November 2009 Federal Election Commission Volume 35, Number 11

Table of Contents

(continued on page 5) (continued on page 2)

 Regulations

1 Notice of Proposed Rulemaking on 

Coordinated Communications

7 Notice of Proposed Rulemaking on 

Federal Election Activity

 Court Cases

1 EMILY’S List v. FEC

 Reports

3 Massachusetts Special Election 

Reporting: Senate Vacancy 

9 Advisory Opinions

13 Index

Regulations Court Cases

Emily’s List v. F

On September 18, 2009, the U.S. 

Court of Appeals for the District of 

Columbia found that three Commission regulations that implement how 

nonconnected federal political committees may allocate funds to finance 

certain activities that influence both 

federal and non-federal elections, 

and that clarify when funds obtained 

in response to solicitations are contributions under the Federal Election 

Campaign Act (the Act), violate the 

Constitution and are in excess of the 

Commission’s statutory authority. 

The court found these regulations 

to be invalid and ordered the district court to vacate the challenged 

regulations.

Background

EMILY’s List is a nonconnected 

political committee registered with 

the FEC. In January 2005, EMILY’s 

List filed suit in the U.S. District 

Court for the District of Columbia, 

asserting a facial challenge to regulations promulgated by the FEC to 

implement provisions of the Act.

The regulations at issue established a new rule for when funds 

received in response to certain solicitations must be treated as “contributions” under the Act and thereby 

Notice of Proposed 

Rulemaking on Coordinated 

Communications

On October 8, 2009, the Commission approved a Notice of Proposed 

Rulemaking (NPRM) proposing 

amendments to portions of its threepart regulatory test for coordinated 

communications. 11 CFR 109.21. 

The NPRM also proposes adding a 

safe harbor to address certain public 

communications in which federal 

candidates endorse or solicit support 

for non-profit entities, as well as 

a safe harbor for certain commercial and business communications. 

Proposed 11 CFR 109.21(i) and (j). 

The Commission is undertaking 

this rulemaking to comply with the 

ruling in Shays v. FEC, 528 F.3d 914 

(D.C. Cir. 2008) (Shays III Appeal), 

that invalidated aspects of the rules 

defining coordinated communications. 

Background

As part of its rulemaking to 

implement the Bipartisan Campaign 

Reform Act of 2002 (BCRA), the 

Commission devised a three-prong 

test for determining whether a communication has been coordinated 

with a candidate or party, and thus 
Federal Election Commission RECORD November 2009

2

Federal Election Commission

999 E Street, NW

Washington, DC 20463

800/424-9530 (Toll-Free)

202/694-1100 (Information Div.)

202/501-3413 (FEC Faxline)

202/219-3336 (TDD for the

 hearing impaired)

Steven T. Walther, 

 Chairman

Matthew S. Petersen,

 Vice Chairman

Cynthia L. Bauerly,

 Commissioner

Caroline C. Hunter, 

 Commissioner

Donald F. McGahn II,

 Commissioner

Ellen L. Weintraub,

 Commissioner

Alec Palmer,

 Acting Staff Director

Thomasenia Duncan, 

 General Counsel

Published by the Information

 Division of the Office of 

 Communications

Greg J. Scott, 

 Assistant Staff Director

Amy L. Kort

 Deputy Assistant Staff Director

Myles G. Martin

 Editor

http://www.fec.gov

Court Cases

(continued from page 1)

(continued on page 3)

must be subject to federal limitations 

and prohibitions. The regulations 

also modified the Commission’s 

rules regarding how political committees may allocate funds between 

federal and nonfederal accounts. 

Under current FEC rules, 

nonconnected political committees that maintain both federal and 

nonfederal accounts may allocate 

administrative expenses, costs of 

generic voter drives and costs of 

public communications that refer to a political party, but not to 

specific candidates, with a minimum of 50 percent federal funds. 

(The remainder may be allocated 

to the nonfederal account). 11 CFR 

106.6(c). Public communications 

and voter drives that refer to one 

or more clearly identified federal 

candidates, but not to any nonfederal 

candidates, must be financed with 

100 percent federal funds. 11 CFR 

106.6(f)(1). Public communications 

and voter drives that refer to one or 

more clearly identified nonfederal 

candidates but do not refer to any 

federal candidates may be financed 

with 100 percent nonfederal funds. 

11 CFR 106.6(f)(2). 

With regard to solicitations, Commission regulations state that funds 

received in response to a solicitation 

must be considered “contributions” 

under the Act if the communication indicates that any portion of 

the funds received will be used to 

support or oppose the election of a 

clearly identified federal candidate. 

11 CFR 100.57(a). Likewise, if a 

solicitation refers to a clearly identified federal candidate and a political 

party, but not to a clearly identified nonfederal candidate, all funds 

received in response are considered 

contributions. 11 CFR 100.57(b)(1). 

In contrast, however, if the solicitation refers to one or more clearly 

identified nonfederal candidates, in 

addition to a clearly identified federal candidate, at least 50 percent of 

the funds received must be treated as 

contributions under the Act, regardless of whether the solicitation also 

refers to a political party. 11 CFR 

100.57(b)(2).

EMILY’s List sought to enjoin 

enforcement of the regulations, alleging that each was in excess of the 

Commission’s authority, was arbitrary and capricious, was promulgated without adequate notice under the 

Administrative Procedure Act (APA) 

and violated the First Amendment to 

the Constitution.

Court Decision

The court held that Commission 

regulations at 11 CFR 106.6(c), 

106.6(f) and 100.57 violate the First 

Amendment and exceed the FEC’s 

authority under the Act. 

In its discussion of the First 

Amendment, the court referred to 

Buckley v. Valeo, 424 U.S. 1, 14 

(1976), which found that campaign 

contributions and expenditures 

constitute “speech” and, therefore, 

fall under the protection of the First 

Amendment. The court noted that in 

Davis v. FEC 128 S. Ct. 2759, 2773 

(2008), it was decided that limiting 

contributions and expenditures in an 

effort to equalize the political field is 

not a “legitimate government interest” and, therefore, cannot be the 

reasoning behind these types of regulations. The court went on to state 

that the only legitimate government 

interest that allows for the restriction 

of campaign finances is preventing corruption or the appearance of 

corruption. The appeals court stated 

that that government interest has 

only been applied to contributions 

to candidates and parties because 

those two groups pose the greatest risk of quid pro quo corruption. 

Buckley, 424 U.S. at 26-27; see also 

Citizens Against Rent Control v. City 

of Berkeley, 454 U.S. 290, 296-97 

(1981). 

The court stated that, since the 

regulations in question do not address candidates, parties or for-profit 

corporations, which the court said 

are the only entities the Supreme 

Court has allowed these types of 

limits to be placed on, the appeals 

court had to determine how to apply 

the above principles to non-profit entities. The court determined that “the 

central issue turns out to be whether 

independent non-profits are treated 

like individual citizens (who under 

Buckley have the right to spend 

unlimited money to support their 

preferred candidates) or like political parties (which under McConnell

[v. FEC, 540 U.S. 93 (2003),] do 

not have the right to raise and spend 

unlimited soft money).” The court 

then made a distinction between 
November 2009 Federal Election Commission RECORD

3

(continued on page 4)

Court Cases (continued from page 2)

three different types of non-profits 

and stated how their contributions 

and expenditures can be regulated. 

First, the court stated, there are 

non-profits that make no contributions, but only expenditures for 

political activities such as advertisements and GOTV activities. In 

the decision, the court stated that 

“non-profit entities, like individual 

citizens, are constitutionally entitled 

to raise and spend unlimited money 

in support of candidates for elected 

office—with the narrow exception 

that, under Austin, the Government 

may restrict to some degree how 

non-profits spend donations received 

from the general treasuries of forprofit corporations or unions.” 

