[Federal Register Volume 75, Number 175 (Friday, September 10, 2010)]
[Rules and Regulations]
[Pages 55257-55267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22648]
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FEDERAL ELECTION COMMISSION
11 CFR Part 100
[Notice 2010-18]
Definition of Federal Election Activity
AGENCY: Federal Election Commission.
ACTION: Final rules.
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SUMMARY: The Federal Election Commission is revising its rules as to
the activities that constitute ``Federal election activity'' under the
Federal Election Campaign Act of 1971, as amended. Specifically, these
final rules modify the definitions of ``voter registration activity''
and ``get-out-the-vote activity,'' in response to the decision of the
U.S. Court of Appeals for the District of Columbia Circuit in Shays v.
FEC.
[[Page 55258]]
DATES: These rules are effective on December 1, 2010.
FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant
General Counsel, or Attorney Mr. David C. Adkins or Attorney Mr. Neven
F. Stipanovic, 999 E Street, NW., Washington, DC 20463, (202) 694-1650
or (800) 424-9530.
SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002
\1\ (``BCRA'') contained extensive and detailed amendments to the
Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq.
(``the Act''). The Federal Election Commission (``Commission'') is
revising its regulations at 11 CFR 100.24 regarding ``Federal election
activity,'' including the definitions of the terms ``voter registration
activity'' and ``get-out-the-vote activity'' (``GOTV activity''). The
Court of Appeals for the District of Columbia Circuit found aspects of
these rules invalid in Shays v. Federal Election Commission, 528 F.3d
914 (DC Cir. 2008) (``Shays III''). Accordingly, the Commission is
revising its rules at 11 CFR 100.24 to comply with the Shays III
decision.
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\1\ Public Law 107-155, 116 Stat. 81 (2002).
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Transmission of Final Rules to Congress
Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the
Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1),
agencies must submit final rules to the Speaker of the House of
Representatives and the President of the Senate and publish them in the
Federal Register at least thirty calendar days before they take effect.
The final rules that follow were transmitted to Congress on September
7, 2010.
Explanation and Justification
I. Background Information
A. BCRA
The Act, as amended by BCRA, and Commission regulations provide
that a State, district, or local committee of a political party must
pay for certain ``Federal election activities'' with either entirely
Federal funds \2\ or, in other instances, a mix of Federal funds and
Levin funds.\3\ See 2 U.S.C. 441i(b); 11 CFR 300.32. The Act identifies
four types of activity that are subject to these funding restrictions,
including ``voter registration activity''--Type I Federal election
activity--and GOTV activity--Type II Federal election activity. See 2
U.S.C. 431(20)(A)(i) and (ii), 441i(b); 11 CFR 100.24(a)(2) and (3).\4\
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\2\ ``Federal funds'' are funds subject to the limitations,
prohibitions, and reporting requirements of the Act. See 11 CFR
300.2(g).
\3\ ``Levin funds'' are funds raised and disbursed by State,
district, or local party committees pursuant to certain
restrictions. See 2 U.S.C. 441i(b); see also 11 CFR 300.2(i).
\4\ In addition to GOTV activity, Type II Federal election
activity also includes ``voter identification'' and ``generic
campaign activity.'' See 2 U.S.C. 431(20)(A)(ii); 11 CFR 100.24 and
100.25. Types III and IV Federal election activity are outside the
scope of this rulemaking and are not discussed. They pertain to
public communications that refer to a clearly identified Federal
candidate and promote, support, attack or oppose a candidate for
Federal office (Type III) and services provided by an employee of a
State, district, or local committee of a political party who spends
more than 25 percent of his or her compensated time on activities in
connection with a Federal election (Type IV). Types I and II Federal
election activity may be funded with a combination of Federal and
Levin funds; Types III and IV Federal election activity must be
funded entirely with Federal funds.
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Application of BCRA's Federal election activity funding
restrictions for Types I and II Federal election activity is
conditioned upon the timing of the activity. Voter registration
activity (Type I), for example, constitutes Federal election activity,
and therefore is subject to BCRA's funding restrictions, only if it is
conducted ``120 days before the date a regularly scheduled Federal
election is held.'' 2 U.S.C. 431(20)(A)(i). Similarly, voter
identification, GOTV activity, and generic campaign activity are
Federal election activity only if they are conducted ``in connection
with an election in which a candidate for Federal office appears on the
ballot,'' a phrase that is defined in terms of a specific time
window.\5\ 2 U.S.C. 431(20)(A)(ii) and 11 CFR 100.24(a)(1).
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\5\ Commission regulations define ``in connection with an
election in which a candidate for Federal office appears on the
ballot'' at 11 CFR 100.24(a)(1).
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In BCRA, Congress chose to restrict the funds which State,
district, and local party committees could use for Federal election
activity because it determined that these activities affect Federal
elections. See 148 Cong. Rec. S2139 (daily ed. Mar. 20, 2002)
(statement of Sen. McCain) (noting, for example, that ``get-out-the-
vote and voter registration drives * * * are designed to, and do have
an unmistakable impact on both Federal and non-Federal elections'').
Restrictions on the funding of Federal election activity by State,
district, and local party committees are critical because they prevent
evasion of BCRA's restrictions on the raising and spending of non-
Federal funds by national party committees and Federal candidates and
officeholders. See Final Rules on Prohibited and Excessive
Contributions: Non-Federal Funds or Soft Money, 67 FR 49064, 65 (July
29, 2002) (``2002 Final Rule''). Indeed, in passing BCRA's Federal
election activity provisions, Congress had in mind ``the very real
danger that Federal contribution limits could be evaded by diverting
funds to State and local parties, which then use those funds for
Federal election activity.'' See 148 Cong. Rec. S2138 (daily ed. Mar.
20, 2002) (statement of Sen. McCain).
The Supreme Court upheld BCRA's Federal election activity
provisions in McConnell v. FEC, 124 S. Ct. 619, 670-77 (2003). The
Court found that non-Federal funds given to State, district, and local
party committees could have the same corrupting influence as non-
Federal funds given to the national parties and therefore held that
BCRA's Federal election activity restrictions were justified by an
important government interest. Id. at 672-73. The Court held that
BCRA's Federal election activity provisions were likely necessary to
prevent ``corrupting activity from shifting wholesale to state
committees and thereby eviscerating [the Act].'' Id. at 673.
In reaching its decision, the Court noted that BCRA regulated only
``those contributions to state and local parties that can be used to
benefit Federal candidates directly'' and therefore posed the greatest
threat of corruption. Id. at 673-74. As such, the Court found BCRA's
regulation of voter registration activities, which ``directly assist
the party's candidates for federal office,'' and GOTV activities, from
which Federal candidates ``reap substantial rewards,'' to be
permissible methods of countering both corruption and the appearance of
corruption. Id. at 674; see also id. at 675 (finding that voter
registration activities and GOTV activities ``confer substantial
benefits on federal candidates'' and ``the funding of such activities
creates a significant risk of actual and apparent corruption,'' which
BCRA aims to minimize).
B. Rulemakings
Although BCRA defines Federal election activity to include ``voter
registration activity'' and ``GOTV activity,'' it does not specifically
define those underlying terms. See 2 U.S.C. 431(20)(A)(ii)-(iii).
Accordingly, the Commission promulgated definitions of these terms.
