March 2006 Federal Election Commission Volume 32, Number 3

Table of Contents

Regulations Court Cases

Wisconsin Right to Life v. 

FEC

On January 23, 2006, the U.S. 

Supreme Court issued a per curiam decision vacating the U.S. 

District Court for the District of 

Columbia’s judgment and held that 

the McConnell v. FEC decision did 

not preclude “as applied” challenges to the electioneering communication (EC) restrictions in the 

Bipartisan Campaign Reform Act 

(BCRA). The Supreme Court asked 

the District Court to reconsider the 

merits of Wisconsin Right to Life’s 

(WRTL) challenge “as applied” to 

certain activities that WRTL describes as grassroots lobbying. 

Background

WRTL filed suit in the U.S. 

District Court for the District of 

Columbia on July 26, 2004, asking 

the court to find the prohibition on 

the use of corporate funds to pay 

for ECs unconstitutional as applied 

to what it described as grassroots 

lobbying activities. On August 17, 

2004, the District Court denied 

WRTL’s motion for a preliminary 

injunction. WRTL appealed the 

decision, but on May 9, 2005 the 

District Court dismissed the case, 

with prejudice, for the same reasons 

given in the court’s August 2004 

(continued on page 2) (continued on page 6)

Revised E&J for Agent

On January 23, 2006, the Commission approved a revised Explanation and Justification (E&J) for the 

definitions of agent used in its regulations on coordinated and independent expenditures and its regulations 

regarding nonfederal funds. The 

revisions respond to the district court 

decision in Shays v. FEC. 

Background

In its September 18, 2004 decision in Shays, the U.S. District 

Court for the District of Columbia 

held that the Commission had not 

adequately explained its decision 

to include in its definitions of agent 

those with “actual authority,” but not 

“persons acting only with apparent authority.” Having concluded 

that the Commission’s inadequate 

explanation violated the reasoned 

analysis requirement of the Administrative Procedure Act (APA), the 

court remanded the definitions to the 

agency for further action consistent 

with its opinion. 

In response, the Commission 

approved a Notice of Proposed 

Rulemaking (NPRM) on January 27, 

2005 requesting comments on several alternatives, including possible 

changes to the definitions of agent 

used in its regulations. On May 1, 

 Regulations

 1 Revised E&J for Agent

 2 FEA Final Rules

 3 Public Hearings on Coordinated 

Communications

3 Federal Register

 Court Cases

 1 Wisconsin Right to Life v. FEC

 7 Kean for Congress v. FEC

 8 FEC v. Kalogianis

 Party Activities

 5 2006 Coordinated Party 

Expenditure Limits 

 8 Advisory Opinions

 Information

 9 FEC Designates New Chief FOIA 

Officer

 9 Alternative Dispute Resolution

 Reports

11 FECFile Update

 Outreach

11 Reporting and FECFile Help

11 Index
Federal Election Commission RECORD March 2006

2

FEA Final Rules

On February 9, 2006, the Commission approved final rules that 

revise the definitions of certain types 

of federal election activity (FEA). 

The revised rules, which take effect 

March 24, comply with the district 

court’s decision in Shays v. FEC.

Background

As part of its decision in Shays, 

the district court invalidated portions of the regulatory definition of 

FEA that describe voter registration 

activity, get-out-the-vote (GOTV) 

activity and voter identification. The 

court found that the voter registration and GOTV definitions were 

improperly promulgated because the 

Commission’s initial Notice of Proposed Rulemaking (NPRM) did not 

indicate that the definitions would 

be limited to activities that “assist” 

individuals in registering or voting. 

The court also invalidated the 

portion of the GOTV definition that 

exempts communications by associations or similar groups of state or 

local candidate/officeholders that refer only to state or local candidates. 

With regard to the definition of voter 

identification, the court found the 

Commission’s decision to exclude 

voter list acquisition and the activities of groups of state and local candidates/officeholders to be contrary 

to Congressional intent. For these 

reasons, the district court remanded 

the regulations to the Commission 

for further action consistent with its 

decision.

Final Rules

In response to the district court’s 

decision, the Commission published 

an NPRM on May 4, 2005 that 

proposed possible modifications 

2005, the Commission held a public 

hearing to receive testimony on the 

proposed rules. For more information on the public hearing, see the 

July 2005 Record, page 6.

Revised E&J

After considering public comments and testimony, the Commission decided to retain the current 

definitions of agent in 11 CFR 109.3 

and 300.2(b), but to explain more 

fully its decision to exclude “apparent authority.” In short, the Commission believes that the current 

definitions, which include “actual 

authority,” either express or implied, 

best reflect the intent and purposes 

of the statute. 

Furthermore, after examining 

its pre- and post-BCRA enforcement record, the Commission has 

Federal Election Commission

999 E Street, NW

Washington, DC 20463

800/424-9530

202/694-1100

202/501-3413 (FEC Faxline)

202/219-3336 (TDD for the

 hearing impaired)

Michael E. Toner, Chairman

Robert D. Lenhard, 

 Vice Chairman

David M. Mason, Commissioner

Hans A. von Spakovsky, 

 Commissioner

Steven T. Walther, Commissioner

Ellen L. Weintraub, Commissioner

Robert J. Costa, 

 Acting Staff Director

Lawrence H. Norton, 

 General Counsel

Published by the Information

 Division

Greg J. Scott, Assistant Staff

 Director

Carlin E. Bunch, Editor

http://www.fec.gov

determined that excluding “apparent 

authority” from the definitions of 

agent has not allowed circumvention of the Act nor led to actual or 

apparent corruption. The current 

definitions cover individuals engaged in a broad range of activities 

specifically related to BCRA-regulated conduct, rather than only to 

expenditures. This has dramatically 

increased the number of individuals 

and type of conduct subject to the 

Act, especially when compared to 

the Commission’s pre-BCRA definition of agent. 

