[Federal Register Volume 87, Number 63 (Friday, April 1, 2022)]
[Proposed Rules]
[Pages 19024-19026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06895]


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FEDERAL ELECTION COMMISSION

11 CFR Parts 104, 109, 110, and 114

[NOTICE 2022-08]


Independent Spending by Corporations, Labor Organizations, 
Foreign Nationals, and Certain Political Committees (Citizens United)

AGENCY: Federal Election Commission.

ACTION: Notice of disposition of petitions for rulemaking.

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SUMMARY: The Commission announces its disposition of two Petitions for 
Rulemaking filed on June 19 and June 22, 2015. The Petitions asked the 
Commission to revise existing regulations and issue new regulations 
concerning: Disclosure of certain financing information regarding 
independent expenditures and electioneering communications, election-
related spending by foreign nationals; solicitations of corporate and 
labor organization employees and members; and the independence of 
expenditures made by independent-expenditure-only political committees 
and accounts. Because there were not four affirmative votes in support 
of the Petitions, the Commission is not initiating a rulemaking.

DATES: April 1, 2022.

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General 
Counsel, or Ms. Heather Filemyr, Attorney, 1050 First Street NE, 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On June 19, 2015, the Federal Election 
Commission received a Petition for

[[Page 19025]]

Rulemaking from Make Your Laws PAC, Inc. and Make Your Laws Advocacy, 
Inc. On June 22, 2015, the Commission received a Petition for 
Rulemaking from Craig Holman and Public Citizen. Both Petitions asked 
the Commission to revise existing regulations and issue new regulations 
in four areas in response to the Supreme Court's decision in Citizens 
United v. FEC, 558 U.S. 310 (2010), which held that the Federal 
Election Campaign Act's, 52 U.S.C. 30101-45 (the ``Act''), ban on 
corporate independent campaign-related spending was 
unconstitutional.\1\
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    \1\ As the Commission explained in its initial rulemaking 
addressing the Citizens United decision, although the Court did not 
directly address whether labor organizations, like corporations, 
also have a First Amendment right to use their general treasury 
funds for independent expenditures and electioneering 
communications, the Act and Commission regulations generally treat 
labor organizations similarly to corporations. See Final Rules on 
Independent Expenditures and Electioneering Communications by 
Corporations and Labor Organizations, 79 FR 62,797, 62,798 n.3 
(October 21, 2014) (citing 52 U.S.C. 30118; 11 CFR part 114; and 
Advisory Opinion 2010-11 (Commonsense Ten) at n.3.) The Commission 
further explained that the Court in Citizens United, when addressing 
corporations, often referred to labor organizations and provided no 
basis for treating labor organization communications differently 
than corporate communications under the First Amendment. Id. (citing 
Citizens United, 558 U.S. at 318, 343). Therefore, the Commission 
concluded that the changes to its regulations necessitated by the 
Citizens United decision should apply equally to both corporations 
and labor organizations. Id.
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    The first area of regulations the Petitions asked the Commission to 
revise are those that implement the Act's requirement that every person 
who makes an electioneering communication aggregating in excess of 
$10,000 in a calendar year and every person (other than a political 
committee) that makes independent expenditures in excess of $250 with 
respect to a given election in a calendar year report certain 
information to the Commission. 52 U.S.C. 30104(c)(1) and (2), (f); 11 
CFR 104.20(b) and (c), 109.10(b), (e). The Petitions asked the 
Commission to ``[e]nsure full public disclosure of corporate and labor 
organization independent spending'' by ``requir[ing] that outside 
spending groups disclose their donors.''
    Second, the Act and Commission regulations prohibit foreign 
nationals from ``directly or indirectly'' making contributions, 
expenditures, and electioneering communications. 52 U.S.C. 30121(a); 11 
CFR 110.20. The Petitions asked the Commission to ``[c]larify that the 
prohibition on foreign national campaign-related spending restricts 
such spending by U.S. corporations owned or controlled by a foreign 
national.''
    Third, Commission regulations prohibit corporations and labor 
organizations from ``[u]sing coercion . . . to urge any individual to 
make a contribution or engage in fundraising activities on behalf of a 
candidate or political committee,'' 11 CFR 114.2(f)(2)(iv), and 
restrict how corporations and labor organizations may solicit 
