[Federal Register: September 4, 2003 (Volume 68, Number 171)]
[Proposed Rules]
[Page 52529-52531]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04se03-15]
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FEDERAL ELECTION COMMISSION
11 CFR Part 106
[Notice 2003-16]
Party Committee Telephone Banks
AGENCY: Federal Election Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Election Commission requests comments on proposed
changes to its rules regarding the allocation of political party
committee expenditures for telephone bank communications made on behalf
of a presidential candidate. The proposed rules would address the
proper allocation of a party committee's expenditures for such
communications that refer to presidential and vice-presidential
nominees when the party's other candidates are referred to generically,
but not by name. The amount allocated as an expenditure on behalf of,
or a contribution to, the presidential nominee would be subject to the
limitations and prohibitions of the Federal Election Campaign Act of
1971. The Commission has not made any final decisions on the revisions
proposed in this Notice. Further information is provided in the
supplementary information that follows.
DATES: Comments must be received on or before September 25, 2003. If
the Commission receives sufficient requests to testify, it will hold a
hearing on these proposed rules on October 1, 2003, at 9:30 a.m.
Commenters wishing to testify at the hearing must so indicate in their
written or electronic comments.
ADDRESSES: All comments should be addressed to Ms. Mai T. Dinh, Acting
Assistant General Counsel, and must be submitted in either electronic
or written form. Electronic mail comments should be sent to
phone2003@fec.gov and must include the full name, electronic mail
address and postal service address of the commenter. Electronic mail
comments that do not contain the full name, electronic mail address and
postal service address of the commenter will not be considered. If the
electronic mail comments include an attachment, the attachment must be
in the Adobe Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed
comments should be sent to (202) 219-3923, with printed copy follow-up
to ensure legibility. Written comments and printed copies of faxed
comments should be sent to the Federal Election Commission, 999 E
Street, NW., Washington, DC 20463. Commenters are strongly encouraged
to submit comments electronically to ensure timely receipt and
consideration. The Commission will make every effort to post public
comments on its Web site within ten business days of the close of the
comment period. The hearing will be held in the Commission's ninth
floor meeting room, 999 E Street NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ms. Mai T. Dinh, Acting Assistant
General Counsel, or Mr. Jonathan M. Levin, Senior Attorney, 999 E
Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION:
A. Background
In the months leading up to a presidential general election, party
committees, or party committees in conjunction with a principal
campaign committee of a presidential nominee, may conduct a phone bank
to get out the vote (``GOTV'') or otherwise promote the party and its
candidates. Such phone banks may involve the reading of scripted
messages that include a statement asking the person called specifically
to vote, or get their family and friends out to vote, for the named
presidential candidate and that then make a general promotional
reference or references to the party's other candidates. An example
would be: ``Please tell your family and friends to come out and vote
for President John Doe and our great Party team.'' Given that no other
Federal or non-Federal candidates are specifically mentioned, the
question is whether the entire cost of the communication or only a
portion of the cost should be attributed to the presidential candidate.
Current 11 CFR 106.1(a)(1) addresses the attribution of
expenditures (including in-kind contributions, independent
expenditures, and coordinated expenditures) for communications made on
behalf of more than one clearly identified Federal candidate. It also
addresses expenditures and disbursements on behalf of a combination of
clearly identified Federal candidates and non-Federal candidates. In
the case of communications other than fundraising communications, the
expenditure is generally attributed to a candidate in accordance with
the portion of the communication devoted to that candidate. For
example, in a publication or broadcast communication, the attribution
is determined by the space or time devoted to each candidate as
compared to the space or time devoted to all candidates. Similarly, for
a phone bank, the attribution is based on the number of questions or
statements devoted to each candidate as compared to the total number of
questions or statements devoted to all candidates.
Under one interpretation of section 106.1(a)(1), the disbursement
for the political party phone bank described above would be 100 percent
attributable to the presidential (and vice presidential) candidate
because he or she would be the only candidate clearly identified. On
the other hand, this section could be read to mandate an attribution of
significantly less than fifty percent to the presidential candidate
because the actual wording of the message emphasizes support for all
the party's Federal and non-Federal candidates. To provide clear
guidance as to the attribution of these types of phone banks, the
Commission is proposing new 11 CFR 106.8, which is described below.
