NPRM on funds received in response to solicitations; allocation of expenses by certain committees

On December 17, 2009, the Commission approved a Notice of Proposed Rulemaking (NPRM) that would remove certain rules regarding funds received in response to solicitations and the allocation of certain expenses by separate segregated funds (SSFs) and nonconnected committees. The NPRM is in response to the United States Court of Appeals for the DC Circuit (DC Circuit Court) decision in EMILY’s List v. FEC, 581 F.3d 1 (DC Cir. 2009).

Background

On September 18, 2009, the DC Circuit Court of Appeals ruled that Commission regulations at 11 CFR 100.57, 106.6(c) and 106.6(f) violated the First Amendment. The court also ruled that 11 CFR 100.57 and 106.6(f), as well as one provision of 106.6(c), exceeded the Commission’s authority under the Federal Election Campaign Act (the Act). The D.C. District Court ordered that these rules are vacated. The Commission now proposes to remove these rules from its regulations.

Proposed Deletion of 11 CFR 100.57

According to paragraph (a) of section 100.57, funds received in response to a communication are treated as contributions if that communication indicates that any portion of the funds received would be used to support or oppose the election of a clearly identified federal candidate. Paragraph (b)(1) of section 100.57 provides that all funds received in response to a solicitation that refers to both a clearly identified federal candidate and a political party, but not to any nonfederal candidates, must to be treated as contributions. Paragraph (b)(2) states that if a solicitation refers to at least one clearly identified federal candidate and one or more clearly identified nonfederal candidates, a minimum of fifty percent of the funds received in response to the solicitation must be treated as contributions. In response to the court’s finding that these rules are unconstitutional and exceed the Commission’s statutory authority, the Commission proposes removing section 100.57 from its regulations.

Proposed deletion of 11 CFR 106.6(c) and 106.6(f)

Commission regulations at 11 CFR 106.6(c) require nonconnected committees and SSFs to use at least fifty percent federal funds to pay for administrative expenses, generic voter drives and public communications that refer to a political party but not to any federal or nonfederal candidates. Paragraph (f) requires nonconnected committees and SSFs to pay for public communications and voter drives that refer to both federal and nonfederal candidates using proportionate percentages of federal and nonfederal funds. Because the court found paragraphs (c) and (f) of section 106.6 unconstitutional and ordered them vacated, the Commission proposes removing these rules.

Interim final rule

In addition, through an interim final rule, the Commission is inserting a note in 11 CFR 100.57, 106.6(c) and 106.6(f), indicating that these regulations regarding solicitations and the allocation of certain expenses by separate segregated funds and nonconnected committees were vacated by court order. The Commission is first inserting these notes to give the public immediate guidance that these provisions were vacated by court order while the Commission completes the rulemaking process of implementing the EMILY’s List decision. The interim final rule took effect December 29, 2009.

Additional information

The NPRM was published in the December 28, 2009, Federal Register and is available on the FEC website at: http://transition.fec.gov/pdf/nprm/emilyslistrepeal/notice_2009-31.pdf. The interim final rule was published in the December 28, 2009, Federal Register and is available on the FEC web site at: http://transition.fec.gov/pdf/nprm/emilyslistrepeal/notice_2009-30.pdf.