76138 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

application as provided in that section.

Such decision may be appealed by

either the stowaway or the Service to

the Board of Immigration Appeals. If a

denial of the application for asylum and

for withholding of removal becomes

final, the alien shall be removed from

the United States in accordance with

section 235(a)(2) of the Act. If an

approval of the application for asylum

or for withholding of removal becomes

final, the Service shall terminate

removal proceedings under section

235(a)(2) of the Act.

Dated: November 27, 2000.

Janet Reno,

Attorney General.

[FR Doc. 00–30601 Filed 12–5–00; 8:45 am]

BILLING CODE 4410–10–P

FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 109 and 110

[Notice 2000—21]

General Public Political

Communications Coordinated With

Candidates and Party Committees;

Independent Expenditures

AGENCY: Federal Election Commission.

ACTION: Final rule; transmittal of

regulations to Congress.

SUMMARY: The Federal Election

Commission is adopting new rules to

address expenditures for coordinated

communications that include clearly

identified candidates, and that are paid

for by persons other than candidates,

candidates’ authorized committees, and

party committees. The rules address

expenditures for communications made

at the request or suggestion of a

candidate, authorized committee or

party committee; as well as those where

any such person has exercised control

or decision-making authority over the

communication, or has engaged in

substantial discussion or negotiation

with those involved in creating,

producing, distributing or paying for the

communication. The Commission is

also revising the definition of

‘‘independent expenditure,’’ to conform

with this new definition. Further

changes to the rules on coordination

between political party committees and

their candidates are awaiting the

outcome of a pending Supreme Court

case. Additional information is

provided in the supplementary

information that follows.

DATES: Further action, including the

announcement of an effective date, will

be taken after these regulations have

been before Congress for 30 legislative

days pursuant to 2 U.S.C. 438(d). A

document announcing the effective date

will be published in the Federal

Register.

FOR FURTHER INFORMATION CONTACT: Ms.

Rosemary C. Smith, Assistant General

Counsel, or Ms. Rita A. Reimer,

Attorney, 999 E Street, NW.,

Washington, D.C. 20463, (202) 694–1650

or (800) 424–9530 (toll free).

SUPPLEMENTARY INFORMATION: The

Commission is issuing final rules at 11

CFR 100.23 that address coordinated

communications that include clearly

identified candidates, that are paid for

by persons other than candidates,

candidates’ authorized committees, and

party committees. The rules address

communications made at the request or

suggestion of a candidate, authorized

committee or party committee; as well

as those where a candidate, authorized

committee, or party committee has

exercised control or decision-making

authority over the communication, or

has engaged in substantial discussion or

negotiation with those involved in

creating, producing, distributing or

paying for the communication. Other

than the requirement that covered

communications include a clearly

identified candidate, the new rules

contain no content standard. The

Commission is also revising its rules at

11 CFR 100.16 and 109.1, which define

‘‘independent expenditure,’’ to conform

with this new definition; and making

conforming amendments to 11 CFR

110.14, the section of the Commission’s

rules that deals with contributions to

and expenditures by delegates and

delegate committees.

Section 438(d) of Title 2, United

States Code, requires that any rules or

regulations prescribed by the

Commission to carry out the provisions

of Title 2 of the United States Code be

transmitted to the Speaker of the House

of Representatives and the President of

the Senate 30 legislative days before

they are finally promulgated. Because

these rules were approved by the

Commission on November 30, 2000,

which is less than 30 legislative days

before the adjournment of the 106th

Congress, the Commission plans to

transmit them to Congress on the first

day of the 107th Congress, which will

occur in January 2001. A Notice

announcing the effective date of these

rules will be published in the Federal

Register.

Explanation and Justification

The Federal Election Campaign Act, 2

U.S.C. 431 et seq. (‘‘FECA’’ or the ‘‘Act’’)

prohibits corporations and labor

organizations from using general

treasury funds to make contributions to

a candidate for federal office. 2 U.S.C.

441b(a). It also imposes limits on the

amount of money or in-kind

contributions that other persons may

contribute to federal campaigns. 2

U.S.C. 441a(a). Individuals and persons

other than corporations, labor

organizations, government contractors

and foreign nationals can make

independent expenditures in

connection with federal campaigns. 11

CFR 110.4(a) and 115.2. Independent

expenditures must be made without

cooperation or consultation with any

candidate, or any authorized committee

or agent of a candidate; and they shall

not be made in concert with, or at the

request or suggestion of, any candidate,

or any authorized committee or agent of

a candidate. 2 U.S.C. 431(17).

Expenditures that are coordinated

with a candidate or campaign are

considered in-kind contributions.

Buckley v. Valeo, 424 U.S. 1, 46–47

(1976) (footnote omitted) (‘‘Buckley’’);

Federal Election Commission v. The

Christian Coalition, 52 F.Supp.2d 45, 85

(D.D.C. 1999) (‘‘Christian Coalition’’). As

such, they are subject to the limits and

prohibitions set out in the Act. The Act

defines ‘‘contribution’’ at 2 U.S.C.

431(8) to include any gift, subscription,

loan, advance, or deposit of money or

anything of value made by any person

for the purpose of influencing any

election for federal office.

The Commission is promulgating new

rules at 11 CFR 100.23 that define the

term coordinated general public

political communication. They

generally follow the standard articulated

by the United States District Court for

the District of Columbia in the Christian

Coalition decision, supra. This decision

sets out at length the standards to be

used to determine whether expenditures

for communications by unauthorized

committees, advocacy groups and

individuals are coordinated with

candidates or qualify as independent

expenditures.

A. History of the Rulemaking

This rulemaking was originally

initiated to implement the Supreme

Court’s plurality opinion in Colorado

Republican Federal Campaign

Committee v. Federal Election

Commission, 518 U.S. 604 (1996)

(Colorado I) concerning the application

of section 441a(d) of the FECA. In that

decision, the Court concluded that

political parties are capable of making

independent expenditures on behalf of

their candidates for federal office, and

that it would violate the First

Amendment to subject such

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76139

independent expenditures to the section

441a(d) expenditure limits. Id. at 2315.

Section 441a(d) permits national,

state, and local committees of political

parties to make limited general election

campaign expenditures on behalf of

their candidates, which are in addition

to the amount they may contribute

directly to those candidates. 2 U.S.C.

441a(d). These section 441a(d)

expenditures are commonly referred to

as ‘‘coordinated party expenditures.’’

Prior to the Colorado case, it was

presumed that party committees could

not make expenditures independent of

their candidates.

The Commission notes that not all

coordinated expenditures constitute

communications. In fact, party

committees may use their coordinated

expenditure limits to pay for many other

types of expenses incurred by

candidates, including staff costs, polling

and other services.

Following the Colorado I Supreme

Court decision, the Democratic

Senatorial Campaign Committee and the

Democratic Congressional Campaign

Committee filed a Petition for

Rulemaking urging the Commission to

(1) repeal or amend 11 CFR 110.7(b)(4)

to the extent that that paragraph

prohibited national committees of

political parties from making

independent expenditures for

congressional candidates; (2) repeal or

amend 11 CFR Part 109 with respect to

which expenditures qualify as

‘‘independent’’; and (3) issue new rules

to provide meaningful guidance

regarding independent expenditures by

the national committees of political

parties. Although the Petition for

Rulemaking urged changes only in the

rules applicable to national committees

of political parties, the Commission’s

rulemaking also sought comment on

proposed changes to the provisions

governing state and local party

committees, as well as coordination by

outside groups with either candidates or

party committees.

In response to the Colorado I decision,

the Commission promulgated a Final

Rule on August 7, 1996 which repealed

paragraph (b)(4) of section 110.7. See 61

F.R. 40961 (Aug. 7, 1996). That

paragraph had provided that party

committees could not make

independent expenditures in

connection with federal campaigns. On

the same date, the Commission also

published a Notice of Availability

(‘‘NOA’’) seeking comment on the

remainder of the Petitioners’’ requests.

