This file contains archived live captions of the open meeting of the Federal Election Commission held on December 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.



>> everybody, welcome. Sorry for the slight delay. Thank you for joining us
today, both people here in the audience as well as people on streaming.
The open meeting of the federal election commission for Thursday, December
17th will come to order.
I believe we have some late-submitted documents this morning.
Mr. vice chair.
>> Thank you, madam chair.
I move that we dispense with the rules in the time of submission of the agenda
documents in order to consider the following. Agenda document 15-68A,
B, 59-69A and B. Fifteen-66-A-one.
>> All right. Do you have that, madam chair -- madam secretary? I'm already
leaving my position.
Happy to turn over. The vice chairman has so moved. Those in favor please say
aye.
>> aye.
>> Madam secretary, that motion passes union massly.
The next item on the agenda is Item No. 1, correction and approval of minutes.
Mr. vice chairman.
>> Thank you, madam chair. I move that we approve the minutes for the meeting
held on October 29th, 2015, as set forth in agenda document in 15-64-A.
>> All right. All those in favor please indicate by saying aye.
>> aye.
>> Madam secretary that motion passes union unanimously.
I'm going to take the moment to give my closing remarks. I'm sorry for
those of you sitting in the audience waiting for your items to be called. I
won't take too long but I'm really happy to be able to highlight some of the
year's accomplishments. And in particular to extend my 
warmest thanks to the FEC employees for their work on behalf of the public. As
I've said many times, this commission is incredibly important to our
democracy and every employee here contributes in some way to the public good,
whether they work in RAD or IT, the audit division, the information division or
any of the parts of the agency. Everybody's efforts to ensure that campaign
finance laws are understood and followed or that the money that's spent on funding
elections is disclosed fosters public trust in the political process.
I'd like to mention a few people, but because everyone here is a wonderful
contributor to the agency, these people are actually emblem mattic I think of
the staff, the entire staff of the FEC.
Dan Petalis agreed, thankfully, to take on the acting general counsel position
this year.Dan approaches this challenging position in a way that exemplifies what all the fine staff here do. He applies
the facts to the law in a reasoned way.
The commission secretary, Shawn wood head Werth work tirelessly
to manage a mound of records, circulate ballots, track votes, among a myriad
other things, and to sit through sometimes excruciating commission meetings all
with grace and dploamacy.
Darr Nell Rose in the administrative is a kind and sweet soul. He's always
willing to go above and beyond to help and is incredibly affirming at the same
time.
Judy Ingram and Kathy Cruthers too go to great lengths to engage and educate
the public, the press, official delegations from foreign countries and many
other groups that come to the FEC about the important work of
the FEC.
And all our days are always bright tend by Ruth Godding who produces the
newspapers and press to the commissioners. She's a lovely person who's
a pleasure to work with.
And also a shoutout is in order to to Eugene Lynch and Kevin Hankock who
coordinate the softball team. In addition to fielding some outstanding players,
and that does not include me, my job is generally to buy some beer. I'm good
at that. I can do that. They update us, those of us who are on their e-mail
list, on the team's exploits on the field, and their up-dates are
hillarious. They do a lot for comradey at the agency. And morale
as everyone knows is an issue for us. We need to do more to truly support our
staff. Early this year I held an all-staff meeting to provide open
communication on issues of concern to all the employees. It was, I'm told, by
a lot of employees, very successful, and I wanted to continue to have such
meetings throughout the year but my colleagues chose not to approve doing so. 
I sincerely hope that we can find ways to encourage the great asset the
commission has in its employees.
Of the accomplishments this year, none will have a greater impact
than the progress we've made in revamping the FEC website, and thanks go out to
you, Alec for that as well as your staff. Ultimately campaign
finance data will be easily accessible so that our trove of information will be
truly provided in a meaningful way to the public. And just today we up-dated
the beta site with some really important additions, and I surgery everyone to
go on the beta site and give feedback, because it's through that feedback that
we're able to make it more relevant and more useful to the people who use the
site.
I also believe that we've made a positive step forward in being less
insular, more transparent, and more participanttry. This year we've received
over 50,000 public comments on matters involving important campaign finance
issues, all done through Mr. Nedes' fine stewardship. We had a truly public
hearing on approving political disclosure and other issues of significance in
campaign finance. Dozens of members of the public, including academics
and practitioners of campaign finance law spoke. It was the first time, and
shocking that this is true, but the first time in commission history that any
member of the public was permitted to come to the commission in a public
meeting and provide their views. I recognize that not all commissioners areimbuew with the importance of public civic engagement as I am. But I hope
that the FEC will now view the work we do as relevant, not only do to our
important stakeholders but also to all the citizens of this country
and finally, but maybe before we move to the agenda, I want to specially thank
the amazing staff in my office. In particular, Sarah Rosenski and Laura Basford.
Their work is invaluable to me as well as the entire commission, I think, this
year. They are fine lawyers and they care passionately about the significance
of campaign finance law. So I'm very lucky to have had them work for me this
year
>> Thank you, madam chair. I didn't warn you I was going to do this but I
would like to take a moment, personal privilege.
>> I have to approve it. I'm still chair, you know.
>> May I?
>> Yes, you may.
>> Thank you so much.
I wanted to, first of all, give a shout-out to one other person. I agree with
you that the advances on the website have been really one of the most exciting
things that I've seen at this agency in a long time. And We Lu who is Alex No.
2 really took the lead on making sure it all happened and if anyone deserves a
shout-out I think he does. I want to on a more personal note, note that this
will be the last meeting where I will be ablely supported by Nicole Zietler,
my personal counsel in my office. One of two commissioners only have two or
three people that work directly for them. They are so, so important to
our ability to get our jobs done. Nicole has worked for me for years and
served with intelligence and grace and good humor and has really -- I've been
enriched by all of her great skills. She's leaving us to go litigate
disability rights cases for the Department of Justice, important work that is
near and dear to both her and my heart and soul. So I wish her -- I know she
will be fabulous in this new position and will do great work, and I am going to
miss her but I wish her well as I know the entire commission does.
Thank you, madam Chair.
>> Thank you.
The next item on the agenda is Item 3. This is 2015-13 Reid.
And today -- yes, two of the commissioners are recused and will be
stepping out.
Stepping down. Okay. Stepping down.
And we have Jessica Selinkof and Bob Knopf from OGC here to discuss the matter
and also Mark Alias and Jonathan Brookeon. They are from Perkins Coie for the
counsel for the requesters.
Thank you both for being here.
Ms. Selinkof, would you like to make a presentation?
>> Good morning, commissioners. Agenda documents 1568A and B present two draft
advisory opinions in response to a request by Senator heiry Reid. After
decades in the Senate, including eight years as Senate majority leader, Reid is
retiring. He asks two questions. First whether he may use campaign funds to
pay the costs of a full-time assistant after his retimer for certain enumerated
tasks, and second whether his leadership pack may pay the winding-down costs
of the office. The drafts differ on question one. Draft A includes that Reid
may use campaign funds to pay the assistant as proposed so long as the
assistant does not engage in tasks that would also be personal use as described
in the draft.
Draft B includes that any payment to the assistant except for assistance in the
storage and archiving of materials to wind down the office would itself be
prohibited personal use of campaign funds.
On question 2, both drafts conclude that under the draft and commission
regulations the leadership pack may pay the winding down cost of the Senate
office. The commission received one comment on their drafts from the requester,
and though these may not be the drafts you're looking for, I'm available to
answer any questions that you may have.
>> Are there any comments, questions from commissioners?
Commissioner Goodman.
>> Let me just say this issue of personal use vexes us. It's a case by case
determination. It has vexed us in the enforcement context, particularly the
area of litigation. You know, there are cases that fall on both sides of the
issue. It is, however, one issue that has generally united the commission. 
The libertarian view of the interpretation of our code and regulations largely
depends on the personal use prohibition, because the personal use prohibition
to libertarians is what divides -- it is the dividing
line between what is personal, what constitutes bribery and gives
rise to direct corruption versus what is free speech. And what does not go
into the pocket to enrich the individual office holder. And so this is one
area where we are in court right now with a former sent senator
suing over personal use. We are in court right now with a former candidate for
Senate in Delaware. We had a vote this week to -- on the issue of
personal use. So it is incredibly important that we draw this line very
carefully, because it is -- for me at least it is what allows me to argue that
campaign money is free speech and free association and funds those activities.
So this request asks us to take essentially all members of Congress and
interpret their lives after they were in Congress to allow them to use those
campaign funds to essentially choose to continue to be public people.
Many members of Congress go off into the twilight, do not intend to correspond
and give a lot of speeches, do not intend to travel to continue to speak about
their past tenures in office. So it is a very generic request, a
very ordinary request for activities that every member of Congress will have to
some extent.
It is not unique. It is not necessitated. These activities are not necessitated by one's former tenure in office, the way they were in the
Kari case. This is where we often have disputes here in the commission is the
extent of relatedness, the extent of a sort of residual obligation that arose
out of a campaign.
So I guess my fundamental concern about where we're being asked to open this
door further than winding down costs is that the benefits that will accrue
to all members of Congress under this read will be all campaign funds, will
then be available to fund the administrative overhead of being a former member
of Congress, and in -- to maintain their speaking, writing, so long as they
discuss the fact that they were a former member of Congress, and there is
nothing particularly unique or necessary about this choice.
And the fact that many members of Congress choose to do this and choose to do
it at the expense of think tanks, nonprofits shows that there are many other
ways to fund this choice after you leave office, but it is not
necessitated by your former service or your former candidate status.
So that's why I am leaning toward the draft B before us today. It's because
this line is important and because this request appears to open up a all --
there is no end to it. Every member of Congress will always be a former member
of Congress, will always have request to speak, write, publish, fact check, do
all of the things that are here, and what it essentially suggests is that
campaign funds can go with members of Congress after they leave to,
without end, speak, write, discuss their former tenures in office. 
That's what I'm struggling with here, is the generic nature of this post-retirement,
what would essentially be a post retirement pension, administrative pension
fund.
>> Thank you. I mean, you're right. We generally are in concert on the issue
of personal use and personal use is a major concern. I do not see this request
to be as broad as you are suggesting. In fact, I think it is clearly
constrained in a way that would only be applicable not to every single member
of Congress whoever sits in Congress for one two-year term and leaves. 
This is applicable to a person who has been the majority leader for many years,
who has performed an important function in our government for many years, who
probably during that time had so much to do that he was unable to do some of
the things that's necessary, not only for the winding down of the
office but also to be able to communicate to the American public as an
important figure and public official, not necessarily as just a person who's
been there a couple of years and is trying to make personal use of their
campaign funds.
In fact, it's being constrained. It obviously can't be used for any activity
that will remunerate him in any way. So he can't do it for book tours or for
any other activities that are beyond what would be a public purpose here, and I
see this draft A, which I whole heartly support, as being the appropriate
mechanism for a person who will continue to be doing a public service as a
historic figure in our country, to achieve purposes that are important to the
American public.
So I myself don't think in this case the line is hard to draw.
>> I would just argue that this request for Draft A would indeed allow
every member of Congress to have an administrative fund to travel around the
world on a book tour so long as they are not earning a royalty from the 
book. And so long as the book the work they did when they were a member of
Congress. And it is too subjective a line to say that just because one member
of Congress was there longer than another, how do we ever draw that line? Who
was important in the Congress and who was not?
>> It's not just about length. It's about position as well.
>> Well, who? I mean, how do we draw that line? We think you were important
enough to walk away with an administrative slush fund. We don't think you were
important enough.
>> He has --
>> I'm sorry, do I have the floor.
>> You do have the floor but I don't want you to think that I'm saying that it
should be applicable and that we're going to be making \subject\substituteive additions.
We're making a position.
>> It st will only apply to leadership positions?
>> That's how I read it.
>> Where will you draw the line? Will you draw the line at a subcommittee
chairman or ranking member? I just finished reading the biography of Jack Kemp
and Morton Kondraki calls him the most important member of
Congress. May have been a deputy whip at one point. Is that high enough
under draft A?
>> Look, this is a -- as you have said many times and we've discussed, AO
requests apply to the facts that are before us. We cannot be opining about
any of your potential individuals, Jack Kemp or anybody else. Those will come
before us later and we can make those determinations at that time. This one
relates to someone that I think comes clearly within the commission precedence
and the law and so I think that it in this particular circumstance it's clearly
permissible.
>> Just so I understand. You support allowing all former leaders of
either the Democratic party or the Republican party in the House or
Senate to have a perpetual demonstrative fund with funds that are left over in
their campaign account but Draft A will not necessarily allow other members of
Congress to do that.
>> I support this draft A as it relates to the question that's presented is may
Senator Reid -- I'm not talking about former leaders or anybody else, may he
use the funds to pay the salary and related costs, which I believe we agree on.
And may Senator Reid use leadership path funds to pay wind-down costs of his
Senate office. That's what we're looking at today and that's what I support.
Mr. vice chair.
>> Thank you madam chair.
I just wanted to ask you ask a question of Mr. Eliasoon on this well. As you
indicate in your request and and also the letter you submitted with respect to
this draft that the Kerry AO is probably the one that's the most on
point. It's definitely a pretty expansive. In fact, as you point out, it was
about an individual who was no longer a candidate who was using campaign funds
to defend themselves from charges arising from activities that happened before
that individual ever ran for office.
>> Right. It involved former Senator Kerry.
>> Yes, Bob Kerry, the Nebraska as opposed to the --
>> And acactionsation regarding Senator Bob Kerry's service in
Vietnam. The allegations arose after he was out of the Senate and the
allegations involve conduct from years and years ago from the Vietnam war.
>> Right.
>> So just to clarify for the record what the --
>> And I -- that sets a pretty broad standard on what former members may do
with the campaign funds. At the very end of that opinion, the commission,
perhaps in an effort to contain the reach of that opinion, near the end says
the commission notes that this is a unique situation and this opinion's
conclusion is based on the days Case by case terminations of 13.1G1. This
opinion does not establish any general rule regarding the use of campaign funds
by former candidates or federal office holders for public relations expenses.
I wasn't here at that time. I was a young associate. So I don't recall all
the to and fro that went into this matter., but clearly I believe your
interpretation would be that this advisory opinion isn't necessarily a one-time
situation, that this established a broader precedent than just the unique
circumstances that arose in the Bob Kerry advisory opinion request.
>> So I think the 17 yes and no.
To begin with, a point that I think the Chair makes, which is exactly right and
which I echoed frankly -- or I said and which frankly the Republican
commissioners are were oak \{^co}\could heing only a few weeks ago when I was
here that every advisory opinion is about the people before you. So in some
sense every advisory opinion ends with an admonition that the advisory opinion
is for the facts that are presented.
So these are not rule makings. These are advisory opinions and yes advisory
opinions are cited, they are looked to for legal theories, but the advisory
opinion is for what it is. And as you remember a few weeks ago when I was here
and we were talking about super PACs and event size and the like, the
disagreement I was having with some of the democratic commissioners was we
don't need to decide what to do with every other super PAC. I'm here on behalf
of two actual super PACs and likewise I don't think that -- so in some respects
the Kerry language reflects the fact that former Senator Kerry was an
individual. He faced an actual set of circumstances and that opinion
related to him. Likewise we are here on behalf of an individual who is,
in fact, not a leader, not some leader, but is, in fact, has been the majority
leader of the United States Senate. That is in fact a relatively small group
of people who might have substantially identical facts.
Now, what I do think is relevant from the Kari AO, and commissioner Goodman I
think has a fair point is that correct we do look to the AO's for the
legal principles and I am -- I sort of vary between bemusement and dismay that the commission for whatever reasons, and I will just leave
those reasons aside, might abandon what has been actually a pretty workable
rule for democraticcratic and Republican candidates for years which is a case
by case determination and which was embodied in the Kerry AO. To set that
entirely aside in favor of what is a very restrictive bright line rule
that would, in fact, overrule the Kari AO. And I think that before the
commission would -- takes such a fateful step, I would
encourage it to think if that is in fact the step it would be taking, because
that will have wide ranging implications. I promise you it will have wide
ranging implications on the Republican side as well as the Democrat side
because there are a number of circumstances not presented here in which
Republicans and democratic crates alike rely on the current
interpretations of personal use and the Kerry AO language. And if in fact it
is not the case moving forward, and it has never been the case because Kerry
was just sort of its own thing, that will have wide ranging implications and
this commission will be embracing those wide-ranging implications in the near
future.
So that's -- I would just think that the commission ought to ponder the
importance of taking such a dramatic step in the development of its personal
use rules.
>> Commissioner Goodman.
>> what if a commissioner adhered to the result of Draft B but wanted to
rewrite it to say I don't find such as Reid situation presented here
particularly unique or compelling or necessary and I don't find the activities
that Senator Reid proposes to engage in here post tenure to be particularly
unique or necessarylike Senator Kerry's. So we have a very fact specific. We
just say we're not persuaded that Senator Reid's activities here exist
irrespective of what is essentially a choice to remain a
public figure and to speak and write and do those things and what if we were to
step back from the broad and say we don't find this one compelling, to meet the
test.
>> So I think it would be a factual question that you would not find that the
expenses at issue, and I'm quoting, would not have occurred if -- and I'm
going to put Senator Reid's name in, if Senator Reid had not been a prominent
Senator and candidate.
Now, you could make a determination as a factual matter that you believe that
the former majority leader, the current democratic cratetic leader, the longest
serving democratic leader I believe in the history of the country is in fact
not a prominent Senator and candidate. The agency would then be subject to
whatever review comes with its factual determinations, but I would say you
would be wrong to do it.
>> May I interrupt?
Let's say I concede. He is a former long-standing Senator. I'm just not
convinced that the activities that he proposes to fund here were necessitated
by that distinguished and long career in the Senate, that they are a personal
choice of his to engage in those things that many people that also had
distinguished careers choose not to do. It is not compelled by, it is
not necessitated by any prior campaign or tenure. So I can concede he was
important. Had a long distinguished career, and yet the decision to do this
after I do not find that it meets the irrespective test.
>> Right, and what I'm saying is that I think if you go down that road, then
you do have to decide whether to just overturn Kerry and live with the
consequence of that. Because I don't know how Senator Kerry made any less of a
choice post service to be prominent, to give speeches, to engage in all the
things you just said and yet the commission based that the analysis on the
facts that it did and based on the tests that it did.
