This file contains archived live captions of the open meeting of the Federal Election Commission held on October 27, 2016. This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission. *** >> CHAIR PETERSEN: FEC Open Meeting, October 27, 2016 will come to order. Mr. Vice Chairman. >> VICE-CHAIR WALTHER: I moved to suspend the items with the following documents, 2016-12, citizen Super PAC. Agenda document 1553-B draft B, 2016-14, Libertarian party of alabama et al. 2016-55 A. Directive 52. >> CHAIR PETERSEN: If no discussion indicate by saying aye. any opposed? Carries by 6-0. Let me make one scheduling note. Item for there has been a request to hold a matter open to the next open meeting an item 5, the audit division recommendation memorandum on the conservative campaign committee that matter has been resolved and no longer needs to be considered at this meeting. we will turn to draft advisory opinion 2016-12 Citizen super pack. Mr. McCurry, if you could join us at the witness table. We are much or used to you being on this side of the dais rather than that one but welcome to the hot seat. Good to see you. >> MR. McCURRY: is quite a different view from the side. >> CHAIR PETERSEN: Proceed with the presentation. >> Agenda item 1652 A and B, two draft opinions in response to a request by Citizen Super PAC, they have a designated page on its website where it seeks distribution and support of a specific distribution of the video advocating the election of representative Joe Hack, representative for the U.S. Senate. Citizen Super PAC wants to notify -- and take a number of factors detailing the distribution strategies such as posting a link to the page and soliciting supporters to contribute. The ad would be accorded communication is representative Hack's committee took the action requested by the Citizen Super PAC. Both drafts for the conclude that if representative Hack assents Citizen Super PAC may not engage in the proposed activity -- The commission received one comment on the drafts from the requester and we are available to answer any questions you may have. >> CHAIR PETERSEN: Thank you for the presentation. at the outset I should mention before we open it up for questions of counsel, questions of the requester, we received comments from Mr. McCurry and Mr. Gober last night indicating that there was confusion reflected in both drafts A and B; in light of the fact that both drafts were premised on questions that the requester said were subtly different than you were asking this will not be amenable to be resolved today because we don't have any draft before us that properly tees that up. Having said that our next open meeting isn't until after the election. obviously you wanted this to be queued up and resolved before the election. so the only option that we might have is to discuss this and may be resolved this beforehand. we will have to discuss what will be best and the most efficient way to do this amongst the commissioners. Notwithstanding that we don't have the draft available anything there is need for discussion on this issue. Commissioners may want to weigh in and ask specific questions of you. why do we proceed with that discussion. I will open up the floor. Perhaps no one does. The one thing I want to ask, The analysis in both drafts looks at this from the perspective of a request or suggestion, not of the candidate but other third-party payor and whether or not the candidate is assenting to the requester's suggestion. As far as I know and maybe counsel -- correct me if I wrong -- i am not aware of any prior advisory opinions or murs that may be out there that tees this issue out at any length. There is a question under the clarification that you provided, what is needed to qualify as assent? how affirmative of inaction is a candidate need to take in order to establish assent? In order for the prompt to be triggered. I don't know if you have had time to think about it but the first draft has been out there for a while; I think I would first seek your thoughts on what you believe is required for assent to be established under the coordination rule. >> Sure. I did put thought into this. This is very much in the weeds here, and esoteric question about one standard, one prompt of the coordination test. it is treated little bit differently in the recs and does not answer the question what is a requester suggestion. it seems to me that in our opinion, in order for there to be an assent there has to be a request or suggestion before him. if there is not a request or suggestion then what is anybody assenting to? Nothing. The predicate question is what is the requester's suggestion? Seems to us that the EMS -- written in 2003, a long time ago and quit a lot has happened legally since then but courting to (correction) According to the ENJ it has to be specific rather than a broad announcement. there is a private or public request or suggestion were all the information is publicly available but for something to be a request or suggestion for the ENJ to the reg, and taking into consideration the Christian Coalition case that dealt with this for there to be a request or suggestion to trip the standard there needs to be something that is private. Maybe not something that is a formal elaboration but something at least not a broad pronouncement by a candidate, talking about taxes, end of speech. Under the EMJ that is not a request or suggestion so our question -- we have not found real murs the deal with this is the reason we are asking your advisory opinion is twofold. One, is the EMJ still good law? We think it is, but experience it just that sometimes it is not so we want verification that what the EMJ says is true. Second part is this is matter and in our opinion it is not whether this was done digitally instead of in a traditional setting. I think there should be ads talking about taxes, is that different than putting something on the Facebook page? there is a distinction without a difference but realized the commission has not always been on the same page with that so I don't know if that answers fully or question Mr. Chairman but we do think that the difference between something being a requester suggestion that such coordination is much different than a request or suggestion that is broad. There needs to be private sense, private conversation, a select audience in order for there to be a incentor request or suggestion has to be a predicate suggestion. >> CHAIR PETERSEN: I think you hit the crux of where the issue lies. in my perspective the EMJ is still good law. But there are still unanswered questions about what constitutes a request or suggestion and what constitutes an assent to that request or suggestion. You