Notice of proposed rulemaking for hybrid communications

On May 3, 2007, the Commission approved a Notice of Proposed Rulemaking (NPRM) seeking public comment regarding the attribution of political party disbursements for communications that refer to a clearly identified federal candidate and also refer generically to other candidates of a political party without clearly identifying them (i.e., hybrid communications). The NPRM presents several alternative proposals to address the treatment of hybrid communications, including a proposal to address public communications that refer to multiple candidates of the same political party running for different federal offices.

Background

Current Commission regulations require that disbursements for a communication made on behalf of more than one clearly identified federal candidate be attributed based on the "benefit reasonably expected to be derived" by the candidates. 11 CFR 106.1(a). That benefit is determined by the proportion of space or time, or number of questions or statements, devoted to each clearly identified federal candidate as compared to the total space or time, or number of questions, devoted to all clearly identified federal candidates.

The Federal Election Campaign Act (the Act) and the Commission's current regulations do not explicitly provide for the attribution of disbursements for hybrid communications, except for communications made through a telephone bank. 11 CFR 106.8. The Commission has recently considered through its advisory opinion and audit processes the attribution of hybrid communications made by a political committee via a mass mailing and a radio or broadcast communication.(1) The Commission now proposes amending its regulations at 11 CFR 106.8 to address hybrid communications made through all types of public communications. The proposed rules would be divided into three sections, which would set out the scope of the rule, set out attribution formulas and describe how such disbursements should be treated under the contribution and coordinated party expenditure limits.

Scope

The proposed rules would apply to public communications(2) made by a national, state, district or local party committee, including national congressional campaign committees and convention committees. The rule would address the proper attribution for disbursements for such communications when the message includes a generic party reference and also refers to a single clearly identified federal candidate—for example, an ad that states "Show your support for Senator Smith and our other great Democratic candidates."

The proposed rule would also cover a hybrid communication that refers to two or more clearly identified federal candidates running for the same federal office. An alternative proposal would extend the scope to hybrid communications that refer to two or more clearly identified federal candidates of the same political party running for different federal offices.

The Commission seeks comments on all aspects of these proposals concerning the scope of the rules. The Commission also specifically seeks comments on whether it should apply a uniform attribution rule to all types of public communications, or whether there are communication-specific considerations that should deter the Commission from adopting such an approach.

Attribution

The current Commission regulation at 11 CFR 106.8 requires that a fixed 50 percent of the costs for a disbursement for a hybrid communication by means of a telephone bank be attributed to the federal candidate clearly identified in the communication. The Commission is now revisiting both the attribution method and percentage appropriate for all hybrid communications covered by the proposed rule, and proposes attributing disbursements for hybrid communications as follows:• If the candidate of the party committee making the communication is the only clearly identified federal candidate in the communication, the disbursement would be attributed between that candidate and the party committee.

• If the communication's only clearly identified candidate is the opponent of the political party's candidate, the disbursement would be attributed between the party committee making the disbursement and the party's candidate for the same federal office as the clearly identified candidate.
• If the communication clearly identifies at least two federal candidates running for the same federal office, only one of whom is a candidate of the political party making the communication, the disbursement would be attributed between the party committee and the party's clearly identified candidate.
• Under the alternative proposed rule, if the communication clearly identifies at least two federal candidates of the same political party running for different federal offices, the disbursement would be attributed among the party committee making the communication and the clearly identified federal candidates of that political party.

The proposed rule presents three alternative attribution formulas:

• A fixed percentage (proposed at 25 percent, 50 percent or 75 percent);
• A fixed percentage of 100 percent, requiring the entire amount of each disbursement for the communication to be attributed to the federal candidate of the political party making the communication; and
• The greater of either a fixed percentage (proposed at 25 percent, 50 percent or 75 percent), or a percentage based on space or time attribution.

The Commission seeks comments on these approaches, and specifically asks whether there are other factors that should be considered when determining the relative benefit reasonably expected to be derived from a given hybrid communication.

Treatment

The proposed rules would permit a party committee to treat disbursements for hybrid communications attributed to a federal candidate as an in-kind contribution to that candidate or a coordinated party expenditure on behalf of that candidate, subject to the appropriate limits. The proposed rule would also allow the federal candidate to reimburse the party committee for the costs attributable to him or her, so long as the reimbursement is made within a reasonable time.

The Commission invites comments on these proposals, including whether the proposed rule should require the prepayment of shared hybrid communication costs, or whether it should include a specific time limit for reimbursement.

Alternative proposal

As an alternative to the above proposals concerning amendments to 11 CFR 106.8, the Commission seeks comment on a proposal to amend 11 CFR 106.1 instead to include expenditures that contain generic party references and require that such expenditures be attributed:

• To each clearly identified federal candidate and political party according to the benefit that each may reasonably expect to derive; or
• According to a ratio based on the number of candidates referenced, including the generic party reference (under this alternative a communication that refers to "Senator Smith, Representative Jones and all the great candidates of the Democratic Party" would be attributed equally among the three references).

The Commission seeks comments on all aspects of this proposal.

Comments and hearing

The full text of this NPRM is available in the Federal Register (72 FR 26569) and on the FEC website at http://sers.fec.gov/fosers/. All comments must be submitted in writing and addressed to Ms. Amy L. Rothstein, Assistant General Counsel, by June 11, 2007. The Commission will hold a public hearing on the proposed rules on July 11, 2007. Individuals who wish to testify at the hearing must include a request to testify in their written comments.

Comments may be submitted via e-mail, facsimile or paper copy form. Comments by e-mail must be sent to hybridads@fec.gov. If e-mail comments include an attachment, the attachment must be in either Adobe Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed comments must be sent to the Federal Election Commission, 999 E Street, NW, Washington, D.C. 20463. All comments (including those by e-mail) must include the full name and postal service address of the commenter or they will not be considered.

1) See AO 2006-11 and the Report of the Audit Division on Bush-Cheney '04, Inc. and the Bush Cheney '04 Compliance Committee, Inc., approved March 22, 2007.

2) A "public communication" includes broadcast, cable, and satellite communications; newspapers and magazines; outdoor advertising facilities; mass mailings; telephone banks; and Internet communications placed for a fee on another person’s web site. 11 CFR 100.26.