Final rules on funds received in response to solicitations; allocation of expenses by PACs

On March 11, 2010, the Commission approved final rules regarding funds received in response to solicitations and the allocation of certain expenses by separate segregated funds (SSFs) and nonconnected political action committees (PACs). The rules were adopted in response to a decision by the United States Court of Appeals for the District of Columbia Circuit in EMILY’s List v. FEC (EMILY’s List). See the November 2009 Record.

Background

On September 18, 2009, the court of appeals held that Commission regulations at 11 CFR 100.57, 106.6(c) and 106.6(f) violated the First Amendment and also held that 100.57, 106.6(f) and one provision of 106.6(c) exceeded the Commission’s authority under the Federal Election Campaign Act (the Act). At the direction of the court of appeals, the U.S. District Court for the District of Columbia ordered that these rules be vacated. On December 29, 2009, the Commission published a Notice of Proposed Rulemaking (NPRM) in the Federal Register in which it sought public comment on the proposed removal of the rules vacated by the court. The Commission received two comments on the proposed rules, which are available on the Commission’s website. (Editor's note: Search REG 2009-02.)

Final rules

Funds received in response to solicitations

Commission regulations at 11 CFR 100.57 specified that funds provided in response to a communication were to be treated as contributions if the communications indicated that any portion of the funds received would be used to support or oppose the election of a clearly identified federal candidate. 11 CFR 100.57(a). All of the funds received in response to a solicitation that referred both to a clearly identified federal candidate and a political party, but not to any nonfederal candidates, were to be treated as contributions. 100.57(b)(1). Finally, if a solicitation referred to at least one clearly identified federal candidate and one or more clearly identified nonfederal candidate(s), then at least fifty percent of the funds received in response to that solicitation had to be treated as contributions. 100.57(b)(2). The regulation provided an exception for certain solicitations for joint fundraisers conducted between or among authorized committees of federal candidates and the campaign organizations of nonfederal candidates. 100.57(c).

The Commission removed 11 CFR 100.57 in its entirety because the court of appeals held that it is unconstitutional and that it exceeded the Commission’s statutory authority under the Act. 

Allocation of expenses

Commission regulations at 11 CFR 106.6 provided SSFs and nonconnected PACs making disbursements in connection with both federal and nonfederal elections with instructions as to how to allocate their administrative expenses and costs for federal and nonfederal activities.

The rule at 106.6(c) required nonconnected committees and SSFs to use at least fifty percent federal funds to pay for administrative expenses, generic voter drives and public communications that referred to a political party, but not to any federal or nonfederal candidates. The rule at 106.6(f) specified that nonconnected committees and SSFs had to pay for public communications and voter drives that referred to both federal and nonfederal candidates using a percentage of federal funds proportionate to the amount of the communication that was devoted to the federal candidates.

The Commission removed 106.6(c) and 106.6(f) in their entirety, as the court of appeals held that both provisions are unconstitutional. The deletion of the regulations apply both to nonconnected committees and to SSFs.

Additional information

The final rules were published in the Federal Register on March 19, 2010, and are effective on April 19, 2009. The Federal Register Notice is available on the Commission’s website.