Federal Register: June 8, 2006 (Volume 71, Number 110)

DOCID: FR Doc 06-5195

SUBJECT CATEGORY:

Coordinated Communications

DATES: Effective July 10, 2006.

DOCUMENT SUMMARY:

The Federal Election Commission is revising its regulations regarding communications that are coordinated with Federal candidates and political party committees. The Commission's rules set out a three prong test for determining whether a communication is ``coordinated'' with, and therefore an inkind contribution to, a Federal candidate or a political party committee. These final rules implement the recent decision of the Court of Appeals in Shays v. Federal Election Commission, in which the court determined that the Commission needs to provide a more complete explanation and justification for its rules pursuant to the Administrative Procedure Act. To comply with the court's decision, and to address other issues involving the coordinated communication rules, the Commission is issuing these Final Rules and Explanation and Justification. Further information is provided in the supplementary information that follows.

SUMMARY:

Coordinated communications,

SUPPLEMENTAL INFORMATION

Scope of Regulatory Changes

The Commission is revising its regulations regarding communications that are coordinated with Federal candidates and political party committees. The Commission is: (1) Revising the fourth content standard at 11 CFR 109.21(c)(4) to establish separate time frames for communications referring to political parties, Congressional and Presidential candidates; (2) creating a safe harbor for certain endorsements and solicitations by Federal candidates; (3) revising the temporal limit of the common vendor and former employee conduct standards; (4) creating a safe harbor for the use of publicly available information; (5) creating a safe harbor for the establishment and use of a firewall; (6) clarifying that the payment prong of the coordinated communication test is satisfied if an outside person pays for only part of the costs of a communication; and (7) revising 11 CFR 109.37 to include the applicable time frame and safe harbor revisions in 11 CFR 109.21.

Transmission of Final Rules to Congress

Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final rules to the Speaker of the House of Representatives and the President of the Senate and publish them in the Federal Register at least 30 calendar days before they take effect. The final rules that follow were transmitted to Congress on June 2, 2006. Explanation and Justification
I. Background
A. Bipartisan Campaign Reform Act and 2002 Coordination Rulemaking

The Bipartisan Campaign Reform Act of 2002,\1\ (``BCRA''), 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.\2\ Congress specified in BCRA that the Commission's new regulations ``shall not require agreement or formal collaboration to establish coordination.''
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BCRA, sec. 214(c), 116 Stat. 81 at 95. ``Apart from this negative command`shall not require'BCRA merely listed several topics the rules `shall address,' providing no guidance as to how the FEC should address them.'' Shays v. FEC, 414 F.3d 76, 9798 (D.C. Cir. 2005). On December 17, 2002, the Commission promulgated regulations as required by BCRA. See 11 CFR 109.21; see also, Final Rules and Explanation and Justification on Coordinated and Independent Expenditures, 68 FR 421 (Jan. 3, 2003) (``2002 Coordination Final Rules'').
\1\ Pub. L. 107155, 116 Stat. 81 (2002); amending the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. (the ``Act'' or ``FECA'').

\2\ Pub. L. 107155, sec. 214(b), (c) (2002).

The Commission's 2002 coordinated communication regulations set forth a threeprong test for determining whether a communication is a coordinated communication, and therefore an inkind contribution to, and an expenditure by, 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 satisfy one of four content standards (the ``content prong''). See 11 CFR 109.21(a)(2) and (c). Third, the communication must satisfy 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.''

B. Content Prong Challenged in Shays v. FEC

In 2003, Representatives Shays and Meehan brought suit in Federal District Court challenging, among other Commission regulations, the content prong of the Commission's coordination regulations. 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). The content prong is comprised of four subcategories of communications. A communication that falls in any of the four categories satisfies the prong. 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,'' and therefore are not ``expenditures'' subject to regulation under the Act. See 2002 Coordination Final Rules at 426. Accordingly, each of the four content standards that comprise the ``content prong'' identifies a category of communications whose ``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).\3\ This content standard implements the statutory directive that disbursements for coordinated electioneering communications be treated as inkind contributions to, and expenditures by, the candidate or political party supported by the communication.
\3\ 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); 11 CFR 100.29.

The second content standard is satisfied by a public communication \4\ made at any time that disseminates, distributes, or republishes campaign materials prepared by a candidate, a candidate's authorized committee, or agents thereof. See 11 CFR 109.21(c)(2). This content standard implements Congress's mandate that the Commission's rules on coordinated communications address the ``republication of campaign materials.'' See Pub. L. 107155, sec. 214(c)(1) (2002). The Commission concluded that communications that disseminate, distribute, or republish campaign materials, no matter when such communications are made, can be reasonably construed only as for the purpose of influencing an election.
\4\ 11 CFR 100.26 defines a ``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 general public political advertising shall not include communications over the Internet, except for communications placed for a fee on another person's Web site.'' See Final Rules and Explanation and
Justification: Internet Communications, 71 FR 18589 (published April 12, 2006; effective May 12, 2006); see also 2 U.S.C. 431(22).

The third content standard is satisfied if a public communication made at any time expressly advocates \5\ the election or defeat of a clearly identified candidate for Federal office. See 11 CFR 109.21(c)(3). 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.
\5\ The term ``expressly advocating'' is defined in the Commission's regulations at 11 CFR 100.22.

The fourth content standard in the 2002 rule 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; \6\ 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) (2002).
\6\ The term ``election'' includes general elections, primary elections, runoff elections, caucuses or conventions, and special elections. See 11 CFR 100.2.