1. 2002 Rulemaking
The Commission first promulgated definitions of ``voter
registration activity'' and ``GOTV activity'' on July 29, 2002. See
2002 Final Rule, 67 FR at 49067. The 2002 Final Rule defined ``voter
registration activity'' as ``contacting individuals by telephone, in
person, or by other individualized means to assist them in registering
to vote.'' Id. at 49110. The Explanation and
[[Page 55259]]
Justification (``E&J'') accompanying the rule noted that the definition
was limited to ``individualized contact for the specific purpose of
assisting individuals with the process of registering to vote.'' Id. at
49067. The Commission expressly rejected an approach whereby mere
encouragement to register to vote would have constituted voter
registration activity. The Commission was concerned that taking such an
approach would result in ``thousands of political committees and
grassroots organizations that merely encouraged voting as a civic duty,
who have never been subject to Federal regulation for such conduct,
[being] swept into the extensive reporting and filing requirements
mandated under Federal law.'' Id.
The Commission similarly defined ``GOTV activity'' in 2002 as
``contacting registered voters by telephone, in person, or by other
individualized means to assist them in engaging in the act of voting.''
Id. at 49111. In adopting this construction, the Commission sought to
distinguish GOTV activity from ``ordinary or usual campaigning,'' to
avoid ``federaliz[ing] a vast percentage'' of the campaign activity
that a State, district, or local party committee may conduct on behalf
of its candidates. Id. at 49067. The Commission's definition focused on
actions directed toward registered voters that had the particular
purpose of ``assisting registered voters to take any and all steps to
get to the polls and cast their ballots, or to vote by absentee ballot
or other means provided by law.'' Id. The definition was not intended
to cover activity aimed at ``generally increasing public support for a
candidate or decreasing public support for an opposing candidate.'' Id.
The Commission's 2002 definition of GOTV activity also expressly
excluded ``any communication by an association or similar group of
candidates for State and local office or of individuals holding State
or local office if such communication refers only to one or more
[S]tate or local candidates,'' in order to keep ``State and local
candidates' grassroots and local political activity a question of
State, not Federal, law.'' Id. The Commission declined to read BCRA as
extending ``to purely State and local activity by State and local
candidates'' and concluded that such ``a vast federalization of State
and local activity'' required ``greater direction from Congress.'' Id.
The Commission's 2002 definitions of voter registration activity
and GOTV activity were challenged in Shays v. FEC, 337 F. Supp. 2d 28
(D.D.C. 2004) (``Shays I''). The district court held that the
definition of ``voter registration activity,'' which required actual
assistance, was neither inconsistent with congressional intent nor an
impermissible construction of BCRA. See Shays I, 337 F. Supp. 2d at 100
(applying Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984)). The court further held that the ``exact parameters''
of the regulatory definition were unclear and, therefore, it was unable
to determine if the definition ``unduly compromised'' BCRA's purpose.
Id. Nevertheless, the court found that the Commission's definition was
promulgated without adequate notice and opportunity for comment,
contrary to the Administrative Procedure Act, see 5 U.S.C. 553, and
remanded the regulation to the Commission. See Shays I, 337 F. Supp. 2d
at 100.
The court reached similar conclusions as to the definition of
``GOTV activity,'' holding that the definition, which required actual
assistance, was neither inconsistent with congressional intent nor an
impermissible construction of BCRA. Id. at 103, 105 (applying Chevron).
The court also concluded that there was ``ambiguity as to what acts are
encompassed by the regulation,'' which rendered the court unable to
determine whether the definition of ``GOTV activity'' unduly
compromised BCRA. Id. at 105. As it had with the definition of ``voter
registration activity,'' though, the court found that the Commission's
definition was promulgated without adequate notice and opportunity for
comment and remanded the regulation to the Commission. See id. at 106.
The court also found that the exemption from the GOTV activity
definition for communications made by associations or groups of State
or local candidates or officeholders ran contrary to Congress's clearly
expressed intent. See id. at 104. The court found that BCRA provided no
support for such an exemption, and it rejected all federalism concerns
raised by the Commission in defense of the exemption, holding that
``Congress was sensitive to federalism concerns in drafting BCRA'' and
that the Supreme Court in McConnell had rejected the general federalism
challenge brought against BCRA's Federal election activity provisions.
Id.
2. 2005 Rulemaking
The Commission commenced a rulemaking in 2005 to address the
court's concerns, rather than appeal these aspects of Shays I.
Following another notice and period for comment, the Commission
promulgated definitions of ``voter registration activity'' and ``GOTV
activity'' that were substantially similar to those promulgated in
2002. The final rules were accompanied by an E&J that sought to address
many of the Shays I court's concerns. See Final Rules on Definition of
Federal Election Activity, 71 FR 8926, 8928 (Feb. 22, 2006) (``2006
Final Rule'').
The Commission's decision to leave unchanged the core aspects of
the definitions of ``voter registration activity'' and ``GOTV
activity'' was based on its continued concern that definitions which
captured ``mere encouragement[s]'' would be ``overly broad,'' were
unnecessary ``to effectively implement BCRA,'' and ``could have an
adverse impact on grassroots political activity.'' \6\ Accordingly, the
2006 definitions were designed to encompass activities that actually
registered persons to vote and resulted in voters going to the polls.
Id. at 8928-29. Thus, the Commission sought to ``regulate the funds
used to influence Federal elections'' and not ``incidental speech.''
Id.
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\6\ The Commission did change other aspects of the GOTV activity
definition in response to the Shays I court decision. The Commission
removed from the definition of ``GOTV activity'' the exemption for
communications by associations and groups of State or local
candidates or officeholders. See 2006 Final Rule, 71 FR at 8931. The
Commission also removed from the examples of GOTV activity the
phrase ``within 72-hours of an election,'' to clarify that the
definition covered activity conducted more than 72 hours before an
election. See id. at 8930-31.
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The Commission noted in its 2006 E&J that its regulations would not
lead to the circumvention of the Act precisely because they captured
``the use of non-Federal funds for disbursements that State, district,
and local parties make for those activities that actually register
individuals to vote.'' Id. Moreover, ``many programs for widespread
encouragement of voter registration to influence Federal elections
would be captured as public communications under Type III [Federal
election activity].'' Id. The 2006 E&J also provided a nonexclusive
list of examples of activity that would--and would not--constitute
voter registration activity. Id.
C. Shays III
The revised definitions of voter registration activity and GOTV
activity were challenged again in Shays v. FEC, 508 F. Supp. 2d. 10,
63-70 (D.D.C. 2007). Analyzing the definitions of ``voter registration
activity'' and ``GOTV activity,'' the district court noted that the
Commission's 2006 E&J addressed only the most obvious instances of what
was--and was not--covered activity but not the ``vast gray area'' of
activities that State and local parties may conduct and that may
benefit Federal candidates.
[[Page 55260]]
Shays v. FEC, 508 F. Supp. 2d at 65, 69-70.
Regarding GOTV activities, in particular, the district court
focused on Advisory Opinion 2006-19, issued to the Los Angeles County
Democratic Party Central Committee, in which the Commission concluded
that a local party committee's mass mailing and pre-recorded,
electronically dialed telephone calls (``robocalls'') to the party's
registered voters would not constitute GOTV activity.\7\ The district
court stated that Advisory Opinion 2006-19 had announced a much
narrower interpretation of the scope of GOTV activity than ``might
otherwise [have been] presumed on the face of the definition.'' Id. at
69.
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\7\ The proposed communications would have been made four or
more days before the election, would have informed recipients of the
date of the election, would have urged them to vote for local, but
not Federal, candidates, and would not have included additional
information such as the hours and location of the individual voter's
polling place. The Commission concluded that the communications
would provide neither actual assistance nor sufficiently
individualized assistance to constitute GOTV activity and that, as a
result, the communications could be funded exclusively with non-
Federal funds.
