FEC approves Final Rule on internet communication disclaimers, two Notices of Proposed Rulemaking, and advisory opinion

WASHINGTON – At its open meeting today, the Federal Election Commission approved a Final Rule and Explanation and Justification revising its disclaimer requirements for certain public communications placed for a fee on the internet. The Commission also approved Notices of Proposed Rulemaking on technological modernization and candidate salaries, seeking public comments on the definition of “public communication” and on proposed changes to the Commission’s regulations regarding the use of campaign funds by a candidate’s principal campaign committee to pay compensation to the candidate.

REG 2011-02: Draft Final Rule and Explanation and Justification for Internet Communications Disclaimers The Commission approved a Draft Final Rule and Explanation and Justification for Internet Communications Disclaimers to apply the Federal Election Campaign Act’s disclaimer requirements to general public political advertising on the internet. The Commission amended its regulation at 11 CFR 110.11 to require that disclaimers appear on certain public communications made over the internet. The new rule requires a clear and conspicuous disclaimer to appear on certain public communications placed for a fee on another person’s website, digital device, application, or advertising platform. Under the amended rule, some communications will be permitted to include an “adapted disclaimer” when a full disclaimer cannot be provided or would occupy more than 25 percent of the communication due to space or character constraints. The adapted disclaimer permits a person or person who paid for the communication to be identified by a commonly understood abbreviation or acronym, provided that the full disclaimer is available through a mechanism such as hover-over text, pop-up screens, scrolling text, rotating panels, or hyperlinks to a landing page. The final rule also revises the Commission’s definition of “public communication.” Chairman Allen J. Dickerson and Commissioner James E. “Trey” Trainor, III issued an Interpretive Statement. Commissioner Sean J. Cooksey issued a Concurring Statement.

REG 2013-01: Supplemental Notice of Proposed Rulemaking on Technological Modernization The Commission approved a Supplemental Notice of Proposed Rulemaking on Technological Modernization, seeking comments on whether its definition of “public communication” or “internet public communications” should also include internet communications that are “promoted for a fee” on another person’s website, digital device, application, or advertising platform. The Supplemental Notice will be published in the Federal Register at a future date.

REG 2021-01: Notice of Proposed Rulemaking for Candidate Salaries The Commission approved a Draft Notice of Proposed Rulemaking on Candidate Salaries, which seeks public comment on proposed changes to the Commission’s regulations regarding the use of campaign funds by a candidate’s principal campaign committee to pay compensation to the candidate. The Notice will be published in the Federal Register at a future date.

Advisory Opinion Request 2022-24 (Allen Blue) The Commission approved an advisory opinion in response to a request from Blue, who proposes to establish an irrevocable trust during his lifetime that would make contributions to candidates and political committees, among other recipients. The Commission concluded that the proposed trust may make contributions to federal candidates and political committees and indexed contribution limits in effect at the time that the trust makes a contribution to a candidate or political committee would apply. The Commission also concluded that contributions from the trust must be attributed both to the trust and to Blue if the trustees make contributions to “designated recipients” based on objective criteria set forth in the trust instrument. However, if the trustees have broad discretion to select recipients of contributions, the Commission concluded that the contributions need only be attributed to the trust and not to Blue or to the trustees. During the discussion, the Commission heard from Counsel for the requestor. The Commission received three comments on the draft advisory opinions.