Similarly, the Commission 

believes including “apparent authority” in the definitions of agent is 

not necessary in order to implement 

BCRA or the Act. “Actual authority,” either express or implied, is a 

broad concept that covers the wide 

range of activities prohibited by the 

statute. This not only provides committees with appropriate incentives 

for compliance, but also protects 

core political activity that could 

otherwise be restricted or subject to 

Commission investigation under an 

apparent authority standard. The 

revised E&J also provides analysis of several specific hypothetical 

situations raised by commenters to 

illustrate how “actual authority” sufficiently addresses behavior. 

Finally, the E&J concludes that 

liability premised on “actual authority” is best suited for the political 

context. Although “apparent authority” is applicable in commercial 

contexts, BCRA does not affect individuals who have been defrauded or 

have suffered economic loss due to 

their detrimental reliance on unauthorized representations. 

Applying “apparent authority” 

concepts developed to remedy fraud 

and economic loss to the electoral 

arena could restrict permissible 

electoral activity where there is no 

corruption or the appearance thereof.

The revised Explanation and 

Justification was published in the 

January 31, 2006, Federal Register 

(71 FR 4975) and is available on 

the FEC web site at http://www.fec.

gov/pdf/nprm/definition_agent/notice_2006-1.pdf.

 —Amy Pike

Regulations

(continued from page 1)
March 2006 Federal Election Commission RECORD 

3

1

 The commenters at the public hearings 

were: Jan Witold Baran, Chamber of 

Commerce; Robert F. Bauer, Democratic Congressional Campaign Committee; Donald J. Simon, Democracy 21; 

Marc E. Elias, Democratic Senatorial 

Campaign Committee; Paul S. Ryan, 

The Campaign Legal Center; Laurence 

E. Gold, AFL-CIO; Thomas J. Josefiak, 

Republican National Committee; Steve 

Hoersting, Center for Competitive 

Politics; Joseph E. Sandler, Democratic 

National Committee; William J. McGinley, National Republican Senatorial Committee; Cleta Mitchell, Foley 

& Lardner, LLP; Brian G. Svoboda, 

Democratic Legislative Campaign Committee; Ellen R. Malcolm, EMILY’s List; 

Karl J. Sandstrom, Association of State 

Democratic Chairs; Michael B. Trister, 

Service Employees International Union; 

Margaret McCormick, National Education Association; Donald F. McGahn 

II, National Republican Congressional 

Committee; and Lawrence M. Noble, 

The Center for Responsive Politics.

Federal Register 

Federal Register notices are 

available from the FEC’s Public 

Records Office, on the web site 

at http://www.fec.gov/law/law_

rulemakings.shtml and from the 

FEC Faxline, 202/501-3413

Notice 2006-1

Definitions of “Agent” for 

BCRA Regulations on NonFederal Funds or Soft Money and 

Coordinated and Independent 

Expenditures (71 FR 4975, 

January 31,2006)

Notice 2006-2

Definition of Federal Election 

Activity (71 FR 8926, February 

22, 2006)

to the definitions of voter registration activity, GOTV activity and 

voter identification. In addition, the 

NPRM proposed several changes to 

the definition of “in connection with 

an election in which a candidate for 

federal office appears on the ballot.” 

See page 1 of the June 2005 Record. 

On August 4, 2005, the Commission held a public hearing to receive 

testimony on the proposed rules. 

See page 4 of the September 2005 

Record. After considering the public 

comments and testimony, the Commission issued final rules that:

• Retain the current definitions 

of voter registration and GOTV 

activity, which exclude from these 

definitions mere encouragement to 

register and/or vote, and provide a 

more complete explanation of what 

the term voter registration activity 

encompasses;

• Amend the definition of voter 

identification to include acquiring 

information about potential voters, including, but not limited to, 

obtaining voter lists;

• Remove the exception to the definitions of GOTV activity and voter 

identification for associations or 

other similar groups of candidates 

for state and local office;

• Remove the reference to “within 

72 hours of an election” from the 

definition of GOTV activity;

• Revise the definition of “in connection with an election in which a 

candidate for federal office appears 

on the ballot” to remove restrictions on the rules for special elections to odd-numbered years.

Interim Final Rule

The Commission also voted to 

promulgate an interim final rule 

modifying the definition of “in connection with an election in which a 

candidate for federal office appears 

on the ballot.” This rule exempts 

activities and communications that 

are in connection with a nonfederal 

election held on a date separate from 

a date of any federal election and 

that refer exclusively to nonfederal 

candidates participating in the nonfederal election, ballot referenda or 

initiatives scheduled for the date of 

the nonfederal election, or the date, 

polling hours and locations of the 

nonfederal election.

The Commission approved the 

text of the new rule and directed the 

Office of General Counsel to draft 

an appropriate Explanation and Justification that will also seek public 

comment on the interim final rule. 

The final rules were promulgated in 

the Federal Register (71 FR 8926) 

on February 22, 2006 and are available on the FEC web site at http://

www.fec.gov/law/law_rulemakings.

shtml#definition_fea. The Interim 

Final Rule will be published and 

available in the Federal Register after final Commission approval of the 

Explanation and Justification.

