NPRM on coordinated communications

On December 8, 2005, the Commission approved a Notice of Proposed Rulemaking (NPRM) presenting seven alternatives for revising the so-called “content prong” of the three-part regulatory test for coordinated communications. 11 CFR 109.21(c)(4). The Commission is undertaking this rulemaking to comply with the Court of Appeals ruling in Shays v. FEC that invalidated one aspect of the content prong.

Background

As part of its rulemakings to implement the Bipartisan Campaign Reform Act of 2002 (BCRA), the Commission devised a three-part test for determining whether a communication has been coordinated with a candidate or party, and thus results in an in-kind contribution. The test considers:

• The source of payment;
• The content of the communication; and
• The conduct of those involved.

To be considered coordinated, the communication must satisfy all three prongs of the coordinated communication test.

In Shays, the Court of Appeals invalidated one aspect of the content prong of the test. To satisfy the content prong a communication must either be:

• An electioneering communication;
• A republication of candidate materials;
• An express advocacy message; or
• A public communication that refers to a political party or a clearly identified federal candidate and is publicly distributed to voters in his/her district within 120 days of the election.

The appeals court found the last of these invalid, concluding that “the Commission offered no persuasive justification for . . . the 120-day timeframe and the weak restraints applying outside of it.”

Proposals

In response to the court’s decision, the Commission published an NPRM that presents seven alternatives to address the court’s concerns.

1) Retain current 11 CFR 109.21(c)(4) but revise the Explanation and Justification to further justify the 120-day timeframe.

2) Adopt a different timeframe.

3) Eliminate the time restriction so that any public communication that refers to a political party or a clearly identified federal candidate and is directed to voters in the relevant jurisdiction would satisfy the content prong of the coordinated communication test, regardless of when it is distributed.

4) Replace the content standard containing the 120-day timeframe with a test that would capture only public communications that “promote, support, attack or oppose” a political party or a clearly identified federal candidate and that are directed to voters in the relevant geographical area.

5) Eliminate the 120-day time restriction for political committees so that any public communication made by a political committee that refers to a political party or a clearly identified federal candidate and is directed to voters in the relevant geographical area, would be a coordinated communication. The 120- day window would continue to apply to any person who is not a political committee.

6) Replace the content standard containing the 120-day time frame with a standard covering public communications made for the purpose of influencing a federal election. This standard would broaden the definition of public communication to include some public communications that are made more than 120 days before an election or do not refer to a political party or a clearly identified federal candidate.

7) Eliminate the content prong and replace it with the requirement that the communication be a public communication as defined in 11 CFR 100.26. This alternative assumes that if an organization or person coordinates with a candidate, then the communication has inherent value to the candidate. Under this alternative, any public communication that satisfies the conduct prong of the coordinated communication test would be deemed to have been made for the purpose of influencing a federal election and thus be a “coordinated communication,” regardless of its timing or content.

Although not included in the Shays ruling, the Commission is also evaluating the “conduct prong” to determine how the test works in practice, and will also look at its definition of “party coordinated communication,” since it has a content prong that is substantially similar to that in “coordinated communications.” 11 CFR 109.21(c), (d), (g).

Other issues

Other issues raised by the Commission include: specifying how many persons must be able to receive a communication to be classified as a coordinated communication; federal candidate endorsements of, and solicitations of funds for, other federal candidates, nonfederal candidates or state ballot initiatives; and proposed clarification for application of 120-day timeframe requirement.

Comments

The NPRM was published in the December 14, 2005, Federal Register (70 FR 73946) and is available on the FEC website at http://www.fec.gov. The Commission strongly encourages comments, especially those that include empirical data.

All comments must be received on or before January 13, 2006. Comments must be in writing, must be addressed to Mr. Brad C. Deutsch, Assistant General Counsel, must be submitted in email, fax, or paper copy form and must include the full name and postal address of the commenter. Commenters are strongly encouraged to submit comments by email at either coordination@fec. gov or through the Federal eRegulations Portal at www.regulations.gov. Attachments must be either Adobe Acrobat or Microsoft Word. Any comments not conforming to these standards will not be considered. Faxed comments should be sent to (202) 219-3923, with a printed copy follow-up to ensure legibility. Mailed comments should be sent to the Federal Election Commission, 999 E Street, NW, Washington, DC 20463.

A public hearing on the proposed rules will be held on January 25 or 26, 2006, or both at 9:30 a.m. at the FEC.