mentioned that it needs to be private not public. how expressed is that communication if it is private needs to be in order for it to be deemed a requester suggestion? >> I think you need to be put pretty specific -- I know there will be a lot of that's about taxes this year and that is different than saying you need to go out for so-and-so is proposal to increase the marginal tax rate; in each to be something more specific than the broad conversation about an issue. So yeah, there is a twofold nature to that; there is a selectivity to the audience, how small the audience is that goes with the public or private divide that I was discussing but I also think there needs to be more specificity to the actual requester suggestion itself, a two factor instance. How small of an audience and what is being requested or suggested, something broad or more specific. >> CHAIR PETERSEN: That is the question I have. In this gives you propose is sending e-mail to the candidate so I assume that is a private e-mail to a fairly select audience. And with a link to a page that loads specific ads and a specific fundraising mechanism. And in question three as I understand your question you are not specifically saying put this on your website for (correction) forward this link to your e-mail list, specifically asking to raise money for this ad. In light of the specific ad and the specific fundraising mechanism for that particular ad, is sending the hyperlink be considered a suggestion? That is one of the questions that has risen to my mind since your letter came in last night. That is one that at least I'm having to tees through because the EMJ does not give a something firm to hold onto. >> It comes down to -- i didn't include this and I'm having to do this and part of the confusion here is there is a whole back story to this confusion but nevertheless it's a simple e-mail, really is. I printed it and included it with a letter last night, to/from and nothing in the text of the body but a hyperlink to the public URL. That is what is suggested in question one. The first question is, is that e-mail and requester suggestion? We think not. We think that draft B's answer to question one is correct; merely informing the candidate about some of the activities even if they are pretty specific in enough itself is not a requester suggestion so the Christian Coalition is still good law and we believe it should hold. Doing it in e-mail is different from doing it in person? We think not. We think that draft B's answer to question one is correct but I think that for both drafts -- not to mention the confusion I think the ordering of the question really matters, and it really matters from a client because it is a temp oral process. Question one is dealing with what is going on for the project airs? Before the project reaches its fundraising goal? Can my client sent an e-mail that says this is on the air and that's it. Is that a requester suggestion? we think not, we think that is merely informing but even if it is a requester suggestion -- don't think that it is -- even if it is is an authorized committee's response to that e-mail -- putting it on their own website, a link -- could be anything, blasted on an e-mail, put it on a website, on the Facebook page or Twitter, is a publicly blasted that public URL link either one, because of the e-mail sent in question one or two, did it on their own, the Scalia terminology, happenstance -- i would hold that one, setting this type of e-mail, a link in the text's body, is not a requester suggestion. Even if it is how is the public assent saying here, this is great, or nothing, posts the link on Facebook page, is that a question for the regs? We think not. I think the regs written in the EMJ are explained. >> CHAIR PETERSEN: Are you saying that not only does the requester suggestion need to be private but the assent needs to be private as well? That -- correct me if I misunderstood -- that's what I thought you said. that's the question that I am grappling with. Let's assume that sending a hyperlink is a requester suggestion. For the sake of this analysis. What constitutes a "send." you pointed out an explanation and justification for the rule says the commission did not propose coordination -- Rather the candidate will have accepted in-kind contribution only if there is assent to the suggestion. by rejecting the suggestion the candidate or political party committee -- i think the rejection language of you more as a safe harbor, I don't think lack of rejection constitutes assent. But, when there is more than just merely informing, or if we were to say that is merely informing, once a candidate take that and runs with it in some way, and like you said even distributes that through e-mail, put it up on a website or sent it out as a solicitation within the limits, this taking of the direction constitute assent? Or does there need to be communication with the third-party pay your? (correction) Payor. There is not much in the EMJ about that. Not much in the subsequent enforcement history that answers the question that is why I pose that to you. >> MR. McCURRY: seems to me that the reading of the EMJ, declassify the requester suggestion being the same as a requester suggestion -- assent is treated the same so if you accept the premise of the EMJ, it needs to be somewhat private, restrictive towards an audience and specific in nature and the next part being assents are treated the same as requester suggestions themselves and to me the logical extension of that is yes, an assent need to be both private and somewhat specific as well. this is strange because it is the Internet and we are trying to talk about what is online but I think the EMJ was written in 2003 is that if you are in a small group and someone says hey, we are really thinking about running ads that attack your opponent. What the EMJ seems to be dealing with is that the candidate is saying that that is great, you should do that. Right? If the candidate turned around and went to a public meeting and started talking about oh, I really need to see some good ads, we think that is something different. The EMJ seems to treat assents in the same prism and analysis as requester suggestions themselves. We appreciate the nuance here; the Internet makes this somewhat strange but for an assent to be treated differently that at requester suggestion seems to be counter to the language of the EMJ. >> CHAIR PETERSEN: That is all I have. Commissioner Goodman? >> COMMISSIONER GOODMAN: Going back to the physical world analysis, I'm the IE maker, I go to the candidate and say here is our ad and you the candidate turns around and gets his piece that says Goodman's group has a