60042 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 102, 104, 105, 109, 

110, and 114

[Notice 2002–16] 

Coordinated and Independent 

Expenditures

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Federal Election 

Commission seeks comments on 

proposed changes to its rules relating to 

payments for communications that are 

coordinated with a candidate, a 

candidate’s authorized committee, or a 

political party committee. The proposed 

rules would also address independent 

expenditures and expenditures by 

political party committees that are made 

either in coordination with, or 

independently from, candidates. These 

regulations would implement several 

requirements in the Bipartisan 

Campaign Reform Act of 2002 (‘‘BCRA’’) 

that significantly amend the Federal 

Election Campaign Act of 1971, as 

amended (‘‘FECA’’ or the ‘‘Act’’). 

Further information is contained in the 

Supplementary Information that 

follows. Please note that the 

Commission has not made a final 

decision on any of these proposals.

DATES: Comments must be received on 

or before October 11, 2002. The 

Commission will hold a hearing on 

these proposed rules on October 23 and 

24, 2002, at 9:30 a.m. Commenters 

wishing to testify at the hearing must 

submit written or electronic comments 

no later than October 11, 2002, and 

must so indicate in their comments.

ADDRESSES: All comments should be 

addressed to Mr. John Vergelli, Acting 

Assistant General Counsel, and must be 

submitted in either electronic or written 

form. Electronic mail comments should 

be sent to BCRAcoord@fec.gov and must 

include the full name, electronic mail 

address, and postal service address of 

the commenter. Electronic mail 

comments that do not contain the full 

name, electronic mail address, and 

postal service address of the commenter 

will not be considered. Faxed comments 

should be sent to (202) 219–3923, with 

printed copy follow-up to ensure 

legibility. Written comments and 

printed copies of faxed comments 

should be sent to the Federal Election 

Commission, 999 E Street, NW., 

Washington, DC 20463. Commenters are 

strongly encouraged to submit 

comments electronically to ensure 

timely receipt and consideration. The 

Commission will make every effort to 

post public comments on its website 

within ten (10) business days of the 

close of the comment period. The 

hearing will be held in the 

Commission’s ninth floor meeting room, 

999 E St. NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mr. 

John Vergelli, Acting Assistant General 

Counsel, or Attorneys Mark Allen 

(coordinated party expenditures), 

Richard Ewell (coordinated 

communications paid for by other 

political committees and other persons), 

Tony Buckley (electioneering 

communications), or Cheryl Fowle 

(reporting requirements), 999 E Street 

NW., Washington, DC 20463, (202) 694–

1650 or (800) 424–9530.

SUPPLEMENTARY INFORMATION: The 

Bipartisan Campaign Reform Act of 

2002 (‘‘BCRA’’), Pub. L. 107–155, 116 

Stat. 81 (March 27, 2002), contains 

extensive and detailed amendments to 

the Federal Election Campaign Act of 

1971, as amended (‘‘FECA’’ or the 

‘‘Act’’), 2 U.S.C. 431 et seq. This is one 

of a series of Notices of Proposed 

Rulemakings (‘‘NPRM’’) the 

Commission is publishing over the next 

several months in order to meet the 

rulemaking deadlines set out in BCRA. 

The deadline for the promulgation of 

these rules is 270 days after the date of 

enactment of BCRA, or December 22, 

2002. 

This NPRM primarily addresses 

communications that are made 

independently from, or in coordination 

with, a candidate, an authorized 

committee of a candidate, or a political 

party committee. The proposed 

regulations would set forth the meaning 

of ‘‘coordination.’’ They would also set 

forth statutory requirements for political 

party committees with respect to the 

permitted timing of independent and 

coordinated expenditures, and transfers 

and assignments. 

Introduction 

I. Statutory Overview 

FECA limits the amount of 

contributions to Federal candidates, 

their authorized committees, and other 

political committees. 2 U.S.C. 441a(a). 

Under FECA and the Commission’s 

regulations, these contributions may 

take the form of money or ‘‘anything of 

value’’ (the latter would be an ‘‘in-kind 

contribution’’ provided to a candidate or 

political committee. See 11 CFR 

100.52(d)(1). Candidates must disclose 

all contributions they receive. 2 U.S.C. 