>> I believe that the commission could say no to this request consistent with
the advisory opinion to Senator Kerry. We have had to struggle on this very
issue in the enforcement context in drawing this line where, for example, one
former member had on-going litigation. We've had two members. Both of whom
had on-going litigation, and the question was how related or necessary was
that on-going litigation to fund out of campaign funds to his or her prior
campaign? And in one case we said, you know, that litigation directly arose
from and was related to a campaign issue and it is residual after the loss of
an election. This one arose but it's not sufficiently related. So we have
reconciled very similar post-candidatey before and says one is and one is not
personal use. We could do that here.
The facts of Senator Kayy are that as a candidate he considered --
>> He was not as a candidate.
>>
>> I'm sorry, the opinion says it arose during his campaigns and --
>> To earlier campaigns. He at this point had been retired.
>> Senator Kerry may also represent sort of the outer limit but there is
language in the Kari advisory opinion about how this was visited upon him as a
consequence of being a candidate and senator necessarily and it was
residual and it was somewhat unavoidable and the commission made a very close
call. By contrast, one could reconcile a no answer here by saying this is not
a unique circumstance, this is not like the litigation or a specific issue that
arose in the campaign; this is an open-ended generic post-retirement plan to
remain a public figure and to \affirm\ampletively engage in
public life by publishing, writing, researching, traveling to give speeches,
and that is a very different request to continue activities in the future and
it is of a generic sort that all members of Congress would have that choice to
do, to some extent. I agree that a member of Congress who was in Congress two
or four years may have less claim on his or her time in retirement, may not be
invited to speak in Brussels and around the world, but they would be
the same kind of activities, whether one was traveling locally to give speeches to League of Women Voters and chambers of customers versus whether one
wants to travel the world to speak and write and publish. So my point is I
think Draft B can be reconciled with the Kerry opinion. We draft
these all the time. It's far more generic, to me, than the very specific
circumstances that senator Kerry was facing. We've had to make these tough
calls and very difficult distinctions as I say in other contexts.
You can react to that.
>> Do you want to respond to that?
>> I obviously think that -- first of all, Draft B doesn't actually say that. 
So you have asked me whether it could say that. It doesn't as currently drafted.
No. 2 I don't think that would come to the right conclusion. That would be --
I don't think reconciling it with Kerry is as easy as you -- I haven't seen
Draft B. Or I guess it would be Draft C. Therefore I haven't had a chance to
react to it. I don't think it's going to be as easy as you propose that it
would be. I think, in fact -- I think it's very difficult to reconcile Kerry
with a no answer here. But, you know, I don't want to prejudge -- I have
prejudged what I think the right answer is but I haven't prejudged an
analysis because I haven't seen the analysis.
>> Right.
>> Do you have a follow-up to that question or can we turn -- yes, commissioner
Hunter.
>> I just wanted to talk about following along on what commissioner Goodman was
talking about. So the last time you were here we did talk about the provision
in statute 52U.S. throo. 30108C1B, any person involved in a specific
transaction or activity which is indistinguishable in all its material aspects
from the transaction or activity with respect to this which this advisory
opinion is rendered may rely on this advisory opinion.
I think maybe -- I think we're saying the same thing here that we said the last
time you were here, which is when you were here before, the Republicans were
saying, or at least I was saying we don't have to sit around and do a rule making
for every idea in the world, but if we say yes \you to\to you so that one
person could fund raise for a candidate, put on a different hat and fund raze
for a super phak or 501C4 or whoever, any other person similarly 
situated could do the same thing. That's point at least I was making back
then, this is an important provision of the act because I don't think it's
appropriate for every person to come in and have to ask for an advisory opinion.
Of course unless there is material fact that's materially distinguishable.
So under the law, how is it different that Harry Reid was the leader for a very
long time and maybe there's a freshman member of Congress who only stayed one
term but was very consequential, you know, did a lot of great things and made a
lot of great speeches and he or she wants to go out and do the same thing. He
might not get invited to as many things but what's the legal distinction there?


>> The point I was making is -- the direct question I was asked was about the
language in the Kerry AO, saying it was limited to the facts.
>> But I would have never signed off on that. I didn't vote for that.
>> Okay.
>> To me that runs contrary to the statute.
>> The entire advisory opinion or --
>> Particularly that part.
>> That it only applies to --
>> Yeah. I mean.
>> So I was Harmonnizeing in some respects saying that's not
particularly important language because it is another way of stating that
advisory opinions are only relied upon for what you just read. The direct
answer I was giving was actually to say that that language, I think
commissioner Petersen was asking me, what are we to make of that 
language. You're saying you don't agree with that language. I'm saying I
don't think that language means very much because I think it's just another way,
and I don't know what at the time whether the commission was just making
itself feel better by including it twice, but I think it is just duplicative of the general --
>> I don't think so. But what I'm asking you is what is the legally -- what
makes Harry Reid different legally under the personal use statute? I think
we're miss reading the provision that I read to you. Moving on from that. 
Whatmics him the facts of his tenure materially distinguishable
under the personal use provision to the freshman member who did a lot of great
things.
>> So like I said, this was the other part of my answer.
>> Okay.
>> Commissioner Hunter, this is what I sometimes find myself having discussion
with Democratic commissioners about at these hearings, which is honestly I
don't think we need to answer question. Maybe there is no distinction. Maybe
there is a world of distinction. This isn't a rule making. They're not here.
Those members -- those freshman members of Congress aren't before you. So we
sometimes at this agency and candidly it is more often among the Democratic
commissioners than the Republican commissioners but here we are with the
Republican commissioners trying to figure out if we answer this question what
does it mean for a whole bunch of other things that haven't been asked? So I
don't know. I don't know what it would mean for another member of Congress. I
don't know what it would mean for a freshman who had no distinguished record. 
I don't know what it would mean for a freshman who had a lot of distinguished
record.
>> But why are you even bringing up that he's been there for very long? Why is
that relevant to the legal question before us?
>> I think the fact that he's the majority leader of the Senate goes to the
nature and volume of work that is -- that relates to his official office. If I
-- I got -- in the next advisory opinion I got a call asking how much time and
an intern, a college intern spent on vetting, if I had not told you that he was
the Senate majority leader I would have gotten a call saying can you tell me
more about his tenure.
Reasonable considerations to know that the person asking the request about post
service activities and the length of time and the scope of the duties was in
fact a long serving Senate majority leader. Now, if your question is would you
have known that if I had not said it --
>> So is the fact that he's -- I think what you're saying is the fact that he's
been there for a long time is legally significant because he has more work to
do afterward?
>> Commissioner, it may be legally significant. You may say it's legally
insignificant. What I'm saying is this is the actual request. The person
before you did all those things.
>> Because if it's not legally significant then I don't think we should tie
that to the legal analysis. That belongs in the factual section where we say
it just so happens that he's a distinguished member who served for a long time
but in the legal analysis it may not be relevant. So the freshman member might,
you know, have the same ability to use the campaign funds after he leaves that
the leader does.
>> Again, this is a -- you are describing a draft that does not exist before
me, right? If you're asking if there was a draft that said, yes, you may do
these things.
>> Right.
>> And the fact that you are the Senate majority leader is irrelevant because
all members of Congress could do it, I guess that would be another Draft D. 
I'd be happy to look at that and offer comment to that as well.
>> I mean, if you want to think about it, that's fine, but just are you able to
opine on that now? Would there be an issue to say that --
>> I'd want to see what the analysis was.
>> Okay.
>> Mr. vice chair.
>> Thank you madam Chair.
And just -- I think because now we've talked at length about each advisory
opinion request is unique in certain aspects, but as you pointed out we try to
look at past advisory opinions to try to define the legal principles that are
going to define the commission going forward.
Just one other one I wanted to address going back to the Kerry AO, is it --
just to quote that sentence, not the unique circumstances, but talking about
the general rule regarding use of campaign funds by former candidates or
federal office holders for public relation expenses.
I just wanted to address quickly that issue of public relations expenses. 
We've had a number of AOs that had have dealt with that where members have had
a scandal or something that's arisen and the commission has stated that paying
for public relations expenses related to that scandal or matter of public
concern are permissible uses and don't violate the personal use prohibition.
If Kerry were to be considered an advisory opinion that's within the -- that
kind of scope of advisory opinion where this really is not a general personal
use consideration, what can you do post retirement with your funds but is more
a kind of cabin into the public relations expenses line of advisory opinions,
then that could 30E7B8ly be a distinction between the current circumstances and
that are presented in the Reid and Kerry request but I wanted to -- I'll just
state up front, I have not landed on a particular position right now. So I'm
asking these not as leading questions or trying to be clever. I'm
generally trying to figure out how to decide this case in light of what we've
said before. And I'll state up front if I'd been here for Kerry I'm not sure I
would have decided the way that it was decided, but it has been on the imooks
for a decade and and a half and I'll trust your representation that it's been
relied on by many members of both parties since that time, and when I first
read this I thought this was pretty much -- this may be dispositive of the
question and even filled have decided something in the initial instance we may
have to continue to travel down the path that this established. But as I read
that, I just wanted to -- I've been puzzling in my own mind whether about
whether or not this case really stands for a narrower proposition of just the
category relating to public relations and the advisory opinions that
have kind of been in that realm or does this establish a much broader principle.
The Reid request would then fit within comfortably. I wanted to get your
thoughts on that.
>> First of all, Mr. vice chairman, I'll pay you this compliment not because
you said you're so open minded. It sounds like you are all open minded. 
Your colleagues comments and questions are appreciated. Again not that thank
all of the questions are not open minded. They have been. But I think you put
your finger on something that is important.
I think if you were 20 take a step back and there had never been any of these AOs, no Kerry, none of these, I think you probably would have put PR
services probably more on the personal side than like dealing with things that
relate to service in office. I mean, just as an abstract matter. So I'm not
sure it gets you very far if you conceive of the world that way because it's --
that's actually cabinetting it into that box. It's a really big box. 
Something that is not present here, but the whole line of cases, Mers or Aoa
involving legal fees would seem actually cleaner if you were starting
with a blank slate than that and so I'm not sure cabining it, I'm not sure
where that goes. You know what I'm saying?
>> Okay. If I could just ask. Shifting to the second question,dealt with
leadership packs, now when I first read this I have to admit that my prior life
at chief Senate at rules committee kicked in and, because when I read this
question initially and it relates to winding down expenses, category, I think
even by rule are considered to be official expenses as an office holder, and at
least I don't know things have changed in the seven and a half years since I
left but I remember issues coming up with leadership PAC funds could be used
for expenses related to -- official expenses, official office holder expenses. 
So that set off maybe bouts of nostalgia or at least questions I previously had
in my mind. I want to clarify that kind of the scope and the nature of the
argument you're making on this front. It's basically we have to ignore
whatever Senate rules might say with respect to leadership PAC funds and how
they may be used for poicial office holder expenses.
Under what's formerly 439A, we have a list of expenses that are permissible for
authorized committees and it lists the -- it goes through the enumerated list,
but what you're saying -- when it comes to leadership PAC, there's no
kind of analogous provision.
>> Analogous provision?
>> For leadership PAC funds, what may be a permissible use for it.
>> The personal use prohibition?
>> Yes.
And the reason I ask this, when I first read this, and I thought the argument
might be being made that you're making the argument that since a
contribution received by a leadership PAC may be considered a contribution
accepted by a candidate under -- well, what was formerly 439A, therefore since
those under that provision, you know, the ordinary and necessary expenses
incurred with in connection with duties as an office holder may be paid under
that. Therefore leadership PAC funds should be able to be used to defray the
cost of winding down. And obviously if that were the line of analysis, then
that would apply the personal use prohibition to leadership PACs, which has
been a subject of much discussion beyond this advisory opinion and
that kind of triggered alarm bells in my head. As I've been puzzling through,
I take it that that is not the line of analysis that you are applying in your
request with respect to how leadership PAC funds may potentially be permissible
to be used to pay down winding down expenses.
>> I thought when I saw Draft B what it was going to say was -- and I was wrong.
I thought Draft B would say there are no personal use rules that apply to
leadership PAC funds, go forth.
Because I know this has been an issue that I was candidly I'll give you
insight into my thinking, I was not trying to wade into. It would be a perfectly
acceptable response to say, yes, you can use leadership PAC funds because
they're leadership PAC funds and, you know, we just don't think that personal
use, the prohibitions apply at all or others could say we think it does but
they're okay here. Like I was honestly -- I thought the fault line in this
discussion might actually hinge on that and I was trying not to get in a dead lock where I was caught up in that.
If I can stay agnostic for the purposes of today on that fault line, but you're
correct in that, that we are not advocating that they do -- that the personal
use rules do apply. We are also not looking to alienate any vote from someone
who thinks they apply.
>> And I gathered that as I was going over this late again last night. Because
as I was looking at it, in some ways the analysis that's in the draft
could almost be switched. You could almost say use your leadership PAC funds
to pay for the assistant and use your authorized committee to pay for the winding
down and this would be --
>> Like I said, vision Draft B would lead with we don't think there's any
restrictions on leadership PAC funds. I assumed that with a six-person
commission, and I don't think there's anything wrong with a four-person
commission that we were going to get four votes on that proposition. So I was
trying to -- the draft frankly just not engage one side or the other into a --
feeling like I was tipping that scale.
Does that make sense?
>> It does.
>> That makes sense to me.
Unless there are more questions from Mr. Elias, I wonder whether we might -- if
egress to extend the time that we might put this over so that perhaps we can
have discussions amongst ourselves and reach some sort of potential middle
ground.
Commissioner Goodman.
>> Are you talking about pushing it to the January meeting?
>> Right. I was going to say this is one of the rare instances where I can
tell you I don't have urgency. So tell me what time.
>> I would say January.
>> I would ask counsel what would be a couple of days after the next -- the
scheduled meeting proposed on the calendar that I think we're going to adopt
today.
>> Right.
>> What would be about three days after that.
>> I think the proposed schedule is the 14th is the first meeting. So if
that's a Thursday, the 18th.
>> You'd want to go to the following Monday, I think.
>> Rather than one day.
>> Or maybe the next Tuesday.
>> There's really no time pressure on it. So this is really one of the places
take advantage of whatever.
>> And I take it by your comments that you'd accept that continuance.
>> That's what I'm saying. You pick a date.
>> And you're fine with it.
Commissioner Goodman.
>> And we can deal with this after --
>> I was going to say I'll be amenable to anything that's before November of
next year.
>> I think that's a constructive approach. I'm still struggling with some of
these issues. And so I would like more time. And I think this colloquy helps
crystallize some issues.
But I do have a couple more questions while we have Mr. Elias here.
>> Please, go forward.
>> What's unique about this, this is personal use, and in the regulations it is
specifically a case by case determination, personal use. We have other areas
that are case by case. Not everything is.
>> I agree.
>> However, you argue here today that members of Congress have relied and
are relying on the Kerry AO to comport their behavior. And if we issue this
opinion, members of Congress will look to this AO to comport their behavior. 
This there is a specific provision in the advisory regulation that someone who
has materially the same circumstances. So the
distinction between a 30-year member who was a leader versus a ten-year member
who was an assistant whip may be lost on many people. I think we do
have to consider what message this sends to members about whether they're going
to be able to retire with an administrative pension fund to pay for post
retirement speaking, writing, and to offset the expenses of travel and
what have you. So I do think we have to consider that.
But I do think your point about thinking very hard about the Kerry opinion and
how we write -- however we decide this use is an important thing we need to
consider. So I appreciate more time to do that.
Let me ask you, and this is hypothetical. If it appeared that the four
commissioners that are comprised on this issue because two are recused, that
on the issue of personal use there was going to be a split of three to one and
that was unavoidable, would you then like us to address the issue of leadership
PAC funds and their use? Would you then like us to -- if the first question's
going to be --
>> So I don't know. I'd like to think about that, and I'd like to talk to --
I'd like to talk internally about it, talk to the general counsel's office
about it. I will invite something which I don't think has ever been said in a
public meeting but I'll say it, I would invite Frankly having ex parte
communications with you all. You are free to note them. My position is going
to be the same in private as it is in public. I'll be happy to -- they can be
videotaped as far as I'm concerned, but the rules permit ex parte
communications about these things they just require they be noted. This may
be it is easier for you to work it out without us being involved but if
there this is a place where a continued discussion about some of these issues
is useful, you know, I will just tell you I do not have an aversion to you
saying, you know, I talked to Mark Elias, I asked his opinion. My opinion is
we filed the comments what our opinion is. So I only offer that in I have no
-- I'm not going to proactively interject myself in your 
discussions as you go forward but if there is a useful dialogue to be had
around some of this, you know, I'm happy to continue to have it.
>> Madam Chair.
>> Commissioner Goodman.
>> Just so I understand your nuanced legal proposition to us, I take it that
your argument that Senator Reid can take the funds left over in the campaign
account for these types of retirement activities is based on sort of a 
two-fold legal argument and one is under 113.2 that in your position they would
constitute the ordinary and necessary expenses in connection with the Senator's
duties as a holder of federal office? In other words, under 113-point -- I
think you can see that these are not campaign expenditures. So we're in -- we
have to begin our analysis at 113.2, which is permissible noncampaign use of
funds. So let me know if I'm not following the legal analysis. So no one is
contending that these are campaign expenditures.
>>
In your request --
>> That's what I'm looking at.
>> For example, on Page-- well, I'm missing a page number.
Page 2, that the materials that will be worked on and on which this
administrative expenditure will be made relate to its leader Reid's tenure in
office.
>> Right.
>> There's not an argument that it arises from as a residual from a campaign.
>> No. I think that's right. I think to the extent there is residual from the
campaign, frankly, I didn't feel like I needed to --
>> I understand. I just want to be sure I'm analyzing this through the right
rubric, okay?
So we need to refer to section 113.2, permissible noncampaign use of funds
whichied saw that ordinary and necessary expenses in connection with the
Senator's duty as a federal office as .1.
And then one of those enumerated examples would be any other law
for purpose.
>> Right.
>> So it could be either, really. I mean, one's an example but it's not
limited to the enumerated one. So if I don't find it to be a necessary
expense in connection with the Senator's duties as a holder, a former holder of
federal office, I might nonetheless find it's an other lawful purpose which I'm
thrust to determine whether this this is personal use or not under 3.1.
Am I missing any other analytical staff?
>> No.
>> Okay. Thank you madam Chair.
>> All right. Thank you very much.
>> Thank you.
>> Good discussion.
You do not have to get up.
All right. So Item No. 4 is DAO 2015-14, Hillary for America. And today we
have Samuel Levor, Shawn Wright, and Bob Knaupf to discuss the matter. We also
once again have Mark Elias and Jacqueline Lopez from Perkins Coie here.
Counsel for the requester, welcome. Welcome, Ms. Lopez.
>> Mr. Walther, I didn't think he was recused from this.
>> No, I don't believe he is.