really good ad. You all should get behind it and support Goodman's ad. That is not assent in your analysis? >> MR. McCURRY: No I don't think so. and let me explain why. What would have happened had the third-party group not said that? So because the third-party group merely informs the candidate, once again this is in a private setting, once the third-party group informs the candidate and the candidate has to muzzle himself? I was going to say how great this ad was but now that they told me in this little meeting I can't say that anymore? I don't think that stands for quite a lot of reasons, first principles; and that's not how the EMJ is written, it seems to best not address this issue and in our opinion it does. No, there needs to be a private conversation. I understand that you possibly think that that is assent; my mom still thinks that coordination is a lot of things but does not satisfy the three prongs. how many times do we have to deal with that issue? Under the legal terminology of how it is defined by the commission in the commission of justifications it is somewhat different than what it is in Webster's. >> COMMISSIONER GOODMAN: I am an independent furniture maker; I've got an ad, I walk it up to you and I probably show it to you and I say, if I could raise more money I can honestly that this ad, more points behind this ad. I need to get support, financial support for this ad. You turn around and speak to a large group, Goodman has an ad, a great ad. He needs more financial support for the ad and I encourage you to give to Goodman so he can get it in more media markets. I have seen the ad. You're saying that is not assent? >> MR. McCURRY: NO. Something like that happens all the time; when this commission correctly allowed candidates and supporters to solicit up to 5000 dollars for super PACS, to say that those activities -- is preposterous. When president Obama raise money for (incomprehensible) four years ago, he was aware of the ads. what we are talking about a public ads at least proposals on the website so to say that -- for me to answer your question and say that's improper would be to go in a restriction of things that this Commission is already said is okay. A candidate is allowed to solicit up to 5000 dollars from a super PAC, and to say that they don't know what that super pac is doing, of course they know. I am a little remiss; I hope Commissioner Weintraub is doiing well, I enjoyed working for her staff. When the federal candidate makes the solicitations they need to include that requisite disclaimer that is required under the majority, sure, they can raise up to 5000 dollars but it would be beyond belief to suggest that what is going on right now that they are totally unaware of the project and there is not some at least implicit acknowledgment of what that super PAC is doing. They are not going to spend the time and raise money for a super PAC is a don't like what they are doing. why would they? >> COMMISSIONER GOODMAN: Humor me for a minute. If a candidate solicits general support for a Super PAC -- one read of those prior AOs is that yes, a candidate can ask that people support a Super PAC. Seems like it might be a different question, correct me if I'm wrong, when the candidate is raising money for a specific communication supporting that candidate having been apprised of that communication. When it gets down to that level, is that level of specificity matter at all in the round of looking at whether something was suggested and assented to vs. a general hey, they are doing good work at the XYZ Super PAC, we hope that you support them and I can only ask up to 5000 dollars, thank you very much, good night. Those seem to be positively different suggestions. >> MR. McCURRY: Once again these candidates in office are aware; where they are supposed to draw the line, oh, I really like what they're doing or I really like what they're doing on taxation or that one ad, where is the line? It's been a few years when this condition have to rewrite the solicitation regs and that was a painful process, a lot of confirmations were made (correction) Compromises were made there. Exactly the words that the federal officeholder could not say when they were soliciting. you are allowed to say this but not that? This commission has enough on its hands dealing with express advocacy than having to come to deal with specific ads every single time. You are going to start looking at the nuance words that a candidate says at a fundraiser? Wow, I think that candidate a federal officer went over the line because they were talking little bit more specifically. We like what the Super PAC are doing in general or on that specific issue but once again it is easier, much more logical, much more consistent with the EMJ, much more practical to do as far as enforcement to do is to deal with what the EMJ says; they have to be specific. Once again all of this conversation is presuming that merely informing -- by sending an e-mail -- is a requester suggestion, we think it is not. It is just information. >> COMMISSIONER GOODMAN: You talked about drawing a line. Sometimes lines are hard to draw and I agree. We are opening up all of the Pandora's boxes for all the circumstances that could occur from my very general example versus a very specific one. Your request is about a specific solicitation for a specific ad. I don't need to worry about of the lines that might have to be drawn to consider this request which is a link; underlying the link is a specific solicitation for a very specific ad. that is what the link links to. Here's an ad; here is a donate button to support that ad. I don't know that I have to answer all the other questions, nuances, what people said and how specific they were to answer this one, your client's. So you are arguing that in order to be assent in this context given these facts, a specific ad and a specific solicitation for this ad, if I turn around and I am the candidate and ask people to donate to this project is not assent, why? >> MR. McCURRY: >> COMMISSIONER GOODMAN: If I needed to turn around and tell your client yes, I really do want you to disseminate that ad. >> MR. McCURRY: I think there's other ways of doing it. What we are proposing, what could happen if we send the e-mail that is written in question one -- once again 3 is broken into many parts and each one should be dealt separately; and combining them is the incorrect way of doing it especially because 3A and 1 a pretty much the same question and that was done intentionally but nevertheless in order to deal with the issue that you are speaking to is that what will be problematic is instead of my client sending the e-mail to an authorized committee and