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The district court held that the Commission's failure to address
these vast gray areas, and to explain whether activities falling within
them would affect Federal elections, unduly compromised BCRA's
purposes. Id. at 65-66, 69-70. Accordingly, the court remanded the
definitions to the Commission. Id. at 70-71.
The Court of Appeals upheld the lower court's decision invalidating
the Commission's definitions of ``voter registration activity'' and
``GOTV activity,'' although on slightly different grounds. See Shays v.
FEC, 528 F.3d 914, 931 (DC Cir. 2008). The Court of Appeals recognized
that the Commission had discretion to promulgate definitions that left
unaddressed large gray areas of activity and to fill them in later
through enforcement actions and the advisory opinion process. See Shays
III, 528 F.3d at 931.
Nevertheless, the Court of Appeals held that the Commission's
definitions of ``voter registration activity'' and ``GOTV activity''
were deficient because they served to ``create `two distinct
loopholes.' '' Id. The flaws in both definitions were: (1) The
``assist'' requirements, which excluded efforts that ``actively
encourage people to vote or register to vote'' and (2) the
``individualized means'' requirements, which excluded ``mass
communications targeted to many people,'' and had the effect of
``dramatically narrowing which activities [were] covered'' by the
rules. Id. Accordingly, the Court of Appeals concluded that the
definitions would ``allow the use of soft money for many efforts that
influence federal elections,'' which is directly counter to BCRA's
purpose. Id.
The court rejected the Commission's justifications for the
definitions--to exclude mere exhortations from coverage and to give
clear guidance as to the scope of the rules--finding the Commission
could craft definitions that exclude routine exhortations and that
provided clear guidance to State, district, and local party committees
in a way that is more consistent with BCRA. Id. at 932. Accordingly,
the Court of Appeals remanded the regulations to the Commission.
In response to the court of appeal's decision, the Commission
published a Notice of Proposed Rulemaking on October 20, 2009. See
Notice of Proposed Rulemaking on the Definition of Federal Election
Activity, 74 FR 53674 (Oct. 20, 2009) (``NPRM''). The NPRM proposed
possible modifications to the definitions of ``voter registration
activity'' and ``GOTV activity,'' as well as a modification to the
``exceptions'' paragraph of the definition of ``Federal election
activity.'' The public comment period for the NPRM closed on November
20, 2009. The Commission received written comments from 14 commenters,
including a comment from the Internal Revenue Service indicating that
the proposed rules did not appear to present a conflict with the
Internal Revenue Code or the regulations thereunder. The Commission
held a public hearing on December 16, 2009, at which seven witnesses
testified. After the hearing, the Commission accepted four supplemental
comments expanding on issues raised during the hearing. All comments
and a public transcript of the hearing are available at http://www.fec.gov/law/law_rulemakings.shtml#FEAShays3. For purposes of this
document, the terms ``comment'' and ``commenter'' apply to both written
comments and oral testimony at the public hearing.
These final rules define ``voter registration activity'' and ``GOTV
activity'' for purposes of the Commission's Federal election activity
regulations. These new definitions cover activities that urge,
encourage, or assist potential voters to register to vote or to vote,
regardless of whether the message is delivered individually or to a
group of people via mass communication. Brief, incidental exhortations
to register to vote or to vote are, however, exempt from the new
definitions. Activities meeting these definitions must be paid for with
Federal funds or with a mix of Federal and Levin funds, as appropriate.
In addition, these final rules clarify that GOTV activity and voter
identification conducted solely in connection with a non-Federal
election are not subject to the Commission's Federal election activity
funding restrictions, and provide that certain de minimis activities
are not subject to the Federal election activity funding restrictions.
II. Final Rules
A. 11 CFR 100.24(a)(2)--Definition of ``Voter Registration Activity''
To comply with the Court of Appeals' decision in Shays III, the
Commission is revising the definition of ``voter registration
activity'' at 11 CFR 100.24(a)(2). The Commission's new definition
covers activities that assist, encourage, or urge potential voters to
register to vote. The definition continues to cover contacting
potential voters by individualized means but, as revised, it now also
covers contacts directed to potential voters by any means to urge or
encourage them to register to vote. As explained further below, the new
definition excludes brief, incidental exhortations to register to vote,
consistent with the court's decision.
1. 11 CFR 100.24(a)(2)(i)--Covered Activities
New paragraph (a)(2)(i) of 11 CFR 100.24 lists the activities that
constitute voter registration activity. The new definition identifies
the following activities as voter registration activity:
Encouraging or urging potential voters to register to vote
by mail (including direct mail), e-mail, in person, by telephone
(including pre-recorded telephone calls, phone banks, and messaging
such as SMS and MMS), or by any other means (11 CFR
100.24(a)(2)(i)(A));
Preparing and distributing information about registration
and voting (11 CFR 100.24(a)(2)(i)(B));
Distributing voter registration forms or instructions to
potential voters (11 CFR 100.24(a)(2)(i)(C));
Answering questions about how to complete or file a voter
registration form (11 CFR 100.24(a)(2)(i)(D));
Assisting potential voters in completing voter
registration forms (11 CFR 100.24(a)(2)(i)(D));
Submitting or delivering completed voter registration
forms (11 CFR 100.24(a)(2)(i)(E));
Offering or arranging to transport, or actually
transporting, potential voters to a board of elections or county
clerk's office for them to fill out voter
[[Page 55261]]
registration forms (11 CFR 100.24(a)(2)(i)(F)); and
Any other activity that assists potential voters to
register to vote (11 CFR 100.24(a)(2)(i)(G)).
Accordingly, the revised definition of ``voter registration
activity'' covers the following examples: (1) Sending a mass mailing of
voter registration forms; and (2) submitting completed voter
registration forms to the appropriate State or local office handling
voter registration.
The Commission received multiple comments on its proposal to expand
the definition of voter registration activity to include encouraging
potential voters to register to vote. Almost all the commenters agreed
that expanding the definition in this manner would be responsive to the
Shays III court. Commenters offered a range of opinions, though, on
whether this expansion was required by the court's decision or if there
was a narrower approach that might satisfy the court.
Two commenters stated that the Commission could not do ``anything
short of including encourage[ment]'' in the definition and ``still
satisfy the concerns of the circuit court.'' In contrast, others that
commented on this issue argued that a definition of voter registration
activity that included activities that only encourage people to
register to vote (regardless of the means) was unnecessary. Some
commenters asserted that such a definition would subject to regulation
all of the activities of State and local party committees, contrary to
the intent of Congress.
Instead, the majority of commenters advocated for a narrower
definition that would not apply to activities that, in their opinion,
are not appropriately characterized as voter registration activity.
Commenters suggested definitions covering only activities that actively
encourage voter registration (which would be informed by a time/space
analysis), that were primarily aimed at increasing voter registration,
or that facilitate voter registration. Another commenter proposed a
definition that would cover only activities understood by a
``reasonable person engaged in political campaign management'' to be
voter registration activity. Multiple commenters wanted the Commission
to adopt a definition of voter registration activity that would exclude
``persuasion communications,'' which commenters characterized as
communications that are intended to secure a vote for a specific
candidate but that are not effective at mobilizing potential voters to
register to vote.
If any of these narrower approaches proved under-inclusive, one
commenter suggested that the Commission could subsequently amend its
regulations. This approach, according to the commenter, was preferable
to adopting a broad definition at the outset covering all activities
that encourage potential voters to register to vote.
