Federal Register: October 21, 2009 (Volume 74, Number 202)
DOCID: fr21oc09-8 FR Doc E9-25240
FEDERAL ELECTION COMMISSION
Federal Election Commission
CFR Citation: 11 CFR Parts 100 and 109
NOTICE: PROPOSED RULES
DOCID: fr21oc09-8
DOCUMENT ACTION: Notice of Proposed Rulemaking.
SUBJECT CATEGORY:
Coordinated Communications
DATES: Comments must be received on or before January 19, 2010. The Commission will hold a hearing on these proposed rules and will announce the date of the hearing at a later date. 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 seeks comments on proposed changes to its rules regarding coordinated communications under the Federal Election Campaign Act of 1971, as amended. These proposed changes are in response to the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Shays v. FEC. The Commission has made no final decision 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\1\ (``BCRA'') contained extensive and detailed amendments to the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. (``the Act''). The Commission promulgated a number of rules to implement BCRA, including rules defining ``coordinated communications'' at 11 CFR 109.21. The Court of Appeals for the District of Columbia Circuit found aspects of these rules invalid in Shays v. FEC, 528 F.3d 914 (DC Cir. 2008) (``Shays III Appeal'').
\1\ Public Law 107155, 116 Stat. 81 (2002).
In response to the Shays III Appeal decision, the Commission seeks
comment on possible changes to the ``coordinated communication''
regulations at 109.21, which govern communications made in coordination
with Federal candidates, their authorized committees, or political
party committees, but paid for by persons other than the candidate, the
authorized committee, or the political party committee with whom the
communication is coordinated. The Commission's rules at 11 CFR 109.37
regulate communications made in coordination with Federal candidates or
their authorized committee, but paid for by a political party committee with which the coordination occurred (``party coordinated
communication'' regulations). The party coordinated communication
regulations (11 CFR 109.37) mirror, to a large extent, the coordinated
communications regulations.\2\ The Commission is not proposing to
revise the party coordinated communication rules in this rulemaking
because they were not addressed by the Shays III Appeal decision, but
invites comment on whether it should issue a notice of proposed rulemaking on this subject.
\2\ When the Commission revised its coordinated communications
rules in 2002 pursuant to the statutory mandate in BCRA, the
Commission also adopted substantially parallel party coordinated
communication rules to address coordinated communications that were
paid for by political party committees in order ``to give clear guidance to those affected by BCRA.'' See Explanation and
Justification for Final Rules on Coordinated and Independent
Expenditures, 68 FR 421 (Jan. 3, 2003). When the Commission revised
its coordinated communications rules in 2006, the Commission gave
consideration as to whether its party coordinated communication
rules at 11 CFR 109.37 should continue to mirror the coordinated communication rules at 11 CFR 109.21.
I. Background Information
The Act and Commission regulations limit the amount a person may contribute to a candidate and that candidate's authorized political committee with respect to any election for Federal office, and also limit the amount a person may contribute to other political committees in a given calendar year. See 2 U.S.C. 441a(a)(1); 11 CFR 110.1(b)(1), (c)(1), (d); see also 2 U.S.C. 441b; 11 CFR 114.2 (prohibitions on corporate contributions). A ``contribution'' may take the form of money or ``anything of value,'' including an inkind contribution, provided to a candidate or political committee for the purpose of influencing a Federal election. See 2 U.S.C. 431(8)(A)(i), (9)(A)(i); 11 CFR 100.52(a), (d)(1), 100.111(a), (e)(1). An expenditure made in coordination with a candidate, or with a candidate's authorized political committee, constitutes an inkind contribution to that candidate subject to contribution limits and prohibitions and must, subject to certain exceptions, be reported as an expenditure by that candidate. See 2 U.S.C. 441a(a)(7); 11 CFR 109.20, 109.21(b).
The national committees and State committees of political parties may also make ``coordinated party expenditures'' in connection with the general election campaigns of Federal candidates, within certain limits. 2 U.S.C. 441a(d); 11 CFR 109.32(a), (b). Coordinated party expenditures are in addition to any contributions by the political party committees to candidates within the contribution limits of 11 CFR 110.1 and 110.2. 2 U.S.C. 441a(d); 11 CFR 109.32(a)(3), (b)(4). [[Page 53894]]
A. Before BCRA
The Supreme Court first examined independent expenditures and
coordination or cooperation between candidates and other persons in
Buckley v. Valeo, 424 U.S. 1, 58 (1976), though coordination was not
explicitly addressed in the Act at that time. See Public Law 93443, 88
Stat. 1263 (1974); Public Law 92225, 86 Stat. 3 (1972) (codified as
amended at 2 U.S.C. 431 et seq.). In Buckley, the Court distinguished
expenditures that were not truly independentthat is, expenditures
made in coordination with a candidate or the candidate's authorized committeefrom constitutionally protected ``independent
expenditures.'' Buckley, 424 U.S. at 7882. The Court noted that a
third party's ``prearrangement and coordination of an expenditure with
the candidate or his agent'' presents a ``danger that expenditures will
be given as a quid pro quo for improper commitments from the
candidate.'' Id. at 47. The Court further noted that the Act's
contribution limits must not be circumvented through ``prearranged or
coordinated expenditures amounting to disguised contributions.'' Id.
The Court concluded that a ``contribution'' includes ``all expenditures
placed in cooperation with or with the consent of a candidate, his
agents, or an authorized committee of the candidate.'' Id. at 78; see also id. at 47 n.53.
After Buckley, Congress amended the Act to define an ``independent expenditure'' as excluding an expenditure made in ``cooperation or consultation with'' or ``in concert with, or at the request or suggestion of'' a candidate or the candidate's authorized committee or agent. Public Law 94283 (1976) (now codified at 2 U.S.C. 431(17)). Congress also amended the Act to provide that an expenditure ``shall be considered to be a contribution'' when it is made by any person ``in cooperation, consultation, or concert, with, or at the request or suggestion of'' a candidate, a candidate's authorized committees, or their agents. Public Law 94283 (1976) (codified at 2 U.S.C. 441a(a)(7)(B)(i) (1976)). The Act treats expenditures made for the dissemination, distribution, or republication of campaign materials prepared by a candidate, a candidate's authorized committees, or their agents as contributions. See Public Law 94283 (1976) (now codified at 2 U.S.C. 441a(a)(7)(B)(iii)). Although Congress made some adjustments to the Act in the decades following Buckley, as discussed below, the coordination provisions remained substantively unchanged until BCRA.
Prior to the enactment of BCRA, the Commission adopted new
coordination regulations in response to several court decisions.\3\ See
11 CFR 100.23 (2001); Explanation and Justification for Final Rules on
General Public Political Communications Coordinated with Candidates and
Party Committees; Independent Expenditures, 65 FR 76138 (Dec. 6, 2000).
