Hearing on proposed Federal Election Activity (FEA) rules
The Commission held a public hearing on Tuesday, December 16, 2009, to address proposed rules on certain aspects of federal election activity (FEA) definitions. The proposed rules would redefine "voter registration activity" and "get out the vote activity" ("GOTV activity"). The proposed changes are in response the Court of Appeals for the District of Columbia Circuit's 2008 finding in Shays v. FEC ("Shays III") that the Commission's regulatory definitions of those terms contravened the intent of the Bipartisan Campaign Reform Act of 2002 (BCRA) by creating loopholes that allowed for the use of nonfederal funds for federal elections.
Background
Current Commission regulations at 100.24(a)(2) define "voter registration activity" as "contacting individuals by telephone, in person, or by other individualized means to assist them in registering to vote." The court of appeals in Shays III found this definition to be deficient for two reasons. First, it requires that the party contacting potential voters actually "assist" them in voting or registering to vote, thus excluding efforts that actively encourage people to vote or register to vote and dramatically narrowing which activities are covered. Second, the definition requires the contact to be "by telephone, in person, or by other individualized means," therefore excluding mass communications targeted large numbers of people. The court concluded that these elements of the definition created loopholes in violation of BCRA's purpose and allowed the use of soft money to influence federal elections. To comply with the court's decision and close the loopholes, the Commission published a Notice of Proposed Rulemaking (NPRM), in the October 20, 2009, Federal Register. In that publication, the Commission proposed amending the definition of "voter registration activity" to include "encouraging or assisting potential voters in registering to vote."
Commission regulations define GOTV activity as "contacting registered voters by telephone, in person or by other individualized means to assist them in voting." 100.24(a)(3). As it did with the definition of voter registration activity, the court of Appeals in Shays III found the definition of GOTV activity to be deficient in that it required actual assistance by individualized means, thereby creating two loopholes in the definition that violated BCRA's purpose. The Commission proposes revising the definition of GOTV activity by eliminating the "assistance" and "individualized means" requirements from the current definition. Specifically, the Commission proposes redefining GOTV activity as "encouraging or assisting potential voters to vote."
Hearing
Seven individuals (1) testified before the Commission in response to the NPRM. Neil Reiff and Joseph Sandler of Sandler, Reiff and Young, P.C., testified that the terms voter registration activity and GOTV activity were not meant to cover all types of activity by state or local party committees. If the Commission expands the definition of these two terms, Mr. Reiff argued, the regulations could cover any and all activities undertaken by party committees and associations of state and local candidates. Karl Sandstrom, speaking on behalf of the Association of State Democratic Chairs, also argued that the Commission's proposed rules would federalize much activity undertaken by nonfederal political committees.
Brian Svoboda, on behalf of the Democratic Legislative Campaign Committee, said that the proposed redefinitions of GOTV activity and voter registration activity would restrict nonfederal activity that does not have the purpose or effect of influencing federal elections. He said the rules would disproportionally affect associations of state and local candidates, which do not have the ability to raise and spend Levin funds — a category of funds raised by state and local party committees that may include donations from sources ordinarily prohibited by federal law. He suggested defining the terms as communications intended to persuade people to vote a certain way. He also argued that the new definitions should not encompass communications aimed at increasing popular support for nonfederal candidates.
Ron Nehring of the Republican National Committee's Republican State Chairmen's Committee and his counsel, John Phillippe of the Republican National Committee, testified before the Commission that state and local party committees are focused on electing state and local candidates largely through grassroots activity. Mr. Nehring said voter registration and GOTV activities make up a substantial part of operations at the state party and county committee level. He expressed concern that the Commission's proposed regulations would federalize some activity that is focused on state and local candidates and state ballot measures.
Paul Ryan of the Campaign Legal Center supported the rules proposed in the NPRM. He said that the proposed definitions of voter registration activity and GOTV adequately address the court's concerns and close the loopholes identified by the court. Mr. Ryan said the proposed rules provide adequate guidance regarding which activities would be covered by the redefined terms.
The full text of the NPRM, written comments in response to the NPRM, audio files of the hearing and a transcript of the hearing are available on the FEC website at https://transition.fec.gov/pages/hearings/shaysfea09hearing.shtml.
(1) Witnesses at the public hearing included: Karl Sandstrom, Association of State Democratic Chairs; Paul Ryan, Campaign Legal Center; Brian Svoboda, Democratic Legislative Campaign Committee; Neil Reiff and Joseph Sandler, Sandler, Reiff and Young, P.C.; Ron Nehring, Republican State Chairmen's Committee of the RNC and the California Republican Party, and his counsel John Phillippe, RNC.