While I have you all in rapt attention, I do want to mention that Sam Levor, I
believe this is his last day. Is he here?
There you are.
And he's presented on numerous occasions before the commission. He's an intern
at the FEC and has done amazing work, and we're going to miss you. Thank you
very much for the work that you did on our behalf. Really appreciate it.
Thank you. Okay.
Would you like to give a presentation, please?
>> Good morning, commissioners.
Before you a agenda document 1569 which contains two draft responses to an
advisory opinion request by Hillary for America. The request asks through five
distinct questions whether DePaul university may provide a some type end in
academic credit to a student who is interned in the questioner's in vetting
departments. Both drafts A and B conclude that the provision of a stipend is
permissible under commission regulations whether legal and compliant services
that the student provided but not for her other campaign work. The drafts also
conclude that the provision of academic credit is permissible for all the
student's work. The commission received two comments on the request and
one comment on the drafts. Thank you and I'd be happy to address any questions
you have.
>> Thank you.
Are there any questions for OGC?
No.
Hearing none, questions for counsel?
Hearing none. Anybody wish to comment on this matter?
No?
All right.
>> Commissioner Goodman.
>> Well, I just want to give Mr. Elias an opportunity, edidentifies these meetings.
There are two drafts out. Could you just explain your perception and take on
the two.
>> It is rare that I think on a bipartisan basis the commission got it entirely
wrong. So that's what I think.
I think that, you know, I was -- I almost said something in the last discussion.
>> It's a good thing you didn't.
>> That tied the two together, but so I'll make commissioner Petersen because
it was aimed at a question you asked. I feel like in 1979 in a world that was
very different, in an FEC that was almost unrecognizable by today the
commission got something wrong and now there is like a reluctance to do
anything about it. The fact is that DePaul university is willing to pay a stipend to a student who is getting academic credit, quote, for the sole
purpose of assisting further educational experience. And the commission is on
the precipice of saying that that is an intermissable payment and a
contribution from the university to a campaign which is honestly preprosrous. 
I currently have no votes for the position I am advocating but I think if you
ask most Americans whether the financial aid that a university pays to a
student is a contribution. If that student then volunteers for a campaign, the
answer would be no. I think all of you would say the answer is no. That if
you get a peel grant or a student loan that allows you as a student to do an
internship it's not a campaign contribution. Here, because of the
payment that is being made to the student, which is solely for the purpose of
assisting their educational experience, you have turned this somehow into some
-- by the way, she could be interning for anything. This is to the like go
intern for campaigns. This is like go intern in the world. So like all of her
other friends get to be paid, get a stipend, I shouldn't say get paid, to
further their educational experience except an agency in Washington, D.C. has
said that if your way of furthering your educational experience is to intern on
a campaign, then you need to turn the money back, which is essentially saying
you need to turn back part of your financial aid. So I would ask you all to
reconsider whether in 1979 the commission got this right or whether the facts
here actually applied to this, but in a world in which we are -- this
commission is tackling a lot of problems of money and politics,
universities providing educational some type ends so that the students can
intern in politics does not strike me as a place that this body out to be putting
down the hammer. So that's the little spiel that I have for you today.
>> Mr. vice chair.
>> Thank you, madam Chair.
On that point, I mean I think you raise some very good points that the -- I
guess this does tie into the last one. As I mentioned in the last within if
I'd been here for the original AO I might have voted differently. I
don't know for sure but I might have. Let's say I would have voted for a
different principle but if I decide that's kind of the governing precedent as
it were that may lead me to continue to support a draft that would be in line
with what you want the request to be. And this presents kind of a similar
situation where there might be a precedent out there that -- so if I should
continue to follow precedent that I may not necessarily agree with in one
instance, what would be the grounds for add cailgt and maintaining that
adherence verses in dairch case where again if I were to evaluate this in the
first instance again I might vote differently but there is some water under the
bridge here.
From my perspective, what would be the principled reason to supersede one and
not the other?
>> Great question. So as you might imagine I thought of that. Since I raised
the two together.
The first distinction is the Kerry AO is relatively recent and it is in fact
part of the fabric of a fairly dynamic area of the law as you all
have pointed out. The personal use rules are something that campaigns tackle
regularly and members of Congress on both sides, Democratics and Republicans
have to deal with. And Kerry is there. It is a recent fact on the ground that
people are contending with it and relying upon. This is a very old AO and I
suspect, this is now not knowledge, this is suspicion. I would bet you that
many colleges and many campaigns are unaware of this. In fact, there is
widespread payment of stipends to people doing
internships in college and not distinguishing between the internship. I think
you have in this 1979 precedent, frankly, something that if I had not -- if my
client and I were not super attentive to the law, this is one of those things
that people would just be largely ignoring, because that old AO is so old and
so counter intuitive and counter to common sense and unsupported by the statute
that I don't think most people, most campaigns would think -- I don't think
most campaigns unless they happen to have a sophisticated finance lawyer that
if someone got a some type end from a college that they couldn't intern in a
campaign. I just think there's a very different set of -- again, that's
suspicion. That's not hard data. This doesn't come up as a significant
barrier in my experience in dealing with universities. It's something they
have thought of.
>> Okay. Thanks.
>> If you're inclined to have us take a run at rethinking some of this I think
we ought to do it and then come back in the next meeting. That would be
my motion.
>> I'm sorry, I -- could you repeat it.
>> Just to table this till the next meeting and we could reconsider some of
these older thoughts and what to do with them.
>> Commissioner Weintraub.
>> If my colleagues want more time to think about this, of course we should
take it and have a well considered decision.
Here's one of the things that I would be thinking about during that time and I
would appreciate your insights.
You know, you talked about how the world has changed since 1979, and one of the
things that has changed, particularly since 2010, is that there appears to be a
whole lot more creativity going on out there in terms of who is funding various
aspects of campaign operations. There are campaigns out there that appear to
be, judging by what I read in the newspaper, offloading all sorts of
traditional campaign functions to outside groups.
And this particular premise, which you say has no basis in the statute is
actually based on the provision that says corporations, including nonprofit
corporations, aren't allowed to pay for staff for a campaign. So if we were to
go down the line that you're suggesting and supersede the earlier AOs and say
that, you know, I think that we could come up some kind of a rationale that
talked about educational purposes and, I mean, I don't know, maybe the answer
to my question is that we would limit it to accredited educational
institution, but I do think there's a real risk of somebody coming in through
the vehicle of a C3 or a C4 saying we are now going to set up an educational
program. We want to promote civic engagement and in order to promote civic
engagement, particularly among young people, we want to set epa special
program that will pay the stipends for young people who go out, or people of
any age, let's not be age discriminatetry, who want to go out and work on
campaigns and get more involved in politics and the civic activities of their
nation, and, you know, perhaps they would do this for a particular university
that had a reputation of having either a very liberal or conservative student
body knowing that the odds were good that those students, even if the program
wasn't set up to target a particular political party would probably seek
opportunities helping out one side or the other.
I'm concerned in reworking this to accommodate what is a very sympathetic
request, you know, I read your comments, I read your requests. I am actually
quite sympathetic to what you're asking, particularly when you put it in terms
of wanting to expand opportunities for lower income people who want to become
involved in these kinds of opportunities, but where's the limiting principle
and how do we prevent this from becoming should we decide to go down this road,
just another vehicle by which wealthy people, a particular program with an aim
towards providing staff for political campaigns.
>> So I think there are a few things that in this request are actually quite
self limiting. I start by saying the same thing I said the last fact and
circumstance. This one actually self limits quite nicely. They're not trying
to promote civic engagement. That isn't what the university's
trying to do. The university, if this person -- if this student had
gone to work for a start-up tech company, would have had the same money. This
is about -- this is solely for purposes of furthering their education
experience. She's getting college credit for it. So could someone set up an accredited university, give college credit, endow it? I mean, that
seems an unlikely road to travel. I mean, I think that if the limiting
principle is you get college credit for it, you are paid the some type end irrespective of whether you are working in politics or some
other field and there is a bona fide process for reviewing these, I mean, it's
hard to see how that gets -- you know, how that gets out of hand.
I think.
>> Things have a way of getting out of hand around here, but I appreciate
the comments.
>> I think there this one self limits. My point is I think this one actually
self limits pretty neatly because it's such a -- you know, would NYU take
advantage of it? Yes. Would Pepperdine take advantage of it? Yes. I made
that up. I don't actually know if either of them would. I don't think you're
going to see a crop of new 501C organizations that are going to go to the
trouble of creating accredited colleges in order to hand out $3,000 stipends to
interns.
>> That's not actually what I'm worried about so much as perhaps somebody endowing a program at a particular university. Assume that we limit it
to universities and granting college credit as part of a broader
internship program that isn't limited to politics or targeting
political activity. I could still imagine a wealthy donor deciding what the
heck, I'm going to give a million dollars to my favorite very liberal or very
conservative university so that they can set up such a program because I know
that those -- the students who are likely to take advantage of it are more likely
to work on the kind of campaigns that I would like to see getting staffed. 
And I can -- and I'm sure that -- I don't find it at all far-fetched that there
are organization out there now that might say well we're going to set up an
educational program and yes we could just say well no it's got to be part of an
accredited college program. You're right, that would be a good limiting
principle, but I suspect we would get questions from other folks besides universities who would then say, well, if you were willing to
say that it's not a contribution from a corporation when the university does it,
what do you got against my C3 or C4 or think tank or whatever.
>> Because the opinion that I envision hingsz on the fact that it is solely for
the purpose of assisting with an educational experience. So it's not a 501C
purpose. It's not civic engagement. I think that that actually is a very
different and might lead to what you're talking about. It actually has to be
-- for the educational experience. Whether it has to be for college credit or
not I'm kind of two minds because there are lots of colleges who do internships,
stipends that are not -- where the college doesn't give credit. I'm drawing
-- jacky Lopez who's a graduate of Harvard university law school telling me on
the way over here that Harvard law school does not give credit but they do give
stipends for internships. But again it's -- you should speak up. It's
not related to politics.
>> They have a similar general program where nonprofit start-up environments
you have to get funding. You have to prove that it's a rigorous educational
experience but they won't give you class credit for it. Just a small some type
end.
>> That might be a way you -- that certainly -- this request is that there is
college credit. I'm not sure -- I think that that -- I'm kind of of who minds
of this. You can limit it has to be for the educational purposes of the
student. Which by the way I think also goes to the tax treatment the student
gets on the money because it's treated as a some type end by them not
as income to them.
>> So there was a request to hold this over and I assume that's -- you're
amenable to that as well.
>> In an ideal world but I -- \big\{^ing}byers will not be choosers, they
would be held over for the same.
>> Same.
>> A sub instantive interjection if I may so. If there is going to
be -- if the commission is going to think about reexamining some of the older
AOs in this why, the one thing I would add maybe for consideration, maybe Mr. Elias
would be interested in addressing here, is that one thing both drafts agree on
is that the intern would be allowed to take the some type end for the legal and
accounting work that you would do and that's under the statutory exemption for
that. That statute and the implementing regs require that the person make the
payment be the, quote, regular employer of the person receiving the payment. 
In 1982 the commission decided that a college student receiving a some type
end could be considered -- that the college could be considered the regular
employer of the student. I think there is reason to wonder whether that was
the correct result there. Both drafts rely on it exclusively. That is the
sole reasoning in both drafts for the yes answer on Question one. So if there
is going to be reexamination, maybe the commissioners would be interested in
reexamining AO, itsconig 19.
>> I agree.
>> So with that admission this matter will be held over to the same time I
guess as the previous matter.
Thank you very much. We want to take a couple minutes.
Oh, you found it. Okay.
We just -- you are done. Your matters are done. It was commissioners Walther
had a concern about something else.
Okay. Thank you.
The next item is item No. 5, rule making position to revise commission
regulations in response to the citizens united case.
The petitions were filed by make your laws PAC I believe and public citizen and
I see Craig holeman is here in the audience from public citizen. I don't know
if Si is on the line? No, okay.
>> But he's probably listening.
>> Right. I'm sure he is.
So are there any comments by any of the commissioners about this matter?
>> I just had one question for counsel. You know, this publication comes to us
with a unique providence and I just want to be sure that our general counsel is
sure that it is still in order for us to vote on this as a six-member
commission.
>> Are you suggesting that there's a conflict of interest?
>> No, not a conflict, but perhaps --
>> Excuse me?
>> A prejudgment.
So I just want to be sure that the counsel's comfortable, that's all.
The original position that was filed out of order by two commissioners stated
strongly worded positions in it that they -- that what the commission should do,
in other words, it's an opinionated petition. It was subsequently copied and
submitted by somebody else, but it is the same language. And under the
petition regulation of 200.4 -- excuse me, 200.43D, there's an explicit
provision for the commission's consideration of publications brought by
citizens for the commission that the commission will not consider the merits of
the petition before the expiration of the comment period on the notice of
availability and I just before we proceed to a vote that could be tainted with
some impropriety that does not evidence prejudgment of the merits but given the
providence of this petition.
>> Mr. Nody.
>> OGc's view is regardless of what may or may not have been the issues with
the prior petition that that petition was with drawn. This one was refiled. 
Excuse me, that petition was with drawn. This one now pending was
filed as a separate standalone position unrelated to the first one. And
therefore unless other things have happened since then that were filed
that that would not be an issue here.
>> Okay. I just wanted that opinion of counsel.
Thank you.
>> Thank you.
>> Let me make a couple comments now that we have that potential problem that's
been made up to deal with. You know, the campaign finance landscape has been
transformed in the last few years and the commission has done very little to
adapt our rules to that change. Citizens United itself had two very explicit
safeguards are corruption. One was that independent expenditures are truly
independent, and the second is that campaign spending is fully disclosed.
Last year when we were discussing the Citizens United rule making, and even
before that when you, commissioner Goodman, and I testified at our hearings
before the Senate rules committee, we both talked about the importance of rule
makings to provide guidance to the public and to those who are subject to the
law to understand how to comply. And that is something that you spoke often as,
as I did, and that we both agreed on, and I think most of you on this side of
the Dayias spoke strongly about that at the time when I
provided the fourth vote in that rule making that there was unfinished business
related to citizens united.
>> Now, when proposals to clarify our rules in areas that are provided by this
petition, such as the disclosure of dark money, campaign
\spend\suspending by foreign nationals, conversion of employees, coordination
between candidates and super packs it appears that suddenly the colleagues on
this commission don't think that it's important to have clarification about the
rules, about the position that are some of the most Sig issues pending before
us in this electoral campaign. I mean, even Justice Kennedy who wrote the
majority opinion in Citizens United is concerned that the disclosure system
isn't working the way it should. In recent remarks at Harvard law school, he
said, in my view what happens with money and politics is not good. Disclosure
of who's financing elections is the answer. But he admitted that it's not working
the way it should. And it's not working the way he anticipated it was going
to happen.
And on the coordination front, you know, the supreme court's decision in
Citizens United was premised on the assumption that outside spending was truly
independent of the candidates. Our coordination rules were enacted prior to
the existence of super PACs. They are hopelessly outdated. They do not deal
with super PACs at all. So everybody in this country except the FEC is
discussing some of the major issues with campaign finance today, and we're
principlely responsible for implementing and enforcing campaign finance rules,
and yet we have failed to address some of the biggest changes in the system
post Citizens United. These petitions raise some of those most
significant issues. They go to the core of our democratic processes and to the
ideal of ensuring fair political processes, and it seems to me that
opening a rule making to have people discuss the potential of rules and
strengthen the rules in this area is something that this commission really is
obligated to do but actually should do.
Commissioner Weintraub.
>> Thank you, madam Chair, and of course I agree with everything that you just
said.
Ever since citizens united, I have tried on numerous occasions to open a rule
making that would address some of the new issues on the ground out there. I
mean, politics has really changed in the last five years. We discussed it
earlier in the context of the AOs and it's obvious to everybody out there that
politics has changed. According to our recent New York Times poll, 84% of
Americans, including Republicans, agree money has too much influence in
campaigns today. Fifty-five% think that most of the time think candidates who
win office promote policies that directly help the people and groups who
promoted money to their campaigns. Eighty-five% said the funding should be
fund mentally rechanged or rebuilt. Eighty-five% think the way we're doing it
now. The rules on the books are not working. And I just find it -- you know,
commissioners speak out on all sorts of issues that are near and dear to their
heart. I've heard commissioner Goodman on Fox News and in editorials speak out
strongly on issues near and dear to his heart. I've never seen him recuse
himself from then voting on that issue when it comes to the table. It's
somewhat remarkable to me when they brought this petition our colleagues
objected we couldn't do it because it was the predecessor petition, our
colleagues said we couldn't do it because we weren't persons under the act. 
Now that other people have said they too are concerned about these issues and
thechted to bring it before the commission, commissioner Goodman is trying to
box us out again and tell us -- trying to tease counsel into saying it's
somehow inappropriate for us to even vote on this, the lengths to which some of
our colleagues will go to try and shut us up on these issues is really quite
striking to me, but we believe strongly that we are in sync with the American
people and that people outside of Washington don't find these to be
terribly astonishing positions that money ought to be transparent in poll tikdz,
we don't want to be foreign influence in our elections, that organizations,
employers, and labor organizations shouldn't be in a position to coerce their
employees in this world in which they now have new political rights themselves
they shouldn't be able to be able to coerce their employees into participating
in political activities that may or may not be in seaning with those employees
or in the case of labor organizations those members, their own political views.
That when super PACs are out there spending millions of dollars funded by
billionaires and not necessarily representing the views of ordinary
Americans, that at the very least we ought to make sure that that money is
being spent in a way that is independent of the campaigns so that the
candidates are not wholely in the pockets of the people who are funding the
super PACs.
There was a study that was written about recently that talked about 158
families had provided almost half of the money that was spent in the early
parts of the primary season. It's a very just vanishingly small percentage of
the American population and there was an article today in U.S.A.
Today, which if I can pull it up -- sorry, I had it pulled up before.
Alec -- I won't bother because it's too hard to pull it up on my
phone because our Internet is really not -- the Wifi's not up to snuff in here.
But the USA you had to had an article that said -- I think the statistic was
84% of the advertisement that were run in the early parts of the Republican
primary had been funded by super PACs and you can -- and compared that to the
1% in 2008 that was funded by outside spending groups. That's the difference
in Citizens United. We've gone from 1% of the ads being funded from outside
spenders to practically all of the ads being funded by outside
spend spenders. I think it's really important the American public know it is
being done to the extent that billionaires are able to fund these organizations,
that at least it's being done in a way that preserves some possibility of
independence and that our government is not going to be elected by people who
are just wholely indebted to this very small slice of the population.
