This file contains archived live captions of that portion of the open meeting of the Federal Election Commission scheduled for November 10, 2015 but held on November 17, 2015.  This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission.





>> CHAIR ANN RAVEL: Good morning, everybody, thank you for being here, welcome, the continuation of the open meeting of the Federal Election Commission for November November 10th 2015 will come to order. We have an additional item for consideration this morning. Mr. Vice Chair, do you have a motion. 
>> MATTHEW PETERSEN: Yes I do, thank you, Madam Chair I first move the Commission add to the agenda consideration of the coordination rulemaking proposal and that the Commission determine pursuant to CFR Section 27 D that a Public Service Announcement was possible. 
>> CHAIR ANN RAVEL: Thank you Mr. Vice Chair. The Vice Chair has so moved. Is there a comment or question. 
>> LEE GOODMAN: I just have one question about the intent of the chair in calling the matters under Item -- excuse me; which item is that, is that Item 5? Today. 
>> CHAIR ANN RAVEL: Let me go over there. Hold on. Do you want a different order. 
>> LEE GOODMAN: I was in the queue first. 
>> CHAIR ANN RAVEL: You are, absolutely. 
>> LEE GOODMAN: Then I'm prepared to have this and hear all about it today. 
>> CHAIR ANN RAVEL: No problem. You are in the front of the line. Any other questions or comments all those in favor please indicate by saying aye. 
(Chorus of ayes). 
>> CHAIR ANN RAVEL: Madam Secretary that motion passes unanimously I believe we also have some late submitted documents Mr. Vice Chair. 
>> MATTHEW PETERSEN: Yes I move we waive the rules on the submission of agenda documents in order to consider the following agenda documents 15-62-B. 15-54-A-1, 15-54-D and 15-27-A-1. 
>> CHAIR ANN RAVEL: The Vice Chair has so moved. Are there any comments or questions? All those in favor please indicate by saying aye. 
(Chorus of ayes). 
>> CHAIR ANN RAVEL: All right. Madam Secretary, that motion passes unanimously. 
All right. Thank you. 
The first item on the agenda is Item No. 2. Draft advisory opinion 2015-11 FYP. And Esther Jori is on the phone I believe. 
>> Yes, I am. 
>> CHAIR ANN RAVEL: Welcome, I hope all is going well. And. 
>> It is, thank you. 
>> CHAIR ANN RAVEL: Christine from OGC here to discuss the matter. And we also have Ezra Reese. Mr. Reese, do you want to come forward from Perkins counsel for requester here with us. Thank you. Welcome. 
Esther do you have a presentation, an additional presentation that you would like to make in this matter. 
>> Yes, thank you. 
>> CHAIR ANN RAVEL: Thank you. 
>> Good morning, Commissioners. Before you are agenda documents 15-62-A and 15-62-B. Two drafts of an advisory opinion in response to a request from FYP. Draft A concludes that the requester may implement its proposal without making a prohibited corporate contribution and then the requester would be acting as a commercial vendor and receive the usual and normal charges for services. The draft also concludes that the requester would not be serving as a conduit because the requester would be acting as a commercial fundraising firm in providing its services the draft further concludes a contribution may include a change and include the service fee paid by the contributor to the requester. Draft B concludes that the requesters proposal complies with Federal campaign finance law because the requester will provide a service to contributes and -- contributors and not political committees the draft concludes moreover that the fees paid by the contributor to the requester wouldn't be part of the contributions to the recipients political committee because they do not receive a financial burden they would otherwise have had to pay for themselves. More are they a contribution to the requester itself. 
Finally, the draft concludes that the requester is not acting -- is -- would not be acting as a conduit because the contribution processes are direct contributions to recipients political committee. We did not receive any comments on the request or on either of the drafts. Thank you. 
>> CHAIR ANN RAVEL: Thank you very much, Ms. Jori. Are there any questions of counsel. Commissioner Goodman. 
>> LEE GOODMAN: No not of counsel. 
>> CHAIR ANN RAVEL: Comments you want to make, as well, if there no questions. 
>> LEE GOODMAN: Yes Mr. Reese welcome back. I was in a Red Roof Inn in DeKalb Illinois last week and I was thinking of you. Because on my television in my ground level motel on one side of me was a railroad track every 30 minutes a train would go by and on the other side was a highway and cars were whizzing by. I had on the television CNBC a TV show Shark Tank. And I don't know if you've ever watched Shark Tank my son and I watch it it's where entrepreneurs commonly ask for some wealthy angel funders to fund their business plan. Someone had a business plan they desperately wanted funding for their business plan and Kevin O'Leary Mr. Wonderful was offering them an investment that they desperately needed. Yet they turned him down because a condition of making the investment in their company was he was going to change their business plan fundamentally from what they had spent years developing and they were wed to it. And you came to mind because it struck me that that's what's fundamentally in conflict between Draft A and Dr. B here. 
Draft A and my objection to it was it fundamentally rewrote your business plan that you presented to the Commission. Your clients business plan is to provide a service for fee to individual users of your platform and your application. Draft A took liberties with your business plan and said we are going to make your customer, political committees, you're going -- in order to throw your platform on the worldwide web and to put your application on peoples' cell phones and devices, you're going to first have to go enter into contracts to provide the service to non--- well not nonprofit groups but certainly in the case of political committees. 
And I didn't think we had the read to redraw your whole business plan. If people don't believe that you should be able to do that the way you intended, then Draft A should have just said no. 
So Draft B is an effort to give you an answer to the business plan that you presented to the Commission which was to have your customers be the actual users of the service and that they would pay the fee for service. 
And we had colloquy when you were last here where you said it would be difficult to modify the business plan because all of a sudden you can't provide the same service to users that you had intended unless you first go discuss it with treasurers and political consultants for a whole bunch of campaigns and find out if they will allow you to be their vendor. 
Now, I am sensitive to the fact that your client has a commercial application that it wants to put out in the commercial marketplace and I don't want to stop that. But I can't support Draft A to make that happen. And I also don't know where other Commissioners here are as between A and B I have a suspicion hopefully we can work that out and give you the benefit of that colloquy because one option would be for you and your client to revise your request you could do it right here at the table in fact to represent that you want the campaigns to be your client. And you want to be a vendor to campaigns instead of individual citizens and users of your app. If that were the request before us approving Draft A would be easier I think at least for me. So I'm prepared to support Draft B today because I think it's the legally proper answer to the business plan you presented. I believe that your client should have the right to offer this platform and this application to users and have users opt in. They will see the list of campaign you are facilitating contributions to and not just campaigns but nonprofits as well and we discussed all the business reasons for doing that when you were last here so I'm prepared to support Draft B because I believe it's a bonafide commercial service that you're offering people. But I raise this issue ahead of time because I know that when a commercial enterprise hangs in the balance walking out of here possibly with a 3-3 doesn't serve your client's business interests. So I'm prepared to support Draft B based on business plans and representations you brought us I would hope some Commissioners before we vote would give an indication of where they are and why they are there to give some reaction to that do you have any reactions to this comment. 
>> Yes, thank you for thinking of me last week. I appreciate that. 
>> CHAIR ANN RAVEL: A red roof that's not such a high bar. 
>> The detail makes the story. Come on. First I suspect and hope there would be some anonymity whether Draft A or Draft B some agreement that some version of this proposal is legal and some other elements of this that I think are cleaning up some old advisory opinion treatments of the way funder treatment of enterprises both helpful in both drafts so I'm hopeful even if there's a split on the user fees that the Commission can give us a clean yes on everything else I don't think there's a lot of disagreement on that. That said we very much do not want to be working for the political committees so we very much would like not to have to redo our business plan and that's not just because the reporting is difficult on the committee side and because it puts us in an odd spot and Commissioner Goodman raised last week it's important to realize this isn't just an effort to raise money for political committees we're also raising money for nonprofit entities state laws regulate strictly the treatment of fundraisers working for nonprofits at the state level so if we are acting to raise money on behalf of the political committees, it's very difficult to turn around and state we're not doing it that way on behalf of the nonprofits and if we are then we're faced with a thorny network of registration on the state and local level so the reason we're doing it this way is not just for reporting issues. It's also because it affects other aspects of the business on the nonprofit side which is why we have structured the business the way we have. 
>> CHAIR ANN RAVEL: Thank you. Are there any other comments? 
>> LEE GOODMAN: I'm sorry. I was going to react. I think it's a bonafide business concern I've represented nonprofits and you have to register to raise money. Different states delineate between fundraising consultants versus fundraisers. They have to be licensed in the states. And they have to file regular reports and here you've got a technological platform that you want to put out there for any user who happens by exercising their free consumer choice to use or not use. And I don't believe that the Commission should through -- apply its regulations to prevent those types of technologies and platforms from springing up and being used by individual consumers who can make the choice to give to conservativegive.com or liberalgive.com or they want to buy only George Bush wear at Bush wear.com. Which the Commission approved I think the -- where the vendor is providing a good or service to the individual or consumer. And naturally the good or service has some limitations on where the good or service goes or which side of the fence that it sits on for a whole host of bonafide business reasons. 
So thank you for that clarification. You want the user to be your customer. 
>> Absolutely, yes. 
>> LEE GOODMAN: Okay. Then I believe Draft B provides that. I might also add that we recently approved an advisory opinion for your law firm I believe. And Hillary Clinton and said, guess what, parking vendors and other vendors can provide a service directly to the individual consumer. And the consumer can pay for that service, even though it is a cost attendant to raising money and attending a fundraiser and we said the parking fees and the food costs paid for by the individual in order to attend the fundraiser does not have to be attributed to the Hillary Clinton campaign. So I believe that this is well within the historical framework that we have historically approved that users and individual contributors as consumers can choose certain services attendant to providing their contributions to in this case nonprofits as well as political committees. 
>> CHAIR ANN RAVEL: Any other -- I'll jump in then. 
You know, I have to disagree with you. I don't think that we're rewriting the plan. Although obviously counsel is expressing concern about Draft A. But that in my view is the only mechanism that would make this a legal way to get what you want and what you have requested. And of course Draft A definitely it says that your -- the plan is permissible. The issue is and why it's different from the cases that you've cited both the merchandise sales options with the opinions with T-shirts that are being sold and the like is this is a circumstance where my change will be doing business only with certain committees that share the ideology. And therefore, it not only provides a service to the contributor, it's providing a service to those particular committees. And for that reason, the commercial vendor analysis is required in this case. 
And so if everyone is going to go with Draft B, I'm not going to be able to support that. 
Any other comments? Is there a motion? 
>> MATTHEW PETERSEN: With respect to advisory opinion request 2015-11-FYP LLC I move approval of Draft B which is agenda document 15-62-B. 
>> CHAIR ANN RAVEL: All right. Any comments, questions? All those in favor, please indicate by saying aye. 
(Chorus of ayes). 
>> CHAIR ANN RAVEL: All those opposed 
(Chorus of nos). 
>> CHAIR ANN RAVEL: Madam Secretary that motion fails by a vote of 3-3 with Commissioner Goodman, Hunter and Vice Chair Petersen voting yes and Commissioner Walther, Weintraub and myself voting no. Is there another motio 
>> ELLEN WEINTRAUB: I move approval of Draft A. 
>> CHAIR ANN RAVEL: Questions, comments? All those in favor please indicate by saying aye. 
(Chorus of ayes). All those opposed 
(Chorus of (No response)s. 
>> CHAIR ANN RAVEL: Okay that motion fails by a vote of 2-4. With Commissioner Weintraub, Ravel voting yes and Commissioners Walther, Vice Chair Petersen, Hunter and Goodman voting no. So are there any other motions? Hearing none -- 
>> MATTHEW PETERSEN: I don't have a notion I have a question of Mr. Noddy. Sometimes in these cases where we have splits on drafts we do the stripdown option we talked about this with Repledge a couple of weeks ago. 
In this case if there were to be a stripped down yes saying yes this is permissible under the act and Commission regulations but the Commission couldn't decide as to the rationale, what would that effectively put the requester -- what protection would that give him? Could he choose between the two rationales? Would he have to say -- would that protect insofar as his client followed the rationale of one draft over the other? Because this issue came up before about what is a strippeddown yes practically mean for a requester in terms of how they are going to have to conduct their business activities? 
>> Right and not to fight the hypo. But I think the threshold issue might be getting that strippeddown yes because one -- the question isn't quite a simple yes-no is this permissible. It's is it permissible and if so how do we have to account the cost of engaging the transaction. It sounds like that's where there may not be agreement. And in that case, it's hard to imagine what the stripped down answer would say. 
>> CAROLINE HUNTER: Mr. Reese looks a little sad so I want to give him an opportunity to speak. 
>> CHAIR ANN RAVEL: Oh, wasn't wasn't looking at your upsetness. 
>> I was trying to give you my puppy dog eyes. 
>> CHAIR ANN RAVEL: I missed it. You have to do it audibly next time. Weeping. 
>> I'm sorry; yes, I didn't want to interrupt the flow of the Commission here is what would be helpful I understand there's a disagreement about the treatment of the user fees which I think comes down -- there's an ideological question about the ideological question which I think seems like a real split among the Commission and fair enough. 
I don't understand the democratic position. I'm sorry. But I respect it. That said it's really just coming down to a debate about how the user fees are treatable on the recipient side reported by the recipient as expenditures or subtracted from contribution limits for the committees. It's a technical question I understand the Commission may not be able to reach agreement on that but there seems to be agreement on everything else including the treatment of funds, including the fact that an ideological split can legally be used for a for-profit company there's a lot in both Draft A and Draft B really moves the ball forward on the Commission's treatments of these kinds of fundraising entities it would be really helpful for the Commission to be able to say yes to everything but the treatment of user fees even if you end up splitting 3-3 or not commenting on that at all. 
>> ELLEN WEINTRAUB: Well toss that over to counsel. Is that doable? Because I share your frustration. It sounds like there are 5 Commissioners who are okay with a couple -- with as you say one diverging point on your going forward with this plan it would be frustrating for me as well as for you for you to walk out with nothing in your hands. 
>> I doubt it. But there may be a way to write an answer that says yes to A and B although we can't agree on why and we have no answer at all for the treatment of the fees. Maybe that's possible. I don't know. We can try. 
>> CHAIR ANN RAVEL: But how will that help you? 