In incorporating the 120day time frame into the fourth content standard, the Commission sought to create a brightline rule that provided clear guidance for those seeking to produce and distribute public communications that do not republish campaign materials and do not contain express advocacy, communications that are already covered by the second and third content standards, respectively. 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.'' Id. (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 in part on the fact that, in BCRA, Congress defined ``Federal election activity'' (``FEA'') as, inter alia, voter registration activity ``during the period that begins on the date that is 120 days'' before a Federal election. The Commission concluded 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)). 1. Shays District Court Decision

The District Court held that the ``content prong'' of the Commission's coordinated communication regulations satisfied the first step of Chevron analysis, but did not satisfy the second
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step of Chevron review.\7\ Shays District at 6265. The District Court concluded that limiting the coordinated communication definition to communications that satisfy the content standards at 11 CFR 109.21(c)(1) through (4), ``undercuts FECA's statutory purposes and therefore these aspects of the regulations are entitled to no deference.'' Shays District at 65. 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. Id. at 6364. Therefore, the Commission's exclusion of communications under the 120day test failed the second step of Chevron review. Id. at 6465.
\7\ 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).

2. Shays Court of Appeals Decision

The Commission appealed the District Court's decision. In 2005, a threejudge panel of the Court of Appeals for the D.C. Circuit considered the Commission's appeal. See Shays Appeal at 97102. The Court of Appeals found that the Commission's regulations satisfied Chevron step one, and, contrary to the District Court's opinion, satisfied Chevron step two as well. Shays Appeal at 99100. The Court of Appeals concluded: ``Accordingly, we reject Shays's and Meehan's argument that FECA precludes contentbased standards under Chevron step one. And for the same reasons, we disagree 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.

In reaching its holding, the Court of Appeals found that Congress provided the Commission with an ``openended directive'' under which to promulgate coordination regulations. Shays Appeal at 9798. ``[I]n the BCRA provision most clearly on pointthe directive calling for new regulationsCongress studiously avoided prescribing any specific standard, save abrogation of the `collaboration or agreement' test. Given this `lack of guidance in the statute,' we cannot say that BCRA clearly forecloses the FEC's approach. Nor do we see clearly contrary intent, as do Shays and Meehan, in FECA's preexisting `expenditure' and `contribution' definitions.'' Id. at 99 (internal citation omitted).

The Court of Appeals noted that under the statute, a communication that is a coordinated expenditure ``shall be considered to be a contribution,'' and the Commission ``lacks discretion to exclude that communication from its coordinated communication rule.'' Id. at 99. ``Yet to qualify as [an] `expenditure' in the first place, spending must be undertaken `for the purpose of influencing' a federal election (or else involve `financing' for redistribution of campaign materials).'' Id. (emphasis added). The Court of Appeals emphasized that ``time, place, and content may be critical indicia of communicative purpose.'' Shays Appeal at 99. The Court of Appeals recognized, ``Insofar as such statements may relate to political or legislative goals independent from any electoral racegoals like influencing legislators' votes or increasing public awarenesswe cannot conclude that Congress unambiguously intended to count them as `expenditures' (and thus as `contributions' when coordinated). To the contrary, giving appropriate Chevron deference, we think the FEC could construe the expenditure definition's purposive language as leaving space for collaboration between politicians and outsiders on legislative and political issues involving only a weak nexus to any electoral campaign. Moreover, we can hardly fault the FEC's efforts to develop an `objective, brightline test [that] does not unduly compromise the Act's purposes,' considering that we approved just such a test for `contribution' in Orloski. 795 F.2d at 165.'' Id. Accordingly, the Court of Appeals concluded that the Commission's regulation satisfied Chevron steps one and two. Id. at 99100.

While finding the content prong was a permissible construction of Congressional intent, the Court of Appeals held that the content prong was inadequately explained under the Administrative Procedure Act. Id. at 100. The Court of Appeals stated, ``while we accept the FEC's premise that time, place, and content may illuminate communicative purpose and thus distinguish FECA `expenditures' from other communications, we detect no support in the record for the specific contentbased standard the Commission has promulgated.'' Id. at 102. In response to this finding by the Court of Appeals, the Commission opened the present rulemaking.
C. Notice of Proposed Rulemaking and Supplemental Notice of Proposed Rulemaking

The Commission published a Notice of Proposed Rulemaking (``NPRM'') on December 14, 2005, in which it sought comment on a number of alternatives for retaining or revising the content standard of the coordinated communication regulations and on several other issues involving the coordinated communication rules. See 70 FR 73946 (December 14, 2005). The comment period closed on January 13, 2006. The Commission received written comments from 28 commenters. The Commission held a public hearing on January 25 and 26, 2006, at which 18 witnesses testified. The comments and a transcript of the public hearing are available at http://www.fec.gov/law/law_rulemakings.shtml#coordinated. \8\
\8\ For purposes of this document, the terms ``comment'' and ``commenter'' apply to both written comments and oral testimony at the public hearing.

In the NPRM, the Commission specifically requested that commenters submit empirical data showing the time period before an election during which campaign communications generally occur. NPRM at 73949. None of the commenters provided empirical data in response to the Commission's request, either in written comments or at the public hearing. One joint comment did provide a compilation of selected advertisements run during recent election cycles.

Because no commenters provided empirical data in response to the Commission's request, the Commission licensed data from TNS Media Intelligence/CMAG (``CMAG'') regarding television advertising spots run by Presidential, Senate, and House of Representatives candidates during the 2004 election cycle. CMAG is a leading provider of political advertising tracking and provides media analysis services to a wide variety of clients, including national media organizations, foundations, academics, and Fortune 100 companies. See http://www.tnsmicmag.com. CMAG also provided data to the Brennan Center in conjunction with its 2000 study ``Buying Time,'' which was cited by BCRA's principal sponsors
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in support of BCRA's provisions. See, e.g., 148 Cong. Rec. S2141 (daily ed. March 20, 2002) (statement of Sen. McCain) (``According to the Brennan Center's `Buying Time 2000' study, less than one percent of the groupsponsored softmoney ads covered by this provision of the bill were genuine issue discussion, more than 99 percent of these ads were campaign ads. This degree of accuracy is more than sufficient to overcome any claim of substantial overbreadth.'').