The good folks who run the open secret website have pointed out we are seeing
more money coming from fewer donors and with less transparency. That's the
effect of Citizens United. People feel ordinary citizens feel like there's no
point in contributing to political campaigns because they're just not going to
get any -- their voice is not going to be heard in a world in which the very
wealthy have such a disproportionate role. So I think that these four things
that are the subject of the petition to improve disclosure and to prohibit
foreign money to make sure that we ban core wearings and the expenditures by
super PACs are indeed independent. I think they would not solve all of these
problems but they would be a small step in the right direction and it is
irresponsible of us to refuse to even take the step of opening the door to
comments and consider doing this when we had suggested earlier this year that
we were thinking about doing a rule making or would consider doing it. We got
thousands and thousands of comments on this. Very unusual level of comments
for this agency. At the beginning of the year we received over 30,000 comments,
three or four of which said the commission should act in response to these
particular petitions. We received another 11,000 comments. Nearly 97 of them
supported the petition and asked the commission to open a rule making. I mean,
I guess we can just tell the American public that we don't care what they have
to say, about, but I kind of do, I think we kind of ought to listen to them. 
And I am prepared once again to make a motion. The motion is on blue paper so
no one could be surprised by it. We made the motion itself public so that
everyone would know what we were planning on doing here today, and I hope
against hope that we might get support on the commission for actually opening
this rule making and responding to the views of the public.
>> Thank you.
Are there any other comments, Mr. vice chair?
>> Thank you, madam chair.
In the last, I guess four years we probably had similar -- this issue has
arisen on a number of occasions, I believe twice in 2011 we voted on proposed
notices, proposed rule making, to open up rule making along this same
line and the position that I held then is still the position that I hold now. 
I don't really even need to delve too deeply into the substance of this. In
order to still have concerns about going forward on this particular rulemaking.
Shortly after Citizens United was passed, Congress took up the disclose act. 
They debated it at length. It passed out of the how's. It died in the Senate.
And since that time there have been numerous efforts to revive the disclose act
or some approximation of that effort in order to expand disclosure requirements
for corporations and labor organizations, to expand or clarify the nature of
the foreign national prohibition on making contributions and expenditures, and
those have not gone anywhere. And as an administrative agency, and we are
appointed by the president but we are not elected. We are not the vehicles
through which the public expresses their -- you know, their desires and their
demands in terms of what they want as the best policy. We carry out what
Congress enenacts through legislation, and that is the body through which
popular or unpopular disconnect expresses itself. Since united united is not
legislated in this area. I don't view my role as a commissioner to feel like
I step into the void when Congress doesn't act. Whether I agree or disagree with their actions,
what Congress does or does not do, as it's the case in this instance is
significant and as a commissioner I believe that it is my responsibility to
take that into account when determining whether or not I'm going to move
forward on a particular rulemaking. I believe especially with respect to the
disclosure of foreign nationals, this I believe is if I rememberly within the
purview of commerce. I think the polls that commissioner Weintraub, I haven't read them. I trust that they're accurate. If public demand is
that great then that will, I assume at some point, actually move those
who represent the individuals expressed, that aring about poled to make
legislative changed. When that happens we will make the appropriate
modifications in our rules to accommodate that. That hasn't happened. And I
believe that that I have a responsibility to responsibility to respect the
decision that Congress makes and the decision they say do not make in this area.
I don't believe that I am ignoring the public in this case. I know there have
been thousands of people who have submitted comments. There are other comments
that have come in on behalf of thousands of businesses and
constituents who have recommend not moving forward in this particular case. So
this is, you know, an issue that's arisen before. These are points that I made
before. I make them again now. I'd also just make mention with respect to the
coercion that the proposal was to clarify the could he wearings. I'm not ware
of the deficiencies in our current law, which are fairly robust in terms of
preventing coercion, and we've had enforcement matters that this
commission has gone forward on with respect to those provisions. In terms of
coordination, super PACs are subject to the coordination. All entities, groups,
parties, candidates are subject to the coordination rules and that
coordination rule, which arose after fine gold but then was subject to
challenges was further modified after Citizens United was handed down by the
supreme court. I don't think that -- it's not accurate to say that the
coercion rule hasn't been modified or looked at. I know we maybe some
disagreement on whether or not the current rule is adequate, but to say that
super PACs are somehow not subject to it I don't think is -- or that it somehow
doesn't capture super PACs I don't think is accurate. They are
subjected to the same extent that parties or any other outside Group is subject
to it, but for these reasons as with prior proposals to open rule makings
along these lines I will not be able to support this one.
>> I appreciate you giving your reasons because I wasn't here for the previous
discussions on this matter, but let me say for my part in response that I'm
certainly not interested in enacting the disclose act. I mean, that's not what
this is. This is a request to open a rulemaking so people can comment about
those matters that we would later determine whether it was appropriate or not
to have a rule on those matters. And, you know, in your argument about our
role is to either regulate with regard to what Congress has enacted as opposed
to if there is a void we then can't regulate, well, you know, clearly we enacted
a regular lags relating to Citizens United and the application of Citizens
United. We have to respond to court decisions, and this is just such an
instance where the court has spoken exceedingly clearly about the issue of
disclosure and of coordination and we have not dealt with that issue.
I never meant to say that super PACs wouldn't be covered under our super PAC
rule; however, we never anticipated the situation now with respect to super
PACs that has changed the dynamic in campaigns today and therefore our rules
are antiquated. The evidence of that is we have never a coordination
determination at this commission, ever, in all the cases that we've done, and
some of them perhaps didn't merit that decision. Some of them some of us might
think did, but part of the issue has to do with the fact that the rules are
simply not applicable to the situation that we find ourselves in in this
country in our political process today.
And so I think that it is clearly our obligation as a commission as we all
agreed, the four of us agreed, and despite a lot of criticism that I received
from joining with you on Citizens United rulemaking, it is very important that
this commission, we may not be able to do some major issues, we may have
disagreements in how facts apply to the law in certain cases, but at the base
it's our obligation to provide rules to deal with the new law. And so it seems
to me it's been, what? Six years since citizen united was enacted and it's
about time that we enter into at least getting public comment on this issue.
Is there any other -- commissioner Goodman.
>> We did agree to receive public comment. We did. We received thousands of
comments just this year.
We had an all-day hearing with dozens of witnesses who --
>> That was on McKuchin.
>> Madam Chair, it was piewntively. You said that publicly.
The Republicans joined you and said yes make it about any issue you would like
and we heard far ranging opinions here on everything. By the way we heard very
little on McKuchi flrk if you recall. We heard a lot of testimony from a
variety of perspectives here in an all-day hearing involving dozens of people
from the left, the right. We heard from individual citizens who came go and
spoke.
So we have opened our doors and we have heard, and we heard a variety of
opinions on both sides of this issue just this year. So to some extent when
this was -- when this new petition came in from commissioner Weintraub and
yourself, this was a request for a redo of the February hearing. Let's go out
for public hearing again on these subjects.
So my point is that the ink is barely dry on a hearing we just held
with these issues with persuasive points of view on both sides of these issues,
including I know the president's attorney, Robert Bauer who sat right here at
this table who said if you go this direction you will lose. Now, vice chair
Petersen discussed a lot about what Congress is debating. And Congress is
debating many of these issues. Has debated it in every year since
Citizens United and has chose not to act, has chose not to change these laws
even though they are laws that people are proposing to change. But in addition
to what the Congress is doing, we don't write on a blank slate here because of
what the courts have ruled. So the courts have given us constrictions on how
we regulate, for example, the issue of greater public disclosure in but you cannily
V. valueao. The courts have told us you don't have full regular
organization that makes expenditure, only those that have the major
purpose of influencing elections are political committees that you have full
regulatory authority over. Now, we have had debates over how to apply that
legal rule but that debate is currently pending in federal court.
Likewise, the public disclosure required electioneering communications.
Now, I wasn't here when the commission voted to contradict the disclosure
of donors. That was a decision of the commission bifer got here. There are
commissioners here who voted for constricted rule in that
case. But now that is in federal court and they are considering that issue as
we speak.
And as for independent expenditure reporting we do have a requirement. And
independent expenditures are being reported to us. They make up about 3%. 
This dark money issue you're discussing is about 3% of all the political
expenditures that we regulate and that are reported to us and made public.
If -- even if we were to all ther the line of the definition of political
committee, we might get 20, 30% of that 3% of those independent expenditures
that are being reported to us. We know the organizations, with whether it's
the U.S. Chamber of customers or Planned Parenthood action fund or the SEIU, we
know those organizations that are making those expenditures because they are
reporting those to the American people. They're reporting them to us
rm.
The proposal is for the greater donor which is in the federal courts right now.
Even if the court tells us we need to draw the line two clicks this or this way
in defining when organization is a political committee requiring full
disclosure of all of the 501C4's donors, for example, a different rule may
capture 20 to 30% of the 3 pest that's being spent in politics today this. Is
a 1% issue. We are spending 80% of the debate here over 1% of the money here
in greater disclosure, not nondisclosure versus disclosure, but that we want to
know the target of this is to make planned parenthood action fund and the
U.S. Chamber of Commerce disclose who gave money to them to the tune of about
1% of all the expenditures in politics today. But mind you, this agency was
the clearinghouse and on our Web site today you can look at $7.3 billion in
expenditures in the 2012 election cycle. 5.5 billion expenditures in the 2014
election cycle. And of those amounts, 4% of that 7.3 billion in 2012 was from
organizations that do not disclose their donors. And 3% of the $5.5 billion in
2014 was independent expenditures by organizations that do not disclose their
donors.
So my point being that Congress has this in its breast at this time and is
debating it and has been debating it for five years. But also the courts are
currently considering where to draw these lines as we speak. And even if the
courts tell us we drew a line improperlily, you're perhaps going to get
greater disclosure under the ex tent rules and ex tenant first parameters
around our regulatory jurisdiction in the tune of about 1% more in donor
disclosure in America. So for all these reasons because Congress has
these issues in its breast, because the courts have these issues, both
political committee status and the election donor disclosure rules and because
we just had a hearing with persuasive points of view on all sides of this issue
just ten months ago in this very room, this is not a path that we should
continue down. I say let's watch to see if Congress wants to change these
rules. Let's wait for greater guidance from the courts in the cases now
pending regarding political committee status and electioneering communication. 
Donor disclosure, and that's while I'll vote no on this petition.
Thank you.
>> Commissioner Weintraub.
>> Thank you, madam chair. I'm not going to try and address everything that
commissioner Goodman just said, but let me make a few points.
When it comes to coordination, Congress left the rulemaking to us. They did
not come up with a good agreement. They couldn't come up with an agreement on
how they thought the coordination rules ought to work. The last time they sent
it back to us and they said you know what, we don't like the rules you've got
on the books. We think they're too narrow. We want you to expand them. We're
going to give you some factors that you ought to take into account but we're
not going to tell you exactly how to do that. That is up to the commission. 
Writing coordination rules is squarely within the purview of this commission.
The fact that we held a hearing earlier this year doesn't mean -- doesn't
address our concern because what this petition is asking for is not that we
simply hold a hearing but we actually change the rules. Because those
coordination rules to pick one out of the four were written before the advent
of super PACs and single candidate super PACs and all of the activities that
people read about in their newspapers every single day, about the
interrelationships between the super PACs and the candidate committees and the
candidates themselves. And we have not changed those coordination rules as is
our direct responsibility since Citizens United. We haven't even considered
whether they work in the current environment.
What is within the purview of the courts right now is not what is the best
possible rule for the sake of our Democrat crass see but whether certain
decisions that were made, in some cases by four commissioners and some only by
three were legally allowed to be made. It's an entirely different standard
than saying what is the best possible rule for the sake of citizen
participation, for the sake of rules that make sense and that adequately
address the way people are conducting their campaigns and conducting their
outside activities today.
And I have to address the 3% figure. I've heard that line before and really it
is so misleading because a lot of money spent in politics by candidates in
house races where everybody knows who the winner is going to be and not a lot
of outside spending is going into those races because it's pretty much a
foregone conclusion that one candidate or another is going to win because of
the way the district lines are drawn. Doesn't mean those candidates don't
spend money in their races. They do, and that goes into the 7 billion-dollar
total and this year who knows. In ex year who knows what the total will be. 
Certainly above 7 billion. But the -- a lot of money is spent in
politics on races where pretty much the answer is known before anybody takes a
single vote. Where the outside money goes is not races
where it matters. In 2014 when the control of the Senate was up for grabs and
there were ten top races where everybody knew there was a possibility of power
shift, the outside money flooded into those races. In at least seven out of
those top ten races there was more outside spending than spending by the
candidates. In two or three of those the outside suspenders spent more than
twice what the candidates spent. So if you look at, oh, let's look at all the
spending that goes on all over the country for any political race, yes, you can
say the outside spending and the dark money that's part of that outside spend
ing is a very small percentage of the total, but it is a huge percentage of the
total in the races where it matters.
And I found the quote, by the way, with the able assistance of my staff, in a
world in which -- and I'm quoting from today's USA you had
to article. Outside groups are sponsoring an 81 pest. I misspoke. It's only
81.% of the ads are up from the primary up from 67% in the 2012 campaign and
just 1% of the same stage from the 2008 campaign way back before the federal
courts paved the way for super PACs. In that world to say, well, there's
really only, you know, 3% of outside money, or dark money so we don't really
need to worry about that and it won't make a difference to any voter to know
who was trying to spend the money in the races that count, I just fund mentally
disagree with that and I I don't think I'm the only person in America who does.
>> That is the issue of coordination. Yes, they are our rules. This
commission spent a decade trying to draw the lines of coordination that are
currently in effect. As a result of about five years of effort in trying to
investigate and punish the Christian coalition in the mid to late-1990s where
this commission took a very broad view of what constitutes coordination and
ultimately the federal district court told the federal overbroad definition of
what could constitute under the first amendment coordination. So the
commission drew new lines as a result of that.
Then Congress did instruct the commission. Congress did act as commissioner
Petersen has indicated. Congress enacted a law, bipartisan campaign format
that requested the commission to redraw the coordination lines. The commission
went back to the drawing board in the early 2000s, redrew the line. A court
told the commission it had drawn the line inappropriately so the commission
went back to the drawing board again.
And from 1995 to 2005 the ink is in constitutional sense barely dry, this
commission has drawn, stubbed its toe, redrun, been instructed by Congress
to redraw, stubbed its toe again and redrawn the lines for what are and are not
coordination. So this commission spent a decade trying to draw the lines where
they are today, and because independent expenditures have existed since the
1970, Citizens United didn't fundamentally change the parameters around the
institutional parameters around what is coordinated and what is not. It may
have illuminated there is a lot more independent expenditures occurring. And
talk about how the discussion of the chair that we have in force coordination. 
At one point chair Ravel you said in the press that we haven't found one
of them and we went back and looked at the demgoinggry over 29 coordination
cases. In 27 of 29 cases the office of general counsel recommend dismissal
that there wasn't sufficient evidence to proceed on coordination. So
coordination is a very complicated and difficult issue and this commission has
struggled with it and has drawn lines for what is and is not.
As for the issue of the courts, the courts may not be over their drawing right
now the best possible line. What they are going to be considering is the
constitutional limits under the first amendment of the lines we draw. And this
proposal suggests we don't wait for cord guidance on those first amendment
boundaries, that we rush ahead regardless of where the courts may draw
those first amendment lines and I would prefer to get the guidance of the
courts on where the first amendment rights of American citizens begin and end.
Thank you.
>> You know, I know I should stop myself and not make this comment, but, you
know, I'm so glad to hear you talk about the significance of the general
counsel's recommendations and I'm certainly hoping going forward that you will
add here to that and every time the general counsel makes a recommendation you
will think that that's the appropriate way to go in a case. I'll bring it up
on other occasions for.
So did you have a motion?
>> I do have a motion.
>> I'm sorry, commissioner Walther. Sorry, I didn't realize you wanted --
>> At the risk of prolonging this.
>> No, no problem.
>> I'll support the motion but I do think it's got its issues because certainly
we're right in the middle of a very contentious cycle. At the very -- I
wouldn't call it the tail end but things will get more intense as time passes. 
And so for us to actually promulgate, although prior to the election might be
-- if it wasn't problematic before, substantially more now during that period.
But it doesn't mean we shouldn't continue to listen to what's going on around
us, because there's a -- because of the avalanche of new money that previously
wasn't in the system and the ways it's being used and the potential for abuse
without regulation I think grows. So I think we should try and keep
our ear to the ground as best as we can for as long as we can to the point
where people will ultimately say we've got to do something. Maybe even us.
And I think now is the time to go ahead and do something. Now, here we haven't
offered any proposed rules and I think that in a perfect world, not here right
now, it would be good to have some drafts that they would focus discussion.
The hearing that we had earlier this year did say anybody who wants to say
whatever you want, they're free to say it, but we didn't really give any notice
to people as to it might be available to talk about these issues in substance
and to prepare for them and that kind of thing. So I think a hearing along
that line would be appropriate even now, even if we didn't vote on this prior
to the election.
And as we go on, everybody becomes more educated on these issues and the
sooner we all become more educated, the better and more
intelligent decision is going to be made. A good example of this, there's a
question over the 3% issue that's been talked about. There's a variety of ways
to think about that, as there is for a lot of things. The comment was made
that our coordination rules are, as a practical matter they worked once but
they never have. We should make an effort as soon as we can to try and craft
even remedial measures, minor ones so that the public and the people who want
to participate in the system know the danger zones. Yes, the commission has
gone off and said we think this should be coordination and we launch forward
and people get hurt in the process because there's no guidance. And it's not
anything wrong with the agency trying to enforce what they think probably the
law ought to be in a given case with given facts, but by the time we get to the
end of a case it may not even have looked that right in hindsight.
So I think the reason I'm supporting it is I think it will offer an opportunity
again for us to continue to educate, reeducate, rethink and refine our thinking
so that the facts that are before us when they ultimately get to the vote will
be more intelligent.
And I also think that every time we do something like this and develop a record,
it's one more thing that Congress can take into consideration when they're
ready to actually do something themselves. They can say, look, the FEC has
been doing this off and on. They've tried to do it and commissioner goodman
said we've tried and we fall on our identifies face and try again. Courts keep
tell us what to do, but they're novices in all of this themselves and we really
respond to what's at the front of any given case. Even on Citizens United
there wasn't a big record on the implications of any of this.
So I think the only time we do this in a way like this, it's a basis for other
people who are involved in the process, or as Congress with the courts, to have
the ability to see the implications that are involved here. And I also think
we ought to bring in not just people who are in the middle of the system, the
parties, but people from the outside who have a chance to look at the
psychological and social impacts of this.