 —Amy Pike

(continued on page 4)

Public Hearings 

on Coordinated 

Communications

On January 25 and 26, 2006, 

the Commission held public hearings concerning proposed changes 

to its coordinated communications 

regulations, resulting from the court 

decisions in Shays v. FEC. Specifically, the Court of Appeals in Shays

found that the Commission had not 

sufficiently justified the 120-day 

time frame contained in the content 

prong of its three-prong coordination test. In response, the Commission published a Notice of Proposed 

Rulemaking (NPRM) seeking 

comments on possible changes to 

the time frame and to other aspects 

of the content prong, as well as possible amendments to the conduct and 

payment prongs of the coordination 

rules

Commenters1 agreed that the 

Commission should create a brightline regulation and balance effective 
Federal Election Commission RECORD March 2006

4

Regulations

(continued from page 3)

regulations with First Amendment 

rights. There was disagreement, 

however, as to the time frame those 

regulations should cover, 

Some who appeared, such as Jan 

Baran and Joseph Sandler, preferred 

to keep the current 120-day time 

frame and revise the Explanation 

and Justification to reflect evidence 

that most communications with 

the purpose of influencing a federal election are distributed within 

120 days of a primary or general 

election. Those distributed outside 

that period tend to be financed by 

candidates’ own campaigns. Others 

argued that the 120-day time frame 

is inadequate because some ads distributed more than 120 days before 

a federal election are likely to be for 

the purpose of influencing that federal election. Therefore, if those ads 

are paid for by someone other than a 

candidate and are coordinated with a 

candidate, they should be regulated 

as coordinated communications. 

Other commenters, such as 

Robert Bauer, Cleta Mitchell and 

Donald McGahn, sought to apply the 

30- and 60-day periods that currently 

govern electioneering communications. They argued that regulating 

communications during the 30-day 

period before a primary election and 

the 60-day period before a general 

election best reflected congressional 

intent to restrict only communications made for the purpose of influencing an election. Others argued 

that there were deficiencies with 

this proposal because many such 

communications fall within the gap 

between the proposed primary and 

general election periods and in the 

time frames prior to these periods. 

Democracy 21, The Campaign 

Legal Center and The Center for 

Responsive Politics offered an alternative “tiered system” of regulation 

that focuses on the identity of the 

entity paying for the communication 

and the content and timing of the 

communication itself. They argued 

that their proposal best dealt with 

groups with different objectives 

and levels of participation and also 

prevented circumvention of the law. 

Others felt this proposal was confusing and complicated.

Many commenters focused on 

the lack of evidence regarding when 

candidates and others distribute 

communications that are electionrelated. Given that only one cycle 

has passed since the current coordinated communication rules were 

instituted, some felt that meaningful 

trend analysis was impossible. Karl 

Sandstrom noted that even if trends 

could be found, the regulations that 

are promulgated could influence the 

behavior that follows, indicating that 

it would be difficult to base a decision on such evidence. Democracy 

21, The Campaign Legal Center and 

the Center for Responsive Politics 

compiled an extensive list of ads that 

were run in the previous election 

cycle, but the commenters could not 

agree on what conclusions should be 

drawn from this evidence.

The commenters devoted a significant amount of time to discussing possible safe harbors to protect 

certain actions. Nearly all agreed 

that a safe harbor should be created to protect communications in 

which federal candidates endorse 

nonfederal candidates, as long as the 

endorsement does not promote, attack, support or oppose the election 

or defeat of the endorsing federal 

candidate or his or her opponent. 

Another safe harbor sought by 

party groups was an amendment 

to, or elimination of, the common 

vendor standard. The common 

vendor conduct standard is satisfied 

where an entity paying for a communication uses the same vendor as 

used by a candidate or political party 

committee during an election cycle 

and that common verndor transmits 

material information about the candidate or political party committee 

campaign to the entity paying for the 

communication. 

Many commenters argued that 

this common vendor rule is burdensome for vendors and committees 

alike. Some argued that the rule is 

applicable for an unnecessarily long 

period, as long as six years in the 

case of senate campaigns. Other 

groups were skeptical of this interpretation and believed decreasing the 

time period to, for example, 60 days, 

would encourage circumvention of 

the law.

For more information about the 

NPRM or public hearings, visit our 

web site at http://www.fec.gov/law/

law_rulemakings.shtml#coordinated

where audio recordings of the public 

hearings are available, as well as the 

original NPRM text, public comments and the January 2006 Record

summary. 

 —Carlin E. Bunch

FEC Web Site Offers 

Podcasts

In an effort to provide more 

information to the regulated 

community and the public, the 

Commission is making its open 

meetings and public hearings 

available as audio recordings 

through the FEC web site, as well 

as by podcasts. The audio files, 

and directions on how to subscribe 

to the podcasts are available 

under Audio Recordings through 

the Commission Meetings tab at 

http://www.fec.gov. 

The audio files are divided into 

tracks corresponding to each 

portion of the agenda for ease 

of use. To listen to the open 

meeting without subscribing to 

the podcasts, click the icon next to 

each agenda item. Although the 

service is free, anyone interested 

in listening to podcasts must 

download the appropriate software 

listed on the web site. Podcast 

subscribers will automatically 

receive the files as soon as they 

become available–typically a day 

or two after the meeting. 
March 2006 Federal Election Commission RECORD 

5

Party

Activities

2006 Coordinated Party 

Expenditure Limits

The 2006 coordinated party 

expenditure limits are now available. 

They are:

• $39,600 for House nominees;1 and 

• between $79,200 to $2,093,800 for 

Senate nominees, depending on 

each state’s voting age population.

Party committees may make these 

special expenditures on behalf of 

their 2006 general election nominees. National party committees 

have a separate limit for each nominee, but they share their limits with 

their national senatorial and congressional committees. Each state party 

committee has a separate limit for 

each House and Senate nominee in 

its state. Local party committees do 

not have their own separate limit. 

One party committee may authorize 

another party committee to make 

an expenditure against its limit. 

Local committees may only make 

coordinated party expenditures with 

advance authorization from another 

committee. 

Coordinated party expenditure 

limits are separate from the contribution limits; they also differ from contributions in that the party committee 

must spend the funds on behalf of 

the candidate rather than give the 

money directly to the campaign. 