Drawing on judicial guidance in Christian Coalition, the Commission
defined a new term, ``coordinated general public political
communication'' (``GPPC''), to determine whether expenditures for
communications by unauthorized committees, advocacy groups, and
individuals qualified as independent expenditures or were coordinated
with candidates or party committees. A GPPC that ``included'' a clearly
identified candidate was coordinated if a third party paid for it and
if it was created, produced, or distributed (1) at the candidate's or
party committee's request or suggestion; (2) after the candidate or
party committee exercised control or decisionmaking authority over
certain factors; or (3) after ``substantial discussion or negotiation''
with the candidate or party committee regarding certain factors. 11 CFR
100.23(b), (c) (2001). The regulations explained that ``substantial
discussion or negotiation may be evidenced by one or more meetings,
conversations or conferences regarding the value or importance of the
communication for a particular election.'' 11 CFR 100.23(c)(2)(iii) (2001).
\3\ See Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S.
604 (1996) (concluding that political parties may make independent
expenditures on behalf of their Federal candidates); FEC v. Christian Coalition, 52 F. Supp. 2d 45, 92 (D.D.C. 1999)
(``Christian Coalition'') (concluding that an ``expressive
expenditure'' only becomes ``coordinated'' when the candidate
requests or suggests the expenditure or when a candidate can
exercise control over or when there has been substantial discussion
or negotiation between the candidate and the spender over a
communication's: (1) Content; (2) timing; (3) location, mode, or
intended audience (e.g., choice between newspaper or radio
advertisement); or (4) ``volume'' (e.g., number of copies of printed materials or frequency of media spots)).
B. Impact of BCRA
In 2002, Congress revised the coordination provisions in the Act.
See BCRA at secs. 202, 214, 116 Stat. at 9091, 9495. BCRA retained
the statutory provision that an expenditure is a contribution to a
candidate when it is made by any person ``in cooperation, consultation,
or concert, with, or at the request or suggestion of'' that candidate,
the candidate's authorized committee, or their agents. See 2 U.S.C.
441a(a)(7)(B)(i). BCRA added a similar provision governing coordination
with political party committees: Expenditures made by any person, other
than a candidate or the candidate's authorized committee, ``in
cooperation, consultation, or concert, with, or at the request or
suggestion of'' a national, State, or local party committee, are contributions to that political party committee. 2 U.S.C.
441a(a)(7)(B)(ii). BCRA also amended the Act to specify that a
coordinated electioneering communication shall be a contribution to,
and expenditure by, the candidate supported by that communication or that candidate's party. See 2 U.S.C. 441a(a)(7)(C).
BCRA expressly repealed the GPPC regulation at 11 CFR 100.23 and
directed the Commission to promulgate new regulations on ``coordinated
communications'' in their place. See BCRA at sec. 214, 116 Stat. at 94
95. Although Congress did not define the term ``coordinated
communications'' in BCRA, the statute specified that the Commission's
new regulations ``shall not require agreement or formal collaboration
to establish coordination.'' \4\ BCRA at sec. 214(c), 116 Stat. at 95.
BCRA also required that, ``[i]n addition to any subject determined by
the Commission, the regulations shall address (1) payments for the
republication of campaign materials; (2) payments for the use of a
common vendor; (3) payments for communications directed or made by
persons who previously served as an employee of a candidate or a
political party; and (4) payments for communications made by a person
after substantial discussion about the communication with a candidate
or a political party.'' BCRA at sec. 214(c), 116 Stat. at 95; 2 U.S.C. 441a(7)(B)(ii) note.
\4\ The Court of Appeals for the District of Columbia has noted
that ``[a]part 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. Federal FEC, 414 F.3d 76, 9798 (DC Cir. 2005).
As detailed below, the Commission promulgated revised coordinated
communications regulations in 2002 as required by BCRA. Several aspects
of those revised regulations were successfully challenged in Shays v.
FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) (``Shays I District''), aff'd,
Shays v. FEC, 414 F.3d 76 (DC Cir. 2005) (``Shays I Appeal''), petition
for reh'g en banc denied, No. 045352 (DC Cir. Oct. 21, 2005). In 2006,
the Commission further revised its coordination regulations in [[Page 53895]]
response to Shays I Appeal. These revised rules were themselves
challenged in Shays v. FEC, 508 F. Supp. 2d 10 (D.D.C. 2007) (``Shays
III District''), aff'd, Shays v. FEC, 528 F.3d 914 (DC Cir. 2008)
(``Shays III Appeal'').\5\ The Commission is issuing this Notice of
Proposed Rulemaking (``NPRM'') in response to Shays III Appeal.
\5\ A third case filed by the same Plaintiff, referred to as
``Shays II,'' addressed the Commission's approach to regulating so
called ``527'' organizations and is not relevant to the coordination
rules at issue in this NPRM. See Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007).
C. 2002 Rulemaking
On December 17, 2002, the Commission promulgated regulations as
required by BCRA. See 11 CFR 109.21 (2003); see also Explanation and
Justification for Final Rules on Coordinated and Independent
Expenditures, 68 FR 421 (Jan. 3, 2003) (``2002 E&J''). 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) (2003). Second, the communication
must satisfy one of four content standards (the ``content prong''). See
11 CFR 109.21(a)(2), (c) (2003). Third, the communication must satisfy
one of five conduct standards (the ``conduct prong'').\6\ See 11 CFR
109.21(a)(3), (d) (2003). A communication must satisfy all three prongs to be a ``coordinated communication.''
\6\ A sixth conduct standard clarifies the application of the
other five to the dissemination, distribution, or republication of campaign materials. See 11 CFR 109.21(d)(6) (2003).
1. Content Standards
As stated in the 2002 E&J, each of the four standards that comprise
the content prong of the 2002 coordinated communication regulation
identified a category of communications whose ``subject matter is
reasonably related to an election.'' 2002 E&J, 68 FR at 427. The first
content standard is satisfied if the communication is an electioneering
communication. See 11 CFR 109.21(c)(1) (2003). The second content
standard is satisfied by a public communication 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) (2003), 109.37(a)(2)(i) (2003). 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) (2003),
109.37(a)(2)(ii) (2003). The fourth content standard is satisfied if a
public communication (1) refers to a political party or a clearly
identified Federal candidate; \7\ (2) is publicly distributed or
publicly disseminated 120 days or fewer before an election (the ``120
Day Time Window''); 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) (2003).
\7\ The party coordinated communications content prong contains
a similar standard, except that element (1) includes only references
to clearly identified Federal candidates. 11 CFR 109.37(a)(2)(iii) (2003).
