could include the following:
``conservative,'' etc.) of a clearly identified Federal candidate.
If this criteriabased approach is adopted, should any of the criteria be eliminated from, or added to, the list? If adopted, should the regulation provide that a communication must meet all of the criteria on the list to qualify for the safe harbor exemption or should the regulation follow a more flexible approach and provide that a communication may meet some but not necessarily all of the criteria on the list and still qualify for the exemption? Should satisfaction of one or more specific criteria on the list, by itself, be sufficient to qualify for the exemption? By contrast, should any one or more criteria be critical to the analysis such that failure to meet these criteria would prohibit an organization from taking advantage of the safe harbor?
The Commission seeks comment as to whether Alternative 4 should
incorporate a time period limitation, such as a specific number of days
before an election. If so, should this time period be 120 days before
an election or should a different time frame be adopted? The Commission
invites commenters to submit supporting empirical data. The Commission
also invites commenters to provide examples of communications from
previous election cycles to show whether Alternative 4 would be either underinclusive or overinclusive.
Alternative 5Eliminate the Time Restriction From 11 CFR 109.21(c)(4) for Political Committees Only
Alternative 5 would adopt a bifurcated test under which application
of the 120day time frame would depend on the identity of the person
paying for the public communication. If a registered political
committee, or an organization that is required to register as a
political committee, pays for a public communication that refers to a
political party or a clearly identified Federal candidate and the
public communication is directed to voters in the jurisdiction of the
clearly identified candidate or to voters in a jurisdiction in which
one or more of the candidates of the political party appear on the
ballot, then that public communication would be deemed as a matter of
law to have been made for the purpose of influencing a Federal
election. Such a public communication, when paid for by a political
committee, would be deemed to have been made for the purpose of
influencing a Federal election regardless of when it is distributed,
because a political committee is an organization whose major purpose is
to influence elections.\14\ Alternatively, should the time frame be
eliminated only for public communications that are paid for by
registered political committees or organizations that are required to
register as political committees if the communication PASOs a political party or a clearly identified Federal candidate?
\14\ The Act defines a ``political committee'' as any committee,
club, association, or other group of persons that receives
``contributions'' or makes ``expenditures'' aggregating in excess of
$1,000 during a calendar year. 2 U.S.C. 431(4)(A). See also 11 CFR
100.5. In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court, in
order to avoid vagueness, narrowed the Act's references to
``political committee'' to prevent their ``reach [to] groups engaged
purely in issue discussion.'' 424 U.S. at 79. The Court concluded
that ``[t]o fulfill the purposes of the Act [the words `political
committee'] need only encompass organizations that are under the
control of a candidate or the major purpose of which is the nomination or election of a candidate.'' Id.
Under Alternative 5, if the person paying for the public communication is not a registered political committee or an organization that is required to register as a political committee, then the public communication would satisfy the content standard at 11 CFR 109.21(c)(4) only if it occurs 120 days or fewer before an election or during whatever other time frame might be adopted. Are there data to justify the 120day window? Do the data support another time frame?
The Commission seeks comment on how such a bifurcated test would
apply to other entities, such as nonFederal candidates and their
campaign organizations. The Commission further seeks comment on how
such a bifurcated test should apply to entities organized under section
527 of the Internal Revenue Code that are not registered with the
Commission as political committees. The Commission also seeks comment
on the effect that this alternative approach would have on a candidate
who has contacts that meet the conduct standard with an organization
that is not registered as a political committee. If that organization [[Page 73952]]
is subsequently found to have inappropriately failed to register as a
political committee based on activity that was not known to the
candidate, should the Commission provide in the regulation that the
candidate would not be deemed to have accepted an inkind contribution from the organization?
