39348 Federal Register / Vol. 44, No. 130 / Thursday, July 5,1979 / Rules and Regulations

FEDERAL ELECTION COMMISSION

11 CFR Parts 100,110, and 114

Funding and Sponsorship of

Candidate Debates

AGENCY: Federal Election Commission. 

a c t io n : Transmittal of Regulations to 

Congress.

s u m m a r y: The Commission has adopted 

regulations which govern the funding 

and sponsorship of candidate debates. 

These regulations have been transmitted 

to Congress pursuant to 2 U.S.C. 438(c). 

The regulations exempt from the 

definitions of contribution and 

expenditure funds provided and used to 

defray the costs of nonpartisan public 

candidate debates. They also specify 

which organizations may sponsor such 

debates and establish a structure for 

various types of nonpartisan debates 

between Federal candidates. Further 

information on the new regulations is 

contained in the statement of 

explanation and justification under 

Supplementary Information.

2 U.S.C. 438(c) requires that any rule 

or regulation prescribed by the 

Commission to implement Chapter 14 of 

Title II, United States Code, be 

transmitted to the Speaker of the House 

of Representatives and the President of 

the Senate prior to final promulgation. If 

neither House of Congress disapproves 

of the regulation within 30 legislative 

days of its transmittal, the Commission 

may finally prescribe the regulation in 

question. The following regulations were 

transmitted to Congress on June 28,1979. 

e ff e c t iv e DATE: Further action, 

including the announcement of an 

effective date will be taken by the 

Commission after these regulations have 

been before the Congress 30 legislative 

days in accordance with 2 U.S.C. 438(c). 

FOR FURTHER INFORMATION CONTACT:

Ms. Patricia Ann Fiori, Assistant 

General Counsel for Regulations and 

Legislation, 1325 K Street, Northwest, 

Washington, D.C. 20463 (202) 523-4143. 

SUPPLEMENTARY INFORMATION: These 

regulations were drafted pursuant to a 

Notice of Proposed Rulemaking 

published by the Commission on July 12, 

1977, (42 FR 35856) and incorporate 

comments received subsequent to that 

notice and at public hearings held on 

September 12,1977.

Explanation and Justification of 

Regulations on Funding and 

Sponsorship of Candidate Debates

CFR 100.4(b)(16) and 11 CFR 

100.7(b)(18):

Under the Act, the terms 

‘‘contribution” and “expenditure” 

include “a gift, subscription, loan, 

advance, or deposit of money or 

anything of value made for the purpose 

of influencing the nomination for 

election, or the election, of any person to 

Federal office . . (2 U.S.C.

§ 431(e)(1)(A)) Congress has, however, 

recognized that certain nonpartisan 

activity is not undertaken for the 

purpose of influencing the nomination or 

election of any candidate and has 

removed that activity from the coverage 

of the Act. Therefore, amounts spent for 

“nonpartisan activity designed to 

encourage individuals to register to vote 

or to vote” is exempt from the definition 

of the term “expenditure” (2 U.S.C.

§ 431(f)(4)(B)).

The educational purpose of 

nonpartisan public candidate debates is 

similar to the purpose underlying 

nonpartisan voter registration and getout-the-vote campaigns. A properly held 

nonpartisan public candidate debate 

sponsored by a qualified nonpartisan 

organization provides a forum for 

significant candidates to commtinicate 

their views to the public. Unlike single 

candidate appearances, nonpartisan 

public debates are designed to educate 

and inform voters rather than to 

influence the nomination or election of a 

particular candidate. Hence, funds 

received and expended to defray costs 

incurred in sponsoring nonpartisan 

public debates are not considered 

contributions or expenditures under the 

Act.

11 CFR 110.13:

This section sets forth the criteria for 

sponsoring organizations and the, 

structure of candidate debates which 

are exempt under 11 CFR 100.4(b)(16), 

100.7(b)(18), and 114.4(e).

Under subsection (a), only an 

organization which has a history of 

nonpartisanship would qualify as a 

sponsor. In addition, the sponsor would 

have to be tax exempt under 26 U.S.C.

§ 501(c)(3). Organizations which are tax 

exempt under that section are prohibited 

by statute from participating in or 

intervening in any political campaign on 

behalf of any candidate for public office. 

By limiting sponsorship of debates to 

§ 501(c)(3) organizations with a history 

of nonpartisanship, the integrity and 

fairness of the debate process is insured.

Subsection (b) outlines the structure 

for candidate debates at the 

presidential, House and Senate levels. 

This structure is designed to permit 

participation in a debate by significant 

serious candidates for the same public 

office.