See 61 F.R. 41036 (Aug. 7, 1996). No

statements supporting or opposing the

petition were received by the close of

the comment period.

On May 5, 1997 the Commission

published an NPRM in which it sought

comments on proposed revisions to

these regulations. 62 FR 24367 (May 5,

1997). Comments in response to this

NPRM were received from Common

Cause; the Democratic National

Committee (‘‘DNC’’); the Democratic

Senatorial Campaign Committee

(‘‘DSCC’’) and the Democratic

Congressional Campaign Committee

(‘‘DCCC’’) (joint comment); the Internal

Revenue Service (‘‘IRS’’); the National

Republican Congressional Committee

(‘‘NRCC’’); the National Republican

Senatorial Committee (‘‘NRSC’’); the

National Right to Life Committee; the

Republican National Committee

(‘‘RNC’’); and the United States

Chamber of Commerce. On June 18,

1997, the Commission held a public

hearing on this Notice, at which

witnesses testified on behalf of Common

Cause, the DNC, the DSCC and the

DCCC, the National Right to Life

Committee, the NRSC, and the RNC.

The IRS found no conflict with the

Internal Revenue Code or that agency’s

regulations with regard to any Notice

considered in the course of this

rulemaking. All other comments

received in connection with this

rulemaking will be discussed infra.

The Commission subsequently

decided to hold the 1997 rulemaking in

abeyance until it received further

direction from the courts. The

coordinated spending limits were

invalidated on constitutional grounds

by the district court in Colorado

Republican Federal Campaign

Committee v. Federal Election

Commission, 41 F. Supp. 2d 1197 (D.

Colo. 1999) (Colorado II), on remand

from the Colorado I Supreme Court

decision. In May 2000, that decision

was affirmed by the Court of Appeals for

the Tenth Circuit. 213 F.3d 1221 (10th

Cir. 2000). The Supreme Court has now

agreed to review this decision. 2000 WL

1201886 (U.S. Oct. 10, 2000) (No. 00–

191).

On December 16, 1998, the

Commission published a new NPRM

putting forth proposed amendments to

its rules governing publicly financed

presidential primary and general

election candidates. 63 FR 69524 (Dec.

16, 1998). Issues concerning

coordination between party committees

and their presidential candidates, which

had been raised in the earlier NPRM,

were addressed in the public funding

rulemaking. For example, the 1998

NPRM put forward narrative proposals

regarding a content-based standard for

coordinated communications made to

the general public. It also sought

comment on coordination between the

national committees of political parties

and their presidential candidates with

respect to poll results, media

production, consultants, and employees

whose services are intended to benefit

the parties’ eventual presidential

nominees.

The Commission received seven

written comments on coordinated

expenditures in response to the 1998

NPRM. Commenters included the

Brennan Center for Justice at New York

University School of Law (‘‘Brennan

Center’’); Common Cause and

Democracy 21 (joint comment); the

DNC; the James Madison Center for Free

Speech; Perot ’96; the RNC; and the law

firm of Ryan, Phillips, Utrecht, &

MacKinnon, and Patricia Fiori, Esq.

(joint comment). The Commission

subsequently reopened the comment

period and held a public hearing on

March 24, 1999, at which witnesses

representing the DNC; the James

Madison Center for Free Speech; the

RNC; and Ryan, Phillips, Utrecht &

MacKinnon presented testimony on

coordination issues.

On November 3, 1999, the

Commission promulgated new

paragraph (d) of section 110.7,

addressing pre-nomination coordinated

expenditures. 64 FR 59606 (Nov. 3,

1999). The new paragraph states that

party committees may make coordinated

expenditures in connection with the

general election campaign before their

candidates have been nominated. It

further states that all pre-nomination

coordinated expenditures are subject to

the section 441a(d) coordinated

expenditure limitations, whether or not

the candidate with whom they are

coordinated receives the party’s

nomination. Please note that new

§ 110.7(d) applies to all federal

elections. For additional information,

see Explanation and Justification for

Section 110.7, Party Committee

Coordinated Expenditures and

Spending Limits (2 U.S.C. 441a(d)), 64

FR 42579, 42580–81 (Aug. 5, 1999).

The Commission published the

document that serves as the primary

basis for these final rules, a

Supplemental Notice of Proposed

Rulemaking (‘‘SNPRM’’) addressing

general public political communications

coordinated with candidates, on

December 9, 1999. 64 FR 68951 (Dec. 9,

1999). The Commission received 15

comments in response to the SNPRM,

from the Alliance for Justice; the

American Federation of Labor-Congress

of Industrial Organizations (‘‘AFLCIO’’); the Brennan Center; The

Coalition; Common Cause and

Democracy 21 (joint comment); the

DNC; the DSCC and DCCC (joint

76140 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

1On July 20, 1999, the Commission received a

Petition for Rulemaking from the James Madison

Center for Free Speech, on behalf of the Iowa Right

to Life Committee, seeking repeal of the rules at 11

CFR 114.4(c)(4) and (c)(5) to reflect the Clifton

decision. The Commission published an NOA on

this petition on Aug. 25, 1999. 64 FR 46319 (Aug.

25, 1999). Further action on that petition, which is

related to the issues addressed in this rulemaking,

will be taken by the Commission after this

rulemaking has been concluded.

comment); the First Amendment Project

of the Americans Back in Charge

Foundation; the IRS; the James Madison

Center for Free Speech; J. B. Mixon, Jr.;

the National Education Association; the

NRSC; the RNC; and United States

Senators Russell D. Feingold, John

McCain, Carl Levin and Richard J.

Durbin (joint comment). In addition, the

Commission held a public hearing on

the SNPRM on February 16, 2000, at

which nine witnesses testified on behalf

of the Alliance for Justice, the AFL-CIO,

the Americans Back in Charge

Foundation, the Brennan Center, The

Coalition, the DNC, the DSCC and

DCCC, the James Madison Center for

Free Speech, and the RNC.

B. The Christian Coalition Decision

The Christian Coalition case arose out

of an FEC enforcement action alleging

coordination between the Christian

Coalition and various federal campaigns

in connection with the 1990, 1992, and

1994 elections, resulting in

disbursements from the Coalition’s

general corporate treasury for voter

guides, ‘‘get out the vote’’ activities,

direct mailings and payments to

speakers. The Christian Coalition

characterized these activities as

independent corporate speech; while

the FEC alleged that, because of the

varying degrees of interaction between

the Christian Coalition and those

candidates and their campaigns, the

activities must be treated as in-kind

contributions that violated the Act’s

contribution limits and/or prohibitions.

In setting out a working definition of

‘‘coordination,’’ the Christian Coalition

court explained that ‘‘the standard for

coordination must be restrictive,

limiting the universe of cases triggering

potential enforcement actions to those

situations in which the coordination is

extensive enough to make the potential

for corruption through legislative quid

pro quo palpable without chilling

protected contact between candidates

and corporations and unions.’’ 52

F.Supp.2d at 88–89. The court

continued, ‘‘First Amendment clarity

demands a definition of ‘‘coordination’’

that provides the clearest possible

guidance to candidates and

constituents, while balancing the

Government’s compelling interest in

preventing corruption of the electoral

process with fundamental First

Amendment rights to engage in political

speech and political association.’’ Id. at

91. In its opinion the district court

referred to ‘‘expressive expenditures,’’

as opposed to expenditures for other

types of campaign support, and defined

a ‘‘coordinated expressive expenditure’’

as ‘‘one for a communication made for

the purpose of influencing a federal

election in which the spender is

responsible for a substantial portion of

the speech and for which the spender’s

choice of speech has been arrived at

after coordination with the campaign.’’