instead blasting it out and putting it in on the website, or putting it on a Facebook page, if they sent it to a select list, to a donor list, to a small group, oh wow, here's this, check it out. This becomes traumatic. >> COMMISSIONER GOODMAN: If I take a specific ad, a specific request for funding for the ad, specific to the candidate and the candidate send it out to the candidate's donor list, could that the assent? >> MR. McCURRY: that would cause more problems because the way it is structured in the EMJ, details matter in all of these things. (Audio break up). >> CHAIR PETERSEN: Commissioner Hunter? >> COMMISSIONER RAVEL: You ask important questions in one of the things that strikes me about this is your concern about the questions being separated out. Doesn't resonate to me. I don't mean to use nefarious and scheaming -- but it is part of a scheme. For me one of the problems that we have here is that -- and I did not participate in that previous decision was respect to fundraising for Super PACs, not that I'm not sure that I agree with that to begin with but it seems that some of what you're asking here conflicts with what the courts have said very clearly about coordination and the importance of independence and that it cannot be -- which is what essentially this is proposing. --- I have a concern about dealing with this matter -- given what you yourself have said about the EMJ and the lack of clarity in the ENJ with respect to several questions that you are asking to deal with this issue in an AO, in an expedited way. You have every right to ask it and we have to make a decision but I do think that there are nuances that have to be examined. I know you say he is asking for a specific thing and he is but this specific thing may have ramifications. To look at it in the context of an AO procedurally I think is problematic for us given the lack of clear ennunciation of these questions in the ENJ; personally I think it would be more appropriate for us to look at these issues in general in rulemaking. But beyond that, I would go with the version A myself if that's what we must do. >> CHAIR PETERSEN: One thing at this point that I should probably mention and the Vice Chairman brought this up as well, in light of your representation meeting your comments it might be wise for counsel to update or put out a new draft on the clarification made by the requester as to how we are supposed to break out the different elements especially question three, to make sure that there is greater clarity of what is being asked and what is being answered. >> We are not entirely sure on how to reconcile the comment. >> CHAIR PETERSEN: Okay. I guess -- in what way can you not reconcile it? >> There is language in the precedent that indicates that there's certain communications that are going to be made. The question asked, what about the actions of flow after that communication? There is some tension between the way the requester describes the communication and the way the comment describes the communication. >> CHAIR PETERSEN: I would ask Mr. McCurry, if we were to update the draft setting forth the questions consistent with the way your comment reads, that this reflects the better understanding of what was intended by your request? >> MR. McCURRY: Yes. Mr. Chairman, that is correct. What is readily apparent to me is a part of the confusion -- we believe that things in the original request were more clear; some of this could have been resolved. >> CHAIR PETERSEN: Okay. >> Welcome, Good to see you. I want to go back to some of the questions that Commissioner Goodman was asking, getting into details of who is the audience, is the e-mail h private, all of this stuff. The specificity, the link is to a specific ad as Commissioner Goodman mentioned. Does that become problematic? If the link were not to a page that were so specific, if it did not link to an exact ad, this is a great organization, they care about all of this. may be you can show up and support a group and ask for 5000 dollars; would not get into the details and I agree with you we don't want to. we are reluctant to do that. But we were not presented that question. You are able to come to the super PAC,you are doing great stuff and we want to ask 5000 dollars. Because it links to a specific ad, does that change the analysis? >> MR. McCURRY: No Commissioner, I don't think that it does. For one aspect -- what you're suggesting is problematic because that is not how my client operates. it is set up the way it is set up for specific reasons. I believe everybody the dais with appreciate this; for all the talk about dark money, my client tries to do the exact opposite of that. This is the brightest that I could have; small donors set up to do specific projects, oh, were going to give to an organization and we don't know what will happen to that money. It will be used for a specific project and that is how my client operates. This commissioner has dealt with this too, asking requesters to change their line of business to get a different answer from the advisory request but my client is not interested in doing that. It's been contemplated. Is there a way for Super PACs to accept money generically? If my client did that and his reluctance to do that is that it would change his entire business model. the real crux of the issue is, is providing the link itself which once again is public information, there is no reason to say -- and art of questions presupposes this -- what is a third person, what if a staffer and that's their job, see specific projects and if there is maybe we want to do something. Is my client in danger of running afoul of the act if that happens? Taking the e-mail of the picture it still has not been answered. are we in violation of the act if unbeknownst to us and authorize committee promotes via Facebook or any website or whatever, promotes publicly a project on Super PAC? We think not. The real first step. The next step is it a problem with the provided hyperlink ourselves? We think not. as question one is answered in draft B -- christian coalition was speaking to the campaigns about Sprint specific actions. Okay,they walked away. They did not assent privately for sure. --- That's what I would say Commissioner Ravel's comment that this could be problematic; I would like to know what issues those are. One specific issue would be the Christian Coalition. This is how my client operates. And two, is there a problem is an authorized committee does it on its own? Yes or no. Is there a problem sending an e-mail pointing something out that is public? >> CHAIR PETERSEN: -- >> COMMISSIONER HUNTER: Nobody is interested telling requesters to change their business model but the