B. Proposed 11 CFR 106.8 Allocation of Political Party Committee Phone
Banks That Refer to a Clearly Identified Presidential or Vice
Presidential Nominee
The Commission proposes adding new section 106.8 to address phone
banks conducted by national, State and local party committees on behalf
of their presidential nominees. In presidential
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election years, party committees conduct such phone banks to encourage
voters to support the entire ticket. Although the specific mention of
the presidential candidate provides something of value to the
presidential candidate being promoted, it also provides the party with
a benefit. In consideration of the fact that the presidential candidate
is the only candidate identified, and balancing that fact with the use
of the candidate's name for general party promotion purposes, the
Commission seeks comment on two alternative approaches described below
regarding phone bank expenses to be attributed to the presidential
candidate.
Proposed 11 CFR 106.8(a) begins by stating the conditions under
which the special attribution rule in proposed paragraph (b) would
apply. First, the proposed rule would apply only if the provisions of
11 CFR 100.89 and 100.149 do not apply. They provide that, under
specific conditions, the payment by a State and local party committee
for voter registration and GOTV activities it conducts on behalf of a
presidential or vice presidential nominee is exempt from the
definitions of ``contribution'' and ``expenditure.'' These sections
provide an avenue for State and local party committees to spend on
behalf of publicly financed presidential candidates without making a
coordinated expenditure or an impermissible contribution. This
exemption does not include payments for ``any costs incurred in
connection with any broadcasting, newspaper, magazine, billboard,
direct mail, or similar type of general public communication or
political advertising.'' 11 CFR 100.89(a) and 100.149(a). Phone banks
are treated separately and qualify for the exemption when the phone
banks are operated by volunteer workers (although the use of paid
professionals to design the system, to develop calling instructions,
and to train supervisors is permissible under the exemption). 11 CFR
100.89(e) and 100.149(e). Thus, the proposed rules in new 11 CFR 106.8
would not apply, and no amount would have to be attributed to the
presidential candidate, if the phones are operated by volunteer workers
and if the other conditions pertaining to the source of the funds used
in 11 CFR 100.89 and 100.149 are satisfied.
Proposed paragraphs (a)(1) through (4) of section 106.8 would
describe the communication that would be subject to the proposed rule.
The communication would have to: refer to a clearly identified
presidential or vice presidential nominee (proposed paragraph (a)(1));
refer to no other clearly identified candidate (proposed paragraph
(a)(2)); and refer generically to the other candidates of the
presidential nominee's party without clearly identifying them (proposed
paragraph (a)(3)). Generic references to ``our great Republican team''
or ``our great Democratic ticket'' would satisfy the latter
requirement. Moreover, under proposed paragraph (a)(4), the
communication must not be used as a means to solicit contributions,
donations, or any funds from any person for any Federal or non-Federal
candidate, or for any political committee or political organization, or
any entity disbursing funds in connection with a Federal or non-Federal
election. If such a solicitation were made, it would change the nature
of the communication and may require a different determination as to
the attribution of the party's spending for the communication among
candidates or committees.
Proposed section 106.8(b) includes two alternatives that would
establish the attribution of the party committee's payments for the
phone bank. Alternative A would provide that fifty percent of the
disbursement must be attributed to the presidential and vice
presidential nominees, and the remaining fifty percent would not be
attributable to any Federal or non-Federal candidate but must be paid
solely with Federal funds. Alternative B would provide that 100 percent
of the disbursement must be attributed to the presidential and vice
presidential nominees. The Commission seeks comment on which of these
two alternatives is preferable, or on whether the percentage should be
based on the actual space or time used to refer to the presidential
nominee or some other factor.
If the party committee pays for the entire cost of the phone bank
mentioning a publicly funded general election candidate (as opposed to
the assumption of some of the cost by the presidential candidate's
principal campaign committee), the payment may be, in some cases,
either a coordinated expenditure under 2 U.S.C. 441a(d) or an
independent expenditure under 2 U.S.C. 431(17). In the case of a non-
publicly funded general election candidate, it may be either an in-kind
contribution to the candidate, or a coordinated or independent
expenditure.
The Commission also notes that, unlike the exempt payments in 11
CFR 100.89 and 100.149, a State party committee would be able to use
coordinated expenditures (under 2 U.S.C. 441a(d)) to cover phone bank
communications subject to proposed 11 CFR 106.8 only if the national
party committee has made a written assignment of a specific amount of
its spending authority to the State committee in an amount sufficient
to cover the expenditure. See 11 CFR 109.33(a). The district or local
party committee may spend some of the amount authorized by the national
to the State committee, subject to the control of the State committee,
which ensures that the entire party organization in the State stays
within the assigned limit. See 11 CFR 109.33(b). The Commission seeks
comment on whether the proposed rule should refer to this requirement
or whether it is understood that this proposed rule would not exempt a
State, district, or local party committee from these requirements.
