October 2005 Federal Election Commission Volume 31, Number 10

Table of Contents

 Court Cases

 1 Shays v. FEC

 3 Augusti v. FEC

 3 Cooksey v. FEC

 Reports

 1 October Reporting Reminder

 3 Advisory Opinions

 Regulations

 6 NPRM on Electioneering 

Communications

 8 Comment Periods for Proposed 

Rules Extended

 9 Alternative Dispute Resolution

 Outreach

 10 San Antonio Regional Conference

 10 Seminar for Nonconnected PACs

 11 Index

Court Cases

October Reporting 

Reminder

The following reports are due in 

October1:

• All principal campaign committees of House and Senate candidates must file a quarterly report 

by October 15. The report covers 

financial activity from July 1 (or 

the day after the closing date of the 

last report) through September 30. 

• Principal campaign committees of 

Presidential candidates must file 

a report by October 15, if they are 

quarterly filers (the report covers financial activity from July 

1 through September 30), or by 

October 20, if they are monthly 

filers (the report covers activity for 

the month of September).

• All national party committees, 

PACs and state and local party 

committees that elect to following a monthly filing schedule and 

state and local party committees 

required to file monthly because 

1 Committees involved in the October 4, 

2005, Special Election in California’s 

48th Congressional District may be 

required to file additional reports in October. See the September 2005 Record, 

page 6, for details.

Reports

Shays v. FEC

On August 29, 2005, the Commission filed with the U.S. Court of 

Appeals for the District of Columbia 

Circuit a petition for rehearing en 

banc of the court’s July 15, 2005, 

ruling in this case. In that ruling, 

a three-judge panel of the appeals 

court affirmed the appealed portions 

of the district court’s decision invalidating several Commission regulations that implement provisions of 

the Bipartisan Campaign Reform 

Act of 2002 (BCRA). See the September 2005 Record, page 1.

In its petition for rehearing, the 

Commission argues that consideration by the full appeals court is 

necessary because the decision by 

the three-judge panel with respect 

to whether Representatives Christopher Shays and Martin Meehan have 

standing to bring this suit conflicts 

with the Supreme Court’s findings 

in McConnell v. FEC and with the 

DC circuit’s own decisions in prior 

cases. 

The Commission also argues that 

rehearing is warranted because the 

three-judge panel’s decision involves 

exceptionally important issues. First, 

the appeals court decision regarding standing effectively allows any 

(continued on page 2)

(continued on page 3)
Federal Election Commission RECORD October 2005

2

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)

Scott E. Thomas, Chairman

Michael E. Toner, Vice Chairman

David M. Mason, Commissioner

Danny L. McDonald, 

 Commissioner

Ellen L. Weintraub, Commissioner

James A. Pehrkon, Staff Director

Lawrence H. Norton, General

 Counsel

Published by the Information

 Division

Greg J. Scott, Assistant Staff

 Director

Amy Kort, Editor

http://www.fec.gov

2

 The regulation covers individuals and 

organizations required to file reports 

with the Commission, including any person making an independent expenditure. 

Disbursements made by individuals or 

unregistered entities for electioneering 

communications do not count toward 

the $50,000 threshold for mandatory 

electronic filing. 11 CFR 104.18(a).

they engage in reportable federal 

election activity must file a monthly report by October 20. This report 

covers activity for the month of 

September. 

Note that the October 15 reporting deadline falls on a weekend. Filing deadlines are not extended when 

they fall on weekends. 

Filing Electronically

Under the Commission’s mandatory electronic filing regulations, 

individuals and organizations2

who receive contributions or make 

expenditures in excess of $50,000 

in a calendar year—or expect to do 

so—must file all reports and statements with the FEC electronically. 

Electronic filers who instead file on 

paper or submit an electronic report 

that does not pass the Commission’s 

validation program will be considered nonfilers and may be subject 

to enforcement action, including 

administrative fines. 11 CFR 104.18.

Senate committees and other 

committees that file with the Secretary of the Senate are not subject to 

the mandatory electronic filing rules, 

but may file an unofficial electronic 

copy of their reports with the Commission in order to speed disclosure.

Timely Filing for Paper Filers

Reports sent by registered or certified mail or “overnight mail” must 

be postmarked by the filing date. If 

using overnight mail, the delivery 

service must receive the report by 

the mailing date. “Overnight mail” 

includes Priority or Express Mail 

having a delivery confirmation, or an 

overnight delivery service with an 

online tracking system. A committee 

sending its reports by certified mail 

should keep its mailing receipt with 

the postmark as proof of filing. The 

U.S. Postal service does not keep 

complete records of items sent by 

certified mail. A committee sending 

its reports by registered, Express 

or Priority mail, or by an overnight 

delivery service, should also keep a 

receipt as proof that the report was 

transmitted. 

Reports sent by any other 

means—including first class mail 

and courier—must be received by 

the FEC before it closes its doors 

on the filing deadline. 2 U.S.C. 

434(a)(5) and 11 CFR 104.5(e). The 

Commission’s Public Disclosure Division will be open from 10 a.m. to 

4 p.m. on Saturday, October 15th, to 

receive and process hand-delivered 

reports and reports received via first 

class mail.

For those filers who are not 

required to file their reports electronically, paper forms are available 

on the FEC’s web site (http://www.

fec.gov/info/forms.shtml) and from 

FEC Faxline, the agency’s automated fax system (202/501-3413).

Filing Frequency for PACs

PACs may file on either a semiannual or a monthly basis in non-election years. Committees wishing to 

change their filing frequency must 

notify the Commission in writing when filing a report under the 

committee’s current schedule. Electronic filers must file this request 

electronically. A committee may 

change its filing frequency only once 

per calendar year. 11 CFR 104.5(c).

Filing Frequency for Party 

Committees

A state, district or local party 

committee that filed monthly in 2004 

due to its federal election activity 

must notify the Commission in writing if it wishes to file semiannually 

in 2005. 11 CFR 104.5(b)(2). Electronic filers must file this request 

electronically.