>> Well, I mean honestly, it's going to be firstly we will have to decide how we treat contribution limits and the recipient committees will have to decide how to report and in a 3-3 split that will be difficult but it seems to be broad agreement that the proposal is legal. It's legal for FYP to engage in it and it's legal for the right side to accept funds at least up to the contribution limits and minus the user fees if there's agreement on that then we can proceed. We'll have to discuss you know what to tell the recipient committees who are I think in an unfortunate bind here. But if the Commission agrees with the majority of the Commissioners that this plan is legal it seems silly not to express that agreement in an advisory opinion even if there's agreement about how the reporting is done which is fundamentally what this comes down to. Can I add one more thing is there anything that would change the three Commissioners who voted no to address their minds on how to treat this? I can't tell you that FYP is going to start working with conservative organizations they are not we would very much like to not be in business with the recipient committees but if there are other elements of the plan that is giving the three Commissioners voter no pause if it would make a difference -- difference if for instance FYP choose not to be part of the program there might be something we can alter there may be some things on the margin we can alter we are not willing to work with organizations we don't agree with but if there are other things that would help, I would love to talk about it. 
>> CHAIR ANN RAVEL: I'm sorry; I'm looking through the drafts to see if I can answer that question. 
>> ELLEN WEINTRAUB: I guess that's part of the problem. If you're going to sell this as something you're doing for the users but the users can't -- I mean, honestly in reality you're probably not going to get a lot of requests given the way you'll market this to a certain ideological view you'll probably not get a lot of requests from user to say I want to use your platform to give to you know conservativegive.com. Or whatever. 
But it's hard for me to reconcile the notion that you're doing this for users if indeed part of your plan says but if they come in and ask can we use your platform to get to this organization and it's not one that you want to help, then you're going to say no. 
So then it starts to look less like you're doing it as a service because you're going to turn down certain requests that your users make of you. 
>> That's certainly true and I can't offer that. If users -- we're not going to add -- we're not going to work with organizations who we disagree with ideologically. That is part of the business model. I can offer to not have a system for committees to ask to be part of the system that is if it helps the Commission for us to not -- to only have a user based request system and not a committee based request system, I think that is some place we could go. What I can't promise you is that we're going to send money to political committees we don't ideologically agree with who are not part of the business model of only supporting progressive entities. No sale, okay. 
>> CHAIR ANN RAVEL: I was just thinking the same thing. I don't know whether today is the statute -- statutory day for us to make a response to you and if you would be willing to give an extension in this matter and we could ask counsel if he could -- 
>> He's going to ask Ms. Jori to clarify the deadline for everybody. 
>> It's November 23rd. 
>> CHAIR ANN RAVEL: November 23rd. 
>> November 23rd. 
>> CHAIR ANN RAVEL: Thank you. I mean, I suppose Mr. Noddy. 
>> We can take a shot at writing something up and if there are four votes for it, we have enough time to get that approved and if we come to the 23rd and there aren't four votes we'll send Mr. Reese the letter that there wasn't agreement. 
>> LEE GOODMAN: Or if it appears there's a need for more time maybe Mr. Reese you could first give him the opportunity to entertain a limited one week or something extension from the 23rd I wouldn't ask you for the extension today because you want to keep a fire lit under us but that sounds like a reasonable way to proceed to leaf this matter open and see what happens by the 23rd. 
>> CHAIR ANN RAVEL: Right. Okay. 
>> I appreciate that very much. 
>> CAROLINE HUNTER: I'm of course willing to look at whatever OGC drafts but I want to warn the requester that at least speaking for myself I'm not interested in agreeing to something that changes our precedent on this issue. And so I'm very cautious in doing that. And I think three of us are comfortable with our legal position. We answer the -- answered the question that you asked. I think that some of what's going on is people are not -- you're going to provide a service that you're actually not. And so in some ways changing the request which is what Commissioner Goodman said so I just want to caution while having to look -- you look at it I don't want to give you false hope. 
>> We are not interested in changing our business model that said I'm trying to get agreement on most of this opinion actually is in broad agreement the two drafts are not dissimilar for anything but the treatment on the recipient side and the two opinions actually both in concert advance the legal ball quite significantly on how we do this on whether ideological screen is even possible and particularly how funds are tracked and co-mingled both opinions I think modernize the way funds are collected and passed onto committees and I think it would be a real shame to give all of that up over a significant disagreement but that really doesn't affect I think most of the meat of either of these opinions. 
>> CHAIR ANN RAVEL: Mr. Vice Chair. 
>> MATTHEW PETERSEN: One follow-up. It might be of some use to provide a supplement of some sort kind of flushing out the commercial basis for the ideological screen if that were something that you could provide. I don't know if that miog help. But I know that's been one of the sticking points for some. But if there's something on that that might provide a little bit -- a little more information that might be helpful as well. 
>> Sure. 
>> CHAIR ANN RAVEL: Commissioner Weintraub. 
>> ELLEN WEINTRAUB: I'm not sure it matters. I'm willing to accept what Mr. Reese is telling us I don't want him to have to go out and -- I'm very sensitive to the fact that poor Mr. Reese was sitting here for many hours last time waiting for his chance at the mic. And I don't want to send you off to produce more paper and charge your client more for something that isn't really necessary. 
I take you at your word that there are business reasons for the ideological screen. I don't really need any more paperwork. 
>> My clients who are watching this appreciate your keeping in mind their fees. 
>> ELLEN WEINTRAUB: Yes, as I said, sorry about all that happened last time. 
And I just wanted to say that I think for those of us who support Draft A I shouldn't speak for my colleagues, certainly for me, we don't view this as rewriting your business plan. We view this like every other request that comes in. Somebody comes in and they say I would like to do X. How can I do that legally. And we say here is how you can do it legally. That's -- and we think it is perfectly consistent with the prior precedence. What's happened in a couple of these AOs is people cite and say just look this is like all of them to the extent it's just not like all of them the differences aren't really meaningful well they are meaningful to some of us you can cite Crowdpac but Crowdpac can be given to anybody and so I think skimmerhat, as well. So a lot of the precedents that are being cited are distinguishable from what's being asked here today and we too are trying to stay consistent with the precedents. 
But I would be happy to work with counsel and see if there's something that we can provide you that would be useful. 
>> CHAIR ANN RAVEL: Any other comments or questions? I have to agree that I don't need any further information about your reason for making an ideological business decision about using ideology. 
I don't know if you still want that information. 
>> MATTHEW PETERSEN: I just put it out there. 
>> CHAIR ANN RAVEL: Yeah. Okay. 
All right. So the plan is that we hopefully will have something from counsel. And be able to make a determination by the 23rd, if not, we'll get back to you and ask you for further time. 
>> Okay I appreciate that. 
>> CHAIR ANN RAVEL: Okay. Thank you very much. I appreciate you being here. Sorry about last week. Having to sit here all week -- all day I mean. 
>> That's quite all right. 
>> CHAIR ANN RAVEL: Thank you. 
The next item is Item No. 5 rulemaking priorities and proposals. There are a number of aspects to this but the first one is -- 
>> The leader has disconnected. This call will now end. 
>> Thank you for recognizing me I wanted to make a comment but I was waiting for the Advisory Opinion issue to finish off for the same reason that we're all concerned about keeping the gentleman here for longer than we needed to. 
>> CAROLINE HUNTER: But I just wanted to point out that there was a recent piece on Comedy Central. I think it aired on Thursday night. And the rhetoric here at the FEC has certainly gotten to a whole new level. Even I didn't know it could get much worse than it was before. But I just want to point out that I think that it sort of hit a new low on Thursday night on Comedy Central one of the things the chair said on there is three of the Commissioners do not believe in the purpose of the agency and I just want to ask you please don't speak for me in these interviews that you give out. You can say what you want. You can characterize some of our actions. We can have legal disagreements but please don't say that I don't believe in the purpose of the agency because that's not true. 
And secondly, you were asked the question, would you say that FEC is more or less useless than men's nipples? And your response was I would say that the FEC and men's nipples are probably comparable. There are things that are done that have some value just like men's nipples. 
And I just can't stress enough how inappropriate I think that is. And a disservice to the people who work here at the FEC. Many people here while we don't always agree with what they do, they come, they work hard, they review millions of pages of reports, they answer thousands of phone calls. They deal with the public. They put on excellent seminars. They work up reports in the enforcement division we're dealing with Advisory Opinions all the time and to say that this agency is comparable to that is just I think again a new low. 
And I hope you consider that what you say does have consequences. When it's aired on television but also when you're speaking to smaller groups of people, those things are reported as you know and I just wish you would consider not speaking for other people and being a little bit more sensitive to how what you say might impact other people. 
>> CHAIR ANN RAVEL: Thank you for your comments and let me just say that with respect to the staff at the FEC, I agree with you wholeheartedly. I think that the work that they do and the time they put into the important purpose of this agency is admirable. And I have never, ever said anything but that. In any public arena. So that Comedy Central as you said, it was a comedy show, it's not anything other than that. 
But that was in no way intended to indicate that the staff and the work they do is not important. I have said many times that I think this agency is a stunningly important agency. And the work we do is extremely important. 
However, my views about this Commission have been said many times before. And this was not a new statement. And it's a belief that I hold. And I believe you all are great believers in the First Amendment. And that's exactly what I was exercising my concerns about the operation of this Commission itself. And its willingness to follow what I believe to be the law that we are bound by. You and I just had a conversation about this at Georgetown. In which you demeaned the staff of the agency, by the way. So frankly -- well just a minute. 
So I'm still talking. 
>> CAROLINE HUNTER: Yes, you are. 
>> CHAIR ANN RAVEL: So I have no regrets about anything that I have said with respect to how this Commissioner and the Commissioners operate in this Commission and I think that we owe it to the American public to be doing our job. 
>> CAROLINE HUNTER: What was the last thing you said? Again you said three of the Commissioners do not believe in the purpose of the agency. How do you know what I believe? And that's not accurate. 
>> CHAIR ANN RAVEL: Well, then it would be good to see that in action. But that's just my view. 
>> CAROLINE HUNTER: It would be good that we interpret the law the way you see it is what you're saying I just heard a lawyer sitting here right now who said he didn't understand the position of the Democrat Commissioners I heard that last week too by another lawyer representing Senate Democrats and Hillary Clinton who said essentially the same thing in a variety of different cases. And so I don't think that you own the interpretation of the FEC. Apparently you do since you're the chair you think whatever you think -- however you think we should interpret the law is the way we should go and of course I disagree with that but again yes you have been saying this all year and you've been getting lots of press and lots of speaking engagements but again this is a new low and I'm asking you not to tell people what I believe. That's all I'm asking you of course have a First Amendment right to say whatever you want and yes I believe in that but don't speak for me, please. 
>> CHAIR ANN RAVEL: All right. The next item is Item No. 5. And the first part of this is the memorandum from Commissioner Goodman. 
>> LEE GOODMAN: Thank you, Madam Chair turning from comedy I would like to take up a very serious issue and that's one I have expressed many times at this Commission I won't give the speech again because when this was raised on October 20 I gave my speech about state and local parties. I reiterated it in an op ed in the Washington examiner on -- am -- Washington examiner on Monday of this week I won't belabor that other than to say I think there's a consensus in Think Tanks and practitioners that the parties need some regulatory relief so they can be effective democratic institutions. Before you is -- was originally document -- agenda document No. 15-54-A. You will recall at the meeting of October 20 I proposed several -- well not several but a few small edits to that document at the table. They are located in the document Section 1A. Those edits were discussed at the table on October 20th as well as in Section 1F. As a courtesy to the Commission I distributed yesterday an updated agenda document No. 15-54-A-1 and I added one provision at Section 1B2. So just by way of explanation we can give political parties greater freedom to work with their candidates I believe within the grain of the statute within the allowance of the statute to allow parties to redisseminate some materials by their candidates there are two legal approaches one I had proposed which was to expand the notion of what it means to be incidental or subordinate part of the parties own communication and that's reflected in Section 1Bi. 
What I've added here is there is another legal theory that might give them greater leeway and that is to conform the language of 11 CFR 1109 .C. To clarify that republication by a political party is not necessarily or per se a contribution because the language of the statute is that republication is an expenditure. Congress chose that word advisedly that leaves open the possibility that republished materials could be an independent ex penture. And only if there's coordinating conduct. 
With -- there -- with there then wouldn't necessarily have to be a contribution inferred from the expenditure. 
Eme suggesting since this is a resolution to commence the work that we develop both theories and approaches to it so I've merely added that to Section 1B. Giving the two alternatives to look at republication. And keeping all of the work in 109.37 which is the party coordination regulation. And keep itself contained in that section. 
I'm happy to answer any questions about this proposal if any Commissioner has them or I'll proceed to move document No. 15-54-A-1. 
>> CHAIR ANN RAVEL: Commissioners Weintraub. 
>> ELLEN WEINTRAUB: Thank you, Madam Chair. 
It seems to me that there are a couple of things going on in your proposal, one of which some of the changes I think could run counter to the direction that we got from the court in Shay's litigation when we initially and this was before my time the Commission initially came up with very narrowed definitions of what Federal election activity would be particularly as it we aretained to the State Party committees and those regulations were struck down and the court said you have to go a little broader than that. So with respect to those I don't know whether we actually can do what you're suggesting whether it would withstand legal challenge. I suspect it will be challenged. A number of your other suggestions, I mean basically the import of them is to provide more wider exceptions for State Party activity that's done in coordination in some sense I'll use that in the loosest most klolial sense at this point with candidates. So that it would have the effect of providing some relief from the coordinated spending limits. And that as you know has been proposed numerous times on the HILOGA. It is actually a controversial subject on the HILOGA. It doesn't have bipartisan support. 
And as I pointed out last time -- on the Hill. And as I pointed out last time even the renin center when talking about party relief said alleviating party coordination limits they wouldn't feel comfortable recommending until there was a stronger more consistent enforcement of the rules that are on the books here at the FEC. So renin center doesn't actually think we're doing a particularly effective job of enforcing the law. 
Every article I have seen that talks about the parties talks about it including the ones you cite to in your op ed talk about it in conjunction with talking about super PACs sort of a ying yang the parties are suffering and the super PACs are doing all of this stuff that people have concerns about. So I think that we have proposed on any number of occasions to go forward with something that was also the subject of Hill discussion and the answer we always get from your side of the table is no we can't do that we have to let folks on the Hill deal with that, it has to be deltd with by legislation that happened as frequently as last week when we had a petition in front of us overwhelming public support almost all of the comments we got thousands of them saying please go forward with the rulemaking petition and the answer we got is no if something is going to happen in that area it's a Government contractor petition we think the Hill would have to do it. So I could just stop there. I could just say therefore since it's this topic of discussion on the Hill and the Hill is divided on it I think we ought to leave it to them. But actually, I'm willing to go forward to ask OGC to start drafting a rulemaking if you're willing to address both sides of the problem. And as I said, I think both sides of the problem are what's going on with party committees and what's going on with super PACs that's why the chair and I have drafted a proposal to address super PAC coordination with candidates. And I don't want to speak for the Chair but I know I would be happy if you wanted to elaborate on that, provide other alternatives to our proposal in the same rulemaking document. 