For example, some corporations who come in with a truly independent idea but
nothing's going to stop anybody from coming in and looking at the policies
that some organization is interested in or some party in a small town. Basically
drown out the effort of some who want to change the law to even participate in
the system because they say, well, we know it's not going to work this time
because I can't fight this big entity coming into a small town and I think that
Wyoming case expressed the anxiety that exists when there's an overpowerful
financial force that is driving the decision making process and the way people
react to it.
For those reasons I support it. I think we ought to keep trying and learning
and this would offer some information. I think since corporations are going to
help people we need to find out what people are part of the corporation and I
think there's a time when we should look at how we are going to view the influx
of foreign money through the corporate scheme. And I don't mean
to use the word scheme in a pejorative context, but in the corporate world
increasingly can be a party and a participant in this system with large amounts
of money. And so I think we've got to have the ability to know really what
that means in the context of who's behind the money when that situation exists.

Those are my comments.
>> Thank you very much.
Commissioner hupter.
>> With respect to the coordination cases that we've dealt with here as a
commission, the enforcement context. We all know anybody can file a complaint.
We had approximately 29 cases in the recent past on this issue, and we took a
look at all of those, and as commissioner Goodman points out the office of
general counsel recommend not going forward in the vast majority of them. And
in the vast majority of them there were four votes to agree with the office of
Jen counsel. The smallest subset, I don't have my chart in front ofmy, but the
small set of cases where we disagreed on how to enforce our regulation was
whether somebody's familial ties may -- there may
ab presumption in some people's mind that there's coordination. I think 
speaking for this side of the table that doesn't, to us, mean that there is an
automatic presumption that there is coordination. It's a very small sort of
technical issues. It's not the sort of high fluting things people might be
talk bsmght I think in some of the proposals I've heard my colleagues make they
would like to make a presumption that if there is a familial tie that there is
coordination. And we're not in favor of that. It's just not something we
think is permissible for a lot of different reasons. One of them constitutionally
based. So I don't want people to walk away thinking this is -- it's a pretty
narrow issue and we do as has been pointed out by my colleagues, we do
obviously is have a coordination regulation that people follow. I think it
makes a lot of sense and I personally think it works quite well. There's not
much ambiguity in it in my opinion. It's gone through many iterations as has
been discussed today. So I see no reason to change that. I think it's working
well and I don't see the kinds of complaints that cause me to think we should
amend it. One of the things commission Walther mentioned was people drowning
out other people's speeches and somebody else mentioned siivelg participation
and those are all policy issues that some people are concerned about, but
they're not within our purview. Those are not the kinds of things that we have
an ability to say somebody who's exercising their constitutional right and funding
an independent expenditure, whether they drowned anybody out or not, they have
a constitutional right to do so and it's not within our purview to try to
stifle that.
>> Thank you. Are there any comments?
The motion.
>> I would just like to make other one brief comment on that.
On the topic of the 29 coordination cases, I think there were about a third of
them that I thought there were ground for investigation. Some of the cases
like the super back that was was established and funded by the candidate's
mother who had also appeared in campaign commercials for the candidate and some
of us thought that we ought to at least ask some questions. Remember these
coordination cases have all come to us in the context of whether to open an
investigation. We did not ask a single question. We did not open a single
investigation and there are more cases inhouse right now and I
predict once they are before us that some of them raise some immediatier
issues than these relationships commissioner Hunter was talking about. I'm not
overly sang win that even once we get outside the bounds of familial
relationships that we will find anymore grounds for agreement on some of the
close connections between some of the super PACs and the candidates.
Having said that I will make the motion.
Whereas 19th, 2015 and June 22nd, 2015 the commission received
commission from making sack PAC Inc. and pub citizen requesting the commission
revise its rules to respond to the Citizens United supreme
court decision. The commission received approximately 11,759 comments from
11,769 commenters on the notice of availability published in the Federal
Register on July 29th, 2015. Whereas 11,414 commenters, nearly 97% of the
total commenters supported the petitions and urged the commission to open a
rulemaking as requested in the petitions. Whereas numerous studies show that
the current campaign finance system is diminishing public trust in the
democratic process, there's a footnote in the document if anybody's interest,
whereas in response to the Citizens United decision and its projectny
the commission has made little effort to ensure the remaining valid provisions
of the act continue to be implemented consistent with congressional intent and
whereas as a result again in the words of the same commenter, our political
system is even more vulnerable to corruption and less transparent than it ought
to be, I move that the commission open a rulemaking and that the office of
general counsel draft a notice of proposed rulemaking that proposes to revise
commission regulations as follows:
One to require full public disclosure of corporate and labor organization
independent spending consistent with both the Citizens United decision and the
acts requirement that outside spending groups disclose their donors.
Two, clarify that the prohibition on foreign national campaign related spending
restrict such spending by U.S. corporations owned or controlled by a for
republican party national.
Three, clarify that corporations and labor organizations are
prohibited from coercing their employees and members into providing financial
or other support for the corporations or labor organizations independent
political activities.
And four, require that the expenditures made by super PACs and other outside
spending groups are truly independent of federal candidates consistent with the
Citizens United decision and its project knee.
And of course were we to actually open such a rule making I would welcome
any other proposals on these same topics that our colleagues wish to put
into the notice of proposed rulemaking.
>> Thank you. Are there any other questions, comments?
All those in favor please indicate by saying a.
>> A.
>> All those opposed.
>> Madam that fails.
Commissioners Goodman, hunter, and vice chair Petersen voting no.
The next item and --
>> Madam chair could I just ask the counsel, do we need to do anything else to
dispose of the petitions?
>> The regulations require the commission to publish in the Federal Register
notice of disposition explaining why the commission has chose not to go forward
with the rulemaking in the last --
>> Attach the transcript.
>> We've tried that. In the last few rule makes where the motion has
dead locked the commission has not been able to approve by four notes the
notice of disposition. So it is a regulatory requirement. It hasn't been
happening lately, I guess is the short answer.
>> Madam chance I have to inquiry.
>> Commissioner Goodman.
>> Would it be adequate to issue by majority vote of the commission a statement
that says for the reasons the commissioner stated at this date the volt failed
by vote of three to three and then attach a transcript of the hearing?
>> That -- yes. Certainly. Yes.
That -- yes.
>> Thank you.
>> Do we need to vote on that or can we do that by consensus.
>> It would need to be separately approved. We can draft it.
>> Okay. Thanks. We're going to take like a couple minutes before we go to
the next item.
And, you know, I was going to suggest that we break so that we could all attend
the wonderful party that's down stairs. I'm sure you all brought your
New Orleans beads, but the problem that we have is this. We have a number of
items still remaining on the open session and we have, by my count, still ten
matters that have not been resolved on the executive session. And this is the
last day for the resolution of them at least with respect to matters that we've
put over to today.
Commissioner goodman.
>> Just as a preview.
Looking at the agenda, I guess --
>> The executive session agenda.
>> Opened a meeting agenda, just to understand where we're headed. We've just concluded matter five.
Under matter six, the first two items are really one, and that was my proposal.
There was a memorandum from me about --
>> With respect to -- .
>> Deregulating state and local political parties. That failed by a vote of
three-three. I didn't request this continuum agenda. I thought commissioner
Weintraub might want it to be there for other purposes.
>> Well, I had a motion, as you know, at the last meeting to couple your
proposal with a proposal of mine, and you said you wanted more time to do that.
>> I assume that's why those are still on the agenda so they can be discussed.
But my point is they're not going to take a renewed discussion.
I guess my next question is, are we planning on discussing --
>> Let me just interject for a minute. Commissioner Weintraub did have a
motion on the table, as I understand it, with respect to -- I mean, this is
kind of related to it. She's combined it with the -- we still need to
have a vote and potentially a discussion.
>> I guess I'm just trying to understand, are we planning -- we have
already discussed the next document, the draft NPRM implementing party
segregated accounts. That is not part of the current pending motion.
But I don't think it requires a lot more discussion.
>> No, I agree with you on that.
>> Okay.
The next is technical modernization rule.
>> And I know you asked to put that over.
>> I did not.
>> Oh.
>> I think that the request was that we weren't prepared to vote on it today
because we wanted to raise additional issues.
Now, I am open, I'll defer to the vice chair, on whether we discuss it further
today or -- without a vote, or whether we move it to January. I guess I want
to know what the commission's pleasure is on that.
>> Well, you know, it seems to me -- look, I do have a comment about that one. 
I mean, by the time we ever decide this issue, it's not going to be modern
anymore. I mean, we have had this on the agenda for months, and the office of
general counsel has worked really hard on keeping us advised of what was in it.
It just concerns me that we keep postponing this matter.
>> And the genesis of this was something we started two years ago.
>> I'm happy to discuss it today; I just want to know for purposes -- this is a
procedural inquiry. Are we going to discuss it today?
>> Look, if the will of the commission is not to discuss it today and put it
over, that's fine with me. I would just sort of put in my strong desire that
it be heard early in the year and that we actually do something about it
already.
>> Okay. I'll follow the chair's lead on whether we discuss it. I'm prepared
to discuss it if the commission wants to discuss it.
Then the last is the subject of I couldn't remember whether there was a motion
on the floor whether commissioner Weintraub was going to make a new motion
today.
The last matter is a subject of a motion that's to be made or voted on today.
>> I understand that. I agree with you that I don't think that this is
necessarily --
>> Seven, I have requested to be held in part because I'm waiting still there
was an agreement at commissioner Weintraub's that the counsel was going to
provide an amendment. We've also had a court opinion in the meantime that I
think bears upon this issue and that is how transparent we are with the records,
the enforcement file records that we make public. But I've asked to hold that
in light of that court opinion and also I'm still waiting edits from the Office of General Counsel.
>> I did not receive your request that it be held.
>> And just to be clear, it is not my understanding that the Office of General
Counsel is under an obligation to edit your document. We had extended colloquy
on this last time. We have asked for guidance from the Office of General
Counsel, but in my view and I don't think that -- I do not believe that it is
the view of a majority of the commission that the general counsel is bound to
start with your document in editing it rather than giving us their own view.
>> Let me also clarify something actually. This is why I was confused. Item 7
is the rulemaking on reporting multi State independent expenditures.
>> No, ma'am that's Item eight.
At least on the agenda I'm holding.
>> I'm not going to blame anybody. Sorry for --
>> And I don't know where we stand on that.
Is that the subject of a vote today or a discussion?
>> That's up to you guys.
>> Right.
Well, I think there's a motion perhaps on the --
>> Well, I'm not sure. It's myunderstanding that my Republican colleagues
wanted to have a vote on that, but maybe I'm wrong, on the multistate reporting.
>> I believe commissioner Hunter has the lead on that issue and I thought she
was discussing with this with you. She's discussed it with you more than she
has with me.
>> Well, she has discussed it with me and I have discussed it with her and
unfortunately we were not able to come to an agreement.
>> But those are the items. That's what's left that's I didn't think it would
be good for us to do them in the morning so that -- or I guess it's not morning
anymore. Before we break because there's a lot of people in the audience and
as well as, you know, press who it would be unfair to make them come back while
we're reveling in New Orleans -- FEC New Orleans.
And then there's the all important passing of the torch too.
>> You can dispense with that, just keep things going the way it's going.
>> No, no, no. We're not going to dispense with it.
>> I'm waiting to adopt new meetings so that we can all come back again and
have some more fun.
>> Okay. So the next item is item No. 6 rule making priorities and proposals
and while you were out of the room commissioner Hunter we sort of went through
all of these and have kind of figured out sort of the way forward on them. The
first two items, commissioner Goodman's items, will be subsumed in the
discussion and motion that commissioner Weintraub wishes to make with regard to
the coordination rulemaking proposal that she and I proposed.
>> The motion on the table and I will just point out because much has been made
earlier today about how we should not --
>> Excuse me. Madam secretary, was there a motion on the table or does
commissioner Weintraub need to make the motion then you? I just don't recall.
>> I now have my notes. That's why I was going back and checking. And we are
on agenda documents No. 1554A and A1, correct? That is what we were --
>> 1554D.
>> The motion that commissioner Weintraub had was to direct OGC to do a notice
of proposed rulemaking with respect to agenda documents 1554A, 1554A1, and
1554D. The discussion continued and -- bear with me -- subsequently
commissioner Weintraub withdrew her motion and asked that it be held over to
the next meeting.
Thank you.
>> We can dispense with that formality then.
>> You want to renew your motion.
>> Yes, I do wish to renew my motion, for those who are listening in cyber
space and have no idea what 1554D and A are all about, commissioner
\goodman\good man had some proposals for regulatory attention to political
parties and the chair and I had a proposal, again relating to coordination,
particularly with respect to what we term closely associated
organizations, outside groups that appear to be functioning vees closely with
candidate committees. My motion was to couple these two proposals. I will
note that much has been made earlier today about how we should not be doing
rule makings when Congress is considering the same topics. Congress is and
has been actively considering any number of proposals on the regulation of
political parties, but that doesn't seem to stop you in this instance from
wanting to do something here, and I'm okay with that. I'm okay with our going
forward and trying to provide some relief to political parties. I'm not sure
about any of the particular proposals that you've come up with, whether they
would withstand scrutiny under the Shay's precedence or -- you know, I'm
agnostic at this point as to whether I think they are -- these particular
proposals are necessarily good ideas but I'm happy to put them out there for
public comment. I believe that the -- every article that I've seen that talks
about the role of political parties having been diminished always couples that
with a discussion of because of the enhanced role of the super PAC. So I
think it really as I said before they're two sides of the same coin. We should
consider these issues together and this is my effort to accommodate a
rulemaking agenda that is near and dear to your heart, I know. You know, it's
not -- this isn't my issue; this is your issue, the party issue, but we also
have an issue that's near and dear to our heart that we think is very closely
related to that. So in the spirit of trying to find a path forward, I thought
maybe we could do it all together. And I hope that you will consider voting
for it.
>> Is that the motion made?
>> So I move -- I renew my motion that we direct the Office of General Counsel
to prepare a rulemaking document that would cover the issues set forth in
agenda documents 15-54A -- what is it, A, A1, and D.
>> I appreciate that you don't oppose giving some relief to the political
parties and yet I find some provisions in what you're marrying up with this,
this new rebuttable presums of coordination to be highly problematic.
And fundamentally the more I've studied it -- here's my fundamental concern
with creating a rebuttable presumption particularly in the case of
family members, and that is what this proposed rule would do is discriminate
against people in the exercise of their first amendment rights based on their
status as a family member to somebody else.
Now, familial relationships is a protected liberty interest under the
14th amendment, and in addition to that we have the overlay of a fundamental
constitutional right under the first amendment because here people would be
exercising first amendment rights and we are going to discriminate against them
by creating a rebuttable presumption that we do not create or assume in the
case of any other person.
So I think that is a fund meantly problematic. Now, when I look at the history
of this issue I saw that the commission has by majority vote, this would
reverse a decision of the commission that family status does not create this rebuttable presumption, and that was the decision just two years ago
in the case of Jay chin for Congress, Mer 6668, where in the factual and legal
analysis proved by the commission, the commission said the complaint points out
that Jay and Shawn chin, this was an independent expenditure only committee,
with a brother who made independent expenditures and participated in them, and
the commission said in its FLA the complaint points out that Jay and Shaw chin
are siblings but the commission has never determined that a familial
relationship standing alone is sufficient to find reason to believe that
coordination took place.
In the present matter the complaint does not allege and there is no information
evidencing any discussion of participation or other activity between the chin
brothers that might satisfy the conduct wrong.
So we would be reversing something that we decided about just two years ago.
Now, that's not to say that the commission couldn't reverse its prior position,
but let me talk about some of the reasons why -- oh, while I'm on that subject.
That has been historically the position of the commission as well in analogous
context. So, for example, in advisory opinion 2003-ten,serta and his son
recordy Reid came to the commission. They wanted to know if they could raise
funds under Nevada law offing about a per se agent of Senator Reid for purposes
of requesting what was soft money under the biPatterson campaign reform act and
in that opinion the commission objected a per se rule based on familial status.
It says it is not enough that there is some relationship or contact between
the principle and this agent. Thus the father/son relationship alone is
insufficient to create an agency relationship. Not a coordination case, but a
per se rule based on familial relationships.
We would be reversing that rule by analogy.
So now let's talk about how the rebuttable presumption
would operate to chill what could be wholly permissible and compliant speech.so
the federal election campaign act regulates core first amendment rights. All
political activity is permitted unless it is suppressly prohibited. We're
operating in an area permeated by the first amendment. We're here to restrict
it but not prohibit. The acts and regulations prohibit only specific conduct
for compelling a governmental interest implicated by that conduct.
Now, the FEC A also sets up if you are going to be accused and held accountable
for violating, for engaging in prohibited conduct, there must be a
complaint. And either the complainant and/or the commission bears the burden
under the act of \affirm\ampletively showing that someone has
engaged in conduct that is prohibited. The commission we have to make an
affirmative finding of reason to believe. Now we would be using a
presumption of guilt and removing that burden of proof at the first
instance.
So your free exercise of a constitutional right is restricted under a
presumption paradigm unless you can bear the burden of proving you have not
broken the law. We've completely shifted that burden under the rebuttallable
presumption paradigm of this proposal.
Now, even under the best of circumstances, it is incredibly difficult to prove
a negative under a shifted burden. And it's not merely a theoretical concern
that I'm expressing. Because the case in point is the case you mentioned in
our prior debate, MER6611. It was Laura ruderman. And in
this case, a mother established a super PAC to support her daughter. And when
a complaint was filed that the mother and the daughter, based on their
relationship must have coordinated, there were submitted to the
commission five or six unique affidavits from individuals involved in the
process expressly denying the conduct prongs of the coordination rule.
And the first general counsel's report once again reiterated the rule, the
commission has not found that a family relationship by itself is enough to
provide reason to believe that there has been unlawful coordination. But then
the first general counsel's report went through in specific detail the
sworn testimony of fire or six people involved in that instance, very specific
statements about the absence of coordination, sworn declarations submitted to
this commission, and yet three commissioners did not agree with the Office of
General Counsel's analysis and would not credit the sworn testimony before the
commission.
And so what does this mean? It means that under the rebuttable re
pre\assumption\supplementation that would be established in this proposal
before, people cannot sustain, they will always be, even if they come in with
affidavits, five, six different people all testified to their innocence, guess
what they're going to be subjected to? A reasonable finding. In other words,
it's not going to be good enough. They're going to be subjected to an
investigation and the costs inherent with having to affirmativelyprove
their case in an investigation. And reasonable people will therefore refrain
from engaging in wholly permissible and legal activity to avoid this heavy and
expensive burden of proving their innocence under the ruderman test. So I
can't support putting that burden on people solely on the basis that they are a
family member.