The Commission produced graphical representations derived from the CMAG data and made these graphs and the underlying data available on its Web site. The Commission then published a Supplemental Notice of Proposed Rulemaking (``SNPRM'') in the Federal Register on March 15, 2006, that reopened the comment period for this rulemaking. 71 FR 13306 (March 15, 2006). The graphs and data are available at the Commission's Web site at http://www.fec.gov/pdf/nprm/coord_commun/suppNPRMmaterials.shtml. \9\ In the SNPRM, the Commission sought
additional comment, in light of the information presented by the data, on the issues and questions raised in the NPRM regarding the content prong time frame.
\9\ Available at http://www.fec.gov/pdf/nprm/coord_commun/suppNPRMmaterials.shtml are ten graphs covering Presidential
election data, four graphs covering Senate election data, and four graphs covering House election data, as well as an explanation of the methodology used for each graph. These graphs are titled, and referenced herein, as P1P10, S1S4, and H1H4, respectively. An additional chart regarding Presidential spending in individual ``battleground'' States, see note 21, below, is available at http://www.fec.gov/pdf/nprm/coord_commun/chart_20060407.pdf. This chart

is referenced herein as Chart P11.

The reopened comment period for the SNPRM closed on March 22, 2006. The Commission received written comments on the SNPRM from 12 commenters, which are also available at http://www.fec.gov/law/law_rulemakings.shtml#coordinated .
II. Revised Time Frames for Coordinated Communications (11 CFR 109.21(c)(4))
A. The Commission Has Determined To Retain the Content Prong With Revised Time Frames

The Shays Court of Appeals emphasized that retaining a time frame as part of the fourth content standard requires the Commission to undertake a factual inquiry to determine whether the temporal line it draws ``reasonably defines the period before an election when non express advocacy likely relates to purposes other than `influencing' a federal election.'' Shays Appeal at 10102. The Court presented three questions to guide the Commission's inquiry: (1) ``Do candidates in fact limit campaignrelated advocacy to the four months surrounding elections, or does substantial electionrelated communication occur outside that window?''; (2) ``Do congressional, senatorial, and presidential racesall covered by this ruleoccur on the same cycle, or should different rules apply to each?''; and (3) ``[T]o the extent electionrelated advocacy now occurs primarily within 120 days, would candidates and collaborators aiming to influence elections simply shift coordinated spending outside that period to avoid the challenged rules' restrictions?'' Id. at 102.

Based on its inquiry into the Court of Appeals' questions, the Commission has decided to retain the existing content prong, but revise the applicable time frames in the fourth content standard at 11 CFR 109.21(c)(4). The revision creates separate time frames for communications based on whether they refer to (1) Congressional candidates, (2) Presidential candidates, or (3) political parties. For those communications that refer to Senate and House of Representatives candidates in Congressional primary \10\ and general elections, the revised time frame begins 90 days before each candidate's election and ends on the date of that candidate's election. For communications that refer to Presidential candidates, the revised time frame covers, on a StatebyState basis, the period of time from 120 days before the date of a Presidential primary up to and including the date of the general election.\11\
\10\ The method of choosing nominees for election to Federal office, either by a primary or a preference election, a caucus, or a convention, differs from State to State. This document uses the term ``primary election'' to refer to any election that chooses a nominee for the general election. See also note 6, above.
\11\ Thus, if State A conducts its Presidential primary on February 1st of the Presidential election year, the time frame in State A for Presidential candidates would begin on approximately October 1st of the year preceding the Presidential election and would end on the date of the Presidential general election. Similarly, if State B held its Presidential primary on June 1st of the Presidential election year, the time frame in State B for Presidential candidates would begin on approximately February 1st of the Presidential election year and end on the date of the

Presidential general election.

For those communications that reference political parties and do not reference a clearly identified Federal candidate, when such communications occur in a nonPresidential election cycle, the revised time frame period begins 90 days before each election and ends on the date of that election; when such communications occur in a Presidential election cycle, the revised time period covers, on a StatebyState basis, the period of time from 120 days before the date of a primary through the general election. For communications that reference a political party and a clearly identified Federal candidate, the applicable time frame is either the Congressional or Presidential candidate time period, depending upon (1) whether the communication is coordinated with the political party committee or the candidate, (2) whether the upcoming general election is a Presidential or non Presidential election, and (3) whether the communication is aired in the referenced candidate's jurisdiction.
1. Senate and House Candidates Conduct Nearly All CampaignRelated Advocacy Within 60 Days of an Election

The data obtained by the Commission respond directly to the first question posed by the Court of Appeals: ``Do candidates in fact limit campaignrelated advocacy to the four months surrounding elections, or does substantial electionrelated communication occur outside that window?'' Shays Appeal at 102. This question is relevant to the Commission's inquiry because the purpose of the content standard is to provide a brightline delineation between those coordinated advertisements that are for the purpose of influencing an electionand therefore are ``expenditures'' regulated by the Actand those that are not. As the Shays Court of Appeals stated, ``Insofar as such statements may relate to political or legislative goals independent from any electoral racegoals like influencing legislators' votes or increasing public awarenesswe cannot conclude that Congress unambiguously intended to count them as ``expenditures'' (and thus as `contributions' when coordinated).'' Shays Appeal at 99 (``[T]o qualify as [an] `expenditure' in the first place, spending must be undertaken `for the purpose of influencing' a federal election.'').