The Commission also received comments addressing its proposal to
expand the definition of voter registration activity to include
communications made by ``any other means'' that urge or encourage
potential voters to register to vote. Two commenters thought that the
court's decision did not require the Commission to adopt a definition
covering all mass communications, and that the definition could simply
be amended to cover certain specific activities, including phone banks
and direct mail. Another commenter argued that the Commission should
exempt from the definition of voter registration activity all Internet
communications, stating that such communications are made at
``virtually no cost.'' By contrast, one commenter asserted that the
definition's ``any other means'' standard was not ``inclusive enough''
and that the definition should list ``the multiple methods of
electronic communication used today.''
As discussed above, the Shays III court identified ``two distinct
loopholes'' in the Commission's prior definitions of voter registration
activity. See Shays III, 528 F.3d at 931-32. The court determined that
these ``two distinct loopholes''--which required that voter
registration activity ``assist'' voters in registering to vote and that
contacts with potential voters be ``individualized''--conflicted with
BCRA's purpose. Id. at 932. Moreover, the Shays III court suggested
that the Commission's regulations should reach both efforts that
``encourage people to vote or to register to vote'' as well as ``mass
communications'' that are directed to a significant number of people.
Id. at 931. The Commission concludes that the definition of voter
registration activity adopted in this rulemaking best addresses the
court's concerns.
For these reasons, the Commission has decided not to adopt any of
the other proposals suggested by the commenters. Whatever the
individual merits of these proposals, in the current rulemaking the
Commission is charged with adopting a definition of voter registration
activity that addresses the ``two distinct loopholes'' identified by
the Shays III court. Furthermore, many of the alternative proposals
suggested by the commenters will not provide clear guidance to State
and local party committees and could prove difficult for the Commission
to administer and enforce.
The Commission has reorganized the definition of voter registration
activity in section 100.24 in light of comments received. Whereas the
proposed rule would have set forth a general definition of ``voter
registration activity'' with a non-exhaustive list of examples, the new
rule defines ``voter registration activity'' by providing a
comprehensive list of covered activities. Notwithstanding this change
in form, the new definition covers the same universe of activities as
the definition proposed in the NPRM.
This change is responsive to commenters who indicated that the
structure of the proposed definition was ``confusing'' and unhelpful.
The Commission has concluded that the new definition, which lists both
specific and general activities, provides clear and effective guidance
while capturing those activities that Congress and the courts
identified as being ``voter registration activity.''
2. 11 CFR 100.24(a)(2)(ii)--Brief, Incidental Exhortations
New paragraph (a)(2)(ii) of 11 CFR 100.24 states that an activity
is not ``voter registration activity'' solely because it includes a
brief exhortation to register to vote, so long as the exhortation is
incidental to a communication, activity, or event. This exception from
the definition of ``voter registration activity'' ensures that
activities that are not otherwise voter registration activity do not
become voter registration activity simply because they include a brief,
incidental reminder to register to vote.
To qualify for the exception, the exhortation to register to vote
must be both brief and incidental. Exhortations to register to vote
that go on for many minutes of a speech, for example, or that occupy a
large amount of space in a mailer are not brief and will not qualify
for the exception. Similarly, exhortations, however brief, must also be
incidental to the communication, activity or event. For example, a one-
line exhortation to ``Register to vote!'' appearing at the end of a
campaign flier would be incidental to the larger communication, whereas
a communication stating only ``Register to Vote by October 1st!'' and
containing no other text would not be incidental and, thus, would not
come within the exception from the definition of ``voter registration
activity.''
The exception applies to brief, incidental exhortations regardless
of the forum or medium in which they are
[[Page 55262]]
made. The exception covers an exhortation offered in a speech at a
rally, for example, as well as one appearing in an e-mail.
Two examples of activities that would be covered under the
exception appear at new paragraphs (a)(2)(ii)(A) and (a)(2)(ii)(B) of
11 CFR 100.24. The first example is a mailer praising the public
service record of a mayoral candidate and/or discussing the candidate's
campaign platform. The mailer concludes by reminding recipients:
``Don't forget to register to vote for [the mayoral candidate] by
October 1st.'' The second example involves a phone call for a State
party committee fundraising event. The call provides recipients with
information about the event, solicits donations, and concludes by
reminding the listener: ``Don't forget to register to vote.''
The new exception at 11 CFR 100.24(a)(2)(ii) differs in certain
respects from the one proposed in the NPRM. The proposed exception
would have applied only to incidental exhortations made during speeches
or events, whereas the exception in the final rule applies to brief,
incidental exhortations made in any communication or during any
activity or event. Moreover, the proposed exception did not explicitly
require that the exhortation be brief, although a brevity requirement
was implicit in the proposal. Finally, the proposed exception included
four examples of exhortations that would have qualified for the
exception. The new exception includes only two examples, but they are
more detailed than in the NPRM and, thus, provide better guidance
regarding the intended application of the exception.
Several of the comments received on the exhortation exception were
simply an extension of the comments on the scope and organization of
the proposed definition of ``voter registration activity'' itself. One
commenter, for example, indicated that the exception did not
sufficiently narrow the definition of ``voter registration activity''
and would not appropriately protect ``persuasion communications.''
Another commenter urged the Commission not to adopt the exhortation
exception and, instead, simply to define voter registration activity as
covering only activities that facilitate voter registration.
Other comments focused on the scope of the proposed exception.
Specifically, commenters addressed whether the exception should be
limited, as it was in the NPRM, to exhortations made during speeches
and events, or whether it should also cover exhortations made in other
contexts. Two commenters supported adopting the proposed exception,
pointing out that the court's opinion specifically referenced only
``routine or spontaneous speech-ending exhortations.'' Several
commenters, though, believed that there was no reason to limit the
exception by the medium in which the communication was delivered or the
forum in which it was made. One of these commenters stated that
``[n]othing in the court's decisions [could] reasonably be read to mean
that exhortations are to be excluded only if made in a speech or at a
rally but not if made by other means of communications.'' Another
commenter pointed out that limiting the exception in this way would
render it functionally meaningless, because parties rarely rely on
speakers at rallies to encourage people to register to vote.
Two commenters discussed the proposed requirement in the NPRM that,
to qualify for the exception, an exhortation be incidental to a speech
or event. One commenter suggested that the Commission determine whether
an exhortation is, in fact, incidental by engaging in a time/space
analysis. Another commenter urged that the exhortation exception be
further limited to only spontaneous communications and not cover
communications that are scripted.
The Commission has considered the comments and has decided to adopt
a somewhat broader exception than initially proposed. While the Shays
III court required the Commission to adopt a more expansive definition
of ``voter registration activity,'' the court acknowledged that the
Commission could exclude from the definition ``routine or spontaneous
speech-ending exhortations'' and ``mere exhortations * * * made at the
end of a political event or speech.'' Shays III, 528 F.3d at 932.
The Commission agrees with those commenters who indicated that the
exception should not be limited by medium or forum. To limit the
exemption to exhortations made only at speeches or rallies would
elevate form over substance and is not necessary to give effect to the
court's opinion. The court did not require the Commission to create
artificial distinctions between an incidental exhortation during a
speech or rally and an incidental exhortation made in a written
communication or telephone call conveying the same message.
This exception will not inoculate speeches or events that otherwise
would meet the new definition of ``voter registration activity.'' For
example, a speech given sixty days before an election that devotes
several minutes to providing listeners with information on how to
register to vote would not qualify under the exception at new 11 CFR
100.24(a)(2)(ii). Instead, the exception is intended to ensure that
communications that would not otherwise be voter registration activity
do not become voter registration activity merely because they include a
brief, incidental exhortation encouraging listeners to register to
vote.
