Final rules on participation by federal candidates and officeholders at nonfederal fundraising events

On April 29, 2010, the Commission approved final rules addressing participation by federal candidates and officeholders at nonfederal fundraising events. These rules were promulgated in response to the decision in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (Shays III), which invalidated the portion of the old regulations that permitted federal candidates and officeholders to speak at state, district or local party committee fundraising events “without restriction or regulation.” 11 CFR 300.64(b).

Scope

The final rule covers participation by federal candidates and officeholders at nonfederal fundraising events, which are those fundraising events that are in connection with an election for federal office or any nonfederal election where funds outside the amount limitations and source prohibitions of the Federal Election Campaign Act (the Act) are solicited. The rule addresses participation at the fundraising event and in publicizing the event. It does not cover fundraising events at which only funds within the limitations and prohibitions of the Act are solicited or those in which funds outside the limitations and prohibitions of the Act are not solicited but are, nevertheless, received. 11 CFR 300.64(a).

Participation at nonfederal fundraising events

A federal candidate or officeholder may attend, speak at and be a featured guest at a nonfederal fundraiser. 11 CFR 300.64(b)(1). He or she is also free to solicit funds at the fundraising event, provided that the solicitation is for funds that are within the limitations and prohibitions of the Act and are consistent with state law. When the federal candidate or officeholder makes such a solicitation, he or she may limit the solicitation by displaying at the fundraiser a clear and conspicuous written notice, or by making a clear and conspicuous oral statement, that the solicitation is not for Levin funds (when applicable) and does not seek funds in excess of federally permissible amounts or from corporations, labor organizations, national banks, federal government contractors and foreign nationals. 11 CFR 300.62(b)(2). If the federal candidate or officeholder chooses to make an oral statement, it need only be made once.

Publicity for nonfederal fundraising events

New 11 CFR 300.64(c) addresses the publicity for nonfederal fundraisers including, but not limited to, ads, announcements or pre-event invitation materials, regardless of format or medium of the communication. If the publicity does not contain a solicitation or solicits only federally permissible funds, then the federal candidate or officeholder (or agent of either) is free to consent to the use of his or her name or likeness in the publicity for the nonfederal fundraiser. 11 CFR 300.64(c)(1)-(2). If the publicity contains a solicitation for funds outside the limitations or prohibitions of the Act or Levin funds, the federal candidate or officeholder (or agent of either) may consent to the use of his or her name or likeness in the publicity, only if: 

• The federal candidate or officeholder is identified in any other manner not specifically related to fundraising, such as a featured guest, honored guest, special guest, featured speaker or honored speaker; and 
  
• The publicity includes a clear and conspicuous oral or written disclaimer that the solicitation is not being made by the federal candidate or officeholder.
  

11 CFR 300.64(c)(3)(i). Examples of disclaimers are provided in the regulation at 11 CFR 300.64(c)(3)(iv). However, a federal candidate or officeholder (or agent of either) may not agree to the consent of his or her name or likeness in publicity that contains a solicitation of funds outside the limitations and prohibitions of the Act or of Levin funds if:

• The federal candidate or officeholder is identified as serving in a manner specifically related to fundraising, such as honorary chairperson or member of a host committee; or 
  
• Is identified in the publicity as extending the invitation to the event; or 
  
• The federal candidate or officeholder signs the communication. 
  

These restrictions apply even if the publicity contains a disclaimer. 11 CFR 300.64(c)(3)(v). In addition, the federal candidate or officeholder is prohibited from disseminating publicity for nonfederal fundraisers that contains a solicitation of funds outside the limitations or prohibitions of the Act or of Levin funds. 11 CFR 300.64(c)(3)(vi).

Additional information

The final rules and Explanation and Justification were published in the May 5, 2010, Federal Register (75 FR 24375). They are available on the Commission’s website at http://www.fec.gov/law/cfr/ej_compilation/2010/notice_2010-11.pdf. The rules are effective June 4, 2010.