link that we are talking about is it linked to an ad for one specific member of congress? >> MR. McCURRY: The link provided is to the Joe (incomprehensible) project. >> COMMISSIONER HUNTER: As opposed to a menu of advertisements that somebody could choose from. I'm not suggesting you should change your business model. I wonder if the analysis is a little bit different if you are sending a link to a specific ad or a link to a menu of choices before somebody? >> MR. McCURRY: I am not going to suggest that is unreasonable that the analysis change somewhat; I don't think any of this is unreasonable. there's lots of thresholds and changes in the facts that matter. How more specific can we be to have an advisory panel request? it every time we came to you requesting rulemaking -- let's be honest -- is not easy. The Senate majority PAC -- the client has a right to ask questions about specific set of facts. I understand that the kind of nuanced difference is not an unreasonable suggestion and if that is what is required for the commission especially if it requires four votes for the commission to say you know what the URL you provided, we have a problem with www. Super PAC backslash super six, the Nevada project or something like that, is in a requester will do we will take what we can get and if the specific project is a problem but a menu per race or region or district, if that is the nuance requirement, that you decrease of specificity of the public assent then -- sure. Then sure. We are not here -- when the put this request talking to friends of mine trying to ask for the motivation for doing this, not trying to get away with a scheme, I know what a 3-3 split is like, that is not what we're here for. we want the affirmation room at least four commissioners. The analysis of question 3, specifically 3B which deals with the promotion of the hyperlink, the hyperlink needs to be different or there is a problem here because it is too much of a project, and an explanation for that. So That is better than nothing. >> COMMISSIONER HUNTER: Thank you. >> COMMISSIONER RAVEL: Thank you for the invitation to tell you about cases that I am relying on. First, by the use of the word scheme I was not intending to impugn your client's motives. I am not concerned, I am sure that they're trying to do something about board by asking the question. What I am concerned about because you referred reasonably to the track record of his commission on being able to regulate and I acknowledged that an agreement that but the problem is that if we do come to some conclusions on an AO of this sort, it is used for others, other than your client's, number one. --- Let me read you a couple of quotes from some cases that are significant for us to think about when we look at what the independence from the candidate means with regard to independent expenditures. (did not understand) vs. Valeo, says it must be done totally independently. -- not pursuing to any general or particular understanding, "general" is an important work. I already mentioned not a wink and a nod, from FEC vs. Colorado -- and citizens United was strongly stated about the need for full independence as a basis for knowledge in that it is okay to have independent expenditures. --- I feel pretty strongly about that concept which is one of the reasons that I'm concerned. Once again it is not about your client per se. >> CHAIR PETERSEN: Commissioner Goodman. >> COMMISSIONER GOODMAN: I did want to say that as you know when the put-- >> VICE-CHAIR WALTHER: --When the put these ENJ together we are not in a position to agree on every possible scenario as you know. We can generally provide guidance for but not necessarily precisely the way things have to be viewed; things do change. It would be nice to give you a black-and-white answer. Most of these are pretty factual sensitive; a case like this I think it is too. --- I have a question with respect to the idea of why it has to be private. Where did that come from? >> MR. McCURRY: That is from the ENJ. >> VICE-CHAIR WALTHER: How private does it need to be in this case? >> MR. McCURRY: Select audience. >> VICE-CHAIR WALTHER: In what way? if I invited everybody to come to a rally in a newspaper? Or come to somebody's house. >> MR. McCURRY: I agree that that is part of the nuance but with does say -- i'm putting out a quote from the ENJ cited in the request -- it says that when it is not coordinated, when it is public. I don't know how more public something can be when it is promoted on the web. Or promoted on Facebook. The ENJ speaks to why audiences, spoken at a crowd, things of that nature. Intended to cover requester's suggestions made to the selected audience but not the general public. >> VICE-CHAIR WALTHER: It goes in somebody else's website is fair game; it was mentioned in passing reference. Suppose it is a website that somebody's greatest campaign fundraiser has (incomprehensible) -- and develop a movie that cost several hundred thousand dollars and you have a celebrity that serves this character reference. That thing cannot get promoted generally unless a new website that has a lot of hits like a candidate's. Can the candidate assume that -- is there a line to be drawn between wind that can be used and when not? >> MR. McCURRY: But my client is requesting is not some sort of secret, private website, I think that is what you are suggesting. >> VICE-CHAIR WALTHER: It's one that anybody can reach. >> MR. McCURRY: Commissioner I assure you more than I can; I would encourage you to check out my client's website. if you want to find these projects they are readily available. >> VICE-CHAIR WALTHER: I'm trying to get your sense of what you think where the line should be drawn. >> MR. McCURRY: I think my client is on the right side the line. There are no passwords to get behind or some sort of screen; if you go to the website it is a Super PAC, if you search for a project it is not hard to find. If there is a line to be drawn it would be beyond that; if it were some secret website or some crazy URL or something of that nature that would be a different set of circumstances that the Commissioner would look at differently. What my client is offering is a website that not only is it public but readily accessible and easy to find. >> CHAIR PETERSEN: Commissioner Goodman. >> COMMISSIONER GOODMAN: Troy, I did not understand you to ask a question. What is a candidate unilaterally and without any link or e-mail or any type of suggestion or communication with the Super PAC, it a candidate unilaterally or through some campaign staffer sent out the people, I did not understand that you asked that question. If you are sitting there passively, I don't see how anyone