B. 11 CFR 100.24(a)(3)--Definition of ``GOTV Activity''
To comply with the Court of Appeals' decision in Shays III, the
Commission is revising the definition of ``GOTV activity'' at 11 CFR
100.24(a)(3). The Commission's revised definition covers activities
that assist, encourage, or urge potential voters to vote. The
definition continues to cover contacting potential voters by
individualized means but, as revised, it now also covers contacting
potential voters by any means to urge or encourage them to vote. As
explained further below, the new definition excludes brief, incidental
exhortations to vote, consistent with the court's decision.
1. 11 CFR 100.24(a)(3)(i)--Covered Activities
Revised paragraph (a)(3)(i) of 11 CFR 100.24 lists the activities
that are GOTV activity. The revised definition identifies the following
activities as GOTV activity:
Encouraging or urging potential voters to vote (11 CFR
100.24(a)(3)(i)(A));
Informing potential voters about times when polling places
are open (11 CFR 100.24(a)(3)(i)(B)(1)), the location of polling places
(11 CFR 100.24(a)(3)(i)(B)(2)), or early voting or voting by absentee
ballot (11 CFR 100.24(a)(3)(i)(B)(3);
Offering or arranging to transport voters to the polls, as
well as actually transporting voters to the polls, is also GOTV
activity (11 CFR 100.24(a)(3)(i)(C)); and
All activities that assist potential voters to vote are
GOTV activity (11 CFR 100.24(a)(3)(i)(D)).
These activities fall within the definition regardless of the means
by which information is conveyed.
Accordingly, the revised definition of ``GOTV activity'' would
cover the following examples: (1) Driving a sound truck through a
neighborhood that plays a message urging listeners to ``Vote next
Tuesday at the Main Street community center''; and (2) making telephone
calls (including robocalls) reminding the recipient of the times during
which the polls are open on election day.
[[Page 55263]]
The Commission received multiple comments on its proposal to expand
the definition of GOTV activity to include encouraging potential voters
to vote. Many of those comments addressed together the proposed
expansions of the definitions of ``voter registration activity'' and
``GOTV activity.'' Those comments were discussed and addressed in the
preceding section and are only briefly mentioned here. Other comments,
though, focused on the proposed expansion of the definition of ``GOTV
activity'' and are discussed below.
Almost all the commenters agreed that revising the definition of
``GOTV activity'' to include encouraging and urging potential voters to
vote would be responsive to the Shays III court. Commenters offered a
range of opinions, though, on whether this expansion was required by
the court's decision or if there was a narrower approach that might
satisfy the court.
Two commenters asserted that the Commission could not do ``anything
short of including encourage[ment]'' in the definition and ``still
satisfy the concerns of the circuit court.'' Others that commented on
this issue, by contrast, believed that a definition of ``GOTV
activity'' that included activities that only encouraged people to vote
(regardless of the means) is unnecessary. Some commenters were
concerned that such a definition would subject to regulation all of the
activities of State and local party committees, contrary to the intent
of Congress.
Several commenters were particularly concerned that the proposed
definition of ``GOTV activity'' would cover all candidate advocacy
conducted by State, district, and local party committees, including
advocacy focused solely on State and local candidates that makes no
mention of a Federal candidate. As with the definition of ``voter
registration activity,'' commenters proposed narrowing the definition
of ``GOTV activity'' to cover only activities that actively encourage
or facilitate voting or that are primarily aimed at increasing voter
turnout. Another commenter proposed a definition that would cover only
activities understood by a ``reasonable person engaged in political
campaign management'' to be ``GOTV activity.''
Some commenters also offered more specific suggestions regarding
the definition of ``GOTV activity.'' One commenter proposed defining
``GOTV activity'' as ``activities directed toward encouraging voters
who are identified as likely to support specific candidates to cast
votes in an election in which federal candidates are on the ballot.''
Several commenters stressed the need to adopt a definition of ``GOTV
activity'' that would exclude ``persuasion communications,'' which the
commenters characterized as communications that are intended to secure
a vote for a specific candidate but that are not effective at
mobilizing potential voters to vote.
In the event that any of these narrower approaches proved under-
inclusive, one commenter suggested that the Commission could
subsequently amend its regulations. This approach, according to the
commenter, was preferable to adopting a broad definition at the outset
covering all activities that encourage potential voters to vote.
The Commission also received comments addressing its proposal to
revise the definition of ``GOTV activity'' to include communications
urging or encouraging potential voters to vote made by ``any other
means.'' Two commenters thought that the court's decision did not
require the Commission to adopt a definition covering all mass
communications, and that the definition could simply be amended to
cover certain specific activities, including phone banks and direct
mail.
Another commenter thought that the Commission should exempt from
the definition of ``GOTV activity'' all Internet communications,
because such communications are made at ``virtually no cost.'' In
contrast, a different commenter thought that the definition's ``any
other means'' standard was not ``inclusive enough'' and that the
definition should list ``the multiple methods of electronic
communication used today.''
As discussed above, the Shays III court identified ``two distinct
loopholes'' in the Commission's prior definitions of GOTV activity. See
Shays III, 528 F.3d at 931-32. The court determined that these
``loopholes''--which required that GOTV activity ``assist'' voters in
voting and that contacts with potential voters be ``individualized''--
conflicted with BCRA's purpose. Id. at 932. Moreover, the Shays III
court suggested that the Commission's regulations should reach both
efforts that ``encourage people to vote or to register to vote'' as
well as ``mass communications'' that are directed to a significant
number of people. Id. at 931. The Commission concludes that the
definition of ``GOTV activity'' adopted in this rulemaking best
addresses the court's concerns.
For these reasons, the Commission has decided not to adopt any of
the other proposals suggested by the commenters. Whatever the
individual merits of these proposals, in the current rulemaking the
Commission is charged with adopting a definition of GOTV activity that
addresses the ``two distinct loopholes'' identified by the Shays III
court. Furthermore, many of the alternative proposals suggested by the
commenters would prove difficult for the Commission to administer and
enforce. Introducing qualifiers into the definition of ``GOTV
activity''--like ``targeting,'' ``active encouragement,'' or
``primarily aimed''--may theoretically narrow the definition, but would
require the Commission to make searching (and potentially burdensome)
inquiries into the mechanics, decision-making, and intentions of State,
district, and local party committees and associations of State or local
candidates in order to enforce the law. In addition, such a vague
definition would not provide clear guidance to State, district, and
local party committees and associations of State or local candidates.
The Commission has reorganized the definition of ``GOTV activity''
in section 100.24 in light of comments received. Whereas the proposed
rule would have set forth a general definition of ``GOTV activity''
with a non-exhaustive list of examples, the new rule defines ``GOTV
activity'' by providing a comprehensive list of covered activities.
Notwithstanding this change in form, the new definition covers the same
universe of activities as the definition proposed in the NPRM.
This organizational change is responsive to commenters who
indicated that the structure of the proposed definition was
``confusing'' and unhelpful. The Commission has decided that the
revised definition, which lists both specific and general activities,
provides clear and effective guidance while capturing those activities
that Congress and the courts identified as being GOTV activity.
2. 11 CFR 100.24(a)(3)(ii)--Brief, Incidental Exhortations
New paragraph (a)(3)(ii) of 11 CFR 100.24 states that an activity
is not GOTV activity solely because it includes a brief exhortation to
register to vote, so long as the exhortation is incidental to a
communication, activity, or event. Like the exception to the definition
of ``voter registration activity,'' this exception to the definition of
``GOTV activity'' ensures that activities that are not otherwise GOTV
activity do not become GOTV activity simply because they include a
brief, incidental reminder to vote.