Although these expenditures may 

be made in consultation with the 

candidate, only the party committee 

making the expenditure — not the 

1

 In states that have only one U.S. House 

Representative, the coordinated party 

expenditure limit for the House nominee is $79,200, the same amount as the 

lowest Senate limit. In other states, 

the limit for each House nominee is 

$39,600.

Authority to Make Coordinated Party 

Expenditures on Behalf of House and

Senate Nominees

National Party Committee May make expenditures on behalf of House 

and Senate nominees. May authorize1 other 

party committees to make expenditures 

against its own spending limits. Shares limits 

with national congressional and senatorial 

campaign committees.

State Party Committee May make expenditures on behalf of House 

and Senate nominees seeking election in the 

committee’s state. May authorize1 other party 

committees to make expenditures against its 

own spending limits.

Local Party Committee May be authorized1 by national or state party 

committee to make expenditures against its 

limits.

Calculating 2006 Coordinated 

Party Expenditure Limits

Amount Formula

Senate Nominee

See table on 

facing page

The greater of:

$20,000 x COLA2 or 

2 cents x state VAP3 x COLA

House Nominee in 

State with Only One 

Representative $79,200 $20,000 x COLA2

House Nominee in Other 

States $39,600 $10,000 x COLA2

Nominee for Delegate or 

Resident Commissioner4 $39,600 $10,000 x COLA2

1 The authorizing committee must provide prior authorization specifying the amount 

the committee may spend.

2

 COLA means cost-of-living adjustment. The 2006 COLA is 3.961. Limits are 

rounded to the nearest hundred.

3

 VAP means voting age population. 

4

 American Samoa, the District of Columbia, Guam and the Virgin Islands elect 

Delegates; Puerto Rico elects a Resident Commissioner. (continued on page 6)
Federal Election Commission RECORD March 2006

6

Coordinated Party Expenditure Limits for

2006 Senate Nominees

State Voting Age Population 

 (In thousands)

Expenditure Limit

Alabama 3,468 $274,700

Alaska* 475 $79,200

Arizona 4,359 $345,300

Arkansas 2,104 $166,700

California 26,430 $2,093,800

Colorado 3,485 $276,100

Connecticut 2,675 $211,900

Delaware* 648 $79,200

Florida 13,722 $1,087,100

Georgia 6,710 $531,600

Hawaii* 975 $79,200

Idaho 1,055 $83,600

Illinois 9,522 $754,300

Indiana 4,669 $369,900

Iowa 2,296 $181,900

Kansas 2,070 $164,000

Kentucky 3,193 $252,900

Louisiana 3,376 $267,400

Maine 1,044 $82,700

Maryland 4,197 $332,500

Massachusetts 4,941 $391,400

Michigan 7,597 $601,800

Minnesota 3,903 $309,200

Mississippi 2,173 $172,100

Missouri 4,422 $350,300

Montana* 731 $79,200

Nebraska 1,327 $105,100

Nevada 1,794 $142,100

New Hampshire 1,007 $79,800

New Jersey 6,556 $519,400

New Mexico 1,439 $114,000

New York 14,709 $1,165,200

North Carolina 6,542 $518,300

North Dakota* 500 $79,200

Ohio 8,705 $689,600

Oklahoma 2,695 $213,500

Oregon 2,791 $221,100

Pennsylvania 9,613 $761,500

Rhode Island* 831 $79,200

South Carolina 3,228 $255,700

South Dakota* 588 $79,200

Tennessee 4,572 $362,200

Texas 16,534 $1,309,800

Utah 1,727 $136,800

Vermont* 490 $79,200

Virginia 5,743 $455,000

Washington 4,803 $380,500

West Virginia 1,434 $113,600

Wisconsin 4,240 $335,900

Wyoming* 395 $79,200

* In these states, which have only one U.S. House Representative, the spending limit 

for the House nominee is $79,200.

decision. WRTL appealed to the 

Supreme Court and on September 

17, 2005, the Supreme Court agreed 

to hear the case.

Under the Federal Election Campaign Act (the Act) and Commission 

regulations, an EC is defined, with 

some exceptions, as any broadcast, 

cable or satellite communication that 

refers to a clearly identified federal 

candidate and is publicly distributed 

in the relevant jurisdiction within 

60 days before the general election 

or 30 days before a primary election or a nominating convention for 

the office sought by the candidate. 

2 U.S.C. 434(f)(3) and 11 CFR 

100.29. Corporations may not make 

ECs using their general treasury 

funds.1 2 U.S.C. 441b(a)-(b) and 11 

CFR 114.2 and 114.14. 

 The plaintiff’s activities involved 

paying for broadcast advertisements in 2004 that asked Wisconsin 

listeners to contact U.S. Senators 

Kohl and Feingold and to ask them 

1

 Commission regulations provide an 

exception allowing “qualified nonprofit 

corporations” to pay for electioneering 

communications. 11 CFR 114.2(b)(2); 

11 CFR 114.10. However, WRTL alleges 

that it does not meet the definition of a 

qualified nonprofit corporation. 

Court Cases

(continued from page 1)

candidate committee — must report 

them. Coordinated party expenditures are reported on FEC Form 3X, 

line 25, and are always itemized on 

Schedule F, regardless of amount.

The accompanying tables on 

pages 5 and 6 include: 

• Information on which party committees have the authority to make 

coordinated party expenditures; 

• The formula used to calculate the 

coordinated party expenditure 

limits; and 

• A listing of the state-by-state coordinated party expenditure limits. 

 —Carlin E. Bunch
March 2006 Federal Election Commission RECORD 

7

to vote against anticipated filibusters 

of federal judicial nominees. Senator Feingold was up for re-election 

in 2004 and some of the intended 

ads would have run during the EC 

periods for Wisconsin’s primary and 

general elections. 