434(b)(2). Since the recipient does not 

actually receive a cash payment from an 

in-kind contribution, the recipient must 

report the value of an in-kind 

contribution as both a contribution 

received and an expenditure made so 

that the receipt of the contribution will 

be reported without overstating the 

cash-on-hand in the committee’s 

treasury. See 11 CFR 104.13. 

II. Overview of BCRA Changes to FECA 

and Commission Regulations 

In BCRA, Congress revised FECA’s 

definition of ‘‘independent 

expenditure.’’ 2 U.S.C. 431(17). The 

revision added a reference to political 

party committees and their agents and 

reworked other aspects of the former 

language. Corresponding revisions 

would be made to the regulations in 11 

CFR 100.16. 

Congress repealed the Commission’s 

pre-BCRA regulations regarding 

‘‘coordinated general public political 

communications’’ (at pre-BCRA 11 CFR 

100.23) and directed the Commission to 

adopt new regulations on ‘‘coordinated 

communications’’ in their place. Pub. L. 

107–155, sec. 214(b), (c) (March 27, 

2002). The Commission proposes a new 

section 11 CFR 109.21 to implement the 

Congressional mandate. 

In addition, the proposed rules would 

implement several new restrictions 

found in BCRA on the timing of 

independent and coordinated 

expenditures made by committees of 

political parties. 2 U.S.C. 441a(d)(4). 

Those regulations would be in new 11 

CFR part 109, subpart D. Similarly, 

Congress established new restrictions on 

transfers between committees of a 

political party. 2 U.S.C. 441a(d)(4). 

Those changes, as well as amendments 

to the rules on the assignment of 

coordinated party expenditure authority 

in pre-BCRA 11 CFR 110.7, would also 

be reflected in new 11 CFR part 109, 

subpart D.

Finally, Congress established new 

reporting obligations for independent 

expenditures. 2 U.S.C. 434(a)(5) and (g). 

See proposed 11 CFR 100.19, 104.4, 

104.5, 105.2, and 109.10. 

Definition of Independent Expenditure 

The Commission proposes several 

changes to the definition of 

‘‘independent expenditure’’ in 11 CFR 

100.16 in light of several Congressional 

changes to the statutory definition of the 

same term at 2 U.S.C. 431(17). Most 

significantly, the statutory definition of 

‘‘independent expenditure’’ was 

modified to exclude coordination with a 

political party committee or its agents 

(in addition to the pre-BCRA exclusion 

of coordination with candidates). Ibid.

Proposed section 100.16 would 

contain two paragraphs. Proposed 

paragraph (a) would include the revised 

pre-BCRA section 100.16. The first 

sentence of proposed paragraph (a) 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60043

would be changed by adding a reference 

to political party committees and their 

agents, tracking BCRA’s changes in 2 

U.S.C. 431(17). 

In BCRA, Congress deleted the term 

‘‘consultation’’ from the list of activities 

that compromise the independence of 

expenditures. See 2 U.S.C. 431(17)(B). 

Proposed paragraph (a), however, would 

retain the term because it remains, postBCRA, in other related provisions of the 

Act. Expenditures that are made in 

‘‘cooperation, consultation, or concert 

with, or at the request or suggestion of’’

candidates, political committees, and 

agents thereof are contributions. See 2 

U.S.C. 441a(a)(7)(B)(i) (emphasis 

added). Most importantly, the term 

‘‘consultation’’ is used in a closely 

related provision added by BCRA itself. 

See 2 U.S.C. 441a(7)(B)(ii) as amended 

by Pub. L. 107–155, sec. 214(a) 

(expenditures made in ‘‘cooperation, 

consultation, or concert, with, or at the 

request or suggestion of, a national, 

State, or local committee of a political 

party’’). Thus, the proposed rules would 

retain the term ‘‘consultation’’ as an 

element in the regulatory definition of 

‘‘independent expenditure.’’

Similarly, the Commission notes that 

while Congress referred to expenditures 

‘‘not made in concert or cooperation 

with . . . a political party committee or 

its agents’’ in 2 U.S.C. 431(17) 

(emphasis added), it did not refer to 

agents of a party committee in 2 U.S.C. 

441a(7)(B)(ii) when describing 

coordination with a party committee. 