Additional Information

For more reporting information 

on 2005 reporting dates:

• See the reporting tables in the 

January 2005 Record;

• Call and request the reporting 

tables from the FEC at 800/424-

9530 or 202/694-1100;

• Fax the reporting tables to yourself 

using the FEC’s Faxline (202/501-

3413, document 586); or

• Visit the FEC’s web page at http://

www.fec.gov/info/report_dates.

shtml to view the reporting tables 

online.

 —Amy Kort

Reports

(continued from page 1)
October 2005 Federal Election Commission RECORD 

3

candidate to challenge nearly all 

Commission regulations without 

demonstrating any personal harm 

from a particular regulation. This 

interpretation of the court’s standing 

requirements creates “uncertainty 

and instability in the law affecting 

constitutionally protected advocacy 

during the relatively short congressional election cycles.” Second, the 

decision failed to give the required 

deference to the Commission’s 

“exercise of its judgment in balancing the conflicting policies and First 

Amendment interests underlying this 

complex statute.” The Commission 

thus requests that the court grant its 

petition for rehearing.

U.S. Court of Appeals for the 

District of Columbia Circuit, CV04-

5352.

 —Amy Kort

Court Cases

(continued from page 1)

Augusti, Augusti for 

Congress v. FEC

On April 26, 2005, the U.S. District Court for the Western District 

of Tennessee granted in part the 

Commission’s motion to dismiss 

this case, and on August 10, the 

plaintiff voluntarily dismissed the 

complaint. The court found that 

Mark A. Augusti lacked standing 

to challenge the FEC’s final determination against Mark A. Augusti 

for Congress (the Committee) and 

its treasurer. The court also found 

that Mr. Augusti could not act as the 

Committee’s pro se legal counsel 

and gave the Committee 30 days 

to retain a licensed attorney or the 

case would be dismissed for failure 

to prosecute. Mr. Augusti informed 

the court on June 2 that he did not 

intend to retain counsel for the Committee.

Background

On June 30, 2003, the Commission found reason to believe that 

the Committee had filed its 2002 

Year End report 26 days late. See 2 

informed the court that he would not 

be hiring counsel for the Committee 

and thus, he was withdrawing the 

complaint. On August 10, 2005, the 

Court signed an order dismissing the 

case. See the January 2005 Record, 

page 13.

U.S. District Court for the Western District of Tennessee, Memphis 

Division, 04-2454-D/An.

 —Amy Kort

U.S.C. §434(a). On May 19, 2004, 

the Commission made a final determination that the Committee had violated 2 U.S.C. §434(a) and assessed 

a $750 civil money penalty. 11 CFR 

111.43. The Commission did not 

accept the treasurer’s absence from 

the country until mid-January as an 

“extraordinary circumstance” that 

prevented her from timely filing the 

report. 11 CFR 111.35(b)(1)(iii). 

On June 2, 2004, Mr. Augusti 

replaced the treasurer, and on June 

16, he and the Committee filed a pro 

se petition in court challenging the 

Commission’s final determination.

Court Decision

The court granted the Commission’s motion to dismiss the case 

with respect to Mr. Augusti, finding 

that he lacked standing to challenge 

the administrative determination 

because he was not named as a respondent in the Commission’s final 

determination and order. The court 

also found that Mr. Augusti could 

not challenge the Commission’s 

final determination with respect to 

the Committee because he is not a 

licensed attorney. Although a litigant 

may appear in federal court either 

pro se or through counsel, a corporation or association, such as a political committee, must be represented 

by a licensed attorney. See Rowland 

v. California Men’s Colony, 506 

U.S. 194, 201-02 (1993) and Cousino v. Nowicki, No, 97-1905, 1998 

WL 708700, at *1 (6th Cir. Oct. 2, 

1998). 

The court did not find that dismissal of the case with respect to the 

Committee was warranted. Although 

Mr. Augusti cannot represent the 

Committee in federal court, he did 

represent the Committee before the 

Commission. The court determined, 

as a result, that “the error was attributable to the candidate’s ignorance 

of the procedural rules applicable 

in federal court.” The court ordered 

the Committee to retain a licensed 

attorney to represent it in this action within 30 days of the court’s 

order. On June 2, 2005, Mr. Augusti 

Cooksey v. FEC

On August 30, 2005, the U.S. 

District Court for the Western 

District of Louisiana granted the 

Commission’s motion to dismiss this 

case. The court adopted the Report 

and Recommendation of the Magistrate Judge, finding that the defendant did not show grounds under 

the administrative fines regulations 

to challenge the Commission’s final 

determination and its civil penalty 

assessment. 11 CFR 111.35. See the 

August 2004 Record, page 11. 

U.S. District Court for the 

Western District of Louisiana, 

304CV1152.

 —Amy Kort

Advisory

Opinions

AO 2005-7

Certain Commentaries and 

Editorials Are Prohibited 

Corporate Contributions if 

Coordinated

Bona fide news stories concerning 

federal elections are exempt from 

the definition of “contribution” and 

“expenditure,” even when published 

by a media corporation co-owned 

by a federal candidate. The media 

corporation may also publish opinion columns written by the federal 

candidate provided that those col-

(continued on page 4)
Federal Election Commission RECORD October 2005

4

stories are part of a general pattern 

of campaign-related news accounts 

that give reasonably equal coverage 

to all opposing candidates in the 

circulation area. 11 CFR 100.73 and 

100.132. 

The press exemption does not 

apply, however, to commentaries and 

editorials that are distributed through 

facilities that are owned or controlled by a political party, political 

committee or candidate. 2 U.S.C. 

§431(9)(B)(i); 11 CFR 100.73 and 

100.132. Therefore, any opinion 

columns written by Mr. Mayberry 

that are published and distributed 

through Spirit Publications are not 

exempt from the definitions of “contribution” or “expenditure” under the 

press or media exemption. 

Coordinated Communications

Lacking an exemption, the Commission next considered whether 

publishing the columns would result 

in contributions from Spirit to the 

Mayberry campaign and thus be 

prohibited. 