Id. at 85, n. 45.

The court went on to explain that ‘‘an

expressive expenditure becomes

‘coordinated,’ where the candidate or

her agents can exercise control over, or

where there has been substantial

discussion or negotiation between the

campaign and the spender over a

communication’s: (1) Contents; (2)

timing; (3) location, mode, or intended

audience (e.g., choice between

newspaper or radio advertisement); or

(4) ‘volume’ (e.g., number of copies of

printed materials or frequency of media

spots). ‘Substantial discussion or

negotiation’ is such that the candidate

and spender emerge as partners or joint

venturers in the expressive expenditure,

but the candidate and spender need not

be equal partners.’’ Id. at 92. The court

acknowledged that ‘‘a standard that

requires ’substantial’ anything leaves

room for factual dispute,’’ but reasoned

that the standard reflects a reasonable

balance between possibly chilling some

protected speech and the need to protect

against the ‘‘real dangers to the integrity

of the electoral process’’ expressive

expenditures may present. Id.

The district court then applied this

standard to the challenged campaign

activities. In most instances the court

did not find coordination. For example,

the court found no coordination

between the Christian Coalition and the

Bush-Quayle campaign in the

preparation of voter guides in

connection with the 1992 presidential

campaign, explaining that, while the

campaign was generally aware President

Bush would compare favorably in the

eyes of the target audience with the

other candidates profiled in the guides,

the campaign staff did not seek to

discuss the issues that would be

profiled or how they would be worded.

Nor did they seek to influence the

Coalition’s decisions as to how many

guides would be produced, and when

and where they would be distributed.

Id. at 93–95. Similarly, the fact that a

Coalition official served as a volunteer

in a 1994 House campaign and also

made decisions as to where the

Coalition’s voter guides would be

distributed in connection with that

campaign did not amount to

coordination where the official did not

make his decisions based on any

discussions or negotiations with the

campaign for which he volunteered. Id.

at 95–96. In contrast, the court found

coordination where the Coalition

provided a Senate campaign consultant

with a commercially valuable mailing

list. Id. at 96. The Commission

subsequently decided not to appeal the

district court’s decision.

C. Other Court Decisions

In Clifton v. Federal Election

Commission, 114 F.3d 1309 (1st Cir.

1997), cert. denied, 118 S.Ct. 1036

(1998) (‘‘Clifton’’), the United States

Court of Appeals for the First Circuit

ruled that coordination in the context of

voter guides ‘‘implie(s) some measure of

collaboration beyond a mere inquiry as

to the position taken by a candidate on

an issue.’’ 114 F.3d at 1311, citing

Buckley, 424 U.S. at 46–47 and n. 53

(1976). The court invalidated those

portions of the Commission’s voter

guide regulations at 11 CFR

114.4(c)(5)(i) and (ii)(C) that limit any

contact with candidates to written

inquiries and replies, and generally

require all candidates for the same office

to receive equal space and prominence

in the guide. Id. at 1317. The court also

invalidated the Commission’s voting

record rules at 11 CFR 114.4(c)(4) to the

extent they could be read to prohibit

mere inquiries to candidates. Id 1 In

Federal Election Commission v. Public

Citizen, Inc., 64 F.Supp.2d 1327 (N.D.

Ga. 1999), a federal district court

followed the Clifton ‘‘collaboration’’

language in holding that contacts

between a public interest group and a

candidate made in connection with an

advertising campaign to defeat a

candidate for the House of

Representatives were not coordinated

for FECA purposes. The Commission

did not appeal that portion of the Public

Citizen decision that addresses the

coordination standard.

D. General Concerns Raised by

Commenters

The commenters and witnesses raised

several general points in connection

with the SNPRM. Several noted that the

FECA does not use the terms

‘‘coordinated’’ or ‘‘coordination’’ in

discussing campaign contributions and

expenditures. This regulation uses the

single term ‘‘coordination’’ to

encompass those expenditures

described in 2 U.S.C. 441a(a)(7)(B)(i) as

made ‘‘in cooperation, consultation, or

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76141

concert with, or at the request or

suggestion of, a candidate.’’ The

statutory terms are not inherently clear,

nor does the Act’s legislative history

provide much guidance. Thus, these

rules will fill what is largely a vacuum

in this area. All of the commenters,

regardless of the positions they

espoused, asked the Commission to

issue clear rules that provide the

regulated community with sufficient

guidance to easily understand which

communications come within the

definition.

One commenter, citing Buckley, 424

U.S. at 48 (1976), argued that the

Commission was powerless to act in this

area, because it had not shown that

covered communications involved

actual corruption between those making

the communications in question and the

recipient candidates. However, after the

SNPRM was published, the Supreme

Court’s decision in Nixon v. Shrink

Missouri Government PAC, 120 S.Ct.

897 (2000) (Shrink Missouri) upheld the

constitutionality of State contribution

limits, which the Court said could be

based, inter alia, on newspaper accounts

that inferred the impropriety of large

contributions. Id. at 907. While some

commenters argued that the holding in

Shrink Missouri is limited to nonfederal contributions, others stated that,

in their view, this decision vitiates the

need for the Commission to find quid

pro quo corruption in a particular case

before taking action in this area. The

Commission agrees with this latter view,

that the holding in Shrink Missouri is

applicable to federal contribution limits.

E. Content of Covered Communications

Several commenters urged the

Commission to limit the definition of

general public political communications

to communications that contain

‘‘express advocacy’’ of the election or

defeat of a clearly identified candidate,

i.e., those covered by the Commission’s

definition of ‘‘express advocacy’’ as

defined at 11 CFR 100.22(a). That

paragraph requires the use of individual

words or phrases that, in context, can

have no other reasonable meaning than

to urge the election or defeat of one or

more clearly identified candidate(s).

They argued that express advocacy is

constitutionally required even for

communications specifically requested

by a candidate to benefit the candidate’s

campaign. Other commenters, citing the

definition of ‘‘independent

expenditure’’ at 2 U.S.C. 431(17), supra,

argued that any contact with a candidate

or campaign should result in

coordination.

Several commenters urged the

Commission to limit the definition of

general public political communications

to communications that refer to clearly

identified candidates in their status as

candidates, or otherwise refer to an

election. They noted, for example, that

Members of Congress run for office

virtually full-time, and argued that

communications that referred to them in

passing should not be subject to this

standard.

The Buckley Court emphasized the

necessity of avoiding vague or

overbroad regulation of political speech.

424 U.S. at 42–44, 77–80. In light of

these constitutional concerns, the

Commission’s goal in adopting § 100.23

is to establish a test that (1) provides

reasonable certainty as to which

communications between a person and

a candidate or a party committee rise to

the level of coordination; and (2)

properly balances the Commission’s

‘‘interest in unearthing disguised

contributions,’’ Clifton, 114 F.3d at

1315, with the right of the citizenry to

engage in discussions about public

issues with candidates. Buckley, 424

U.S. at 14.

The Commission is addressing the

constitutional concerns raised in

Buckley by creating a safe harbor for

issue discussion. Section 100.23(d)

makes it clear that a candidate’s or

political party’s response to an inquiry

regarding the candidate’s or party’s

position on legislative or public policy

issues will not suffice to establish

coordination. In addition, the

Commission’s new rules establish a

‘‘buffer zone’’ for protected speech by

requiring that discussions or

negotiations regarding certain aspects of

a communication must be ‘‘substantial’’

and result in ‘‘collaboration or

agreement’’ in order to rise to the level

of coordination. See § 100.23(c)(2)(iii).

At a minimum, this new rule is more

protective of First Amendment rights

than the standard it is replacing.

