FEA final rules

On February 9, 2006, the Commission approved final rules that revise the definitions of certain types of federal election activity (FEA). The revised rules, which take effect March 24, comply with the district court’s decision in Shays v. FEC.

Background

As part of its decision in Shays, the district court invalidated portions of the regulatory definition of FEA that describe voter registration activity, get-out-the-vote (GOTV) activity and voter identification. The court found that the voter registration and GOTV definitions were improperly promulgated because the Commission’s initial Notice of Proposed Rulemaking (NPRM) did not indicate that the definitions would be limited to activities that “assist” individuals in registering or voting.

The court also invalidated the portion of the GOTV definition that exempts communications by associations or similar groups of state or local candidate/officeholders that refer only to state or local candidates. With regard to the definition of voter identification, the court found the Commission’s decision to exclude voter list acquisition and the activities of groups of state and local candidates/officeholders to be contrary to Congressional intent. For these reasons, the district court remanded the regulations to the Commission for further action consistent with its decision.

Final rules

In response to the district court’s decision, the Commission published an NPRM on May 4, 2005 that proposed possible modifications to the definitions of voter registration activity, GOTV activity and voter identification. In addition, the NPRM proposed several changes to the definition of “in connection with an election in which a candidate for federal office appears on the ballot.” See page 1 of the June 2005 Record.

On August 4, 2005, the Commission held a public hearing to receive testimony on the proposed rules. See page 4 of the September 2005 Record. After considering the public comments and testimony, the Commission issued final rules that:

• Retain the current definitions of voter registration and GOTV activity, which exclude from these definitions mere encouragement to register and/or vote, and provide a more complete explanation of what the term voter registration activity encompasses;
• Amend the definition of voter identification to include acquiring information about potential voters, including, but not limited to, obtaining voter lists;
• Remove the exception to the definitions of GOTV activity and voter identification for associations or other similar groups of candidates for state and local office;
• Remove the reference to “within 72 hours of an election” from the definition of GOTV activity;
• Revise the definition of “in connection with an election in which a candidate for federal office appears on the ballot” to remove restrictions on the rules for special elections to odd-numbered years.

Interim final rule

The Commission also voted to promulgate an interim final rule modifying the definition of “in connection with an election in which a candidate for federal office appears on the ballot.” This rule exempts activities and communications that are in connection with a nonfederal election held on a date separate from a date of any federal election and that refer exclusively to nonfederal candidates participating in the nonfederal election, ballot referenda or initiatives scheduled for the date of the nonfederal election, or the date, polling hours and locations of the nonfederal election.

The Commission approved the text of the new rule and directed the Office of General Counsel to draft an appropriate Explanation and Justification that will also seek public comment on the interim final rule. The final rules were promulgated in the Federal Register (71 FR 8926) on February 22, 2006 and are available on the FEC website. The Interim Final Rule will be published and available in the Federal Register after final Commission approval of the Explanation and Justification.