In addition, the Commission invites commenters to provide examples of communications from previous election cycles to show whether Alternative 5 would be either underinclusive or overinclusive. Alternative 6Replace the Fourth Content Standard in 11 CFR 109.21(c)(4) With a Standard Covering Public Communications Made for the Purpose of Influencing a Federal Election
Alternative 6 would replace the fourth content standard in 11 CFR 109.21(c)(4) with a new standard that would closely track the statute and simply require a communication to be a public communication made for the purpose of influencing a Federal election. The effect of adopting Alternative 6 would be to restrict some public communications that are not covered by current 11 CFR 109.21(c)(4), i.e., communications that are made for the purpose of influencing a Federal election but that are either: (1) Made more than 120 days before an election, or (2) made at any time and do not refer to a political party or a clearly identified Federal candidate. In addition, Alternative 6 would exclude from regulation some communications that are covered by current 11 CFR 109.21(c)(4), i.e., communications that are made within 120 days of an election and that do refer to a political party or a clearly identified Federal candidate but that are not made for the purpose of influencing a Federal election.
Whether a given public communication is for the purpose of
influencing a Federal election would depend on the facts and would be decided on a casebycase basis. This is the approach some
Commissioners used before 2002 when the Commission adopted a content
prong for its coordinated communication regulations. Under such a case
bycase approach, some public communications would be treated as having
been made for the purpose of influencing a Federal election, even
though no Federal candidate or political party is referenced in the
communication, and regardless of how far in advance of an election such
a communication is made. This approach would result in some public
communications being restricted as coordinated communications without
having to meet a content standard defined in the Commission's
regulations. The Commission seeks comment on whether such a caseby
case approach is appropriate and whether it would provide sufficient
guidance to candidates, their authorized committees, political party
committees, and outside organizations. Would such a standard have the
potential to be unconstitutionally vague in practical application? Or,
conversely, would such a standard `` `provide explicit standards for
those who apply them' and `give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited' ''? McConnell, 540
U.S. at 170 n.64 (quoting Grayned, 408 U.S. at 108109); compare
Buckley v. Valeo, 424 U.S. 1, 24, n. 24, 4647, n. 53, 78 (Payments for
media advertisements ``controlled by or coordinated with the
candidate'' are treated as contributions, and ``for the purpose of
influencing'' phrase ``presents fewer problems in connection with the
definition of a contribution because of the limiting connotation
created by the general understanding of what constitutes a political
contribution.''). The Commission also invites commenters to provide
examples of communications from previous election cycles to show
whether Alternative 6 would be either underinclusive or overinclusive.
Alternative 7Eliminate the Content Prong in 11 CFR 109.21(c) and
Replace It With the Requirement That the Communication Be a Public Communication as Defined in 11 CFR 100.26
Alternative 7 would eliminate the entire content prong in 11 CFR 109.21(c), and would replace it with the requirement that the communication be a public communication as defined in 11 CFR 100.26.\15\ Alternative 7 would also make some conforming amendments. Alternative 7 would be based on the assumption that if an organization or individual works with a candidate or a political party in making a public communication, then the communication inherently has value to the political entity it is coordinated with, regardless of timing or content. Accordingly, in Alternative 7, any public communication that satisfies the conduct prong of the coordinated communication test at 11 CFR 109.21(d) would be deemed to have been made for the purpose of influencing a Federal election and thus be a ``coordinated communication,'' regardless of whether it refers to a clearly identified Federal candidate or political party and regardless of when or to whom the communication is distributed.
\15\ See note 3 above.
The Commission notes that, even though Alternative 7 would eliminate the entire content prong, it would nonetheless comply with the statutory requirement that disbursements for coordinated electioneering communications be inkind contributions to the candidate supported by them and with the congressional mandate that the Commission's coordination rules address the ``republication of campaign materials.'' Specifically, under Alternative 7, all public communications (including electioneering communications and communications that republish campaign materials) would be coordinated communications as long as they satisfy the conduct prong.
