E&J for interim final rule on definition of FEA

On February 9, 2006, the Commission approved an interim final rule regarding voter identification and get-out-the-vote (GOTV) activities limited to nonfederal elections. The Commission is seeking public comment on all aspects of the interim final rule and may amend the final rule as appropriate in response to comments received.

Background

Under the Bipartisan Campaign Reform Act of 2002 (BCRA), voter identification, GOTV activity and generic campaign activities conducted “in connection with an election in which a candidate for federal office appears on the ballot,” constitute federal election activity (FEA), and are subject to certain funding limits and prohibitions.

In response to the district court decision in Shays v. FEC, the Commission published a Notice of Proposed Rulemaking (NPRM) that proposed several changes to the definition of FEA, including exceptions for activities conducted in proximity to nonfederal elections. After reviewing public comments and testimony given at an August 4, 2005, public hearing, the Commission approved Final Rules and Explanation and Justification (E&J) on the Definition of Federal Election Activity (2006 Final Rules). The Commission decided not to incorporate into those final rules any of the FEA nonfederal time period exceptions proposed in the NPRM but instead adopted a more narrowly focused interim final rule.

Interim final rule

Initially, the Commission included within its definition of FEA voter registration, GOTV and generic campaign activity conducted between the filing deadline for access to the primary election ballot and the date of the general election or, in states that do not conduct primaries, beginning January 1 of each even-numbered year. The regulation provided an exemption to this definition for an association of state or local candidates conducting activity in connection with a nonfederal election, but the Commission eliminated that exemption in order to comply with the district court decision in Shays. As a result, political campaign activity relating solely to nonfederal elections scheduled in 2006 will fall within the FEA time period. To avoid capturing activity that relates solely to nonfederal elections, the interim final rule distinguishes between voter identification and GOTV activities that are FEA and those activities that are not FEA, because they do not involve elections in which federal candidates are on the ballot.

For an activity to be covered by the interim final rule:

• The nonfederal election must be held on a date separate from any federal election and the communication or activity must be in connection with the nonfederal election; and
• The activity or communication must refer exclusively to:
  • Nonfederal candidates on the ballot;
  • Ballot initiatives or referenda; or
  • The date, time and polling locations of the nonfederal election.

Because generic campaign activity, by definition, promotes a political party and does not promote a federal or nonfederal candidate, such activity would not be covered by the interim final rule. The Commission seeks comment on whether this is an appropriate determination. The Commission is soliciting comments on all aspects of the interim final rule and may amend the interim rule as appropriate in response to comments received.

Comments

The E&J for the Interim Final Rule appeared in the Federal Register on March 22, 2006 and is available on the FEC website. All comments must be addressed to Ms. Mai T. Dinh, Assistant General Counsel, must be submitted in e-mail, fax, or paper copy form and must include the full name and postal address of the commenter. Commenters are strongly encouraged to submit comments by e-mail at either municipal.election@fec.gov or submitted through the Federal eRegulations Portal at www.regulations.gov. If e-mail comments include an attachment, the attachment must be in Adobe Acrobat or Microsoft Word format. Faxed comments must be sent to 202/219-3923, with paper copy follow-up. Paper copy comments and paper copy follow-up of faxed comments must be sent to the Federal Election Commission, 999 E. Street, NW, Washington, DC 20463.