Barring the unlikely event that the phone bank will involve 500 or
fewer calls, a message such as, ``Please vote for President John Doe
and our great Party team,'' would be a public communication that refers
to a clearly identified Federal candidate and promotes that candidate.
It would thus be a form of Federal election activity that must be paid
for entirely with Federal funds, pursuant to 11 CFR 300.33(c)(1). See
11 CFR 100.24(b)(3), 100.26, and 100.28. Payments by a national party
committee must be from Federal funds because such committees are
prohibited from maintaining accounts that do not consist entirely of
Federal funds. See 11 CFR 300.10(a)(1). Thus, under alternative A, the
fifty percent that would not be attributed to the presidential nominee
would have to be paid for entirely with Federal funds, and would not be
allocable between Federal and non-Federal funds or Federal and Levin
funds. Similarly, under Alternative B, the entire amount must be paid
for with Federal funds.
C. Additional Comments Sought
In addition to the request for comment as to national party
committee assignment of its coordinated expenditure authority, the
Commission seeks comments on several aspects of the proposed rule.
Specifically, comment is sought on whether this attribution should
apply only to phone banks or whether it should apply to other media
such as broadcast or print media. The Commission also seeks comment on
whether the specific condition in 11 CFR 100.89 and 100.149--that the
party expenditures not be made from contributions designated for
particular Federal candidates--should be included in the
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proposed rule. See 2 U.S.C. 431(8)(B)(xi)(3) and (9)(B)(ix)(3); 11 CFR
100.89 and 100.149. Finally, the Commission seeks comment on whether
proposed 11 CFR 106 .8 should apply to candidates for the Senate and
the House of Representatives as well as presidential candidates.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) [Regulatory
Flexibility Act]
The attached proposed rules, if promulgated, would not have a
significant economic impact on a substantial number of small entities.
The basis for this certification is that few, if any, small entities
would be affected by these proposals, which apply only to committees of
political parties. National, State and many local party committees of
the two major political parties and other political committees are not
small entities under 5 U.S.C. 601 because they are not small
businesses, small organizations, or small governmental jurisdictions.
The proposed rules are intended to simplify the determination as to the
amount of a party committee expenditure that must be attributed to a
presidential candidate in the case of certain telephone bank
communications and to clarify what funding is permissible. Any increase
in the cost of compliance that might result from these proposed rules
would not be in an amount sufficient to cause a significant economic
impact.
List of Subjects in 11 CFR Part 106
Campaign funds, Political committees and parties, Political
candidates.
For the reasons set out in the preamble, the Federal Election
Commission proposes to amend subchapter A of chapter 1 of title 11 of
the Code of Federal Regulations as follows:
PART 106--ALLOCATIONS OF CANDIDATE AND COMMITTEE ACTIVITIES
1. The authority citation for part 106 would continue to read as
follows:
Authority: 2 U.S.C. 438(a)(8), 441a(b), 441a(g).
2. New section 106.8 would be added to read as follows:
Sec. 106.8 Allocation of expenses for political party committee phone
banks that refer to a clearly identified presidential or vice
presidential nominee.
(a) Scope. Except as provided in 11 CFR 100.89 and 100.149, this
section applies to a phone bank conducted by a national, State,
district, or local committee or organization of a political party
where--
(1) The communication refers to a clearly identified presidential
or vice presidential nominee;
(2) The communication does not refer to any other clearly
identified Federal or non-Federal candidate;
(3) The communication generically refers to other candidates of the
presidential nominee's party without clearly identifying them; and
(4) The communication does not solicit a contribution, donation, or
any other funds from any person.
Alternative A
(b) Attribution. Each expenditure for the phone bank described in
paragraph (a) of this section (including an in-kind contribution,
independent expenditure, and coordinated expenditure) shall be
attributed as follows:
(1) Fifty percent of the disbursement for the phone bank is
attributed to the presidential and vice presidential nominees; and
(2) The remaining fifty percent is not attributable to any other
Federal or non-Federal candidate, but must be paid for entirely with
Federal funds.
Alternative B
(b) Attribution. The entire amount of each expenditure for the
phone bank described in paragraph (a) of this section (including an in-
kind contribution, independent expenditure, and coordinated
expenditure) shall be attributed to the presidential and vice
presidential nominees.
Dated: August 29, 2003.
Ellen L. Weintraub,
Chair, Federal Election Commission.
[FR Doc. 03-22533 Filed 9-3-03; 8:45 am]
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