Under the Act and Commission 

regulations, a communication that 

is coordinated with a candidate 

or party is considered an in-kind 

contribution by the person paying for the communication. 2 

U.S.C. §441a(a)(7)(B)(i); 11 CFR 

109.21(b). Commission regulations 

provide for a three-prong test to 

determine whether a communication 

is a coordinated communication. The 

test considers whether the communication:

• Is paid for by a person other than 

a federal candidate, a candidate’s 

authorized committee, a political 

party committee or an agent of any 

of these;

• Satisfies one or more of six conduct standards (11 CFR 109.21(d)); 

and

• Satisfies one or more of four content standards (11 CFR 109.21(c)). 

See 11 CFR 109.21(a) and (b)(1).

Opinion columns authored by Mr. 

Mayberry satisfy the payment prong 

of the test because, although Mr. 

Mayberry would write the columns, 

they would be paid for by Spirit 

Publications. Similarly, because 

Mr. Mayberry would be the author 

and editor of the opinion columns at 

the same time that he is a candidate 

for federal office, Spirit Publication’s continued publication of Mr. 

Mayberry’s opinion columns would 

satisfy the test’s second prong—conduct. The conduct standards focus on issues such as whether the 

candidate or the candidate’s agents 

“request or suggest” or are “materially involved” in the making 

and airing of a communication, or 

engage in “substantial discussion” 

about the communication. 11 CFR 

109.21(a)(3) and (d)(1) through (3). 

His opinion columns may also 

meet the test’s third prong—content. Four types of communications 

satisfy the content standard: (1) a 

public communication that expressly 

advocates the election or defeat of a 

clearly identified federal candidate; 

(2) a public communication that disseminates, distributes or republishes 

campaign materials; (3) electioneering communications; and (4) a 

public communication that refers to 

a political party or clearly identified 

federal candidate that is disseminated 120 days or fewer before an 

election and is directed to voters in 

the candidate’s jurisdiction. 11 CFR 

109.21(c).

Mr. Mayberry’s opinion columns 

constitute public communications, 

so if any future opinion columns 

expressly advocate the election or 

defeat of a clearly identified federal 

candidate, those columns will satisfy 

the “express advocacy” content 

standard in 11 CFR 109.21(c)(3). 

Similarly, if future opinion columns 

disseminate, distribute or republish, 

in whole or in part, campaign materials prepared by Mr. Mayberry or 

any other federal candidate, or by an 

agent of either, those columns will 

satisfy the “republication” content 

standard in 11 CFR 109.21(c)(2). 

Advisory Opinions

(continued from page 3)

umns are not “coordinated communications.” In addition, the federal 

candidate may purchase advertising 

space from the media corporation 

provided the candidate’s committee 

is charged the same standard rate 

charged to other advertisers. 

Background

Andy Mayberry, a candidate for 

the U.S. House of Representatives 

for Arkansas’ 2nd District, co-owns 

Spirit Publications, Inc., an incorporated media company. Spirit Publications publishes and distributes 

The East Ender, a local newspaper 

that carries opinion columns and 

bona fide news stories, and the Spirit 

Magazine, a monthly publication. 

The circulation area of both periodicals is within Arkansas’ 2nd Congressional District. Mr. Mayberry is a 

regular opinion columnist for both 

periodicals.

Press Exemption

The Federal Election Campaign 

Act (the Act) and Commission 

regulations prohibit corporations 

from making any contribution or 

expenditure in connection with a 

federal election. 2 U.S.C. §441b(a); 

11 CFR 114.1(a), 114.2(b)(1) and 

(b)(2). However, the rules exempt 

from the definitions of “contribution” and “expenditure” “any news 

story, commentary, or editorial 

distributed through the facilities of 

any broadcasting station, newspaper, magazine, or other periodical 

publication.” 11 CFR 100.73 and 

100.132. This so-called press exemption applies to the costs of news 

stories that are bona fide news accounts, subject to certain conditions, 

even if the newspaper or magazine is 

owned or controlled by a candidate. 

Thus, the expenses of publishing 

and distributing editions of the East 

Ender containing bona fide news 

stories about federal elections and 

candidates are not contributions 

or expenditures because the news 
October 2005 Federal Election Commission RECORD 

5

Opinion columns that contain a 

byline with Mr. Mayberry’s name 

and photograph would meet the 

“120 day public communication” 

content standard if they are publicly 

distributed or disseminated within 

120 days of an election for federal 

office and are directed to voters 

within his jurisdiction. Conversely, 

opinion columns that do not bear a 

byline with Mr. Mayberry’s name or 

photograph and do not contain any 

other reference to a clearly identified 

federal candidate or party would not 

meet this content standard, regardless of when such columns are publicly distributed or disseminated. 

Any editorial or commentary in 

the periodicals—including the candidate’s opinion column—that satisfies 

any of the content standards discussed above would be an impermissible in-kind contribution. As such, 

it would also be an impermissible 

corporate expenditure. See U.S.C. 

§441b(b)(2) and 11 CFR 100.111

Payments for Ad Space

Finally, Mr. Mayberry’s committee may purchase advertising space 

in The East Ender at the same standard rates that Spirit Publications 

sells such space to other advertisers, 

so long as that rate is the usual and 

normal charge for such advertising, 

and normal practices for assigning 

advertising space are followed, and 

payment terms for the Committee 

follow normal billing practices. 11 

CFR 100.111(e).

Date Issued: August 18, 2005; 

Length: 10 pages

 —Amy Pike

AO 2005-9

Campaign May Pay Travel 

Expenses of a Federal 

Candidate’s Minor Children 

“Friends of Chris Dodd,” the 

principal campaign committee 

of Senator Chris Dodd, may use 

campaign funds to pay for the travel 

expenses of Senator Dodd’s minor 

children to accompany their parents 

official responsibilities, such as a 

fact-finding meeting or an event at 

which the officeholder’s services are 

provided through a speech or appearance in an official capacity. 11 

CFR 113.2(a)(1)

While the regulations do not 

specifically include the costs of 

travel for accompanying children, 

the facts in this case are similar to 

those in Advisory Opinion 1995-20. 

