Notice of proposed rulemaking on Federal Election Activity (2009)

On October 8, 2009, the Commission approved a Notice of Proposed Rulemaking seeking comment on certain aspects of federal election activity (FEA). The rulemaking is in response to the court of appeals’ 2008 holding in Shays v. FEC (“Shays III”) which found the Commission’s regulatory definitions of “voter registration activity” and “get-out-the-vote (GOTV) activity” contravened the purpose of the Bipartisan Campaign Reform Act of 2002 (BCRA) by creating loopholes that allowed the use of soft money for federal elections. The court remanded the regulations to the FEC “to issue regulations consistent with the Act’s text and purpose.”

Voter Registration Activity

Under current regulations, “voter registration activity” is defined as “contacting individuals by telephone, in person, or by other individualized means in order to assist them in registering to vote.” 100.24(a)(2). 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,” thus entirely excluding mass communications targeted to many 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, the Commission proposes amending the definition of “voter registration activity” to include “encouraging or assisting potential voters in registering to vote.” The proposed definition attempts to close both loopholes identified by the court and would cover activities such as:

• Providing an individual with a flier that reads “Register to Vote” and that includes the URL and address of the appropriate state or local office handling voter registration;
• Providing an individual with a voter registration form and verbally encouraging the recipient to fill out the form and submit it to the appropriate state or local office; or
• Mailing voter registration forms to individuals and encouraging them, in a cover letter, to fill out and submit the forms in advance of the registration deadline.

The Commission seeks comment on whether the proposed definition of “voter registration activity” adequately addresses the concerns of the Shays III court, including closing the loopholes identified by the court. The Commission also asks whether the proposed definition provides sufficient guidance as to which activities are covered and which are not.

GOTV

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.” The proposed definition would cover such activities as:

• Driving through a neighborhood in a sound truck that plays a message urging listeners to “Vote next Tuesday at the Main Street community center”;
• Mailing a flier to registered voters with the date of the election but not the location of polling places or their hours of operation; and
• Making telephone calls (including robocalls) reminding the recipient of the times during which the polls are open on election day.

The Commission seeks comment on whether the proposed definition of “GOTV activity” adequately addresses the concerns of the Shays III court, including closing the loopholes identified by the court. The Commission also asks whether the proposed definition provides sufficient guidance as to which activities are covered and which are not.

Exclusion for public communications relating to state and local elections

The Commission’s proposed definition of GOTV also specifically excludes any “public communication that refers solely to one or more clearly identified candidate for state or local office and notes the date of the election.” The Commission seeks comments on whether the proposed exclusion correctly implements the statutory definition.

Exemption for mere exhortations

The Shays III court seemingly acknowledged that exclusions to the definitions of “voter registration activity” and “GOTV activity” for “routine or spontaneous speech-ending exhortations” and “mere exhortations...made at the end of a political event or speech” would be permissible. Therefore, the Commission’s proposed definitions of voter registration activity and GOTV activity exempt speeches or events that include exhortations to vote or to register to vote that are incidental to the speech or event. This exemption would not inoculate speeches or events that otherwise qualify as FEA under the proposed definitions, such as a speech given 60 days before an election that provides listeners with information on how to register to vote but that also includes an exhortation to register to vote. The Commission asks if has properly established the scope of the proposed exemption and whether it provides clear guidance as to the activities exempted from the definitions of voter registration activity and GOTV activity.

Other issues

The Commission also asks whether it should explicitly supersede, in whole or in part, advisory opinion (AO) 2006-19 in light of Shays III and the proposed definitions for “voter registration activity” and “GOTV activity.” In Shays III, the court of appeals cited AO 2006-19 in which the Commission found that letters and pre-recorded telephone calls encouraging certain Democrats to vote in an upcoming election did not count as GOTV activity in part because the communications did not provide individualized assistance to voters. The court held that this definition of GOTV activity was contrary to the statute, but did not address whether communications made solely in connection with a nonfederal election may be excluded from the definition of GOTV activity or FEA. The Commission seeks comment on whether it should supersede AO 2006-19 and, if so, whether it should explicitly address the circumstances involved in the AO either in the regulation or its E&J.

Voter identification and GOTV activity in connection with a nonfederal election

In 2006, the Commission adopted an Interim Final Rule that revised the definition of “in connection with an election in which a candidate for federal office appears on the ballot.” Prior to the revision, the definition covered municipalities, counties and states that conducted separate, nonfederal elections. The Interim Final Rule excluded purely nonfederal voter identification and GOTV activity from the definition of “in connection with an election in which a candidate for federal office appears on the ballot.” It specifically excluded voter identification or GOTV activities that were “in connection with a nonfederal election that is held on a date separate from a date of any federal election” and that referred exclusively to:

• Nonfederal candidates participating in the nonfederal election, provided the nonfederal candidates are not also federal candidates;
• Ballot referenda or initiatives scheduled for the date of the nonfederal election; or
• The date, polling hours and locations of the nonfederal election.

This component of the “in connection with an election” sunsetted in 2007, and subsequent attempts by the Commission to reintroduce the rule were not completed. The Commission proposes adding 11 CFR 100.24(c)(5) to reintroduce much of the exclusion originally contained in the Interim Final Rule. The proposed rule would exclude from the definition of FEA any voter identification activities or GOTV activities that are “solely in connection with a nonfederal election held on a date separate from any federal election.” The proposed rule is based on the premise that voter identification and GOTV activity for nonfederal elections held on a different date from any federal election will have no effect on subsequent federal elections. The Commission asks whether voter identification and GOTV efforts in connection with a nonfederal election have any meaningful effect on voter turnout in a subsequent federal election, or otherwise confer benefits on federal candidates. The Commission specifically requests comments supplemented by empirical data.

Comments

All comments must be in writing and addressed to Amy L. Rothstein, Assistant General Counsel, and submitted on or before Friday, November 20, 2009. Comments may be submitted in electronic, facsimile or hard copy form. Commenters are strongly encouraged to submit comments electronically to ensure timely receipt and consideration. Electronic comments should be sent to FEAShays3@fec.gov. If the electronic comments include an attachment, the attachment must be in Adobe Acrobat (.pdf) or Microsoft word (.doc) format. Faxed comments should be sent to 202-219-3923 with hard copy follow-up. Hard copy comments and hard copy follow-up of faxed comments should be sent to the Federal Election Commission, 999 E Street, NW, Washington, D.C. 20463. All comments must include the full name and postal service address of the commenter or they will not be considered. The Commission will post comments on its website after the comment period ends. The Commission will hold a hearing on these proposed rules on Wednesday, December 16, 2009, at 9:30 a.m. in the Commission’s ninth floor hearing room, 999 E Street NW, Washington D.C. Anyone wishing to testify at the hearing must file written comments by the due date and must include a request to testify in the written comments.

Additional information

The Notice of Proposed Rulemaking on Federal Election Activity was published in the October 20, 2009, Federal Register and is available on the FEC website at http://transition.fec.gov/pdf/nprm/fea_definition/2009/notice_2009-22.pdf.