The court stated that a second 

category of non-profits are those that 

make contributions to candidates, 

but no expenditures. The court stated 

that these groups can be limited in 

the contributions they receive. 

The court stated that a third category, which includes EMILY’s List, 

consists of those non-profits that 

make both contributions and expenditures. According to the court, such 

groups “are entitled to make their 

expenditures...out of a soft-money 

or general treasury account that is 

not subject to source and amount 

limits,” as long as they make their 

contributions from a hard-money 

account. The court did not interpret 

McConnell as permitting the types 

of soft-money restrictions currently 

placed on political parties to be applied to non-profits like EMILY’s 

List.

The court then held that sections 

106.6(c), 106.6(f) and 100.57 are not 

closely drawn to meet an important 

government interest and would, 

therefore, be struck down. Among 

other things, the court stated that 

“non-profits are constitutionally entitled to pay 100 percent of the costs 

of...voter drive activities [and generic campaign activity] out of their 

soft-money accounts.”1

 The court 

reached the same conclusion for ads 

that refer to a federal candidate.2

 It 

further stated that the solicitation 

regulation unconstitutionally prohibits a non-profit from stating that 

the money it is raising will be used 

to support its preferred candidate.3

The court also held that the regulations exceeded the Commission’s 

statutory authority because, the court 

said, they required non-profits to use 

hard money for activities that were 

exclusively non-federal. The court 

found the regulations to be invalid 

and ordered the district court to vacate the challenged regulations. 

Judge Brown concurred in the 

result reached by the two judges in 

the majority because she agreed that 

the regulations exceeded the Commission’s authority under the Act. 

However, she disagreed with the 

majority’s First Amendment analysis, and she stated that the court’s 

decision to reach the constitutional 

questions was unnecessary.

U.S Court of Appeals for the District of Columbia, 08-5422.

—Katherine Wurzbach

1

 11 CFR 106.6(c) requires that 

nonconnected political committees 

maintaining both a federal and a 

nonfederal account allocate administrative expenses, costs of generic voter 

drives and costs of public communications that refer to a political party, but 

not to a specific candidate, with a minimum of 50 percent federal funds.

2 11 CFR 106.6(f)(1) requires that public 

communications and voter drives that 

refer to one or more clearly identified federal candidates, but not to any 

nonfederal candidates, must be financed 

with 100 percent federal funds.

3 11 CFR 100.57 states that funds received in response to a solicitation must 

be considered federal “contributions” 

under the Act if the communication 

indicates that any portion of the funds 

received will be used to support or oppose the election of a clearly identified 

federal candidate. 

Reports

Massachusetts Special

Election Reporting: Senate 

Vacancy

Massachusetts will hold a Special Election to fill the vacant U.S. 

Senate seat held by the late Edward 

M. Kennedy. The Special Primary 

will be held on December 8, 2009, 

and the Special General will be held 

January 19, 2010.

Candidate committees involved in 

this election must follow the reporting schedule on page 4. Please note 

that the reporting period for the 

Post-General election report spans 

two election cycles. For this report 

only, authorized committees must 

use the Post-Election Detailed Summary Page rather than the normal 

Detailed Summary Page. 

PACs and party committees that 

file on a semi-annual schedule and 

participate in this election must 

also follow the schedule on page 

4. PACs and party committees that 

file monthly must continue to file 

according to their regular filing 

schedule.

Timely Filing for Paper Filers

Registered and Certified Mail. 

Reports sent by registered or certified mail must be postmarked on or 

before the mailing deadline to be 

considered timely filed. A committee 

sending its reports by registered or 

certified mail should keep its mailing 

receipt with the U.S. Postal Service 

(USPS) postmark as proof of filing 

because the USPS does not keep 

complete records of items sent by 

certified mail. 2 U.S.C. §434(a)(5) 

and 11 CFR 104.5(e).
Federal Election Commission RECORD November 2009

4

Reports

(continued from page 3)

(continued on page 5)

Overnight Mail. Reports filed via 

overnight mail1

 will be considered 

timely filed if the report is received 

by the delivery service on or before 

the mailing deadline. A committee sending its reports by Express 

or Priority Mail, or by an overnight 

delivery service, should keep its 

proof of mailing or other means of 

transmittal of its reports. 2 U.S.C. 

§434(a)(5) and 11 CFR 104.5(e).

Other Means of Filing. Reports 

sent by other means—including 

first class mail and courier—must 

be received by the FEC before the 

Commission’s close of business on 

the filing deadline. 11 CFR 100.19 

and 104.5(e).

Forms are available for downloading and printing at 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 Electronically

U.S. Senate committees that file 

with the Secretary of the Senate are 

not subject to the mandatory electronic filing rules, but may file an 

unofficial copy of their reports with 

the Commission in order to speed 

disclosure.

For other political committees, 

reports filed electronically must be 

received and validated by the Commission by 11:59 p.m. Eastern Time 

on the applicable filing deadline. 

Electronic filers who instead file on 

paper or submit an electronic report 

that does not pass the Commission’s 

validation program by the filing 

deadline will be considered nonfilers 

and may be subject to enforcement 

actions, including administrative 

fines.

Massachusetts Senate Special Election 

Reporting

Committees Involved Only in the Special Primary 

(12/08/09) Must File:

 Close of Reg./Cert./Overnight Filing

 Books1 Mailing Deadline Deadli

Pre-Primary November 18 November 23 November 262

Year-End December 31 January 312 January 31

Committees Involved in Both the Special Primary 

(12/08/09) and the Special General (01/19/10) Must File:

 Close of Reg./Cert./Overnight Filing 

 Books1 Mailing Deadline Deadli

Pre-Primary November 18 November 23 November 262

Pre-General &

Year-End3 December 31 January 4 January 

Post-General February 8 February 18 February 18

April Quarterly March 31 April 15 April 15

1 This date indicates the end of a reporting period. A reporting period 

always begins the day after the closing date of the last report filed. If the 

committee is new and has not previously filed a report, the first report must 

cover all activity that occurred before the committee registered up through 

the close of books for the first report due.

2 Notice that the registered/certified and overnight mailing deadline falls 

on a weekend or federal holiday. The report should be postmarked on or 

before that date.

3 Committees should file a consolidated Pre-General and Year-End Report by 

the filing deadline of the Pre-General Report.

48-Hour Contribution Notices

Note that 48-hour notices are 

required of the participating candidate’s principal campaign committee if it receives any contribution of 

$1,000 or more per source between 

November 19, 2009, and December 

5, 2009, for the Special Primary 

Election, and between December 31, 

2009, and January 16, 2010, for the 

Special General Election.

24- and 48-Hour Reports of 

Independent Expenditures

Political committees and other 

persons must file 24-hour reports of 

independent expenditures that aggregate at or above $1,000 between 

November 19, 2009 and December 

6, 2009, for the Special Primary 

Election, and between December 

31, 2009, and January 17, 2010, for 

the Special General Election. This 

requirement is in addition to that of 

filing 48-hour reports of independent 

expenditures that aggregate $10,000 

or more during a calendar year. The 

period for 48-hour reports of independent expenditures runs from January 1, 2009, through November 18, 

2009, in connection with the Special 

Primary Election, and January 1, 

2009, through December 30, 2009, 

for the Special General Election. 1

“Overnight mail” includes Priority or 

Express Mail having a delivery confirmation, or an overnight service with 

which the report is scheduled for next 

business day delivery and is recorded in 

the service’s on-line tracking system.
November 2009 Federal Election Commission RECORD

5

(continued on page 6)

Reports

(continued from page 4)

Electioneering Communications

The 30-day electioneering communications period in connection 

with the Special Primary Election 

runs from November 8 through 

December 8, 2009. The 60-day electioneering communications period in 

connection with the Special General 

Election runs from November 20, 

2009, through January19, 2010.