The Commission is not adopting any

content standard as a part of these rules

at this time. There were significant

disagreements among commenters over

what content standard, if any, should be

adopted. There is a substantial argument

that any of the content standards

suggested could be under-inclusive in

the context of coordination. Some

advertising by campaigns, for instance,

does not include express advocacy and

does not refer specifically to candidates

as candidates or state that they are

running for election. Allowing

candidates, campaigns and political

parties to ask corporations, labor unions

or other persons to sponsor that kind of

advertising without limit or disclosure

could ‘‘give short shrift to the

government’s compelling interest in

preventing real and perceived

corruption that can flow from large

campaign contributions.’’ Christian

Coalition, 52 F.Supp.2d at 88.

The argument that a communication

must constitute express advocacy in

order to fall within the definition of

‘‘expenditure,’’ 2 U.S.C. 431(9), in all

circumstances (and thus be controlling

for purposes of defining a ‘‘coordinated

expenditure’’) is not being addressed in

this rulemaking. See Republican

National Committee v. Federal Election

Commission, 1:98CV1207 (June 25, 1998

D. D.C.) (slip op.), aff’d, No. 98–5263

(D.C. Cir. Nov. 6, 1998). The term

‘‘expenditure’’ includes any purchase,

payment, distribution, loan, advance,

deposit, or gift of money or anything of

value, made by any person for the

purpose of influencing any election for

Federal office. Exceptions to this

definition are set forth at section

431(9)(B).

A content element in the definition of

coordination may be more useful in the

context of political party

communications coordinated with

candidates, a topic which will be

addressed in a subsequent phase of this

rulemaking. In the party-candidate

context the principal question could

become how an expenditure is reported

rather than how it is financed or

whether it is reported at all. The

Commission may revisit the issue of a

content standard for all coordinated

communications when it considers

candidate-party coordination.

Section 100.16 Definition of

‘‘independent expenditure’’

The Commission is amending the

definition of independent expenditure

in this section to track more closely the

statutory definition of independent

expenditure. See 2 U.S.C. 431(17). It is

also adding a conforming amendment,

to indicate that the meaning of the

phrase ‘‘made with the cooperation of,

or in consultation with, or in concert

with, or at the request or suggestion of,

a candidate or any agent or authorized

committee of such candidate,’’ is now

governed by 11 CFR 100.23, discussed

infra, instead of former 11 CFR

109.1(b)(4), which has been repealed.

Finally, a new cross reference to 11 CFR

109.1 alerts readers to the additional

information on independent

expenditures contained in that section.

Section 100.23 Coordinated General

Public Political Communications

The Commission is adding a new

section, 11 CFR 100.23, to its rules, to

address expenditures for coordinated

communications made for the purpose

of influencing federal elections that are

76142 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

paid for by persons other than

candidates, candidates’ authorized

committees, and party committees. The

Commission believes it is appropriate to

place this language in a separate section

of the rules to properly alert the

regulated community of this standard.

New § 100.23 generally follows the

language of the Christian Coalition

decision, discussed above. The

Commission is, however, using the

phrase ‘‘expenditures for general public

political communications’’ in place of

‘‘expressive expenditure,’’ the term used

by the Christian Coalition court, because

these rules do not address the content

standard analysis in Christian Coalition,

and ‘‘expenditures for general public

political communications’’ more

precisely describes the types of

communications covered by these rules.

See discussion of § 100.23(c)(1), infra.

There was no consensus among the

comments and witnesses as to whether

the Commission should follow the

approach set forth in Christian

Coalition. Some favored this overall

approach although they urged the

Commission to limit coverage to

communications that contained express

advocacy. As explained above, the rules

do not address this further limitation.

Others opposed this approach, urging

retention of a broad definition of

coordination.

Although the final rules have been

modified somewhat from those

proposed in the SNPRM, the

Commission continues to believe that

the Christian Coalition court correctly

decided which communications are

‘‘coordinated’’ in this context. While the

court recognized that it was establishing

a difficult standard to meet, the

Commission believes the court correctly

concluded that a high standard is

required to safeguard protected core

First Amendment rights.

Section 100.23(a) Scope

Paragraph (a)(1) of this section states

that these new rules apply to

expenditures for general public political

communications paid for by separate

segregated funds, nonconnected

committees, individuals, or any other

person except candidates, authorized

committees, and party committees.

Paragraph (a)(2) notes that coordinated

party expenditures made on behalf of a

candidate pursuant to 2 U.S.C. 441a(d)

are governed by 11 CFR 110.7.

In the SNPRM, the Commission

sought comments on whether the

standard for coordination proposed in

that document should be applied to

political party expenditures for general

public political communications that

are coordinated with particular

candidates. All party committees that

commented on the SNPRM argued that

they should not be covered by these

rules. They urged the Commission to

wait until Colorado II has been decided

before acting in that area, since that

decision could have major ramifications

for any rules that might have been

adopted in the meantime.

In light of Colorado II, the

Commission is not amending the rules

in 11 CFR 110.7 governing coordinated

expenditures between party committees

and candidates at this point. The

Commission expects that additional

guidance will be forthcoming in that

decision, at which time it will reexamine this aspect of the rulemaking.

Section 100.23(b) Treatment of General

Public Political Communications as

Expenditures and Contributions

As explained above, for purposes of

the FECA, a coordinated expenditure is

considered both an expenditure by the

person making the expenditure and an

in-kind contribution to the recipient

candidate or political committee.

Consistent with such treatment,

paragraph (b) of § 100.23 states that any

expenditure covered by these rules shall

be treated as both an expenditure under

11 CFR 100.8(a) and an in-kind

contribution under 11 CFR

100.7(a)(1)(iii). As such, it is subject to

the contribution limits of 2 U.S.C. 441a

and must be reported as both a

contribution and an expenditure as

required at 2 U.S.C. 434. Please note

that the new rules apply not only to

situations in which separate segregated

funds and nonconnected committees

coordinate their expenditures with

candidates, but also where they

coordinate with party committees, thus

clarifying that party committees can

themselves receive coordinated

contributions.

Section 100.23(c) Coordination With

Candidates and Party Committees

This paragraph contains the text of

the coordination standard: it addresses

what contact between a campaign and a

person paying for a communication

made in connection with that campaign

is sufficient to bring that

communication within the purview of

these rules. Please note that the

standards set forth in paragraphs (2)(i),

(2)(ii) and (2)(iii) are alternatives.

Communications that meet the standard

established by any one of these

paragraphs are considered coordinated

general public political communications

for purposes of these rules.

The SNPRM proposed alternative

language for the introductory text of this

paragraph. Both Alternatives,

designated Alternative 1–A and

Alternative 1–B, stated that general

public political communications would

be considered coordinated if paid for by

any person other than a candidate, the

candidate’s authorized committee, or a

party committee, provided that the

requirements set forth in paragraphs

(c)(2)(i), (c)(2)(ii), or (c)(2)(iii) of this

section, infra, were met. Alternative 1–

B would have added an additional

requirement before a communication be

considered coordinated, namely that it

be distributed primarily in the

geographic area in which the candidate

was running. Alternative 1-A omitted

this geographical restriction.

The SNPRM explained that

Alternative 1–B was intended to ensure

that costs of national legislative

campaigns that refer to clearlyidentified candidates, and may be

designed or endorsed by one or more of

the named candidates, not be

considered expenditures on behalf of

those candidates’ campaigns. The

Commission noted, however, two

concerns with Alternative 1–B: (1) The

definition of ‘‘coordination’’ would

exclude media broadcasts to several

adjacent states; and (2) the definition of

‘‘coordination’’ would exclude

communications disseminated in one

state that solicit funds on behalf of a

candidate running in another state, if

contributors are asked to send their

contributions directly to the candidate

on whose behalf they are made.

One commenter pointed out that a

geographic limit has nothing to do with

the concept of coordination. No one

addressed the Commission’s concern

that Alternative 1–B would allow

persons to solicit contributions to be

sent directly to candidates in another

state, without these contributions being

considered coordinated. The

Commission is adopting Alternative 1–

A, because the geographic restriction

does not get at the question of whether

the parties coordinated a

communication.