2. Conduct Standards
The 2002 coordinated communication regulations also contained five
conduct standards.\8\ A communication created, produced, or distributed
(1) at the request or suggestion of, (2) after material involvement by,
or (3) after substantial discussion with, a candidate, a candidate's
authorized committee, or a political party committee, would satisfy the
first three conduct standards. See 11 CFR 109.21(d)(1)(3) (2003).
These three conduct standards were not at issue in Shays III Appeal, and are not addressed in this rulemaking.
\8\ The party coordinated communications rule incorporated the
same conduct standards by reference to 11 CFR 109.21(d)(1) through (d)(6). See 11 CFR 109.37(a)(3) (2003).
The remaining two conduct standards, which are at issue in this rulemaking, are the (1) ``common vendor'' and (2) ``former employee'' standards. 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 provided certain specified services to the political party committee or the clearly identified candidate referred to in the communication within the current election cycle, and (3) the commercial vendor uses or conveys information to the person paying for the communication about the plans, projects, activities, or needs of the candidate or political party committee, or information used by the commercial vendor in serving the candidate or political party committee, and that information is material to the creation, production, or distribution of the communication. See 11 CFR 109.21(d)(4) (2003).
The former employee conduct standard is satisfied if (1) the communication is paid for by a person, or by the employer of a person, who was an employee or independent contractor of the candidate or the political party committee clearly identified in the communication within the current election cycle, and (2) the former employee or independent contractor uses or conveys information to the person paying for the communication about the plans, projects, activities, or needs of the candidate or political party committee, or information used by the former employee or independent contractor in serving the candidate or political party committee, and that information is material to the creation, distribution, or production of the communication. See 11 CFR 109.21(d)(5) (2003).
These two conduct standards covered former employees, independent
contractors, and vendors \9\ only if they had provided services to a
candidate or party committee during the ``current election cycle,'' as
defined in 11 CFR 100.3. 2002 E&J, 68 FR at 436; 11 CFR 109.21(d)(4), (5) (2003).
\9\ See 11 CFR 109.21(d)(4)(ii) for the specific services that a
vendor must provide in order to trigger the common vendor standard. D. Shays I Appeal
The Court of Appeals in Shays I Appeal found that the content prong regulations did not run counter to the unambiguously expressed intent of Congress. Shays I Appeal, 414 F.3d at 99100 (applying Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). Nonetheless, the court found the 120Day Time Window in the fourth standard of the content prong of the coordinated communication regulations to be unsupported by adequate explanation and justification and, thus, arbitrary and capricious under the Administrative Procedure Act (``APA'') and affirmed the Shays I District court's invalidation of the rule. Shays I Appeal, 414 F.3d at 102. Although the Court of Appeals found the explanation for the particular time frame adopted to be lacking, the Shays I Appeal court rejected the argument that the Commission is precluded from establishing a ``bright line test.'' Id. at 99.
[[Page 53896]]
The Shays I Appeal court concluded that the regulation's ``fatal defect'' was in offering no persuasive justification for the 120Day Time Window and ``the weak restraints applying outside of it.'' Id. at 100. The court concluded that, by limiting coordinated communications made outside of the 120Day Time Window to communications containing express advocacy or the republication of campaign materials, the Commission ``has in effect allowed a coordinated communication free forall for much of each election cycle.'' Id. Indeed, the ``most important'' question the court asked was, ``would candidates and collaborators aiming to influence elections simply shift coordinated spending outside that period to avoid the challenged rules' restrictions?'' Id. at 102.
The Shays I Appeal court required the Commission to undertake a factual inquiry to determine whether the temporal line that it drew ``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.'' Id. at 10102.
E. 2005 Rulemaking
In 2005, in the postShays I Appeal rulemaking, the Commission proposed seven alternatives for revising the content prong. See Notice of Proposed Rulemaking on Coordinated Communications, 70 FR 73946 (Dec. 14, 2005) (``2005 NPRM''). The Commission also used licensed data that provided empirical information regarding the timing, frequency and cost of television advertising spots in the 2004 election cycle. See Supplemental Notice of Proposed Rulemaking on Coordinated
Communications, 71 FR 13306 (Mar. 15, 2006).
Although not challenged in Shays I Appeal, the ``election cycle'' time frame of the common vendor and former employee conduct standards at 11 CFR 109.21(d)(4) and (5), among other aspects of that prong, was also reconsidered in the 2005 NPRM. The Commission sought comment on how the ``election cycle'' time limitation works in practice and whether the strategic value of information on a candidate's plans, products, and activities lasts throughout the election cycle. 2005 NPRM, 70 FR at 7395556.
The Commission also noted that the party coordinated communication regulation, while not addressed in Shays I Appeal, contained a three prong test that was ``substantially the same'' as the coordinated communication regulation that had been invalidated by the Shays I Appeal court. 2005 NPRM, 70 FR at 73956. The Commission sought comment on whether it should make conforming changes to the party coordinated communication regulation if it revised the existing coordinated communication regulation. 2005 NPRM, 70 FR at 73956.
In 2006, the Commission promulgated revised rules that retained the content prong at 11 CFR 109.21(c), but revised the time periods in the fourth content standard. Relying on the licensed empirical data, the Commission revised the coordinated communication regulation at 11 CFR 109.21(c)(4) and applied different time periods for communications coordinated with Presidential candidates (120 days before a State's primary through the general election), congressional candidates (separate 90day time windows before a primary and before a general election), and political parties (tied to either the Presidential or congressional time periods, depending on the communication and election cycle). See Explanation and Justification for Final Rules on Coordinated Communications, 71 FR 33190 (June 8, 2006) (``2006 E&J'').
The 2006 coordinated communication regulations also reduced the period of time during which a common vendor's or former employee's relationship with the authorized committee or political party committee referred to in the communication could satisfy the conduct prong, from the entire election cycle to 120 days. 2006 E&J, 71 FR at 33204. The 2006 E&J noted that, especially in regard to the sixyear Senate election cycles, the ``election cycle'' time limit was ``overly broad and unnecessary to the effective implementation of the coordination provisions.'' Id. The 2006 E&J reasoned that 120 days was a ``more appropriate'' limit. Id.
Although the party coordinated communication regulations were not addressed in the Shays I Appeal, in 2006 the Commission also revised the regulations at 11 CFR 109.37 to provide consistency with revisions to the coordinated communication regulations at 11 CFR 109.21. Specifically, the Commission revised the time periods in the content standard at 11 CFR 109.37(a)(2)(iii) of the party coordinated communication regulations, adopting the same time periods for presidential candidates (120 days before a State's primary through the general election) and congressional candidates (90 days before the primary and general elections) as in the coordinated communication regulations at 11 CFR 109.21(c)(4). See 2006 E&J, 71 FR at 33207. The Commission also incorporated into the party coordinated communication regulations the new safe harbors at 11 CFR 109.21(d)(2)(5) for use of publicly available information, and the safe harbors at 11 CFR 109.21(g) for endorsements and solicitations by Federal candidates, and at 11 CFR 109.21(h) for the establishment and use of a firewall. See 2006 E&J, 71 FR at 3320708.