But I think this is one of those if you'll help me out I'll help you out. If you are interested in asking the counsel to work on drafting a Notice of Proposed Rulemaking on coordination issues that would address both your concerns about the parties and our concerns about super PACs, I'm with you. I'll do it today but I'm not willing to do it in a one-sided fashion that's why we rushed that document on to the agenda today and I know you saw we only got it out yesterday and you haven't had a lot of chance to look at it I don't want to rush you on anything but that's basically that's my counterproposal. 
>> CHAIR ANN RAVEL: I have to say I agree with Commissioner Weintraub in this. I think this is a bilateral issue. I've heard everyone from the lawyer for the Republican Party to you to others who came before us at our party meeting last year saying that part of the problems for state and local parties and the National Party is because of the existence of independent expenditures and the unlimited amounts of money. So there needs to be some relief for the committees for the party committees. 
I don't disagree with that. I think that there needs to be some changes. Although, I don't agree with your Federal election activity proposal for the same reason that Commission wine trawbing -- Commissioner Weintraub spoke about and while I want to do something about party volunteer activity, because I care a lot about grassroots activity and what the parties have done in that regard, it seems to me that some of the things that you have suggested here don't really relate to that. And so I have some concerns about that. For example, adding that direct mail means a mailing performed wholly by a commercial vendor. I mean things like that don't really relate to volunteer activity as far as I can tell. I'm really open to any other ideas or thoughts that you might have about how to increase volunteer activity because that as you know is something I care about. 
But I, too, think that because these issues are inextricably intertwined that something with respect to coordination generally together with your party coordination proposals and maybe a different look at volunteer activity and we could ask counsel to look at that would be something that I would also agree with. 
>> LEE GOODMAN: Wow that's a mouthful and those are a lot of roadblocks being placed in the way of doing what we can do to help state and local political parties who have expressed at our last meetings and at our forum requests that we work and do what we can to provide them regulatory relief. 
Madam Chair, you say you want to help grassroots activities, you want to help the political parties but you disagree with allowing them -- giving them greater working within the incidental exception that Shays itself gave us and said if it is incidental it's permissible which suggests we start work by drafting around the concept of incidental grassroots voter identification, voter registration and Get Out the Vote activities. There can't be anymore virtuous type of activity and I'm suggesting we work within what the court in Shayys gave us which was an incidental exception we have it drafted and put out for comment but Madam Chair you say you can't support that. 
Then you say you cannot support my proposals to increase more volunteer activity. What can be more virtuous than encouraging people to volunteer their activities to participate in mailings and phone banks and the types of things that state and local parties do we want to encourage so you have just taken out numbers 2 and 3 of this proposal now Commissioner Weintraub, you talk about coordination and the limit the limits that is a Congressional act I'm not saying we do that it will take Congress to change the limits or eliminate them I'm not proposing we do that. Just is sec. 
I'm proposing that we work within the grain of prior AOs and MRS here to find ways within our regulatory wherewithal to allow them to work even closer with their candidates to make them more relevant to their candidates to give them causes and reasons and abilities to work together. We had an opportunity that I've addressed here for example the lampsin case where the Congressional candidate Lampsin in Texas transferred money to the state Democratic Party of Texas. 
All of the money that came into Lampsin was subject to Federal limits. It was publicly disclosed. Lampsin's transfer of money to the Texas party was fully disclosed. 
The Texas party then spent money apparently to do a mailing on behalf Lampsin, now where is the corrupttive potential there and we have within the grain of our regulations the ability to allow the Texas Democratic Party to provide a service to it's own nominee for this and it doesn't take an act of Congress to do that. Congress hasn't addressed that issue. Congress will in its due course address coordinated limits. But this doesn't get rid of those limits. It works within -- this is a very modest proposal. Allowing candidates to provide biographical information to the party for the party to provide biographical information in their own brochures to share public polling data which in and of itself is not inherently coordinating and that's what the court said in the Christian coalition case I'm just saying some of these are mere clarifications this isn't all new legislation so what I hear is I hear strong objections to allowing the parties to work more closely with their candidates I hear objections to bringing more parties into headquarters to allow them to participate in phone banks and I hear strong objections to trying to use an exception that the court gave us in S had, ays yes to work to try to expand it, at this mate draw a lot of negative comment that it is facially unlawful. But we can begin to work with this in order to if we're going to err on the side of regulation or freedom here, why don't we err on the side of working on the exception shay gave us to fight for voter registration and voter Get Out the Vote drives and voter identification and patching out early ballots and harnessing voters early to the polls. Which is what the parties do. You know we just punished the Orange County Republican committee with I forget what penalty they finally agreed to but it was about $30,000 for doing what? For getting out the vote. Because they used leaven funds transferred them by the California State Party the Federal Government punished the Orange County Republican committee to the tune of about $30,000 for registering voters and turning them out to the polls. There's something incredibly perverse about a law that does that punishes Americans for registering voters and turning them out to the polls here we have an opportunity to work within the grain of the law that shays gave us and yet all I hear is objections, objection to that, objection to No. 2, objections to No. 1. Madam Chair, I move that the Commission adopt agenda document No. 15-54-A-1. A resolution of the Federal Election Commission commencing work on a Notice of Proposed Rulemaking focused on strengthening political parties and that we get on with the work of strengthening the most democratic of political institutions we have in America today, the state and local political parties. 
>> CHAIR ANN RAVEL: Thank you. 
>> ELLEN WEINTRAUB: Thank you, Madam Chair, boy Commissioner Goodman, you ought to run for office, you are just so good as those stem wirndz I hear all of those objections. I said I wasn't sure it would withstand legal scrutiny I think we have to worry about that but I said I would be willing to put every single one of your ideas out as long as you're willing to work with me at the same time. That's the real problem is you only want to do what you want to do you want support for your proposal you're not willing to give support for my proposal. 
The import of expanding the volunteer exception of the coward Nate spending limits is that it effectively raises the coordinated spending limits that's what I'm talking about. The way the volunteer cases come before us typically is actually the volunteers are being used as window dressing. The volunteer material has been put in place when State Party committees would typically have rooms full of volunteers stuffing envelopes and stamping envelopes and people don't do mail that way anymore because it's not efficient what we end up with are a series of cases where they bring in a couple of volunteers to move the bag from one side of the room to another and they say is that enough, is that enough to get us into an exempt category so the cost of the mailing doesn't count towards our coordinated spending limit that's what we're talking about is how much money can be spent in coordination. 
I understand that you think there shouldn't be any limits on this. Congress passed a law in 2002 that said that certain State Party activities are going to benefit the Federal candidates on the ballot therefore they put certain limits in place I understand you don't like that law but that law is on the books. 
But as I said, I am perfectly willing to put every single one of your ideas in a Notice of Proposed Rulemaking and out for comment. But let's be even handed about it. I would love to hear the same offer on your part that you're willing to put my ideas out for public comment while I'm willing to put your ideas out for public comment. 
>> STEVE WALTHER: I wanted to say that I'm in sync with the concept of putting this out. But I'm also in sync with the concept of taking a look and seeing what we can do with Commissioner Weintraub's suggestion that we take these other issues which are getting just as much contention in the press and the public and everything else, those issues are important but in your comments you didn't address those so what do you think about commenting on hers? 
>> LEE GOODMAN: I'm sorry? 
>> STEVE WALTHER: I think the criticism was that there was negative reaction to your suggestions but on the other hand I don't think that's totally accurate. Asking if you want to balance it out. 
>> LEE GOODMAN: On the issue of coordination they are non-linear. It is a non-linear response. The articles, by the way, -- Madam Chair I have to correct you. When we had a forum the Republican lawyer who spoke was John Filipy the chief counsel Republican National Committee he's here today. 
>> CHAIR ANN RAVEL: Good morning, welcome. 
>> LEE GOODMAN: I have a specific memory of him standing up saying that he was not here advocating the restriction of anybody else's First Amendment right under Citizens United or here criticizing Citizens United but he agreed as I agree that we needed to strengthen the political parties of America long before Citizens United. Citizens United and the elevation of the First Amendment rights of certain speakers may have crystalized some of the weaknesses that the parties were suffering at the hands of current regulation. 
But I don't support the strengthening of the political parties because of the existence of Citizens United. 
>> CHAIR ANN RAVEL: I wasn't suggesting that and I wasn't referring to Mr. Fill pie. So I was just referring to somebody that I was on a panel with who is well known lawyer for the Republican Party. 
>> LEE GOODMAN: A different panel than our forum. 
>> CHAIR ANN RAVEL: A differently panel than the forum. 
>> LEE GOODMAN: But secondly, but again on this super of super PACs I'm not going to restrict somebody else's First Amendment right just to free up the First Amendment rights of the political parties. They stand alone need strengthening. 
And some in Government view the First Amendment rights, all these speakers out there, to be like a team of horses that we get to drive as Government. And as the Supreme Court freed up some of the horses to run more freely in Citizens United, we're looking at the reigns that we have on the horses and somehow, well maybe we'll give those horizontal a little bit more room to run oh but we're going to reharness those horses and pull them back a little bit I don't view it as governments role to view the team of horses in free speech like that I'm talking about one horse in this race and that's the political parties. And they need regulatory freedom and they needed it long since Citizens United. 
Second, tweaking around the edges of coordination with super PACs, indeed reversing in your proposal 4-2 votes that were held just last week at this Commission is not going to realityer the playing field of speech between the parties and interest groups that engage in Super PAC speech. It may tweak them on some coordination issues but it won't fundamentally give the parties their relative rights against the Super PACs. The problem to the extent that the articles discussed the problem with the Super PACs is that the Super PACs get to speak very loud by with resources that are unlimited while the parties are shackled with limits as well as all of these other regulations. So it is not an antidote to the Super PAC problem. Just to address coordination issues with the Super PACs. The problem to the extent it exists and it's a relative or competitive problem is that Super PACs got the right under Citizens United to speak with unlimited funds to the competitive issue will still exist even if you address coordination with Super PACs new rules. What would be perhaps lateral and what I was thinking we might get, what would be related and germane to this proposal would be the proposal to begin also addressing the new accounts given to the political parties, Mr. Noddy has prepared a memorandum for the Commission to consider that's 15-54-B agenda document an outline of an NPRM implementing parties segregated accounts I don't agree with everything in it or the rationale of everything in it. But if you want to take a comprehensive look at the subject that's on the table right now we could marry up those two proposals and ask the Office of General Counsel to begin writing a comprehensive party rulemaking now that would be linear and that would be related and germane to this proposal so that's my reaction to the hostage taking that's going on with the coordination of Super PACs. And I think it's -- it just has to be understood by anybody out there, I want anybody listening from state and local political parties to know who your friends are. They are on this side of the table. 
>> CHAIR ANN RAVEL: Commissioner Weintraub. 
>> ELLEN WEINTRAUB: Never mind. 
>> CHAIR ANN RAVEL: Right. 
>> LEE GOODMAN: There's a motion pending. 
>> CHAIR ANN RAVEL: Did you want to speak. 
>> LEE GOODMAN: We can continue discussion. 
>> STEVE WALTHER: We can do it before or after the motion. 
>> CHAIR ANN RAVEL: So there's a motion pending. Any further comments, questions? All those in favor please indicate by saying aye. 
(Chorus of ayes). 
>> CHAIR ANN RAVEL: All those opposed 
(Chorus of nos. 
>> STEVE WALTHER: No not today. 
>> CHAIR ANN RAVEL: Madam Secretary that motion fails by a vote of 3-3 with Commissioners Goodman, hunter and Vice Chair Petersen voting aye and Commissioners Weintraub, Walther and myself voting no. 
>> LEE GOODMAN: Just a comment for those who care about the political parties who may be listening and watching this issue I just want to assure you that this is Round 1 in this debate this is not the end of this debate, thank you. 
>> CHAIR ANN RAVEL: And I agree with that actually. It should be Round 1 and that's what we were I think trying to say that there's will on this side of the table despite what you've just recently said to do something in this regard. Commissioner Weintraub. 
>> ELLEN WEINTRAUB: Thank you Madam Chair. It's a little bit out of order but since it still pertains to Commissioner Goodman's proposal I would like to make another motion. I move we direct the Office of General Counsel to draft a Notice of Proposed Rulemaking that would include all of the proposals that Commissioner Goodman has set forth in agenda document 15-54-A I believe. As well as the proposals that the Chair and I put in 15-54-D. And as I said we are open to any other proposals on these topics that our colleagues would like to include in that rulemaking document. You can -- there's a lot of characterizing -- I'm sorry; there's also -- I'll also include 15-54-A1 which I guess was the revision of your original proposal I'm trying to include all of your most current ideas in my proposal there was a lot of characterization of other peoples' views which some on your side of the table seem to take exception to but I guess not all. 
But you know you can set it up and say, well, my proposal is linear and yours isn't. You know that's your view of it. But I think a lot of people out there would think that the issues that we're trying to bring up on coordination indeed ought to be discussed in a way that includes all of these coordination issues. I don't know that there's any greater logic to saying that we're going to talk about party issues in this rulemaking as opposed to we're going to talk about coordination issues as they affect parties and other entities in another rulemaking. 
You know, you characterize it your way. I characterize it my way, potato-potato. Motion on the table. 
>> CHAIR ANN RAVEL: Are there questions, comments? About the motion. 
>> LEE GOODMAN: Yes Madam Chair. If I -- I got this around 5:00 o'clock yesterday. I believe it came around 4:30 and I think I didn't look at it until late in the afternoon. So I barely had a chance to skim it. But if I understand it right, it would reverse decisions that we made last week. 