According to WRTL, because the 

ads expressed an opinion on pending 

Senate legislative activity, urged listeners to contact their Senators and 

did not refer to any political party 

or support or attack any candidate, 

they constituted bona fide grassroots 

lobbying. WRTL argued that the ads 

were not the “functional equivalent 

of express advocacy;” thus, there 

was no constitutional justification 

for the prohibition on corporate 

payments for these ads or for requiring the ads to be paid for through a 

political action committee. WRTL 

asserted that in this instance the 

prohibition on corporate-sponsored 

ECs unconstitutionally burdened 

the rights of free speech, free association and petitioning the government — all in violation of the First 

Amendment.

Court Decision

The Supreme Court issued a per 

curiam decision vacating the District 

Court’s judgment in this case based 

on the district court’s incorrect interpretation of McConnell.

The district court reasoned that 

in upholding the EC provisions of 

BCRA in McConnell, the Supreme 

Court left no room for the kind of 

“as applied” challenge brought by 

WRTL. According to the District 

Court’s interpretation, McConnell

upheld all applications of the primary definition of electioneering 

communication, suggesting little 

likelihood of success for an “as 

applied” challenge to a particular 

application of that definition. The 

District Court determined that this 

deliberate upholding of “all applications” stands in contrast to the 

Supreme Court’s explicit acknowledgment that other parts of the 

statute, which it also upheld, might 

Kean for Congress v. FEC

In separate rulings issued on 

January 13 and January 20, the U.S. 

District Court for the District of 

Columbia ordered the Commission 

to pay attorney’s fees totaling over 

$31,000 to the Kean for Congress 

Committee. The fees stem from 

the Committee’s lawsuit challenging the Commission’s dismissal of 

an administrative complaint it had 

filed — a decision the Commission 

ultimately reversed on remand from 

the district court. For additional 

information, see the December 2001 

Record, page 3 and the March 2004 

Record, page 7.

Background

In 2000, Kean for Congress 

Committee brought an administrative complaint to the FEC regarding the Council for Responsible 

Government’s funding of campaign 

mailings in an attempt to influence the New Jersey Congressional 

Seventh District Republican primary. 

The Commission subsequently 

be subject to “as applied” challenges 

in the future.

The Supreme Court, however, 

concluded that the District Court 

misinterpreted the relevance of 

McConnell’s statement that it was 

upholding “all applications of the 

primary definition of electioneering 

communications.” The Supreme 

Court clarified that McConnell, in

upholding the primary definition 

against a facial challenge, “did not 

purport to resolve future as applied 

challenges,” such as the one brought 

forth by WRTL. The Supreme Court 

vacated the judgment in the case and 

remanded it to the District Court to 

reconsider the merits of WRTL’s as 

applied challenge in the first instance.

WRTL filed a motion to reinstate 

the parties’ prior cross-motions for 

summary judgment on January 24, 

2006.

 —Carrie Hoback

voted 3-3 on whether to find “reason 

to believe” that the Act had been 

violated and then unanimously voted 

to dismiss the complaint and close 

the file. The committee asked the 

U.S. District Court for the District of 

Columbia to find that the Commission acted contrary to law when it 

dismissed the committee’s administrative complaint. 

At the FEC’s request and over the 

committee’s opposition, the court 

remanded the case to the FEC for 

60 days so it could reconsider the 

committee’s administrative complaint in light of McConnell v. FEC, 

540 U.S. 93 (2003), which the 

Supreme Court had issued after the 

FEC had dismissed the committee’s 

administrative complaint but before the Commissioners had issued 

their Statements of Reasons for that 

dismissal. The court’s order did not 

direct the FEC to take any particular 

position on remand or compel the 

agency to reverse its dismissal. On 

remand, the FEC found “reason to 

believe” and subsequently entered 

into a conciliation agreement with 

the Council for Responsible Government. 

Analysis

On May 31, 2005 Kean for Congress filed a motion for attorney’s 

fees and expenses, arguing that under the Equal Access to Justice Act it 

was a “prevailing party.” In order to 

be a prevailing party, the party must 

prove that:

• There has been a court-ordered 

change in the legal relationship 

between the parties;

• Judgment was entered in the 

party’s favor; and 

• The judicial pronouncement confers some judicial relief.

The court found that the remand 

order was a court-ordered change 

in the legal relationship, by forcing 

the FEC to reconsider the administrative complaint within 60 days. 

Additionally, it was favorable to the 

(continued on page 8)
Federal Election Commission RECORD March 2006

8

Advisory Opinion 2005-20: 

Payroll Deduction for LLP 

PAC

Partners at Pillsbury Winthrop 

Shaw Pittman LLP (PWSP) may 

use an automated electronic payroll 

system to make voluntary contributions to PWSP’s PAC, provided that 

the PAC pays PWSP in advance for 

the costs associated with the use of 

the system.

Background

PWSP is a limited liability 

partnership consisting of over 900 

attorneys, more than 300 of whom 

are partners. PWSP qualifies as 

a federal contractor because it 

Advisory

Opinions

committee, even though it originally 

had opposed the remand, and offered 

relief in the form of time constraints, 

which addressed the grievances of 

the committee. 

After concluding that the committee was a prevailing party, the court 

considered whether the FEC’s position was “substantially justified.” 

The court found that the FEC’s position was not substantially justified 

because, among other reasons, the 

three Commissioners who initially 

voted against pursuing the administrative complaint did not address the 

McConnell decision in their Statement of Reasons. The court found 

the committee’s request for attorney’s fees to be reasonable and ordered the FEC to pay over $31,000. 

For more information on this case, 

see December 2001 Record, page 3 

and March 2004 Record, page 7.

 —Carlin E. Bunch

FEC v. Kalogianis

On January 11, 2006, the Commission asked the U.S. District 

Court for the Middle District of 

Florida to find that Constantine 

Kalogianis, Kalogianis for Congress, 

Inc.; Patricia Jones, as treasurer of 

Kalogianis for Congress; Kalogianis 

and Associates, P.A.; and Liberty 

Title Agency, Inc. violated the Federal Election Campaign Act’s (the 

Act) ban on corporate contributions 

and its reporting requirements.

