Petition for rulemaking on disclosure of electioneering communications (2012)

On October 18, 2012, the Commission approved a Notice of Availability for a Petition for Rulemaking from the Center for Individual Freedom (CFIF). In that petition, the CFIF urges the Commission to revise its regulations on the reporting of electioneering communications at 11 CFR 104.20(c)(8) and (9). Public comments are due by December 26, 2012.

Petition for rulemaking

CFIF petitions the Commission to conduct a “narrow and focused rulemaking" to update the Commission’s regulations on reporting of electioneering communications to apply “the electioneering communications disclosure obligations of corporations and labor unions to any form of electioneering communication.”

In 2007, the Supreme Court in FEC v. Wisconsin Right to Life (WRTL II) held that corporations and labor organizations were free to make electioneering communications, provided that they were not the “functional equivalent of express advocacy.” In December 2007, the Commission amended its electioneering communications regulations to conform to the Court’s ruling.

In 2010, the Supreme Court in another case, Citizens United v. FEC, expanded its holding in WRTL II to permit corporations to engage in any uncoordinated electioneering communication, including those that were the functional equivalent of express advocacy. The Commission’s electioneering disclosure regulations were not amended following that decision and therefore still refer to electioneering communications made “pursuant to 11 CFR 114.15,” which is the post-WRTL II regulation permitting corporate and union electioneering communications that are not the functional equivalent of express advocacy. Further, the CFIF states, in a ruling in Van Hollen v. FEC, the U.S. District Court for the District of Columbia “resurrected a 2003 version of the regulation that…did not account for the critical developments in either WRTL II or Citizens United.” [FN1]

CFIF requests that the Commission initiate a rulemaking to account for any electioneering communication made by a corporation or labor organization, thereby removing the distinction between electioneering communications that are the functional equivalent of express advocacy and those that are not. Specifically, CFIF requests that the Commission delete the phrase “pursuant to 11 CFR 114.15” from the regulations at 11 CFR 104.20(c)(8) and (9).

Public comment period

The Commission requests public comment on CFIF’s Petition for Rulemaking. Statements in support of or in opposition to the Petition must be submitted on or before December 26, 2012, and all comments must be in writing. Comments may be submitted electronically via the Commission’s website at sers.fec.gov/fosers (click “Submit Comments on Ongoing Rulemakings” or look up REG 2012-01), and commenters are encouraged to submit their comments electronically to ensure timely receipt and consideration. If submitted on paper, comments must be sent to: Federal Election Commission, Attn: Robert M. Knop, Assistant General Counsel, 999 E Street, NW, Washington, DC 20463. All comments must include the full name and postal service address of a commenter, and of each commenter if filed jointly, or they will not be considered. Comments will be posted on the Commission’s website at the conclusion of the comment period.

Stay of pending court case

In light of the Commission’s publication of the Notice of Availability, the U.S. District Court for the District of Columbia stayed proceedings in Van Hollen v. FEC, pending the Commission’s consideration of the Petition for Rulemaking by CFIF. The court ordered that the Commission file a status report by December 21, 2012.

1. FOOTNOTE: On September 18, 2012, the U.S. Court of Appeals for the District of Columbia Circuit reversed the order of the District Court in Van Hollen and remanded the case with instructions to refer the matter to the Commission for further consideration. Subsequently, the district court asked the Commission to file a status report to inform the court whether it would pursue a rulemaking to revise its regulations or continue to defend its existing regulations. On October 4, 2012, the Commission filed a status report informing the court that it planned to defend its current rules.

Resources:

• Federal Register Notice of rulemaking petition: Electioneering communications reporting (October 26, 2012) [PDF]
• Text of petition for rulemaking from the Center for Individual Freedom [PDF]