>> ELLEN WEINTRAUB: We would like to put that out in a rulemaking context for consideration. I think the view was expressed at the table last week that some of those decisions might be more appropriate in a rulemaking context. So they don't reverse anything. They just put them out for comment. The main thrust of the document is to take a look at the relationship between candidates and Super PACs particularly single candidate Super PACs. A day -- certainly a week doesn't go by and sometimes it seems like a day doesn't go by when I don't read an article in the paper suggesting that candidates are just making a mockery of the lines between themselves and their -- and these single candidate Super PACs that are out there. Supporting them. It appears they are acting very much in partnership with one another. Some of us think that's an important problem we ought to address in the rulemaking context. 
>> LEE GOODMAN: May I acquire about the definition of rulemaking spending. 
>> ELLEN WEINTRAUB: Sure. 
>> LEE GOODMAN: You would include an organization spending on candidate research and polling. 
>> ELLEN WEINTRAUB: I believe that is election related. But as I said you can put forward another alternative. 
>> LEE GOODMAN: A nonprofit organization wants to research candidates and their voting records in order to put out candidate scorecards for example or how candidates have voted on the issues that matter to us would that now be regulated as coordination? 
>> ELLEN WEINTRAUB: Well if that organization has a employer independent contractor with a candidate family member or previously worked as an independent contractor for the candidate or committee authorized by the committee in the past year or has received fundraising support from the candidate, the candidates campaign the candidates immediate family member or staff in the past year or shares a common vendor with the candidate and common vendor provided any of the services listed in CFR 10 9.29 D 4 2 or has been public lib identified by the candidate as a vehicle for supporting that candidate in the past year but as I said this is a preem if you want to add alternatives, happy to consider them. 
>> LEE GOODMAN: I just have never -- you're asking me to vote for something that came out around 5:00 o'clock yesterday and I'm just trying to consider some of these issues that means if a nonprofit organization has an employee who also works at a campaign and conducts research in order to publish just a voter guide, that nonprofit organization would then be guilty of coordinating with the candidate. 
>> ELLEN WEINTRAUB: Only if one of the other factors I read out was true. 
>> LEE GOODMAN: That's what I said if an employee was common also works for a nonprofit group also works for a campaign and then the nonprofit group decides to research candidates voting records and Congress and publish a voting guide then the voting guide the expenditure on that would be coordinated under this proposal. 
>> ELLEN WEINTRAUB: That's the proposal we would put out for comment. 
>> LEE GOODMAN: Nonprofit groups would have great concern about this. 
>> ELLEN WEINTRAUB: They will comment on it then. Let me apologize for getting it to you so late in the day the reason got it to you was because you had been pushing to have a vote on your proposal and as I have explained, I think it's only half of the problem that we need to address so we wanted to put something in front of you if you want more time to think about it, I'm happy to withdraw my motion and we can bring it back to the table next time. 
>> LEE GOODMAN: I guess what I could have benefited from is a presentation of it and a walk-through of the document before I was called onto vote for it I did that with my party proposal on October 20th I walked through it I know I got gri maces here I walked through it point by point and cited Advisory Opinions and statements from which things came I think we could benefit from at least having this explained at the table before I'm asked to vote on i 
>> ELLEN WEINTRAUB: It draws if this is helpful to you from not only a proposal that I had put my colleagues a long time ago but also from Richard Befalls work at Columbia and the recent rulemaking that was done by the California Fair Political Practices Commission. 
>> LEE GOODMAN: It might also be helpful for the public to have a little bit more time to consider this. 
>> ELLEN WEINTRAUB: As I said I'm happy to put it over to the next meeting the only reason I put it on the agenda at this point was because we wanted to pair it up with you. 
>> LEE GOODMAN: If we can put this over that would.helpful. 
>> CHAIR ANN RAVEL: I'll get to you Commissioner hunter but with regard to the basis for it and Commissioner Weintraub spoke to this professor Befault testified before this Commission and talked about this he's filed comments as well and has written a number of law review articles, he's well respected -- 
>> LEE GOODMAN: Was that in connection with the February hearing. 
>> CHAIR ANN RAVEL: Yes. 
>> LEE GOODMAN: I'll pull his comments. 
>> CHAIR ANN RAVEL: He's also spoken -- he's also commented to the Commission extensively. There's a lot of material in the public record at the Commission to his ideas Commissioner hunter. 
>> CAROLINE HUNTER: With respect to the notice of availability that the Commission voted to put out in I think it was June, as you know that was originally a propose by Commissioners Weintraub and Chair ravr vel. They withdrew it and then it was followed by a citizen and there's one just one area of that Notice of Proposed Rulemaking Paragraph 4 ensuring the independence of independent expenditures. 
And the only overlap that I see just reading it very quickly and I could have missed something or the main overlap I should say is in the last paragraph the Commission should also adopt rules that deem all spending by outside groups that effectively operate as quote the alter ego of a candidate as coordinated spending and drops a footnote to Richard Befaults article in the Columbia law review. So does this proposal supersede the notice of availability? Are we planning -- are you planning on voting no when that comes before the Commission? Because it seems to me that this is sort of a more detailed proposal of at the time what I criticized then as just very vague notions of how to fix things. And as I said at the time, I didn't think it was useful for the public to comment on ideas that were way too vague and broad. So it seems to me that maybe this supersedes the consideration of that am I right. 
>> ELLEN WEINTRAUB: Well, no, because although I'm interested to hear that that was your perspective, I thought your perspective was that you didn't want to support it because I was in person. 
>> CAROLINE HUNTER: That was yours not the second one. 
>> ELLEN WEINTRAUB: The second one has been submitted by public citizen and by a side so I don't see how I can supersede a notice that we put out that was a petition by two other people. 
>> CAROLINE HUNTER: We have to vote on that right we voted to put it out for public comment it's out for public comment and the deadline came and went a few weeks ago. 
>> ELLEN WEINTRAUB: It's not on the agenda today. 
>> CAROLINE HUNTER: Right but I'm asking that's going to come for a vote of whether or not we open a rulemaking that's the next step right. 
>> ELLEN WEINTRAUB: Yes but that petition addresses other topics not addressed in this document so yes you'll have to vote on that one, too. 
>> CAROLINE HUNTER: I can't wait. So are you going to vote on that but peel out the coordination part? Because it seems to me as I said that this proposal that you circulated for today appears to be a more detailed version of Paragraph 4 again ensuring the independence of inspect expenditures. 
>> ELLEN WEINTRAUB: As I said that notice of availability is now acquired a life of its own it's in response to a petition from people who don't sit they table and nothing I do in making a proposal today is going to supersede what happens with that petition. That petition will eventually come back to us for a vote as to whether we should open a rulemaking. 
>> CAROLINE HUNTER: I'm asking are you going to ask to open a rulemaking on this section or does this supersede it. 
>> ELLEN WEINTRAUB: I said it does not supersede it I've said it three times I believe and that petition as I said will address other issues that are not present in this document. 
>> CHAIR ANN RAVEL: Okay. There was a request to -- 
>> ELLEN WEINTRAUB: I withdraw my motion so that my colleagues can have more time to think about it. 
>> CHAIR ANN RAVEL: All right. We will put this matter on the next open agenda in December. Thank you. 

Then there are a few more items that relate to this rulemaking priorities and proposals that we have not discussed. We discussed 15-54-A. And then there's 15-54-B. And draft Notice of Proposed Rulemaking on technical modernization. Excuse me? Oh, is it? Okay. I've got it incorrectly then here. Sorry. I see, sorry. This is 15-54-C. And it's the draft Notice of Proposed Rulemaking on technical modernization. And we have with us Jessica excuse me -- yeah. Let's come back to B afterwards. 
Jessica Selencoff here would you like to make a presentation, please. 
>> Thank you, Chair Ravel when the Commission was established most contributions and disbursements were made by check with carbon copies these were likely sent by postal mail. Business records were on paper and written communications were delivered by postal mail or for the technologically forward fax. 
Today a financial transaction can be entirely electronic. A payment can be made by credit or debit card through international based payment processors, online banking or text message. 
A payment can be transferred to a Bitcoin wallet, a check can be deposited on your SmartPhone through your bank's app with no paper moving at all. 
And the records of these transactions may be in a screenshot an email or other electronic record with images, text or emogi. 
The draft Notice of Proposed Rulemaking in agenda document 15-4-C also known as hash-tag techmod and technological modernization nod technical modernization proposes revisions to over 100 Commission regulations from administrative regulations in Part 1 through regulations that implement the Federal Election Campaign Act such as the conduit rules that were and are at issue in the Advisory Opinion skivd today to the -- discussed today to public finance at public 39 to address among other things the receipt, deposit, forwarding and record keeping of electronic transactions. 
The notice also proposes eliminating references to outdated technology such as telegrams and updating references to computer and Internet terminology such as worldwide web and Web sites two words thank you and I would be happy to answer any questions you may have. 
>> CHAIR ANN RAVEL: Thank you that was very succinct given the length of this document. Are there any questions? Questions by any members. 
>> LEE GOODMAN: This is admirable and I think work went in this and I know you spent a lot of time reading treatises on distinguishing technologies first of all I want to commend you on putting together a very complicated piece of work we lawyers don't always understand the technologies behind what we regulate so this is a very good first step to things so I want to commend you on a very good piece of work. I have a question on Page 44 for example on Bitcoins. You choose the phrase digital currencies. I always thought of these digital -- I call them alternative media of exchange. And what's the difference of currency versus a medium of exchange I thought that was one thing we struggled with whether this was currency, currency of the United States whether to treat it like cash I didn't know if we were already biasing the subject by using the word currency with respect to these Bitcoins and other digital currencies. I thought we might say Bitcoin or other digital or alternative mediums of exchange. 
>> The document is not intended to presume the answer to whether or not this is currency I know that's an issue the Commission addressed in the two Bitcoin Advisory Opinions it considered last year and the year before. 
I think the term digital currency was intended to use as used by other entities considering these issues right now the finsin uses the term and has defined and explored the term academic writers are exploring it as to the economic theory as to whether or not it's current for a commodity for example. I don't think this document was intended to answer that question for our purposes. I know again that's an issue the Commission struggled with and grappled with. Previously. Before deciding to not necessarily answer the question but to treat Bitcoin via our framework for in-kind contribution reporting. 
>> LEE GOODMAN: Okay. 
>> Mr. Noddy was pointing out the statute and regs use the terms currency of the United States or of a frorn nation I believe is the other term this is not pretending to change that definition. 
>> LEE GOODMAN: I'm not sure in the citations to footnote 88 that you have here. I apologize I did not pull it before coming here to hear your presentation today but I do recall there was a treasury statement at some point and it may be one of the cited documents here. Where the treasury concluded that Bitcoins are property and not currency. Is that -- is that the conclusion of one of these items that's cited here? 
>> That's the IRS gave guidance as to the treatment of Bitcoin as I believe it was similar to a commodity. And not as currency. I believe that's what you're referring to. What the fin sin citation in this footnote is the one I was referencing earlier. 
>> LEE GOODMAN: What does that one conclude. 
>> That is the one that used currency in scare quotes. It used currency as used in this note as scare quotes. 
>> LEE GOODMAN: Someone is holding your nose at the use of the terms. I was wondering if we ought to consider in this draft being -- not using the word currency so quickly and freely given that I just know that it's been the treasurer's department position that it is not a currency. It is not money. It is property. 
>> CHAIR ANN RAVEL: Did you want to respond? 
>> LEE GOODMAN: It's really my comment is we ought to consider that I'm not proposing an amendment to anything today but I think we ought to consider being very careful in the words we choose because we know the second we start putting it in the box of currency, while I understand the regulation says currency of the United States, some people take the word currency and take liberties with that so I think we have to be very careful about that as you know there was a disagreement among Commissioners on whether to limit it like currency of the United States to $100. And if it is just product and it is an in-kind, then some of us believe that the limits of contributions differs dramatically from the $100 limit so that's why I'm concerned with the language we use. 
>> CHAIR ANN RAVEL: Do you have further questions. 
>> LEE GOODMAN: I have others but -- 
>> CHAIR ANN RAVEL: Does anybody else -- Commissioner Weintraub. 
>> ELLEN WEINTRAUB: I'll comment I just did a quick Google and I found several Web sites that refer to Bitcoin as digital currency so it's -- they didn't make this stuff up. 
>> LEE GOODMAN: Certainly Web sites are free to -- I don't know what sources you are on. But I would source at least as we d previously as we debated we d cite the Treasury Department's position that it's property and not currency. 
I'm going to ask about somewhere in here I believe it's on Page 61. You talk -- are you talking about expanding the definition of public communication to include Internet enabled devices or applications? So in other words? Right now if I pay an advertising fee to post my political ad as a box ad or some other form on somebody else's Web site, we treat that as a regulated expenditure, right? 
>> It would be defined as a public communication. 
>> LEE GOODMAN: Public communication. And if it's a for fee advertisement, we regular that. 
>> As a public communication that would be subject to the rules for Federal election activity for coordination and for the disclaimer rules. 
>> LEE GOODMAN: For disclosures and IEs and all of those purposes so what you're preparing here is that -- I'm sorry; you're not proposing it. What this document proposes for public comment I want to be clear I'm not attributing you have decided any of these issues. Is that we ask the public whether we should expand our definition of public communication to regulate not just Web sites but Internet enabled devices and applications. 
>> I'm not sure everyone would say expand is the correct word there. Only because it's intended to recognize that when the Commission adopted the word Web site in the definition of public communication in 2006, it explained in other parts of that document the Commission's understanding of that term. To include podcasts for example, certain messaging apps or applications, I don't think the word app was quite in common usage in 2006. And this document would propose to revise the rule text to reflect that reality as it's currently experienced. 
>> LEE GOODMAN: Okay. So if we are going to instead of I won't use the word the pejorative expand. Clarify perhaps. If we're going to clarify that we're going to now regulate for-fee and I can't imagine all of the ways it's not just banner advertising in an application for example, right? I mean applications may disseminate political information throughways other than a traditional Web site ad. I could pay to have a game for example that is how to elect Jim Smith for President. Right? I mean it could be that but if I'm paying to do that, we would then regulate that like we would a banner ad on a Web site? That's what the clarification I asked for comment from. 
>> If it were paid to a third party application. 
>> LEE GOODMAN: I pay an app provider to create a game. 
>> If it's your own app that you're creating, that would not be included in the proposed definition the backend payments I believe that you're asking about were not contemplated as being included. It would still remain as currently defined where it's as currently defined a public communication and excludes communications on the Internet except for those placed for a fee on a third person's or another person's Web site. That frame would remain. 
>> LEE GOODMAN: It would still have to be a third party's app. 
>> Correct. 