Disclosure of Lobbyist Bundling

Activity

Campaign committees, party 

committees and leadership PACs 

that are otherwise required to file reports in connection with the special 

elections must simultaneously file 

FEC Form 3L if they receive two 

or more bundled contributions from 

lobbyists/registrants or lobbyist/registrant PACs that aggregate in excess 

of $16,000 during the special election reporting period (see reporting 

schedule chart on page 4). For more 

information on these requirements, 

see the March 2009 Record.

—Elizabeth Kurland

Regulations

(continued from page 1)

results in an in-kind contribution. 

The test considers:

•	 The source of payment;

•	 The content of communication;

and

•	 The conduct of those involved.

To be considered coordinated, the 

communication must satisfy all three 

prongs of the coordinated communication test.

In Shays III Appeal, the court 

invalidated a portion of the content 

prong of the test. To satisfy the content prong a communication must 

be:

•	 An electioneering communication;

•	 A public communication that

republishes campaign materials;

•	 A public communication that

expressly advocates; or

•	 A public communication that refers to a political party or clearly 

identified federal candidate and 

is publicly distributed within 90 

or 120 days of the primary or 

general election.1

The appeals court concluded that 

the Commission’s decision to apply “express advocacy” as the only 

content standard outside the 90-day 

and 120-day windows does not 

“rationally separate election-related 

advocacy from other activity falling 

outside FECA’s expenditure definition.” Shays III Appeal, 528 F.3d at 

926. 

In Shays III Appeal, the Court of 

Appeals also invalidated a portion of 

the conduct prong of the test. To fulfill the conduct prong, the communication must be created, produced, or 

distributed: 

•	 At the request or suggestion of;

•	 After material involvement by; or

•	 After substantial discussion with,

a candidate, a candidate’s authorized committee, or a political 

party committee; 

or

•	 The person paying for the communication contracts with, or 

employs, a “commercial vendor” 

to create, produce, or distribute 

the communication; and

•	 The commercial vendor provided

services to the clearly identified 

candidate, that candidate’s authorized committee, the candidate’s 

opponent or his or her authorized 

committee or a political party 

committee referred to in the communication within the previous 

120 days; and 

•	 The commercial vendor conveys

material information about the 

campaign or needs of the candidate to the person paying for the 

communication; 

or

•	 The communication is paid for

by a person or the employer of a 

person, who has previously been 

an employee or an independent 

contractor of a candidate or the 

candidate’s authorized committee, the opponent or the opponent’s authorized committee, or a 

political party committee during 

the 120 days before the purchase 

or distribution of the communication; and

•	 The person must convey material

information about the campaign 

or needs of the candidate to the 

person paying for the communication.

The first three elements were not 

at issue in Shays III Appeal. The 

Shays III Appeal court invalidated 

the 120-day period of time during 

which a common vendor’s or former 

campaign employee’s relationship 

with an authorized committee or 

political party committee could 

satisfy the conduct prong at 11 CFR 

109.21(d)(4) and (d)(5). Shays III 

Appeal, 528 F.3d at 928-29.

Proposals

In response to the court’s decision, the Commission has proposed 

four possible modifications to the 

existing content standards in 11 CFR 

109.21:

1) Adopt a content standard to 

cover public communications 

that promote, attack, support or 

oppose (PASO) a political party 

or a clearly identified federal 

candidate. This alternative would 

amend 11 CFR 109.21(c) by 

replacing the express advocacy 

standard with the PASO standard. 

As part of its consideration of 

a PASO content standard, the 

Commission is also considering 

whether it should adopt a defini1 tion of PASO. The NPRM sets These are the revised time periods the 

Commission promulgated in 2006 in 

response to Shays v. FEC, 414 F.3d 76 

(D.C. Cir. 2005).
Federal Election Commission RECORD November 2009

6

Regulations

(continued from page 5)

forth two possible approaches 

to defining PASO. Alternative A 

provides a specific definition for 

each of the component terms that 

would apply when any of those 

terms is used in conjunction with 

one or more of the other terms. 

Alternative B applies a multiprong test to determine whether a 

given communication PASOs. See 

Alternatives A & B at Proposed 

11 CFR 100.23.

2) Adopt a content standard to cover 

public communications that are 

the “functional equivalent of 

express advocacy.” The proposed 

standard specifies that a communication is the “functional 

equivalent of express advocacy” 

if it “is susceptible of no reasonable interpretation other than as 

an appeal to vote for or against” a 

clearly identified federal candidate. See FEC v. Wisconsin Right 

to Life, 127 S.Ct. 2652, 2667 

(2007).

3) Clarify the existing express 

advocacy content standard by 

providing a cross-reference to the 

express advocacy definition at 11 

CFR 100.22.

4) Adopt a standard that pairs a 

public communication standard 

with a new conduct standard (the 

“Explicit Agreement” standard). 

This would require a formal or 

informal agreement between a 

candidate, candidate’s committee or political party committee 

and the person paying for the 

public communication. Either the 

agreement or the communication 

must be made for the purpose of 

influencing a federal election.

In response to the court’s decision regarding the conduct prong, 

the Commission has proposed three 

alternatives for the time periods 

specified in the common vendor and 

former employee conduct standards: 

1) Retain the current 120-day period 

with the Commission providing additional justification for 

that time period. The Shays III 

Appeal court did not hold that 

the 120-day period was inherently improper, but rather that 

the Commission “must support 

its decision with reasoning and 

evidence...” Shays III Appeal, 

528 F.3d at 929.

2) Amend 11 CFR 109.21(4) and (5) 

by deleting the phrase “the previous 120 days” and replacing it 

with “the two-year period ending 

on the date of the general election 

for the office or seat the candidate 

seeks.” The two-year period corresponds with the election cycle 

for the House of Representatives, 

the most common election cycle 

of those regulated by the Commission.

3) Replace the existing 120-day 

period with a “current election 

cycle” period. “Current election 

cycle” is defined in current Commission regulations as beginning 

“on the first day following the 

date of the previous general election for the office or seat which 

the candidate seeks...The election cycle shall end on the date on 

which the general election for the 

office or seat that the individual 

seeks is held.” 11 CFR 100.3(b).

Other issues. Although not 

included in the Shays III Appeal

ruling, the Commission is also 

considering adding a safe harbor to 

11 CFR 109.21(i) to address certain 

public communications in which 

federal candidates endorse or solicit 

support for non-profit entities organized under 501(c)(3) of the Internal 

Revenue Code, or for public policies 

or legislative proposals espoused by 

those organizations. This proposed 

additional safe harbor would, under 

certain circumstances, enable a federal candidate to participate in such 

a public communication, without the 

communication being treated as an 

in-kind contribution to the candidate.

The Commission is also considering adding a new safe harbor at 11 

CFR 109.21(j) for certain commercial and business communications. 

This proposed safe harbor would 

apply to any public communication in which a federal candidate is 

clearly identified only in his or her 

capacity as the owner or operator 

of a business that existed prior to 

the candidacy, so long as the public 

communication does not PASO that 

candidate or another candidate who 

seeks the same office, and so long 

as the communication is consistent 

with other public communications 

made prior to the candidacy in terms 

of the medium, timing, content and 

geographic distribution.

The Commission also seeks 

comment on whether it should issue 

an NPRM on the party coordinated 

communication regulation at 11 

CFR 109.37, since that provision 

has a content prong that is substantially similar to the one for “coordinated communications” in 11 CFR 

109.21(c). Also, the common vendor 

and former employee conduct standards of 11 CFR 109.21(d) that were 

struck down in Shays III Appeal

are incorporated by reference in the 

party coordinated communication 

regulations. See 11 CFR 109.37(a)

(3).