The Commission would include agents 

of political party committees as persons 

who might take actions that would 

cause a communication to be 

coordinated with that party committee. 

In BCRA, Congress repealed the preBCRA regulatory definition of 

‘‘coordinated general public political 

communication.’’ See 11 CFR 100.23, 

repealed by Pub. L. 107–155, section 

214(b) (March 27, 2002). Therefore, 

proposed paragraph (a) of section 100.16 

would delete the term ‘‘coordinated 

general public political 

communication,’’ and replace it with 

references to ‘‘coordinated 

communications’’ from proposed 

section 109.21 and ‘‘party coordinated 

communications’’ from proposed 

section 109.37. 

The Commission would move to 

proposed paragraph (b) of section 

100.16, without other changes, the rule 

that expenditures made by a candidate’s 

authorized committee on behalf of that 

candidate would never qualify as an 

independent expenditure. This rule, 

which is found at pre-BCRA 11 CFR 

109.1(e), clarifies the basic definition of 

‘‘independent expenditure.’’

Proposed Reorganization of 11 CFR 

Part 109 

The Commission proposes to 

reorganize 11 CFR part 109 into four 

subparts. Subpart A would explain the 

scope of part 109 and define a key term. 

Subpart B would address reporting of 

independent expenditures. Subpart C 

would address coordination between a 

candidate or a political party and a 

person making a communication. 

Subpart D would set forth provisions 

applicable only to political party 

committees, including some pertaining 

to independent expenditures and 

support of candidates through 

coordinated party expenditures. See 2 

U.S.C. 441a(d). The special authority for 

coordinated expenditures by political 

party committees, previously set forth in 

pre-BCRA 11 CFR 110.7, would be 

relocated to proposed 11 CFR 109.32 

and other sections in subpart D. 

Proposed Subpart A of Part 109: Scope 

and Definitions 

Proposed new section 109.1 would 

introduce the scope of part 109. A 

definition found in pre-BCRA section 

109.1 would be revised and moved to 

proposed section 109.3. The 

Commission would move the reporting 

requirements of pre-BCRA 11 CFR 109.2 

to proposed 11 CFR 109.10, reserving 

section 109.2 to avoid potential 

confusion regarding this move. 

Proposed 11 CFR 109.3 would define 

the term ‘‘agent’’ for use throughout part 

109. This definition of ‘‘agent’’ would be 

based on the same concept that the 

Commission used in framing the 

definition of ‘‘agent’’ in the non-Federal 

funds or ‘‘Soft Money’’ rulemaking 

completed earlier this year. Final Rules 

and Explanation and Justification, 

‘‘Prohibited and Excessive 

Contributions: Non-Federal Funds or 

Soft Money,’’ 67 FR 49081 (July 29, 

2002). The definition identifies the 

principal and enumerates particular 

activities in which the agent may engage 

on behalf of the principal. In order to 

preclude confusion with other 

regulatory definitions of ‘‘agent’’ (e.g., 

11 CFR 300.2(b)), this definition would 

be explicitly limited to 11 CFR part 109. 

The definition would differ in several 

respects from its pre-BCRA form in 11 

CFR 109.1(b)(5). The proposed 

definition would encompass political 

party committees because the Act, as 

amended by BCRA, specifically covers, 

in the context of coordination, payments 

made by a person on behalf of political 

party committees. See 2 U.S.C. 

441a(a)(7)(B)(ii). 

The proposed revised definition of 

‘‘agent’’ would focus on whether a 

purported agent has ‘‘actual authority, 

either express or implied,’’ to engage in 

one or more specified activities on 

behalf of specified principals. The 

specified activities would vary slightly 

depending on whether the agent engages 

in those activities on behalf of a 

national, State, district, or local 

committee of a party committee, or on 

behalf of a Federal candidate or 

officeholder. See proposed 11 CFR 

109.3(a) and (b), respectively. The 

activities specified in the proposed rule 

would closely parallel activities 

associated with coordinated 

communications, as described in 

proposed 11 CFR 109.21(b), and would 

include requesting or suggesting that a 

communication be created, produced, or 

distributed, making or authorizing 

certain campaign-related 

communications, and material 

involvement in decisions regarding 

specific aspects of communications. See 

proposed 11 CFR 109.3(a)(1) through (5) 

and (b)(1) through (5). Thus, a person 

would be an agent when (1) expressly 

authorized by a specific principal to 

engage in specific activities; (2) engages 

in those activities on behalf of that 

specific principal; and (3) those 

activities would result in a coordinated 

communication if done directly by the 

candidate or a political party official. 