Any time a candidate uses campaign funds to pay for an advertisement, it can be presumed that this advertisement is aired for the purpose of influencing the candidate's election. Additionally, candidates and their campaign staff are experienced and knowledgeable in matters of advertising strategy and are highly motivated to run advertisements at a time when they are likely to influence voters. Thus, data showing when candidates spend their own campaign funds on advertisements
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provide an empirical basis for predicting when advertising that has the purpose of influencing a Federal election occurs. Moreover, in the context of coordination, a candidate has an incentive to ask an outside group to pay for advertisements to be aired precisely during the time period when the candidate believes these advertisements would be effective. Advertisements run outside of the effective time frame are of little value to the candidate, and therefore do not present the potential for corruption or the appearance of corruption that BCRA and the Act intend to prevent.

Commenters agreed that a time frame is helpful in identifying communications that are made for the purpose of influencing an election. As one commenter noted: ``The Commission is reasonable in its belief that electioninfluencing communications are generally susceptible of temporal definition and limitation. The Commission should continue to determine where that temporal limitation is.'' Moreover, commenters generally agreed that proximity to an election factors into the value of the communication.

The data analyzed by the Commission show that nearly all Senate and House candidate advertising takes place within 60 days of an election. Senate candidates aired 91.60 percent and 94.73 percent of their advertisements within 60 days of the primary and general election, respectively.\12\ This represented 93.32 percent and 97.20 percent of the estimated costs of advertisements the Senate candidates ran before the primary and general elections, respectively.\13\ House candidates aired 88.16 percent and 98.09 percent of their advertisements within 60 days of the primary and general elections, respectively.\14\ This represented 92.68 percent and 98.75 percent of the estimated costs of the advertisements House candidates ran before the primary and general elections, respectively.\15\
\12\ See Graphs S1 and S3.
\13\ See Graphs S2 and S4.
\14\ See Graphs H1 and H3.

\15\ See Graphs H2 and H4.

The data show that a minimal amount of activity occurs between 60 and 90 days before an election, and that beyond 90 days, the amount of candidate advertising approaches zero. Senate candidates aired only 0.87 percent and 0.39 percent of their advertisements more than 90 days before their primary and general elections, respectively,\16\ which represented 0.66 percent and 0.15 percent of the total estimated costs of advertisements run by Senate candidates before the primary and general elections, respectively.\17\ Similarly, House candidates aired only 8.56 percent and 0.28 percent of their advertisements more than 90 days before their primary and general elections, respectively.\18\ This represented 3.79 percent and 0.13 percent of the total estimated costs of advertisements run by House candidates before the primary and general elections, respectively.\19\
\16\ See Graphs S1 and S3.
\17\ See Graphs S2 and S4.
\18\ See Graphs H1 and H3.

\19\ See Graphs H2 and H4.

The data are consistent with the comments received by the Commission. Commenters stated that a 60day time frame comports with the practical reality of when candidates run advertisements. Comments submitted by the Democratic National Committee, the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, the National Republican Senatorial Committee, and the National Republican Congressional Committee (``NRCC'') all stated that in their experience, coordinated activities occurred within 60 days of the 2004 elections. The NRCC further stated that both its coordinated and independent expenditures for the 2004 general election were all made within 60 days of that election.

A 60day time frame is also consistent with past Congressional, Supreme Court, and Commission findings. As one commenter stated, ``this time period [60 days] would be consistent with Congressional line drawing in the context of electoral and political speech in the BCRA itself.'' Comments submitted by the BCRA Congressional sponsors in 2002 stated, ``Title II of BCRA reflects congressional judgment that communications concerning federal elected officials during the 60 day period prior to a general election and the 30 day period prior to a primary is usually campaign related.'' In McConnell v. FEC, the Supreme Court upheld the 30 and 60day time frames for electioneering communications, concluding that Congress had adequately explained its decision to regulate the ``virtual torrent of televised election related ads during the periods immediately preceding federal elections' and that ``[t]he record amply justifies Congress' line drawing.'' McConnell v. FEC, 540 U.S. 93, 20708 (2003). As the FEC successfully argued in McConnell:
The timing requirement is also directly tied to Congress's objective of capturing advertisements that are likely to influence the outcome of federal elections. The record `overwhelmingly demonstrate[s] the appropriateness of BCRA's sixty and thirty day benchmarks,' and confirms with remarkable clarity the commonsense conclusion `that issue advertisements aimed at influencing federal elections are aired in the period right before an election. Supp. App. 725sa 728sa, 847sa848sa (KollarKotelly) (discussing evidence); see id. at 851sa (`The sixty and thirty day figures are not arbitrary numbers selected by Congress, but appropriate time periods tied to empirically verifiable data.')

Brief for the Federal Election Commission et al. at 94, McConnell v. FEC, 540 U.S. 93 (2003) (discussing the timing requirement under the definition of electioneering communication).

The record before Congress when passing BCRA and before the Supreme Court in McConnell included the Brennan Center's ``Buying Time'' study, which further supports the conclusion that the vast majority of election related advocacy occurs immediately before an election. The Brennan Center found that, ``[i]n the 2000 election, genuine issue ads are rather evenly distributed throughout the year, while group sponsored electioneering ads make a sudden and overwhelming appearance immediately before elections.'' Craig B. Holman and Luke P. McLoughlin, ``Buying Time 2000: Television Advertising in the 2000 Federal Elections,'' 56 (2002). Another study supported the 60day time frame and was entered into the Congressional Record by Senator Snowe. Jonathan Krasno and Kenneth Goldstein, ``The Facts About Television Advertising and the McCainFeingold Bill,'' 35(2) PS: Political Science and Politics 207 (2002); see also 147 Cong. Rec. S307001, S3074. This study found that in 1998 and 2000 ``the greatest deluge of issue ads began appearing after Labor Day.'' Id. at S3075.