In that opinion, the Commission 

approved the use of campaign funds 

to pay for the travel expenses of a 

federal candidate’s minor children 

finding that even though the children themselves participated only 

occasionally in campaign events, 

the expenditure was required only 

because of the candidate’s campaign. Similarly, Senator Dodd and 

his wife travel between their home 

in Connecticut and Washington, DC, 

to participate in functions directly 

related to Senator Dodd’s bona fide

official responsibilities as a holder of 

federal office. When Senator Dodd’s 

minor children accompany him and 

his wife on these trips, the costs 

of the children’s travel arise solely 

from the senator’s duties as a federal 

officeholder. Such travel may be 

contrasted, for example, with family 

travel to vacation locales or other examples of personal uses of campaign 

funds. Therefore, payments for the 

travel expenses of minor children are 

a permissible use of campaign funds.

Date Issued: August 18, 2005; 

Length: 5 pages

 —Amy Pike

(continued on page 6)

between their home in Connecticut 

and Washington, DC, provided that 

the parents are traveling to participate in functions directly connected 

to the senator’s bona fide official 

responsibilities.

Background

Senator Dodd, a United States 

Senator from Connecticut, travels regularly between his home in 

Connecticut and Washington, DC in 

connection with his official duties, 

and his travel expenses are paid for 

in accordance with Senate rules and 

Commission regulations. Senator 

Dodd’s wife also travels to Washington, DC to participate in events relating to Senator Dodd’s official duties. 

When both parents travel between 

Connecticut and Washington, DC, 

the senator’s two young daughters 

accompany their parents.

Analysis

The Federal Election Campaign 

Act (the Act) identifies six categories 

of permissible uses of contributions 

accepted by a federal candidate, 

including “ordinary and necessary 

expenses incurred in connection 

with the duties of the individual as 

a holder of Federal office.” 2 U.S.C. 

§439a(a) and 11 CFR 113.2(a) In no 

case, however, may campaign funds 

be used for an expense that would 

exist irrespective of the candidate’s 

campaign or duties as a federal officeholder, and thus be converted to 

“personal use.” 2 U.S.C. §439a(b)(1) 

and 11 CFR 113.1(g). The question of whether payment of travel 

expenses constitutes personal use 

is dealt with by the Commission 

on a case-by-case basis. 11 CFR 

113.1(g)(1)(ii).

Commission regulations specify 

that certain travel costs qualify as 

“ordinary and necessary expenses 

incurred in connection with” one’s 

duties as a federal officeholder. 

These expenses specifically include 

the costs of travel for a federal officeholder and an accompanying 

spouse to participate in a function 

directly connected to bona fide

AO 2005-10

Federal Candidates and 

Officeholders Fundraising 

for Ballot Initiative 

Committees

U.S. Representatives Howard L. 

Berman and John T. Doolittle are 

not subject to the restrictions on 

federal candidates and officeholders 

of the Federal Election Campaign 
Federal Election Commission RECORD October 2005

6

Advisory Opinions

(continued from page 5)

Advisory Opinion Requests

AOR 2005-13

Application of allocation and 

solicitation regulations for nonconnected committees (EMILY’s List, 

August 26, 2005)

AOR 2005-14

National trade association as federation able to solicit PAC contributions from owners and personnel of 

franchisees that are members of the 

association’s “Regional members” 

(Association of Kentucky Fried 

Chicken Franchisees, Inc., Political Action Committee, August 22, 

2005)

to the limitations, prohibitions and 

reporting requirements of the Act. 2 

U.S.C. §441i(e)(1)(A) and 11 CFR 

300.61. In addition, federal candidates and officeholders may not raise 

or spend funds in connection with 

an election other than an election 

for federal office, unless the funds 

are within the contribution limits to 

candidates and political committees 

and from permissible sources under 

the Act. 2 U.S.C. §441i(e)(1)(B) 

and 11 CFR 300.62. See 2 U.S.C. 

§§441a(a)(1), (2), and (3). These 

restrictions on federal candidates 

and officeholders do not apply to the 

fundraising activities of Representatives Berman and Doolittle in the 

circumstances described above.

Concurring and Dissenting 

Opinions

Chairman Thomas issued a dissenting opinion on September 2. 

Vice-Chairman Toner and Commissioner Mason issued a concurring 

opinion on August 29. Commissioners Weintraub and McDonald issued 

a concurring opinion on September 

2. 

Date Issued: August 22; Length: 

3 pages.

 —Amy Kort

Regulations

Notice of Proposed 

Rulemaking on 

Electioneering 

Communications

On August 18, 2005, the Commission approved a Notice of Proposed 

Rulemaking (NPRM) seeking comments on proposed changes to its 

rules defining “electioneering communications.” The proposed changes 

would modify the definition of “publicly distributed” and the exemptions 

to the definition of “electioneering 

communications,” consistent with 

the U.S. District Court for the District of Columbia’s ruling in Shays v. 

FEC. In that decision the court ruled 

that the regulation limiting electioneering communications to communications publicly distributed “for 

a fee” exceeded the Commission’s 

statutory authority to create exemptions and that the regulation exempting section 501(c)(3) organizations 

was not properly promulgated under 

the Administrative Procedure Act 

(APA). 

Background

Generally speaking, electioneering communications are broadcast, 

cable or satellite communications 

that refer to a clearly identified 

federal candidate, are publicly 

distributed within 60 days before a 

general election or 30 days before 

a primary election and are targeted 

to the relevant electorate. 2 U.S.C. 

§434(f)(3)(A)(i) and 11 CFR 

100.29(a)(1)-(3). In the Bipartisan 

Campaign Reform Act of 2002 

(BCRA), Congress exempted certain 

communications from the definition 

of “electioneering communications,” 

and specifically authorized the ComAct (the Act) when they solicit 

funds for ballot measure committees 

formed solely to support or oppose 

ballot initiatives on the California 

special election ballot. These ballot 

measure committees are not directly 

or indirectly established, financed, 

maintained or controlled by Representative Berman or Representative 

Doolittle, by anyone acting on their 

behalf or by any political party committee.