Comments

The NRPM was published in the 

October 21, 2009, Federal Register

and is available on the FEC web site 

at http://www.fec.gov/pdf/nprm/coord_commun/2009/notice_2009-23.

pdf. The Commission strongly encourages comments, especially those 

that include empirical data.

All comments must be received 

on or before January 19, 2010.

Comments must be in writing, addressed to Ms. Amy L. Rothstein, 

Assistant General Counsel, and 

submitted in either electronic, fax 

or hard copy form. Commenters 

are strongly encouraged to submit 

comments electronically to ensure 

timely receipt and consideration. 

Electronic comments should be sent 

(continued on page 7)
November 2009 Federal Election Commission RECORD

7

to CoordinationShays3@fec.gov. If 

the electronic comments include an 

attachment, the attachment must be 

in Adobe Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed 

comments should be sent to (202) 

219-3923, with hard copy follow-up. 

Hard copy comments and hard copy 

follow-up of faxed comments should 

be sent to the Federal Election Commission, 999 E St. NW, Washington, 

DC 20463. All comments must 

include the full name and postal 

service address of the commenter 

or they will not be considered. The 

Commission will post comments on 

its website after the comment period 

ends. 

A public hearing on the proposed 

rules will be held at a later date in 

the Commission’s ninth floor hearing room, 999 E St., NW, Washington, DC. 

—Katherine Wurzbach

Regulations

(continued from page 6)

Notice of Proposed 

Rulemaking on Federal 

Election Activity

On October 8, 2009, the Commission approved a Notice of Proposed 

Rulemaking seeking comment on 

certain aspects of federal election 

activity (FEA). The rulemaking 

is in response to the court of appeals’ 2008 holding in Shays v. 

FEC (“Shays III”) which found the 

Commission’s regulatory definitions 

of “voter registration activity” and 

“get-out-the-vote (GOTV) activity” contravened the purpose of the 

Bipartisan Campaign Reform Act of 

2002 (BCRA) by creating loopholes 

that allowed the use of soft money 

for federal elections. The court 

remanded the regulations to the FEC 

“to issue regulations consistent with 

the Act’s text and purpose.”

Voter Registration Activity 

Under current regulations, “voter 

registration activity” is defined 

as “contacting individuals by 

telephone, in person, or by other 

individualized means in order to 

assist them in registering to vote.” 

100.24(a)(2). The court of appeals 

in Shays III found this definition to 

be deficient for two reasons. First, 

it requires that the party contacting 

potential voters actually “assist” 

them in voting or registering to vote, 

thus excluding efforts that actively 

encourage people to vote or register 

to vote and dramatically narrowing 

which activities are covered. Second, 

the definition requires the contact to 

be “by telephone, in person, or by 

other individualized means,” thus 

entirely excluding mass communications targeted to many people. The 

court concluded that these elements 

of the definition created loopholes 

in violation of BCRA’s purpose and 

allowed the use of soft money to 

influence federal elections.

To comply with the court’s 

decision, the Commission proposes 

amending the definition of “voter 

registration activity” to include 

“encouraging or assisting potential 

voters in registering to vote.” The 

proposed definition attempts to 

close both loopholes identified by 

the court and would cover activities 

such as:

•	 Providing an individual with a

flier that reads “Register to Vote” 

and that includes the URL and 

address of the appropriate state or 

local office handling voter registration; 

•	 Providing an individual with a

voter registration form and verbally encouraging the recipient 

to fill out the form and submit it 

to the appropriate state or local 

office; or 

•	 Mailing voter registration forms

to individuals and encouraging 

them, in a cover letter, to fill out 

and submit the forms in advance 

of the registration deadline.

The Commission seeks comment 

on whether the proposed definiPACronyms, Other 

PAC Publications 

Available

 The Commission annually 

publishes an alphabetical listing 

of acronyms, abbreviations and 

common names of political action 

committees (PACs).

 For each PAC listed, the 

index provides the full name 

of the PAC, its city, state, FEC 

identification number and, if not 

identifiable from the full name, its 

connected, sponsoring or affiliated 

organization.

 This index is helpful in 

identifying PACs that are not 

readily identified in their reports 

and statements on file with the 

FEC.

 To order a free copy of 

PACronyms, call the FEC’s 

Disclosure Division at 800/424-

9530 or 202/694-1120.

 PACronyms is also available 

on diskette for $1 and can be 

accessed free on the FEC web site 

at www.fec.gov.

 Other PAC indexes, described 

below, may be ordered from the 

Disclosure Division. Prepayment 

is required.

•	 An alphabetical list of all

registered PACs showing each 

PAC’s identification number, 

address, treasurer and connected 

organization ($13.25).

•	 A list of registered PACs

arranged by state providing 

the same information as above 

($13.25).

•	 An alphabetical list of

organizations sponsoring PACs 

showing the name of the PAC 

and its identification number 

($7.50).

 The Disclosure Division can 

also conduct database research to 

locate federal political committees 

when only part of the committee 

name is known. Call the telephone 

numbers above for assistance or 

visit the Public Records Office in 

Washington at 999 E St. NW. (continued on page 8)
Federal Election Commission RECORD November 2009

8

Regulations

(continued from page 7)

tion of “voter registration activity” 

adequately addresses the concerns of 

the Shays III court, including closing 

the loopholes identified by the court. 

The Commission also asks whether 

the proposed definition provides sufficient guidance as to which activities are covered and which are not. 

GOTV

Commission regulations define 

GOTV activity as “contacting registered voters by telephone, in person 

or by other individualized means 

to assist them in voting.” 100.24(a)

(3). As it did with the definition of 

voter registration activity, the court 

of appeals in Shays III found the 

definition of GOTV activity to be 

deficient in that it required actual 

assistance by individualized means, 

thereby creating two loopholes in 

the definition that violated BCRA’s 

purpose. The Commission proposes 

revising the definition of GOTV activity by eliminating the “assistance” 

and “individualized means” requirements from the current definition. 

Specifically, the Commission proposes redefining GOTV activity as 

“encouraging or assisting potential 

voters to vote.” The proposed definition would cover such activities as:

•	 Driving through a neighborhood

in a sound truck that plays a message urging listeners to “Vote next 

Tuesday at the Main Street community center”;

•	 Mailing a flier to registered voters

with the date of the election but 

not the location of polling places 

or their hours of operation; and

•	 Making telephone calls (including robocalls) reminding the recipient of the times during which 

the polls are open on election day.

The Commission seeks comment 

on whether the proposed definition 

of “GOTV activity” adequately addresses the concerns of the Shays III 

court, including closing the loophole 

sidentified by the court. The Commission also asks whether the proposed definition provides sufficient 

guidance as to which activities are 

covered and which are not.

Exclusion for Public 

Communications Relating to State 

and Local Election

The Commission’s proposed 

definition of GOTV also specifically 

excludes any “public communication that refers solely to one or more 

clearly identified candidate for state 

or local office and notes the date of 

the election.” The Commission seeks 

comments on whether the proposed 

exclusion correctly implements the 

statutory definition.

Exemption for Mere Exhortation

The Shays III court seemingly 

acknowledged that exclusions to 

the definitions of “voter registration 

activity” and “GOTV activity” for 

“routine or spontaneous speechending exhortations” and “mere 

exhortations...made at the end of a 

political event or speech” would be 

permissible. Therefore, the Commission’s proposed definitions of 

voter registration activity and GOTV 

activity exempt speeches or events 

that include exhortations to vote or 

to register to vote that are incidental 

to the speech or event. This exemption would not inoculate speeches or 

events that otherwise qualify as FEA 

under the proposed definitions, such 

as a speech given 60 days before 

an election that provides listeners 

with information on how to register to vote but that also includes an 

exhortation to register to vote. The 

Commission asks if has properly established the scope of the proposed 

exemption and whether it provides 

clear guidance as to the activities 

exempted from the definitions of 

voter registration activity and GOTV 

activity.