I might also add that this proposal reverses advisory opinion 2011-twelve. 
That was a 60 -- that was a vote of six to zero to the Senate majority PAC and
several commissioners here voted for that. And it reverses votes that betook
a month ago on this commission after a virtual whole-day meeting with Mr. Elias,
incident majority PAC. We just voted on two of these principles and this
would reverse a majority position that is probably less than a month old in
that matter.
So for all those reasons, yes, I support helping the political parties. Those are my substantive objections to creating our presumption based
on people merely because they have a familial relationship with another person.
Thank you.
>> Thank you. Commissioner Walther.
>> I think the reason that -- first of all, I'll support the motion to move
forward in the manner suggested by commissioner Weintraub, but if we decide
before we even vote that we're not going to agree to a particular one, it
doesn't mean I think that we shouldn't offer more conversation in the public
from people who may or may not be sativevy to that. As you can see from the
most recent example, here we are and we have two or three AO's, two or three
areas of enforcement. We're all wiggling around this issue. If we took the
time to have a rule people on the street except for the Mark glasses who would
know about all the AO enforcement rules would have some reasonable guidance on
what, you know, father/son, mother/son -- mother/son/father daughter
could do now. To be in a REG this this is a consideration in the following,
something to that. We're actually using the rules to provide guidance to
people on the street. Maybe there's some contours out there we haven't talked
about because they only come to us in a context. We never sit back and say we
could do it this way and somebody a lot smarter might have a way to decide some
of these things in a context we can agree on. So that's the reason I think in
a rulemaking we shouldn't automatically reject something that we're opposed to
at the outset as long as it might -- if dialogue took place might help
establish some basic ground rules we could move forward with.
>> Commissioner Hunter.
>> Thank you, Madam Chair.
I think commissioner Walther and other comments have brought to fore a
substantive different way of looking at rule makings here. I agree with you
that in the context of the AOs we talked about this morning, those kinds of
things might be appropriate to have a public hearing or a rulemaking on certain
issues. On certain issues I agree with you. But on this one I believe that if
we put this document out, the one proposed by commissioner Weintraub and the
chair, yes, we get public comments but there's almost no way that I could
support doing some of these things even if the vast majority of public comments
were in favor of let's just say adopting No. 2, and we can talk a little bit
more in detail about provision No. 2. So it's to me just a complete waste of
the public's time to put out a proposal that is certain to not garner support
by at least half of the commission. I mean, we just think that it's
fundamentally unconstitutional and I don't know that anybody's comments
would change that.
There are tons of areas of our regulations that don't implicate the first
amendment in the same way that this does. There really are a few. I know
you're shocked to hear that but there are some.
With respect to No. 2 in the proposal, it converts issue speech to political
speech in my view, and I'll tell you why. I'll read the provision here. 
Communications that are created, produced, or distributed based on information
about the candidates or committees campaign needs or plans that the candidate
or committee provided to the expending person or entity directly or indirectly
such as information concerning campaign messaging, planned expenditures, or
apology data. You could imagine a situation whereby an organization, like
let's just say AARP or the NRA, went and met with a member of Congress. A
member of Congress said, you know, the second amendment is going to be a huge
issue in my campaign and then the NRA goes out and runs an independent
expenditure on that, you know, sibs months later, just because he says --
or if he even doesn't say in my campaign. He just says that the second
amendment is a big issue to me. Then somebody goes out and runs an independent
expenditure talking about how so-and-so is a great person because he supports
second amendment. One can read this provision to say that that person got the
information about the campaign directly and it affects the messaging
of the campaign.
Or if the person just listened to a speech, didn't even go in and meet with a
member of Congress, which that should be completely protected by the
constitution, and they just hear a member talking about the importance of the
second amendment at a public forum or even on the news. And then went later
and took that information to say I'm going to run an independent
expenditure, talking about this issue, you could see how that person may
violate this provision that's being proposed. So I really just don't see a way
forward for that kind of proposal. Again, regardless of what kind of comments
come out, it's really flies in the face of the constitution and would convert
issue speech to political speech and it's not something that I would be able to
support.
>> Commissioner Weintraub.
>> Thank you, Madam Chair.
I appreciate my colleague's comments. I, as commissioner goodman knows I said
at the last meeting, I said if you have questions, thoughts about this, my door's
always open. Please come talk to me. As seems to be the case more often than
not around here, you decided to save it all up for the public meeting. I do
recall the cases that you talked about. It would have been nice to have known
that those were your particular concerns. I would have re-read them so they
would be very fresh in my mind, but that's okay.
The way that the commission used to do rule makings, when it was able to do
rule makings, when we used to do half a dozen rule makings a year in addition
to staying on top of our enforcement document, yes, this actually happened, was
that we had a general agreement on both sides of the aisle that put could put
their thoughts, proposals, questions into the rulemaking document and as I said
before, this is our proposal. You got another one, we're happy to include that
as well. The real problem is that you are fundamentally not interested in
doing any kind of rulemaking that would address super PACs. Every time we try
and suggest it you say well no, we don't want to do it that this way, you
say we want to do it that way, you say just no.
Now, about ak in Buckley, one of your favorite cases, the court said that
contribution to candidates are constitutional when an candidate accepts
unlimited contributions it creates an inherent corruption: 
What the court has said, independent spending, truly independent of the
candidate doesn't pose that risk because the candidate doesn't have that same
kind of control. And what has evolved is a system where super PACs now, which
didn't exist back in the Buckley era, now exist that function for the sole
benefit of advancing an individual candidate. And some of these super PACs
are indeed set up with the cooperation of the candidate, with the active
participation of close associates of the candidate, the candidate himself
sometimes, the candidate's immediate family, close advisors, people who advise
the candidate in a previous election cycle. And the candidate goes out
and raidses money for them and tells people go ahead and give money either
directly or signals that that is their super PAC. They refer to publicly
as the candidate's super PAC with an ownership interest almost. And we have
this bizarre situation out there where it is illegal for the candidate, him or
herself, to accept into their own campaign committee a $3,000 contribution, but
it is perfectly legal for a super pack that does absolutely nothing other than
promote that candidate with the advice and counsel of people who are closely
associated with that candidate to collect unlimited contributions, millions of
dollars in contributions from individual donors. Some of these super PACs are
-- we've seen some super PACs that were almost solely supported by one
individual who was very committed to the candidate and spent millions and
millions of dollars on that candidate's behalf. And, again, what this proposal
would do would be to acknowledge the reality of that and to take into account
the supreme court guidance that these independent groups have to be truly
independent, otherwise they will pose the very same risk of corruption.
And that's what we're trying to prevent.
Now, we modeled this proposal, which by the way, is not limited to -- doesn't
really talk about family members. That's just one aspect of it. We modeled
this on some ideas that Richard Befault has articulated in an article he's
submitted to the commission. We've all had access to it and to the recently
adopted rules of the California fair political practices commission and that's
where we got this notion of the rebuttable presumption. And in my notion of
the rebuttable presumption is it was a way of saying these aren't automatic gal identifiers. I have seen earlier versions of proposals suggested
and I have contemplated earlier versions that say if you meet this and this
criteria then it's it's a done deal. We're automatically going to find that
that is coordinated but we move to the rebuttable presumption because we
wanted to provide an opportunity for people to come and say no that's not try
in this case. If you don't like rebuttable presumption we could talk about
factors. I think this could be reworked if it's the rebuttal presumption that
you're all hung up on but for the benefit of the people listening and
don't have this blue document in front of them, what the proposal suggests
is that it's not just the single factor of a family relationship contrary to
what commissioner goodman was suggesting before that automatically put someone
at legal risk. First you've got to have an organization that is -- whose
election related spending is the majority of it -- let me start over. An
organization which is spending the majority of its election-related spending
for the benefit of a single candidate. In addition to that the
organization, there's a number of factors here that could come into play, as an
employee, independent contractor or founder who is, yeah, the candidate's
immediate family member or who previously was employed by or worked as an
independent contractor for the candidate or committee -- or authorized by the
candidate in the past year. Or maybe none of those things are true. Or this
election -- this single candidate super PAC, I'll use the shorthand, has
received fundraising from the candidate's campaign, the candidate's immediate
family member or staff in the past year, or it shares a common vendor with the
candidate and they provided any of the services listed at regulation 11CD42
which is part of our existing regulation coordination.
Or has been publicly identified by the candidate as a vehicle for supporting
that very same candidate. The candidate's out there saying, hey, you want to
support me, go give money to this super PAC. So it's not just hinged on the
rights of family members or the existence of family members. Although I think
for most people out there they wouldn't find it terribly surprising that we
would look at that, that we would look at relationships with candidates when
we're trying to figure out whether the super PAC that is doing nothing but
supporting that candidate or at least its spending a majority of it spending on
that candidate whether we look whether that group is truly independent of the
candidate. I think a lot of people out there would not find it
counterintuitive to say well let's look at some these relationships and factor
into the test of what it is truly independent. A test that has been endorsed
by the supreme court and is no way unconstitutional. So this was a slightly
revised version of an idea that we'd been kicking around for a while. You
don't like this one, we're happy to engage with you on modifying this, but as I
said, I think the real problem is, and this is really a continuation of the
earlier discussion that you're just -- no matter how many people out there
write in and say we think this is a big problem, the relationship between
candidates and super PACs and whether they're really functioning in an
independent way, no matter what people say you are just unwilling to regulate
super PACs in any way. You're unwilling to look at our coordination regulations
and see whether they still make any sense at all in a world of single
candidate super PACs that are out there doing all the advertising. As I said,
the single candidate super PACs are taking on more and more of the functions
of what used to be run out of the campaign itself, which only makes the
candidates more and more indebtedded to the folks who are running the super
PACs and those supporting the PACs. I think there is a risk of corruption, the
kind of corruption that the supreme court has specifically acknowledge is a
factor that the commission can consider and in crafting rules. So that's my
pitch. I don't expect that I'm going to convince anyone. Yes, I voted
against the ruderman case and I don't think this in any way contradicts presidents that say if the only thing you've got if there's a family
member that that's not going to be enough to trigger an investigation and
indeed it wouldn't be under this proposal either.
>> Sometimes I change my mind.
>> Yes, you do.
>> Sometimes I actually realize, okay, you're making some sense there I can go
along with you. I just want to tell you it can happen.
>> Point taken.
>> Madam chair, this is your proposal. I just have a few technical questions. 
On the definition of election-related spending, one is spending of
funds for the purpose of influencing the federal election. And No. 3
is expenditures reported as independent expenditures. So I guess
one question I have is what's the difference between an expenditure to
influence a federal election, which historically has been given the definition
of express advocacy and three expenditures reported as independent expenditures
which are express advocacy expenditures. What was the thought behind capturing
something different?
>> But we also have two election hearing --
>> I'm not questioning those because I know what those are.
My question is what's the distinction between one and three.
>> It's just a catchall, I would say, to ensure that it's understood that it
will be all of these three together,.
>> A catchall. It's broader than election communications and independent
expenditures.
>> No. It's expenditures that are reported as independent expenditures
together with all those other spending to influence a federal election,
including election erg. If you're not satisfied with those definitions as my
colleague has indicate, we can discuss them.
>> With why do we need a separate provision from electioneering communications
and independent expenditures? Why delineate another provision called influencing
the federal election and enhancing it further by saying any candidate
research and apology.
>> Including candidate --
>> Let me ask you if I make no communication but I've performed polling to
inform my organization about the counts, I've run some head to heads,
that kind of expenditure now becomes the subject of coordination?
>> Is it provided to the candidate?
>> That would be an enkind contribution. That's different.
Or are you taking inkinds and putting them in here? I'm trying to understand
why we have this separate provision in addition to independent expenditures.
>> to the extent that candidate research and \apology\polling would go behind
the independent expenditures and electioneering communications they would be
captured there. So it wouldn't just be the expense of broadcasting that.
>> So it's not a standalone provision influencing the federal elections, it is
expenditures that under lye the independent expenditure that go into the actual
communication by.
>> I think it could certainly be interpreted that way and I would be happy to
essential engage with you in the nuances of what that means in terms of rule
placking or even drafting the proposal.
>> You're asking to open this door. I'm trying to see what door we're opening.
>> Right, we're just asking for it to be drafted. We're not suggesting that
this is the final product.
>> Well, if we're on the drafting, I have a right to ask questions
of what we're drafting.
I have a question about whether or not the sharing of information is direct or
indirect. That's down below on Page 2. Would public domain, is it
contemplated in this proposal that sharing information through the public
domain, either through the press, statements about what our strategy is or posting
information on the worldwide Web, is that considered an incorrect sharing of
information or is it contemplated that's what we mean by indirect
or do we need to contemplate something more specific than placing strategy and
needs and desires in the public domain?
>> In my view I think that's something twhea should put out for comment and
discuss with people as to whether it should be a narrow or broader concept
whether we want to try and capture people announcing publicly, hey, it sure
would be great if somebody would run some ads talking about my record on the
second amendment in the northeast quadrant of the state. Boy, that would be
helpful.
That's a public statement.
>> People do that now. People say I'm having in New Hampshire. Some
people say I'm going to put all my eggs in New Hampshire.
Is that the wink and a nod that we would treat as coordinated expenditure if a
group decided to not spend any money after that, hearing that in the public
air waves if an independent expenditure only committee decided at that point
not going to spend any money iniowa, would that type of statement become a form
of indirect sharing and information.
>> That's a question I would like to pose in the notice of proposed rule mak
ing and get public comment on.
>> I don't know that I need public comment to decide that issue and where I
come down on that issue.
>> You brobl don't need public comment to decide how you're going to vote on
this issue in any sense.
>> What I'm hearing is there are many unanswered contemplations are.
>> Well, there are. That's the point that is the point of it.
>> This isn't the end point. It's the beginning.
>> Let me just say that I also on Page 3 under Nos. 5 and six on Page 3, this
follows up on commissioner hunter's concerns that she expressed. It speaks in terms of an advertisement that someone has participated in suggesting
that any time historically without any content restriction at all and that in
234*78 six the promote support attack or oppose language appears, which do you
have a clear understanding of what support or oppose somebody means? Because
that's the passo stand and it vexes a lot of people. So it looks like we are
going to expand the realm into issue speech. This was commissioner Hunter's
point. Do you have an answer to that concern, that we are not expanding -- we
are not proposing to expand the subject of coordination beyondnant expenditures
in electioneering communications to issue speech?
>> Well, if issue speech -- depending on what kind of issue speech it is. If
it is coordinated, if a candidate, for example, requested it, then it might
well be brought in. But again that's something that I would want to explore in
the rulemaking context. We had some discussion about this probably ten years
ago in a rulemaking here but I think a lot has changed in the last ten years
and I think we could have a very informative set of public comments and hearing
on this.
And I just want to be clear about the participate in a recording of an
advertisement because you left out the second part which is created or paid for
by an independent expenditure only political committee. You've got a super PAC
out there that is doing nothing but advancing the interests of a particular
candidate and trying to get that candidate elected and the candidate appears in
their advertising. It shows up and allows themselves to be filmed by that
super PAC for the purpose of their running an add on that candidate's behalf. 
Do I think that that would indicate a degree of coordination? Well, yeah, I do
actually.
>> Well, the way it's worded is have participated. Meaning in the past and an
advertisement, what if the advertisement discusses the need for mar.
Of dimes or, you know, a charitable message?
>> I would be happy to amend that to make sure that wouldn't -- that wouldn't
be captured by this.
That's a fair comment and I think that is exactly what one does in the process
of writing a rule. Put out a proposal, get feedback with
your colleagues and try and come up with a better rule. Yes, if somebody shows
up in a studio that is paid for by a single candidate super PAC that is set up
only to advance the interests of that particular individual, and let's say the
individual hasn't declared his or her candidacy yet but they declare it the day
after they do the filming and the super PAC runs the ad, do I think that ought
to be captured? Yeah, I do.
>>
>> Commissioner hunter.
>> I don't think we're going to resolve this today.
>> No? I'm so disappointed. It's been such a great debate.
>> As I said earlier there are many proposals here that I wouldn't be willing
to vote for even with public comment because we think they're constitutional. 
But I do want to say I do appreciate this is a proposal with some plaiter,
unlike the one we voted on a little while ago where it was just an amorphous
idea sort of cribbed from the New York Times. This one at least has some
plaiter. So I duet least appreciate that.
>> Let me just say that I have been talking about the issues in that first
proposal for years now. So it's not something cribbed from the New York times.
>> Maybe they cribbed it from you.
>> Maybe.
>> A lot of people are talking about these issues. I think that's part of our
point.
>> I think the frustration here is and we'll go back to the fact that there's
22 parts to this motion and that includes your party request party request that
you've been talking about over a year and how it is adds commissioner Weintraub
said based, and I've not only heard it from you but I've heard it from many
others that it's based on the fact that there are independent expenditures and
super PACs that are getting unlimited amounts of money and therefore are weakening
the parties and the important role that parties play in our democratic system.
I don't know, there's still social scientists who disagree with that, but
viscerally I agree. I'm concerned about that problem for sure, but it seems to
me very odd that none of the proponents of permitting much greater
loosening of rules with respect to the parties are also interested in doing
something about the problems of both disclosure and coordination relating to
super PACs and independent expenditures, and it is -- it leads me to believe
that perhaps that argument is a straw argument and that really what we're
hoping for here, and you can tell me if I'm wrong, is a complete loosening
of campaign finance rules that are meant to protect the public from corruption
in the system. It's just anomalous to me that those of you who are constantly
having this refrain would be more concerned about having some way of looking at
the impact of super PACs rather than going the other way, which is, okay, it's
free for all for everybody. I mean, that's, you know, the problem here. What
we're asking for, if you don't like specifics of it, if you raise issues that
are problematic, if counsel raises issue that are problematic, we certainly
are open to making changes there, but I don't see any willingness to even
consider these issues and that is causing concern, I think, to me and to many
others in the public.
So given that, all those in favor, motion on the table, all those in the favor?
You have the motion, madam secretary?
>> Yes, I do.
>> Thank you.
All those in favor, please indicate by saying aye.
>> Aye.
>> All those opposed.
>> No.
>> Okay. Madam secretary that motion fails. Commissioner Weintraub Walther
and myself moting very and commissioner goodman, Hunter, and vice chair
Petersen voting no.
>> The next item which is the actual item seven is the -- let's see.
Is commission documents public disclosure policies.
