Public hearings on coordinated communications
On January 25 and 26, 2006, the Commission held public hearings concerning proposed changes to its coordinated communications regulations, resulting from the court decisions in Shays v. FEC. Specifically, the Court of Appeals in Shays found that the Commission had not sufficiently justified the 120-day time frame contained in the content prong of its three-prong coordination test. In response, the Commission published a Notice of Proposed Rulemaking (NPRM) seeking comments on possible changes to the time frame and to other aspects of the content prong, as well as possible amendments to the conduct and payment prongs of the coordination rules
Commenters¹ agreed that the Commission should create a brightline regulation and balance effective regulations with First Amendment rights. There was disagreement, however, as to the time frame those regulations should cover.
Some who appeared, such as Jan Baran and Joseph Sandler, preferred to keep the current 120-day time frame and revise the Explanation and Justification to reflect evidence that most communications with the purpose of influencing a federal election are distributed within 120 days of a primary or general election. Those distributed outside that period tend to be financed by candidates’ own campaigns. Others argued that the 120-day time frame is inadequate because some ads distributed more than 120 days before a federal election are likely to be for the purpose of influencing that federal election. Therefore, if those ads are paid for by someone other than a candidate and are coordinated with a candidate, they should be regulated as coordinated communications.
Other commenters, such as Robert Bauer, Cleta Mitchell and Donald McGahn, sought to apply the 30- and 60-day periods that currently govern electioneering communications. They argued that regulating communications during the 30-day period before a primary election and the 60-day period before a general election best reflected congressional intent to restrict only communications made for the purpose of influencing an election. Others argued that there were deficiencies with this proposal because many such communications fall within the gap between the proposed primary and general election periods and in the time frames prior to these periods.
Democracy 21, The Campaign Legal Center and The Center for Responsive Politics offered an alternative “tiered system” of regulation that focuses on the identity of the entity paying for the communication and the content and timing of the communication itself. They argued that their proposal best dealt with groups with different objectives and levels of participation and also prevented circumvention of the law. Others felt this proposal was confusing and complicated.
Many commenters focused on the lack of evidence regarding when candidates and others distribute communications that are election-related. Given that only one cycle has passed since the current coordinated communication rules were instituted, some felt that meaningful trend analysis was impossible. Karl Sandstrom noted that even if trends could be found, the regulations that are promulgated could influence the behavior that follows, indicating that it would be difficult to base a decision on such evidence.
Democracy 21, The Campaign Legal Center and the Center for Responsive Politics compiled an extensive list of ads that were run in the previous election cycle, but the commenters could not agree on what conclusions should be drawn from this evidence.
The commenters devoted a significant amount of time to discussing possible safe harbors to protect certain actions. Nearly all agreed that a safe harbor should be created to protect communications in which federal candidates endorse nonfederal candidates, as long as the endorsement does not promote, attack, support or oppose the election or defeat of the endorsing federal candidate or his or her opponent.
Another safe harbor sought by party groups was an amendment to, or elimination of, the common vendor standard. The common vendor conduct standard is satisfied where an entity paying for a communication uses the same vendor as used by a candidate or political party committee during an election cycle and that common verndor transmits material information about the candidate or political party committee campaign to the entity paying for the communication.
Many commenters argued that this common vendor rule is burdensome for vendors and committees alike. Some argued that the rule is applicable for an unnecessarily long period, as long as six years in the case of senate campaigns. Other groups were skeptical of this interpretation and believed decreasing the time period to, for example, 60 days, would encourage circumvention of the law.
For more information about the NPRM or public hearings, visit our website at where audio recordings of the public hearings are available, as well as the original NPRM text, public comments and the January 2006 Record summary.
¹ The commenters at the public hearings were: Jan Witold Baran, Chamber of Commerce; Robert F. Bauer, Democratic Congressional Campaign Committee; Donald J. Simon, Democracy 21; Marc E. Elias, Democratic Senatorial Campaign Committee; Paul S. Ryan, The Campaign Legal Center; Laurence E. Gold, AFL-CIO; Thomas J. Josefiak, Republican National Committee; Steve Hoersting, Center for Competitive Politics; Joseph E. Sandler, Democratic National Committee; William J. McGinley, National Republican Senatorial Committee; Cleta Mitchell, Foley & Lardner, LLP; Brian G. Svoboda, Democratic Legislative Campaign Committee; Ellen R. Malcolm, EMILY’s List; Karl J. Sandstrom, Association of State Democratic Chairs; Michael B. Trister, Service Employees International Union; Margaret McCormick, National Education Association; Donald F. McGahn II, National Republican Congressional Committee; and Lawrence M. Noble, The Center for Responsive Politics.