The 60day time frame is also consistent with existing Commission regulations. As a commenter stated, ``Setting the time period at 60 days is also supported by the FEC's regulatory time periods for the depreciation of polling data in 11 CFR 106.4(g), under which the FEC has determined that on the 61st day after the polling event, the data is worth only 5% of its original value.''

Therefore, in response to the Court of Appeals' first question, the data analyzed and comments reviewed by the Commission establish that Senate and House candidates focus their campaign advocacy not during the last 120 days before an election, but during
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the last 60 days before an election. Moreover, beyond 90 days from an election, Senate and House candidate advertising nearly ceases. As suggested by the Court of Appeals' second question, however, the data on Presidential candidates show a different advertising pattern, and are discussed below.
2. Campaign Advertising in Presidential Races Occurs on a Different Cycle Than in Senate and House Races

The data and comments examined by the Commission respond directly to the second question posed by the Court of Appeals: ``Do congressional, senatorial, and presidential racesall covered by this ruleoccur on the same cycle, or should different rules apply to each?'' Shays Appeal at 102. The data show that advertising in the Presidential race does in fact occur on a different cycle than advertising in Senate and House races. Appreciable spending occurred outside of the 120day time frame with regard to the Presidential general election.\20\ Specifically, in the media markets contained within individual ``battleground'' States,\21\ the 120day time frame before the general election covered less than 75 percent of the estimated spending.\22\
\20\ See Graphs P2 and P4.
\21\ The Commission decided to limit the data appearing in these graphical representations to those States in which the 2004 Presidential race was the most highly contested. The States determined to be the 2004 ``battleground'' States are: Arizona, Arkansas, Colorado, Florida, Iowa, Louisiana, Maine, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Washington, West Virginia, and Wisconsin. A list of ``battleground'' States was determined from the following sources: Cook Political Report (http://www.cookpolitical.com/column/2004/021704.php ); ABC News/Washington
Post (http:// //">http://p://

Journal/Zogby International (http://online.wsj.com/public/resources/ documents/infobattleground04print.html).

\22\ See Graph P10.

Under the Commission's 2002 regulations, the general election coordinated communication window effectively extended further back than 120 days before the general election because the Presidential nominating conventions of the political parties are also elections for purposes of determining whether a communication satisfies the fourth content standard in former 11 CFR 109.21(c)(4). See 11 CFR 100.2(e). Accordingly, in 2004, the general election coordinated communication window overlapped with the coordinated communication windows before the Presidential nominating conventions and therefore the coordination regulations applied for the entire 184 days before the general election for Republican Presidential candidates and for 219 days before the general election for Democratic Presidential candidates.\23\ Even with this extended general election window, however, in several States there was still a time period between the primary elections and the start of the extended window during which public communications were not covered by the 120day time frame in the 2002 rules (``gap period''). Moreover, the length of the gap period was solely a function of the parties' selection of convention dates. To the extent advertising was continuous during the time period between the primary and general elections, the amount that was subject to the existing 120day rule depended on the dates the parties set for their conventions, rather than on the purposeful application of the rule.
\23\ The general election coordinated communication window began on July 5, 2004, for all candidates. The Republican National Convention was held on August 30September 2, 2004, and the coordinated communication window for that convention began on May 2, 2004, which was 184 days before the general election. The Democratic National Convention was held on July 2729, 2004, and the
coordinated communication window for that convention began on March 28, 2004, which was 219 days before the general election.

The Commission received several comments addressing the issue of communications made during the Presidential gap periods. Some commenters were in favor of regulating communications run during this gap period, noting that postprimary communications are
``overwhelmingly likely to be for the purpose of influencing the candidate's election.'' One joint commenter submitted voluminous appendices and argued that a significant amount of campaign advertising occurs during this gap period.\24\ As another commenter argued, ``a period starting 120 days prior to a primary and running all the way to the general election would be appropriate to capture ads that are most likely to influence an election.'' In contrast, other commenters argued against extending the regulation into this gap period, asserting that campaigns do not advertise significantly during this time, and therefore, according to some, regulation would unnecessarily infringe on constitutionally protected speech. A commenter representing a political party committee argued that political party committees would already be covered by Federal reporting and spending limitations and that covering this gap period is therefore unnecessary.
\24\ Some of the advertisements presented by the commenter were run during the preconvention window, and therefore, were covered by the Commission's existing coordination regulations.

The CMAG data show that, in 2004, Presidential candidates spent appreciable amounts on advertisements run during the gap period between the State primaries and the beginning of the 184day Republican and the 219day Democratic extended general election windows, respectively. Specifically, in media markets contained fully within individual ``battleground'' States, the Republican Presidential candidate spent a total of $9,475,679 on television advertisements run during the gap period, which amounted to 14 percent of the total costs of media spots aired by the Republican Presidential candidate in those media markets after the State primaries.\25\ In some of these media markets, the percentage was significantly higher.\26\ For example, in the Seattle, WA, media market, 38 percent of the postprimary Republican spending occurred during the gap period, and, in the Madison and Milwaukee, WI, media markets, 20 percent of the postprimary Republican spending occurred during the gap period.\27\ Democratic Presidential candidates spent $1,221,045 on postprimary television advertisements that occurred during the gap period.\28\ Thus, nearly $10.7 million was spent by Presidential candidates on television advertisements during the gap periods.\29\
\25\ See Chart P11.
\26\ See Chart P11.
\27\ See Chart P11.
\28\ See CMAG Data.

\29\ See Chart P11 and CMAG Data.