Please note that, in the SNPRM, the

requirement at paragraph (1) of this

section that covered communications be

paid for by any person other than the

candidate, the candidate’s authorized

committee, or a party committee, was

included as part of the introductory text.

For clarity, the Commission has decided

to place this language in a separate

paragraph.

Section 100.23(c)(2)(i) The ‘‘Request or

Suggestion’’ Standard

The Commission also sought

comment on two alternatives of a

provision, to be located in paragraph

(c)(2)(i), which addressed

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76143

communications made at the request or

suggestion of the candidate or

campaign, and those authorized by a

candidate or campaign. Alternative 2–A

stated that coordination would occur

when a communication is created,

produced or distributed at the request or

suggestion of, or when authorized by, a

candidate, candidate’s authorized

committee, a party committee, or an

agent of any of the foregoing.

Alternative 2–B would have limited

such coordination to those instances

where the parties also discuss the

content, timing, location, mode,

intended audience, volume of

distribution or frequency of placement

of that communication, the result of

which is collaboration or agreement.

One commenter urged the

Commission to adopt Alternative 2–A,

because it is consistent with the

statutory language. Another found even

Alternative 2–B to be overly broad. A

party committee argued that the

definition was overly broad as applied

to party committees; however, as

discussed above, that portion of the

rulemaking has been held in abeyance

pending the Supreme Court’s decision

in Colorado II.

The Commission is adopting an

amended version of Alternative 2–A

because it is more consistent with the

FECA than Alternative 2–B. Section

441a(a)(7)(B)(i) states that ‘‘expenditures

made by any person in cooperation,

consultation, or concert, with, or at the

request or suggestion of, a candidate,

* * * shall be considered to be a

contribution to such candidate.’’ The

new rule also reflects the following

language in the Christian Coalition

decision: ‘‘The fact that the candidate

has requested or suggested that a

spender engage in certain speech

indicates that the speech is valuable to

the candidate, giving such expenditures

sufficient contribution-like qualities to

fall within the Act’s prohibition on

contributions.’’ 52 F.Supp.2d at 91. The

Commission has accordingly decided to

adopt an amended version of

Alternative 2–A, so that a

communication made at the request or

suggestion of a candidate will be

considered to be coordinated with that

candidate, regardless of whether any of

the further contacts that would have

been required by Alternative 2–B took

place. The Commission emphasizes that

this regulation encompasses only

requests or suggestions for

communications to the general public.

Thus, a general appeal for support

would clearly not fall within the scope

of this regulation.

The proposed rules indicated that

general public political communications

authorized by candidates or party

committees would be considered to be

coordinated. The final coordination

rules do not cover authorized

communications, because these

expenditures are already in-kind

contributions to the candidates or party

committees under 11 CFR

100.7(a)(1)(iii), and thus are not

mentioned in the statutory definition of

‘‘independent expenditure’’ at 2 U.S.C.

431(17). Thus, if these communications

contain express advocacy or solicit

contributions, they must state who paid

for them, and if applicable, that they are

authorized by the candidate or the

candidate’s committee. See 11 CFR

110.11(a)(1).

The SNPRM sought comments on a

hypothetical in which, shortly before an

election, a candidate complained to a

supporter that no one had publicized

various problems in the personal life of

his opponent. The supporter then ran

such advertisements. Most of those who

commented on this hypothetical

thought this hypothetical should fall

within the ‘‘request or suggestion’’

language. However, some witnesses said

that it would not be considered

coordinated under either Alternative 2–

A or 2–B, and urged the Commission to

revise the proposed regulation to ensure

that such communications would in fact

be considered coordinated. The

Commission notes that this hypothetical

turns on the precise language used,

which would be needed to determine if

in fact the candidate requested or

suggested that the supporter run the

advertisements in question. If the

candidate made no request or

suggestion, the communication would

not be coordinated for purposes of these

rules.

In determining whether a particular

statement by a candidate or committee

constitutes an appeal for an in-kind

contribution in the form of a general

public political communication, the

Commission will consider both whether

the requested action appears to be for

the purpose of influencing a Federal

election and the specificity of the

request or suggestion. Such

determinations would turn on the same

factors addressed specifically in the

‘‘substantial discussion’’ standard, infra,

with the principal difference being that

a request or suggestion could be made

by a candidate, authorized committee or

party committee without any

negotiation or immediate response from

an outside group. If such a request or

suggestion indicated that a

communication with specified content

would be valuable or important to a

candidate or committee, then payments

for the communication would constitute

in-kind contributions.

One commenter proposed an

additional hypothetical, in which a

candidate’s campaign committee chose

to target only urban areas with

campaign advertisements because it

could not afford to cover the entire

State. The director of a rural Political

Action Committee (‘‘PAC’’) later met the

campaign manager and asked whether

the campaign would be running ads in

rural areas. Told that it would not be,

due to lack of money, the rural PAC

paid for and distributed the ads. The

Commission notes that this mailing

would be covered by 11 CFR

109.1(d)(1), part of the Commission’s

definition of independent expenditures,

which states that the financing or

dissemination, distribution, or

republication of any campaign materials

prepared by a candidate, campaign

committee or their authorized agent is a

contribution by the person making the

expenditure, but not an expenditure by

the candidate or committee unless

coordination is present. See also 11 CFR

100.7(a)(1)(iii).

Section 100.23(c)(2)(ii) The ‘‘Control or

Decision-Making’’ Standard

Paragraph (c)(2)(ii) states that

communications are coordinated if the

candidate or the candidate’s agent, or a

party committee or its agent, has

exercised control or decision-making

authority over the content, timing,

location, mode, intended audience,

volume of distribution, or frequency of

placement of the communication. This

standard is based on the Christian

Coalition definition, 52 F.Supp.2d at 92;

and it, too, would turn on the specific

actions involved in each case. The

commenters did not focus extensively

on this portion of the proposed

definition.

Section 100.23(c)(2)(iii) The

‘‘Substantial Discussion or Negotiation’’

Standard

Under 11 CFR 100.23, a general

public political communication is

considered coordinated if it is made

after substantial discussion or

negotiation between the creator,

producer or distributor of the

communication, or person paying for

the communication, and a candidate,

candidate’s authorized committee or a

party committee, regarding the content,

timing, location, mode, intended

audience, volume of distribution or

frequency of placement of that

communication, the result of which is

collaboration or agreement. The

paragraph further provides that

substantial discussion or negotiation

76144 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

can be evidenced by one or more

meetings, conversations or conferences

regarding the value or importance of

that communication for a particular

election.

Some commenters expressed

uncertainty about the scope of

‘‘substantial,’’ which admittedly ‘‘leaves

room for factual dispute.’’ Christian

Coalition, 52 F.Supp.2d at 92. By

including the word ‘‘substantial,’’ the

Commission intends to make clear that

whether or not ‘‘discussions or

negotiations’’ satisfy the requirements of

§ 100.23(c)(2)(iii) will depend not on

their frequency but on their substance.

The ‘‘substance’’ must go beyond

protected issue discussion to specific

information about how to communicate

an issue in a way that is valuable or

important for the campaign. The

Commission has concluded that when

the topic of discussion turns from the

candidate’s views on a political issue to

the candidate’s views on how to

communicate that issue, there is far

greater likelihood of collaboration.

Thus, numerous discussions with a

campaign about a complex or

controversial public issue would not be

considered ‘‘substantial’’ for the

purposes of paragraph (c)(2)(iii), but a

brief discussion as to how to phrase an

issue, or as to which issues to

emphasize, could be considered

‘‘substantial.’’