Background

The Act prohibits making or accepting corporate contributions in 

connection with a federal election. 

2 U.S.C. 441b(a). A contribution is 

any gift, subscription, loan, advance, 

or deposit of money or anything of 

value made by any person for the 

purpose of influencing any election 

for federal office. The Act also requires, among other things, that the 

identity of each person who makes 

a loan be disclosed along with the 

Court Cases

(continued from page 7)

identification of any endorser of the 

loan and the date and amount of the 

loan. 2 U.S.C. 434(b). 

Analysis

During the 2002 campaign, the 

Kalogianis Committee accepted six 

loans totaling over $54,000 from 

Kalogianis & Associates and Liberty Title Agency, corporations Mr. 

Kalogianis owns. Additionally, the 

committee operated from the offices 

of Kalogianis & Associates without charge for administrative and 

overhead expenses. The committee 

reported that it had received personal 

loans from Constantine Kalogianis, 

when part of one loan was from 

Kalogianis & Associates and part of 

another loan was from Liberty Title 

Agency. The committee also failed 

to report the correct dates on which 

it repaid loans made by Liberty Title 

Agency.

The FEC asked the court to find 

that the defendants violated 2 U.S.C. 

441b(a) and 434(b), permanently 

enjoin them from violating these acts 

and assess a civil penalty against 

each defendant.

 —Carlin E. Bunch 

occasionally provides legal services 

to federal government agencies. 

As a partnership, PWSP cannot act 

as the connected organization for 

a separate segregated fund (SSF); 

instead it sponsors a nonconnected 

political action committee (PAC). 

Any support PWSP might provide 

to the PAC would be a partnership 

contribution. 

In 2006, the PAC wants to allow PWSP partners to contribute 

voluntarily to the PAC by means 

of PWSP’s automated electronic 

payroll system. Currently, partners 

wishing to contribute to PWSP PAC 

must do so by personal check. The 

PAC would pay all costs associated 

with the use of the payroll system.

Analysis

The Federal Election Campaign 

Act (the Act) and Commission regulations prohibit federal contractors 

— including partnerships — from 

making contributions or expenditures in connection with any federal election. 2 U.S.C. 441c(a); 11 

CFR115.4(a). However, individuals 

who work for a federal contractor 

may contribute in their own name 

from their own personal assets. 11 

CFR 115.4(b). PWSP partners using PWSP’s automated electronic 

payroll system exercise complete 

control over the funds that represent 

their net compensation by making 

their individual account designations, and the partners may modify 

or revoke those designations at any 

time. 

Significantly, PWSP has no 

control over the partners’ choice of 

the recipient of any disbursement 

from the firm’s payroll account and 

at the moment a disbursement takes 

place from PWSP’s payroll account, 

the funds being disbursed are the 

personal assets of the partner. This 

is the functional equivalent of the 

partner writing a personal check. 

In past advisory opinions, the 

Commission has stated that the federal contractor prohibition extends 

to the use of any partnership funds 

to pay for the PAC’s establishment, 
March 2006 Federal Election Commission RECORD 

9

Advisory Opinion Requests

AOR 2006-1

Leadership PAC’s ability to 

purchase at a discounted rate from 

the publisher copies of a Senator’s 

book. (PAC for a Change, January 

20, 2006)

AOR 2006-2

Whether for-profit company with 

owners is a membership organization that may solicit separate group 

of dues-payers for contributions to 

the company’s SSF (Robert Titley, 

January 18, 2006) 

AOR 2006-3

Use of common username and 

password for web site communication with restricted class (Sean 

Mackay, January 31, 2006)

AOR 2006-4

Donation of campaign funds by 

Congressional candidate to state 

ballot initiative committee and 

campaign committee’s financing of 

endorsement ads (Jon Ponder February 7, 2006)

AOR 2006-5

Affiliation of local committee 

with state party committee and ability of local party to contribute to federal candidates without registering 

(J. Mark White, January 30, 2006)

ADR Program Update

The Commission recently resolved 10 additional cases under 

the Alternative Dispute Resolution 

(ADR) program. The respondents, 

the alleged violations of the Federal 

Election Campaign Act (the Act) 

and final disposition of the cases are 

listed below.

1. The Commission reached 

an agreement with M. Jaliman for 

US House of Representatives, M. 

Kathryn Jaliman, treasurer regarding failure to register, failing to 

report and failing to include a 

disclaimer with public communications. The respondents stated that 

the committee’s financial reports 

were filed in accordance with the 

provisions of the Act; however, they 

acknowledged distributing direct 

mail without the required disclaimer 

notice and failed to include appropriate disclaimers on the web site 

and phone messages. They agreed 

to correct the committee web site to 

ensure it complies with the Act and 

send the treasurer to an FEC seminar. (ADR 258)

2. The Commission reached an 

agreement with Walcher for Congress, Lon Carpenter, treasurer, 

regarding failure to accurately report 

debts. The respondents acknowledged that their staff is inexperienced with reporting responsibilities. 

They have hired an accounting firm 

to facilitate reporting and agreed to 

maintain the contract with that firm. 

They also agreed to establish an internal control system to monitor all 

campaign related expenditures, establish a campaign finance resource 

library for staff, send a staff member 

to an FEC seminar and pay a $9,000 

penalty. (ADR 263*)

* This case was internally generated.

Alternative 

Dispute 

Resolution

administration and solicitation costs. 