The Commission seeks comments on 

whether the scope of the definition of 

‘‘agent’’ should explicitly state that a 

person must be ‘‘acting within the scope 

of his or her authority as an agent’’

while engaged in the action in question 

(e.g., making a request, participating in 

a substantial discussion) before he or 

she is considered an agent. Should the 

person be required to convey 

information that was only available to 

that person because of his or her role as 

an agent for the candidate or political 

party committee? Should a person be 

considered an agent if he or she bases 

his or her recommendations to a third 

party on information that was gained 

only due to that person’s role as an 

agent for the campaign? The 

Commission also seeks comments on 

whether, and if so, under what 

circumstances, a person who is 

authorized by a candidate or political 

party committee to solicit or receive 

contributions or other transfers of funds, 

and who holds a formal or honorary 

position or title with the candidate’s 

campaign or a political party committee, 

should be considered per se to be an 

agent of that candidate, an authorized 

committee of that candidate, or political 

party committee. 

The Commission’s pre-BCRA 

regulations include a special definition 

of ‘‘person’’ for part 109. 11 CFR 

60044 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

1Note that BCRA, as passed on February 14, 

2002, in the House and on March 20, 2002, in the 

Senate, would have required 24-hour reports to be 

filed rather than received within 24 hours of the 

time the independent expenditure was made. In 

technical corrections to BCRA, Congress amended 

section 212 of BCRA by reinstating the received

requirement. H. Con. Res. 361.

109.1(b)(1). The Commission has not 

included this separate definition of the 

term ‘‘person’’ in this Notice of 

Proposed Rulemaking because the term 

is already defined in pre-BCRA 11 CFR 

100.10. Furthermore, the Commission is 

concerned that a separate definition of 

‘‘person’’ in part 109 might be confusing 

or misinterpreted to permit labor 

organizations, corporations not qualified 

under 11 CFR 114.10(c), or other entities 

or individuals to pay for coordinated 

communications or to make 

independent expenditures where these 

entities and individuals are otherwise 

prohibited from making contributions or 

expenditures under the Act and 

Commission regulations. See, e.g., 11 

CFR 110.4 and 114.2. While the 

Commission would propose to 

specifically address these prohibitions 

in proposed 11 CFR 109.22, below, the 

Commission seeks comment on 

whether, and if so, how, the term 

‘‘person’’ should be defined separately 

for the purposes of part 109. 

Proposed Subpart B of Part 109: 

Independent Expenditures; Other 

Reporting Rules; Disclaimers 

Under the Act, independent 

expenditures must be reported as 

follows: Political committees must 

report all independent expenditures on 

their regularly scheduled reports. In 

contrast, persons other than political 

committees must report independent 

expenditures that aggregate in excess of 

$250 in a calendar year. 2 U.S.C. 

434(b)(4)(H)(iii), (c), (d), and (g). 

Political committees and other persons 

must file additional reports of 

independent expenditures (‘‘24-hour 

reports’’) when independent 

expenditures totaling $1,000 or more are 

made less than 20 days but more than 

24 hours before an election (i.e., 

primary, general, special, or runoff; see

11 CFR 100.2). BCRA moved the 24-

hour reporting provisions from 2 U.S.C. 

434(c)(2)(C) to 2 U.S.C. 434(g)(1). These 

reports must be received within 24 

hours of the time the independent 

expenditures aggregate $1,000 or more. 

2 U.S.C. 434(g)(1).

BCRA also adds a third type of report 

for certain independent expenditures. 

New ‘‘48-hour reports’’ are required 

when independent expenditures made 

at any time during the campaign, up to 

and including the 20th day before an 

election, aggregate $10,000 or more. 2 

U.S.C. 434(g)(2). To implement BCRA’s 

new reporting requirements for 

independent expenditures, the 

Commission is proposing changes to 

pre-BCRA 11 CFR 100.19, 104.4, 104.5, 

105.2, and 109.2, which are discussed 

below. 