The Commission seeks comment on whether the conduct prong by itself, without any content prong, would be effective in distinguishing between public communications made for the purpose of influencing a Federal election and public communications made for other purposes, such as public communications made for the purpose of lobbying for or against certain legislation, or for supporting charitable or other non political causes. Assuming that it is true that a candidate or political party would not coordinate with an outside organization or individual if the resulting communication did not have value for the candidate or political party, does such value necessarily consist of influencing the candidate's election or the election of a political party's candidates? Would the conduct prong by itself, without any content prong, have the potential to be unconstitutionally vague in practical application? Or, conversely, would such a regulation `` `provide explicit standards for those who apply them' and `give the person of ordinary intelligence a reasonable opportunity to know what is prohibited' ''? McConnell, 540 U.S. at 170 n.64 (quoting Grayned, 408 U.S. at 108109). The Commission also invites commenters to provide examples of communications from previous election cycles to show whether Alternative 7 would be either underinclusive or overinclusive. IV. Other Issues Regarding the Content Prong
The Commission also seeks comment on the following related issues. [[Page 73953]]
1. The ``Directed to Voters'' Requirement in 11 CFR 109.21(c)(4)(iii)
In the event that the Commission decides to retain a content prong, the Commission seeks comment on modifying the requirement in the fourth content standard that a public communication must be directed to voters in the jurisdiction of the clearly identified candidate or to voters in a jurisdiction in which one or more candidates of the political party appear on the ballot. See 11 CFR 109.21(c)(4)(iii). While the Act and Commission regulations defining ``electioneering communications'' require that 50,000 or more persons be able to receive the communication in the relevant geographic area, the fourth content standard does not specify how many persons must be able to receive a communication for it to be classified as a coordinated communication. See 2 U.S.C. 434(f)(3)(C); 11 CFR 100.29(b)(3)(ii)(A) and (b)(5). Should 109.21(c)(4)(iii) be deemed satisfied if any person in the relevant geographic area can receive the communication? Should 11 CFR 109.21(c)(4)(iii) be changed to specify a minimum number of persons that must be able to receive the communication? If so, what should the required minimum number of persons be? Has the current regulation without a required minimum number presented any difficulties to, or created any confusion for, those seeking to comply with it?
The Commission notes that the fourth content standard applies to ``public communications,'' and thus to communications made by means of newspapers, magazines, periodicals, billboards, mass mailing, and telephone banks. See 11 CFR 100.26. Is it appropriate to set a minimum for the ``directed to voters'' requirement that would exclude small and medium sized publications? If so, should the minimum number be based on the number of copies distributed or on estimates of the number of readers reached by the publications? Similarly, the definition of ``public communication'' includes limited communications, such as 501 pieces of mail or 501 telephone calls of an identical or substantially similar nature. See 2 U.S.C. 431(23) and (24); 11 CFR 100.26, 100.27, 100.29. Would it be appropriate to exclude such limited mass mailings or telephone banks from the ``directed to voters'' requirement as de minimis even though they come within the Commission's definition of ``public communication''?
Under the current rules, the second and third content standards (i.e., the republication of campaign material and the express advocacy standards) do not contain a ``directed to voters'' requirement. Are communications that satisfy these standards so clearly made for the purpose of influencing a Federal election that a ``directed to voters'' requirement is unnecessary? In the alternative, should such a requirement be added to these two content standards as well?
The Commission also seeks comment on whether to exempt from the
coordination regulations communications that are distributed in the
jurisdiction of a clearly identified congressional candidate when such
distribution is part of, and incidental to, a larger advertising
campaign. For example, an advertisement distributed nationally on cable
television that refers to a U.S. Representative seeking reelection as
one of several sponsors of a piece of legislation will presumably reach
voters in the U.S. Representative's district. In such a case, the
voters in the U.S. Representative's district would be reached only
incidentally as part of the larger lobbying campaign. Would an
exemption for communications that reach voters in the jurisdiction of
the clearly identified congressional candidate only incidentally
provide a reliable way of distinguishing communications that are made
for the purpose of influencing a Federal election from lobbying or
issue advocacy communications? Would such a standard be sufficiently
clear to provide persons with prior notice of the types of
communications that are affected? For such a standard to provide
effective prior notice, must the Commission specify how many viewers
are ``incidental''? In the alternative, should the Commission define
``incidental'' in terms of a certain ratio between the number of
persons who can receive the communication in the State or district of
the clearly identified Senate or House candidate and the number of
persons who can receive the communication outside that State or
district? Should such an exemption be limited to public communications
that are distributed nationwide? The Commission also invites comment on
whether the regulations should provide that such an exemption would
apply only if a communication does not PASO the clearly identified candidate.