Background

On November 8, 2005, California 

will hold a statewide special election. Neither Representative Berman 

nor Representative Doolittle, nor any 

other federal candidate, will appear 

on the ballot for this election. However, the election will present ballot 

initiatives that represent major issues 

facing the constituents of Representatives Berman and Doolittle and 

touch on matters frequently before 

Congress. 

Representatives Berman and 

Doolittle plan to raise funds for 

ballot measure committees formed 

solely to support or oppose these 

initiatives. These committees are not 

directly or indirectly established, financed, maintained or controlled by 

either of the Representatives or by 

any national, state, district or local 

party committee. Representatives 

Berman and Doolittle will fundraise 

for these ballot measure committees 

in their individual capacities and not 

on behalf of any party committee. 

They will not raise funds for public 

communications that would refer to 

either of them and that would be distributed in their respective congressional districts. 

Analysis

Under the Act, federal candidates 

and officeholders, such as Representatives Berman and Doolittle, may 

not raise or spend funds in connection with an election for federal 

office, unless the funds are subject 

AOR 2005-15

Political committee incorporating 

for liability purposes (Republican 

State Executive Committee of West 

Virginia, September 1, 2005)
October 2005 Federal Election Commission RECORD 

7

mission to promulgate regulations 

exempting other communications as 

long as the exempted communications do not promote, attack, support 

or oppose (PASO) a federal candidate. 2 U.S.C. §434(f)(3)(B)(iv).

Communications Distributed 

for a Fee

In its electioneering communications rules, the Commission defined 

“publicly distributed” as “aired, 

broadcast, cablecast or otherwise 

disseminated for a fee through the 

facilities of a television station, radio 

station, cable television system, or 

satellite system.” 11 CFR 100.29. 

The district court, however, found 

that the “for a fee” qualifier exceeded the Commission’s statutory 

authority because it could potentially 

exempt communications that PASO 

a federal candidate. As a result, the 

Commission proposes eliminating 

the phrase “for a fee” from the definition of “publicly distributed,” and 

requests comments on such issues as 

whether this approach would require 

extensive monitoring of radio and 

television programs to ensure that 

communications either fit the statutory press exemption or otherwise 

avoid meeting the definition of electioneering communication. 

As an alternative, the Commission is considering a proposal to 

delete the phrase “for a fee” from 

the “publicly distributed” definition 

while also including a new exemption for communications that are 

not distributed for a fee and do not 

PASO a federal candidate. The Commission requests comments on this 

proposal. Moreover, it specifically 

asks whether it needs to provide 

some definition of PASO for this 

exemption, or any of the proposed 

exemptions discussed in the NPRM, 

to be meaningful and explicable to 

the regulated community, or whether 

the PASO standard is self-executing 

and understandable without further 

definition by the Commission.

Exemption for 501(c)(3) 

Organizations

The Commission also exempted 

from the definition of “electioneering communications” communications paid for by a 501(c)(3) 

organization. 11 CFR 100.29(c)(6). 

The district court found in Shays v. 

FEC that this exemption violates 

the APA because the explanation 

and justification for the rule did not 

address the “compatibility” of the 

Internal Revenue Service’s enforcement of the section 501(c)(3) 

prohibition on political activity with 

the requirements of the Federal 

Election Campaign Act (the Act). 

Specifically, the court found that the 

Commission did not discuss:

• Whether public communications 

that PASO a federal candidate 

would be viewed by the IRS as 

political activity that is prohibited 

for 501(c)(3) organizations;

• The risk, if any, that limited lobbying activity permitted for 501(c)(3) 

organizations could give rise ads 

that PASO a federal candidate; and

• The implications of allowing the 

IRS to “take the lead in campaign 

finance law enforcement.”

If the Commission decides to 

keep the exception for 501(c)(3) 

organizations, it will need to make 

a finding based on a well-developed 

record regarding these three areas of 

concern. The Commission requests 

data regarding these issues, including information on how 501(c)(3) 

organizations generally operate 

under the tax code. The Commission 

also requests information concerning how 501(c)(3) organizations 

functioned under the Commission’s 

existing rule during the last election 

cycle, in order to build an administrative record that might support the 

rule.

In addition, the NPRM proposes 

amending the current rule to provide 

an exemption for communications 

by 501(c)(3) organizations provided 

that the communications do not 

PASO a federal candidate and are 

not paid for by a 501(c)(3) organization that is directly or indirectly 

established, financed, maintained or 

controlled by a federal candidate or 

officeholder. The Commission asks 

whether limiting the exemption to 

non-PASO communications adequately address the court’s concerns because the exemption would 

no longer turn on the IRS’s view of 

political activities. The Commission 

also seeks information concerning 

whether it is common for federal 

candidates or officeholders to establish, finance, maintain or control 

501(c)(3) organizations and whether 

there is a greater likelihood that 

such organizations would pay for 

communications that PASO federal 

candidates. 

Other Alternatives

As alternatives to these proposed 

modifications to the current section 

501(c)(3) exemption, the Commission is also considering two 

additional options. First, it could 

repeal both the 501(c)(3) exemption 

and the regulatory exemption for 

certain communications made by 

state and local candidates. 11 CFR 

100.29(c)(5) and (c)(6). Instead, the 

Commission would rely only on the 

exemptions that Congress created in 

the BCRA, which include an exemption for certain materials appearing 

in a news story, editorial or commentary, communications that are 

a reportable expenditure or independent expenditure and candidate 

debates. Second, the Commission 

could exempt from the definition of 

electioneering communication all 

communications that do not PASO 

a federal candidate. This proposal 

would employ the exemption authority authorized by Congress to 

its fullest extent. The Commission 

requests comments on either of these 

two proposals.

(continued on page 8)
Federal Election Commission RECORD October 2005

8

Petition for Rulemaking to 

Exempt Ads Promoting Films, 

Books and Plays

The Commission has also granted 

a related Petition for Rulemaking 

that asks the Commission to revise 

its electioneering communication 

rules to exempt ads for political documentary films, books and 

plays.1 The premise for the Petition 

is that ads for such films, books and 

plays would not be covered by the 

statutory exemption for communications “appearing in a news story, 

commentary, or editorial distributed 

through the facilities of any broadcast station.” 2 U.S.C. §434(f)(3)(B) 

and 11 CFR 100.29(c)(2).

