[Federal Register: September 5, 2006 (Volume 71, Number 171)]
[Proposed Rules]
[Page 52295-52296]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se06-6]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 52295]]
FEDERAL ELECTION COMMISSION
11 CFR Part 100
[Notice 2006-15]
Exception for Certain ``Grassroots Lobbying'' Communications From
the Definition of ``Electioneering Communication''
AGENCY: Federal Election Commission.
ACTION: Notice of disposition of Petition for Rulemaking.
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SUMMARY: The Commission announces its disposition of a Petition for
Rulemaking (``Petition'') filed on February 16, 2006, by the AFL-CIO,
the Alliance for Justice, the Chamber of Commerce of the United States,
the National Education Association, and OMB Watch. The Petition asks
the Commission to revise its regulations by exempting from the
definition of ``electioneering communication'' certain communications
consisting of ``grassroots lobbying.'' The Commission has decided not
to initiate a rulemaking in response to the Petition at this time. The
Petition is available for inspection in the Commission's Public Records
Office and on its Web site, http://www.fec.gov/. Further information is
provided in the supplementary information that follows.
FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Acting Assistant
General Counsel, or Mr. Ron B. Katwan, Attorney, 999 E Street, NW.,
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
SUPPLMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002
(``BCRA''), Public Law 107-55, 116 Stat. 81 (2002), added provisions
regarding ``electioneering communications'' to the Federal Election
Campaign Act of 1971, as amended. See 2 U.S.C. 434(f)(3).
Electioneering communications are television and radio communications
that refer to a clearly identified candidate for Federal office, are
publicly distributed within 60 days before a general election or 30
days before a primary election, and are targeted to the relevant
electorate. See 2 U.S.C. 434(f)(3)(A)(i); 11 CFR 100.29(a). BCRA
exempts certain communications from the definition of ``electioneering
communication,'' 2 U.S.C. 434(f)(3)(B)(i) through (iii), and
specifically authorizes the Commission to promulgate regulations
exempting other communications as long as the exempted communications
do not promote, support, attack or oppose (``PASO'') a Federal
candidate, 2 U.S.C. 434(f)(3)(B)(iv), citing 2 U.S.C. 431(20)(A)(iii).
Section 100.29(c) of the Commission's regulations contains the
regulatory exemptions to the definition of ``electioneering
communication.''
On February 16, 2006, the Commission received a Petition for
Rulemaking (``Petition'') from the AFL-CIO, the Alliance for Justice,
the Chamber of Commerce of the United States, the National Education
Association, and OMB Watch (collectively, ``Petitioners''). The
Petitioners asked the Commission to revise 11 CFR 100.29(c) to exempt
from the definition of ``electioneering communication'' certain
``grassroots lobbying'' communications that reflect all of the
following six principles: (1) ``The `clearly identified federal
candidate' is an incumbent public officeholder;'' (2) ``The
communication exclusively discusses a particular current legislative or
executive branch matter;'' (3) ``The communication either (a) calls
upon the candidate to take a particular position or action with respect
to the matter in his or her incumbent capacity, or (b) calls upon the
general public to contact the candidate and urge the candidate to do
so;'' (4) ``If the communication discusses the candidate's position or
record on the matter, it does so only by quoting the candidate's own
public statements or reciting the candidate's official action, such as
a vote, on the matter;'' (5) ``The communication does not refer to an
election, the candidate's candidacy, or a political party;'' and (6)
``The communication does not refer to the candidate's character,
qualifications or fitness for office.''
On March 16, 2006, the Commission published a Notice of
Availability (``NOA'') seeking comment on whether to initiate a
rulemaking on this proposed exception to the definition of
``electioneering communication.'' Notice of Availability on Rulemaking
Petition: Exception for Certain ``Grassroots Lobbying'' Communications
From the Definition of ``Electioneering Communication,'' 71 FR 13557
(Mar. 16, 2006). The Commission received nine timely comments and two
late comments in response to the NOA. In addition to these comments,
the Commission received 180 form letter comments. Most of the
commenters supported the Petition primarily on the grounds that the
current electioneering communication rules limit the ability of
organizations to run ads whose purpose is not to influence Federal
elections, but to support or defeat legislation at the most critical
time (i.e., when the legislation is before Congress, regardless of the
election cycle). These commenters argued that such ``grassroots
lobbying'' ads are entitled to First Amendment protection and should
therefore be exempt from the electioneering communication rules.
However, one group of commenters opposed the Petition, arguing that the
Commission had already considered this question in the 2002 rulemaking
that adopted the current electioneering communication rules and had
concluded correctly that it lacked statutory authority to promulgate a
``grassroots lobbying'' exemption.\1\ These commenters further asserted
that ``there are no changed circumstances that warrant reconsideration
of that decision.'' Copies of the comments are available on the
Commission's Web site at http://www.fec.gov/law/law_rulemakings.shtml#lobbying
.
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\1\ The Commission considered several proposals for ``grassroots
lobbying'' exemptions in the 2002 rulemaking but did not adopt any
of them. See Notice of Proposed Rulemaking on Electioneering
Communications, 67 FR 51131, 51136, 51145 (Aug. 7, 2002); Final
Rules on Electioneering Communications, 67 FR 65190, 65201 (Oct. 23,
2002).
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On August 29, 2006, the Commission voted to decline to initiate a
rulemaking at this time on the proposed exception for certain
``grassroots lobbying'' communications from the definition of
``electioneering communication,'' given the Commission's other
administrative priorities. The Commission recognized, however, that it
has the statutory authority to create exemptions to the electioneering
communication rules (provided the exemptions do not permit PASO
communications) and that it may
[[Page 52296]]
consider initiating a rulemaking on this subject in the future.
Initiating a rulemaking at this time would not be an efficient or
effective use of the Commission's resources. See 11 CFR 200.5(e). The
Commission is currently defending the constitutionality of BCRA's
electioneering communication provisions against two as-applied
challenges to the statute involving communications that the plaintiffs
claim are ``grassroots lobbying'' communications. See Wisconsin Right
to Life v. FEC, Civ. No. 04-1260 (D.D.C.); Christian Civic League of
Maine v. FEC, Civ. No. 06-614 (D.D.C.). Even if the Commission were to
grant the Petitioners' request to begin a rulemaking to create a
``grassroots lobbying'' exemption, the plaintiffs in these cases may
well continue to pursue litigation or to initiate new litigation,
particularly if the Commission were to craft an exemption narrower than
that contemplated by the plaintiffs. Moreover, any eventual court
decisions in these lawsuits may provide the Commission with guidance on
whether and how the Commission should exercise its discretion in this
area. Judicial guidance may well necessitate a reevaluation of any
rules the Commission were to propose now. Therefore, in light of the
pending as-applied challenges to the constitutionality of the
electioneering communication provisions, the Commission believes that
initiating a rulemaking at this time would not be an effective use of
its resources or an appropriate way to proceed.
Dated: August 29, 2006.
Michael E. Toner,
Chairman, Federal Election Commission.
[FR Doc. E6-14638 Filed 9-1-06; 8:45 am]
BILLING CODE 6715-01-P