2. Federal Candidate Endorsements of, and Solicitations of Funds for,
Other Federal or NonFederal Candidates or State Ballot Initiatives
The Commission invites comment regarding the application of the coordinated communication test to situations in which Federal candidates endorse, or solicit funds for, other Federal and nonFederal candidates or State ballot initiatives. In Advisory Opinion 200401, the Commission considered a television advertisement that featured President Bush endorsing a congressional candidate. The advertisement was publicly distributed within 120 days of the Presidential primary in the State in which the advertisement aired. The Commission concluded that the ``material involvement'' conduct standard in 11 CFR 109.21(d)(2) was satisfied because the President's agents ``review[ed] the final script in advance of the President's appearance in the advertisements for legal compliance, factual accuracy, quality, consistency with the President's position and any content that distracts from or distorts the `endorsement' message that the President wishes to convey.'' \16\ Advisory Opinion 200401. Similarly, in Advisory Opinion 200325, the Commission considered an advertisement featuring a U.S. Senator's endorsement of a candidate for mayor. In that opinion, the Commission determined that it was highly implausible that a Federal candidate would appear in a communication endorsing a local candidate without being materially involved in one or more of the decisions listed in the ``material involvement'' conduct standard. \16\ The Commission further determined that, for advertisements distributed within 120 days of the Presidential primary in the State in which the advertisement aired, the advertisements' production and distribution costs paid for by the congressional candidate's committee but attributable to the President's authorized committee were contributions to the President's committee by the congressional candidate's committee, but that no contribution would result if the President's committee reimbursed the congressional candidate's committee for its attributable share of the costs.
The Commission seeks comment on whether to exempt from the coordinated communication rules a Federal candidate's appearance or use of a candidate's name in a communication to endorse other Federal or nonFederal candidates. Do such endorsements benefit the endorsing candidate? The Commission also invites comment on whether any such exemption should be limited to communications that do not PASO the endorsing candidate. Does the fact that the endorsing candidate appears in the communication inevitably promote the endorsing candidate?
Similarly, the Commission seeks comment on whether to exempt from
the coordinated communication rules a Federal candidate's appearance in a communication that solicits funds for
[[Page 73954]]
other Federal or nonFederal candidates, party committees, political
action committees, or other political committees. Do such solicitations
benefit the candidate who makes them? The Commission also invites
comment on whether any such exemption should be limited to
communications that do not PASO the soliciting candidate, or, in the
alternative, do not expressly advocate the election or defeat of the soliciting candidate.
The Commission also seeks comment on whether a similar exemption
from the coordinated communication rules should also apply to a Federal
candidate's appearance in communications that endorse, or solicit funds for, State ballot initiatives.
3. Proposed Clarification of Application of 120day Time Frame Requirement in 11 CFR 109.21(c)(4)(ii)
Advisory Opinion 200401, discussed above, concerned President Bush's appearance in a television advertisement paid for by a congressional candidate where President Bush endorsed that congressional candidate. The Commission determined that any airing of the advertisement that occurred more than 120 days before the Presidential primary in the State in which the advertisement aired was not an inkind contribution to President Bush because it did not satisfy the fourth content standard (i.e., 11 CFR 109.21(c)(4)). In making this determination, the Commission looked at whether the communication was aired within 120 days before the nonpaying candidate's (i.e., President Bush's) election rather than whether it was aired within 120 days before the paying congressional candidate's election. The regulatory text for Alternative 1 reflects the Commission's proposal to amend its coordinated communication rules to incorporate the approach taken in Advisory Opinion 200401 and to make clear that the time frame applies only to the election of a Federal candidate who is clearly identified and who has not paid for the communication.