>> LEE GOODMAN: Or Internet enabled device. 
>> Correct, it would still be a type of of the general public political communication that's contemplated currently. 
>> LEE GOODMAN: Is the the full gamut Internet enabled devices and applications I think of other things but I know you've been reading the treatises like platforms, there are things, aren't they that are perhaps a hybrid between a Web site and an application or are they all going to fall within -- as long as we're in the process of updating -- Internet enabled device or application are there -- are there other things. 
>> There may be and that's actually a particular question that would be most interested in hearing from the outside world about is how to -- what is the universe and how do we capture it accurately in regulatory text. And just to take a step back for a second, the purpose of this proposal is not to change the Commission's regulations. It's to take some -- in the regulations being discussed right now it says Web site. The word that's used is Web site and in 2015 that word, it's unclear and confusing to everybody, Commissioners and the outside world, what does Web site mean in 2015 when communications are happening in non-web Internet formats. 
So the purpose of that and many of the other proposals is to make the wording of the regulations sufficiently flexible that the Commission doesn't have to -- so that the Commission can apply the regulations case by case in the future as new technologies arise. without having to struggle with inherently obsolete language in the regulations themselves. 
>> LEE GOODMAN: I get the drill. I appreciate it. But I guess I'm just trying to understand so in other words we're going to -- we would field test Internet enabled device and application and see if that carries the water? 
>> We ask a question to -- we propose asking a question soz to whether there's better terminology some of the things are you have software applications and an app the terminology itself is hard to settle on for regulatory language what we came up with we hope would provide the flexibility that Mr. Noddy discussed while still getting specific enough that people understand we're talking about an Internet enabled Xbox as well as where there have been political advertisements already that have been disclosed. As well as an app as well as a Web site and other technologies. 
>> LEE GOODMAN: I sfoz the commentary or advocacy in an -- I suppose the advocacy in an application may take on a different form than just a paid advertisement. That's I guess applications operate in so many different ways it may not show up as a banner ad. I think we just need to think through all the ways that people use data now for example and embedded in the data is perhaps an application that people subscribe to and somehow your advocacy is making it through to those people. And whether we're going to regulate as a paid advertisement or something else applications just operate differently and the banner ad doesn't look the same through an app as it does on the old Web site. 
If we do test drive Internet enabled device or application to clarify instead of expand the regulatory field of what is regulated as a paid public communication are we also going to test taking the same language into all the exceptions for example whether it is an exception under 100.94 and 100.155. Where there is an exception to coordination under the definition of definition. Are we going to take -- whenever we arrive at new language, are we going to provide the same clarification on all of the things that the communication that the Commission has already exempted and make it a corollary -- make the corollary change. Or does that not fit because different language for example 100.94, 155 have the broad term Internet activities in those regulations they currently define Internet activities differently than you would see elsewhere I guess what I would asking should we also be carrying this language and have it everywhere we address the Internet. Jess Jess the volunteer Internet discussions you're requesting say it's a subset for Internet activities but as far as the provision things you discussed incorporate public communication so in answer to your question, yes, this would be carried over into that by nature of the proposed revision to the definition of public communication would be applied in that context. Additionally other exceptions such as the de minimis activity where it's also not incorporated by the definition of public communication for example but separately may create an exception for certain Web site activity, this draft does also propose to amend that provision as well so as to apply the exception to apps. 
>> LEE GOODMAN: It goes into that and expands the language. 
>> Yes because the definition of public communication isn't the -- as it is in the volunteer Internet exception. 
>> LEE GOODMAN: Okay. I may have missed it. But the press exemption talks about Web sites. The Commission put Web sites into the press exemption but I didn't see that here. So would we -- since we're already discussing Web sites would we clarify in the press exemption Internet enabled device or applications as well there? 
>> I have to refresh my memory of that provision. 
>> LEE GOODMAN: Let's look at it real quick. It does reference Web site capital W two words. 
>> LEE GOODMAN: So I understand global change we would change the press exemption to change the spelling Web site to be one word right. 
>> I don't think the document proposes incorporating apps there as a means of conveying a new story editorial commentary. 
>> LEE GOODMAN: I have used applications on my Samsung. 
>> I think it could be amended if you so chose, absolutely. 
>> LEE GOODMAN: I need more time to think through that language Madam Chair, I don't mean monopolize the questions. 
>> CHAIR ANN RAVEL: It looks like everyone else has tuned out so you go ahead. 
>> LEE GOODMAN: Okay well then -- 
>> CHAIR ANN RAVEL: Just kidding of course. 
>> LEE GOODMAN: For the benefit of everyone who is listening at home because no one is listening here, let me ask you one thing that I didn't see -- and -- there have been a lot of payment processing AOs and it looks like you try to harmonize those here or at least put it out for comment to turn those into a rulemaking, we also have had a lot of AOs including one today regarding -- regarding online and web based platforms for giving indeed today's is an application I believe today the one before us today was both a Web site platform as well as an application. You could participate in it either way. Any thought as to whether we should address platforms for donating through this vehicle? We have skimmerhat Repledge brook Crowdpac we have the one we handled today. 
>> I'm going to defer to Mr. Lutz who focused on the proposed revisions to the conduit in forwarding rules for that section of the document. 
>> CHAIR ANN RAVEL: Thank you Mr. Lutz. 
>> So yes the document does try to address and incorporate some of those advisory opinions in those opinions. 
>> LEE GOODMA-- what page should I be looking at. 
>> Pages 34 to 39. 
>> LEE GOODMAN: I do see it I'm sorry I just worked through it and missed those. Do you address at all the issue we addressed today? Would that be -- 
>> Are you referring to who the service would be provided to. 
>> LEE GOODMAN: Who the service would be provided to or whether or not limiting working one side of the fence for example would somehow convert you as not working for the user of your application but working for the political committee. 
>> That's on Page 37. And the current regulations and the exception to the definition of conduit don't squarely address all of the types of transactions that have come before the Commission and we're trying to revise the regulations to give space for those types of proposals. 
>> LEE GOODMAN: I'll have to study this one a little more closely but thank you for drawing my attention to it Theo. Let me ask a couple of questions then. About record keeping requirements. Beginning on Page 10 we recognize that people keep records a little differently but some campaigns especially small Congressional campaigns are not completely digitized. 
So let me ask you, what do we mean by retrievable and reviewable in all form and what kinds of records were we considering that inspired that language retrievable and reviewable in all form I believe it's Page 10 starting at Line 15 but I'm not sure that language comes from that page bear with me. Page 10. Line 18 on Page 10. 
>> For those not following along on the document as a preliminary matter it doesn't require the use of electronic records it's just an attempt to provide the space for including those electronic records that people do keep within the definition. We are trying to anticipate based on a number of sources, the sorts of records that could be kept for purposes and that's used on Page 9 on footnotes 23 through 27 it lists the sources we looked at. From which we drafted potential language for the consideration including the Federal Rules of Evidence, Federal Rules of Civil Procedure, black's law dictionary and then two other sources that focus on electronic records. The uniform electronic transactions act and the e-sign act. . 
>> Just to add one consideration. 
>> CHAIR ANN RAVEL: Yes Mr. Noddy. 
>> Nothing in these proposals is intended to foreclose the ability of entities that are permitted to file on paper and submit on paper. The ones that are allowed to under the existing regulations. Nothing is intended to remove that ability. 
>> LEE GOODMAN: Or maintain records in paper if people aren't ready to go all digital. 
>> If they are allowed to the regulations don't allow everybody to make all submissions electronically. 
>> LEE GOODMAN: Submissions back at home office or in the campaign headquarters in other words if you want to stay on paper you can stay on paper we're just updating if you're going digital here we would begin to adapt language again seek comment on how to do that. 
>> Yes. 
>> LEE GOODMAN: Let me ask if we have contemplated these questions to the people about what happens if you're changing hardware, software and the computer eats your paper. Obviously that can happen in paper form, too, you can have a fire and a lot of things but have we considered and put out questions or is there already precedent in the agency I just don't know about what happens when you're required to keep records for three years. We update regs to say we can keep records in digital form what happens when the computer eats the document what happens when a vendor has a computer crash? What happens -- I mean, I'm wondering if we should ask those types of questions whether digital records present digital records of best -- about negligence and the obligation to keep it for three years. 
>> The document before you doesn't propose changes to existing approaches the Commission would take towards that problem. 
>> LEE GOODMAN: Remind me what the current approach is in the paper world in the paper world. 
>> If there's a paper error from the Commission's perspective. 
>> LEE GOODMAN: Let's start with paper world that's a fire what's our rule I don't know. 
>> I'm not sure there is one. And this does not propose any changes to that. There are best efforts guidelines we have issued regarding that. And certain defenses in the context of the administrative fine for example that are in the regulations. This does not propose to alter those. 
>> CHAIR ANN RAVEL: Did you have a question Commissioner? 
>> LEE GOODMAN: I would just think we need to think through a secondary set of questions. The second we begin endorsing and the use of digital there are a lot of other issues that go with that, retrievebility. We ought to ask the questions if we're going to look at the issue for example retrievebility what happens if it's an -- in an exotic software the Commission can't open who has to pay to convert that document just issues like that in the paper world those issues are clear you have paper we can send our auditors in they can look at it. 
>> The retrievebility issue is in there actually that's currently in some existing regulations, as well. Specifically in the public financing context where auditors have for decades been dealing with committee's computer systems and I believe that it's currently in the regulations with respect to another digital record provision as well the proposed definitions do record or do address retrievebility. 
>> LEE GOODMAN: Where is that. 
>> Not by requiring persons to give the Commission with software in all circumstances but to provide the Commission to make a record retrievable upon our request. 
>> LEE GOODMAN: At their expense. 
>> Which would be the current approach that exists now in the other context. 
>> LEE GOODMAN: In paper context they have to pay. The expense of what. 
>> No in the current retrievebility provisions in the regulations. 
>> LEE GOODMAN: Currently the regulations say if I have it in an outdated form of software, I have to pay for the conversion for the Commission's use? 
>> It requires the software personnel in the public financing context to be provided if necessary to make the record retrievable. If you look on Page 11 of the draft, the existing provisions that discuss retrieveability are referenced there with the proposal to remove those provisions because the comparable provision would be incorporated into the proposed definition of record. That's around Lines 8 to 13 of Page 11. 
>> LEE GOODMAN: Thank you. 
>> CHAIR ANN RAVEL: Commissioner Walther did you have a question. 
>> STEVE WALTHER: I was wondering there might be agencies that are struggling with the same issue and I'm wondering if the -- if you've taken a look at what other agencies are doing or if there's some kind of uniform policy being suggested or used or experimented with in other agencies just to see if we can learn from what other people are doing. 
>> We have looked in some -- we have looked in some respects at Model Rules and -- Model Rules and the like for example two of the sources I mentioned earlier regarding the definition of record but also that we're using with respect to the definition or the proposed definition of signature come from Model Rules or other Federal legislation. So as far as every detail of some of the issues that we discussed earlier with respect to Bitcoin or to the IRS and we have looked at how other financial regulatory agencies have addressed some of these other issues. The document I believe in one respect references certain know your customer laws that apply in the banking situation. Not with respect to every proposal in here, though. 
>> CHAIR ANN RAVEL: Did you have something to add Mr. Noddy. 
>> Just wanted to add that we also discussed these ideas and proposals at various stages in the process with our own -- the agency's own internal experts in compliance, in audit, in RAD and I.T. and actually I'm forgetting somebody. 
>> Every part of the agency. 
>> Yes compliance advice so this reflects although this wasn't consensus on everything this does reflect input from the people with inside insight with the issues. 
>> CHAIR ANN RAVEL: I have to commend you for the amazing amount of work that -- really good work that went into this document. It's really exhaustive and thoughtful and obviously what you've talked about talking to everybody in the Commission was really time consuming but added it to being a really, really excellent document and I also have to comment you Ms. Selinkoff of the detail of what's in here including the page and line so I'm -- I really appreciate your presentation today. 
I know you have some issues or can we have a motion it is a proposed rulemaking and it's an opportunity for us to hear from the public, as well. So Mr. Vice Chair. 
>> MATTHEW PETERSEN: Thank you let me also echo the kudos to Ms. Selinkoff and Mr. Lutz this is a first rate piece of work and a very worthwhile undertaking I think not only for the terminological updates it provides but there are a number of areas which have what immediately comes to mind text message contributions has been the subject of pneumory Advisory Opinions and I think a way to harmonize those for rulemaking I think will be especially useful to the regulatory committees that fall within our ambit the one area I need to look a little closer at and Commissioner Goodman spoke about this a little bit as well is the issue about Internet payment processing platforms as an evolving one I believe in the time that since this document was first forwarded to the Commission we've had democracy rules Repledge we still have FYP that's still a live matter and I just need to go back and look at those just to see if there need to be any modifications updates, additions to reflect some of the most recent developments. So I think that's one thing I would like to look at before we have a vote just to make sure we're as complete as possible. 
But I again want to comment you for answering our questions for putting together I think -- putting together what is a very valid draft and I hope we can vote on this very soon. 
>> CHAIR ANN RAVEL: Thank you Mr. Vice Chair well then hearing no further discussion we'll bring it back on the next meeting. In December. Thank you. And I skipped so we have to go back to the previous document which was the 15-54-A, the outline of draft NPRM implementing party -- I'm sorry; B. B. We did that one. 
Which is it's just the way my document is written is confusing to me. 
Outline of draft NPRM implementing party segregated accounts. Thank you Mr. Stipanovic. 
>> Thank you and good afternoon, commissions before you is agenda document 15-54-B which was held over from the October 29 and November 10 open meetings. And this document is a memorandum to the Commission from the Office of Of the general counsel outlining a possible Notice of Proposed Rulemaking for implementing parties segregated accounts this outline addresses potential proposed regulatory changes in response to certain provisions and two pieces of legislation passed by Congress. 
The consolidated and further continuing Appropriation Act which amended the Federal Election Campaign Act by establishing separate limits on contributions to three types of segregated accounts of National Party committees and the Gabriella Miller kids first research act which amended Presidential Election campaign fund act by terminating the public funds to finance their Presidential nominating commissions thank you I will address any questions. 
>> CHAIR ANN RAVEL: Thank you very much. Are there questions for Mr. Stipanovic? Commissioner Goodman? 