can construe that to find that one half of the coordination conduct -- that would prevent you from speaking. I do not understand that question to be asked here. >> MR. McCURRY: I apologize for that; I believe that their request originally submitted was a little clearer on the topic. The rewritten request that you have before you now after I went through an excruciating conversation -- i enjoy with (did not understand) -- she is always a professional and a good lawyer and very professional and we had an excruciatingly long conversation dealing with a third-party request. And to remind the commission there is no appeal process. You have to rewrite your request. In order to move this along further we knew we were working up against the 60 day hard deadline before the election and every time you get kicked back the clock starts again; I do believe that the initial request is proffered made it clearer; it is good to hear you say that and hopefully at least four commissioners will agree with that. One McLean want to do is question number one, can we hit "send" on an email? If not, we're okay. Do we need to worry about withdrawing project if we find out that an authorized committee pushed our project on Facebook? There are a lot of iterations to all of this. If four or more commissioners believe what you just stated that if it happens by happenstance, the terminology that is pulled by OGC from staffer Scalia would be great to know, it would be comforting to know that we have to worry about pulling projects if we become aware of it. But nevertheless I think that is clearer. >> That question was asked; the question would be entitled to an answer. Along with the others. I am not aware of the procedural history that may submerged that question. It seems like a legitimate question someone would want to know; I cannot speak for everyone. It is clear in my mind what the regulatory consequence of that would be. someone has the right to know whether they can speak; just because someone unilaterally without any involvement did something. If that was put to the commission I think we -- if we are going to take more time with this we ought to provide an answer to that as well. >> CHAIR PETERSEN: I agree. I did not understand the request to proffer that either. To me that is an easy answer; you cannot control what someone might stumble across on the papers, the web or what have you. If there were the committee that would take certain actions without your knowledge, without your invitation or anything, I cannot see by any stretch of the words of regulation that could be considered " coordinated." >> COMMISSIONER GOODMAN: Are there any other questions that you are looking for answers for the didn't make it into questions 1, 2, and 3? >> MR. McCURRY: No Commissioner Goodman. here's the thing. There's obviously confusion before I sat down at the table. It seems to me that this would have been the appropriate way to deal with the collegial back-and-forth to tees some of the stuff out. Instead we have follow-up responses; I will use conditioner Ravel's words here, trying to use a scheme. It will not satisfy -- we are not trying to play games here. That would not have the beneficial shield of the AO it went around with here is the conduct prong with an independent contractor. So that everybody is clear -- i work here for a while -- smoke signals are what they are. After three and half months separation it is hard to read smoke signals, especially three weeks out of the election. Draft A was a false flat; it is not a real answer, does not answer questions 1 and 2. Oh, your cleverness in question 3, we are not going to answer it? It is too cute by half and it is lacking good faith. When I saw that I was flabbergasted and I don't feel it should be hitting on something like that because I know it is a practice of the commission, the commission is supposed to put up drafts week out. I assume that's what happened because I could not believe that the commission would respond to a request or by totally ignoring two of his three questions. I don't want to build my client for a dime; I thought that what happens is that somebody is thrown out but there is no other draft. To me that these there are negotiations going on. I figured that commissioners were negotiating on the ninth floor and until I saw draft B last night, I realized that draft A had substance. I will say one thing about draft A. During our conversations with the office of general counsel it was suggested to me that my client should rephrase -- not just have to rephrase it because it was a third-party request, but the better course of action is to rewrite in a way that laid out all of the faction did not ask any questions Until the very end. What are you going to do and all these actions and ask at the end, is this okay? I was not going to do that. My client had specific questions. Draft A told me that iwas OGC response to my client's request, the way OGC wanted to answer, not actually answering the request that we proffered. >> COMMISSIONER GOODMAN: Before we received your supplemental comment I was sympathetic to draft B. I thought your client deserved an answer to every question posed; as a former practitioner there is a reason to ask on each gradation, and you deserve an answer on each gradation. There is a regulatory consequence depending on what happens after you engaged in conduct asked the in the questions 1 and 2. I don't know the changes the revelatory consequence but if you have another question and it was presented to the commission I think there's a fourth question; the Commissioner owes you an answer, weather it's favorable or unfavorable. >> The original request was circulated to the commissioners on September 6th, 4:32 p.m. That request is not ask any point the scenario where the candidate unilaterally posts the information. All three questions -- not that different from the three questions that were submitted -- implicated communication from the requester to the candidate. >> CHAIR PETERSEN: To clarify for my perspective on the drafts, the way that the questions -- and the way the analysis was presented based on the questions, I was leaning towards draft B. But it wasn't based on the way -- I'd understood to questions that you had asked in your request -- Sept. 9th request -- consistent with that so that was our misunderstanding. I don't think it was necessarily bad faith. I think it was just the result of confusion; I think the clarification that you brought last night helps to clear up some of the confusion so we know how to best answer the question. --- I think to the extent that you've also been seeking answers to a question about -- a candidate, authorized committee party, or