And I understand that with respect -- well, you've asked for the portions that
--
>> I asked for Item seven to be held over. Well, you know, I don't think these
are actually \tied\tide together in the sense that this issue relating to the
memorandum from the acting general counsel is separate from your issues
relating to enforcement. These two have been around a very long time and I
don't understand what is your concern about having a discussion about the
portions that don't relate to your particular item that you've raised.
>> Would you delineate, madam chair, which items?
>> Yes. It's Item 15-27B, I believe. And 15-27C.
>> Perhaps Mr. Calvert would be able to help us. One of those addressed my
proposal. One of those was about --
>> One of them didn't, that's correct.
>> So which one is which? I've read both of them.
>> Well, let me just say the part that mentions your proposal certainly could
be exempted and I'd like that also responded to if we --
>> Madam chair I request the whole item be held. Now, if the commission's not
going to recognize my hold, I'll aseed but I requested it -- I asked the entire
item just be held. I felt that we were discussing greater disclosure of
commission records overall. They were place -- the chair is the person who
placed these all together as an item seven.
>> That's correct.
>> And so I asked that item seven be held because we were discussing how to
make more documents publicly available overall. And now there are two general
counsel memorandumra here, I believe, or maybe three. One of them relates to
my proposal, the other one it wasn't.
Will the chair recognize my request to hold the entire item.
>> I will recognize your request and I will hold the entire item over. I was
just suggesting that they are not related and I'm not certain what your
rationale is for wanting to hold over something that is potentially
unrelated and that could be discussed today.
>> They are more related than the two rulemakings we just combined in one
motion.
>> Well, Mr. Petalis.
>> Thank you.
I have sort of a related parliamenttry inquiry, which is in moving to item
seven, the commission did not address a couple of the items under Item six that
were pending still. I just want to make sure that it's still the intent of the
commission to address those, the technical modernization.
>> We had a discussion about that and that has also requested that it be --
>> I don't know who requested it thank it be held.
>> I thought you did.
>> I know that Hunter's office said we weren't prepared to vote.
>> Right, but I thought we had a conversation in the interim today and decided
to hold it.
>> I'll defer to the vice chair's desire on that.
>> Yeah, I think on that matter I think in the interest of time and sanity I
think it would be a good thing to hold that until the next meeting.
>> there was also 740P.
>> Right, the party segregated accounts.
>> We have discussed that previously. We've had a colloquy about it. It was
my proposal at one time that.
The Office of General Counsel despite my reservations about it if we could
marry it with and there didn't seem to be any interest in proceeding in that
package. I believe this one stays on the table for the time being, unless
sexual abuse wants to move it now. I'm prepared to vote for it alone.
>> That was the question, do you want it to be held with the other documents or
do you want to have it discussed today?
>> I'm sorry, on this item, Madam Chair, item six, I'm not holding anything.
>> No, I mean your own proposals which was agenda document 15-54A and on
regulatory relief for political parties.
>> Those are really one item because one amends the other. We voted that out
and it failed by a vote of three to three. I'm not still proposing that here
today or I may come back.
>> That's the off the agenda.
>> January or February was something.
>> Unless some other commissioner requests to keep them on an agenda I have not.
As for the other item that is OGC's document. I'm prepared to support it if
someone wants to move it standalone but I'm not holding it.
>> Commissioner Weintraub.
>> I'm not sure whether further -- skid my colleagues whether further
discussion or thought would assist them or whether we should just have an upor
down vote on this proposal right now, which is in 15-54B it's an outline of a
draft NPRM that would implement the party's segregated accounts. Congress in
the crumb any bus last year made changes to what party committees can accept
and I actually think it would be really helpful if our REG book would
acknowledge that. If you looked at our REG book you might not recognize that
parties can accept as much money as they can. I think it would be a good thing
if our regulations were in sync with the law and I would be prepared to move
this right now that we ask that we direct the office of the general counsel to
--
>> Are you making a motion or prepared to? Before you make the motion I was
just going to interject.
>> My question to my colleagues is I'm prepared to make this motion and to vote
in support of this today. The motion would be to direct the Office of General
Counsel to direct an NPRM along the lines of the outline that is laid out in
agenda document No. 15-54B. Now, if my colleagues have not made up their mind
on that proposal or they want more time on it, I am happy not to make that
motion. If you've already made up your mind on it, then we might as well get
it over with.
>> Speaking solely for myself, there are aspects of this I could support and
there are aspects of this as written which we have previously discussed at this
table that I cannot support, and I couldn't support that motion today but I do
hold open the possibility that we could continue to discuss this.
Now, just so you know, by way of full disclosure, I don't know that I'm going
to want to support this without addressing other regulatory issues for the
parties. So, you know, if you want to push it to a 3-3 vote. My point is
there are provisions that may be helpful to the parties and provide us and them
clarity in the process. So I guess what I'm saying is it's possible I could
support this. It would need edits. But I don't want to support it standalone
without adding other party regulatory proposals.
>> So I want to be clear on what -- I want to be sure I understand you. So is
your position that unless we also incorporate the ideas in agenda document No.
15-54A that you are unwilling to engage in a rulemaking to amend --
>> I'm not prepared to say dwinltively. We could modify this perhaps in
ways I could support standalone. I cannot as is today.
The only way I was prepared to support this as is is if we packaged it with a
broader set for the parties. I would have supported it without an edit
notwithstanding my reservations about certain provisions. So it's possible we
could ameliorate those concerns. I guess what I'm saying is it's
possible and I haven't formed an opinion that I couldn't under any conditions
support this.
>> Well, if I could just respond to that. I mean, I don't know how anybody
else feels and I don't want to preclude anybody else but my own view based on
that is that I would prefer not to push it to a vote right now in hopes that
you will actually provide us with some guidance as to what sort of edits you
would like. That would make it acceptable to you.
>> I haven't studied line by line but the big issue I saw and we discussed at
the table is it conder mans the advisory opinion we gave the Democrat and
Republican national committee last year and I do not support counter manning
that advisory opinion.
>> Are you unwilling to have a question about it in an NPRM as to what we
should do about that advisory opinion.
>> It's possible but listen I'm trying to be helpful. I have a specific
concern that I discussed at this table and so -- but that's the one that came
to mind immediately.
Now, there may be other items in here. Some of the items I thought were fair,
provided clarity to everyone. Some of them I think are very fair in here and
not that I've studied it --
>> I was going to say which ones do you think are fair so we can go from there.
>> Well, I mean the issue of addressing transfers among accounts, you know, if
you have the administrative accounts shouldn't be able to subbize the election
account. I agree with that.
>> Good. That's progress.
>> And that's a very pro regulatory position. Seems implicit in the statue or
the legislative language that Congress gave us. So those are -- but, for
example, and Mr. Node you may be able to tell me whether this has anything to
say on this issue. I believe it does.
>> On the transfer issue?
>> The transfer issue.
>> Yes.
>> If the election account spends money on building or legal, the legal or
building -- I believe this is in there, Mr. node should be able to reimburse
the election account for those purposes for which those accounts were set up. 
I believe you addressed that here.
>> I don't remember how explicitly it says that, but yes if those exact words
aren't in there that's certainly part of the gist of it, yes.
>> Those are some of the issues that we could conceivably address, but
-- so if you want to take more time with it, let's take more time.
>> Well, I would encourage you to actually -- I'm comfortable with it the way
it is. I'm happy to hear all of your concerns. I would encourage you to take
some time to look at the document. I don't know whether we want to refer it to
the regs committee or we want to just make this anybody can -- kitchen
discussion. Let's not save it until we put it on an agenda and then the day
before suddenly people start looking into it.
>> If I have confidence that the regulation committee is going to meet and roll
up its sleeves and do this work then I would be happy to refer this to the
regulations committee. I lost confidence in the regulations committee this
year, which is why I started bringing regulatory proposals directly to the
public meetings.
>> Which is a prerogative of any commission.
>> It certainly is and I exercise that prerogative and that's why I exercise
that prerogative.
>> As did we.
>> You did, and you started it.
>> Right.
>> And so I just joined the party.
>> I'm glad you liked it.
>> And that may be the only time we're in the same party.
>> So I would say let's let the regulations committee undertake this if there
is a commitment of the regulations committee to meet and undertake these. I
would take the tech modernization regulation. We could do the same thing. If
I have confidence that -- I don't even know who's on the regulation committee
next year.
>> I think the tech regularsation was already on. We already
discussed it to some degree.
>> I have other issues --
>> No, I understand.
Here's the problem I have OGC's memo in this particular matter was out to the
commission in May of this year.
>> Which one are we discussing now?
>> NPRM for the party segregated accounts.
>> Yes. No. The one that -- about that -- yes, yes, yes. The party's
segregated accounts.
>> Which document are we discussing, tech modernization.
>> No, the party segregated accounts. Tech modernization I'm not sure.
>> If I recall correctly --
>> I'm worried about timing. I'm worried about having it extended out. It's
the outline that came to the regs committee.
>> Who made that public? Because Office of General Counsel did not make that
public and no one on this side of the table made that public. In other words,
if you might recall it went public at the request of a commissioner with no
input of other commissioners and no opportunity.
>> This document are you talking about?
>> Yeah, I have no idea.
>> Well, in any case, I mean, my point is only that I would hate to have it go
-- I mean, it's been on this commissions agenda, both of these, for a number of
times and I would hate to have it go back intopering tree. It would --
and since you're ready to think about various various issues it might make
more sense to have some discussion.
>> I think commissioner Weintraub and I are the only two who've expressed a
strong opinion about it up till now.
>> If you want to have further discussions that talk about the anytimety gritty
walk to my office next door and we can talk about it and maybe amend this
document that would make it more palatable to you.
>> Special purpose regulations committee.
>> I would say I think it would be helpful to not make the motion now. I think
there is some real potential for I think crafting something that might be a
standalone. I think I share commissioner goodman's concern that I think there
would need to be some modifications but I think there may be a path forward. 
So I think that that's worth pursuing between now and the next meeting to see
if there's that possibility.
>> All right. So we'll hold over this matter until athlete preliminarily the
first meeting, first open meeting. Is that sufficient time?
Then it will be --
>> I don't mind it being placed on the -- it's been on the agenda and we have
discussed it. I've been open about -- I have discussed it. We haven't
resolved my concerns. I don't know we'll be in a position to rewrite the
outline between now and -- I mean, it's very detailed. A lot of work went into
it, Mr. node, you're commended for the -- Mr. Stevonich for the amount of work
that's gone into it. It's apparent on the document. But it's going to take a
lot of work. I don't know whether I'm prepared to vote for it in January. I
do plan on taking some time off.
>> But at least it can ab placeholder so it doesn't get lost.
>> I'm not looking to make it get lost. But if we send it to the regulations
committee we haven't resolved that. If he with send it to the regulation
committee they're going to have to do some work on it 689 may not be ready to
come back to a blue agenda at the first meeting in January. The question is do
you want to send it to the regulations committee for further work?
>> Whatever the most efficient way of getting it done.
>> Well, we might have a new regulation committee. So why not?
>> Well, we're not going to have a new regulations committee immediately, right?

>> I'm just trying to figure out when -- if we need some timing on that side to
make it work. See if we can get partial something down the road.
>> Madam Chair, I will realm that we take the technological modernization
regulation and agenda document No. 15-54B and refer them to the regulations
committee of the commission. I'll make that a motion.
>> Okay.
>> Just so we have a way forward.
>> There's a motion on the table. All those in favor -- is there more
discussion?
>> I don't think we need a motion for that.
>> I don't either.
>> I didn't see it being brought to some collusion so I decided to crystallize
it in a motion.
>> Okay.
Mr. node.
>> Just for technological modernization just to point out that document is the
product of very extensive deliberations and discussions among the regulations
committee and others. I just wanted to make sure everybody was aware of that.
>> And it's frankly my understanding that having gone through some now row wing
in the -- and scope discussions in the regs committee that fairly recently you
decided you wanted to throw some new issues in there.
>> Well, we only discussed it fairly recently. I only have one opportunity to
discuss it. Ms. sellcoff was here.
>> You'll have to wait for a meeting.
>> Was at the last meeting and -- well, the public has a right to listen to us
discuss these as well. And one question that I had was if we were expanding
the definition of website to include Internet enabled devices or applications everywhere we saw the word website in our
regulations, why weren't we doing that where the term website appeared in the
press exemption. That made me decide as long as we're looking at the
web exemption and website perhaps we could add books, moving
pictures and videos to the exemption. That looks like a technical
modernization and would cod identify some advisory opinions here because books,
moving pictures and videos, the supreme court has set up press entitled to the
free press clause, there are other provisions I work through the press
committee or we can discuss it here, small electronic displays or the term
small electronic communications could be added to the small items exemption as
long as we are up-dating these regulations for technological
modernization. I discussed at the table I had questions about referring to bed
coins when there are many media exchange and taking that presumption that
they're currency as opposed to calling them current mediums of exchange.
>> Could I interject?
>> You said that that was the first chance we ever had to have this discussion.

>> Let me just suggest in my humble opinion that editing a 100-page plus
document by bringing it to the full commission and having commissioners saying,
well, on Page 77, I have a problem on Line 13 is not a very efficient way
of us resolving it. So if you wouldlike to -- you seem to feel strongly about
these issues. My suggestion is it might be more efficient if you marked up the
document and gave us something to react to that we could read not at the table
but --
>> Then I will renew my motion that we refer these two regulation to the
regulations committee. There is a motion on the floor.
I mean, do you want me to write this up in a memorandum -- by the way, I have a
draft memorandum. It's not blue. I didn't -- but I have one on these very
changes. Now, I could go blue and we could discuss these and hash them out at
a public meeting like this.
>> No, I'm actually suggesting that you send it to us so we could look at it
and think about it.
>> Okay. Well, I can make it a public document and you can react to it or we
can work through regulations committee. Those are the two
opportunities we have to hash this out as a commission and work on the actual
drafting.
>> That's right. There's a third way to hash it out.
>> There is a way that the commission has historically do it which is if the
commission wishes to edit the rule making document, he he had diets it and
escalates it through that new medium of e-mail to all commissioners so they
have a chance to look at the document in advance of coming to a meeting. Sit
ting in a public meeting and going over for the first time, oh, you have a
problem on Page 77 is not conducive to thoughtful division making. That's
mysuggestion.
>> I will circulate mythoughts via memorandum in either late this month or
early January and we can consider them. Now there's a motion on the floor,
madam chair.
>> Well, would you be willing to accept a friendly amendment to your motion to
bifurcate these? To have this one remain on the commission agenda? I'm just
concerned about the length of time
so have this wont agenda and have the other one go to the rules committee.
>> I will accept that. By the way, I'll vote for that if it's an amendment to
the pending motion I will vote for that or I will amend my motion to say we
will keep technological modernization on the public agenda. I will distribute
blue, a memorandum proposing chains to be discussed at the table at the next
public meeting as well as before the public meeting and we will refer the -- my
motion is to refer the party implementing party segregated counts to the
regulation committee for further work.
>> All right. Are there any further comments about that? All those if favor?
>> Aye.
>> Okay. Madam secretary, that motion, you have that motion, I take it? I
asked you --
>> Yes. And 1554B is being referred to the regulations committee.
>> Bear with me. Yes, ma'am. Fifteen-54-B entitled REG 2014-ten outline of
draft party segregated accounts is being referred to the
regulations committee for further work.
>> Thank you.
>> Okay.
So that motion is unanimous of those at the table and we are still awaiting the
vote from commissioner Walther who stepped out.
Where are we? Multistate IEs.
>> Before you close that vote, commissioner Walther's back.
>> Commissioner Walther, the motions was --
>> I'm for it.
>> Great.
That is unanimous, madam secretary.
All right. The next item is Item eight, notice of proposed rule making
on reporting multistate independent expenditures and electioneering communications in presidential primary elections.
I understand Ms. wall striker is here as is Robert knot of the Office of
General Counsel. I understand there have been some discussions among
commissioners on this matter. Is there -- commissioner Hunter.
>> Yes. There have been discussions and we've talked about this numerous times
in several public meetings over the past few months and the long and
hooter of it is we're willing to support agenda document 15-50B. We think it's
a reasonable bipartisan compromise that will provide for more public disclosure
than the current advisory opinion western representation PAC which many people
have complained about. Say it's unworkable and if it's
manipulated a certain way it will provide less disclosure than the document
that we're prepared to vote for. I have talked to a variety of my colleagues
and my understanding is that we only have three votes for this document today. 
Inldz it's possible that at least maybe people would be willing to support this
in January and typically I like to give people time to think about things but
just because the eyeua caulk cuffs are in something like 45 Day and obviously
people are already running these types of ads, I saw a whole bunch when I
watched the debate the other night. I don't think we can wait any longer. I
think it's important to put on the record today the votes of the commission. 
Happy to reconsider if people want to vote for it or a version of it in January.
Don't want to cut off discussion but I'm prepared to make the motion when it's
appropriate.
>> Commissioner wipe.
>> Thank you and I want to thank commissioner Hunter for engaging with me on
this and for patiently waiting for me to work through some these issues. I was
hoping we could come to some sort of agreement with an interim rule with some
sort of Sunset provision that would then be coupled with a rule making that
would allow us to see what happens in this cycle and then come up with a
permanent rule at the end of the cycle.
The primary reason I cannot support the motion that commissioner hunter has or
it about to make is that hinging the 24-hour reports to the date of the
convention means that we won't get any 24-hour reports, because people don't
run ads -- people run ads in advance of the primaries when people are actually
voting. Nobody's actually voting by the time you get to the convention. God
knows what will happen next year but generally all the advertising is done in
advance of the convention. So if that's the date that's going to be the
trigger for 24 hour reports, we're not going to see any. Now, it's true that
we may capture some of that under this proposal in some of that same
information in 48-hour reports.
>> I don't think it's May, right? I think it's will.
>> Okay. Fine. We'll capture some of that information in 48 hour reports but
the statute doesn't say you don't have to file 24 hour reports as long as the
same information shows up in a 48 hour report there are two separate 
reporting requirements. One is for 24 hour and one is for 48-hour reports. 
I'm sympathetic. I don't think this is an attempt to quash disclosure. And
I'm sympathy they telletic to the goals, but I don't think that we as
a commission can say we're going to set it up in a way where one provision of
the statute the, the 24 hour reporting regime is not going to ever come into
play. So that's -- I had offered to use a different trigger date. The date of
the first primary in the case of ads that are multi state, you just take the
first date out of whichever states are being targeted by the ads and you say
just go by the first one. It would be an improvement over the western
representation PAC. People would still have one reporting requirement based on
one date and they wouldn't have to do all the fancy dividing and I think the
commenters all two of them suggested that -- I acknowledge they liked your
proposal better but they said this would also be an improvement over the
current situation which is that we have an AO out there that was supported by
remarkly enough unanimous commission, the western representation PAC
and that is all the people have to go by now and nobody likes it. So it is
unfortunate that we were unable to come to an agreement and I really cast no
blame on that. I understand where my colleagues are coming from but you won't
be able to support the motion.