The exception operates identically to the exhortation exception to
the definition of ``voter registration activity.'' To qualify for the
exception, the
[[Page 55264]]
exhortation to vote must be both brief and incidental. Exhortations to
vote that consume many minutes of a speech, for example, or that occupy
a large amount of space in a mailer are not brief and will not qualify
for the exception. Similarly, exhortations, however brief, must also be
incidental to a communication, activity, or event. For example, a one-
word reminder to ``Vote!'' appearing at the end of a mailer would be
incidental to the larger communication, whereas a message in a mailer
that stated only ``Vote on Election Day!'' or ``Vote for Smith next
Tuesday!'' and contained no other text would not be incidental and,
thus, would not be exempted from the definition of GOTV activity.
The exception applies to brief, incidental exhortations regardless
of the forum or medium in which they are made. The exception covers an
exhortation made at the end of a speech at a rally, for example, as
well as one appearing at the end of an e-mail.
Two examples of activities that would be covered under the
exception appear at new paragraphs (a)(3)(ii)(A) and (a)(3)(ii)(B) of
11 CFR 100.24. The first example is a mailer praising the public
service record of a mayoral candidate and/or discussing the candidate's
campaign platform. The mailer concludes by reminding recipients: ``Vote
[for the mayoral candidate] on November 4th.'' The second example
involves a phone call for a State party committee fundraising event.
The call provides recipients with information about the event, solicits
donations, and concludes by reminding the listener: ``Don't forget to
vote on November 4th.''
The new exception at 11 CFR 100.24(a)(3)(ii) differs in certain
respects from the one proposed in the NPRM. The proposed exception
would have applied only to incidental exhortations made during speeches
or events, whereas the exception in the final rule applies to brief,
incidental exhortations made in any communication or during any
activity or event. Moreover, the proposed exception did not explicitly
require that the exhortation be brief, although a brevity requirement
was implicit in the proposal. Finally, the proposed exception included
four examples of exhortations that would have qualified for the
exception. The new exception includes only two examples, but they are
more detailed than in the NPRM and, thus, provide better guidance
regarding the intended application of the exception.
Several of the comments received on the exhortation exception were
simply an extension of the comments on the scope and organization of
the proposed definition of GOTV activity itself. One commenter, for
example, indicated that the exception did not sufficiently narrow the
definition of ``GOTV activity'' and would not appropriately protect
``persuasion communications'' that are ``devoted to convincing a voter
to vote for a particular candidate or party.'' Another commenter urged
the Commission not to adopt the exhortation exception and, instead,
simply define GOTV activity as covering only activities that facilitate
voting. A different commenter suggested that the line between
exhortation and encouragement existed where the communication or
activity specifically urged a potential voter to vote. In the opinion
of this commenter, a sign saying ``Vote for Smith'' would be an
exhortation to vote, while a sign saying ``Go Vote for Smith'' would
encourage voting and thus constitute GOTV activity.
Other comments focused on the scope of the proposed exception.
Specifically, commenters addressed whether the exception should be
limited, as it was in the NPRM, to exhortations made during speeches
and events, or whether it should also cover exhortations made in other
contexts. Two commenters supported adopting the proposed exception,
pointing out that the court's opinion specifically referenced only
``routine or spontaneous speech-ending exhortations.'' Several
commenters, though, believed that there was no reason to limit the
exception by the medium in which the communication was delivered or the
forum in which it was made. One of these commenters stated that
``[n]othing in the court's decisions [could] reasonably be read to mean
that exhortations are to be excluded only if made in a speech or at a
rally but not if made by other means of communications.''
Two commenters addressed the proposed requirement in the NPRM that,
to qualify for the exception, an exhortation be incidental to a speech
or event. One commenter suggested that the Commission determine whether
an exhortation is, in fact, incidental by engaging in a time/space
analysis. Another commenter suggested that the exhortation exception be
further limited to only spontaneous communications and not cover
communications that are scripted.
The Commission has considered the comments and has decided to adopt
a somewhat more expansive exception than initially proposed. While the
Shays III court required the Commission to adopt a more expansive
definition of GOTV, the court acknowledged that the Commission could
exclude from the definition ``routine or spontaneous speech-ending
exhortations'' and ``mere exhortations * * * made at the end of a
political event or speech.'' Shays III, 528 F.3d at 932.
The Commission agrees with those commenters who indicated that the
exception should not be limited by medium or forum. To limit the
exception to exhortations made only at speeches or rallies would
elevate form over substance and is not necessary to give effect to the
court's opinion. The court did not require the Commission to create
artificial distinctions between an incidental exhortation during a
speech or rally and an incidental exhortation made in a written
communication or telephone call conveying the same message.
This exemption will not inoculate speeches or events that otherwise
would meet the definition of ``GOTV activity.'' For example, a speech
given within the covered Federal election activity period that devotes
several minutes to providing listeners with information on how and
where to vote would not qualify under the exception at new 11 CFR
100.24(a)(3)(ii). Instead, the exception is intended to ensure that
communications that would not otherwise be GOTV activity do not become
GOTV activity merely because they include a brief, incidental
exhortation to vote.
C. 11 CFR 100.24(c)(5) and (c)(6)--Voter Identification and GOTV
Activity Solely in Connection With a Non-Federal Election
The new provisions at 11 CFR 100.24(c)(5) and (c)(6) restructure
the combined provision proposed in the NPRM by addressing voter
identification and GOTV activity in two separate provisions. New
paragraph (c)(5) of 11 CFR 100.24 provides that certain voter
identification that is conducted solely in connection with a non-
Federal election that is held on a date within the Type II Federal
election activity time periods, but on which no Federal election is
held, and which is not used in a subsequent election in which a Federal
candidate is on the ballot, is not subject to BCRA's Federal election
activity funding restrictions.
New paragraph (c)(6) of 11 CFR 100.24 provides that certain GOTV
activity that is conducted solely in connection with a non-Federal
election that is held on a date within the Type II Federal election
activity time periods, but on which no Federal election is held, is not
subject to BCRA's Federal election activity funding restrictions,
provided that any communications made as part of such activity refer
[[Page 55265]]
exclusively to: (1) Non-Federal candidates participating in the non-
Federal election, if the non-Federal candidates are not also Federal
candidates, (2) ballot referenda or initiatives scheduled for the date
of the non-Federal election, or (3) the date, polling hours, and
locations of the non-Federal election.
The Commission received several comments on the provision as
proposed in the NPRM. Five commenters supported the provision, saying
that it struck the proper balance and characterized it as ``sensible.''
One commenter believed it was proper to exclude such activities from
the Federal election activity funding restrictions because they do not
directly benefit Federal candidates, which was the focus of the
McConnell court in analyzing BCRA.
Many of these commenters also indicated that the proximity of an
exclusively non-Federal election to a subsequent Federal election
should have no bearing on the application of the provision. One
commenter said that the proximity of the two types of elections was
irrelevant because they involve different variables; the issues that
inform voter identification and motivate voters in non-Federal
elections are very different from those that inform and motivate in a
Federal election. Accordingly, according to these commenters, voter
identification and GOTV activity conducted for a non-Federal election
is of little use in a subsequent Federal election.
In contrast, two commenters objected to the provision on the basis
that it would allow activity that affected Federal elections to be
funded with non-Federal funds contrary to BCRA's intent. According to
these commenters, all voter identification and GOTV activity confer
benefits on Federal candidates and, as such, these activities must be
regulated to avoid the risk of actual or apparent corruption.