I. When Must Reports of Independent 

Expenditures be Filed? 

A. 11 CFR 100.19 File, Filed, or Filing 

(2 U.S.C. 434(a)) 

The Commission’s regulations at 11 

CFR 100.19 define file, filed, and filing.

Paragraph (a) of section 100.19 would be 

unaffected by this rulemaking. Proposed 

paragraph (b) of section 100.19 would 

retain the pre-BCRA general rule that a 

document is considered timely filed if it 

is: (1) Delivered to the appropriate filing 

office (either the Commission or the 

Secretary of the Senate), or (2) sent by 

registered or certified mail and 

postmarked by 11:59 p.m. Eastern 

Standard/Daylight Time of the 

prescribed filing date—except for preelection reports. The proposed revisions 

to paragraph (b) of section 100.19 would 

clarify that paragraph (b) is the general 

rule, but does not apply to reports 

addressed by paragraph (c) through 

proposed new paragraph (f). In preBCRA paragraph (b), the Commission 

notes that this general rule does not 

apply to 24-hour reports of independent 

expenditures, although the other 

exceptions are not mentioned. 

Those exceptions would be as 

follows: Paragraph (c) for electronic 

filing—‘‘filed’’ means received by the 

Commission at or before 11:59 p.m. 

Eastern Standard/Daylight Time on the 

filing date; paragraph (d) for 24-hour 

and 48-hour reports of independent 

expenditures—‘‘filed’’ means received 

by the Commission no later than 11:59 

p.m. Eastern Standard/Daylight Time of 

the day following (24-hour reports) or 

the second day following (48-hour 

reports) the date on which the spending 

threshold is reached in accordance with 

11 CFR 104.4(f); paragraph (e) for 48-

hour notices of last-minute 

contributions—‘‘filed’’ means received 

by the Commission or the Secretary of 

the Senate within 48 hours of the 

receipt of a ‘‘last-minute’’ contribution 

of $1,000 or more. 

Paragraph (c) of section 100.19 would 

remain unchanged. 

Proposed revisions to paragraph (d) of 

section 100.19 would also require that 

the new 48-hour reports of independent 

expenditures, like the 24-hour reports, 

must be received rather than filed by the 

filing deadline. The proposed 48-hour 

reporting provision would allow filers 

to submit their reports using facsimile 

machines or electronic mail, as long as 

they are not required under 11 CFR 

104.18 to file electronically. Under preBCRA paragraph (d) of section 100.19, 

24-hour reports of independent 

expenditures are only considered timely 

filed if they are received by the 

Commission or Secretary of the Senate 

within 24 hours of the time the 

expenditure is made.1 Thus, sending 24-

hour reports by mail is not a viable 

option because it is unlikely that these 

reports will be received by the 

Commission within 24 hours of the 

making of the expenditure. See Final 

Rules and Explanation and Justification 

for 11 CFR 100.19, 67 FR 12834 (March 

20, 2002.) Pre-BCRA paragraph (d) also 

states that 24-hour reports may be filed 

by facsimile machine or electronic mail, 

in addition to other permissible means 

of filing (e.g., hand delivery or overnight 

courier). Because the reasons behind the 

handling of 24-hour reports apply 

equally to the essentially similar 48-

hour reports, the Commission is 

proposing this parallel rule.

Additional proposed changes to 11 

CFR 100.19 are being addressed by the 

Commission in a separate rulemaking. 

See ‘‘Electioneering Communications’’ 

Notice of Proposed Rulemaking, 67 FR 

51131 (Aug. 7, 2002). 

B. 11 CFR 104.5 Filing Dates (2 U.S.C. 

434(a)(2)) 

Proposed paragraph (g) of 11 CFR 

104.5 would move the pre-BCRA 

contents of paragraph (g) to proposed 

paragraph (g)(2) with revisions, and 

would add a new paragraph (g)(1), 

which would require that 48-hour 

reports of independent expenditures 

must be received by the Commission no 

later than 11:59 p.m. Eastern Standard/

Daylight Time of the second day 

following the date on which a 

communication is publicly distributed 

or otherwise publicly disseminated. PreBCRA paragraph (g) of 11 CFR 104.5 

states that 24-hour reports of 

independent expenditures must be 

received by the appropriate officers no 

later than 24 hours after such 

independent expenditure is made. 