>> Commissioner hunter.
>> Under the document that I -- I haven't moved it yet but that I will, my
understanding is that it would capture under the 48-hour requirement every IE
unless it's less than $10,000, which I don't know that there is such a thing as
a nationwide IE that could be run for less than $10,000. So I think it would
capture all or almost all of these IE's on the 48 hour report. While it's not perfect, it's I think the closest thing to it and I just wanted to
point out the 48 hour point.
>> And I myself think that it's really great that you've been trying to
negotiate this and unfortunately haven't come to some conclusion on it. I mean,
personally I would like to see a Sunset provision.
>> Oh, said last time.
>> You did agree to that.
>> Happy to add that in. We didn't add that in.
>> Right after the election.
>> We'll add that in. There's a Sunset provision. I think it's -- yes, we
could add that in right now that it would expire at the end of the calendar
year or right after the election.
>> Could we ask counsel whether we could do that -- I know we could do that in
an interim final rule. Not sure in an interpretive rule.
>> Would we have to have a rule.
>> We got you said an e-mail on this.
>> That's something not I'm not sure we want to talk about in open
session. There's an e-mail from one of us on that topic.
>> My recollection is it would not cleesh but it was not prohibited but it was
generally speaking okay. I don't have it in front of me.
>> Well, maybe we should then -- that's my concern. I don't want this to go on.
I understand where we are now and maybe we could hold off on a vote. I
wouldn't support your motion unless I was confirmed with some of that.
>>
>> It's up to you. You can take the vote.
>> We have people running these right now and I think it's important
for the people to know there's at least three commissioners happy to bring --
if it needs to be a motion to reconsider I don't even know we would need to do
that again. Happy to open if it in January and then we might have four or six
voatsd. These are issues we've been thinking about and talking about and we
got the memo from counsel, I don't know, it was a while ago. But again, but
generally --
>> Right. But we were getting more information about it in terms both from
Ms. chicona who provided with us some information and my understanding you were
trying to negotiate a deal up to yesterday potentially. I don't know. So it's
not as if I'm not paying attention to the issue and not wanting to delay it. 
But it's fine. Why don't we take the vote.
>> Again. Happy to do it again in January. I move adoption of agenda document
No. 15-50B.
>> Okay. Any comments, questions? All those if favor, please indicate by
saying aye.
>> Aye.
>> All those opposed no.
>> No.
>> I have a comment. I was talking to commissioner hunter a few times about
this and I'm learning enough about it to the point where I'm about to vote for
that. So still hearing my colleagues out but I'm coming along here so maybe
first part of January.
>> Okay. All right. Madam secretary, that motion fails by a vote of three to
three with commissioner goodman, hunter, and vice chair Petersen voting yes
and commissioner Walter Weintraub and myself voting no.
The next item is the item nine which was resolved on tally prior to the meeting
and the next one after that is item ten, meeting dates for 2016.
This document is a memorandum from vice chairman Petersen.
Is there any discussion of this item?
All right.
>> Believe it or not, I actually have something to say.
>> All right.
>> Sorry.
>> Commissioner Weintraub trawb.
>> I know everybody's tired and hungry but this is actually important to me.
Meeting dates doesn't sound like something that should require much discussion
but how often we meet actually has a huge impact on how and whether and when we
get our work done and I very much pretty much that I had a very friendly and
constructive discussion with the vice chairman as a result of which he added
more meeting dates, which I really appreciate. I also have had a constructive
discussion in the last 24 hours with commissioner hunter about how we might be
able to move forward to perhaps try and address some of our enforcement back
Los Angeles more effectively. Right now we have roughly 200 enforcement
matters pending in the building and approximately 60 of them are on
commissioners' desk waiting for a decision. And we talk about this a lot, but
we're going to have to do something different. We're going to have to work
boit harder and matterrer if we are ever going to reduce that back Los Angeles.
We have people out there who have complaints filed against them and it serves
nobody's interest to have those complaints pending for months or years on end. 
The complainant is in a black hole. They write to the government and complain
about wrong doing that they see. Maybe they're right, maybe wrong but they get
no answer. On the other side you have respondents bhor out there with these
allses hanging over their heads and they would like to get them resolved. You
know, some of these we are never going to agree on. I have suggested to my
colleagues, I don't know if there's any appetite for this that we just have a
vote ramma, we figure out which ones we're never going to agree on and line
them all up and have the votes and move them off the agenda.
We also have talked about grouping things together so that maybe we can
dispatch, you know, groups of things more expeditiously. What we're doing now
is different from the way the commission used to operate. I've been here long
enough to remember. For most of the commission's history when a ballot was
presented to us from OGC the commissioners voted on it within 72 hours. It's
hard to believe that we used to do that, but we did. In most cases those were
substantive votes. If commissioners had edits they wanted to suggest, that's
what we spend a lot of time doing, they would immediately start drafting those
edits and circumstancelate them to their colleagues for consideration. So if
something was objected to on the grounds that they needed to edit the factual
and legal analysis that happened in fairly short order. Now what happens is
virtually everything gets objected to and then sits on people's desks and
nobody pays any attention to the things that they've already objected to until
it is put on an agenda, which is why the meeting schedule's so important and
sometimes we don't find out until close of business day before the meeting what
our colleagues concerns are or how they would like to see the documents edited
which means we have to put it over again. So as I said, commissioner hunter
and I had had a constructive discussion about maybe trying a new approach, working
together to try and do that and I appreciate that and I hope that we can try
that to try and dig into the back Los Angeles, but I suggested several months
ago that we give ourselves a deadline, say we're going to vote on things within
six months. Couldn't get support for that. But one way or another we really
need to do something different in order to get our work done here and I'm
obviously going to support the meeting schedule but I'm also making a public
commitment to my colleagues that I am going to spend part of the time between
now and January 14th, our next meeting, I know everybody wants to spend
some time with their family and have a nice holiday and I hope you all do but
I'm going to spend part of that time trying to go through the list of cases
that are sitting on our desks, those 60 cases to see if I can come up with
either edits that I want to propose things that I'm holding up or suggestions
of how to group things or how to perhaps cases that commissioner hunter and I
might work together on figuring out if there's a path forward on them. I'm
making that public commitment to all of you that I'm going to dig into this
over the next few weeks and I challenge you all to make the same effort. 
Really we have got to do something different or we'll never get caught up. 
By the time we come back on January 14th I guarantee you there will be more
complaints in the building than there are today.
That's my pitch.
>> Commissioner Walther.
>> I move approval of the schedule.
>> Yes, I hez Tate to do this but because I am looking so forward to the next
Item on the agenda and have been for a long time but I do want to say, look at
today we had significant conversation about matters that we knew where people
were on them and I don't think that's a problem, actually. I mean, I favor
some of the robust discussion. It is true that a vote ramma sounds like a good
idea as the person with some experience here I'm not sure that that's the
solution. I do think we need to find solutions to deal with this problem. I
agree with you that it's very important for us to do it.
It's just maybe because I'm finishing up my year trying to do just what you're
suggesting in various different ways and obviously not that it was if he isly
effective, but I think it was effective in the sense that we actually resolved
a lot of matters this year. The statistics show that we resolved and this is
not to cast \dispurse\disperse\disburses but we involved more matters
this year than last. I think would he have got to look at how -- what it is
about the discussions and how we look at things to see if there are ace waist
to do this better, no question, but -- and I'm not criticizing how you did
them either. I think it's worthy of a conversation between us but I think just
having a vote ramma is maybe not going to be equityive personally.
>> I believe that commissioner Weintraub's proposal to look for ways to group
matters is a constructive proposal and it's indeed what I've written about,
that we need to be able to group matters either by respondent in some case or
by topic in some cases and we recently had a very efficient and productive
meeting where we grouped a whole lot of cases on one topic. It also afforded
all commissioners to see all of the ways in which that one issue could
manifest itself in about six or seven different cases. Now in the last
meetings we took another dwriewp of cases, all around one topic, different
parties and it assists the commission in viewing those cases -- the law in a
comprehensive way. So I think that's a constructive proposal. 
It's one we have discussed here at the table and I just want to say I think
that is a commendable way to breed.
>> I agree. Obviously we've done that in the last number of meetings and it's
been constructive. I think there's sort of downside sometimes to those too
because that means that a lot of the cases are really old. It's a group of
factors that need to be considered and I'm willing to leave it to my eminent
new -- soon to be new chair to come to some those conclusions.
Any held matters in the past, there's only one matter I'm aware of that's being
held by this side of the table at this point. Only one matter.
>> That's not true.
>> How many other matters is this side of the table holding? I'm hold be one
matter to matters I released. You spent months suggesting that the back
Los Angeles was by holds by this table.
>> I did not bring this up today --
>> I have the floor, madam chair.
So I just -- you know, I released two matters and we voted on them and now
this side of the table is holding those two matters.
>> Which we're prepared to vote on today.
>> Very good. I'm glad. And I've asked the chair to move two additional
matters that the chair would not calendar. My point being that there is many
matters being held on that side of the table as this side at this point. We
have released hold on everything except one matter. So I just want to be clear
that hold are not the issue.
>> I didn't say anything about holds.
>> But you did for months and here we are at the end of the year and I just
want to be very clear that one of the bastes for holds was exactly the proposal
that you're making which is to group matters by some logical connection and
and I think that's -- I think we can all work together on that. So I just want
to -- I want to say I appreciate your proposal.
Thank you.
>> I didn't mean to cast any's speeringses on the current chair, previous chair
-- it was me the chair before that.
>>
>> Yeah, well, that.
>> On anyone. I didn't intend to bring up the whole issue, although I contest
your version it but my only point is the way we have been doing business is not
allowing us to address the backlog and we have
to do something different. That's all.
>> All right.
We have a vote, yes, on the dates for 2016. All those in favor?
>> Aye.
>> Aye.
>> Okay. Madam secretary, that matter passes unanimously.
The next item, item eleven, election of officers.
Is there a nomination for chairman?
No nomination? I'm not holding over.
>> I nom Nate Matt. Might be people who didn't know us and was going to make a
few comments, I'm just going to make it short. I wanted to nominate Matt for
the position of chairman I mentioned once before I felt a special kinship
because our ancestors and even us in our younger years used to share a common
environment which produced a lot of for most people who are experienced in it
a nice attitude of con jeanality and closeness and desire to be a
part of the environment around us. I think Matt's family raised sheep and ours
cattle and usually those have a problem but not anymore and not a this table
for the record, however, Matt graduated from brig ham young
university with a degree in philosophy, also studied Latin, magna couple laude
something I never had.
Matt went to work for wallly Rand for three years and then worked for counsel
to house administration for another three years and then he went to the Senate,
committee on rules administration for another three years and then he came here
and it's been more than three years for some reason and maybe just because of
affection for the position he's got now.
Of Matt, one of his attributes I find most important is he's a gentleman's
gentleman in all respects. That goes a long way toward productive
relationships with all of us and I'm looking forward to that.
When he was chair before, I think he made the comment about that and really
he's got a wonderful way with people and I think we've learned a lot from what
we need to try to get done next year. We've talked briefly on the fact that we
can take some low hanging fruit but necessary matters in trying to work very
hard to get some things done construct actively and quic so for that even though my accounts are a little trunkcated, Matt, I wanted
to nominate you for chair for next year.
>> All right. Are there any other nomination force that position?
Okay. Hearing none. All those in favor of vice chair Petersen for chair
signify by saying aye.
>> Aye.
>> All right. Madam secretary, that passes unanimously and Matt Petersen will
be the chair for 2016.
Is there now a nomination for vice chairman? Commissioner hunter.
>> I would like to nominate commission Walther to serve as vice chair of
the commission. We all know Steve has had a distinguished legal career and he
started by cofounding his own law firm in 1972 in Reno Nevada. He served on
numerous professional and judicial organizations. He's a former president of
the state bar of Nevada. He has his law degree from bolt hall and his under
graduate degree from Notre Dame where he studied Russian. That's one thing
yin about you, Steve. Didn't know your major was Russian.
>> Da H.
>> I really enjoyed working with Steve over the past few years. We always have
really thoughtful interesting conversations both about international and
domestic polit hunting, fishing, all kind of topics. Although we don't agree
a lot on campaign finance law he's always willing to listen. I do think that
he does -- he really does consider the proposal we put before him. 
Sometimes he shuts the door but not very often. He doesn't always agree with
us but when he does we really appreciate it. He's always a top-notch
professional collegial gentleman. I look forward to work with you
next year as vice chair.S.
>> Thank you.
Are there any other nomination s? hearing none all those in favor of
commissioner Walther for vice chair indicate by saying aye.
>> Aye.
>> All those opposed?
You can vote for yourself.
Madam secretary, that motion, that nomination passes by a vote of five with one
commissioner Walther not voting for himself.
>> Can I ask for clarification? Did you vote for your nomination, Mr. vice
chairman?
>> I actually did not.
>> Oh, okay. I'm sorry, I didn't hear that.
>> It wasn't a protest vote.
>> All right. Okay. That's good.
All right. So they're both sort of unanimous with the subjects not voting for
themselves. So let me take a moment of personal privilege to pass the
proive verbal not gavel but I guess I could pass the gavel too but the proverbial
I don't know what this is called but it was passed to me by commissioner Goodman when this vote was taken last year. He received it from a
delegation from Africa as I understand it, and it has the look of somebody
who's very paned. And at the time I didn't fully appreciate the significance
of it but I've had it in my office and I have to say this is one really
ugly item. I am so happy to pass it over to the new chair Petersen and I'll
give it to you in a moment. We've augmented it a little bit with something so
you can -- it adds flavor to it that comes from our office that's special, but
I do want to talk this commissioner, the new chair Petersen and kind of
reiterate what commissioner Walter said about you. This has been I would say
on some people's views a difficult year, not on a others, but I've always felt
that we could talk about issues and resolve things that we disagreed and
despite being animated about some of those issues at times it was always
collegial and cordial and I appreciate that very much. I think you will make a
fantastic chair and I hope that you can deal with some of the little
frustrations of being a chair better than I. I'm certain that you will. No
question about it. It's an honor to have worked with you. So thank you very
much.
Look at this great guy we got and it has on it -- have you ever heard of stamp
stampede? It's quite an interesting group started by Ben and swrairy are
against money and politics and they pass out -- they want people to stamp
things on dollar bills or 100-dollar bills or whatever and I guess you haven't
received one but this is for you. Don't feel you have to keep the hat but we
thought it really added something and here for everybody who can't see the hat,
this hat was, you know, well done by someone with a child who knows how to
improve every item.
>> I appreciate that and I assume it will be my obligation to augment this
further at the end of this year.
>> I think it will be your obligation somehow and you can actually put it
wherever you want. I don't know whether you had it commissioner Goodman.
>> Are you saying that in the pejorative sense?
>> No. You know, some people just have nasty minds. This was meant in your
office. You do not have to have it in like a major troughfy case.
Happy that you're going to be chair in 2016 and I hope everybody here has a
really good holiday before we.
Would you like to give your acceptance speech.
>> I'm not going to give an acceptance speech. I know what I'm getting into. 
I've done it before so I was going to make a motion for reconsideration but
then decided I'd hold off.
I just wanted to say a few words about chair Ravel and the working relationship
that we've had this year. I think that there's been a lot that's happened this
year. There always is. The nature of this agency and the way it's structured
is there are always going to be issues of great import and that those who are
here all of whom are very smart, very committed people, that means there are
going to be disagreements and that's the nature of not only the
structure but subject matter we regulate that's going to generate strong
feelings. Throughout this year I have greatly appreciated chair Ravel
for her commitment 20 her principles for the friendship that she's extended me
and I really have enjoyed my \interaction\intersections with you, whether it's
chair, vice chair or whether we happen to run into each other down the hall.
I really do greatly appreciate the talents that she brings to bear and for the
perspectives that she has in this area of the law and in general. She has a
wide range of interests, a very good sense of humor which I always appreciate. 
There's few things in life kind of cut through the tension like someone who has
a good width and knows how to allow humor to make a situation into a more
productive place to be. I just want to thank you for the excellent job that
you've done this year.
Again. Thank you for your friendship. Congratulations forking
about able to assume a seat more comfortable hyper. Continue to work more producttively here at the commission and I think
there's a lot of good important work we can continue to accomplish.
One more thing. The job as chair, it's kind of a thankless job and it's
a -- it reminds me of the -- there was an old stand-up routine I heard a number
of years ago where a com median talked about that the statistics show that
married men live longer than unmarried men but that married women live shorter
than unmarried and he said so it really does make sense that when men propose
that they should give a wedding ring as some form of compensation for the years
that you're going to subtract from their life going forward and as a chair you
can sometimes feel those years subtracting from your life. So this is not any
sort of -- this is maybe meager compensation but we wanted to thank you and we
had this leather folio with the FEC symbol and your name on it that we wanted
to present to you.
>> Thank you all.
>> An engraved pen with chair Ann Ravel.
>> Wow. That's really nice. Thank you.
>> Like I said, it's small compensation for all of the hard work that you've
put in this year but we did want to extend our true appreciation for what
you've been able to accomplish this year. Again all the sometimes headaches
that the chair has to put up with.
>> Didn't get everyone to come on time though.
>> I do have one thing to add. Thank you very much for this.
One is, so I was a philosophy major too. How'd that work for you? I was a
waitress after graduating from college.
>> There weren't many philosophy companies hiring after I got my degree.
>> No, there were no.
>> I had to go to law school as a result.
>> Well, ultimately as did I but I tell people, yeah, I think deep thoughts in
everything I do.
>> That's right.
>> And I also wanted to add actually about your staff because, well, I said
nice things about my staff earlier today. I think that the ability to work
well with your staff really enhanced our ability to get things done.
It's because I know you have people leaving and I do but I think everybody
worked really well together and I appreciate that.
>> I would say the same thing about your staff I thought the good percentage
interactional relationships we had amongst staff. I think that helps
facilitate a lot.
>> It did.
So with that we will move onto item twelve for the really important point of
the day, Mr. staff director. Are there any management or demonstrative matters
the commission needs to discuss today?
>> Madam Chair, I am delighted to say that there are no such matters.
>> Yes.
The meeting is adjourned and look it, it's all yours.