In a general election debate at the 

presidential, House or Senate level, 

participation by candidates is based on 

affiliation with a political party. If a 

sponsoring organization invites a major 

party candidate to participate in a 

debate then the sponsor must also invite 

all other major party candidates seeking 

the same office to participate in that 

debate. Similarly, if a sponsor invites a 

minor party candidate to participate in a 

debate, then the sponsor is obligated to 

invite all other minor party candidates 

running for the same office to participate 

in the same debate.

If, under this standard, only one major 

party candidate agrees to participate in 

a debate, then the sponsor must invite 

all minor party candidates nominated 

for the same office to participate in a 

debate with that major party candidate. 

Similarly, if only one minor party 

candidate accepts a sponsor’s invitation 

to participate in a debate, then the 

sponsor must invite all new party 

candidates nominated for the same 

office to participate in a debate with 

that minor party candidate.

Although there would usually be no 

obligation to invite candidates who are 

not major party candidates to a debate 

with major party candidates, the 

sponsor would have the discretion to 

invite a minor party, new party, 

independent, or write-in candidate to 

appear in the same debate with major 

party candidates. Hence, the sponsor 

would have the discretion to include all 

candidates whom the sponsor viewed as 

significant in the debate to which major 

party candidates are invited, thereby 

enhancing the educational value of the 

debate.

Structuring debates on the basis of 

party affiliation is similar to the 

standard used in the Act for public 

funding entitlement. Under the Act, only 

those presidential primary candidates 

who are seeking nomination by a 

political party are entitled to receive 

matching funds (26 U.S.C. § 9033(b)(2)). 

Moreover, the amount of funding to 

which a general election candidate is 

entitled is based on whether the 

candidate is a major, minor or new party 

candidate. (26 U.S.C. § 9004).

The Supreme Court in Buckley v.

Valeo upheld the constitutionality of the 

Act’s public financing provisions. The 

Court stated:

. . . The Constitution does not require 

Congress to treat all declared candidates the 

same for public financing purposes. As we 

said in feaness v. Fortson, “there are obvious 

differences in kind between the needs and 

potentials of a political party with historically 

established broad support, on the one hand, 

and a new or small political organization in
Federal Register / Vol. 44, No. 130 / Thursday, July 5, 1979 / Rules and Regulations 39349

the other...... . Sometimes the grossest

discrimination can lie in treating things that 

are different as though they were exactly 

alike, a truism well illustrated in Williams v.

Rhodes, supra."

By basing participation in candidate 

debates on party affiliation, a standard 

which has been found constitutional by 

the Supreme Court is employed. 

Moreover, this standard will ensure a 

sponsor to present debates in which all 

significant candidates may appear to 

express their views.

At the caucus, convention and 

primary election levels, the standard is 

basically the same as for presidential 

and Congressional candidate debates. 

However, while congressional candidate 

debates are held on a State basis, 

presidential primary candidate debates 

may be held on a regional basis, with 

the sponsor designating the region.

Sponsors holding caucus, convention 

or primary election candidate debates 

have three different options for 

structuring those debates.

Option No. 1: The sponsor may hold a 

debate to which all candidates of all 

parties are invited. Thus, in States, 

which hold primary elections, all 

candidates qualified to appear on the 

ballot must be invited to participate in 

one debate; and in caucus or convention 

States, all recognized, active candidates 

must be invited to participate.

Option No. 2: The sponsor may hold a 

debate to which all candidates of one 

type (major, minor or new) of party are 

invited. For example, assume in a State 

that there are two major parties—Party 

X and Party Y—and one minor party— 

Party Z. The sponsor may hold a debate 

to which only candidates seeking the 

nomination of Party X and Party Y are 

invited. The sponsor would not be 

obligated to include the candidate -s

seeking nomination by Party Z in any 

debate.

Option No. 3: The sponsor may hold 

separate debates restricted to 

candidates seeking the nomination of 

one party. If the sponsor chooses to hold 

such a debate for one party, then the 

candidates of all parties of the same 

type (major, minor or new) must be 

invited to participate in similar separate 

debates. This option is, however, not 

available if each party of the same type 

does not have at least two candidates 

seeking the nomination of that party.

As an example, assume that in a 

State, there are two major parties—

Party X and Party Y—and one minor 

party—Party Z. Assume also that each 

party has two candidates. In this 

situation, if the sponsor chooses to hold 

a debate towhich the candidates of 

Party X are invited, the sponsor must

also invite the candidates of Party Y to 

participate in a debate to which only 

they are invited. There would be no 

obligation to hold a debate for the 

candidates of Party Z—the minor party.