F. Shays III Appeal
On June 13, 2008, the Court of Appeals issued its opinion in Shays III Appeal.
1. Content Standards
The Shays III Appeal court held that the Commission's decision to
apply ``express advocacy'' as the only content standard\10\ outside the
90day and 120day windows ``runs counter to BCRA's purpose as well as
the APA.'' Shays III Appeal, 528 F.3d at 926. The court found that,
although the administrative record demonstrated that the ``vast
majority'' of advertisements were run in the more strictly regulated
90day and 120day windows, a ``significant number'' of advertisements
ran before those windows and ``very few ads contain magic words.''\11\
Id. at 924. The Shays III Appeal court held that ``the FEC's decision
to regulate ads more strictly within the 90/120day windows was
perfectly reasonable, but its decision to apply a `functionally
meaningless' standard outside those windows was not.'' Id. at 924
(quoting McConnell v. FEC, 540 U.S. 93, 193 (2003)) (concluding that
Buckley's `magic words' requirement is ``functionally meaningless'');
see also McConnell v. FEC, 251 F. Supp. 2d 176, 30304 (D.D.C. 2003)
(Henderson, J.); id. at 534 (KollarKotelly, J.); id. at 87579 (Leon, J.)) (discussing ``magic words'').
\10\ The court did not address the republication of campaign
materials, see 11 CFR 109.21(c)(2), in its analysis of the period outside the time windows.
\11\ ``Magic words'' are ``examples of words of express
advocacy, such as `vote for,' `elect,' `support,' * * * `defeat,'
[and] `reject.''' McConnell v. FEC, 540 U.S. 93, 191 (2003) (quoting Buckley, 424 U.S. at 44 n.52).
The court noted that ``although the FEC * * * may choose a content
standard less restrictive than the most restrictive it could impose, it
must demonstrate that the standard it selects `rationally separates
electionrelated advocacy from other activity falling outside FECA's expenditure definition.'''\12\ Shays III Appeal, 528
[[Page 53897]]
F.3d at 926 (quoting Shays I Appeal, 414 F.3d at 102). The court stated
that ``the `express advocacy' standard fails that test,'' but did not
explicitly articulate a less restrictive standard that would meet the test. Id.
\12\ An ``expenditure'' includes ``any purchase, payment,
distribution, loan, advance, deposit, or gift of money or anything
of value, made by any person for the purpose of influencing any
election for Federal office.'' 2 U.S.C. 431(9); see also 11 CFR 100.111(a).
The court expressed particular concern about a possible scenario in which, ``more than 90/120 days before an election, candidates may ask wealthy supporters to fund ads on their behalf, so long as those ads do not contain magic words.'' Id. at 925. The court noted that the Commission ``would do nothing about'' such coordination, ``even if a contract formalizing the coordination and specifying that it was `for the purpose of influencing a Federal election' appeared on the front page of the New York Times.'' Id. The court held that such a rule not only frustrates Congress's purpose to prohibit funds in excess of the applicable contribution limits from being used in connection with Federal elections, but ``provides a clear roadmap for doing so.'' Id. 2. Conduct Standards
The Shays III Appeal court also invalidated the 120day period of time during which a common vendor's or former campaign employee's relationship with an authorized committee or political party committee could satisfy the conduct prong at 11 CFR 109.21(d)(4) and (d)(5). Shays III Appeal, 528 F.3d at 92829. The Shays III Appeal court found that with respect to the change in the 2006 coordinated communication regulations from the ``current election cycle'' to a 120day period, ``the Commission's generalization that material information may not remain material for long overlooks the possibility that some information * * * may very well remain material for at least the duration of a campaign.'' Id. at 928. The court therefore found that the Commission had failed to justify the change to a 120day time window, and, as such, the change was arbitrary and capricious. Id. The court concluded that, while the Commission may have discretion in drawing a bright line in this area, it had not provided an adequate explanation for the 120day time period, and that the Commission must support its decision with reasoning and evidence. Id. at 929. II. Proposals To Address Coordinated Communications Content Standards
To address the Shays III Appeal court's concern regarding election
related communications taking place outside the 90day and 120day
windows, the Commission is considering retaining the existing four
content standards in 11 CFR 109.21(c), and adopting one or more of the
following four approaches: (1) Adopting a content standard to cover
public communications that promote, support, attack, or oppose a
political party or a clearly identified Federal candidate (the ``PASO
standard''); (2) adopting a content standard to cover public
communications that are the ``functional equivalent of express
advocacy,'' as articulated in FEC v. Wis. Right to Life, Inc., 551 U.S.
449, 46970 (2007) (the ``Modified WRTL content standard''); (3)
clarifying that the existing content standard includes express advocacy
as defined under both 11 CFR 100.22(a) and (b); and (4) adopting a
standard that pairs a public communication standard with a new conduct
standard (the ``Explicit Agreement'' standard).\13\ The Commission has
not made any determination as to which, if any, of these standards to
adopt in the final rules, or whether it should adopt a combination of these standards, or some other standard altogether.
\13\ A ``public communication'' is ``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.'' 11 CFR 100.26; see also 2 U.S.C. 431(22).
The Commission invites comment on which, if any, of the four proposals best complies with the Shays III Appeal decision and why. The Commission is particularly interested in whether any of the proposals, standing alone, would satisfy the decision of the Court of Appeals in Shays III Appeal. Additionally, several of the alternatives propose broader content standards than those that are currently in 11 CFR 109.21, thus potentially bringing a broader range of communications under the Commission's more restrictive contribution regulations. The Commission invites comment on how this possibility relates to (1) the Commission's jurisdictional limitations; (2) the distinction courts have drawn between contributions versus independent spending and other protected speech (see, e.g., Buckley, 524 U.S. at 22; FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) (``Colorado II''); Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996) (``Colorado I'')); and (3) the possibility that enforcement of the Commission's regulations that draw the line between independent and coordinated speech may have the potential to chill independent speech. A. Alternative 1The PASO StandardProposed 11 CFR 109.21(c)(3) and Proposed PASO Definition Alternatives A and B at 11 CFR 100.23
Alternative 1 would amend 11 CFR 109.21(c) by replacing the express advocacy standard with a PASO standard. Under the PASO standard, any public communication that promotes, supports, attacks, or opposes a political party or a clearly identified candidate for Federal office would meet the content prong of the coordinated communications test, without regard to when the communication is made or the targeted audience. The Commission also is considering two alternative definitions of promote, support, attack, or oppose (``PASO''). 1. Background
In BCRA, Congress created a number of new campaign finance
provisions that apply to communications that PASO Federal candidates.