This alteration would clarify that no inkind contribution is made under the coordinated communication regulations to a candidate for Federal office who is referred to in a public communication if the referenced candidate will not appear as a Federal candidate on a ballot within 120 days of the distribution of the communication. See Advisory Opinion 200518, Concurring Opinion of Chairman Thomas, Vice Chairman Toner, Commissioners Mason, McDonald, and Weintraub.
For example, a Senator whose reelection is not until 2008 appears in an advertisement with a 2006 House candidate. The advertisement is aired within 120 days of the House candidate's election, is paid for by the House candidate's campaign committee, and is aired in the State where the Senator will seek reelection in 2008. This advertisement would not be an inkind contribution to the Senator because the advertisement was not aired within 120 days of the Senator's 2008 election.
The Commission seeks comment on whether the proposed language properly effectuates this clarification.
V. Issues Regarding the Conduct Prong
The conduct prong of the Commission's coordinated communication
regulations was not challenged in Shays v. FEC. Nonetheless, the
Commission is taking this opportunity to evaluate how certain aspects of the conduct prong work in practice.
1. The ``Request or Suggest'' Conduct Standard in 11 CFR 109.21(d)(1)
The first conduct standard of the coordinated communications test
is satisfied if a communication is created, produced or distributed at
the request or suggestion of a candidate, a candidate's authorized
committee, or a political party committee, or their agents. See 11 CFR
109.21(d)(1). The Commission invites comment on whether, even if the
Commission decides to retain the content prong of the coordinated
communication test, it should provide that if the first conduct
standard is satisfied, the communication would automatically qualify as
a coordinated communication without also having to satisfy any of the
standards contained in the content prong. If a public communication is
made at the request or suggestion of a candidate or a political party,
then does that communication presumptively have value to the political
entity that it was coordinated with, regardless of timing or content?
Would such a proposal capture communications that are not made for the
purpose of influencing elections? Are there examples of public
communications, such as lobbying communications or communications
supporting charitable or other nonpolitical causes, that are made at
the ``request or suggestion'' of a Federal candidate but that do not have value for the candidate's campaign?
2. The ``Common Vendor'' and ``Former Employee'' Conduct Standards in 11 CFR 109.21(d)(4) and (5)
The fourth standard of the conduct prong of the coordinated communication rules involves common vendors, and the fifth standard involves former employees. See 11 CFR 109.21(d)(4) and (5). The Commission intended these standards to implement Congress's requirement in BCRA that the Commission address ``the use of a common vendor'' and ``persons who previously served as an employee of a candidate or a political party committee'' in the context of coordination. BCRA, Pub. L. No. 10755, sec. 214(c)(2) and (3) (2002).
The ``common vendor'' conduct standard is satisfied if (1) the person paying for the communication contracts with, or employs, a ``commercial vendor'' to create, produce, or distribute the communication, (2) the commercial vendor has a previous or current relationship with the political party committee or the clearly identified candidate referred to in the communication that puts the commercial vendor in a position to acquire material information about the plans, projects, activities, or needs of the candidate or political party committee, and (3) the commercial vendor uses or conveys material information to the person paying for the communication about the plans, projects, activities, or needs of the candidate or political party committee, or material information used by the commercial vendor in serving the candidate or political party committee. See 11 CFR 109.21(d)(4).
The ``former employee'' conduct standard is satisfied if (1) the person paying for the communication was, or is, employing a person who was an employee of the candidate or the political party committee clearly identified in the communication, and (2) the former employee uses or conveys material information to the person paying for the communication about the plans, projects, activities, or needs of the candidate or political party committee, or material information used by the former employee in serving the candidate or political party committee. See 11 CFR 109.21(d)(5).
