Coordinated communications final rules

On June 8, 2006, the Commission published final rules and explanation and justification governing coordinated communications. (71 FR 33190) The rules, which take effect on July 10, comply with the Court of Appeals ruling in Shays v. FEC that the Commission had not adequately explained one aspect of the previous coordinated communications regulations. 11 CFR 109.21(c)(4).

Background

The Shays court found that the 120-day pre-election time frame used in the content prong of the three-prong coordinated communication test was not sufficiently justified, since there was “no support in the record for the specific content based standard the Commission… promulgated.” In response, the Commission issued a Notice of Proposed Rulemaking (NPRM) on December 8, 2005, and held public hearings on January 25 and 26, 2006. Neither the written comments nor the hearing testimony provided quantitative evidence concerning proposed time frames. As a result, the Commission licensed data from TNS Media Intelligence/CMAG regarding television advertising run by Presidential, Senate and House candidates during the 2004 cycle in effort to address the appeals court’s concerns. The Commission issued a Supplemental Notice of Proposed Rulemaking on March 15, 2006, to allow the public to comment on the licensed data.

For more information, see the January 2006 Record, page 2 and the March 2006 Record, page 3.

Final rules

Revised time frame

The Commission has retained the existing content prong at 11 CFR 109.21(c)(4), but has modified the 120-day pre-election time frame. The Commission has established separate time frames for political parties, congressional and presidential candidates, based on comments received in the rulemaking and the licensed data.

• For communications that refer to House and Senate candidates, the period begins 90 days before each candidate’s election and runs through the date of that election. 109.21(c)(4)(i). This time frame applies separately to primary and general elections. In some states these periods will overlap, depending on the timing of the primary election.
• For communications that refer to Presidential candidates, the time frame for each state begins 120 days before the date of its presidential primary and runs through the general election. 109.21(c)(4)(ii).
• For communications coordinated with a political party committee that refer to political parties, do not reference a clearly identified federal candidate and are distributed in a jurisdiction where that party has a candidate on the ballot, the time frames are based on the election cycle:
  • In a non-Presidential election cycle, the time frame begins 90 days before each election and ends on the date of that election (109.21(c)(4)(iii)(B));
  • In a Presidential election cycle, the time frame for each state begins 120 days before the date of its primary and runs through the general election. 109.21(c)(4)(iii)(C).
• However, communications that refer only to a political party, but are coordinated with a candidate, are subject to the 90- or 120-day period applicable to that candidate, as long as they are distributed in that candidate’s jurisdiction. 109.21(c)(4)(iii)(A).
• For communications that refer to political parties and reference a clearly identified federal candidate, the appropriate candidate time frame would apply when the communication is distributed in the candidate’s jurisdiction:
  • If the clearly identified federal candidate is a House or Senate candidate, the 90-day time frame applies;
  • If the candidate is a Presidential candidate, the 120- day time frame applies. 109.21(c)(4)(iv)(A)-(B).
• For communications coordinated with a political party committee that refer to both a political party and a clearly identified federal candidate and are distributed outside the candidate’s jurisdiction, the election-cycle rules for communications referring to political parties described above apply. 109.21(c)(4)(iv)(C).

The Commission has also clarified that a public communication satisfies the content standards at 109.21 (c)(4)(i) or (ii) with respect to a candidate only if it is publicly distributed or otherwise publicly disseminated during the relevant time periods before an election in which that candidate or another candidate seeking election to the same office is on the ballot.

“Directed to voters”

The Commission has removed the phrase “directed to voters in the jurisdiction” from former 109.21(c)(4)(iii). The revised rule states that a public communication must be “publicly distributed or otherwise publicly disseminated in the clearly identified candidate’s jurisdiction” or if the public communication refers to a political party, but not to a clearly identified federal candidate, in a jurisdiction in which one or more candidates of a political party appear on the ballot. The Commission has decided not to specify a minimum number of persons that must be able to receive a communication for the fourth content standard to apply.

Common vendor and former employee conduct standard

BCRA requires that the Commission address “the use of a common vendor” and “persons who previously served as an employee of a candidate of a political party” in the context of coordination. The Commission has decided to revise the temporal limit in the common vendor and former employee conduct standards to encompass 120 days rather than the entire current election cycle. The 120-day period starts on the last day of the individual’s employment with a candidate or political party committee or on the last day that a commercial vendor performed any of the services listed in 109.21(d)(4)(ii) for a candidate or political party committee.

Endorsements and solicitations

The Commission has created a new safe harbor in 109.21 for endorsements by federal candidates of other federal and nonfederal candidates. The Commission has also created a safe harbor for solicitations by federal candidates for other federal and nonfederal candidates, political committees and certain tax-exempt 501(c) organizations as permitted by 11 CFR 300.65. Such endorsements or solicitations are not coordinated communications unless the communication promotes, attacks, supports or opposes (PASOs) the endorsing or soliciting candidate or another candidate who seeks election to the same office as the endorsing or soliciting candidate. This safe harbor applies no matter when the endorsement or solicitation occurs.

This safe harbor was not extended to state ballot initiatives.

Publicly available information

The Commission has created a safe harbor for use of publicly available information in creating, producing or distributing a communication. Such use would not, in and of itself, satisfy any of the conduct standards in 109.21(d). This safe harbor would apply to four of the five conduct standards; only the “request or suggestion” conduct standard in 109.21(d)(1) is excluded from the safe harbor.

To qualify for this safe harbor, the person paying for the communication must demonstrate that the information used in creating, producing or distributing the communication was obtained from a publicly available source. A communication that does not fall within this safe harbor will not automatically be presumed to satisfy the conduct prong of the coordinated communication test.

Establishment and use of a firewall

The Commission has created a safe harbor from the conduct standards when a commercial vendor, former employee or political committee establishes and uses a firewall to prevent the sharing of information about the candidate or political party’s plans, projects, activities or needs. To qualify for the safe harbor, the firewall must be described in a written policy that is distributed to all relevant employees, consultants and clients affected by the policy. It must also be designed and implemented to prohibit the flow of information between:

• Employees or consultants providing services for the person paying for the communication; and
• Those currently or previously providing services to the candidate, the authorized committee, the candidate’s opponent, the opponent’s authorized committee or a political party committee.

This provision does not dictate specific procedures required to prevent the flow of information, since a firewall is more effective if established and implemented by each entity based on its specific organization, clients and personnel. However, a good example of an acceptable firewall is described in MUR 5506 (EMILY’s List), First General Counsel’s Report at 6-7. Additionally, the Commission does not require firewalls and will not draw a negative inference from the lack of such a screening policy.

Payment prong amendment

The new regulations clarify that the payment prong is satisfied if the communication “is paid, in whole or in part, by a person other than that candidate, authorized committee, or political party committee.”

Party coordinated communications (11 CFR 109.37)

The Commission revised its regulations regarding party coordinated communication to ensure consistency with the revisions in the fourth content standard at 109.21(c)(4). These regulations apply to communications paid for by party committees and are similar to the standards for coordinated communications. The new regulations replace the old 120-day time frame with the new 90- and 120-day periods applicable to communications that refer to House and Senate candidates or Presidential candidates, respectively.

Revised 109.37 does not contain separate rules for communications that refer to political parties, because the content standard in 109.37(a) is not satisfied by communications that reference only political parties, unlike revised 109.21.

“Agent” clarification

The Commission has added a sentence to 109.20(a) to explain that any reference in the coordinated communication rules to a candidate, a candidate’s authorized committee or a political party committee, also refers to any of their agents.