As a result, PWSP may not pay 

any of the costs associated with a 

partner’s use of PWSP’s automated 

electronic payroll system to make 

voluntary contributions to the PAC 

without PWSP making a prohibited 

contribution. However, the Commission has allowed a partnership 

to pay for its PAC’s use of goods 

and/or services that the partnership 

offers in the usual course of its business, so long as the political committee provides reimbursement within 

a “commercially reasonable time.” 

AO 2001-7. This allowance does 

not extend to goods and services that 

are not offered by the partnership in 

the ordinary course of its business. 

Since use of its automated electronic 

payroll system is not offered to 

PWSP’s clients in its normal course 

of business, the PAC must pay in 

advance all costs associated with 

using the system in order to avoid an 

impermissible contribution by federal contractor PWSP to the PAC.1

 

Date issued: January 23, 2006

Length: 4 pages

 —Myles Martin

1

The Commission considered, but could 

not reach a consensus on, whether the 

PAC may reimburse PWSP within a 

commercially reasonable time, rather 

than pre-pay for these costs.

Information

FEC Designates New Chief 

FOIA Officer

The Commission has designated 

Thomasenia P. Duncan, Associate 

General Counsel for General Law 

and Advice, to serve as the agency’s 

new Chief Freedom of Information 

Act (FOIA) Officer, and members 

of the Administrative Law Team she 

oversees to function as the FOIA 

Public Liaison and the FOIA Service 

Center. This move, which comes in 

response to Executive Order 13392, 

consolidates operations previously 

shared by the FEC’s Press Officer 

and the Office of General Counsel. 

Now, Ms. Duncan and her team will 

process all requests for information 

made under FOIA. For additional 

information, visit the FEC’s FOIA 

web page at http://www.fec.gov/

press/foia.shtml.

(continued on page 10)
Federal Election Commission RECORD March 2006

10

3. The Commission rejected the 

settlement agreement for Brady for 

Congress, W. R. Eissler, treasurer, 

and closed the file. The agreement 

suggested the Commission prematurely had found a violation of law 

and further indicated that it would 

be inappropriate for the Commission 

to make even a preliminary finding when, as here, the committee 

had failed to make a “best efforts” 

showing to the Reports Analysis 

Division. In a Statement of Reasons 

issued by Commissioners Michael 

Toner, Danny McDonald, David 

Mason, Ellen Weintraub and Scott 

Thomas, the Commission found that 

this agreement would confuse the 

ADR process and the “best efforts” 

requirements. (ADR 264*)

4. The Commission reached an 

agreement with Jim Feldkamp for 

Congress, Ronald D. Calkins, treasurer, regarding failure to disclose 

disbursements. The respondents 

Alternative Dispute 

Resolution

(continued from page 9)

contend that the alleged “campaignrelated activity” occurred during a 

personal trip and involved incidental 

encounters. They agreed to amend 

the committee’s 2004 Quarterly 

Report to reflect the candidate’s 

expenditures, establish and maintain 

a resource center for staff and pay a 

$300 penalty. (ADR 265)

5. The Commission reached an 

agreement with Millican for U.S. 

Senate, Marc J. Millican, treasurer, regarding failure to register and report. The respondents 

acknowledged misunderstanding 

the Commission’s requirement 

to file a Statement of Candidacy, 

register with the Commission and 

file reports. They explained that 

the committee filed the necessary 

reports with the Commission on 

receipt of the complaint and receiving guidance from the Commission. 

They agreed to send a staff member 

to an FEC seminar and pay a $7,500 

penalty.

6. The Commission reached an 

agreement with the Law Offices of 

James G. Sokolove, regarding failure 

to file an independent expenditure 

statement, lack of disclaimer and 

making an illegal corporate contribution. The respondent stated that the 

letter in question did not constitute 

a prohibited corporate contribution 

or a corporate independent expenditure given the respondent’s status 

as a sole proprietorship. Instead, 

it was a “permissible” independent 

expenditure as defined in the regulations. He acknowledged the error in 

failing to file an independent expenditure report and failing to include a 

disclaimer notice on the letter. The 

respondent acknowledged receipt of 

a letter of admonishment from the 

Commission. (ADR 274)

7. The Commission reached an 

agreement with Republican Main 

Street Partnership PAC, Sara Chamberlain Resnick, treasurer, regarding 

failure to file 24-Hour reports. The 

respondents failed to file the reports 

because they believed they had not 

authorized the expenditure. They 

agreed to pay the $1,250 civil penalty and to establish internal operating procedures that will require prior 

review by the committee before 

expenditures are authorized. (ADR 

281*)

8. The Commission reached 

an agreement with Magnum for 

Congress, Thomas Diehl, treasurer, 

regarding failure to accurately report 

receipts. The respondents explained 

that the committee had software 

problems and contended that there 

was no intent to mislead. They 

have instituted a number of changes 

to their procedures for reporting, 

including hiring a professional 

accounting firm, which they have 

agreed to keep under contract for 

the length of the campaign. They 

also agreed to send a staff member 

to an FEC seminar, train personnel 

on reporting requirements, prepare a 

manual on reporting responsibilities, 

set up and maintain a resource center 

on reporting requirements and pay a 

$2,000 penalty. (ADR 286*)

9. The Commission reached 

an agreement with Hostetler for 

Congress, John Grab, treasurer, 

regarding failure to accurately report 

disbursements. The respondents 

acknowledged inadvertent violations 

of the Act due to inexperience. They 

agreed to file all amended reports 

with an accurate and adequate 

description of the purpose of each 

disclosure and work with Commission staff to terminate the committee. (ADR 291*)

10. The Commission rejected the 

settlement agreement for Thelma for 

Congress, Robert J. Catron, treasurer, and closed the file. The agreement suggested the Commission 

prematurely had found a violation 

of law and further indicated that it 

would be inappropriate for the Commission to make even a preliminary 

finding when, as here, the committee 

had failed to make a “best efforts” 

showing to the Reports Analysis 

Division. In a Statement of Reasons 

Campaign Guides 

Available

 For each type of committee, a 

Campaign Guide explains, in clear 

English, the complex regulations 

regarding the activity of political 

committees. It shows readers, 

for example, how to fill out FEC 

reports and illustrates how the law 

applies to practical situations.