The first three conduct standards in 11 CFR 109.21(d)(1)(3) are
satisfied only if either the principals themselves (i.e., candidates,
their authorized committees, or political party committees) or their agents coordinate with the person paying for the
[[Page 73955]]
communication.\17\ However, because commercial vendors and former
employees might not be agents of a candidate or a political party
committee at the time they use or convey material information to a
person paying for a communication, the ``common vendor'' and the
``former employee'' conduct standards can be satisfied by persons other
than the principals themselves or their agents. The Commission seeks
comment on whether it should change the coordinated communication
regulations to cover common vendors and former employees only if these
common vendors and former employees are agents under the Commission's
definition of agent in 11 CFR 109.3.\18\ Does the Commission have
authority under the Act to make this change? If the Commission does
make this change, would such agents then be covered by the first three
conduct standards in 11 CFR 109.21(d)(1)(3) or would the ``common
vendor'' and the ``former employee'' conduct standards still cover some
activities not captured by the first three conduct standards? If the
Commission revises the common vendor and former employee conduct
standards to cover only common vendors and former employees who are
also agents, would that render these two conduct standards superfluous?
If so, should the Commission then eliminate the conduct standards in 11
CFR 109.21(d)(4) and (5)? Given that BCRA specifically required the
Commission to promulgate regulations that addressed payments for the
use of common vendors and for communications directed or made by
persons who previously served as employees of a candidate or political
party, does the Commission have authority under the Act to eliminate 11 CFR 109.21(d)(4) and (5)?
\17\ The first conduct standard addresses communications
produced at the request or suggestion of a candidate, an authorized
committee, a political party committee, or an agent of any of the
foregoing. See 11 CFR 109.21(d)(1). The second conduct standard
addresses communications with which a candidate, an authorized
committee, a political party committee, or an agent of any of the
foregoing has been materially involved. See 11 CFR 109.21(d)(2). The
third conduct standard addresses communications produced after one
or more substantial discussions between the person paying for the
communication, or that person's employees or agents, and the
candidate clearly identified in the communication, the candidate's
authorized committee, the candidate's opponent, or the opponent's
authorized committee, or an agent of any of the foregoing. See 11 CFR 109.21(d)(3).
\18\ The definition of ``agent'' includes any person who has
actual authority ``to make or authorize a communication that meets
one or more of the content standards set forth in 11 CFR 109.21(c)''
on behalf of a political party committee or a Federal candidate or
officeholder. See 11 CFR 109.3(a)(2) and (b)(2). For reasons
unrelated to the issues addressed in this rulemaking, the Shays
District court held that the Commission's definition of agent at 11
CFR 109.3 violated APA requirements and remanded the regulation to
the Commission for action consistent with its decision. Shays
District at 88. In order to comply with the Shays District decision,
the Commission has issued an NPRM that sought comment on whether the
Commission should retain the current definition of ``agent'' and on
several alternatives for revising the definition. See Notice of
Proposed Rulemaking on the Definition of ``Agent'' for BCRA
Regulations on NonFederal Funds or Soft Money and Coordinated and
Independent Expenditures, 70 FR 5382 (Feb. 2, 2005). The Commission has not yet issued final rules in this rulemaking.
In the rulemaking proceeding that resulted in the 2002 Coordination Final Rules, the Commission received many comments on the common vendor conduct standard. Some of the comments expressed concern about the potential liability that would attach under the common vendor standard to candidates and party committees who employ the same vendors as other candidates and party committees because of the limited number of qualified vendors in a given geographic area.
The Commission addressed this and other concerns in the 2002 Coordination Final Rules by limiting the common vendor conduct standard to commercial vendors whose usual and normal business includes the creation, production, or distribution of communications; who have provided certain enume
FOR FURTHER INFORMATION CONTACT
Mr. Brad C. Deutsch, Assistant General Counsel, Ms. Amy Rothstein, or Mr. Ron B. Katwan, Attorneys, 999 E Street, NW., Washington, DC 20463, (202) 6941650 or (800) 4249530.