BCRA requires State, district, and local political party committees
and organizations to finance Federal election activity with Federal
funds, or, in some instances, with an allocated mix of Federal funds
and Levin funds. 2 U.S.C. 441i(b); 11 CFR 300.33. One of the principal
sponsors of BCRA described its Federal election activity provisions as
a ``balanced approach which addresses the very real danger that Federal
contribution limits could be evaded by diverting funds to State and
local parties,'' while ``not attempt[ing] to regulate State and local
party spending where this danger is not present, and where State and
local parties engage in purely non-Federal activities.'' 148 Cong. Rec.
S2138 (daily ed. Mar. 20, 2002) (Statement of Sen. McCain).
BCRA does not require the Commission to regulate voter
identification or GOTV activities by State, district, and local
political party groups that are exclusively in connection with non-
Federal elections. Many communities hold entirely non-Federal elections
on dates that are separate from any election in which a Federal
candidate appears on the ballot, but that nevertheless fall within the
Type II Federal election activity time periods. See, e.g. http://www.usmayors.org/elections/electioncitiesfall2010.pdf (listing mayoral
elections held in 2010) (last visited July 28, 2010). The Commission,
therefore, is adopting exceptions in the final rule to distinguish
better between voter identification and GOTV activities that are
Federal election activity, and those activities that are not Federal
election activity because they do not affect elections in which Federal
candidates appear on the ballot.
D. 11 CFR 100.24(c)(7)--Activities Involving De Minimis Costs
New paragraph (c)(7) of 11 CFR 100.24 provides that de minimis
costs associated with the following enumerated activities are not
subject to the Federal election activity funding restrictions: (1) On
the Web site of a party committee or association of State or local
candidates, posting a hyperlink to a State or local election board's
Web page containing information on voting or registering to vote; (2)
on the Web site of a party committee or association of State or local
candidates, enabling visitors to download a voter registration form or
absentee ballot application; (3) on the Web site of a party committee
or association of State or local candidates, providing information
about voting dates and/or polling locations and hours of operation; and
(4) placing voter registration forms or absentee ballot applications
obtained from the board of elections at the office of a party committee
or association of State or local candidates.
In the NPRM, the Commission asked generally whether the proposed
definitions of ``voter registration activity'' and ``GOTV activity''
covered activity that Congress did not intend to regulate in BCRA and,
if so, what those activities were.
In response, one commenter pointed out that under the expanded
definitions of ``voter registration activity'' and ``GOTV activity,''
``all the organizational activity of every county, every city, and
every state committee is going to be brought into these regulations,''
since--on some level--organizing people to register to vote, and to
vote, informs everything that party committees do. This commenter
noted, for example, that State and local parties commonly post on their
Web sites information on voter registration and voting but that the
cost is ``typically minimal and is folded into the general
administrative costs of operating the committee.'' To the extent that
this activity was covered as ``voter registration activity'' or ``GOTV
activity,'' all the operational costs would potentially need to be
funded with Federal funds or a mix of Federal and Levin funds, as
appropriate.
The Commission is mindful of the administrative complexities that
State, district and local party committees, as well as associations of
State and local candidates, would face in tracking the nominal,
incidental costs of these activities. As recognized by the courts,
agencies may promulgate de minimis exemptions to the statutes they
administer on the basis that ``Congress is always presumed to intend
that pointless expenditures of effort be avoided.'' Ass'n of Admin. Law
Judges v. FLRA, 397 F.3d 957, 961-62 (DC Cir. 2005). Although there are
limits to this authority--de minimis exceptions are inappropriate for
extraordinarily rigid statutes or when the regulatory costs of the
exemption exceed its benefits--it is inherent in most statutory
schemes. Id. at 962; see Envtl. Def. Fund v. EPA, 82 F.3d 451, 466 (DC
Cir. 1996).
Accordingly, the Commission has decided to adopt new paragraph
(c)(7) at 11 CFR 100.24 to make clear that certain activities are not
subject to BCRA's Federal election activity funding restrictions. Such
a de minimis exception is entirely appropriate in this context because
many of the activities listed will involve no costs and, thus, already
effectively fall outside the Federal election activity funding
regulations. To the extent that the listed activities do involve de
minimis costs, they are so small that--even aggregated over a long
period of time--they would not result in any meaningful evasion of
BCRA's soft money restrictions.
The Commission notes that this provision only covers de minimis
costs associated with the enumerated activities; amounts that are not
de minimis, which are incurred in connection with the enumerated
activities, must still be paid for with Federal funds or a mix of
Federal and Levin funds, as appropriate. In addition, the provision in
paragraph (c)(7) does not cover de minimis costs associated with other
activities. The costs associated with activities not enumerated,
regardless of how small,
[[Page 55266]]
must also be paid for with Federal funds or a mix of Federal and Levin
funds, as appropriate. Thus, the list of activities enumerated in the
provision is exhaustive. Activities not listed are not covered,
regardless of how closely related they are to the activities listed.
E. Additional Issues
1. Advisory Opinion 2006-19 (Los Angeles County Democratic Party
Central Committee)
In Shays III, the Court of Appeals criticized Advisory Opinion
2006-19 (Los Angeles County Democratic Party Central Committee), in
which the Commission concluded that letters and pre-recorded telephone
calls encouraging certain Democrats to vote in an upcoming local
election did not count as GOTV activity because the communications did
not provide individualized assistance to voters. See Shays III, 528
F.3d at 932. The court held that this overly restrictive construction
of the definition of ``GOTV activity'' was contrary to the statute. See
id. The Commission is superseding Advisory Opinion 2006-19 because the
conclusion of that advisory opinion, along with its reasoning, cannot
be reconciled with the Commission's new definition of ``GOTV
activity.''
2. Associations of State and Local Candidates and Officeholders
One commenter pointed out that the NPRM ``refer[red] repeatedly to
`state, district or local party committees''' and referred ``only
incidentally to associations of state and local candidates and
officeholders.'' The commenter noted that such associations are subject
to the Federal election activity funding restrictions to the same
extent as State, district, and local party committees.
The Commission agrees with the commenter that the new definitions
of ``voter registration activity'' and ``GOTV activity'' apply equally
to party committees and associations of State and local candidates,
alike. Any disproportionate references to party committees in the
NPRM--and in this E&J--do not reflect a determination by the Commission
that the activities of associations of State and local candidates are
less important or less likely to fall under the umbrella of Federal
election activity established by Congress. Previous attempts to exempt
the activities of associations of State and local candidates from the
definition of ``GOTV activity'' were found to be contrary to BCRA, see
Shays I, 337 F. Supp. 2d at 104, and the Commission is not revisiting
that decision.
3. Communications Referencing Only State and Local Candidates
In the NPRM, the Commission proposed adding an exception to the
definition of ``GOTV activity'' at 11 CFR 100.24(a)(3)(iii) for public
communications that refer solely to one or more clearly identified
candidates for State or local office and note the date of the election.
The proposal was designed to ensure that the expansion of the GOTV
activity definition required by the Shays III court would not, in
effect, render meaningless the statutory definition of ``Federal
election activity,'' which specifically does not include amounts
disbursed or expended for ``a public communication that refers solely
to a clearly identified candidate for State or local office, if the
communication is not a Federal election activity described in
subparagraph (A)(i) or (ii).'' 2 U.S.C. 431(20)(B)(i); 11 CFR
100.24(c)(1).
Several commenters addressed the proposed ``State and local
communication'' exception. Five commenters supported it. One stated
that the exception would ensure that State and local parties are not
deterred from supporting State and local candidates and that the
benefits of the proposed exception ``far outweigh the incidental effect
[that the covered] activities may have on Federal elections.'' The same
commenter thought that the exception should be expanded to cover State
ballot initiatives, as well. Another commenter thought the exception
properly excluded from the definition of ``GOTV activity'' those
activities that are not ``primarily aimed at facilitating the act of
voting.'' A third commenter characterized the exception as a ``common-
sense implementation'' of the statute that was particularly necessary
in States in which local elections are frequently held.