>> LEE GOODMAN: Last year 9 Commission approved an Advisory Opinion to the Democraticcratic and Republican National Committee that recognizes that convention committees satisfied the definition of political committee. And they could be created. Now what's interesting to me about that is I expected the Office of General Counsel to write a yes draft and the xhix to congeal around the yes draft that created an account for political committees to run their conventions much like the Commission had previously established or approved new accounts for recounts and legal activities post election. 
But that wasn't the approach that we took as a Commission. 
Instead we recognized a whole new paradigm that these convention committees could be stand-alone political committees. I saw nothing in the legislation granding the Republican National Committee and democratic national committee new accounts that would undo that rationale. In fact they still have utility for convention committees if the Republican National Committee and the democratic national committee want to raise money into a convention account that Congress created for them, they may not want to enter into all of the contracts that it takes to put on a convention they may want to transfer that money over to their convention committee which they would be able to do under our advisory opinion and working in harmony with the new law that created the funding account. As I read this, it proposes that swhaw the legislation muted the accounts -- excuse me the account legislation muted the committees as stand-alone political committees. Could you elaborate on that? And am I wrong in interpreting this proposal? 
>> Sure. So, first of all, that's certainly a question that the Commission will have to grapple with in any rulemaking that it undertakes. So this was kind of a preliminary thought process that we had. 
It's not an actual proposed rulemaking just yet. 
But you know that Advisory Opinion has to be looked at in the context of when it was asked. It was asked before the appropriations act was passed by Congress. So -- and it was -- it was asked after the Gabriella Miller research act was passed so there's a gap in the statute there. 
And at that time we didn't have Commission accounts. 
Subsequently Congress stepped in and filled the gap statutorily. So our initial take was that by creating these convention accounts it created higher limits for spending in for convention expenses. That that created -- that made the Advisory Opinion a moot point like you pointed out. 
>> LEE GOODMAN: Well, I read the -- in this draft I won't call it your proposal. It's a draft for consideration. 
And it certainly addresses the purpose for which the Democratic national committee and the Republican National Committee walked in this door and asked the Commission for an Advisory Opinion. Yes, the legislation had abolished public funding but we didn't choose the account paradigm. 
So I guess what I'm -- that is not grappled with in this draft. This draft relies on the purpose for which the DNC and the RNC walked in our door and asked the question. 
So what is it in the appropriations bill and the creation of the new accounts that indicated that they wanted to change this Commission's analysis of what constitutes a political party committee? 
>> There's nothing in legislation that refers to the AO. But it's not just the view reflected in the draft. Not just that the purpose was muted out but that the actual factual underpinnings of that AO included the absence of a funding source that had historically been a separate funding source that had historically been available to the parties that one of the facts that was critical to the Commission issuing that Advisory Opinion was the historical funding source. So the Commission issued the AO but then Congress changed that fundamental fact by providing a separate and actually more expansive funding source for that activity. Therefore, removing or muting or whatever word you want to use that critical fact of the Advisory Opinion. 
>> LEE GOODMAN: No. Hold on. It was a critical fact of why they wanted an Advisory Opinion. But it was not a fact that underlay our political committee analysis in that Advisory Opinion. In other words, we didn't say that a convention committee meets the definition of political committee because Congress shut down public funding. For conventions. We looked at what the definition of a political party would be a convention committee would meet that definition we didn't say that it meets that definition because Congress eliminated the funding for parties to run conventions. 
>> Part of the reason that the Commission approved those committees was because of the absence of public funding. 
>> LEE GOODMAN: It may have been one of the political reasons we mustered four votes to address it but not one of the legal rationale reasons given for why the convention meets the definition of political committee. Let me ask you this then, we don't have to settle this today. We raised the issue and I think that's sufficient. 
What happens to convention committees under this proposal? Does -- can the DNC and the RNC still operate convention committees? Separate and apart from the RNC and DNC and transfer money from the convention account that Congress created to the separate committees even if it's for the purpose of administrative ease for having contracts and you know having contracts with a venue and a forum and all of the things that it does rather than having all of those contracts have to be entered by the DNC and RNC, what happens to convention committees under this draft? 
>> Well that's a good point under our proposal a lot of the convention committee regulations waive because we didn't think they would be necessary that said National Party committee could establish a committee call it Commission committee but it just wouldn't have a separate contribution limit. 
So I suppose if it wanted to run and do things through a separate entity, it probably could do so. 
>> LEE GOODMAN: Is that addressed currently in this draft. 
>> NEVEN STIPANOVIC: No we don't go into that. 
>> LEE GOODMAN: We would have to work on that. 
>> CHAIR ANN RAVEL: Commissioner Weintraub. 
>> ELLEN WEINTRAUB: I was going to suggest the document we have in front of us is an outline of a draft. Notice of Proposed Rulemaking. And it's at a very early stage. I think that you raise some interesting questions that could very fairly be posed in the actual Notice of Proposed Rulemaking and we could talk about it more and get comments and see what the answers are but we don't have to resolve them today in order to start the process of allowing our regulations to recognize all of these increased amounts of money that party committees should raise this should make you very happy Commissioner Goodman. 
>> CHAIR ANN RAVEL: Let me sort of piggyback on that. I agree with that point. But also I want to emphasize as I was the fourth vote in that AO that the conclusion was based in significant part on the party's need for new convention committees to and I quote operate in the same space as publicly financed convention committees had operated prior to the research act. So I want to concur with what's been said here today. And that that was the -- certainly was the basis for my fourth vote in that matter. 
>> LEE GOODMAN: Well the parties have the Advisory Opinion. Right? The parties have it. And they have the protection of the majority opinion. And you can announce Madam Chair that you have changed your mind now. 
>> CHAIR ANN RAVEL: I am not announcing anything. 
>> LEE GOODMAN: Well then they have the protection of the Advisory Opinions right now. And they can operate separate convention committees if they so choose under the advisory opinion that they have. 
And I guess I'm concerned that of -- beginning down the road of drafting a proposal that would reverse the protections that the national, the Democratic national committee and the Republican National Committee already have under an existing Advisory Opinion. 
Based on a legal theory that an appropriations act filled some political motivation for issuing it but didn't alter the legal analysis of that Advisory Opinion. 
Let me ask another question about -- can you refer me, Neven, to the pages on what's contemplated here for the recount election contest and other legal proceedings? Can you point me to the right page again? Oh, I see, it's Page 8 is that right? C? 
>> NEVEN STIPANOVIC: Yes that's correct it starts with Page 8. 
>> LEE GOODMAN: Let me start with nomenclature why do we call them recount accounts because the language of the legislation was far broader than recounts other legal proceedings. It seems to me under the statutory language or the legislative language other legal proceeding, this Commission would have great leeway to approve a lot of other legal expenses of the parties other than just recount. 
So starting by calling it a recount account while it might have met some historical approval of this Commission through Advisory Opinion, it seems to me Congress took it a step further than just recounts. 
Legal compliance. State administrative law, civil rights law -- litigation prior or in conjunction with an election. 
Election administration litigation. 
Legal advice on compliance with the FECA. I mean are we prepared -- what is this propose -- what does it propose to put in and out of this legal proceeding accoun 
>> ATTORNEY: That whole section starting on A, that whole section starting on Page 8 discusses what would be included the phrase recount account is a defined term simply shorthand because we didn't want to say the phrase election recounts and contests and other legal proceedings every single time we referred -- 
>> LEE GOODMAN: We could just call it legal account. 
>> ATTORNEY: It's just a heading in the memo the actual regulatory text outlined -- outline talks about the inclusion and it's quite clear it would propose to include more than just recounts. 
>> LEE GOODMAN: I see that now thanks for calling my attention to it. 
Let me ask you this, what legal expense would be excluded from this account? And would the salary of the general counsel of the Democratic national committee be in or out? 
>> NEVEN STIPANOVIC: Well, under our proposal the -- what was -- what would specifically be prohibited would be to make independent expenditures or contributions or for general campaign expenses. 
>> LEE GOODMAN: General what. 
>> NEVEN STIPANOVIC: Campaign expenses. 
>> LEE GOODMAN: So campaigning and electoral advocacy is out. But would all other legal expenses be in the account? Would the RNC and DNC be able to take their legal shops as long as they are not engaging in expressed advocacy and going out and knocking on doors, if they are performing legal work for the committees, would all of that cost function be within the proper use of the accounts. 
>> NEVEN STIPANOVIC: I think we would have to work through that through a rulemaking as we are drafting the proposed document. And seeking public comment, as well. This document doesn't go into that kind of detail. 
>> LEE GOODMAN: Okay. Madam Chair, thank you. Those are all of my questions right now. 
>> CHAIR ANN RAVEL: All right. Thank you. So -- oh, Mr. Vice Chair, sorry. 
>> MATTHEW PETERSEN: Thank you Madam Chair I believe when Commission Goodman first introduced his regulatory relief proposal back in October he had mentioned that notwithstanding some of the servevations that -- reservations that he had about some of the ways -- maybe some of the directions this might be going or maybe just a few knits here and there he would be willing to as part of a larger deal move forward to drafting the NPRMs at that point and I agreed with him. Since that proposal is not born fruit as of yet and that this would be considered more kind of as a stand-alone, I think that as -- I think in an effort to try to give as much quality direction to the Office of General Counsel about an NPRM that might have the greatest chance of success, I think I want to look thu this and maybe proposal some changes. And I mean one of the realities when we do a rulemaking is that whatever we get is kind of the first draft of the NPRM, even though we can edit it as freely as we wish from that point but oftentimes it serves as the baseline and sometimes if there's a problem that one side or the other has with a baseline document it can be somewhat difficult to modify or add to or edit or delete or what have you. So in order to try to maybe address some of those things at the outset so that whatever instruction we give to OGC gives it the best chance of succeeding as possible, I think there are a few little things in this document that I would like to maybe tweak, modify, and just update so that -- and I realize as Commissioner Weintraub said this is an outline of a draft NPRM and there will be plenty more wax at this pinata but there's going to be some I think merit in modifying this. 
>> ELLEN WEINTRAUB: Is that an incentive. 
>> CHAIR ANN RAVEL: Yeah and that's not a very good comparison. 
(Chuckles). 
>> CHAIR ANN RAVEL: The pinata gets broken and falls all over the floor. 
>> MATTHEW PETERSEN: All sorts ever goodies spill out we want nothing but goodness to be all over. 
>> CHAIR ANN RAVEL: We do want goodness candy for everybody. 
>> MATTHEW PETERSEN: Edifying to all I ask that we pick this up at the next meeting. 
>> CHAIR ANN RAVEL: Sounds good. 
>> MATTHEW PETERSEN: But hopefully we can move forward. 
>> CHAIR ANN RAVEL: I appreciate it. And you know it sounds like you might have everyone some extensive changes to it. So if you can get it, the sooner the better would be really great. 
>> ELLEN WEINTRAUB: Could I suggest that this kind of nitty-gritty on Page 47 Line 14 what did you mean by this word that those kinds of comments are actually a lot easier to deal with by emailing the staff and copying all of the Commissioners and their staff so everybody can look at it. It's not -- it doesn't make for a very scintillating meeting for us to be going through the document and writing it at the table with those kinds of corrections. 
>> LEE GOODMAN: I'm like The Daily Show I didn't want it scintillating and comedic here and there is a press and a public here. 
>> ELLEN WEINTRAUB: We lost one. 
>> LEE GOODMAN: Some of them listen at home or at their computers. So this is their opportunity, also, to hear the questions and see some of the finer issues raised at the Commission. 
>> ELLEN WEINTRAUB: Imagine if they can see it all in writing. 
>> LEE GOODMAN: There's a public disclosure for addressing some of this at the table since it is a public document. This is a good -- and it's one point where we're all gathered together and you get the benefit of hearing some of my concerns. I could sandbag the concerns you have criticized me for that as well. 
>> ELLEN WEINTRAUB: I read every one of your emails. 
>> CHAIR ANN RAVEL: Why don't we move on to the next item. Item 6 is being held over to the next meeting, as well. Item VII and I'm sorry if -- I apologize that we found this out later yesterday and I did not communicate it to staff, I apologize, but Item VII is two matters -- several matters relating to public disclosure. Mr. Calvert? 
>> CAROLINE HUNTER: It is in fact being held over the last matter the multi-state IEs but just to let the public know, we are -- I spoke with Commissioner Weintraub yesterday and she requested more time to consider. And so it's still a possibility -- my understanding is it's still a possibility that we might be able to have a deal on this I just wanted the public to know that. 
>> CHAIR ANN RAVEL: I hope so. 
>> CAROLINE HUNTER: I just wanted the public to know that and my colleagues asked for more time to think about it which is perfectly fine with me I think the three Republicans still stand ready just so the public knows to support the interpretive rule but willing to take more time to listen to our colleagues and said it's at least possible that we could vote on this in a tally vote before the next public meeting nobody is holding anybody to it but I believe that's our share, as well. 
>> CHAIR ANN RAVEL: That's great, thank you. 
Is there a presentation? 
>> Madam Chair this is my document. 
>> CHAIR ANN RAVEL: There are several documents. 
>> LEE GOODMAN: If we start -- 
>> CHAIR ANN RAVEL: We can start with your document. 
>> LEE GOODMAN: I would draw the Commission's attention to agenda document No. 15-27-A-A. Which is the operative document. 
And it started I believe as 15-27-A and it has been on the agenda for a long time. And it has gone through a fair amount of discussion over several months. What I have tried to pull together in agenda document No. 15-27-A-1 is pieces of my original proposal to make more enforcement documents public on the public file when we make MER enforcement files public at the close of the matter. 
The Commission decided in 2003 to make many documents public as a matter of course. And in the decision of 2003 to make many documents public as a matter of course, the Commission waived its discretionary privileges in a lot of those documents. So for example the first general counsel's report the Commission decided to make that public as a matter of course. It does weigh arguably attorney-client privileges as well as the delivery process privilege but the Commission decided to put those on the public record. 
I am proposing we amend that policy by adding to the documents that we place on the public record as a matter of course. Certain records. All of the records that currently are placed on the public record are under the 2003 policy as well as the additional documents reflected in this document. Are subject to redaction for Privacy Act requirements Federal Election Campaign Act confidentiality requirements. Anything that is legally required to be confidential, we still maintain the confidences of that. So what this proposal does is it merely adds to the public record additional documents that I believe are -- would be appropriate to add to the public's understanding of those MER files. And the Chair requested and the Office of General Counsel provided on August 5th, 2015 agenda document No. 15-27-B. Which was a reaction to the original proposal of this. I have reviewed that. And I have made edits to this document. Reflective of those comments. Not that we agreed on every item. But we can discuss those points where we still may disagree or not disagree but the recommendation -- I don't agree with the recommendation. 