contributions to their separate segregated funds from employees and 
members. 11 CFR 114.5(a)(2)-(5); see also 52 U.S.C. 30118(b)(3). The 
Petitions asked the Commission to ``[c]larify that corporations and 
labor organizations are prohibited from coercing their employees and 
members into providing financial or other support for the corporation's 
or labor organization's independent political activities.''
    Fourth, the Petitions asked the Commission to ``[e]nsure that the 
expenditures made by'' independent-expenditure-only political 
committees and accounts, see, e.g., SpeechNow.org v. FEC, 599 F.3d. 686 
(D.C. Cir. 2010), ``are truly independent of federal candidates.''
    In response to the Petitions, the Commission published a Notice of 
Availability (``NOA'') on July 29, 2015 to ask for public comment on 
the Petitions. 80 FR 45,116 (July 29, 2015). The Commission received 
approximately 11,759 comments from 11,769 commenters on the NOA. See 
Minutes of An Open Meeting of the Federal Election Commission, December 
17, 2015 (approved February 11, 2016) at 8.\2\ Of the comments 
received, 11,414 commenters supported the Petitions. Id. Those 
commenters supporting the Petitions stated, among other reasons, that 
the new and revised regulations were necessary to provide adequate 
disclosure to the public and to clarify legal requirements applicable 
to corporations, labor organizations, and foreign nationals following 
Supreme Court's decision in Citizens United. Other commenters opposed 
the Petitions. Concerns expressed by those commenters included that 
revised regulations would be unnecessary, exceed the Commission's 
statutory authority, and impermissibly burden free speech rights under 
the First Amendment.
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    \2\ https://www.fec.gov/resources/updates/agendas/2016/mtgdoc_16-04-a.pdf.
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    After considering the comments received, the Commission voted on a 
motion to initiate a rulemaking to adopt the regulations proposed by 
the Petitioners. See Certification of Commission Vote, December 17, 
2015.\3\ Three Commissioners voted to initiate a rulemaking based on 
the Petitions, and three Commissioners voted against initiating a 
rulemaking. Id. Among other reasons for supporting a rulemaking, 
Commissioners who voted in favor of the motion stated that the 
Commission should open a rulemaking to address significant issues that 
have arisen following the Citizens United decision and that 
Commission's coordination rules, created prior to the existence of 
super PACs, are outdated. See Minutes of An Open Meeting of the Federal 
Election Commission, December 17, 2015 (approved February 11, 2016) at 
7.\4\ Commissioners who voted against the motion reasoned that Congress 
had considered but not adopted legislative changes following the 
Citizen United decision and expressed the view that the Commission 
should not act where Congress had failed to do so. Audio Recording of 
Discussion on Rulemaking Petition: Independent Spending by 
Corporations, Labor Organizations, Foreign Nationals, and Certain 
Political Committees (Citizens United) (Dec. 17, 2015).\5\ These 
Commissioners also stated that coordination by super PACs was 
adequately addressed by the Commission's existing regulations. Id.
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    \3\ https://sers.fec.gov/fosers/showpdf.htm?docid=346628.
    \4\ https://www.fec.gov/resources/updates/agendas/2016/mtgdoc_16-04-a.pdf.
    \5\ https://www.fec.gov/updates/december-17-2015-open-meeting.
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    The Act requires an affirmative vote of at least four Commissioners 
to take any action to amend a regulation. See 52 U.S.C. 30106(c) and 
30107(a)(8). Accordingly, the Commission is not initiating a rulemaking 
at this time. Id.; see also Definition of ``Express Advocacy,'' Notice 
of Disposition of Petition for Rulemaking, 64 FR 27,478 (May 20, 1999) 
(denying a petition to initiate a rulemaking because it did not garner 
the affirmative vote of four Commissioners).
    Because the motion to initiate a rulemaking to adopt the 
regulations proposed by the Petitioners did not receive the required 
affirmative vote of four or more Commissioners, the Commission is 
notifying the public that it is not initiating a new rulemaking in 
response to the Petitions.
    Copies of the comments, the NOA, and the Petitions for Rulemaking 
are available on the Commission's website, http://www.fec.gov/fosers/ 
(REG 2015-04 Independent Spending by Corporations, Labor Organizations, 
Foreign Nationals, and Certain Political Committees (Citizens United) 
(2015)).


[[Page 19026]]


    Dated: March 28, 2022.

    On behalf of the Commission.
Allen J. Dickerson,
Chairman, Federal Election Commission.
[FR Doc. 2022-06895 Filed 3-31-22; 8:45 am]
BILLING CODE 6715-01-P