Notice of proposed rulemaking on the definition of “solicit” and “direct”

On November 15, 2005 the Commission held a public hearing concerning proposed changes to its definitions of the terms “solicit” and “direct” as they relate to the raising and spending of federal and nonfederal funds. The rulemaking stems from court decisions in Shays v. FEC that invalidated the existing regulatory definitions of those terms.

Background

In promulgating regulations to implement provisions of the newly enacted Bipartisan Campaign Reform Act of 2002 (BCRA), the Commission defined “to solicit” as “to ask that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.” The Commission defined “to direct” as “to ask a person who has expressed an intent to make a contribution, donation, or transfer of funds, or to provide anything of value, to make that contribution, donation, or transfer of funds, or to provide that thing of value.”

The primary House sponsors of the BCRA—Representatives Shays and Meehan—successfully challenged those definitions (and several other BCRA regulations) in court. In its decision upholding the district court’s invalidation of the rules, the Court of Appeals held that the Commission’s definitions of “to solicit” and “to direct” were invalid because they violated Congress’s intent. As to the term “solicit,” the Court of Appeals concluded that by limiting “solicit” to explicit, direct requests for money, and thus permitting indirect requests for funds, the Commission’s definition allows candidates and parties to circumvent BCRA’s prohibitions and restrictions on nonfederal funds and thereby violates “Congress’s intent to shut down the soft-money system.” As to the term “direct,” the Court of Appeals held that the Commission’s definition of “direct” was invalid because it effectively defined “direct” as “ask” and thus, like the definition of “solicit” and contrary to Congress’s intent, limited “direct” to explicit requests for funds.

Proposed revisions to the definition of “solicit”

To comply with the court decisions in Shays, the Commission published a Notice of Proposed Rulemaking (NPRM) on September 28, 2005. (70 FR 56599) The proposed rules would revise the definition of “solicit” to mean “to ask, suggest or recommend that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value, whether it is to be made or provided directly or through a conduit or intermediary. A solicitation is a written or oral communication, whether explicit or implicit, construed as a reasonable person would understand it in context.” See proposed 11 CFR 300.2(m). By including the terms “suggest” and “recommend” and by incorporating a reasonable person standard into the revised definition, “solicit” would cover not only communications that explicitly and directly request contributions or donations, but also communications that implicitly or indirectly attempt to motivate another person to make a contribution or donation.

The Commission sought comment on whether it should modify the proposed definition of “solicit” to include solicitations conveyed largely through conduct.

The NPRM also invited comments on several alternatives to the proposed definition of “solicit.” One alternative would adopt the definition proposed in the NPRM but without a “reasonable person standard.” Another would start from the current definition and modify it to make clear that the regulation applies not only to explicit requests or communications but also to indirect, implied requests for contributions or donations. A third alternative would preserve the current definition of “solicit” but would revise the Explanation and Justification (E&J) for the rules to clarify that the current definition includes communications that are implicit or indirect requests for contributions or donations. Yet another alternative would leave the term “to solicit” undefined and allow the meaning to develop on a caseby-case basis through the advisory opinion and enforcement processes.

Fundraisers

The Commission also invited comments as to whether advisory opinions that allow a federal candidate or officeholder to attend and participate (with various restrictions and disclaimer requirements) at fundraising events (other than events held by a state, district or local party) where nonfederal funds are being raised are inconsistent with BCRA’s language or Congressional intent. See Advisory Opinions 2003- 03, 2003-05 and 2003-36.

Examples of solicitation

The Commission is also considering whether to incorporate into the E&J or the regulation a set of examples describing communications that would and would not be considered solicitations.

Proposed revisions to the definition of “direct”

The Commission proposes to revise 11 CFR 300.2(n) by defining “to direct” as “to guide a person who has expressed an intent to make a contribution, donation, transfer of funds, or otherwise provide anything of value, by identifying a candidate, political committee or organization, for the receipt of a contribution, donation, transfer of funds, or thing of value. The contribution, donation, transfer or thing of value may be made or provided directly or through a conduit or intermediary.” Under the proposed rule, “direct” would encompass situations where a person has already expressed an intent to make a contribution or donation that would advance a particular interest, but lacks the identity of an appropriate candidate or organization to which to make that contribution or donation. The act of direction would consist of providing the contributor with the identity of an appropriate recipient for the contribution or donation.

Public hearing

At its November 15 public hearing, the Commission heard testimony from witnesses supporting and opposing the proposed rules.

Joseph Sandler, representing the Democratic National Committee, testified in favor of the proposed definitions of “solicit” and “direct.” Mr. Sandler urged the Commission to make clear in the regulation that merely expressing support or praise for an organization or entity does not, by itself, constitute soliciting funds for that entity. Mr. Sandler cautioned against including nonverbal conduct in the definition of solicit.

Don Simon, representing Democracy 21, Larry Noble, representing the Center for Responsive Politics, and Paul Ryan, representing the Campaign Legal Center, also testified in support of the Commission’s proposed definition of “solicit” but asked the Commission to incorporate the “conduct” element proposed in the NPRM. Mr. Ryan urged the Commission to include in the E & J the examples of communications that would and that would not constitute a solicitation from the NPRM but to revise these examples to also reflect the elements of context and conduct. As to the definition of “direct,” Mr. Ryan suggested that the proposed definition be modified by deleting the phrase “who has expressed an intent.”

Marc Elias, representing the Democratic Congressional Campaign Committee and the Democratic Senatorial Campaign Committee, William McGinley, representing the National Republican Senatorial Committee and Donald McGahn, representing the National Republican Congressional Committee, filed joint comments supporting the proposed definition of “direct” but opposing the proposed definition of “solicit.” All three testified in support of an alternative contained in the NPRM that would retain the current definition of “solicit” but clarify in the E & J that the Commission will apply the rule to indirect and implied requests as well. All three opposed the inclusion of non-verbal conduct in the definition of “solicit.”

Both the NPRM and the comments it generated are available on the FEC website.