In response to the Court of Appeals' second question, the data and comments confirm that campaign advertising in Presidential races does in fact take place on a different cycle than Senate and House races. Rather than the 60day cycle in Senate and House races, the data and comments confirm that nearly all Presidential advertisement spending took place during the time period from 120 days before the primary elections up through the date of the general election. According to the data, in the 2004 election cycle, over 99 percent of the estimated media spot spending by Presidential candidates in media markets fully contained within individual ``battleground'' States occurred during this time period.\30\ This time period is now fully covered by the Commission's revised content standard at 11 CFR 109.21(c)(4). \30\ See Graphs P8 and P10.
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3. The Minimal Value of Advertising Outside of the Revised Time Frames Limits the Risk of Corruption From Candidates and Collaborators Shifting Coordinated Spending to Outside the Time Frames

The data and comments reviewed by the Commission also respond to the third question posed by the Court of Appeals: ``[T]o the extent electionrelated advocacy now occurs primarily within 120 days, would candidates and collaborators aiming to influence elections simply shift coordinated spending outside that period to avoid the challenged rules' restrictions?'' Shays Appeal at 102. As discussed above, candidates have little incentive to ask outside groups to pay for advertisements aired outside of periods where the candidates' own spending indicates they would be effective. Therefore, outside of those time periods where candidate advertising occurs, there is little risk that coordinated activity presents the risk or appearance of corruption.

As discussed above, the data and comments analyzed in response to the Court of Appeals' first question overwhelmingly support a 60day time frame for Congressional candidate communications. However, in order to foreclose the possibility that candidates and groups will shift spending outside the applicable time frame, the Commission has determined to set the Congressional time frame at 90 days. Congressional candidates aired a minimal percentage of their advertisements more than 60 days before an election, and beyond 90 days aired virtually no advertisements.\31\ Candidates have little or no incentive to shift spending beyond 90 days. The limited value of advertising beyond 90 days is reflected in the data, with Senate candidates spending less than a quarter of one percent of their television advertising budgets on spots that aired between 90 and 120 days before either a primary or a general election.\32\ Similarly, House candidates spent less than three percent of their television advertising budgets on spots that aired between 90 and 120 days before a primary election \33\ and less than a quarter of one percent of their television advertising budgets on spots that aired between 90 and 120 days before a general election.\34\
\31\ See Graphs S1, S3 and H1, H3.
\32\ See Graphs S2 and S4.
\33\ See Graph H2.

\34\ See Graph H4.

For Presidential candidates, while the data show that the existing 120day time frames captured a majority of Presidential spending, some appreciable spending occurred in the gap period not covered by the current 120day rule.\35\ Accordingly, the Commission has determined to close the gap period and extend the applicable time frame from 120 days before the primary election in a State continuously through the day of the general election in that State. This revised time frame would have covered more than 99 percent of Presidential advertising spending in 2004.\36\
\35\ See Chart P11.
\36\ This figure represents Presidential spending in media markets fully contained within individual ``battleground'' States. See Graphs P8 and P10.

One group of commenters, including plaintiffs in the Shays litigation, argued that the 120day time frame was underinclusive and should be supplemented with a complex, multifactored approach that would use a different test, based not on time but instead on the identity of the entity paying for any communication made outside of the 120day time period. The commenters proposed the Commission adopt the following regulation:
(4) A public communication, as defined in 11 CFR 100.26, made by a political committee, which is an expenditure directed to voters in the jurisdiction of the candidate with whom the communication is coordinated, or if coordinated with a political party, is an expenditure directed to voters in a jurisdiction in which one or more candidates of the political party appear on the ballot. (5) A public communication, as defined in 11 CFR 100.26, made by an organization described in section 527 of the Internal Revenue Code and not registered as a political committee, which:
(i)(A) Is distributed or disseminated during the period beginning 30 days prior to the primary election or 60 days prior to the general election of the federal candidate with whom the communication is coordinated, or, if coordinated with a political party, during the period beginning 30 days prior to the primary election or 60 days prior to the general election in which one or more candidates of the political party appear on the ballot, and (B) is directed to voters in the jurisdiction of that candidate or to voters in a jurisdiction in which one or more candidates of the political party appear on the ballot, regardless of whether the communication refers to a clearly identified candidate for federal office, or party; or
(ii)(A) Is distributed or disseminated during the period beginning 120 days prior to the primary election and ending on the day of the general election, (B) refers to a clearly identified candidate for federal office or to a political party, and (C) is 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; or
(iii)(A) Is distributed or disseminated more than 120 days prior to the primary election, (B) promotes, attacks, supports or opposes a clearly identified candidate for federal office, or if the ad is coordinated with a political party, promotes, attacks, supports or opposes the party or its candidates, and (C) is 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.
(6) A public communication, as defined in 11 CFR 100.26, made by any person other than a political committee or other organization described in section 527 of the Internal Revenue Code which: (i)(A) Is distributed or disseminated during the period beginning 30 days prior to the primary election or 60 days prior to the general election of the federal candidate with whom the communication is coordinated, or, if coordinated with a political party, during the period beginning 30 days prior to the primary election or 60 days prior to the general election in which one or more candidates of the political party appear on the ballot, and (B) is directed to voters in that candidate's jurisdiction, regardless of whether the communication refers to a clearly identified candidate for federal office, or party; or
(ii)(A) Is distributed or disseminated during the period beginning 120 days prior to the primary election and ending on the day of the general election, (B) refers to a clearly identified candidate for federal office or to a political party, and (C) is 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; or
(iii)(A) Is distributed or disseminated more than 120 days prior to the primary election, (B) refers to the character or the qualifications or fitness for office of a clearly identified candidate for federal office, or if the ad is coordinated with a political party, refers to the character or the qualifications or fitness for office of the party generically or of candidates of that party, and (C) is 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.