Having considered the comments 

it received, the Commission proposes to amend its regulations to exempt 

communications promoting movies, books or plays, as long as the 

communications are run within the 

ordinary course of business of the 

persons that pay for such communications and the communications do 

not PASO a federal candidate. The 

Commission seeks comments on a 

number of issues concerning this 

proposal. For example, the Commission asks whether the exemption 

should be based on the actual or 

projected release date of the movie 

or book, so that it would only apply 

to movies or books that are shown 

during, or are released within six 

months of, the electioneering communications window. The Commission also questions whether the 

proposed rule appropriately limits 

the exemption to persons who pay 

for such communications in the 

ordinary course of their business. 

Finally, the Commissions seeks 

information concerning the burden 

such a rule would place on advertisers and how advertisers responded 

Regulations

(continued from page 7)

to the Commissions existing rule 

during the last election cycle.

Comments

All comments must be addressed 

to Ms. Mai T. Dinh, Assistant General Counsel, and submitted in either 

electronic, fax or hard copy form by 

September 30, 2005. Commenters 

are strongly encouraged to submit 

comments electronically to ensure 

timely receipt and consideration. 

Hard copy comments should be sent 

to the Federal Election Commission, 

999 E Street NW, Washington, DC 

20463. Faxed comments should be 

sent to 202/219-3923, with a hard 

copy follow-up to insure legibility. 

Electronic mail comments should be 

sent to ECdef@fec.gov or submitted 

through the Federal eRegulations 

Portal at www.regulations.gov. All 

comments must be submitted in 

writing and include the full name 

and postal service address of the 

commenter. Comments that do not 

contain this information will not be 

considered. 

Public Hearing

The Commission will hold a hearing on the proposed rules on October 

19 and, if necessary, October 20. 

Anyone wishing to testify at the 

hearing must file written comments 

by the due date and must include a 

request to testify in their comments.

Additional Information

The NPRM was published in the 

August 24, 2005, Federal Register

(70 FR 49508) and is available on 

the FEC web site at http://www.

fec.gov/law/law_rulemakings.shtml

and from the FEC faxline, 202/501-

3413.

 —Amy Kort

1

 The Notice of Availability was published in the Federal Register (69 FR 

52461). The Commission received seven 

comments.

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 2005-23

Definition of Federal Election 

Activity; Reopening of comment 

period (70 FR 51302, August 30, 

2005)

Notice 2005-24

State, District and Local Party 

Committee Payments of Certain 

Salaries and Wages; Reopening of 

comment period (70 FR 51302, 

August 30, 2005)

Commission Extends 

Comment Periods for 

Proposed Rules

The Commission has extended 

until September 29, 2005, the periods for public comment on proposed 

rules regarding:

• The definition of “federal election 

activity” (FEA); and 

• State and local party committee payments for the salaries of 

employees who spend 25 percent 

or less of their compensated time 

during a month on activities in connection with a federal election or 

FEA. 

The proposed rules respond to 

the district court decision in Shays 

v. FEC, which invalidated several 

Commission regulations that were 

found to be inconsistent with the 

intent of Congress or improperly 

promulgated.1 The Commission held 

hearings on these rules on August 4, 

1

 On July 15, 2005, the U.S. Court of 

Appeals for the District of Columbia 

upheld the appealed portion of the district court’s decision. See the September 

2005 Record, page 1.
October 2005 Federal Election Commission RECORD 

9

2005, and witnesses at the hearings 

suggested that the Commission seek 

additional information that may assist it in its decisionmaking. 

The Notices of Proposed Rulemaking for these proposed rules are 

available on the FEC web site at 

http://www.fec.gov/pdf/nprm/fea_

definition/notice_2005-13.pdf and 

http://www.fec.gov/pdf/nprm/state_

party_wages/notice_2005-12.pdf. 

See the September 2005 Record, 

page 4, and the June 2005 Record, 

pages 1 and 3.

 —Amy Kort

Alternative 

Dispute 

Resolution

ADR Program Update

The Commission recently resolved nine additional cases under 

the Alternative Dispute Resolution 

(ADR) program. The respondents, 

the alleged violations of the Federal 

Election Campaign Act (the Act) and 

the final disposition of the cases are 

listed below. 

1-3. The Commission reached 

agreement with LeSueur for Congress ’04 and Eddie “Edie” D. 

Ingrum, its treasurer, regarding 

their failure to include required 

disclaimers in political advertising. 

The respondents acknowledged that 

inadvertent violations of the Act 

occurred when disclaimers were 

omitted from political advertising. 

They agree that an appropriate aggregate civil penalty in these matters 

would be $10,000, but contended 

that financial hardship prevents the 

Committee from paying any civil 

penalty. The respondents submitted 

financial documentation in support 

of this claim of financial hardship, 

and the Commission agreed that no 

civil penalty shall be owed.

With regard to two other respondents named in these cases, Lamar 

Outdoor Advertising and Lamar 

Advertising Company, the ADR 

Office recommended the case be dismissed, and the Commission agreed 

and closed the file. (ADR 197/MUR 

5434, ADR 237/MUR 5521 and 

ADR 240/5608) 

4. The Commission reached 

agreement with the Nebraska Republican Federal Campaign Committee and Demarus Carlson, its 

treasurer, regarding their failure to 

report disbursements. The respondents agreed to pay a $10,000 civil 

penalty and acknowledged that the 

failure to file accurate reports of the 

Committee’s financial activity was 

due to internal staffing problems 

and difficulties with software. These 

problems caused several disbursements to be omitted from the 2003 

Year End Report. Also, the respondents have not had time to implement all of the corrective procedures 

adopted as a means of resolving an 

earlier case referred to the ADR Office by the FEC’s Reports Analysis 

Division. The respondents reiterated their commitment to the earlier 

terms of settlement (ADR 226) and 

agreed, as stated in the earlier settlement agreement, to send a minimum 

of four officers and/or staff of the 

Committee to an FEC seminar on 

federal election campaign reporting 

requirements within 12 months of 

the effective date of the agreement. 