Other Issues

The Commission also asks 

whether it should explicitly supersede, in whole or in part, Advisory 

Opinion (AO) 2006-19 in light of 

Shays III and the proposed definitions for “voter registration activity” and “GOTV activity.” In Shays 

III, the court of appeals cited AO 

2006-19 in which the Commission 

found that letters and pre-recorded 

telephone calls encouraging certain 

Democrats to vote in an upcoming 

election did not count as GOTV 

activity in part because the communications did not provide individualized assistance to voters. The court 

held that this definition of GOTV 

activity was contrary to the statute, 

but did not address whether communications made solely in connection with a nonfederal election may 

be excluded from the definition of 

GOTV activity or FEA. The Commission seeks comment on whether 

it should supersede AO 2006-19 and, 

if so, whether it should explicitly 

address the circumstances involved 

in the AO either in the regulation or 

its E&J.

Voter Identification and GOTV 

Activity in Connection with a 

Nonfederal Election

In 2006, the Commission adopted 

an Interim Final Rule that revised 

the definition of “in connection with 

an election in which a candidate 

for federal office appears on the 

ballot.” Prior to the revision, the 

definition covered municipalities, 

counties and states that conducted 

separate, nonfederal elections. The 

Interim Final Rule excluded purely 

nonfederal voter identification and 

GOTV activity from the definition 

of “in connection with an election in 

which a candidate for federal office 

appears on the ballot.” It specifically excluded voter identification or 

GOTV activities that were “in connection with a nonfederal election 

that is held on a date separate from a 

date of any federal election” and that 

referred exclusively to:

•	 Nonfederal candidates participating in the nonfederal election, 

provided the nonfederal candi-

(continued on page 9)
November 2009 Federal Election Commission RECORD

9

Advisory

Opinions

dates are not also federal candidates;

•	 Ballot referenda or initiatives

scheduled for the date of the 

nonfederal election; or

•	 The date, polling hours and locations of the nonfederal election.

This component of the “in connection with an election” sunsetted 

in 2007, and subsequent attempts by 

the Commission to reintroduce the 

rule were not completed. The Commission proposes adding 11 CFR 

100.24(c)(5) to reintroduce much of 

the exclusion originally contained in 

the Interim Final Rule. The proposed 

rule would exclude from the definition of FEA any voter identification 

activities or GOTV activities that 

are “solely in connection with a 

nonfederal election held on a date 

separate from any federal election.” 

The proposed rule is based on the 

premise that voter identification and 

GOTV activity for nonfederal elections held on a different date from 

any federal election will have no effect on subsequent federal elections. 

The Commission asks whether voter 

identification and GOTV efforts in 

connection with a nonfederal election have any meaningful effect on 

voter turnout in a subsequent federal 

election, or otherwise confer benefits 

on federal candidates. The Commission specifically requests comments 

supplemented by empirical data.

Comments

All comments must be in writing and addressed to Amy L. Rothstein, Assistant General Counsel, 

and submitted on or before Friday, 

November 20, 2009. Comments may 

be submitted in electronic, facsimile 

or hard copy form. Commenters 

are strongly encouraged to submit 

comments electronically to ensure 

timely receipt and consideration. 

Electronic comments should be 

sent to FEAShays3@fec.gov. If the 

electronic comments include an attachment, the attachment must be in 

Adobe Acrobat (.pdf) or Microsoft 

word (.doc) format. Faxed comments 

should be sent to 202-219-3923 with 

hard copy follow-up. Hard copy 

comments and hard copy follow-up 

of faxed comments should be sent 

to the Federal Election Commission, 

999 E Street, NW, Washington, D.C. 

20463. All comments must include 

the full name and postal service address of the commenter or they will 

not be considered. The Commission 

will post comments on its website 

after the comment period ends. The 

Commission will hold a hearing on 

these proposed rules on Wednesday, 

December 16, 2009, at 9:30 a.m. 

in the Commission’s ninth floor 

hearing room, 999 E Street NW, 

Washington D.C. Anyone wishing to 

testify at the hearing must file written comments by the due date and 

must include a request to testify in 

the written comments.

Additional Information

The Notice of Proposed 

Rulemaking on Federal Election 

Activity was published in the October 20, 2009, Federal Register and 

is available on the FEC web site at 

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

definition/2009/notice_2009-22.pdf.

 —Zainab Smith

AO 2009-13

Political Committee Status 

of Consultants Serving LLC

Who Make Independent

Expenditures

A communications consulting 

company established as a Limited 

Liability Company (LLC) may serve 

as a commercial vendor to a singlemember, natural-person LLC that 

makes independent expenditures 

concerning federal elections or candidates without triggering political 

committee status. This consulting 

company may also serve as a commercial vendor to two or more of 

these LLCs without triggering political status assuming that it does not 

facilitate communications between 

the LLCs and does not convey information from one LLC to another.

Background

Black Rock Group (BRG) is an 

LLC that assists its clients, including 

CEOs, elected officials and Fortune 

500 companies, in building public 

policy campaigns through communication, “earned media” and 

grassroots messaging. BRG intends 

to extend these strategic communication and general consulting 

services to single-member, naturalperson LLCs established for the 

sole purpose of making independent 

expenditures that expressly advocate 

the election or defeat of one or more 

federal candidates.

The LLCs that BRG plans to 

work with will all be established for 

the sole purpose of making independent expenditures supporting or opposing federal candidates. BRG will 

only work with an LLC if it consists 

of a sole member and manager, is 

treated as a disregarded entity (not as 

a corporation) for federal income tax 

purposes, receives all capital contributions solely from the personal 

funds of its only member, accepts no 

donations from any other individual 

or entity and engages in no for-profit 

business activities. 

Each single-member, naturalperson LLC will spend more than 

$1,000 per calendar year on independent expenditures expressly 

advocating the election or defeat of 

one or more federal candidates via 

television, radio, direct mail, phone 

banks and print ads. In no case will 

any communication be funded by 

more than one LLC. However, in 

some cases more than one LLC may 

make independent expenditures for 

or against the same federal candi-

(continued on page 10)

Regulations

(continued from page 8)
Federal Election Commission RECORD November 2009

10

Advisory Opinions

(continued from page 9)

date. Neither BRG nor its LLC clients nor any other vendor providing 

services to each LLC will coordinate any communications with any 

federal candidate or political party 

committee. The same BRG personnel will service all of the LLCs, and 

BRG will manage other consultants 

such as pollsters, media production 

and placement companies and other 

communication vendors who will 

provide services to each LLC. BRG 

will not have firewalls preventing 

BRG personnel advising one LLC 

from discussing that client’s private 

plans and activities with staff advising another LLC. BRG anticipates 

facilitating certain communications 

between LLCs by, for example, 

scheduling meetings or conveying 

messages between them.

Analysis

Treatment of LLC as an Individual. Under the Federal Election 

Campaign Act (the Act) and Commission regulations, contributions 

and independent expenditures made 

by a single-member, natural-person 

LLC are treated as if they were 

made by an individual. 2 U.S.C. 

§431(8) and (9); 11 CFR 110.1(g). 

In AO 2009-02, the Commission 

determined that independent expenditures made by an LLC with a sole 

natural person member should be 

treated as if they were made by that 

member. Because the LLC is a third 

party and is not the requestor of this 

advisory opinion, the Commission 

could not state in advance that the 

LLC at issue would have the same 

kind of unity with the sole member 

of the LLC demonstrated in AO 

2009-02. However, for purposes of 

this advisory opinion, the Commission assumed that the LLC to which 

BRG is providing its services will 

be similar in all material respects to 

the single-member LLC addressed 

in AO 2009-02. Therefore, the 

single-member, natural-person LLCs 

addressed by this opinion are treated 

as individuals, not as “political committees” under the Act.