For example, Congress included public communications that refer to a
candidate for Federal office and that PASO a candidate for that office
as one type of Federal election activity (``Type III'' Federal election
activity). BCRA requires that State, district, and local party
committees, Federal candidates, and State candidates pay for PASO communications entirely with Federal funds. See 2 U.S.C.
431(20)(A)(iii); 441i(b), (e), (f); see also 2 U.S.C. 441i(d)
(prohibiting national, State, district, and local party committees from
soliciting donations for taxexempt organizations that make
expenditures or disbursements for Federal election activity).
Congress also included PASO in the backup definition of ``electioneering communication,'' should that term's primary definition be found to be constitutionally insufficient. See 2 U.S.C. 434(f)(3)(A)(ii). In addition, Congress also incorporated by reference Type III Federal election activity as a limit on the exemptions that the Commission may make from the definition of ``electioneering communication.'' See 2 U.S.C. 434(f)(3)(B)(iv); see also 2 U.S.C. 431(20)(A)(iii). Congress did not define PASO or any of its component terms.
Accordingly, the Commission incorporated PASO in its regulations
defining ``Federal election activity,'' and in the soft money rules
governing State and local party committee communications and the allocation of funds for these communications. See 11
[[Page 53898]]
CFR 100.24(b)(3) and (c)(1); 11 CFR 300.33(c), 300.71, 300.72. The
Commission also incorporated PASO as a limit to the exemption for State
and local candidates from the definition of ``electioneering
communication,'' and as a limit to the safe harbors from the
coordinated communications rules for endorsements and solicitations.
See 11 CFR 100.29(c)(5) and 109.21(g). To date, the Commission has not
adopted a regulatory definition of either PASO or any of its component terms.
The Supreme Court in McConnell upheld the statutory PASO standard in the context of BCRA's provisions limiting party committees' Federal election activities to Federal funds, noting that ``any public communication that promotes or attacks a clearly identified Federal candidate directly affects the election in which he is participating.'' McConnell, 540 U.S. at 170. The Court further found that Type III Federal election activity was not unconstitutionally vague because the ``words `promote,' `oppose,' `attack,' and `support' clearly set forth the confines within which potential party speakers must act in order to avoid triggering the provision.'' Id. at 170 n.64. The Court stated that the PASO words `` `provide explicit standards for those who apply them' and `give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.' '' Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 10809 (1972)). The Court stated that this is ``particularly the case'' with regard to Federal election activity, ``since actions taken by political parties are presumed to be in connection with election campaigns.'' Id.
The Commission seeks comment on whether the Supreme Court's statement that the ``words `promote,' `oppose,' `attack,' and `support' clearly set forth the confines within which potential party speakers must act'' applies (1) only to party committees, or also to other speakers; and (2) only to Federal election activity, or also in other contexts. After McConnell, is any rule defining PASO, or its component terms, necessary? Would a regulatory definition nonetheless be helpful in providing guidance and explicit standards whereby persons would know which communications are intended to be covered and which ones are not?
Additionally, does the Court's decision in Wisconsin Right to Life have any effect on the scope of the definition of PASO? After Wisconsin Right to Life, is it permissible for the Commission to regulate any speech, whether independent or not, that does not fall within either the Court's definition of ``express advocacy'' or its definition of the ``functional equivalent of express advocacy''? Is the decision in Wisconsin Right to Life applicable in the coordinated communications context, since the Court's decision was confined to independent electioneering communications?
2. Content Standard
The court in Shays III Appeal held that the Commission ``must demonstrate that the standard it selects `rationally separates electionrelated advocacy from other activity falling outside FECA's expenditure definition.' '' Shays III Appeal, 528 F.3d at 926 (quoting Shays I Appeal, 414 F.3d at 102). The Commission seeks comment, consistent with the decision in Shays III Appeal, on whether use of the PASO standard, which would replace, but incorporate, the express advocacy standard, and whether alone or in conjunction with a definition of PASO, would rationally separate electionrelated advocacy from other communications falling outside the Act's expenditure definition.
The Commission also seeks comment on whether the PASO standard, either alone, or in conjunction with a definition of PASO, could potentially encompass public communications that are not made for the purpose of influencing a Federal election. If so, should the PASO standard be limited by, for example, requiring that the communication be disseminated in the jurisdiction in which the clearly identified candidate seeks election, or in some other way? See, e.g., Alternative B at proposed 11 CFR 100.23(b)(4). Alternatively, could communications disseminated outside the jurisdiction in which the clearly identified candidate seeks election still be made for the purpose of influencing the election, such as by soliciting funds for the election or generating other communications that will be directed to the jurisdiction? One such example would be a communication distributed outside Ohio that states: ``Write your friends in Ohio and urge them to support/oppose candidate X.''
Conversely, the Commission seeks comment on whether limiting the PASO standard could potentially exclude public communications that are made for the purpose of influencing a Federal election provided that the payment and conduct prongs of the coordinated communication regulation are also satisfied. Would limiting the PASO standard fail to address the court's concern in Shays III Appeal that the Commission rationally separate electionrelated advocacy from other communications falling outside the Act's expenditure definition?
3. PASO Definitions
As part of its consideration of a PASO content standard, the Commission is also considering whether it should adopt a definition of PASO. This NPRM sets forth two possible approaches to defining PASO. In brief, the proposed PASO definition in Alternative A provides a specific definition for each of the component terms, which applies when any of those terms is used in conjunction with one or more of the other terms. See Alternative A at proposed 11 CFR 100.23(b). The proposed PASO definition in Alternative B utilizes a multiprong test to determine whether a given communication PASOs. See Alternative B at proposed 11 CFR 100.23(b). The Commission seeks public comment on the proposed alternative definitions at 11 CFR 100.23. In light of the Supreme Court's conclusion in McConnell, as discussed above, that the component terms of the PASO 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, the Commission seeks comment on whether any regulatory definition is necessary or whether such a definition would be confusing.
a. Proposed Applicability
The proposed PASO definitions differ in their applicability. Proposed Alternative A would apply to those instances in the Commission regulations in which two or more of the four component PASO words are used together. See Alternative A at proposed 11 CFR 100.23(a). Proposed Alternative B would apply to those instances in the Commission regulations in which all four of the component PASO words are used together. See Alternative B at proposed 11 CFR 100.23(a). The Commission seeks comment on whether the proposed applicability of either alternative is underinclusive or overinclusive.