 The FEC publishes four 

Campaign Guides, each for a 

different type of committee, 

and we are happy to mail your 

committee as many copies as 

you need, free of charge. We 

encourage you to view them on 

our web site www.fec.gov.

 If you would like to place an 

order for paper copies of the 

Campaign Guides, please call the 

Information Division at 800/424-

9530.
March 2006 Federal Election Commission RECORD 

11

Roundtable Schedule

Date Subject Intended Audience

April 5

9:30-11 a.m.

Meet and Greet

11-11:30 a.m.

Reporting for PACs and 

Party Committees, plus 

Talk to Your Analyst OneOn-One

Individuals responsible for 

filing FEC reports for PACs 

and Party Committees.

Up to 30 may attend.

April 5

1:30-3 p.m.

Hands-on Help with FECFile and E-filing for PACs 

and Party Committees

PACs and Party Committees that use FECFile and/or 

have questions about electronic filing.

Up to 16 may attend.

April 5

1:30-3 p.m.

Meet and Greet

3-3:30 p.m.

Reporting for Candidates 

and Their Committees, 

plus Talk to Your Analyst 

One-On-One 

Individuals responsible for 

filing FEC reports for Candidate Committees. 

Up to 30 may attend.

April 5

9:30-11 a.m.

Hands-on Help with 

FECFile and E-filing for 

Candidates and their 

Committees

Campaigns that use FECFile 

and/or have questions about 

electronic filing. 

Up to 16 may attend.

Outreach

FECFile Update

The FEC’s electronic filing software, FECFile, has been updated. 

The new FECFile Version 5.3.1.0 

replaces Version 5.2.0.1. Version 

5.2.0.1 will no longer be accepted. 

Committees that file electronically 

must update their filing software. 

Committees that use commercial software should contact their 

vendors for the latest release. The 

new FECFile version is available for 

download at http://www.fec.gov/

elecfil/FECFileIntroPage.shtml.

If you have any questions, please 

call the Electronic Filing Office at 

202/694-1307 or 800/424-9530 ext. 

1307.

Reports

issued by Commissioners Michael 

Toner, Danny McDonald, David 

Mason, Ellen Weintraub and Scott 

Thomas, the Commission found that 

this agreement would confuse the 

ADR process and the “best efforts” 

requirements. (ADR 293*)

 —Carlin E. Bunch

The first number in each citation refers to the numeric month of 

the 2006 Record issue in which the 

article appeared. The second number, following the colon, indicates 

the page number in that issue. For 

example, “1:4” means that the article 

is in the January issue on page four.

Advisory Opinions

2005-16: Press Exemption Applied to 

Web Sites, 1:11

2005-18: Candidate May Host Radio 

Program, 1:12

2005-19: Radio Program Qualifies for 

Press Exemption, 2:3

2005-20: Payroll Deduction for LLP 

PAC, 3:8

Compliance

Administrative Fine Program Extended, 1:15

Alternative Dispute Resolution Update, 1:15, 2:7, 3:9

MUR 5628: Contributions in the 

Name of Another, 1:14

MUR 5635: No-Risk Contract Results 

in Corporate Contributions, 2:6

Sharpton Repayment Agreement, 2:6

Correction

Reports Due in 2006, 2:10

Court Cases

____ v. FEC

– CREW, 1:13

– EMILY’s List, 2:5

– Liffrig v. FEC, 2:5

– Kean for Congress, 3:7

– Wisconsin Right to Life, 3:1 

Index

(continued on page 12)

Reporting and FECFile Help

On April 5, 2006, the Commission will host reporting and electronic filing workshops. See the 

chart below for details. The reporting workshops will address common filing problems and respond to 

questions committees may have as 

they prepare to file their 1st quarter 

April 15 report. The workshops will 

be followed by a half-hour “meet 

and greet” at which each attendee 

will have an opportunity to meet 

the campaign finance analyst who 

reviews his or her committee’s reports. The electronic filing sessions 

will provide hands-on instruction 

for committees that use the Commission’s FECFile software and will 

address questions filers may have 

concerning electronic filing. 

Attendance is limited to 30 people 

per session for reporting workshops, 

and 16 people per session for the 

electronic filing workshops. Registration is accepted on a first-come, 

first-served basis. The registration 

form is available on the FEC web 

site at http://ww.fec.gov/info/outreach.shtml#roundtables and from 

Faxline, the FEC’s automated fax 

system at 202/501-3414 (request document 590). For more information, call 

the Information Division at 800/424-

9530, or locally at 202/694-1100.

 —Kathy Carothers
FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

Official Business

Penalty for Private Use, $300

Federal Election Commission RECORD March 2006

Statistics

Senate Fundraising Figures, 2:8

Web Site

Administrative Fines Calculator, 2:10

Commission Calendar Always Up-ToDate, 1:18

Enforcement Query System Available 

on FEC Web Site, 1:18

FEC Web Site Presents Podcasts, 2:9

Index

(continued from page 11)

FEC v. ____

– Kalogianis, 3:8

– Reform Party, 1:13

Party Activities

2006 Coordinated Party Expenditure 

Limits, 3:5

Regulations

Coordinated Communications NPRM, 

1:2

Electioneering Communications, final 

rules 2:1

FEA final rules, 3:2

Public Hearing on Coordinated Communications, 3:3

Revised E&J for “Agent,” 3:1

State, District and Local Party Committee Wages, final rules, 1: 3

Reports

California Special Election Reporting: 

50th District, 2:4

Due in 2006, 1:4, 2:10

FECFile Update, 3:11