Political Committee Status of 

BRG. This advisory opinion addresses two “political committee” 

status issues: first, the possible status 

of BRG as a political committee and, 

second, the status of BRG and one 

single-member, natural-person LLC 

as a “group of persons” constituting 

a “political committee.” The Act 

and Commission regulations define 

“political committee” as “any committee, club, association, or other 

group of persons which receives 

contributions aggregating in excess 

of $1,000 during a calendar year or 

which makes expenditures aggregating in excess of $1,000 during 

a calendar year.” 2 U.S.C. §431(4)

(A); 11 CFR 100.5(a). The Supreme 

Court limited the scope of the term 

to organizations that are controlled 

by a federal candidate or whose 

major purpose is the nomination or 

election of a candidate. Buckley v. 

Valeo, 424 U.S. 1, 79 (1976); FEC v. 

Massachusetts Citizens for Life, Inc., 

479 U.S. 238, 262 (1986).

The request, as well as the information available on BRG’s website, 

indicates that BRG is organized and 

operated for commercial purposes, 

and not for purposes of nominating 

or electing a candidate. BRG is a 

vendor of communication consulting services to a range of clients. 

BRG indicates that it has not in the 

past advocated the election of any 

federal candidate, supported any 

political party or stated any political purpose, and does not plan to 

do so in the future. BRG is neither 

owned nor controlled by any federal 

candidate. Therefore, the Commission concludes that BRG is not itself 

a political committee.

BRG and one single-member, 

natural-person LLC as a Group of 

Persons. Although BRG will advise 

its LLC client on message development and the communication of 

its views on federal candidates, it 

offers similar consulting services to 

its non-political clients by advising 

them on media strategy, message 

campaigning and building public 

policy campaigns. The LLC will retain ultimate control over the timing, 

content, method and candidate referenced in each communication constituting an independent expenditure, 

and BRG itself will not pay for any 

communications. The relationship 

between BRG and its LLC client is 

consistent with that of a commercial 

vendor, defined by Commission 

regulations as “any persons providing goods or services to a candidate 

or political committee whose usual 

and normal business involves the 

sale, rental, lease or provision of 

those goods or services.” 11 CFR 

116.1(c). The consulting services 

BRG will provide to its LLC client 

are consistent with its usual and 

normal business practice; thus, BRG 

and its LLC client will not constitute 

a “group of persons.”

Political Committee Status of 

BRG and Multiple LLCs. Assuming 

that none of the LLCs directly communicate with one another and that 

BRG does not facilitate communication between them, the Commission 

agreed that there was nothing to 

suggest that either the LLCs or the 

LLCs together with BRG would be 

a political committee. The Commission has previously concluded that 

individuals using a common commercial vendor did not constitute a 

“group of persons” and thus were 

not a political committee. See AO 

2008-10. In that advisory opinion, 

the requestor represented that it did 

not facilitate communications or 

arrangements among its clients. If 

BRG does not facilitate communication between any of its LLC clients 

or otherwise convey any information 

about one LLC to any other LLC, 

BRG will simply be establishing a 

separate commercial relationship 

with each individual LLC, and the 

LLCs or the LLC together with BRG 

will not become a political committee. The Commission did not address 

(continued on page 11)
November 2009 Federal Election Commission RECORD

11

1 The Commission could not approve a 

response by the required four affirmative 

votes as to whether BRG and its clients 

would become a “group of persons” if 

it served as a common vendor among 

various LLCs sponsoring independent 

expenditures concerning (1) the same 

federal candidates or elections or (2) 

different federal candidates or elections where BRG did not represent that 

it would not pass messages between 

various LLCs and that the LLCs would 

not communicate directly among themselves.

whether any agreements or collaboration between the LLCs that does 

not involve BRG would result in the 

creation of a political committee.1

Date issued: September 28, 2009;

Length: 7 pages.

—Christopher B. Berg

Advisory Opinions

(continued from page 10)

AO 2009-22

National Party Committee 

may File Lobbyist Bundling

Reports Quarterly

The Democratic Senatorial Campaign Committee (DSCC), a national 

committee of a political party, may 

file Lobbyist Bundling Reports on a 

quarterly basis instead of monthly. 

The applicable covered periods for 

these reports in election years would 

be semi-annually, quarterly and any 

applicable pre-and post-election 

reporting periods. In non-election 

years, the covered periods would be 

the semi-annual periods beginning 

on January 1 and July 1.

Background

As a national committee of a political party, the DSCC is required by 

the Federal Election Campaign Act 

(the Act) to file monthly campaign 

finance reports with the Commission. 2 U.S.C. §434(a)(4)(B) and 11 

CFR 104.5(c)(4). It may also need 

to file Lobbyist Bundling reports 

periodically and has the option of 

filing those reports on a quarterly 

1 “Reporting committees” means political party committees, political committees authorized by candidates (i.e., 

candidate committees) and leadership 

PACs. 11 CFR 104.22(a)(1).

ist Bundling reports on a quarterly 

basis. 

Thus, if the DSCC elects to file 

its Lobbyist Bundling Report on a 

quarterly basis, the reporting schedule is as follows: in election years, 

semi-annually, quarterly and the 

applicable pre-and post-election 

reporting periods, as appropriate; in 

nonelection years, the DSCC need 

observe only the semi-annual covered periods beginning on January 1 

and July 1, as appropriate. Additionally, the Committee must file Lobbyist Bundling Reports for any special 

election covered periods in which it 

receives bundled contributions above 

the threshold amount from lobbyists/

registrants and lobbyist/registrant 

PACs. 11 CFR 104.22(a)(5)(v).

Date Issued: October 9, 2009;

Length: 3 pages.

 —Myles Martin

(continued on page 12)

basis instead of monthly. 11 CFR 

104.22(a)(5)(iii).

Analysis

The Act and Commission regulations require certain political committees (“reporting committees”)1

 to 

disclose information about any lobbyist/registrant or lobbyist/registrant 

PAC that forwards, or is credited 

with raising, two or more bundled 

contributions aggregating in excess 

of a certain amount within a specified period of time (“covered period”). 2 U.S.C. §434(i) and 11 CFR 

104.22. The covered periods for 

Lobbyist Bundling Reports generally 

correspond to the reporting periods 

for the reporting committee’s regular 

campaign finance reports. However, reporting committees that file 

monthly campaign finance reports 

may elect to file their Lobbyist 

Bundling reports “pursuant to the 

quarterly covered period...instead of 

the monthly covered period...” 11 

CFR 104.22(a)(5)(iv). Overlapping 

semi-annual covered periods apply 

to all reporting committees.

A reporting committee required 

to file campaign finance reports 

quarterly with the Commission must 

file its Lobbyist Bundling reports 

for the quarters beginning January 

1, April 1, July 1 and October 1 of 

each calendar year and the applicable pre-and post-election reporting 

periods in election years; in a nonelection year, reporting committees 

not authorized by a candidate [i.e. a 

political party committee] need only 

observe the semi-annual reporting 

period. 11 CFR 104.22(a)(5)(ii). 

This schedule applies both to reporting committees who file campaign 

finance reports quarterly and to those 

that file campaign finance reports 

monthly, but choose to file LobbyNew Formats for 

Downloading Data 

Files, Disclosure 

Data Blog

 At data.fec.gov, the Commission 

is building files that will allow 

for more sophisticated use of 

campaign finance data. Each of 

the files can be downloaded in 

either .csv or .xml formats. Each 

also has a metadata page that 

describes the information included 

and the structure of the file itself. 