In contrast, two other commenters urged the Commission to reject
the proposed exception on the basis that it would ``render
meaningless'' the definition of ``GOTV activity'' and would ``swallow
the rule.'' In particular, these commenters noted that the proposed
exception left out a critical component of the statutory exception on
which it was based: that the communications not otherwise meet the
definition of ``GOTV activity.'' As pointed out by the commenter:
[T]he fact that a communication refers solely to a State or
local candidate is not sufficient to satisfy the exemption, if the
communication otherwise constitutes GOTV or voter registration
activity. In other words, the key issue is not whether the
communication refers solely to a non-federal candidate, but rather
whether the communication is GOTV or voter registration activity. If
it is GOTV or voter registration activity, it is not eligible for
the exemption, even if it refers only to a state or local candidate.
The Commission is not adopting the ``State and local
communication'' exception. The provisions at 2 U.S.C. 431(20)(B)(i) and
11 CFR 100.24(c)(1) remain and continue to exempt from the definition
of Federal election activity public communications that refer solely to
a clearly identified candidate for State or local office, which do not
otherwise constitute voter registration activity, GOTV activity,
generic campaign activity or voter identification within the applicable
time periods.
Furthermore, the Commission notes that grassroots campaign
materials, including buttons, bumper stickers, handbills, brochures,
posters, and yard signs, which name or depict only State or local
candidates, continue to be exempt from the definition of Federal
election activity, provided that this grassroots materials exception
shall not include materials that are distributed by mail. 2 U.S.C.
431(20)(B)(iv); 11 CFR 100.24(c)(4). As such, a yard sign exhorting
readers to ``Vote Smith for Mayor on September 15th!'' or a handbill
that encourages a reader to ``Support your County Commissioner!
Register by next Tuesday!'' could be paid for entirely with non-Federal
funds.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory
Flexibility Act)
The Commission certifies that the attached final rule will not have
a significant economic impact on a substantial number of small
entities. The basis for this certification is that the organizations
affected by this rule are State, district, and local party committees,
which are not ``small entities'' under 5 U.S.C. 601. These not-for-
profit committees do not meet the definition of ``small organization,''
which requires that the enterprise be independently owned and operated
and not dominant in its field. 5 U.S.C. 601(4). State political party
committees are not independently owned and operated because they are
not financed and controlled by a small identifiable group of
individuals, and they are affiliated with the larger national political
party organizations. In addition, the State political party committees
representing the Democratic and Republican parties have a major
controlling influence within the political arena of their State and are
[[Page 55267]]
thus dominant in their field. District and local party committees are
generally considered affiliated with the State committees and need not
be considered separately. To the extent that any State party committees
representing minor political parties might be considered ``small
organizations,'' the number affected by this rule is not substantial.
List of Subjects in 11 CFR Part 100
Elections.
0
For the reasons set out in the preamble, subchapter A of chapter 1 of
title 11 of the Code of Federal Regulations is amended as follows:
PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)
0
1. The authority citation for 11 CFR part 100 continues to read as
follows:
Authority: 2 U.S.C. 431, 434, and 438(a)(8).
0
2. Section 100.24 is amended by removing paragraph (a)(1)(iii), by
revising paragraphs (a)(2) and (a)(3), and by adding paragraphs (c)(5),
(c)(6) and (c)(7) to read as follows:
Sec. 100.24 Federal election activity (2 U.S.C. 431(20)).
(a) * * *
(2) Voter registration activity.
(i) Voter registration activity means:
(A) Encouraging or urging potential voters to register to vote,
whether by mail (including direct mail), e-mail, in person, by
telephone (including pre-recorded telephone calls, phone banks and
messaging such as SMS and MMS), or by any other means;
(B) Preparing and distributing information about registration and
voting;
(C) Distributing voter registration forms or instructions to
potential voters;
(D) Answering questions about how to complete or file a voter
registration form, or assisting potential voters in completing or
filing such forms;
(E) Submitting or delivering a completed voter registration form on
behalf of a potential voter;
(F) Offering or arranging to transport, or actually transporting
potential voters to a board of elections or county clerk's office for
them to fill out voter registration forms; or
(G) Any other activity that assists potential voters to register to
vote.
(ii) Activity is not voter registration activity solely because it
includes a brief exhortation to register to vote, so long as the
exhortation is incidental to a communication, activity, or event.
Examples of brief exhortations incidental to a communication, activity,
or event include:
(A) A mailer praises the public service record of mayoral candidate
X and/or discusses his campaign platform. The mailer concludes by
reminding recipients, ``Don't forget to register to vote for X by
October 1st.''
(B) A phone call for a State party fundraiser gives listeners
information about the event, solicits donations, and concludes by
reminding listeners, ``Don't forget to register to vote.''
(3) Get-out-the-vote activity.
(i) Get-out-the-vote activity means:
(A) Encouraging or urging potential voters to vote, whether by mail
(including direct mail), e-mail, in person, by telephone (including
pre-recorded telephone calls, phone banks and messaging such as SMS and
MMS), or by any other means;
(B) Informing potential voters, whether by mail (including direct
mail), e-mail, in person, by telephone (including pre-recorded
telephone calls, phone banks and messaging such as SMS and MMS), or by
any other means, about:
(1) Times when polling places are open;
(2) The location of particular polling places; or
(3) Early voting or voting by absentee ballot;
(C) Offering or arranging to transport, or actually transporting,
potential voters to the polls; or
(D) Any other activity that assists potential voters to vote.
(ii) Activity is not get-out-the-vote activity solely because it
includes a brief exhortation to vote, so long as the exhortation is
incidental to a communication, activity, or event. Examples of brief
exhortations incidental to a communication, activity, or event include:
(A) A mailer praises the public service record of mayoral candidate
X and/or discusses his campaign platform. The mailer concludes by
reminding recipients, ``Vote for X on November 4th.''
(B) A phone call for a State party fundraiser gives listeners
information about the event, solicits donations, and concludes by
reminding listeners, ``Don't forget to vote on November 4th.''
* * * * *
(c) * * *
(5) Voter identification activity that is conducted solely in
connection with a non-Federal election held on a date on which no
Federal election is held, and which is not used in a subsequent
election in which a Federal candidate appears on the ballot.
(6) Get-out-the-vote activity that is conducted solely in
connection with a non-Federal election held on a date on which no
Federal election is held, provided that any communications made as part
of such activity refer exclusively to:
(i) Non-Federal candidates participating in the non-Federal
election, if the non-Federal candidates are not also Federal
candidates;
(ii) Ballot referenda or initiatives scheduled for the date of the
non-Federal election; or
(iii) The date, polling hours, and locations of the non-Federal
election.
(7) De minimis costs associated with the following:
(i) On the Web site of a party committee or an association of State
or local candidates, posting a hyperlink to a state or local election
board's web page containing information on voting or registering to
vote;
(ii) On the Web site of a party committee or an association of
State or local candidates, enabling visitors to download a voter
registration form or absentee ballot application;
(iii) On the Web site of a party committee or an association of
State or local candidates, posting information about voting dates and/
or polling locations and hours of operation; or
(iv) Placing voter registration forms or absentee ballot
applications obtained from the board of elections at the office of a
party committee or an association of State or local candidates.
On behalf of the Commission.
Dated: September 7, 2010.
Matthew S. Petersen,
Chairman, Federal Election Commission.
[FR Doc. 2010-22648 Filed 9-9-10; 8:45 am]
BILLING CODE 6715-01-P