The Commission believes the record does not support the time frames in the commenters' proposed regulation, nor the disparate regulatory schemes for various entities. Moreover, the Commission agrees with other witnesses at the hearing that if the Commission were to adopt the proposed regulation, its complexity would likely place an extreme burden upon the regulated community. The commenters also submitted summaries of advertisements from recent election cycles that, according to the commenters, were run more than 120 days before the primary or general election they were intended to influence. However, at the hearing, these commenters acknowledged that there was no evidence that any of these advertisements had been coordinated with a candidate or a political party
[[Page 33197]]
committee. The lack of evidence that these advertisements were coordinated with candidates comports with the conclusion drawn from the CMAG data and comments; specifically, that candidates perceive little value in airing advertisements beyond 90 days from an election, and have little incentive to seek such advertising in exchange for political favoritism.

4. Communications That Refer to Political Parties

As set forth in new 11 CFR 109.21(c)(4)(iii) and (iv), communications that refer to political parties are now subject to different time periods depending upon: (1) Whether the communication is coordinated with a candidate or political party committee; (2) whether the upcoming general election is a midterm or Presidential election; and (3) if the communication also refers to a clearly identified Federal candidate, whether it is run in the clearly identified candidate's jurisdiction.

When communications are paid for by outside groups, refer to a political party, are coordinated with a candidate, and are publicly distributed or otherwise disseminated in that candidate's jurisdiction, they can generally be presumed to be for the purpose of influencing that candidate's election whether or not they also refer to the candidate with whom they are coordinated. Accordingly, it is appropriate to use the time frame established for communications that refer to a House or Senate candidate (90 days before a primary, special, or general election) where the communications refer only to a political party and not to a clearly identified Federal candidate, but are coordinated with a House or Senate candidate and distributed in that candidate's jurisdiction, even if such communications are distributed during a Presidential election cycle. See 11 CFR 109.21(c)(4)(iii)(A). Similarly, if a communication were coordinated with a Presidential candidate, it would be appropriate to use the same 120day time period established for communications referring to Presidential candidates. See 11 CFR 109.21(c)(4)(iii)(A).

A communication that refers to a political party without referring to a clearly identified Federal candidate, otherwise satisfies the content prong, is paid for by an outside group, and is coordinated with a political party, can generally be presumed to be for the purpose of influencing the elections of all of the party's candidates within that jurisdiction during the relevant time period before an election. During a midterm election cycle (in which only House and Senate candidates are on the ballot), new 11 CFR 109.21(c)(4)(iii)(B) provides that communications referring to political parties are subject to the same 90day time period as communications referring to House and Senate candidates. Likewise, the new rules provide that during a Presidential election cycle, communications referring to political parties are presumed to be for the purpose of influencing the elections of all of the party's candidates, including the party's Presidential candidate. Accordingly, such communications are subject to the same 120day time period as communications referring to Presidential candidates. See new 11 CFR 109.21(c)(4)(iii)(C).

If the communication refers to both a political party and a clearly identified Federal candidate, the communication is subject to the time frame applicable to that clearly identified candidate under 11 CFR 109.21(c)(4)(i) or (ii) when the communication is coordinated with either a candidate or a political party and is distributed or disseminated within the clearly identified candidate's jurisdiction. See 11 CFR 109.21(c)(4)(iv)(A) and (B). Such communication is subject to the applicable time frames for party references when coordinated with a political party and distributed and disseminated outside the candidate's jurisdiction. See 11 CFR 109.21(c)(4)(iv)(C). Any such communication coordinated with a candidate, but distributed outside that candidate's jurisdiction, would not constitute a coordinated communication.

5. Other Considerations

In the Commission's judgment, the foregoing time frames encompass the periods in which effective political party, Congressional, and Presidential electionrelated advertising occurs, and therefore political parties, candidates, and collaborators will have little incentive to shift spending outside of these time frames. None of the commenters submitted any evidence that, during the recent election cycles during which the Commission's 2002 coordination rules were in effect, House or Senate candidates asked outside groups to run advertisements more than 90 days before House or Senate primary or general elections. Since the 2002 rule took effect, the Commission has received very few complaints alleging that House or Senate candidates or their agents coordinated with outside groups to produce or distribute communications that ran between 90 and 120 days before a House or Senate primary or general election. Moreover, commenters did not submit any evidence that during the recent election cycles in which the Commission's 2002 coordination rules were in effect, Presidential candidates or their agents asked outside groups to run advertisements more than 120 days before Presidential primaries or the general election.

Retaining a longer time frame that is not supported by the record could potentially subject political speech protected under the First Amendment to Commission investigation. Subjecting activity to investigation that the evidence shows is unlikely to be for the purpose of influencing Federal elections could chill legitimate lobbying and legislative activity. As the Supreme Court has emphasized, where First Amendment rights are affected, ``[p]recision of regulation must be the touchstone,'' Edenfield v. Fane, 507 U.S. 761, 777 (1993).

The Court of Appeals emphasized that it ``can hardly fault the [Commission's] effort to develop an objective, brightline test.'' Shays Appeal at 99. As the D.C. Circuit noted in an analogous context, ``a subjective test based on a totality of the circumstances * * * would inevitably curtail permissible conduct.'' Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986). In Orloski, the D.C. Circuit further warned that:
[A] subjective test would also unduly burden the FEC with requests for advisory opinions * * * and with complaints by disgruntled opponents who could take advantage of a totality of the
circumstances test to harass the sponsoring candidate and his supporters. It would further burden the agency by forcing it to direct its limited resources toward conducting a fullscale, detailed inquiry into almost every complaint, even those involving the most mundane allegations.

Id. at 165.