There is a .pdf version of each file 

for printing. 

 On the Disclosure Data Blog, 

the Commission will post 

information about the files and 

future plans, and solicit questions, 

ideas and suggestions from users.
Federal Election Commission RECORD November 2009

12

AO 2009-23

Nonfederal PAC Need Not 

Allocate its Expenses

Given the requestor’s representation that they are not “political 

committees” under the Federal 

Election Campaign Act (the Act) 

or Commission regulations, FEC 

allocation rules do not apply to the 

Virginia Chapter of the Sierra Club’s 

(“VA Chapter”) proposed use of its 

state-registered political action committee (“State PAC”) and funds from 

the Sierra Club Voter Education 

Fund (“SC-VEF”) to finance certain 

activities relating to upcoming elections in Virginia.

Background

VA Chapter is a state chapter of 

the Sierra Club, which is a nonprofit corporation pursuant to section 

501(c)(4) of the Internal Revenue 

Code. VA Chapter formed the State 

PAC in 1985 for the exclusive purpose of engaging in state and local 

political campaign activities, and 

registered it with Virginia’s State 

Board of Elections. VA Chapter raises funds in accordance with Virginia 

law for the State PAC’s account, 

which may include funds from 

its members, corporations, labor 

organizations and other individuals. 

The State PAC has made contributions to state and local candidates, 

but has not used its account to make 

any contributions or expenditures in 

connection with federal elections. 

Since July 31, 2000, the State PAC 

has been organized under section 

527 of the Internal Revenue Code. 

26 U.S.C. §527.

SC-VEF is also organized under 

section 527 of the Internal Revenue 

Code. The Sierra Club established 

SC-VEF as a nonfederal political 

organization in order “to educate 

people about public official’s environmental records, voting records 

and position of candidates for election to Congress, the Presidency, and 

state or local offices...” Both VA 

Chapter and SC-VEF maintain that 

neither the State PAC nor SC-VEF is 

a “political committee” under FEC 

regulations.

Proposed Activities. The State 

PAC intends to conduct three categories of activities in connection 

with the 2009 Virginia elections and 

the 2010 federal general elections. 

SC-VEF intends to assist by providing partial funding for these activities. First, the State PAC intends to 

conduct voter drives, including voter 

identification efforts asking potential 

voters for their views on environmental matters and how those views 

may affect their voting behavior in 

the upcoming elections. The voter 

drive activities will also involve 

voter registration and GOTV activity 

urging the public to register to vote 

and to elect candidates who support 

government actions to protect the 

environment. None of these voter 

drive activities will refer to any 

clearly identified federal, state or local candidates, or political parties.

Second, the State PAC intends 

to make public communications 

expressly advocating the election or 

defeat of clearly identified state and 

local (but not federal) candidates in 

connection with the 2009 Virginia 

general election. Some of these 

public communications will feature 

federal officeholders who are candidates for re-election in the 2010 

federal elections endorsing state and 

local candidates, but the communications will neither reference the 

2010 election, nor the fact that the 

officeholders are federal candidates. 

Third, the State PAC will distribute “issue advertisements” in connection with the above-mentioned 

2009 and 2010 elections that will 

refer to positions on issues of public 

policy held by clearly identified 

federal officeholders from Virginia, 

some or all of whom will also be 

candidates for re-election in 2010. 

These communications will not 

expressly advocate the election or 

defeat of any federal candidates, 

nor will they contain the functional 

equivalent of express advocacy. 

Additionally, the public communications will not be coordinated with 

any federal candidates.

Analysis

Under the Act and Commission 

regulations, the term “political committee,” includes any committee, 

club, association or other group of 

person which receives contributions 

or makes expenditures in excess of 

$1,000 during any calendar year. 

2 U.S.C. §431(4) and 11 CFR 

100.5(a)-(c). The Supreme Court has 

held that only organizations under 

the control of a candidate or whose 

major purpose is federal campaign 

activity (i.e., the nomination or 

election of federal candidates) can 

be considered political committees 

under the Act. See Buckley v. Valeo, 

4242 U.S. 1, 79 (1976).

Commission regulations provide 

that various types of political committees that make disbursements in 

connection with both federal and 

nonfederal elections must allocate 

certain expenses between federal 

funds (i.e., funds that are subject to 

the limitations and prohibitions of 

the Act) and nonfederal funds (i.e., 

those funds not subject to the limitations or prohibitions of the Act). 11 

CFR Part 106. More specifically, 

section 106.6 requires separate 

segregated funds and nonconnected 

committees that make disbursements 

in connection with both federal 

and nonfederal elections to allocate 

expenses in certain ways depending upon the nature of the activity 

involved. Under those rules, these 

entities may make such disbursements in one of two ways: 1) they 

may pay the activities using 100 

percent federal funds; or 2) if they 

have established separate federal and 

nonfederal accounts pursuant to 11 

CFR 102.5, they may allocate the 

expenses between these accounts. 

106.6(a).

The Commission has consistently 

applied these allocation rules only to 

(continued on page 13)

Regulations

(continued from page 11)
November 2009 Federal Election Commission RECORD

13

AO 2009-24

Illinois Green Party Qualifies 

as State Party Committee

The Illinois Green Party (the 

ILGP) qualifies as a state party committee under the Federal Election 

Campaign Act (the Act) because: 

(1) the Green Party of the U.S. (the 

GPUS) qualifies as a political party; 

(2) ILGP is part of the official GPUS 

structure; and (3) ILGP is responsible for the day-to-day operations 

of the GPUS at the state level.

Background

The Act defines a “state committee” as an organization that, by 

virtue of the bylaws of a “political 

party,” is part of the official party 

structure and is responsible for 

the day-to-day operations of the 

political party at the state level, as 

determined by the Commission. 2 

U.S.C. §431(15); 11 CFR 100.14(a). 

A “political party” is an “association, committee, or organization that 

nominates a candidate for election 

to any federal office whose name 

appears on the election ballot as the 

candidate of such association, committee, or organization.” 2 U.S.C. 

§431(16); 11 CFR 100.15. 

The determination as to whether a 

state party organization qualifies as a 

state committee of a national political party hinges on three elements. 

First, the national party that the state 

party organization is part of must 

itself be a “political party.” Second, 

the state party organization must be 

part of the official structure of the 

national party. Third, the state party 

organization must be responsible 

for the day-to-day operations of the 

national party at the state level. See, 

e.g., AOs 2009-16, 2008-16, 2008-

13, 2007-06 and 2007-02.

Analysis

The Commission must first assess 

whether the national party qualifies as a “political party” under the 

Act and Commission regulations. 

2 U.S.C. §§431(15) and (16); 11 

CFR 100.14 and 100.15. In previous 

advisory opinions the Commission 

has determined that the Green Party 

qualifies as a political party, and 

the Commission has recognized the 

GPUS as a national committee of a 

political party since 2001. The Commission is not aware of any factual 

changes that would alter that conclusion. 

The ILGP must also qualify as 

part of the official party structure 

of the national party, pursuant to 

11 CFR 100.14. In previous advisory opinions, the Commission has 

looked to supporting documentation 

indicating that the state party is part 

of the official party structure. The 

Executive Director for the GPUS 

provided documentation that suffices 

to establish the ILGP is part of the 

GPUS’s official party structure. 

Third, the ILGP must maintain 

responsibility for the day-to-day 

operations of the GPUS at the state 

level. 2 U.S.C. §431(15); 11 CFR 

100.14. In previous advisory opinions, the Commission has evaluated 

this third element by considering 

two criteria:

•	 Whether the organization has

placed a candidate on the ballot 

(thereby qualifying as a “political 

party”); and

•	 Whether the bylaws or other

governing documents of the 

state party organization indicate 

activity commensurate with the 

day-to-day functions and operations of a political party at the 

state level.