So that's the genesis of one set of the changes that you see in agenda document No. 15-27-A-1 yesterday my office distributed for khirms purposes a red line version so you could actually see the track changes. Additionally I have altered in agenda document 15-27-A-1 this revised version several issues regarding FOIA process so this amended document runt -- document doesn't recommend any changes in the Commission's currently adopted policies regarding fulfillment of FOIA requests. Whatever that policy currently is, it is. I don't suggest any changes in that. So for example I took out Commission approved reductions and informative -- affirmative invocations because I know who invokes privilege here who asserts privilege is a point of some disagreement among Commissioners so I don't alter those policies. We can have that discussion another day but I'm not carrying the water in this document. I tried to narrow this document solely to address the addition of certain records. What those records are. Under the bullets that you see first, attachments to complaints, responses to complaints and referrals which the Commission votes to open as a matter under review. If the Commission opens a matter under review, we should treat those records like we do any other MER or complaint that comes in the door. 
Notifications to respondents that were previously identified as unknown respondents. Seems to me that's like providing the public we already provide which is the names of who are the subjects of our enforcement MERs. 
There is correspondence that goes forth either at the preRTB stage or thereafter. And there are supplemental materials provided by the Office of General Counsel that really supplement those matters that we currently make public. We currently make public the general counsel's first general counsel report. 
So if the first general counsel's report is going to be supplemented in some way with a subsequent memorandum, this proposal is, let's say make that public, as well, with the first general counsel's report especially since the Commission is considering all of that information when it makes its determinations. 
Correspondence that goes back and forth that supplements responses for example. And then two items that the Office of General Counsel recommended I believe for not really any philosophical reason but because it might clutter the file, there are a lot of administrative documents in these MER files that I agree don't have to be made public. Two that I thought actually edify the public record and public's understanding of a case would be complaint notification letters to respondents complainant walks in the door it names one respondent the Commission has a practice of adding respondents in the process it helps you understand how people got in the case if you can see the notification letters to those respondents and the second is total agreements -- tone agreements why do some cases go longer and tone agreements help the public understand the case we sometimes abate the case if another agency is looking for example at a case. We ghettoing agreements often in that process I believe as a user of the MER files, it would have benefited me in some files to understand how and why cases took as long as they did. And towing agreements help inform that judgement. 
Then comes to -- comes the issue of FLAs which most Commissioners here have historically had the liberty to release. Now, the Office of General Counsel say they are agnostic on that if this Commission wants to allow FLAs that are voted on but not adopted to be made public. The way I've just suggested that we amend this is you don't have to make all of those FLAs. The general counsel's office said that putting too many FLAs that fail on the record could actually be confusing so heeding that what I recommend is if a Commissioner believes that a failed FLA helps explain their ultimate vote for or against the final FLA a Commissioner ought to be able to clarify the record by making public the FLA that they voted on that failed. This Commission has a long history of doing it Commissioner Walther has done it Commissioner Weintraub has done it I tried to do it earlier this year I was blocked by the Office of General Counsel and then the Commission agreed I had that right to do that but it took an act of the Commission in order just to show the public the FLA that I had voted on which explained my ultimate vote. The remainder of the edits you see here were to remove any implication for our FOIA processes and just to say, look, henceforth this will be the policy we will be adding these documents to public records because we are providing these at a matter of course looking retrospectively at old files if we get a FOIA request we'll treat those files equally and make those documents available for FOIA request we are not going to go through a long set of hoops of jumping through assertion of prim ledges we're just going to as a matter of policy treat those the same so this is my proposal where I think the sweet spot is to expand the public's understanding of open MERs that are opened here and actual enforcement cases and that's my proposal and I would be happy to defer to Mr. Calvert for any reaction to that. 
>> CHAIR ANN RAVEL: Okay. Can I ask you some questions first. 
>> LEE GOODMAN: Yes, ma'am. 
>> CHAIR ANN RAVEL: Did you want to respond first? Okay. Down in your listing of matters that you proposed being provided when you speak about documents prepared by OGC are you including but not limited to and you've got examples what documents are you referring to? Every single -- every possible document. 
>> LEE GOODMAN: I gave examples. 
>> CHAIR ANN RAVEL: I know you have examples but it's unlimited. 
>> LEE GOODMAN: Well the one that I withdrew because we've had a disagreement on the Commission was withdrawn counsel's reports now there's litigation about that right now. We don't have to decide that issue now maybe a Federal Court will decide it for us. I don't know all of the factors a court may adopt. To decide whether or not the document needs to be made public. I assume there will be litigation in the crossroads case itself where crossroads itself since they are intervening will ask for that document if they haven't already I haven't followed how far along that is to be part of the administrative record that affects them. And so I have struck that. And I know certain Commissioners expressed concern about it so I was trying to accommodate. 
>> CHAIR ANN RAVEL: You struck it as an example but you didn't strike it in the text because you say I presume it's all documents because you don't narrow it in any way. I'm just asking you what your -- 
>> LEE GOODMAN: I know you are I'm trying to answer. 
>> CHAIR ANN RAVEL: Well, let me just you know continue because you say including but not limited to and then -- 
>> LEE GOODMAN: That was part of your question and I said that. 
>> CHAIR ANN RAVEL: Yes, right. 
>> LEE GOODMAN: So let me tell you the spirit of it and we can certainly wordsmith this but where the Office of General Counsel and by the way the inconnection with the specific matter under review is new language here I picked that up from Office of General Counsel to make it more specific it's not just every memorandum that comes from the Office of General Counsel it's in connection with a specific matter and considered or discussed by the Commission there's a parameter as part of its deliberative process here is the spirit of this request. The Office of General Counsel first general counsel's report apprises us of the case, the facts, the legal theories and yet we often obtain from Office of General counsel obtain supplements to that they should be given the same treatment as the first general counsel's report if they are summarizing or discussing new factual information and/or analyzing the applicable law just like the first general counsel's report did. The reason this is required is because what we currently make public under the 2003 policy is only such documents if they make a recommendation as to Commission action. But if documents and memos come from Office of General Counsel that supplement the first general counsel's report bring us then we should treat that the same. It shouldn't be a document held in a star chamber and hidden away where we all considered it just like we did the first general counsel's report. 
>> CHAIR ANN RAVEL: No one is contemplating a star chamber here I think for myself in this it's so broad I would prefer if we could to look at an enumeration of those documents so we are clear about what we're talking about. I don't want to be in a situation later I'll get to it but as you know I feel very strongly about attorney-client privilege documents. And other documents that will conform to the other privileges that we should as a Commission be able to vote on and decide so I don't want to be in a situation of relinquishing something I would be concerned about without having an affirmative vote of the Commission. For that reason I don't want in this document for us to relinquish any of those rights and obligations. 
>> LEE GOODMAN: I'm willing to make an amendment right now I'll make an amendment in response because I know you always speak highly about transparency. 
>> CHAIR ANN RAVEL: I do. I care about transparency. 
>> LEE GOODMAN: I know you do let me help be -- you be more transparent so what I propose is and strike the first -- strike -- let me see if I'm working off of a new document. Strike everything to the word memorandum. -- memoranda but keep the word memoranda. And let's make memoranda summarizing or discussing new factual information and/or memoranda analyzing applicable law, whether or not these documents contain any of the recommendations described in the interim disclosure policy and I would pick up the limiting concept that Mr. Calvert's memo did with respect to a specific matter under review so I would start with memoranda with respect to a specific matter under review. Sum ridesing or -- summarizing or discussing new factual information and/or memoranda analyzing applicable law whether or not these documents contain any of the recommendations described in the interim disclosure policy. And that takes away the breadth of your concern about it captures the essence of what I was trying to get where these memoranda essentially supplement the legal or factual analysis of the first general counsel's report we should go ahead and make them public. 
>> CHAIR ANN RAVEL: Okay. Well I have a couple of -- do you want to add to this one particular one? I have a couple more. 
>> I have a lot of -- I have a lot. 
>> CHAIR ANN RAVEL: Let me ask just a couple more questions to get some and then you can go for the broader question. 
You know, I'm -- I'm wondering about your statement about upon the request of any Commissioner because from what I've seen I mean and maybe you could tell me if this is wrong. But what I've seen is that generally we vote. And decide whether to release certain things. 
>> LEE GOODMAN: That's not the historical practice. The historical practice is that Commissioner Weintraub and Commissioner Walter and Commissioner bowerly they have historically attached to their statements the FLAs they voted for to show the public the significant or material difference in the result. And the -- my God, it's -- there's a certified vote taken and yet we're withholding from the public the substance of that vote. I would say if you're taking a vote on a factual and legal analysis with a legal theory, give the public the benefit of what the vote -- what the substance of that vote is or -- we're certainly given them the final FLA. 
>> CHAIR ANN RAVEL: I'm not asking for your rationale. I'm more concerned about what I have seen as the tradition here since I've been here which is on every matter we have a vote. And it's generally if there's four Commissioners that agree with something that has come to the table -- 
>> LEE GOODMAN: I don't believe that vote has ever been held since you and I have been on this Commission the issue came up once it was earlier this year late last year Mr. Calvert I believe it was the crew case if I recall correctly was it crew. 
>> I don't recall the -- I don't remember the case it was earlier this year Lee Goodman -- 
>> LEE GOODMAN: It was an FLA vote and it failed and the Office of General Counsel said I didn't have the right to release the FLA and we did not bring it to the table for a formal vote we did a poll of Commissioners and there was a poll of Commissioners so we never had that formal vote I decided at least three or four prior cases just in the last five or six years where Commissioners had attached without any redaction or censorship from the Office of General Counsel. So well when your FLA is blacked out by the Office of General Counsel you feel censored you're not allowed to tell the public why you did what you did and it's not a good feeling being censored I played by the rules, by the way, I don't know what penalty there is if I had just gone to the press and release the FLA that I prepared and that I voted on but I played by the rules and I talked to everyone in the hallway and Commissioners agreed go ahead and let Goodman release his FLA. Not everybody here plays by the rules in receiving documents that aren't public I must say but I have played by the rulings and done that so what I'm proposing let's clarify it let's give the public the benefit of FLAs that are voted on here and failed let's not withhold that from the public. 
>> CHAIR ANN RAVEL: Let me ask you one more question before I turn to Commissioner Weintraub. You might have said this at the beginning but I just want to clarify it to be sure. In the final or second is to last paragraph you say that this is with respect to FOIA that this is pursuant to the procedures set forth in Part 4 of the regulations and you know I apologize for my ignorance about this but what are you contemplating about that. I understand tell me what your -- tell me what -- with regard to -- well let me ask you, with regard to the process that we now -- that we now have where the office of the administrative law section of the Office of General Counsel makes some of these decisions, is that something that you intend to change. 
>> LEE GOODMAN: This policy doesn't affect any current policy. 
>> CHAIR ANN RAVEL: No practice that we have. 
>> LEE GOODMAN: It doesn't change practice it does not. 
>> CHAIR ANN RAVEL: That what I want to know. 
>> LEE GOODMAN: Whether current practice conforms to Part 4 that's a debate in litigation right now against the center for competitive politics and others and reserve the right to debate that in the future. 
>> CHAIR ANN RAVEL: I'm not asking -- I'm -- 
>> LEE GOODMAN: I will read you Part 4. We would be here a while. 
>> CHAIR ANN RAVEL: No I don't want you to read me Part 4. 
>> LEE GOODMAN: But Part 4 is the regulation on this subject and I just referred to our regulations. Which govern this issue. 
>> CHAIR ANN RAVEL: Right. All right, thank you, Commissioner Weintraub. 
>> ELLEN WEINTRAUB: Thank you. I wanted to ask Mr. Calvert and I hope that he had a headsup that he was going to ask him this. OGC came up with their own set of recommendations I was prepared to support and I am prepared to support their recommendations so what I would like to know is in what way OGC's recommendations differ from what Commissioner Goodman is proposing. 
>> Thank you, Commissioner. I think that what we said in the memo we prepared originally for the regulations committee and Commissioner Goodman's current proposal are substantially closer to each other than our document was to his original document. There are some differences actually I might start one I'm not sure is a difference that I might seek clarification on -- clarification on and I think -- 
>> Speaking about No. 5. 
>> I think with at least one respect on additional reports and memoranda. We understood, Commissioner Goodman, to be not including withdrawing GCRs in the ambit of that and we appreciate your agreeing to hold in a the -- to the limiting in connection with the specific MER. Here at the -- the one clarification -- one clarification and one difference. The clarification is that the discussion about that part of the propose just a moment ago was about first general counsel's reports and your pending motion would limit it to memoranda. What we had in mind in agreeing to or in saying that we agreed in general with the proposal to make that considerably broader was that we would propose that almost all general counsel's reports and memoranda be released to the public at the end of an enforcement matter. With appropriate redactions of course under this policy. It's not limited to memoranda and not limited to first general counsel's reports one of the things that's been sort of vexing I think to some of the staff where the Commission has found RTB and we have undertaken investigation and staff does really good work and puts all of the investigation into a subsequent general counsel's report but let's say it's not a brief because we're recommending to enter into preprobable cause consideration. 
-- reconciliation whether or not -- under the current practice whether or not that report which basically recounts the results of our investigation is released or not depends entirely on the nature of the recommendations at the end of the document maybe recommendations that don't even have to do with the major focus of the investigation. So some of those reports go on under the current practice -- practice and some of them do not and really whether they do or do not doesn't have anything to do with what their substance is. So our proposal would have encompassed bringing those in under this policy, as well, and returning to putting those reports with appropriate redactions on as we did prior to -- 
>> LEE GOODMAN: You're saying your proposal is broader than mine. 
>> In that respect. Well, actually that was the clarification I was seeking because you said the spirit of yours was supplemental memos to first general counsel. 
>> LEE GOODMAN: I'm sorry; I wasn't just limiting. For example, we -- since we deal with so many things at the reasonable belief stage that's a report we regularly receive and we do get supplements to them subject to appropriate redaction, law enforcement, you get information from other places sometimes that you don't want to put on the public record and we understand that. 
But you're suggesting does my language not reach what you're suggesting or is it just the spirit in which I discuss it. 
>> I think it does but just wanted to clarify since we're making a record here at the. 
>> LEE GOODMAN: Since we're creating a record let me see we're in agreement I meant the broader universe of your memoranda. 