some other entity stumbling across your website and then linking to that in your website, sending out e-mails, sending out solicitations To give money to this project, I think that we needed to answer that. that is part of what you are seeking in this request. In my mind that is a fairly easy question to answer. I had not understood that. I think that there was some confusion as to the precise nature of the questions being asked. Not that we have a clarification we can give you an answer to what you are seeking. >> MR. McCURRY: I would appreciate that Mr. Chairman. I believe that the rephrasing of question 3 caused some of this confusion. Question three originally styled was, may an unauthorized committee place a link in the website? there are different iterations on that. I think he rephrasing of this the way it ties in, is my client going to be in violation of the act of these things happen? I think it is open-ended, but it becomes less clearly so. >> COMMISSIONER HUNTER: I am curious as to why you ask that because it seems 30 clear that the answer is yhes. I don't know if my colleagues -- >> MR. McCURRY: Commissioner I think that I have a hard time making things clear in this environment; I don't have a mur that has an SOR attached to it. Once again my client is different; it is a different nature of what he is doing, producing specific ads on the platform asking people to do things. it is different than what other Super PAC or other entities are doing. there is concern that do we have to be Concerned if we noticed that an unauthorized committee is promoting things in a certain way? Do we need to be concerned about that? I hope not. I can't bank on that. >> COMMISSIONER HUNTER: Thank you, putting aside the substance for a minute it might be useful to talk about the procedures for a minute. Obviously the election is less than two weeks away. Obviously we want to answer all of your questions but some are easier than others. Is there is some kind of triage? What if this guy does it? What about your e-mail? maybe we can turn that around and next day or two and the others that are more sophisticated may take a couple more days; I want to get you an answer in a way that it is useful for the election. at what point does the answer do you no good? >> MR. McCURRY: Obviously we are really close; the project here has to be turned around quickly. Frankly, in order to purchase the space on Facebook -- my client needs to be -- needs to be -- it's got to be before the Monday for the election, Friday, a week from tomorrow. A week from Friday. Next Friday. >> COMMISSIONER HUNTER: Would be the last -- and it would be at least helpful to get it to you by then. >> MR. McCURRY: It would be helpful. As far as triage, question number one is the most important. We believe 3A and 1 are entirely related; if you can do 1, can we really do 1? 1 and 3A go hand-in-hand and 3B, if 3B to be rephrased as putting the link on the candidate's own website, we don't think it would be material to say it could not be publicized in some other way. We think 3B is open ended and more clearly so to begin with that if an authorized committee does that, what 3B says it's going to do, is that okay? Well sure, it's definitely okay is the committee does it on its own, Super PAC would not be in violation of the act because of the coordinated contribution. E-mails reference in question one, we think the answer would be that it's okay. >> VICE-CHAIR WALTHER: the draft that we saw is that your first draft? Based on conversations with the General Counsel staff? >> MR. McCURRY: That is correct. What you have before you is request itself dated September 9th, my reworded request. These things come in the door, this is pre AOR version 2. >> VICE-CHAIR WALTHER: So what areas of our conversation did you rely on for modifying request? >> MR. McCURRY: I was told by counsel that my initial request was a third-party request and I had to comply with -- >> VICE-CHAIR WALTHER: It is interesting to me to know where you started and where you ended up after talking to my office. As the commission in general it may not be what we agree with. What was the methodology that took place here? >> MR. McCURRY: I mean, you have a copy of that draft; it's in your e-mail. I did not bring it with me because it is not before you technically. The way we rephrased question 3, was a third-party request and I adamantly disagree with that. when dealing with coordination you by nature are dealing with a third-party; we have a right to ask the question. the second and most important reason is that the bridge or dam whatever existed let's be honest has been blown through the water. For better or worse -- i really don't care -- all I can do is offer president. the Commission has addressed issues that are exceptionally hypothetical and exceptionally third-party and I listed it in the footnote on the request. All I can do as an attorney to my client is base off precedent for the Commission has addressed issues in the past and having been here and having had his conversations we made it perfectly clear well this is not a third-party request and if this is not hypothetical request nothing is. The commission has prerogatives to set standards to say what is and what isn't have a federal question and what is and is not a third-party request. please do so and standardized it and apply it equally but to allow requesters to come in with exceptionally hypothetical third-party request on one instance and not do the same and require us to rewrite it in order to get it before you is just not equal treatment. It is arbitrary and capricious by definition. I don't know that is challengeable in court, is wholly unfair. >> COMMISSIONER RAVEL: I don't know if Mr. Noty wants to weigh in on this. The new say from my part what I read your original request, some of your comments to the general counsel were really off the mark. Given the language that you have in your first advisory opinion request dated September ninth, their response has been absolutely consistent with what you've written. I really taken issue with your criticizing their behavior. I really think that it is inappropriate. Would you like to weigh in? >> I confirm that the office of general counsel -- (feedback in the room) -- was that me? We did informed counsel that there were aspects of the original draft that were not as complete from part 112. All commissioners have the original draft and they could compare it to the original draft and could see what the differences are. I suggest that they are not that significant; it's pretty clear what aspects of the original draft required changing. >> CHAIR PETERSEN: I'm going to go back and take a look; I have to