II. Where Must Reports be Filed? 11 CFR 

105.2 Place of Filing; Senate 

Candidates, their Principal Campaign 

Committees, and Committees 

Supporting Only Senate Candidates (2 

U.S.C. 434(g)(3)) 

The Commission’s pre-BCRA 

regulations require that 24-hour reports 

of independent expenditures supporting 

or opposing Senate candidates be filed 

with the Secretary of the Senate. See

pre-BCRA 11 CFR 104.4(c), 109.2(b). In 

BCRA, Congress establishes the 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60045

Commission as the place of filing for 

both 24- and 48-hour reports of 

independent expenditures, regardless of 

the office being sought by the clearly 

identified candidate. 2 U.S.C. 

434(g)(3)(A). The proposed revisions to 

section 105.2 would place the text of 

pre-BCRA 11 CFR 105.2 in proposed 

paragraph (a), adding the heading, 

‘‘General Rule.’’ New proposed 

paragraph (b) of 11 CFR 105.2 would be 

headed, ‘‘Exceptions,’’ and would state 

that 24-and 48-hour reports of 

independent expenditures, and 

electioneering communications, see 11 

CFR 104.19, must be filed with the 

Commission even if the candidate 

supported or opposed is running for the 

Senate. 2 U.S.C. 434(f). 

III. 11 CFR 104.4 Independent 

Expenditures by Political Committees (2 

U.S.C. 434(b), (g)) 

The Commission has established 

reporting requirements for political 

committees making independent 

expenditures in accordance with 2 

U.S.C. 434(b) and (g). See pre-BCRA 11 

CFR 104.4. Paragraph (a) of section 

104.4 would be unaffected, other than 

the addition of a new heading, a 

grammatical correction and an updated 

cross-reference. 

Proposed new paragraph (b) would 

address reports of independent 

expenditures made at any point in the 

campaign up to and including the 20th 

day before an election. Proposed 

paragraph (b)(1) would address 

independent expenditures aggregating 

less than $10,000 with respect to a given 

election during the calendar year, up to 

and including the 20th day before an 

election. This calendar year aggregation 

would be based on 2 U.S.C. 434(b)(4), 

which requires calendar year 

aggregation for reports of independent 

expenditures by political committees. 

The Commission requests comments on 

whether a different time period, such as 

an election cycle, should be employed 

instead of the calendar year period. 

Under this calendar year approach, 

political committees would report the 

independent expenditures on Schedule 

E of FEC Form 3X, filed no later than 

the regular reporting date under 11 CFR 

104.5. The Commission would interpret 

2 U.S.C. 434(g), added to the Act by 

BCRA, to require aggregation toward the 

various thresholds for independent 

expenditure reporting to be done on a 

per election basis within the calendar 

year. For example, if a political 

committee made $5,000 in independent 

expenditures with respect to a Senate 

race, and $5,000 in independent 

expenditures with respect to a House 

race, and both of these events occurred 

before the twentieth day before the 

election, that political committee would 

not be required to file 48-hour reports, 

but would be required to disclose the 

independent expenditures in its 

regularly scheduled reports. If the 

political committee makes $5,000 in 

independent expenditures with respect 

to a clearly identified candidate in the 

primary, and an additional $5,000 in 

independent expenditures with respect 

to the same candidate in the general 

election, no 48-hour reports would be 

required; but again the committee 

would be required to disclose the 

independent expenditures in its 

regularly scheduled reports. 

Paragraph (b)(2) would address 

independent expenditures aggregating 

$10,000 or more during the calendar 

year up to and including the 20th day 

before an election. These reports would 

also be filed on Schedule E of FEC Form 

3X. However, these reports would be 

required to be received by the 

Commission no later than 11:59 p.m. 

Eastern Standard/Daylight Time of the 

second day following the date on which 

a communication which constitutes an 

independent expenditure is publicly 

distributed or otherwise publicly 

disseminated. Further, political 

committees would have to file an 

additional 48-hour report each time 

subsequent independent expenditures 

reach the $10,000 threshold with 

respect to the same election to which 

the first report related.

The Commission proposes revisions 

to renumbered paragraph (c) (i.e., preBCRA 11 CFR 104.4(b)) stating that 24-

hour reports must be received by the 

Commission no later than 11:59 p.m. 