>> I think Commissioner Goodman the concern rises from the language here describes these documents as documents generated prior to a finding of reason to believe whereas the counsel reports Mr. Calvert is discussing would be post RTB findings. 
>> I'm corrected. 
>> LEE GOODMAN: Excuse me; just point me to where I limit it to preRTB. Oh I dropped that language, I did. Okay. So I think we backed into it. 
(Chuckles). 
>> LEE GOODMAN: Inadvertently. 
>> Your current proposal did just mention memoranda and if you intend that to include reports as well as memoranda, that would be. 
>> LEE GOODMAN: In other words you would modify -- excuse me; your recommendation would encompass more to say with respect to a specific matter under review comma reports and memoranda summarizing or discussing, tell me what I'm leaving out. 
>> Reports and memoranda. That are not withdrawn. 
>> LEE GOODMAN: I took out withdrawn. Okay, excuse me, yes, we can encompass that are not withdrawn. 
>> And considered or discussed by the Commission as part of its deliberative process. 
>> LEE GOODMAN: You're putting language back in that I struck to try to accommodate the chair. 
>> Okay. 
>> CHAIR ANN RAVEL: Could I -- 
>> ELLEN WEINTRAUB: Could I interject something I am going to at some point make a motion that we ask go ahead to draft something for us -- to ask OGC to draft something for us I would feel much more comfortable going down that route than editing your draft at the table and some of the language that I think might be construed despite clarification at the table it could be read more broadly then end up in litigation what it means we adopt a policy somebody wants a document we say oh we didn't mean that so I think we would be on safer ground having OGC do the drafting on this. I think there may well be substantial agreement on what we are willing to put out there, I think that what Mr. Calvert was just saying was -- goes to a concern I've had about how we don't routinely release the subsequent general counsel's report and I think they would really add to the public record so I only wanted to interject that maybe I'll save you the trouble of scribbling. 
>> LEE GOODMAN: I'm comfortable right now with them drafting something we may go 3-3 on the drafts if we have dueling drafts but assuming there's general agreement on these categories of records and Office of General Counsel can think of a better way to word these I'm certainly willing to entertain that but I would like to air it out and let Mr. Calvert continue with his presentation. 
>> We would be happy to work on language that would encompass both reports and memoranda and posts as well as RTB. 
>> Pre and post RTB. 
>> ELLEN WEINTRAUB: I would suggest -- 
>> CHAIR ANN RAVEL: I would suggest if you're okay with this Commissioner Goodman really that we ask the Office of General Counsel to come back with a draft of this that we can all hopefully consider prior to the next meeting. 
>> LEE GOODMAN: We can however there are more disagreements we need to get out on the table for example No. 4 in the OGC memoranda that's something I won't agree to. 
>> CHAIR ANN RAVEL: Page 4. 
>> LEE GOODMAN: Page 4 of the Office of General Counsel's memo. 
>> CHAIR ANN RAVEL: I'm just very concerned about the time given that we have a very long executive session this afternoon. And. 
>> LEE GOODMAN: This is something that's been on the agenda for many months. 
>> CHAIR ANN RAVEL: I know that but we received your document yesterday. 
>> LEE GOODMAN: Actually you received very slight amendments to something that's been on the agenda for months. 
>> CHAIR ANN RAVEL: I disagree. 
>> LEE GOODMAN: I think Mr. Calvert can conclude the differences they are not severe in about five minutes. 
>> I'll try to wrap it up in about five minutes returning to the point we were discussing about reports that are put on there, there's one difference on that particular point between your proposal and ours. 
We had constructed ours to be restricted to reports for memoranda we circulate formerly -- formally through the secretary's office and the idea for that was to give us kind of an out where if there's something in the context of the case that is so sensitive and where we would strongly recommend that Commission retain its privilege even after release of the file, that we -- that would be an easy way to designate those documents. I think what I had in mind I'm not sure about others in the office, what I had in mind was a matter where there's a concurrent Justice Department investigation as a hypothetical and maybe even one where they have told us that it's a particular sensitivity. 
And so that would be -- that would be sort of the out for stuff where we wanted to let you all know that we thought it was certainly something at least the Commission ought to consider before receiving and not put it into the box for automatic release. We would still -- if it was in the box for automatic release, I guess we could still put it out there with every page redacted. 
>> LEE GOODMAN: That might be the way to go because it may not be -- many of these memos come with pieces that are highly sensitive and I presume those would be redacted. I presume that we would redact some of the sensitive information that we sometimes direct the Office of General Counsel to get from the Department of Justice and those types of things. We have done that in the past. I think we're probably working on some of those right now. And so rather than create the exception to the rule that then grows from highly sensitive to anything we really don't want to put on the record, I would prefer to use the redaction process to deal with that. And that's why I saw it as an end around an otherwise transparency policy and that's why I did not include it. 
>> I would be happy to discuss the issues with any of the Commissioners that want to discuss it at another time not in a public forum. I think the basic issue here from Office of General Counsel's is the recognition that we are here varying from what would otherwise be the presumption of privilege. And so in making a uniform policy to release records, in fact flips the presumption at the time the time the record is created that it would require the informed consent of a majority of Commission to waive that privilege. And we believe that in some cases it is worth affording counsel the ability to create privilege records expecting the presumption would be that privilege is maintained as opposed to the opposite so that was an effort to address that concern. 
>> LEE GOODMAN: I was trying to avoid that whole issue because we probably -- I have a fundamental disagreement with Office of General Counsel on how many votes it takes to assert privilege versus waive privilege and the Federal case law that says an agency must affirmatively assert privilege documents may be inherently confidential under a statutory provision of confidence Privacy Act what have you we are prohibited by law from receiving it, it's as discretionary privilege the document is inherently private it takes affirmative assertion I wasn't trying to reach any of that today. 
>> CHAIR ANN RAVEL: Look, what I suggest is if you aren't willing to let it go to general counsel for a draft that can come back to us -- 
>> LEE GOODMAN: I said I am but I thought we would after many months of this being on the agenda I thought we would have an -- we only have one more issue, right, Larry, there's -- 
>> There are a couple. 
>> LEE GOODMAN: There's nom 4 and then there's the tolling agreements. 
>> CHAIR ANN RAVEL: Look. We have 26 items on the agenda this afternoon. 26 items. 
>> LEE GOODMAN: Madam Chair you made transparency a major issue about this agency and here is your opportunity to work on a major transparency project -- 
>> CHAIR ANN RAVEL: Don't be giving me lectures on this. We have a lot of serious -- 
>> LEE GOODMAN: It's not a lecture it's an observation. 
>> CHAIR ANN RAVEL: I am -- I stand by my record on disclosure and transparency and I have an item with regard to that, too. That I am prepared to support. But we have important other issues that we must attend to, including some that are Statute of Limitations imperiled and it seems to me that a better use of our time would be to ask general counsel to come back with another -- with another draft you can express your views to them everyone can express their views to them. And it can come back and we can decide in the next meeting whether we are going to vote on that and that's what I'm going to suggest right now that we do that and as the Chair I have the ability to ask that it be held over for that purpose. 
>> LEE GOODMAN: You can hold this matter Madam Chair any Commissioner can hold a matter. 
>> CHAIR ANN RAVEL: That's right to the next meeting with the understanding that we can have discussions in between and hopefully resolve it at the nomenclature meeting. Together with the other requests that I asked about relating to other documents. 
>> LEE GOODMAN: I have an inquiry if we approve Office of General Counsel writing the new draft will Office of General Counsel use my draft as the basis document or your memorandum? 
>> I was going to inject the same question essentially which is we have presented the Commission with a memorandum that we were asked to provide that identified what we in the Office of General counsel at least thought the Commission -- the steps of the Commission ought to take in this area and those we thought they shouldn't and those we did not take a position on. 
We have already done so as you know. We're happy to comment on any additional drafts. But it's a different request entirely I think to ask that we essentially take one Commissioners draft and revise it sort of in our view and I don't know that -- I don't know that what any particular Commissioner wants us to do. 
>> CHAIR ANN RAVEL: That was not what was being suggested. Commissioner Weintraub if you want to speak. 
>> ELLEN WEINTRAUB: I was going to suggest you take your memorandum and draft it as a -- I'll defer to you as to whether it should be a proposed rule, a proposed policy. On the formating. And that you could at the same time circulate to the Commission highlighting the differences that you see between this and Commission Goodman's proposal I'm not ready to adopt your proposal Commissioner Goodman but I am likely to be prepared to adopt the counsel's recommendation and there will be substantial overlap and at the end of the day we'll have a lovely new policy and we'll have a lot more documents on the public record. 
>> LEE GOODMAN: My proposal has been out for months but let me just say you're not going to get an agreement on for example No. 4 in the general counsel's -- in the general counsel's memorandum of August 5. I can't speak for other Commissioners but you may have tough sledding getting 4 votes for No. 4. And we are certainly willing to entertain the colloquy we just had with Mr. Calvert. But I'm not prepared to create a major loophole that Office of General Counsel just needs to skip the secretary in order to make documents private. I think there needs to be another procedure. 
I don't know what else there is, Larry, other than the miscellaneous documents that I just picked out, too, that I thought might actually be helpful for a record. 
>> The miscellaneous documents and to get to some degree in the weeds there are some differences on the attachments that I think also there are differences precisely because we have a different approach on No. 4 the decline to open a MER and a slightly different approach I think on No. 5 preRTB notifications. 
>> LEE GOODMAN: What was the one on No. 5. 
>> I may not be looking at the right now because I'm looking at my notes preRTB notifications we actually agreed with your original proposal and you added some language to that that is not in our proposal regarding to the authorization of the preRTB notifications. And then as I'm reading the -- reading your document, we would put on only public attachments to RAD and audit referrals you would put on all of them. We would not put on any attachment to a law enforcement referral. And you would put all of them. 
But in both of those cases, only if the Commission proceeded to open the door but if it did not you wouldn't put on the file. 
>> LEE GOODMAN: I wouldn't put on the file at all maybe if you would prepare something here is what I can agree with Commissioner Weintraub prepare something. I think we've defined some disagreements. If you could at least highlight those areas where we have identified the disagreement, I think that's why this discussion was useful. So that Commissioners can toggle on or off those points of disagreement. Is there any concern about my prelude to the documents to be released about my statement of policy. 
>> I think my -- our understanding from your most recent draft is that you have not only reverted to status quo on the FOIA process. 
>> LEE GOODMAN: I'm not changing any current practice. 
>> You're not changing any current practice as we understand it in terms of our proactive release at the close of the file. 
>> LEE GOODMAN: For purposes of this policy the status quo is the status quo whether it's lawful or not. 
>> So the only other concern that we have about the preamble and we could highlight this, I think that it appeared you may have cibd some from the 2009 policy statement on first general counsels reports. So there's reference to the Commission returning a prior policy which we thought were maybe a little confusing. 
>> LEE GOODMAN: I can live with those edits if you can look at those I can look at those types of edits I think my consensus -- 
>> ELLEN WEINTRAUB: I want to be clear about this I'm not asking them to edit your document I'm asking them to create the document that they are prepared to recommend to us of what they think we ought to -- 
>> LEE GOODMAN: If you want them consensus to have them do it I'm trying to bring it home yes let's have them draft something let's have them work within the grain of the structure I have highlight if they are going to make recommendations contrary to what I provide I've already told you I don't agree with No. 4 for example have them highlight those. And I'm trying to get this into a structure to have them draft something that does make their recommendations that allows us to identify differences and if you do that I think we'll have consensus to have Office of General Counsel undertake a redraft of my document or redraft of the proposed policy. 
>> ELLEN WEINTRAUB: The end results any way you look at it will be whatever four Commissioners are willing to agree to release in this -- we're talking about expanding the categories of documents that are going to be released. So whatever four Commissioners agree to release will be released. And you know you can't -- you may not agree with some of the limitations that we want to put on some of these documents but you know that's fine. The default is not that you get to release them on three votes instead of four. 
>> LEE GOODMAN: I'm not proposing we change three versus four votes today is that clear? Okay? 
>> CHAIR ANN RAVEL: Why don't we do as planned. And see what general counsel can come up with. That will hopefully bring us closer together. And have you -- if we can and then we'll bring it back at the next meeting. 
>> LEE GOODMAN: Does Larry -- do you have a good understanding of the will of the Commission here just to work within the grain of what's -- and merge your recommendations so that Commissioner Weintraub can see your recommendations in a policy format. And allow us to then toggle on and off. 
>> What I would propose whether this is comfortable for the six of you is that we create a document that identifies the differences. A separate document. Stand alone. Identifies where we see there's a difference. We just point that out so everybody knows what they are. 
And then furthermore, we could offer an edit of your proposal Commissioner Goodman that we think would bring your proposal in conforming with where we stand on those differences but I don't think that's going to satisfy you ultimately. The alternative would be to draft one that we think would satisfy you. I don't know that that's going to satisfy all of your colleagues. We can also do sort of a third document which is like -- which lays out OGC's proposal and then the Commission can deliberate how to get where it wants to go. I'm a little confused frankly. 
>> LEE GOODMAN: If I were undertaking this I would take my memorandum make the edits that Commissioner -- I'm sorry; wing Commissioner Calvert has recommended. 
(Chuckles). 
>> Thank you I think. 
(Chuckles). 
>> LEE GOODMAN: And provide -- you don't have to do it in bullet form you can do it in another form and then highlight those that -- where we have identified the differences and then we can edit it at the table and see where four votes will con veal I don't mind having you take it and put it in your format but I don't want to lose my substance. By the way, if you lose my substance then we'll be back and you'll be in a 3-3 split basically with edits to this document. So I'm trying to get us to a -- get us to a common document, too. 
>> CHAIR ANN RAVEL: Is that good? 
>> I think so yes. 
>> CHAIR ANN RAVEL: Is that good? All right. Thank you. So this item -- 
>> LEE GOODMAN: I would be happy to come back tomorrow and continue working on this if you would like to continue the public session until tomorrow. 
>> CHAIR ANN RAVEL: I think that counsel it will take some time for them to prepare the document. And so we're going to continue the matter until the next meeting. Thank you. So there's one further item and that is Ms. Orick. Where did it go? I knew this was here. Item IX are there any Mind Geek or administrative matters the Commission needs to discuss today? 
>> There are none. 
>> CHAIR ANN RAVEL: Okay thank you very much Ms. Or recognize. That was a nice -- Ms. Oreck that was a nice report the meeting stands adjourned.