The Act articulates the PASO concept by using the following
phraseology: ``promotes or supports a candidate for that office, or
attacks or opposes a candidate for that office.'' 2 U.S.C.
431(20)(A)(iii) (definition of ``Federal election activity''); 434(f)(3)(A)(ii) (backup definition of ``electioneering
communication''). The Commission has adopted several similar, though
not identical, phrases throughout its regulations. Some of the
regulations group the four words in two disjunctive groups of two (e.g., promote or support,
[[Page 53899]]
or attack or oppose) \14\ and some of the regulations group the words
in one disjunctive group of four (e.g., promote, support, attack, or oppose).\15\
\14\ See, e.g., 11 CFR 100.24(b)(3) (definition of Federal
election activity) (``promotes or supports, or attacks or opposes
any candidate for Federal office''), 100.24(c)(1) (exception from
definition of Federal election activity) (``promote or support, or
attack or oppose a clearly identified candidate for Federal office''), and 300.71 (Federal funds for certain public
communications) (``promotes or supports any candidate for that
Federal office, or attacks or opposes any candidate for that Federal office'').
\15\ See, e.g., 11 CFR 100.29(c)(5) (electioneering
communications) (``promote, support, attack, or oppose''), 109.21(g)
(coordinated communications safe harbor) (``promotes, supports,
attacks, or opposes''), 300.33 (allocation of Federal election
activity) (``promote, support, attack, or oppose''), and 300.72
(Federal funds not required for certain public communications) (``promote, support, attack, or oppose'').
Additionally, the words ``promote,'' ``support,'' and ``oppose''
appear throughout the Act and Commission regulations often in other
contexts unrelated to communications that PASO and unrelated to any
electoral context. For example, the word ``support'' is used
individually throughout the Act and Commission regulations in the
context of technical, administrative, or financial support or
``supporting documentation.'' \16\ The word ``support'' is also used
individually in Commission regulations with respect to political
committees and individuals that support candidates financially or in
other, noncommunicative, ways.\17\ The word ``opposed'' is used
individually in the Commission's definition of ``election.'' See 11 CFR
100.2(a) (definition of ``election'' includes ``opposed'' and ``unopposed'' individuals).
\16\ See, e.g., 2 U.S.C. 442 (technical support); 11 CFR
110.14(j)(2)(viii) (administrative support); see also 11 CFR
200.3(a)(1) (comments ``in support of or opposition to'' Commission Federal Register publication).
\17\ See, e.g., 2 U.S.C. 434(a)(10) (reporting requirements for
committees supporting vice presidential candidates), (f)(3)(B)(iii) (communications which promote debates or forums); 11 CFR
110.2(l)(1)(iii)(A) (the use of polling to determine the support
level for a candidate), and 9008.50 (promotion of convention city by national convention committee).
The words are also used in combinations of less than four in some
contexts that may be closer to that contemplated by the Commission in
proposing the PASO definition. For example, many of the reporting
requirements in the Act and Commission regulations concern communications that support or oppose clearly identified
candidates.\18\ Also, several provisions in the Act and Commission
regulations treat certain communications or disbursements differently on the basis of whether they support, promote, or oppose
candidates.\19\
\18\ See, e.g., 2 U.S.C. 434(b)(6)(B), (c)(2)(A) (reporting of expenditures); 11 CFR 104.4(b)(2), (c) and (e) (reporting
independent expenditures).
\19\ See, e.g., 2 U.S.C. 431(21) (``generic campaign activity''
defined as ``promotes a political party'' but not a candidate); 11
CFR 100.25 (``generic campaign activity''), 100.57 (solicitations to
support or oppose a candidate), 114.9(a)(1) and (b)(1) (use of corporate or labor organization facilities).
Given the many uses of the words ``promote,'' ``support,'' and ``oppose'' throughout the Act and Commission regulations, the Commission seeks comment on whether the PASO definition should apply only when at least two of the four PASO component words appear together (as in Alternative A). Should the PASO definition apply instead only when all four PASO component words appear together (as in Alternative B)? Or, should the PASO definition apply wherever any one of the four PASO component words appears in the Commission's regulations? Are there particular rules that use only one or two of the four PASO wordssuch as the expenditure reporting rules\20\to which the proposed definitions should or should not apply? Should the proposed PASO definition apply to the definition of ``generic campaign activity'' in 11 CFR 100.25 because section 100.25 implements BCRA? Finally, the Commission seeks comment on whether it should limit the applicability of the proposed definitions of PASO to only coordinated communications. Such an approach could result in divergent meanings of PASO in coordination and other contexts, such as Federal election activity or electioneering communications. Would this create confusion? \20\ See, e.g., 11 CFR 104.3(b)(3)(vii)(B), 104.4(b)(2), (c) and (e); 11 CFR 104.5(g)(3), 104.6(c)(4), 109.10(e)(1)(iv).
In addition, the Commission seeks comment on whether, in the absence of the proposed guidance above, it would be clear from a particular regulation's use of ``promote,'' ``support,'' ``attack,'' and ``oppose'' alone, that the PASO definitions would apply based on whether the word is used in an electoral context.
b. Proposed Dictionary Definitions
Consistent with the Supreme Court's statement concerning PASO in McConnell, both proposed PASO definitions would construe the words ``promote,'' ``support,'' ``attack,'' and ``oppose'' according to the words' commonly understood meaning applicable to the election context. The proposed PASO definitions do, however, differ in some of the particulars. Proposed Alternative A would define each of the four component PASO words separately according to dictionary definitions. Proposed Alternative B would not define any of the four PASO words, but does provide that a communication PASOs if it unambiguously performs one of several actions described in the dictionary definitions of the component words.
Dictionary definitions of the word ``promote'' include ``to help or encourage to exist or flourish; further; to advance in rank, dignity, position, etc.'' and ``to encourage the sales, acceptance, etc. of (a product), esp. through advertising or publicity.'' Webster's Unabridged Dictionary 1548 (Random House 2nd ed. 2005) (``Webster's Dictionary''); see also American Heritage Dictionary of the English Language 1095 (4th ed. 2006) (``American Heritage'') (defining ``promote'' as ``to advance; further; to help''). The dictionary also identifies ``support * * * elevate, raise, exalt'' as synonyms of ``promote.'' Webster's Dictionary at 1548.
Dictionary definitions of the word ``support'' include ``to uphold (a person, cause, policy, etc.) by aid, countenance, one's vote, etc.'' and ``to * * * advocate (a theory, principle, etc.).'' Webster's Dictionary at 1913; see also American Heritage Dictionary at 1364 (defining ``support'' as ``to aid; to argue in favor of; advocate'').
Dictionary definitions of the word ``attack'' include ``to blame; to direct unfavorable criticism against; criticize severely; argue with strongly.'' Webster's Dictionary at 133; see also American Heritage Dictionary at 88 (defining ``attack'' as ``to criticize strongly or in a hostile manner'').
