Hearing on proposed rules on hybrid ads

The Commission held a public hearing on July 11, 2007, to address proposed rules governing political party committees’ attribution of payments for “hybrid communications.” Individuals testified before the Commission in response to its Notice of Proposed Rulemaking (NPRM), published in the May 10, 2007, Federal Register, which defines hybrid communications as communications that refer to one or more clearly identified federal candidates and also generically reference other candidates of a political party (i.e., John Doe and our Democratic team). See the June 2007 Record, page 1.

Commenters¹ generally urged the Commission to create a clear rule that would allow party committees flexibility in how they spend their money to benefit their candidates. Most commenters agreed that the Commission should use a “time/space” attribution method to attribute the costs of a hybrid communication. Under the current Commission time/space rule, costs of an expenditure made on behalf of more than one clearly identified federal candidate are attributed to each such candidate “according to the benefit reasonably expected to be derived.” 11 CFR 106.1(a). In the case of a publication or broadcast communication, the amount of the cost attributed to each candidate is determined by the proportion of space or time devoted to each candidate as compared to the total space or time devoted to all candidates.

Stephen Hoersting spoke in favor of a time/space allocation method that would allow committees to be flexible in the selection of the text or content of communications they produced. He argued that if the Commission promulgates a rule on hybrid communications, it should amend its time/space rule at 11 CFR 106.1(a) to include hybrid communications so that the rule would allow hybrid communications to be attributed by means of a time/space ratio. Further, he noted that the Commission should evaluate attribution of such communications using objective criteria. He also stated that even if the Commission chose not to amend 106.1(a), existing regulations may already permit hybrid communications to be attributed in this manner.

Thomas Josefiak, Sean Cairncross and Donald McGahn also argued that the Commission did not need to create a new rule to address hybrid communications because the necessary regulation already exists in the Commission’s time/space rule at 11 CFR 106.1(a). However, Mr. Josefiak and Mr. Cairncross agreed that if the Commission chose to adopt a new regulation, it should amend the current Commission rule at 11 CFR 106.8 for attributing the costs of phone banks to include all types of communications, including print and broadcast communications. The phone bank rule states that if a party committee’s phone bank communication refers only to one clearly identified federal candidate and refers only generically to other candidates of that candidate’s political party, then 50 percent of the cost of the phone bank must be attributed to the clearly identified federal candidate. The remaining 50 percent of the cost should be attributed to the party committee. 11 CFR 106.8.

Mark Elias and Brian Svoboda also believed that the Commission should extend the rule regarding phone banks to cover all other types of communications. They stated in written comments submitted to the Commission that, “the revised rule should provide that 50 percent of the disbursements for a communication that refers to a clearly identified federal candidate, and that also refers generically to a party or to its candidates, are not attributable to any federal candidate.”

Mr. McGahn urged the Commission not to adopt an arbitrary 50 percent rule, stating that there may be some instances where the party committee may benefit more from a hybrid communication than the candidate(s) who is clearly identified. He spoke in favor of using a time/space ratio to determine the benefit reasonably expected to be derived, rather than a fixed percentage. However, Mr. Josefiak and Mr. Cairncross were not opposed to the 50 percent attribution method set out in the Commission’s phone bank rule at 11 CFR 106.8.

Neil Reiff stated that the Commission had established a workable baseline for hybrid communications in AO 2006-11 (Washington Democratic State Central Committee), which addressed the attribution of costs of a hybrid communication by means of a mass mailing. In that AO, the Commission determined that no less than 50 percent of the costs of a mass mailing containing a generic party reference and a reference to one or more clearly identified federal candidates were to be attributed to the clearly identified federal candidates. The percentage attributed to the candidate(s) could be greater than 50 percent based on a time/space analysis of the content of the mass mailing, but the percentage could not be less than 50 percent of the cost.

In addition, some commenters discussed the NPRM’s characterization of a “generic party reference.” For example, Mr. Reiff suggested that the term “generic party reference” should be defined as an actual reference to the name or nickname of a political party. He suggested that the Commission borrow from its current regulation defining “generic campaign activity” as a public communication that promotes or opposes a political party and does not promote or oppose a clearly identified federal candidate or a nonfederal candidate. 11 CFR 100.25.

The full text of the NPRM, written comments in response to the NPRM and a transcript of the hearing are available on the FEC web site at http://transition.fec.gov/law/ law_rulemakings.shtml#hybrid. Audio files of the public hearings are available at http://transition.fec.gov/pdf/nprm/hybrid/071107_hearing_schedule.shtml.

¹ Commenters at the public hearing included Stephen M. Hoersting, Center for Competitive Politics; Thomas J. Josefiak, Republican National Committee; Neil P. Reiff, Democratic National Committee; Sean Cairncross, National Republican Senatorial Committee; Marc E. Elias, Democratic Senatorial Campaign Committee; Donald F. McGahn, II, Illinois Republican Party and National Republican Congressional Committee; and Brian G. Svoboda, Democratic Congressional Campaign Committee