Comments sought on modification and redaction of contributor information
On December 19, 2024, the Commission published a Notice of Proposed Rulemaking (NPRM) in the Federal Register that seeks public comment on proposed regulations that would establish procedures for contributors or their agents to request the Commission to modify or redact, in whole or in part, certain contributor information from disclosure reports or statements filed with the agency. The procedures would apply only in certain limited circumstances when there is a reasonable probability the contributor may face threats, harassment, or reprisal.
Background
The Federal Election Campaign Act (the Act) generally requires political committees to disclose the name, mailing address, occupation and employer of each individual whose contributions aggregate more than $200 in a calendar year or, for campaigns, in an election cycle. Moreover, conduits and intermediaries receiving and forwarding earmarked contributions to candidates must disclose every contributor’s name and mailing address, regardless of the amount of the earmarked contribution. The Commission must post the reports and statements containing the identification information on its website.
While recognizing the important governmental interests that justify the Act’s disclosure requirements, the Supreme Court has acknowledged that disclosing a contributor’s identity may expose them to threats, harassment, or retaliation. As a result, the Court has required an exemption from the reporting requirements when there is a “reasonable probability” that the contributor may face such threats, harassment, or retaliation. From time to time, the courts and the Commission have granted such exemptions to requesting committees, organizations and individual contributors.
Proposed rule
The Commission proposes to add new part 400 to its regulations at 11 CFR establishing procedures for processing requests to modify or redact a contributor’s mailing address, occupation or employer name in reports or statements filed with the Commission. The proposed rules would not establish a procedure for modifying or redacting a contributor’s name.
The Commission intends for the proposed procedure to allow the modification or redaction of any report or statement that contains a contributor address, occupation, or employer name and is in the Commission’s possession. Only requests to modify or redact reports and amendments already filed with the Commission would be considered.
A request made under the proposed rules would need to:
- Include the requestor’s full name, address and telephone number;
- Be sworn to and signed by the requestor and notarized; and
- Identify any published report(s) that contain the information the requestor is asking the Commission to redact.
The request should state the facts that establish a reasonable probability that the disclosure of each piece of information the requestor seeks to modify or redact would subject the requestor to threats, harassment, or reprisals. The statements within the request should be based on the requestor’s personal knowledge and should be accompanied by any records supporting the facts alleged if such records are known, and available, to the requestor. An authorized agent, parent, or guardian of a contributor may submit a modification or redaction request, but requests submitted by an agent still must be sworn to and signed by the requestor.
If the Commission, after reviewing the request and any supporting documentation, determines by an affirmative vote of four or more of its members that there is a reasonable probability that the relevant disclosure would subject the requestor to threats, harassment, or reprisals, the Commission may approve, in whole or in part, the modification or redaction of the requested information. The Commission will notify the requestor of its decision within five business days of voting. If the request is approved, the Commission will expeditiously make any approved changes to published reports. The Commission will also notify the committee or person who filed the disclosure report that the report was modified.
If the Commission makes modifications or redactions to a disclosure report pursuant to a request, any individuals or entities who are required to identify the same individual in reports or statements filed with the Commission may, but would not be required to, incorporate those modifications or redactions into any report or statement filed within the next two calendar years, or within any other period specified by the Commission in its decision approving the contributor’s request. If a contributor makes a contribution to a new committee or organization, the contributor would be responsible for notifying that entity that their information can be withheld or modified pursuant to the new rule.
Requests, notifications and findings made pursuant to the proposed rules will generally be kept confidential. However, since the purposed rules do not provide for the redaction or modification of a contributor’s name, a person viewing a disclosure report will be able to see the names of the individuals whose addresses, occupations, or employers’ names have been modified or redacted pursuant to the new rule.
Comments sought
The NPRM identifies several specific questions regarding each provision of the proposed rule where the Commission invites public comment. Public comments must be submitted by February 18, 2025. Commenters are encouraged to submit comments electronically (reference REG 2024-06) via the Commission’s website.
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