They will also create and maintain in 

the Committee’s offices a resource 

center to guide the Committee in 

complying with the requirements of 

the Act and amend internal procedures to provide for an additional 

review of the Committee’s reports 

before the reports are submitted to 

the Commission. (ADR 254*)

5. The Commission dismissed 

the matter involving Jene M. Witte 

regarding alleged violations of the 

Act’s disclaimer requirements. The 

ADR Office recommended the case 

be closed, and the Commission 

agreed and closed the file. (ADR 

267/MUR 5558)

6. The Commission dismissed 

the matter involving Amy Otis-Wilborn regarding alleged violations of 

the Act’s disclaimer requirements. 

The ADR Office recommended the 

case be closed, and the Commission 

agreed and closed the file. (ADR 

272/MUR 5592)

7. The Commission reached 

agreement with Capri Cafaro for 

Congress, Ronald Silvestri, its treasurer, and Renee Cafaro, regarding 

excessive contributions. The respondents acknowledged that violations 

of the Act inadvertently occurred 

and agreed to pay a $1,000 civil 

penalty. In an effort to avoid similar 

errors in the future, they agreed to 

have a Committee representative 

attend an FEC seminar within 12 

months of the effective date of the 

agreement. (ADR 242/MUR 5510)

8. The Commission reached 

agreement with Amalgamated Transit Union—COPE and Oscar Owens, 

its treasurer, concerning their failure 

to file 48-hour reports of independent expenditures. The respondents 

acknowledged that a violation of 

Act occurred, explaining they had 

not previously made independent 

expenditures and did not understanding the timeframe for reporting these 

expenditures. In an effort to avoid 

similar errors in the future, they 

agreed to pay a $5,000 civil penalty 

and to develop an FEC compliance 

manual containing updated information. (ADR 244*)

9. The Commission reached 

agreement with Freshmen PAC 

and David Metzner, its treasurer, 

regarding their failure to report 

disbursements. The respondents 

acknowledged that a violation of 

the Act occurred. After their 2004 

July Quarterly Report was filed, 

they determined, while responding 

to an FEC request for information, 

that two disbursements made during 

the reporting period had not cleared 

*This case was internally generated 

within the Commission. (continued on page 10)
Federal Election Commission RECORD October 2005

10

Upcoming 2005

Conferences and 

Seminars

Conference for Campaigns, 

Parties and Corporate/Labor/

Trade PACs

October 25-26, 2005

Crowne Plaza Hotel 

San Antonio Riverwalk

San Antonio, TX

Seminar for Nonconnected 

PACs and 527 Organizations

November 16

FEC Headquarters

Washington, D.C.

Campaign Finance Law 

Training Conference in San 

Antonio

On October 25 and 26 the Commission will hold a conference in 

San Antonio, TX, for House and 

Senate campaigns, political party 

committees and corporations, labor 

organizations, trade associations, 

membership organizations and their 

respective PACs. The conference 

will consist of a series of workshops 

conducted by Commissioners and 

experienced FEC staff who will 

explain how the federal campaign 

finance law applies to each of these 

groups. Workshops will specifically address recent changes to the 

campaign finance law and will focus 

on fundraising and reporting rules. A 

representative from the IRS will be 

available to answer election-related 

tax questions.

The conference will be held at the 

Crowne Plaza Hotel San Antonio 

Riverwalk. The registration fee for 

this conference is $350, which covers the costs of the conference, materials and meals. A $10 late fee will 

be added to registrations received 

after September 30.

The Crowne Plaza Hotel is located at 111 Pecan Street East, San 

Antonio, TX, 78205, in San Antonio’s famous Riverwalk area. A $129 

room rate, single or double, is available for conference participants who 

make reservations on or before September 30. To receive this special 

rate, you must mention that you are 

attending the FEC conference. After 

September 30, room rates are based 

on availability. Call 1-888/623-2800 

to make reservations.

Registration Information

Complete registration information for FEC conferences is 

available on the FEC web site at 

http://www.fec.gov/info/outreach.

shtml#conferences.

Seminar for Nonconnected 

Political Action Committees

On November 16, 2005, the 

Commission will hold a one-day 

seminar for nonconnected committees (i.e., PACs not sponsored by a 

corporation, union, trade association 

or nonprofit membership organization) at the FEC, 999 E Street, NW., 

Washington, D.C. This seminar is 

recommended for: 

• Treasurers of leadership PACs, 

partnership PACs and other nonconnected PACs; 

• Staff of the above organizations 

who have responsibility for compliance with federal campaign finance 

laws; 

• Attorneys, accountants and consultants who have clients that are 

nonconnected PACs or unregistered 

section 527 organizations; and

• Anyone who wants to gain in-depth 

knowledge of federal campaign 

finance law as it applies to nonconnected PACs and unregistered 

section 527 organizations.

The seminar will address issues 

such as fundraising and reporting. 

Commissioners and experienced 

FEC staff will specifically discuss 

recent changes to the campaign 

finance law, such as new allocation 

and solicitation rules for nonconnected PACs. 

The registration fee for this 

seminar is $100 per attendee, which 

Outreach

the bank by the end of the reporting 

period. They stated that the disbursements were overlooked in preparing 

the report because the checks had 

not cleared the bank. According to 

the respondents, they have created 

procedures to avoid similar errors 

in the future, such as changing to a 

monthly filing schedule, establishing an additional bank depository 

for contributions and retaining an 

FEC reporting consultant to confirm 

bank reconciliation and prepare 

FEC reports. In order to resolve this 

matter and ensure future compliance 

with the Act, they agreed to compile a Compliance Manual detailing 

procedures and to maintain internal 

controls to educate their staff about 

the campaign finance laws. (ADR 

249*)

 —Amy Kort

Alternative Dispute 

Resolution

(continued from page 9)

Please direct all questions about 

conference registration and fees to 

Sylvester Management Corporation 

at 1-800/246-7277. For questions 

about the conference program, call 

the FEC’s Information Division 

at 1-800/424-9530 (or locally at 

202/694-1100) or send an e-mail to 

Conferences@fec.gov.