Eastern Standard/Daylight Time of the 

day following the date on which the 

$1,000 threshold is reached during the 

final twenty days before the election. 

Further, proposed revisions to this 

paragraph would specifically state that 

additional 24-hour reports must be filed 

each time during the 24-hour reporting 

period that subsequent independent 

expenditures reach or exceed the $1,000 

threshold with respect to the same 

election to which the previous report 

related. 

Proposed paragraph (d) would contain 

the report verification information 

currently found in pre-BCRA paragraph 

(b) of section 104.4. There would be 

non-substantive grammatical changes to 

conform this paragraph to other changes 

in the overall section. 

Proposed paragraph (e) would largely 

restate pre-BCRA paragraph (c) of 

section 104.4. The most significant 

proposed change to this paragraph 

would be to make the Commission and 

not the Secretary of the Senate the place 

of filing for 24- and 48-hour reports of 

independent expenditures relating to 

Senate candidates. 2 U.S.C. 434(g)(3). 

See the discussion of 11 CFR 105.2, 

above. 

Proposed paragraph (f) of 11 CFR 

104.4 would address aggregation of 

independent expenditures for reporting 

purposes. The provisions of pre-BCRA 

11 CFR 109.1(f) would be redesignated 

and revised to explain when and how 

political committees and other persons 

making independent expenditures must 

aggregate independent expenditures for 

purposes of determining whether 48-

hour and 24-hour reports must be filed. 

Note that this proposed aggregation rule 

would apply to independent 

expenditures by political committees, as 

well as other persons; proposed 11 CFR 

109.10 (c) and (d) would cross-refer to 

this paragraph. Proposed paragraph (f) 

would establish that every date on 

which a communication that constitutes 

an independent expenditure is 

‘‘publicly distributed’’ or otherwise 

publicly disseminated serves as the date 

that every person must use to determine 

whether the total amount of 

independent expenditures has, in the 

aggregate, reached or exceeded the 

threshold reporting amounts ($1,000 for 

24-hour reports or $10,000 for 48-hour 

reports). The term ‘‘publicly 

distributed’’ would have the same 

meaning as in proposed 11 CFR 

100.29(b)(6), which the Commission has 

proposed as part of a separate 

rulemaking. See ‘‘Electioneering 

Communications’’ Notice of Proposed 

Rulemaking, 67 FR 51131 (Aug. 7, 

2002). Thus, proposed paragraph (f) 

would set the same date as the starting 

date from which a person would have 

one or two days, where applicable, to 

file a 24-hour or 48-hour report on 

independent expenditures. 

In addition, Congress changed the 

reporting requirements by adding the 

phrase ‘‘or contracts to make’’ to the 

statute. 2 U.S.C. 434(g)(1), (2). BCRA ties 

24-hour and 48-hour reporting of 

independent expenditures to the time 

when a person ‘‘makes or contracts to 

make independent expenditures * * *’’

aggregating at or above the $1,000 and 

$10,000 thresholds, respectively. 2 

U.S.C. 434(g)(4). Therefore, under 

proposed 11 CFR 104.4(f), each person 

would be required to include as of the 

proposed trigger date, in the calculation 

of the aggregate amount of independent 

expenditures both disbursements for 

independent expenditures and all 

contracts obligating funds for 

disbursement for independent 

expenditures. Under this approach and 

the proposed timing requirements 

described above, once a communication

60046 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

that constitutes an independent 

expenditure is publicly distributed or 

disseminated as explained above, the 

person who paid for, or who contracted 

to pay for, the communication would be 

able to determine whether the 

communication satisfied the ‘‘express 

advocacy’’ requirement of the definition 

of an independent expenditure (See 11 

CFR 100.16) and would be therefore be 

able to determine whether the 

disbursement for that communication 

constituted an independent 

expenditure. A person reaching or 

exceeding the applicable reporting 

threshold would be responsible for 

submitting a report by 11:59 p.m. 

Eastern Standard/Daylight Time of the 

day after, for 24-hour reporting, or two 

days after, for 48-hour reporting, the 

date of the public distribution or 

dissemination of that communication. 