admit that my focus has been on the September 9th draft; the original was in September 6th. Obviously we will need more time to go through this. I will also address the issue -- this is susceptible to an advisory opinion. By definition every rulemaking is going to be of a certain general level that is going to identify specific factual scenarios that could not have been reasonably foreseeable under those regulations. frankly that is why we have an advisory opinion process to try to get some guidance as to how those rules are going to be applied in practice. And so I don't think that we should necessarily -- I raise somed questions about wiggle room in the joints. Under the -- justification -- i don't see anything inappropriate about answering this; this is exactly why we have an advisory committee. --- like we said we will need to have more time to go through this and hope to get something as quickly as possible, meaning to keep lines of confusion open between OGC and yourself. Regarding what timing is realistic? At this point I can't promise any particular -- obviously we will try to be a expeditious as possible. >> Mr. Chairman, can you hear me? Can I weigh in for a second? >> COMMISSIONER WEINTRAUB: I apologize this is a little bit more complicated to participate remotely. I want to say a couple of things. I think Mr. McCurry should listen to his mother more; she sounds like a wise woman. When a requester comes in and starts talking about how the commission is waving flags -- let's see, I think I wrote down a couple of phrases used, that the draft is too cute by half, lacking in good faith, We don't put out drafts in bad faith. You are not doing your cause any favors by casting assertions on our staff that way. I came to this meeting prepared to vote for draft A. I understand people want more time to take another look and see whether a fuller response might be wanted and I will be happy to do that. I did want to make that comment. Thank you Mr. Chairman. >> CHAIR PETERSEN: We will hold this matter over for either resolution between now and the next open meeting; it doesn't have any resolution. Sometime between now and the next meeting we will have is resolved, sooner rather than later. >> The deadline for the advisory -- is the 14th, the next meeting is the 18th. We need to get a short extension of time if we are going to make the next meeting. >> CHAIR PETERSEN: We will have to hammer it out about the timeframe in which we want to resolve this. Anything further? Thank you Mr. McCurry. >> Thank you. -- -- -- -- -- -- >> CHAIR PETERSEN: We will turn next to draft advisory opinion 2016-11. We have Tony Buckley from the office of general counsel to give his presentation. we are still on the Morning side of noon. So I can say good morning. >> Mr. Bessent? >> The16-51- A is a response to requests by Plains Cotton Growers, Inc. The draft concludes that PCG easy connected organization of PCG PAC. The draft for the concludes that PCG neglect with cotton gins to collect and forward contributions The draft concludes that the proposal is efficient letter is permissible. It will inform recipients as required by commission regulations and the commission has received no comments on the request or the draft and I will be happy to answer questions. >> CHAIR PETERSEN: Any question for counsel or in the discussion? I am comfortable with the draft Mr. Bessent. Do you have any comments that you would like to offer? >> I appreciate your time and consideration. >> CHAIR PETERSEN: Do we have a motion? Commissioner Hunter. >> COMMISSIONER HUNTER: I move approval of draft advisory opinion 2016-11. >> CHAIR PETERSEN: All of those in favor indicate by saying aye. Any proposed? Adam Secretary the motion carried by a vote of 6-0. >> I want to say to Mr. Bessent, thank you for your extensive attachments on the AO; it was fascinating to read about your cotton gin members. I appreciate it. It was interesting. >> Thank you very much; thank you for your interest as well. >> CHAIR PETERSEN: Thank you for submitting your request and being available this morning. >> Yes sir. >> CHAIR PETERSEN: Will turn next to item 3 on the agenda, draft advisory opinion Draft Advistory Opinion 2016-14. Several state Libertarian parties. We have -- from the General Counsel, second presentation. I've suspicion this will not include difficult queries. >> I believe we have -- counsel too. >> Ms. - are you there? >> Agenda document 1653-A and B our alternative responses to advisory request submitted by 11 libertarian committees, asking whether the relations, each qualified as a separate party. The draft concludes that each does qualify -- in addition to be recognized as an affiliate of the national committee each state committee is governed by laws showing that it is responsible for activities measured with the day-to-day functions of the political party at a state level. we have not received comments on the request or the draft and we request that should the draft be approved that we retain the authority to make any necessary technical and conforming amendments. I will be happy to answer any questions you have. >> CHAIR PETERSEN: Other any other questions or discussion? Mr. -- any comments? >> -- that's about it. Can I clarify the beginning? I believe there was a motion to extend consideration on Alabama specifically? >> CHAIR PETERSEN: The motion at the outset was just -- since the most recent draft was circulated late under our regulations we had to make a motion to waive the rules on a timely submission of the document so we could consider draft B. I'm glad you asked for the clarification. >> COMMISSIONER RAVEL: this is an important issue. I'm wondering what the rationale was for having a draft B given that they're substantively the same. >> CHAIR PETERSEN: I think the reasoning was to move a particular paragraph earlier into the analysis. It appeared that maybe analysis flow a little easier; I think it led to different result, it was in terms of readability and flow. >> COMMISSIONER RAVEL: We are following this style guide. >> CHAIR PETERSEN: Trunk and White. Do we have a motion? >> COMMISSIONER HUNTER: I move approval of the agenda item Draft Advistory -- 15-53-A, B. >> CHAIR PETERSEN: Any opposed? It carries by a vote 6-0. Thank you for being available to discuss this advisory opinion. >> Thank you. >> CHAIR PETERSEN: Leads us to our last agenda item. Are there any management or administrative matters? >> Mr. chairman there are no such matters. >> CHAIR PETERSEN: This meeting is adjourned. --- (End of meeting) -- -- ???_______________________?James Landon Jones Multimedia Specialist Federal Election Commission 999 E Street, N.W. Washington, D.C. Ê20463 (202) 694-1237