The word ‘‘substantial’’ applies not

only to discussions about the content of

a communication, but also to

discussions about the timing, location,

mode, intended audience, volume of

distribution or frequency of placement

of a communication. In those

circumstances, ‘‘substantial’’ is meant to

exclude discussions that do not include

enough specific information for

collaboration or agreement to occur. For

example, if a person states that he is

planning to pay for a communication

‘‘soon,’’ or to run the ad ‘‘on TV,’’

without further probing from the

campaign, this would not be considered

‘‘substantial.’’

The Commission recognizes, as did

the Christian Coalition court, that use of

the term ‘‘substantial’’ means that

determinations involving this standard

will likely be fact-specific. 52 F.Supp.2d

at 92. Those seeking additional

guidance as to the application of this

standard to specific facts and

circumstances are encouraged to make

use of the Commission’s advisory

opinion process. See 2 U.S.C. 437f and

11 CFR Part 112.

Section 100.23(d) Exception

Consistent with Buckley, Christian

Coalition, and Clifton, paragraph (d) of

new section 100.23 provides that a

candidate’s or political party’s response

to an inquiry regarding the candidate’s

or the party’s position on legislative or

public policy issues does not alone

make the communication coordinated.

Several commenters urged the

Commission to broaden this exception

to include, for example, public policy

announcements or communications

disseminated as part of a public policy

debate; and legislative lobbying

campaigns, including grass roots

lobbying. While the Commission is

generally sympathetic to these concerns,

it can be difficult to distinguish between

lobbying activities and electoral

campaigning. As the Buckley Court

explained, ‘‘(T)he distinction between

discussion of issues and candidates and

advocacy of election or defeat of

candidates may often dissolve in

practical application.’’ 424 U.S. at 42.

Further, some of these communications

may have components that could trigger

application of these rules. Thus the

Commission is not enacting the blanket

exception recommended by these

commenters. However, the Commission

stresses that such contacts, while not

receiving a blanket exception, do not

necessarily result in coordination. The

test of 11 CFR 100.23 (c) must still be

met.

Section 100.23(e) Definitions

This paragraph defines the terms

‘‘general public political

communications,’’ ‘‘clearly identified,’’

and ‘‘agent’’ for purposes of these rules.

The term ‘‘general public political

communications’’ includes those made

through a broadcasting station,

including a cable television operator;

newspaper; magazine; outdoor

advertising facility; mailing or any

electronic medium, including over the

Internet or on a web site. Including

cable television broadcasts is consistent

with the Commission’s candidate debate

regulations at 11 CFR 110.13(a)(2),

while including communications made

over the Internet reflects the expanding

role of that medium in federal

campaigns.

The definition is limited to those

communications having an intended

audience of over one hundred people.

The exclusion of communications with

an intended audience of one hundred

people or fewer mirrors the

Commission’s disclaimer rules at 11

CFR 110.11(a)(3), which exempt from

the disclaimer requirements direct

mailings of one hundred pieces or less.

The term ‘‘general public political

communication’’ is similar to the term

‘‘general public political advertising,’’

which appears in three places in the Act

and in several sections of the

regulations. The latter term has similar

and generally consistent meanings in

the Act and the Commission’s rules. For

example, the definitions of

‘‘contribution’’ and ‘‘expenditure’’ at 2

U.S.C. 431(8)(B)(v) and 431(9)(B)(iv)

respectively refer to ‘‘broadcasting

stations, newspapers, magazines, or

similar types of general public political

advertising.’’ Section 441d(a) of the Act,

which addresses communications that

require a disclaimer, includes the same

list and adds outdoor advertising

facilities and direct mailings. The

corresponding rules are found at 11 CFR

100.7(b)(9) (definition of

‘‘contribution’’), 100.8(b)(10) (definition

of ‘‘expenditure’’), and 110.11(a)(1)

(communications requiring disclaimers).

The Commission therefore believes this

term is preferable to ‘‘expressive

communications,’’ the term used in the

Christian Coalition decision.

The Commission sought comments on

a hypothetical in which a Savings and

Loan League runs public service

announcements intended to reinforce

the public’s confidence in the safety of

deposits in savings and loan

institutions. The announcements, which

are run in January of an election year,

feature a U.S. Senator who is a

candidate for reelection. The

commenters who discussed this

hypothetical argued that the

announcements should not be

considered coordinated general public

political communications, both because

of the timing of the announcements,

early in an election year, and because

they had no electoral content. Although

the Commission is not including a

specific time period prior to an election

in the text of the new rules, timing is an

element of coordination in 11 CFR

100.23(c)(2)(ii) and (iii). The Christian

Coalition decision supports the idea that

the timing of a communication is one

aspect of whether it is coordinated with

a campaign. Christian Coalition, 52

F.Supp. 3d at 92. However, as discussed

above, the Commission does not believe

that the lack of electoral content is

controlling.

This is another situation that would

turn on the specific facts. See discussion

of the first hypothetical discussed in

connection with paragraph (c)(2)(i),

supra.

Section 100.23(e)(2) Definition of

‘‘Clearly Identified’’

The new rules at 11 CFR 100.23(b)

limit their coverage to communications

that include a ‘‘clearly identified

candidate.’’ Paragraph (e)(2) of § 100.23

explains that the term ‘‘clearly

identified candidate’’ has the same

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76145

meaning as that in 11 CFR 100.17,

which is based on 2 U.S.C. 431(18).

Thus, it includes communications

where the candidate’s name, nickname,

photograph, or drawing appears, or the

identity of the candidate is otherwise

apparent through an unambiguous

reference such as ‘‘the President,’’ ‘‘your

Congressman,’’ or ‘‘the incumbent,’’ or

through an unambiguous reference to

his or her status as a candidate such as

‘‘the Democratic Presidential nominee’’

or ‘‘the Republican candidate for Senate

in the State of Georgia.’’

Section 100.23(e)(3) Definition of

‘‘Agent’’

This paragraph notes that the

definition of ‘‘agent’’ for purposes of

these new rules is identical to that

found at 11 CFR 109.1(b)(5), part of the

rules defining independent

expenditures. The term ‘‘agent’’ in this

context means any person who has

actual oral or written authority, either

express or implied, to make or to

authorize the making of expenditures on

behalf of a candidate; or any person who

has been placed in a position within the

campaign organization where it would

reasonably appear that in the ordinary

course of campaign-related activities he

or she may authorize expenditures. The

Commission is including this cross

reference in 11 CFR 100.23 to clarify

that the term has the same meaning in

the context of coordinated general

public political communications.

Section 109.1 Independent Expenditures

In its 1997 NPRM, the Commission

sought comment on several proposed

revisions to this section, which defines

the term ‘‘independent expenditure.’’

The commenters and witnesses who

addressed this issue at the

Commission’s 1997 public hearing had

equally wide-ranging views this issue.

However, those events took place prior

to the Christian Coalition decision,

which the Commission has determined

should serve as the basis for this

definition.

The Commission is amending the

definition of ‘‘independent

expenditure’’ in paragraph (a) to track

more closely the statutory definition of

independent expenditure. See 2 U.S.C.

431(17). In addition, the § 109.1(a)

Commission has included a crossreference 11 CFR 100.23, to indicate that

the meaning of the phrase ‘‘made with

the cooperation of, or in consultation

with, or in concert with, or at the

request or suggestion of, a candidate or

any agent of authorized committee of

such candidate,’’ is now clarified by

§ 100.23, instead of by former paragraph

(b)(4) of § 109.1. The Commission is

deleting paragraph (b)(4) because the

standards for coordination set forth in

that section were overbroad. See

Christian Coalition, 52 F.Supp. at 90.