As a different example, assume the 

same parties in a State, but only one 

candidate rather than two, seeking the 

nomination of Party X. Because in such 

a situation there would be one major 

party with less than two candidates 

seeking the nomination of that party, the 

sponsor would not have the option of 

holding separate debates for each major 

party.

The standard at the House and Senate 

caucus, convention and primary election 

level is basically the same as for 

presidential caucus, convention and 

primary debates. This standard provides 

a fair opportunity for a wide number of 

candidates to participate in a debate 

and at the same time, allows the 

sponsor sufficient flexibility to hold 

separate debates for candidates of 

different parties when such debates 

would be more meaningful and of 

greater educational value.

11 CFR 114.4(e):

Certain nonpartisan voter registration 

and get-out-the-vote activity is exempt 

from the coverage of all provisions of 

the Act, including the prohibition 

against corporate and labor union 

contributions and Expenditures. Because 

nonpartisan public candidate debates 

are similar in nature and purpose to 

registration and voter activity, 

corporations and labor unions are 

permitted to donate funds to support 

such debates.

Although 2 U.S.C. § 441b broadly 

prohibits corporate and labor union 

political spending, Congress carved out 

an exemption from that prohibition for 

certain nonpartisan registration and getout-the-vote activity. Corporations are 

thus specifically permitted under 2 

U.S.C. § 441b(b)(2)(B) to use their 

treasury funds to conduct nonpartisan 

registration and get-out-the-vote 

campaigns aimed at their stockholders 

and their executive and administrative 

personnel. Similarly, under that section, 

unions are permitted to use treasury 

funds to conduct registration and getout-the-vote campaigns aimed at union 

members and their families.

Moreover, in permitting corporations 

and labor unions to support registration 

and get-out-the-vote campaigns aimed at 

the public, Congress prescribed a role 

for nonpartisan nonprofit organizations. 

In addition to § 441b(b)(2)(B), 2 U.S.C.

§ 431(f)(4)(B) also specifically provides 

that the term “expenditure” does not 

include “nonpartisan activity designed 

to encourage individuals to register to

vote, or to vote.” In discussing the 

interrelationship between 2 U.S.C.

§ 431(f)(4)(B) and 2 U.S.C.

§ 441b(b)(2)(B), the 1976 conferees 

expressly stated that corporate and 

union treasury funds could be used for 

nonpartisan registration and get-out-thevote efforts aimed at the general public, 

if such efforts were jointly sponsored by 

a nonprofit nonpartisan organization.

. . . The conferees’ intent with regard to the 

interrelationship between sections 

301(f)(4)(B) and 321(b)(2)(B) which permit 

such activities as assisting eligible voters to 

register and to get to the polls, so long as 

these services are made available without 

regard to the voter's political preference, is 

the following: these provisions should be 

read together to permit corporations both to 

take part in nonpartisan registration and getout-the-vote activities that are not restricted 

to stockholders and executive or 

administrative personnel, if such activities 

are jointly sponsored by the corporation and 

an organization that does not endorse 

candidates and are conducted by that 

organization; aqd to permit corporations, on 

their own, to engage in such activities 

restricted to executive or administrative 

personnel and stockholders and their 

families. The same rule, of course, applies to 

labor organizations. H.R. Rep. No. 1057, 94th 

Cong., 2nd Sess., p. 63-64 (1976).

The conferees’ intent is embodied in 

Commission regulations at 11 CFR 

114.4(d). That section permits 

corporations or labor unions to support 

and donate funds for nonpartisan 

registration and get-out-the-vote drives 

aimed at the public if the activities are 

jointly sponsored with and conducted 

by a nonprofit organization which does 

not support or endorse candidates or 

political parties.

In sections 431(f)(4)(B) and 

441b(b)(2)(B) Congress expressly 

indicated an intent to permit 

corporations and labor organizations to 

participate in nonpartisan activity 

aimed at encouraging voter participation 

where that activity was undertaken in 

conjunction with a nonpartisan 

nonprofit organization. Permitting 

corporations and unions to donate funds 

to a nonpartisan nonprofit organization 

for the purpose of sponsoring 

nonpartisan candidate debates furthers 

that express congressional intent. 

Candidate debates stimulate voter 

interest and hence “encourage 

individuals to register to vote or to 

vote.” Inasmuch as candidate debates 

are in the public interest and encourage 

educated voter involvement, permitting 

corporations and unions to donate funds 

for their sponsorship is consistent with 

congressional intent and policy 

underlying sections 431(f)(4)(B) and 

441b(b)(2)(B).
It is also important to note that the 

prohibitions of 2 U.S.C. § 441b were not 

specifically aimed at the donation of 

corporate or union funds to a 

nonpartisan tax exempt organization. 