Dictionary definitions of the word ``oppose'' include ``to act against or provide resistance to; to stand in the way of; hinder; obstruct; to set as an opponent or adversary; to be hostile or adverse to, as in opinion.'' Webster's Dictionary at 1359.
Based on these definitions, proposed Alternative A defines
``promote'' as ``to help, encourage, further, or advance.'' It defines
``support'' as ``to uphold, aid, or advocate.'' ``Attack'' is defined
to mean ``to argue with, blame or criticize.'' ``Oppose'' is defined as
``to act against, hinder, obstruct, be hostile or adverse to.'' See
proposed Alternative A at 11 CFR 100.23(a). Based on these definitions,
proposed Alternative B requires that a communication only PASOs if it
``helps, encourages, advocates for, praises, furthers, argues with, sets as an adversary, is hostile or
[[Page 53900]]
adverse to, or criticizes.'' See proposed Alternative B at 11 CFR 100.23(b)(2).
The Commission seeks comment on whether defining each of the component terms individually, as in Alternative A, or a single definition for PASO, as in Alternative B, provides the clearest guidance. Alternatively, would a definition that combines some, but not all, of the terms (such as ``promote or support'' or ``attack or oppose'') be preferable?
c. Relationship Between PASO and Express Advocacy
In addition to these dictionary definitions, both proposed PASO definitions would state that all communications that expressly advocate the election or defeat of a clearly identified candidate also PASO that candidate. See Alternative A at proposed 11 CFR 100.23(b) and Alternative B at proposed 11 CFR 100.23(b)(2). The Commission seeks comment on whether this recognition that all communications that expressly advocate will PASOthat is, that express advocacy is a subset of PASOprovides useful guidance. Additionally, the Commission seeks comment on whether both proposed PASO definitions apply to a broader range of communications than the express advocacy standard as intended.
d. Scope of Proposed PASO Definitions
Under Alternative A, the PASO definition would not require any reference to the fact that an individual is a Federal candidate or any reference to a political party. The definition in Alternative B would require an ``explicit'' reference to either a clearly identified Federal candidate or a political party. See proposed Alternative B at 100.23(b)(1)(ii). Additionally, Alternative B requires the unambiguous PASOing of a candidate or party in addition to a clear nexus between that candidate or party and an upcoming election or candidacy.
For PASO with respect to candidates, Alternative B's definition of ``clearly identified'' incorporates by reference the definition in 11 CFR 100.17 of the same term; with respect to parties, the definition is adapted from 11 CFR 100.17. The Commission invites comment on whether a reference to a clearly identified candidate or party is necessary or appropriate. Alternatively, would a limited application of the proposed PASO definitioni.e., to apply it only to those communications that constitute Federal election activity, to communications coordinated with candidates or parties, and as a limit to the exemptions from the definition of ``electioneering communication''suffice in lieu of a ``refers to'' criterion? The Commission seeks comment on whether either Alternative A or Alternative B is too broad or too narrow in this respect.
Conversely, not all communications that refer to a clearly
identified Federal candidate necessarily PASO that candidate. The
Commission has concluded that a particular proposed endorsement did not
PASO the endorser. See Advisory Opinion 200325 (Weinzapfel) (the
proposed communicationa television advertisement in which Senator
Bayh would identify himself and endorse Jonathan Weinzapfel, a
candidate for State officedid not PASO Senator Bayh).\21\ Both
alternatives are intended to reflect the principle in the Weinzapfel AO
that a communication in which a Federal candidate endorses another
candidate does not, by itself, PASO the endorser. Both alternatives are
also intended to reflect the ideain BCRA's legislative history and in
the Commission's prior analysis of PASOthat identification of a
candidate does not automatically PASO that candidate. Should the
Commission revise the proposed definitions to better reflect these principles?
\21\ ``The mere identification of an individual who is a Federal
candidate does not automatically promote, support, attack, or oppose
that candidate.'' 148 Cong. Rec. S2143 (daily ed. Mar. 20, 2002)
(statement of Sen. Feingold) (quoted in 2006 E&J, 71 FR at 33202)
(PASO exception to the coordinated communications solicitation and endorsement safe harbor).
Alternative A, in proposed 11 CFR 100.23(b), also is intended to recognize that many types of communications may PASO, even if, on their face, they also serve another function. For example, the proposed inclusion of ``in whole or in part'' is intended to incorporate the Commission's previous analysis that communications may promote both a business or organization and a candidate. Additionally, this proposed paragraph is consistent with the Commission's previous analysis that a communication may have dual purposes. See Explanation and Justification for Final Rules on Electioneering Communications, 70 FR 75713, 75714 (Dec. 21, 2005). Proposed paragraph 100.23(b) in Alternative A would define PASO so that a communication may PASO a candidate not as a candidate per se, but in another capacity such as a prominent individual, legislator, or public official.
The Commission seeks comment on whether Alternative Ain which the PASO component of a communication may be only one part of the communication and in which the communication may not have an explicit electoral nexusis consistent with the Supreme Court's decisions in Buckley, McConnell, and Wisconsin Right to Life. Should Alternative A be explicitly limited to apply only to those communications that constitute Federal election activity, to communications coordinated with candidates or parties, and as a limit to the exemptions from the definition of ``electioneering communication''? Alternatively, or additionally, should Alternative A define PASO to include fewer communications, such as by requiring that, in the absence of an explicit electoral nexus, the communication must PASO the candidate's character, qualifications, or fitness for office? See, e.g., Wis. Right to Life, 551 U.S. at 470; 11 CFR 114.15(b)(2), (c)(1)(ii) (referring to character, qualifications, or fitness for office as indicia of express advocacy). Conversely, the Commission seeks comment on whether Alternative A should define PASO to include more communications and, if so, how.
Alternative B is intended to exclude communications directed only at legislation or some other cause by requiring PASO to be directed unambiguously at a candidate or party. Additionally, Alternative B's clear nexus criterion is intended to exclude communications that merely refer to an individual who may be a candidate for Federal office. For example, Alternative B is intended to exclude an advertisement that merely discusses a Senator's position on a legislative issue and promotes that position, but does not discuss the Senator's candidacy for reelection. Does Alternative B exclude more than mere references to individuals who are candidates for office or discussions of a candidate's position on legislative issues?