Please note that the FEC suggests 

that you wait to make your hotel and 

air reservations until you have received confirmation of your conference registration.

 —Amy Kort
October 2005 Federal Election Commission RECORD 

11

Index

– Wisconsin Right to Life, 7:1

FEC v. _____ 

– Democratic Party of New Mexico, 

6:1

–Friends of Lane Evans, et. al., 8:1

– Odzer, 9:3

Regulations

“Agent” definition for coordinated 

and independent expenditures 

and nonfederal funds regulations, 

Notice of Proposed Rulemaking, 

3:4; public hearing scheduled, 5:5; 

public hearing, 7:6

BCRA technical amendments, final 

rules, 1:6

Candidate solicitation at state, 

district and local party committee 

fundraisers, Notice of Proposed 

Rulemaking, 4:4; public hearing 

scheduled, 5:5; public hearing, 

7:6; Revised Explanation and 

Justification, 8:1

Civil penalties adjusted for inflation, 

7:5

Contributions by minors to candidates and party committees, final 

rules, 3:3

“De minimis” exemption for Disbursement of Levin funds by state, 

district and local party committees, Notice of Proposed Rulemaking, 3:6

Electioneering Communications 

definition, Notice of Proposed 

Rulemaking, 10:6

“Federal Election Activity” definition, Notice of Proposed Rulemaking, 6:1; public hearing scheduled, 8:3; public hearing held, 9:4; 

comment period extended, 10:8

Filing by Priority Mail, Express 

Mail and overnight delivery, Notice of Proposed Rulemaking, 2:1; 

final rules, 5:4

Internet communications, Notice of 

Proposed Rulemaking, 5:1; Hearing on proposed rules, 8:2

Party committee donations to certain 

tax-exempt organizations and 

political organizations, Notice of 

Proposed Rulemaking, 1:7; final 

rules, 5:4

2004-4: Reporting court-ordered 

restitution owed to campaign committee, 6:9

2005-5: Federal candidate/officeholder’s use of funds from nonfederal exploratory committee, 7:8

2005-6: Former officeholder may 

donate campaign funds to charity, 

8:5

2005-7: Coordinated commentaries 

and editorials result in prohibited 

in-kind contributions, 10:3

2005-9: Campaign may pay travel 

expenses for federal candidate/

officeholder’s minor children, 10:5

2005-10: Candidates/Officholders 

raising funds for ballot initiatives, 

10:5

Compliance

Administrative fines assessed, 2:13; 

6:13; 9:9

ADR program update, 1:9; 2:12; 4:9; 

5:7; 6:10; 9:12

MUR 5020: Corporate facilitation, 

4:6

MUR 5405: Contributions in the 

name of another and corporate 

contributions, 6:5

MUR 5428: Excessive and prohibited contributions, improper allocation and reporting violations, 6:6

MUR 5183: Corporate contributions, 

7:4

MURs 5428 and 5623: “Millionaires’ Amendment,” 9:10

Court Cases 

_____ v. FEC

– Alliance for Democracy, 4:4

– Augusti and Augusti for Congress, 

1:12; 10:3

– Citizens for Responsibility and 

Ethics in Washington (04-2145), 

2:10

– Citizens for Responsibility and 

Ethics in Washington (04-1672), 

7:3

– Cooksey, 10:3

– EMILY’s List, 3:1; 4:1

–Hagelin, 8:4

– Judicial Watch, 4:3

– Kean for Congress, 4:3

– Shays and Meehan, 9:1

– Sykes, 6:5

The first number in each citation 

refers to the “number” (month) of 

the 2005 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 4.

Advisory Opinions

2004-40: Status of state party as 

state committee of political party, 

1:8

2004-41: Non-affiliation of SSFs, 

2:4

2004-42: LLC as connected organization for SSF, 2:7

2004-43: Discounted sale of ad time 

not a contribution, 4:6

2004-45: Accounting method for 

determining excess contributions 

under Millionaires’ Amendment, 

3:7

2005-1: Indian tribe not a federal 

contractor, 5:8

2005-2: Fundraising for nonfederal 

committees by federal officeholder 

who is nonfederal candidate, 6:7

2005-3: Affiliation of membership 

organizations, 6:8

covers the cost of the seminar, materials, a reception and refreshments. 

Payment is required prior to the 

seminar. A full refund will be made 

for all cancellations received before 

November 14. Complete registration 

information is available on the FEC 

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

conference_materials/nonconn_seminar.shtml, along with the seminar 

agenda and a list of hotels located 

within walking distance of the FEC. 

Further questions about this seminar 

should be directed to the Information Division by phone at 1-800/424-

9530 ( or locally at 202/694-1100) 

or via e-mail at Conferences@fec.

gov.

 —Amy Kort

(continued on page 12)
FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

Official Business

Penalty for Private Use, $300

Federal Election Commission RECORD October 2005

PRESORTED STANDARD

U.S. POSTAGE

PAID

FEDERAL ELECTION COMMISSION

Payroll deductions for contributions 

to trade association SSF, Notice of 

Proposed Rulemaking, 2:2; public 

hearing scheduled, 5:5; public 

hearing, 7:6; final rules, 9:1

Salaries and wages paid by state, 

district and local party commit-

tees, Notice of Proposed Rule-

making, 6:3; public hearing sched-

uled, 8:3; public hearing held, 9:4; 

comment period extended, 10:8 

Travel rules for certain Presidential 

candidates, effective date, 7:6

Reports

April reporting reminder, 4:1

California special election reporting, 

2:3; 9:6

Due in 2005, 1:3

Electronic filing software, FEC 

Form 3X, updated, 2:1

July reporting reminder, 7:1

October reporting reminder, 10:1

Ohio special election, 6:14

Index

(continued from page 11)