Considering the political, expressive, and associational rights at stake, the Commission has determined not to extend the time frame beyond that period supported by the record.

B. Revised 11 CFR 109.21(c)(4)

The Commission continues to believe that an objective, brightline coordination test provides the clearest guidance to candidates, political party committees, and outside organizations. Moreover, as discussed above, the CMAG data show that in the 2004 election cycle, nearly all television advertisements paid for by candidates were aired within certain time frames before an election. These data, therefore, provide empirical support for the
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Commission's decision to use time frames as part of a brightline test for determining whether a communication is made for the purpose of influencing Federal elections.

Accordingly, as set forth in new 11 CFR 109.21(c)(4)(i), public communications that refer to a Senate or House of Representatives candidate are subject to two 90day time periods. One time period runs from 90 days before any primary in which the Congressional candidate is on the ballot through the date of the primary. Then, another time period starts 90 days before any general election in which the candidate is on the ballot and runs through the date of the general election. In some States, these periods will overlap if a primary election is held fewer than 90 days before a general election.

Under new 11 CFR 109.21(c)(4)(ii), communications that refer to a candidate for President or Vice President are subject to a single time period that begins 120 days before a State's primary election up to and including the date of the general election.

Under new 11 CFR 109.21(c)(4)(iii), communications that refer to a political party but not to a clearly identified Federal candidate are subject to different time periods under different circumstances. For those communications that are coordinated with a candidate and reference a political party, but do not reference a clearly identified Federal candidate, the time frame that would be applicable if that candidate were clearly identified in the communication under 11 CFR 109.21(c)(4)(i) or (ii) applies when the communication is distributed or disseminated within that candidate's jurisdiction. See 11 CFR 109.21(c)(4)(iii)(A). For communications coordinated with a political party committee and distributed during the twoyear election cycle ending in a nonPresidential general election, one time period runs from 90 days before any primary in which a candidate of that party is on the ballot through the date of the primary. See 11 CFR
109.21(c)(4)(iii)(B). Then, another time period begins 90 days before any general election in which a candidate of that party is on the ballot and runs through the date of the general election. In some States, these periods will overlap if a primary election is held fewer than 90 days before a general election. For communications coordinated with a political party committee and distributed during the twoyear election cycle ending in a Presidential general election, a single time period begins 120 days before a candidate of that party's primary election in a State up to and including the date of the general election. See 11 CFR 109.21(c)(4)(iii)(C).

Under new 11 CFR 109.21(c)(4)(iv), communications that refer to both a political party and a clearly identified candidate are subject to the time frame applicable to that clearly identified candidate under 11 CFR 109.21(c)(4)(i) or (ii) when the communication is distributed or disseminated within the clearly identified candidate's jurisdiction. See 11 CFR 109.21(c)(4)(iv)(A) and (B). However, communications that refer to both a political party and a clearly identified candidate, are coordinated with a political party committee, and are distributed outside the clearly identified candidate's jurisdiction are subject to the time period that would apply to communications that refer only to a political party. See 11 CFR 109.21(c)(4)(iv)(C).

C. Clarification of Time Frame Requirement

The Commission is also taking this opportunity to clarify that a public communication satisfies the content standards in 11 CFR 109.21(c)(4)(i) and (ii) with respect to a candidate for Federal office only if the public communication is publicly distributed or otherwise publicly disseminated during the relevant time periods before an election in which that candidate or another candidate seeking election to the same office is on the ballot.

This clarification addresses the situation presented in Advisory Opinion 200401 (BushCheney/Kerr). This advisory opinion concerned President Bush's appearance in a television advertisement paid for by a Congressional candidate in which 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 a 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)). Thus, in determining whether the Congressional candidate's payment for the communication would be an inkind contribution to President Bush, the Commission looked at whether the communication was aired within 120 days before President Bush's election rather than whether it was aired within the time period applicable to the paying Congressional candidate.

In the NPRM, the Commission sought comment on whether it should clarify its coordinated communication rules to incorporate the approach taken in Advisory Opinion 200401 and to make clear that a public communication satisfies the content prong with respect to a Federal candidate only if it is distributed within the applicable time period before that candidate's election. For example, a Senator whose reelection is not until 2008 appears in an advertisement with a 2006 candidate for the House of Representatives. The advertisement is aired within 90 days of the House candidate's election, is paid for by the House candidate's campaign committee, and is disseminated in the State where the Senator will seek reelection in 2008. The proposed clarification of the rule would explain that the advertisement would not be an inkind contribution to the Senator because the advertisement was not aired within 90 days of the Senator's 2008 election. Two commenters supported the proposed clarification and no commenters opposed it. Accordingly, the Commission is revising 11 CFR 109.21(c)(4)(i) and (ii) to make clear that the public communication at issue must be publicly distributed or otherwise publicly disseminated in the clearly identified candidate's jurisdiction before the clearly identified candidate's election in that jurisdiction. Read in conjunction with the ``payment prong'' at 11 CFR 109.21(a), which requires that the communication be paid for by someone other than the candidate at issue, this revision codifies the Commission's decision in Advisory Opinion 200401. See also Advisory Opinion 200518 (Reyes) (Concurring opinion of Commissioners Thomas, Toner, Mason, McDonald, and Weintraub).

The Commission notes that 11 CFR 109.21(c)(4)(i) and (ii) also cover advertisements coordinated with a candidate and disseminated w

FOR FURTHER INFORMATION CONTACT

Mr. Brad C. Deutsch, Assistant General Counsel, Mr. Ron B. Katwan, Ms. Margaret G. Perl, or Ms. Esa L. Sferra, Attorneys, 999 E Street, NW., Washington, DC 20463, (202) 6941650 or (800) 4249530.

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