Under 2 U.S.C. § 441b(b)(2), the terms 

"contribution” and “expenditure” are 

defined to mean “any direct or indirect 

payment, distribution, loan, advance, 

deposit or gift of money. . . to any 

candidate, campaign committee or 

political party or organization.” Under 

11 CFR 114.4(e), only an organization 

which has a history of nonpartisanship 

is qualified to sponsor candidate 

debates, and that organization must in 

addition be tax exempt under 26 U.S.C.

§ 501(c)(3). Such tax exempt 

organizations are probited by statute 

from intervening in any political 

campaign on behalf of any candidate for 

public office. Hence, an organization 

qualified to sponsor candidate debates 

would be neither a campaign committee, 

a political party nor a political 

organization referred to in 2 U.S.C.

§ 441b.

Finally, courts have generally 

construed 2 U.S.C. § 441b to prohibit 

only active electioneering on behalf of a 

candidate or a political party or conduct 

designed to influence the public for or 

against a particular candidate. (See, 

United States v. United Auto Workers,

352 U.S. 567 (1957); United States v.

Pipefitters Local Union No. 562, 434 F.2d 

1116 (8th Cir. 1970), rev’d on other 

grounds, 407 U.S. 385 (1972); M iller v.

American Telephone & Telegraph, 507 

F.2d 759 (3d Cir. 1974). Unlike single 

candidate appearances which have the 

effect of promoting the nomination or 

election of one individual, a properly 

structured nonpartisan public debate 

involving two or more candidates would 

not be construed to be active 

electioneering to promote or influence 

the nomination or election of one 

particular candidate.

11 CFR Chapter I is amended as 

follows:

1. l l CFR 100.4(b)(16) is added to read 

as follows:

§ 100.4 Contribution.

* * * * *

(b ) * * *

(16) Funds provided to defray costs 

incurred in sponsoring nonpartisan 

public candidate debates held in 

accordance with the provisions of 11 

CFR 110.13.

2.11 CFR 100.7(b)(18) is added to read 

as follows:

§ 100.7 Expenditure.

*****

(b) * * *

(18) Funds used to defray costs 

incurred in sponsoring nonpartisan 

public candidate debates held in 

accordance with the provisions of 11 

CFR 110.13.

3.11 CFR 110.13 is added to read as 

follows:

§ 110.13 Nonpartisan public candidate

debates.

(a) Sponsor. A nonprofit organization 

which is exempt from federal taxation 

under 26 U.S.C. 501(c)(3) and which has 

a history of neither supporting nor 

endorsing candidates or political parties 

may sponsor nonpartisan public debates 

held in accordance with 11 CFR 

110.13(b).

(b) Debate Structure. (1) Presidential,

House or Senate General Election

Candiate Debates, (i) If the sponsor 

invites one general election candidate 

who has been nominated by a major 

party to participate in a debate, then the 

sponsor must invite all candidates 

nominated for the same office by any 

major party to participate in the same 

debate.

(ii) If the sponsor invites one general 

election candidate who has been 

nominated for election to that office by 

a minor party to participate in a debate, 

then the sponsor must invite all 

candidates nominated for the same 

office by any minor party to participate 

in the same debate.

(iii) If the sponsor invites one general 

election candidate who has been 

nominated for election to that office by 

a new party to participate in a debate, 

then the sponsor must invite all 

candidates nominated for the same 

office by any new party to participate in 

the same debate.

(iv) If, in a debate under 11 CFR 

110.13(b)(l)(i), only one major party 

candidate agrees to participate, then the 

sponsor must invite all minor party 

candidates nominated for the same 

office to participate in the debate. If, in a 

debate under 11 CFR 110.13(b)(l)(ii), 

only one minor party candidate agrees 

to participate, then the sponsor must 

invite all new party candidates 

nominated for the same office to 

participate in the debate.

(v) The sponsor shall have the 

discretion to include any minor party, 

new party, independent or write-in 

candidate in any debate held under 11 

CFR 110.13(b)(1).

(vi) If a sponsor holds a debate for 

presidential general election candidates, 

it may also hold a separate debate to 

which all vice-presidential runningmates of the candidates who 

participated in the general election 

debate are invited.

(vii) In States where the names of a 

candidate’s electors, rather than the 

name of the candidate, will appear on a 

State election ballot, that candidate will 

be deemed to be the candidate for the 

purpose of 11 CFR 110.10(b)(1).

(2) P re s id e n tia l C aucus, C o n ven tio n

o r P rim a ry E le c tio n C a n d id a te D eb ates.

