Notice of proposed rulemaking on FEA and nonfederal elections

On May 31, 2007, the Commission approved a Notice of Proposed Rulemaking (NPRM) requesting comments on a proposal to exclude from the definition of federal election activity (FEA) certain voter identification and get-out-the vote activities that are conducted exclusively for nonfederal elections. The proposed rule would make permanent, with certain minor revisions, an Interim Final Rule published in March 2006. The interim rule will expire on September 1, 2007.

Background

The Bipartisan Campaign Reform Act of 2002 (BCRA) requires state, district and local party committees to pay for certain activities—FEA— entirely with federal funds, or with a combination of federal and Levin funds. The FEA requirements apply to all state, district and local party committees, regardless of whether they are registered with the FEC. Voter identification, get-out-the-vote activity (GOTV activity) and generic campaign activity (collectively, “Type II FEA”) constitute FEA only when they are conducted “in connection with an election in which a candidate for Federal office appears on the ballot.” Under Commission regulations, such activities are considered to be in connection with an election in which a federal candidate appears on the ballot when they are undertaken during the period of time beginning on the earliest filing deadline for primary ballot access in each particular state and ending on the date of the general election, up to and including any runoff date. 2 U.S.C. §431(20)(A)(ii) and 11 CFR 100.24(a)(1)(i). For states that do not hold primaries, the period begins on January 1 of each even-numbered year, and for special elections the period begins on the date the special election is set and ends on the date of the election. 11 CFR 100.24(a)(1)(ii).

Proposed rule

Because Type II FEA is limited to activities in connection with an election in which a federal candidate is on the ballot, the Commission does not interpret the FEA restrictions as applying to voter identification and GOTV activities that are exclusively in connection with nonfederal elections. Thus, the Commission published an Interim Final Rule last year to exempt from the definition of FEA certain voter identification and GOTV activities and communica-tions conducted exclusively in connection with a nonfederal election held on a date separate from the date of any federal election.

The rule proposed in the NPRM would make the Interim Final rule’s exemption permanent with some minor changes. The proposed rule exempts voter identification or GOTV activity that is:

• Solely in connection with a nonfederal election held on a date separate from any federal election; and
• Involves a communication that refers exclusively to nonfederal candidates (who are not also federal candidates) participating in the nonfederal election, ballot referenda or initiatives included in the nonfederal election, or the date, hours or polling locations of the nonfederal election.

The Commission seeks public comment on whether nonfederal candidates and state, district or local party committees conducted voter identification and GOTV activities under the Interim Rule’s exemption and invites commenters to suggest modifications of the proposed rule based on their experience, if any, with the Interim Final Rule.

The Commission also specifically seeks comments on the exemption’s two requirements. With regard to requirement that the nonfederal election be held on a wholly separate date from any federal election, the Commission seeks comments, especially in the form of empirical data, on whether voter identification and GOTV activities in connection with a nonfederal election have a measurable effect on voter turnout in a subsequent federal election, or otherwise benefit federal candidates. Should the exemption take into account the proximity of the next federal election? Are there conditions under which an activity in connection with a nonfederal election held on the same date as a federal election should also be exempted from the Type II FEA periods? With respect to the second requirement, the Commission seeks comments on whether these requirements are described clearly in the proposed rule and whether the list of permissible subjects should be narrowed or expanded.

The proposed rule does not exempt generic campaign activity. The Commission notes that some generic campaign activity could be presumed to be in connection with both federal and nonfederal elections and asks whether and how it should include generic campaign activity in the final rule. The Commission also seeks comments on its approach to the treatment of voter lists under these exemptions. While voter identification is included in the proposed rule, the initial purchase or acquisition of voter lists generally would not meet the proposed exemption’s requirements. The Commission seeks comments on this approach.

Finally, the NPRM notes that even under the proposed rule, the use of nonfederal funds would be limited for activities that fall within this exemption, but also qualify as allocable voter drive activity. The Commission additionally seeks comments on this application of the allocation rules.

Comments

The full text of the NPRM was published in the June 7, 2007, Federal Register and is available on the FEC web site at http://transition.fec.gov/pdf/nprm/fea_definition/2007/notice_2007-14.pdf. Comments on this proposal must be received on or before July 9. Comments must be submitted in writing via email, fax or paper copy form and addressed to Mr. Ron Katwan, Assistant General Counsel. Commenters are strongly encouraged to submit comments by email or fax to ensure timely receipt and consideration. Email comments should be sent to fea.nonfederal@fec.gov. Faxed comments should be sent to 202-219- 3923, with a paper copy follow-up. Paper copy comments should be sent to the Federal Election Commission, 999 E St. NW., Washington, DC 20463. All comments must include the full name and postal service address of the commenter. The Commission will post comments on its web site after the comment period ends.