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      FEC Record: Regulations
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      Final rules on coordinated communications (2010)

FEC Record: RegulationsFinal rules on coordinated communications (2010)October 4, 2010 On August 26, 2010, the Commission
approved final rules and Explanation
and Justification regarding
coordinated communications. These
rules comply with the decision of the
U.S. Court of Appeals for the District
of Columbia Circuit in Shays v.FEC, 528 F.3d 914 (D.C. Cir. 2008)
(“Shays III Appeal”). See the July
2008 Record. The new rules take effect
December 1, 2010. The new rules add to the existing
definition of coordinated communications
a content standard for communications
that are the “functional
equivalent of express advocacy.” The
new rules also create a safe harbor
for certain business and commercial
communications and provide further
explanation and justification for two
“conduct standards” in the existing
regulations Background Commission regulations implementing
the Bipartisan Campaign
Reform Act of 2002 (BCRA)
established a three-prong test for
determining whether a communication
is coordinated with a candidate,
a candidate’s authorized committee,
a political party committee or the
agents of any of these. Coordinated
communications generally result in an in-kind contribution. The test
includes a payment prong, a content
prong and a conduct prong. The content
and conduct prong each include
several standards, and satisfying any
one of the standards within a prong
satisfies that prong of the test. 11
CFR 109.21(a)(1)-(3). Various aspects of the coordinated
communications test were challenged
in court. The new regulations
respond to the decision by the U.S.
Court of Appeals for the District of
Columbia Circuit in Shays III Appeal.
In that decision, the court held
that the Commission’s decision to 
have an “express advocacy” standard
as the only content standard that applies
outside of 90-day and 120-day
windows before an election runs
counter to the purpose of BCRA and
the Administrative Procedure Act.
The court noted that the FEC “must
demonstrate that the standard it
selects ‘rationally separates election-related
advocacy from other activity
falling outside [the Act’s] expenditure
definition.’” In addition, the
court invalidated the 120-day period
used in the existing conduct prong
to determine whether a common
vendor or former campaign employee’s
relationship with a candidate
committee or party committee would
satisfy the prong. 11 CFR 109.21(d)
(4) and (d)(5). The court found that
the Commission failed to justify its
decision to apply a 120-day window. New content standard Functional equivalent of express
advocacy.The Commission is revising
the content prong by adding a
new standard to cover public communications
that are the “functional
equivalent of express advocacy.”
See new 11 CFR 109.21(c)(5). 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.” This new
standard applies without regard to
the timing of the communication or
the targeted audience. In its application of the functional
equivalent of express advocacy test,
the Commission will be guided by
the Supreme Court’s reasoning and
application of the test to the communications
at issue in Wisconsin Right to Life v. FEC (WRTL) 551 U.S. 449
(2007) and Citizens United v. FEC,
130 S. Ct. 876 (U.S. Jan 21, 2010).
The new content standard is an
objective, well-established standard.
The functional equivalent of express
advocacy test has been developed
by the Supreme Court to apply to a
wide range of speakers as a standalone
test for separating election-related speech that is not express
advocacy from non-election related
speech. The new content standard
applies to all speakers subject to the
coordinated communications rules
at 11 CFR 109.21, including individuals
and advocacy organizations,
without regard to when a communication
is made or its intended
audience. As required by Shays III
Appeal, the new content standard
also captures more communications
than the express advocacy content
standard outside of the 90-day and
120-day time windows. Conduct standards The “common vendor” and “former
employee/independent contractor”
standards of the conduct prong
were challenged in Shays III Appeal. Current Commission regulations
provide that the “common vendor”
standard of the conduct prong is
satisfied if the person paying for the
communication had contracted or
employed a commercial vendor who
provided certain specified services to
the candidate clearly identified in the
communication, the candidate’s authorized
committee, the candidate’s
opponent, the opponent’s authorized
committee or a political party committee
during the previous 120 days.
Also, the commercial vendor must
use or convey to the person paying
for the communication information
about the plans, projects, activities
or needs of the candidate, the
candidate’s opponent or political
party committee, and that information
must be material to the creation,
production or distribution of the
communication. 109.21(d)(4). The former employee/independent
contractor conduct standard
is satisfied if the communication
is paid for by a person or by the
employer of a person who was an
employee or independent contractor
of the candidate clearly identified in
the communication, or the candidate’s
authorized committee, the
candidate’s opponent, the opponent’s authorized committee or a political
party committee during the previous
120 days. Additionally, the former
employee or independent contractor
must use, or convey to the person
paying for the communication, information
about the plans, projects,
activities or needs of the candidate
or political party committee that is
material to the creation, production
or distribution of the communication.
109.21(d)(5). The Commission is not revising
the common vendor or former
employee conduct standards at this
time. In order to comply with the
Shays III Appeal decision, the Commission
has decided to provide a
more detailed explanation and justification
for the 120-day period. Based on the record, 120 days has
been shown to be a sufficient time
period to prevent circumvention of
the Act. Many commenters, in written
and oral testimony, agreed that
campaign information must be both
current and proprietary (i.e., nonpublic)
to be subject to the coordinated
communications regulation.
The information in the rulemaking
record shows the widespread has become problematic in the time
the 120-day period has been in effect.
The Commission concludes
that it is extremely unlikely that a
common vendor or former employee
may possess information that remains
material when it is more than
four months old. public availability of certain types of campaign information that used to remain confidential for much longer in years past. The record also demonstrates that changes in technology have significantly reduced the duration of the news cycle, further decreasing the time that campaign information remains relevant. There is no information in the rulemaking record showing that use or conveyance by common vendors and former employees of information material to public communications outside of the 120-day period Safe harbor for certain business
and commercial communications The Commission is also adopting
a safe harbor to address certain commercial
and business communications.
The new safe harbor excludes
from the definition of a coordinated
communication 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 promote,
attack, support or oppose (PASO)
that candidate or another candidate
who seeks the same office, and so
long as the communication is consistent
with other public communications
made by the business prior to
the candidacy in terms of the medium,
timing, content and geographic
distribution. New 11 CFR 109.21(i).
The new safe harbor is meant to
exclude communications that have
bona fide business and commercial
purposes from the definition of coordinated
communication. Additional information The final rules and Explanation
and Justification were published in
the Federal Register on September
15, 2010. The full text of the Federal
Registernotice is available on the Commission's website.
 Author
          Myles MartinIcon of email being sentPublic Affairs Specialist


Read next: Final rules for definition of Federal Election Activity (2010)
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This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


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