Ballot placement on behalf of a 

“candidate” is required because the 

requesting organization’s existence 

as a “political party” is necessary for 

state committee status. A state party 

organization must actually obtain 

ballot access for one or more “candidates,” as defined by the Act. See 

2 U.S.C. §§431(2), (15), and (16); 

11 CFR 100.3(a); 100.14(a); 100.15. 

Former Representative Cynthia 

McKinney qualified as a “candidate” 

under the Act, and McKinney’s 

name was listed on the 2008 Illinois 

ballot as the GPUS’s candidate for 

President, satisfying the first criterion. Further, the ILGP also listed 

five candidates for the U.S. House 

in various districts in Illinois on the 

2008 ballot, each of whom qualified as “candidates” under the Act 

according to disclosure reports filed 

with the Commission.

The Commission also determined 

that the ILGP’s constitution and 

bylaws delineate activity commensurate with the day-to-day functions 

and operations of a political party on 

the state level, thereby satisfying the 

second criterion. 

Because all three elements of 

the definition of “state committee” are satisfied, the Commission 

determined that the ILGP qualifies 

as a state committee of a political 

party under the Act and Commission 

regulations.

Date Issued: October 9, 2009;

Length: 5 pages.

—Kathy Carothers

PACs that qualify as “political committees” under the Act and Commission regulations. Accordingly, given 

the representation that the State PAC 

and SC-VEF are not “political committees” under the Act and given the 

nature of their proposed activities, 

the allocation rules at 11 CFR 106.6 

do not apply. This conclusion assumes that neither entity will engage 

in any activity that would cause it to 

become a political committee under 

the Act.

Date Issued: October 9, 2009;

Length: 5 pages.

 —Myles Martin

Advisory Opinions

(continued from page 12)
Federal Election Commission RECORD November 2009

14

Index

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

the 2009 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

Procedural rules for advisory opinions, 8:4

2008-14: Internet campaign TV station’s activities qualify for press 

exemption, 1:7

2008-15: Nonprofit corporation 

may use general treasury funds to 

broadcast radio advertisement, 1:8

2008-16: State party committee status 

for Libertarian Party of Colorado, 

1:9

2008-17: PAC may pay expenses incurred by Senator’s co-author, 2:5

2008-18: Drug discount card program 

would result in prohibited corporate contributions, 2:6

2008-19: Campaign committee 

employee may serve as Leadership 

PAC’s treasurer, 2:8

2008-20: Non-profit corporation may 

reimburse its PAC for advertising 

expenses, 3:5

2008-21: Solicitation of members of 

corporation’s wholly owned mercantile exchanges for PAC contributions, 4:5

2008-22: Senator’s committee may 

repay certain personal loans with 

campaign funds, 3:5

2009-01: Renewal of Socialist 

Workers Party’s partial disclosure 

exemption, 5:1

2009-02: Independent expenditures 

by single member LLC, 5:5

2009-04: Recount and election contest funds, 5:6

2009-06: Federal officeholder’s state 

campaign committee may raise 

nonfederal funds to retire debts, 6:1

2009-07: Campaign’s use of candidate-owned LLC’s boat, 8:5

2009-08: Use of campaign funds for 

home security upgrades, 6:2

2009-10: Federal officeholder may 

use campaign funds to pay certain 

legal fees, 8:6

2009-12: Candidate may use campaign funds for certain legal fees, 

8:7

2009-13: Political committee status 

of consultants serving LLCs who 

make independent expenditures, 

11:9

2009-14: LLC affiliated with domestic subsidiary of a foreign corporation may administer an SSF, 10:1

2009-15: Candidate may accept 

contributions for potential special 

election, 9:1

2009-16: Libertarian Party of Ohio 

qualifies as state party committee, 

9:4

2009-18: Disaffiliation of SSFs after 

restated agreement, 9:5

2009-19: PAC may use contributor 

information for limited communication, 10:5

2009-20: Federal officeholder may 

use campaign funds to pay certain 

legal fees of current and former 

staff members, 10:6

2009-21: FECA preempts West Virginia law affecting federal candidates, 10:7

2009-22: National party committee 

may file lobbyist bundling reports 

quarterly, 11:11

2009-23: Nonfederal PAC need not 

allocate its expenses, 11:12

2009-24: Illinois Green Party qualifies as state party committee, 11:13

Audits

Commission Adopts Procedural 

Rules for Audit Hearings, 8:3

Commission

Message from the Chairman, 1:1; 

2:1; 3:1; 7:1; 8:1

New Chairman and Vice Chairman 

elected, 1:14

Compliance

MUR 5408: Rev. Al Sharpton, 

Sharpton 2004 and National Action Network, 6:5

Contribution Limit

Contribution limits for 2009-2010, 

3:8

Court Cases

______ v. FEC

– Cao, 2:2 

– EMILY’s List, 11:1

– Public Citizen, Inc., 6:1

– Republican National Committee, 

1:1

Enforcement

Agency procedure for notice to 

respondents in non-complaint generated matters, 9:9

Outreach

Conferences scheduled for 2009, 

1:15; 2:10; 3:14; 4:10; 5:7; 8:10; 

9:9; 10:12

FEC to hold summer state outreach 

workshops, 6:7; 7:10

July reporting roundtable, 6:7; 7:9

Roundtable on new lobbyist bundling 

disclosure rules, 3:14

Party Activities

2009 Coordinated party expenditure 

limits for 2009, 3:7

Party financial activity for 2009, 9:8

Public Hearing

Comment period extended, 2:1

Commission holds public hearing on 

agency practices and procedures, 

3:10

FEC to hold hearing on website and 

Internet communications improvements, 7:4

Hearing on Commission activities 

and procedures, 1:6

Regulations

Civil penalties adjusted for inflation, 

8:1

Commission announces disposition 

of petitions for rulemakings regarding candidate debates, 9:2

Final Rules on reorganization of 

National Voter Registration Act 

regulations, 9:1

Final Rules on repeal of Millionaires’ 

Amendment, 2:4

(continued on page 15)
Federal Election Commission RECORD November 2009

PRESORTED STANDARD

U.S. POSTAGE

PAID

FEDERAL ELECTION COMMISSION

FEDERAL ELECTION COMMISSION 

999 E Street, NW

Washington, DC 20463

Official Business

Penalty for Private Use, $300

Index

(continued from page 14)

Final Rules on reporting contributions bundled by lobbyists, registrants and their PACs, 3:1

Notice of Proposed Rulemaking on 

coordinated communications, 11:1

Notice of Proposed Rulemaking on 

federal election activity, 11:7

Reports

April Reporting Reminder, 4:1

California Special Election Reporting: 10th District, 8:9

California Special Election Reporting: 32nd District, 4:4

FEC Form 3L Due May 20, 5:1

FEC Form 3L Due in July, 7:3

Illinois Special Election Reporting: 

5th District, 2:8

July Reporting Reminder, 7:1

Massachusetts Special Election Reporting: Senate Vacancy, 11:3

New York Special Election Reporting: 20th District, 3:9

October Reporting Reminder, 10:1

Reports Due in 2009, 1:2

Statistics

2008 Presidential receipts nearly 

double 2004 totals, 7:8

Growth in PAC financial activity 

slows, 6:6

House and Senate campaign 

fundraising through June, 10:9

Party financial activity for 2009, 9:8

Party Support for candidates increases in 2008 election cycle, 7:7

Semi-annual PAC Count, 4:8

800 Lin

Best practices for committee management, 4:1

Preparing for the next election, 7:5

Retiring campaign debt, 1:10

Volunteer Activity, 10:9