Former § 109.1(b)(4) explained what

was meant by the phrase, ‘‘made with

the cooperation or with the prior

consent of, or in consultation with, or at

the request or suggestion of, a candidate,

or any agent, or authorized committee of

the candidate.’’ It indicated that this

covered ‘‘any arrangement,

coordination, or direction by the

candidate or his or her agent prior to the

publication, distribution, display, or

broadcast of the communication.’’ This

phrase has been clarified, consistent

with the Christian Coalition decision,

and moved to new 11 CFR 100.23(c)(2).

Former paragraph (b)(4) also

addressed contacts between the

campaign and the person making the

expenditure. For example, it included,

at former paragraph (b)(4)(i)(A), a

presumption that coordination applied

to expenditures ‘‘based on information

about the candidate’s plans, projects, or

needs provided to the expending person

by the candidate, or by the candidate’s

agents, with a view toward having an

expenditure made.’’ The Christian

Coalition court, likening this regulation

to an ‘‘insider trading’’ standard, held it

to be overbroad. 52 F.Supp. 2d at 89–

91. The Commission is accordingly

revising this paragraph to explain that a

communication is ‘‘made with the

cooperation of, or in consultation with,

or at the request or suggestion of, a

candidate or any agent or authorized

committee of such candidate’’ if it is a

coordinated general public political

communication under 11 CFR 100.23.

Section 110.14 Contributions To and

Expenditures By Delegates and Delegate

Committees

This section of the Commission’s

rules sets forth the prohibitions,

limitations and reporting requirements

under the Act applicable to all levels of

a delegate selection process. Paragraphs

(f)(2)(i), (f)(2)(ii), (f)(3)(iii), (i)(2)(i),

(i)(2)(ii), and (i)(3)(iii) address

independent expenditures and in-kind

contributions. The Commission is

making conforming amendments to

these paragraphs to reflect new 11 CFR

100.23 and revised 11 CFR 109.1.

Advisory Opinions Superseded

The Commission has in the past

issued Advisory Opinions (‘‘AO’’) that

employed a broader definition of

‘‘coordination’’ than is contained in

these new rules. Many of these AOs

addressed the ‘‘insider trading’’

situation in which a campaign employee

later became involved, or sought to

become involved, with an entity that

wished to make independent

expenditures. This prohibition was

found to be overly broad by the

Christian Coalition court. See

discussion of revised 11 CFR

109.1(b)(4), supra, which has been

rewritten to reflect that aspect of the

decision. The following AOs are

superseded, to the extent they conflict

with these new rules: AOs 1999–17,

1998–22, 1996–1, 1993–18, 1982–20,

1980–116, 1979–80.

Certification of No Effect Pursuant to 5

U.S.C. 605(b) [Regulatory Flexibility

Act]

The Commission certifies that these

rules will not have a significant

economic impact on a substantial

number of small entities. The basis for

this certification is that the rules follow

court decisions that expand the

definition of certain coordinated

communications made in support of or

in opposition to clearly identified

federal candidates. The rules also

permit, but do not require, small entities

to make independent expenditures.

Therefore, there will be no significant

economic impact on a substantial

number of small entities.

List of Subjects

11 CFR Part 100

Elections.

11 CFR Part 109

Elections, Reporting and

recordkeeping requirements.

11 CFR Part 110

Campaign funds, Political committees

and parties.

For the reasons set out in the

preamble, Subchapter A, Chapter I of

title 11 of the Code of Federal

Regulations is amended to read as

follows:

PART 100—SCOPE AND DEFINITIONS

(2 U.S.C. 431)

1. The authority citation for Part 100

continues to read as follows:

Authority: 2 U.S.C. 431, 434(a)(11), and

438(a)(8).

2. Section 100.16 is revised to read as

follows:

§ 100.16 Independent expenditure (2

U.S.C. 431(17)).

The term independent expenditure

means an expenditure by a person for a

communication expressly advocating

the election or defeat of a clearly

identified candidate that is not made

with the cooperation of or in

consultation with, or in concert with, or

76146 Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations

at the request or suggestion of, a

candidate or any agent or authorized

committee of such candidate. A

communication is ‘‘made with the

cooperation of, or in consultation with,

or in concert with, or at the request or

suggestion of, a candidate or any agent

or authorized committee of such

candidate’’ if it is a coordinated general

public political communication under

11 CFR 100.23. See 11 CFR 109.1.

3. Section 100.23 is added to read as

follows:

§ 100.23 Coordinated General Public

Political Communications.

(a) Scope.

(1) This section applies to

expenditures for general public political

communications paid for by persons

other than candidates, authorized

committees, and party committees.

(2) Coordinated party expenditures

made on behalf of a candidate pursuant

to 2 U.S.C. 441a(d) are governed by 11

CFR 110.7.

(b) Treatment of expenditures for

general public political communications

as expenditures and contributions. Any

expenditure for general public political

communication that includes a clearly

identified candidate and is coordinated

with that candidate, an opposing

candidate or a party committee

supporting or opposing that candidate is

both an expenditure under 11 CFR

100.8(a) and an in-kind contribution

under 11 CFR 100.7(a)(1)(iii).

(c) Coordination with candidates and

party committees. An expenditure for a

general public political communication

is considered to be coordinated with a

candidate or party committee if the

communication—

(1) Is paid for by any person other

than the candidate, the candidate’s

authorized committee, or a party

committee, and

(2) Is created, produced or

distributed—

(i) At the request or suggestion of the

candidate, the candidate’s authorized

committee, a party committee, or the

agent of any of the foregoing;

(ii) After the candidate or the

candidate’s agent, or a party committee

or its agent, has exercised control or

decision-making authority over the

content, timing, location, mode,

intended audience, volume of

distribution, or frequency of placement

of that communication; or

(iii) After substantial discussion or

negotiation between the creator,

producer or distributor of the

communication, or the person paying

for the communication, and the

candidate, the candidate’s authorized

committee, a party committee, or the

agent of such candidate or committee,

regarding the content, timing, location,

mode, intended audience, volume of

distribution or frequency of placement

of that communication, the result of

which is collaboration or agreement.

Substantial discussion or negotiation

may be evidenced by one or more

meetings, conversations or conferences

regarding the value or importance of the

communication for a particular election.

(d) Exception. A candidate’s or

political party’s response to an inquiry

regarding the candidate’s or party’s

position on legislative or public policy

issues does not alone make the

communication coordinated.

(e) Definitions. For purposes of this

section:

(1) General public political

communications include those made

through a broadcasting station

(including a cable television operator),

newspaper, magazine, outdoor

advertising facility, mailing or any

electronic medium, including the

Internet or on a web site, with an

intended audience of over one hundred

people.

(2) Clearly identified has the same

meaning as set forth in 11 CFR 100.17.

(3) Agent has the same meaning as set

forth in 11 CFR 109.1(b)(5).

PART 109—INDEPENDENT

EXPENDITURES (2 U.S.C. 431(17),

434(c))

4. The authority citation for part 109

continues to read as follows:

Authority: 2 U.S.C. 431(17), 434(c),

438(a)(8), 441d.

5. Section 109.1 is amended by

revising paragraphs (a), (b)(4) and (d)(1)

to read as follows:

§ 109.1 Definitions (2 U.S.C. 431(17)).

(a) Independent expenditure means

an expenditure by a person for a

communication expressly advocating

the election or defeat of a clearly

identified candidate that is not made

with the cooperation of, or in

consultation with, or in concert with, or

at the request or suggestion of, a

candidate or any agent or authorized

committee of such candidate.

(b) * * *

(4) A communication is ‘‘made with

the cooperation of, or in consultation

with, or in concert with, or at the

request or suggestion of, a candidate or

any agent or authorized committee of

such candidate’’ if it is a coordinated

general public political communication

under 11 CFR 100.23.