(i) A sponsor may hold a presidential, 

caucus, convention or primary election 

candidate debate in any of the following 

ways:

(A) The sponsor shall invite all 

candidates qualified to appear on a 

State primary election ballot in a 

specified region, as well as each 

recognized, active candidate in any 

caucus or convention State in that 

region.

(B) In lieu of a debate held under 11 

CFR 110.13(2)(i) (A) or (C), the sponsor 

has the option of holding a debate to 

which all candidates of all parties of the 

same type (major, minor or new) in a 

specified region are invited.

(C) In lieu of a debate held in 

accordance with 11 CFR 110.13(b)(2)(i) 

(A) or (B), the sponsor has the option of 

holding a debate restricted to 

candidates seeking the nomination of 

one party in a specified region. If the 

sponsor chooses to held a debate 

restricted to the candidates for a 

particular party’s nomination, then the 

sponsor must also invite the candidates 

for nomination by each party of that 

type (major, minor or new) to participate 

in a similar separate debate restricted to 

the candidates seeking nomination by 

one party. However, where each of the 

parties of that type does not have at 

least two candidates seeking the 

nomination of that party, then the 

sponsor does not have the option to hold 

separate debates under this section.

(i0 In States where the name of a 

candidate’s electors, or the name of 

delegate candidates pledged or 

committed to a presidential candidate 

seeking nomination of a party, rather 

than the name of the candidate, will 

appear on a State election ballot, that 

candidate will be deemed to be the 

candidate for the purposes of 11 CFR 

110.13(b)(2).

(3) H o u se o r S e n a te C aucus,

C o n ven tio n o r P rim a ry E le c tio n

C a n d id a te D eb ates, (i) For House or 

Senate candidate debates in a primary 

election State, the sponsor shall invite 

all candidates who are seeking party 

nomination for the same office and are 

qualified to appear on the ballot; or in a 

caucus or convention State, the sponsor 

shall invite all recognized active 

candidates seeking party nomination for 

the same office.
Federal Register / Vol. 44, No. 130 / Thursday, July 5,1979 / Rules and Regulations 39351

(ii) Jn lieu of a debate held under 11 

CFR 110.13(b)(3) (i) or (iii), the sponsor 

has the option of holding a debate to 

which all candidates of all parties of the 

same type (major, minor or new) in a 

specified region are invited.

(iii) In lieu of a debate held in 

accordance with 11 CFR 110.13(b)(3) (i) 

or (ii), the sponsor has the option of 

holding a debate restricted to 

candidates seeking the nomination of 

one party. If the sponsor chooses to hold 

a debate restricted to the candidates for 

a particular party nomination, then the 

sponsor must also invite the candidates 

for nomination by each party of that 

type (major, minor or new) to participate 

in a similar separate debate restricted to 

the candidates seeking nomination by 

one party. However, where each of the 

parties of that type does not have at 

least two candidates seeking the 

nomination of that party, then the 

sponsor does not have the option to hold 

separate debates under this section.

(4) Two candidate requirement. At 

least two candidates must participate in 

any debate held under 11 CFR 110.13(b).

(5) Definitions. For purposes of 11 

CFR 110.13(b), the following definitions 

apply.

(i) The term “major party” means, 

with respect to any United States 

presidential, House, or Senate general 

election, a political party whose 

candidate for that office in the preceding 

election for that office received, as the 

candidate of such party 25 percent or 

more of the total number of popular 

votes received by all candidates for 

such office.

(ii) The term “minor party” means,, 

with respect to any United States 

presidential, House, or Senate general 

election, a political party whose 

candidate for that office in the preceding 

election for that office received, as the 

candidate of such party, 5 percent or 

more but less than 25 percent of the total 

number of popular votes received by all 

candidates for such office.

(iii) The term “new party” means, 

with respect to any United States 

presidential, House, or Senate general 

election, a political party which is 

neither a major party nor a minor party.

(6) Endorsements by more than one

party. For purposes of 11 CFR 110.13(b), 

a candidate receiving the endorsement 

of a major party and a minor or new 

party will be considered a major party 

candidate. A candidate receiving the 

endorsement of a minor party and a new 

party will be considered a minor party 

candidate.

4.11 CFR 114.4(e) is added to read as 

follows:

§ 114.4 Nonpartisan communication.

* * * *

(e) Nonpartisan public candidate

debates. A corporation or labor 

organization may donate funds to 

organizations qualified under 11 CFR 

110.13 to sponsor nonpartisan public 

candidate debates held in accordance 

with the provisions of that section.

Dated: June 29,1979.

Robert O. Tieman,

Chairman, Federal Election Commission.

[FR Doc. 79-20713 Filed 7-3-79; 8:45 am]

BILLING CODE 6715-01-M