The Commission seeks comment on whether proposed Alternative B's
requirement that a communication have a ``clear nexus'' to an upcoming
Federal election or to a candidacy for such election is appropriate. In
Buckley, the Court explained that its narrowing construction of the
Act's disclosure provisions would ensure that reporting of independent
expenditures by persons other than candidates or political committees
would ``shed the light of publicity on spending that is unambiguously
campaign related.'' Buckley, 424 U.S. at 81. Is the phrase
``unambiguously campaign related'' relevant or appropriate in the
context of coordinated communications? Does the proposed ``clear
nexus'' criterion properly capture or implement the Act's definition of a contribution, which
[[Page 53901]]
includes anything of value given ``for the purpose of influencing any
election for Federal office''? When used in this context, do the terms
``unambiguous'' and ``clear nexus'' provide sufficiently clear guidance?
Commonly, during an election season, ads are run that compare opposing candidates' records or positions on legislative issues without mentioning their candidacies or an election. For instance, the ``Willie Horton'' ad, referenced below, is an example of this type of communication. Would ads like these be encompassed by either Alternative A or B? Should they be?
In short, do the proposed ``unambiguous'' and ``clear nexus'' criteria properly capture or implement the Act's definition of a contribution? Conversely, do these requirements overly narrow the scope of the PASO definition?
e. Verbal or Pictorial Means
Alternative B contains the additional requirement that the element of the communication that unambiguously PASOs be done through verbal (whether by visual text or audio speech) or pictorial (whether depictions of party officials, candidates, or their respective logos) means, or a combination of the two. Alternative B further provides that ``photographic or videographic alterations, facial expressions, body language, poses, or similar features'' may not be considered in determining whether the communication PASOs. In contrast, Alternative A would not restrict the manner in which a communication PASOs a candidate.
Are Alternative B's limits clear? Should any of the following elements of communications be excluded from the PASO determination: song lyrics, images of the American flag, patriotic or frightening music, or altered candidate images? The Commission seeks comment on whether to exclude from the PASO definition digital or other manipulation of images, for example an image that shows the candidate's face morphing into the visage of either Adolph Hitler, Mother Theresa, or a popular or unpopular political figure.
The Commission seeks comment on whether nonspeech elements are often relevant, or even essential, in determining whether the communication promotes, supports, attacks, or opposes a candidate for Federal office.
Commenters are invited to provide the Commission with specific examples of communications in which nonspeech elements are necessary to the communicative purpose. Which approach is clearer, more objective and administrable? Which approach best effectuates congressional intent?
f. Jurisdiction
Alternative B contains the additional criterion that the communication be publicly distributed or disseminated in the clearly identified Federal candidate's or party's jurisdiction. This criterion is based on the content reference standard of the current coordinated communications regulation at 11 CFR 109.21(c)(4). However, unlike the content reference standard, the fourth criterion in the proposed PASO definition does not contain the 90/120day window. The proposed jurisdictional requirement is intended to provide an objective, bright line standard by which to determine PASO. Does this requirement distinguish between those communications that are made for the purpose of influencing a Federal election and those that are not? Alternative A does not contain a jurisdictional requirement.
The Commission invites comment on the proposed jurisdictional criterion. In Shays III Appeal, the court held that the Commission's revised content standard must ``rationally separate[] electionrelated advocacy from other activity falling outside FECA's expenditure definition.'' Shays III Appeal, 528 F.3d at 926. Does the proposed jurisdictional criterion accomplish this? Conversely, does this requirement overly narrow the scope of the PASO definition? Are there communications outside a candidate's jurisdiction that nonetheless are made for the purpose of influencing that candidate's election (e.g., solicitations of funds, volunteers, or requests to contact voters)?
Additionally, are the phrases ``publicly distributed'' and ``publicly disseminated'' sufficiently objective, or are they too vague? Are the phrases under or overinclusive? Should the Commission adopt a different jurisdictional element, such as one adapted from the electioneering communications definition at 11 CFR 100.29(b)(5)?
The Commission also invites comment on whether a jurisdictional
criterion appropriately limits the PASO definition to those
communications made for the purpose of influencing a Federal election.
See, e.g., Shays I Appeal, 414 F.3d at 99 (``Nor is such purpose [of
influencing a Federal election] necessarily evident in statements,
referring, say, to a Connecticut senator but running only in San
Francisco media markets.''). Alternatively, could communications
arguably favorable or critical of a candidate but disseminated outside
that candidate's jurisdiction still be made for the purpose of
influencing the election? How, for example, should the definition treat
a communication that urges people outside a candidate's jurisdiction to
influence their friends inside the jurisdiction? Would a geographic jurisdictional limit be too narrow?
g. Proposed Examples \22\
\22\ Please note that the examples in the alternative proposed
PASO definitions are different from, and in addition to, the
examples discussed below in the coordinationspecific sections.
Finally, both proposed PASO definitions also provide several
examples, some of which are adapted from closed Commission enforcement
matters,\23\ of communications that would and would not PASO.
Alternatives A and B treat the examples differently. The Commission seeks comments on these differences.
\23\ The example at proposed Alternative A at 11 CFR
100.23(c)(1) and Alternative B at 11 CFR 100.23(d)(1) is adapted
from Matter Under Review (``MUR'') 6019 (Dominic Caserta for
Assembly); the example at proposed Alternative A at 11 CFR
100.23(c)(2) and proposed Alternative B at 11 CFR 100.23(d)(2) is
adapted from MURs 5365 (Club for Growth) and 5694 (Americans for Job
Security); the example at proposed Alternative A at 11 CFR
100.23(d)(1) and proposed Alternative B at 11 CFR 100.23(e)(2) is
adapted from MUR 6064 (Missouri State University); the example at
proposed Alternative A at 11 CFR 100.23(d)(2) and proposed
Alternative B at 11 CFR 100.23(e)(3) is adapted from MUR 5387 (Welch
for Wisconsin); the example at proposed Alternative A at 11 CFR
100.23(e)(1) and proposed Alternative B at 11 CFR 100.23(d)(3) is
adapted from ADR Case 250 (Your Art Here); the example at proposed
Alternative A at 11 CFR 100.23(e)(2) and proposed Alternative B at 11 CFR 100.23(e)(5) is adapted from MUR 5974 (New Summit
Republicans); and the example at proposed Alternative A at 11 CFR
100.23(e)(3) and proposed Alternative B at 11 CFR 100.23(d)(4) is
adapted from MUR 5714 (Montana State Democratic Central Committee).
The Commission invites comment on (1) whether including examples would be helpful, either in the final rule or in the Explanation and Justification, if the definition is adopted; (2) whether the proposed examples properly apply the proposed definitions; (3) whether the examples provide sufficient context for determining whether specific communications PASO; and (4) whether additional or different examples are needed, such as an example adapted from Advisory Opinion 200325 (Weinzapfel).
The Commission seeks comment on whether the proposed alternative definitions for 11 CFR 100.23, in all their parts, provide clear guidance as to PASO, and if not, what aspects of the proposed definitions require further explanat