* * * * *

(d)(1) The financing of the

dissemination, distribution, or

republication, in whole or in part, of

any broadcast or any written, graphic, or

other form of campaign materials

prepared by the candidate, his campaign

committees, or their authorized agents

shall be considered a contribution for

the purposes of contribution limitations

and reporting responsibilities by the

person making the expenditure but shall

not be considered an expenditure by the

candidate or his authorized committees

unless the dissemination, distribution,

or republication of campaign materials

is a coordinated general public political

communication under 11 CFR 100.23

* * * * *

PART 110—CONTRIBUTION AND

EXPENDITURE LIMITATIONS AND

PROHIBITIONS

6. The authority citation for part 110

continues to read as follows:

Authority: 2 U.S.C. 431(8), 431(9),

432(c)(2), 437d(a)(8), 438(a)(8), 441a, 441b,

441d, 441e, 441f, 441g and 441h.

7. Section 110.14 is amended by

revising the introductory text to

paragraphs (f)(2)(i) and (f)(2)(ii);

paragraph (f)(3)(iii); the introductory

text to paragraphs (i)(2)(i) and (i)(2)(ii);

and paragraph (i)(3)(iii) to read as

follows:

§ 110.14 Contributions to and

expenditures by delegates and delegate

committees.

* * * * *

(f) * * *

(2) * * *

(i) Such expenditures are independent

expenditures under 11 CFR part 109 if

they are made for a communication

expressly advocating the election or

defeat of a clearly identified Federal

candidate that is not a coordinated

general public political communication

under 11 CFR 100.23.

* * * * *

(ii) Such expenditures are

independent expenditures under 11

CFR part 109 if they are made for a

communication expressly advocating

the election or defeat of a clearly

identified Federal candidate that is not

a coordinated general public political

communication under 11 CFR 100.23.

* * * * *

(3) * * *

(iii) Such expenditures are not

chargeable to the presidential

candidate’s expenditure limitation

under 11 CFR 110.8 unless they were

coordinated general public political

communications under 11 CFR 100.23.

* * * * *

(i) * * *

***

Federal Register / Vol. 65, No. 235 / Wednesday, December 6, 2000 / Rules and Regulations 76147

(2) * * *

(i) Such expenditures are in-kind

contributions to a Federal candidate if

they are coordinated general public

political communications under 11 CFR

100.23.

* * * * *

(ii) Such expenditures are

independent expenditures under 11

CFR part 109 if they are made for a

communication expressly advocating

the election or defeat of a clearly

identified Federal candidate that is not

a coordinated general public political

communication under 11 CFR 100.23.

* * * * *

(3) * * *

(iii) Such expenditures are not

chargeable to the presidential

candidate’s expenditure limitation

under 11 CFR 110.8 unless they were

coordinated general public political

communications under 11 CFR 100.23.

* * * * *

Dated: November 30, 2000.

Darryl R. Wold,

Chairman, Federal Election Commission.

[FR Doc. 00–31013 Filed 12–5–00; 8:45 am]

BILLING CODE 6715–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. NM179; Special Conditions No.

25–168–SC]

Special Conditions: Gulfstream

Aerospace Corporation Model G–1159,

G–1159A, and G–1159B Series

Airplanes as Modified by Duncan

Aviation; High Intensity Radiated

Fields (HIRF)

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final special conditions; request

for comments.

SUMMARY: These special conditions are

issued for the Gulfstream Model G–

1159, G–1159A, and G–1159B series

airplanes modified by Duncan Aviation.

These modified airplanes will have a

novel or unusual design feature(s)

associated with new avionics/

electronics and electrical systems that

will perform critical functions. The

applicable airworthiness regulations do

not contain adequate or appropriate

safety standards for the protection of

these systems from the effects of highintensity radiated fields (HIRF). These

special conditions contain the

additional safety standards the

Administrator considers necessary to

establish a level of safety equivalent to

that established by the existing

airworthiness standards.

DATES: The effective date of these

special conditions is November 29,

2000. Comments must be received on or

before January 22, 2001.

ADDRESSES: Comments on these special

conditions may be mailed in duplicate

to: Federal Aviation Administration,

Transport Airplane Directorate,

Attention: Rules Docket (ANM–114),

Docket No. NM179, 1601 Lind Avenue

SW., Renton, Washington 98055–4056;

or delivered in duplicate to the

Transport Airplane Directorate at that

address. All comments must be marked:

Docket No. NM179. Comments may be

inspected in the Rules Docket

weekdays, except Federal holidays,

between 7:30 a.m. and 4:00 p.m.

FOR FURTHER INFORMATION CONTACT: For

information concerning the certification

program for Gulfstream Model G–1159,

G–1159A, and G–1159B series airplanes,

contact: Meghan Gordon, Federal

Aviation Administration, Transport

Airplane Directorate, Standardization

Branch, ANM–113, 1601 Lind Avenue

SW., Renton, Washington 98055–4056;

telephone (425) 227–2138; fax (425)

227–1149.

For information on the general subject

of HIRF, contact: Massoud Sadeghi,

Federal Aviation Administration,

Transport airplane Directorate, Airplane

and Flight Crew Interface Branch,

ANM–111, 1601 Lind Avenue SW.,

Renton, Washington 98055–4056;

telephone (425) 227–2117; fax (425)

227–1320.

SUPPLEMENTARY INFORMATION: The FAA

has determined that notice and

opportunity for prior public comment

hereon are impracticable because these

procedures would significantly delay

issuance of the approval design and

thus delivery of the affected aircraft. In

addition, the substance of these special

conditions has been subject to the

public comment process in several prior

instances with no substantive comments

received. The FAA therefore finds that

good cause exists for making these

special conditions effective upon

issuance.

Comments Invited

Although these special conditions are

being issued as final special conditions

without prior public notice, interested

persons are invited to submit such

written data, views, or arguments as

they may desire. Communications

should identify the regulatory docket

number and be submitted in duplicate

to the address specified above. All

communications received on or before

the closing date for comments will be

considered by the Administrator. The

special conditions may be changed in

light of the comments received. All

comments received will be available in

the Rules Docket for examination by

interested persons, both before and after

the closing date for comments. A report

summarizing each substantive public

contact with FAA personnel concerning

this rulemaking will be filed in the

docket. Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to these special

conditions must include a selfaddressed, stamped postcard on which

the following statement is made:

‘‘Comments to NM179.’’ The postcard

will be date stamped and returned to the

commenter.

Background

On September 13, 2000, and on

September 20, 2000, Duncan Aviation,

15745 South Airport Road, Battle Creek,

Michigan 49015, submitted applications

to the FAA for two Supplemental Type

Certificates (STC). These STC’s are for

modifying Gulfstream Aerospace Model

G–1159, G–1159A, and G–1159B series

airplanes to include:

• The Collins FDS–2000 Flight

Display System; and

• Dual Collins AHS–3000A Altitude

Heading Reference Systems.

The FDS–2000 system is a

replacement of the existing electromechanical Attitude Directional

Indicator (ADI) and Horizontal

Situational Indicator (HSI) flight

instruments. It also provides additional

functional capability and redundancy in

the system.

The AHS–3000A system is a

replacement for the existing electromechanical vertical and directional

gyros. It also provides additional

functional capability and redundancy in

the system.

The avionics/electronics and

electrical systems installed in the

Gulfstream Model G–1159, G–1159A,

and G–1159B airplanes have the

potential to be vulnerable to highintensity radiated fields (HIRF) external

to the airplane.

The subject Gulfstream airplanes are

T-tail, low swept-wing small transport

category airplanes. The Model G–1159

airplane is powered by two Rolls Royce

SPEY RB (163) 511–8 series engines

mounted on pylons extending from the

aft fuselage, and it has a maximum

takeoff weight of 64,800 pounds. The

Models G–1159A and G–1159B are

slightly larger than the Model G–1159.

These models are powered by two Rolls

Royce SPEY RB (163–25) 511–8 series

engines, and have a maximum takeoff