The Commission seeks comment on 

its proposed interpretation of BCRA’s 

‘‘makes or contracts to make’’ language 

and the triggering mechanism for 24-

hour and 48-hour reports. Specifically, 

the Commission seeks comment on an 

alternative interpretation that would 

make the actual disbursement or the 

execution of the contract to make the 

disbursement for an independent 

expenditure, rather than the public 

distribution or dissemination of the 

resulting communication, the triggering 

mechanism for the reporting 

requirements once the disbursements 

and obligations equal or exceed the 

respective thresholds. This change 

would require earlier reporting than is 

currently required or proposed (i.e., 

when the communication is publicly 

disseminated). The policy reasons for 

adopting this alternative interpretation 

would be similar to those described in 

the NPRM on reporting of electioneering 

communications. See ‘‘Electioneering 

Communications’’ Notice of Proposed 

Rulemaking, 67 FR 51131 (Aug. 7, 

2002). 

IV. Proposed 11 CFR 109.10 How Do 

Persons Other Than Political 

Committees Report Independent 

Expenditures (2 U.S.C. 434(c), (d), and 

(g))? 

Proposed new section 109.10 would 

set forth the revised reporting 

requirements of pre-BCRA section 

109.2. Under proposed new section 

109.10, persons other than political 

committees would have to report their 

independent expenditures on either FEC 

Form 5 or in a signed statement 

containing certain information regarding 

the person who made the independent 

expenditure and the nature of the 

expenditure itself. 

Proposed paragraph (a) of 11 CFR 

109.10 would provide a cross-reference 

to 11 CFR 104.4 for political 

committees, under which they must 

report independent expenditures. 

Paragraph (a) of pre-BCRA 11 CFR 109.2 

would be moved to proposed 

paragraphs (b) and (c) of section 109.10. 

Proposed paragraph (c) would address 

reports of independent expenditures 

aggregating $10,000 or more with 

respect to a given election from the 

beginning of the calendar year up to and 

including the 20th day before an 

election. This proposed paragraph 

would require that 48-hour reports of 

independent expenditures be received

rather than filed by 11:59 pm of the 

second day after the date on which the 

$10,000 threshold is reached. See

discussion of received versus filed in 

section 100.19, above. Pre-BCRA 

paragraph (b) of section 109.2 indicates 

that 24-hour reports must be received 

after a disbursement is made for an 

independent expenditure, but no later 

than 24 hours after an independent 

expenditure is ‘‘made’’ under pre-BCRA 

paragraph 109.1(f). See the discussion of 

proposed 11 CFR 104.4(f), above. Under 

the proposed rules, paragraph (b) of preBCRA section 109.2 would be moved to 

new paragraph (d) of 11 CFR 109.10 and 

revised to reflect the modification to the 

aggregation and filing requirements in 

proposed 11 CFR 100.19(d) and 104.4 

that are discussed above. 

Proposed revisions to paragraph (d) of 

11 CFR 109.10 (pre-BCRA 11 CFR 

109.2(b)) would also mirror the changes 

in 11 CFR 104.4(c) as to when 24-hour 

reports of independent expenditures 

aggregating $1,000 or more after the 

20th day before the election. 

Proposed paragraph (e) of 11 CFR 

109.10 (i.e., pre-BCRA 11 CFR 

109.2(a)(1) and (c)) would address the 

contents and verification of statements 

filed in lieu of FEC Form 5. Proposed 

paragraph (e) would include one 

significant change from pre-BCRA 

109.2(a)(1) and (c): a person making an 

independent expenditure would now be 

required to certify that the expenditure 

was made independently from a 

political party committee and its agents, 

in addition to the pre-BCRA 

requirement of certification that the 

expenditure was not coordinated with a 

candidate, the candidate’s authorized 

committee, or an agent of either of the 

foregoing. This change reflects the 

addition of political party committees to 

the definition of ‘‘independent 

expenditure’’ in 2 U.S.C. 431(17) and 

the description of coordination in 2 

U.S.C. 441a(a)(7)(B)(ii) under BCRA. For 

the same reasons explained with 

reference to the definition of 

‘‘independent expenditure’’ in proposed 

11 CFR 100.16, the Commission would 

continue to include ‘‘consultation’’ in 

the description of activity that would 

cause an expenditure to lose its 

independence (i.e., ‘‘in cooperation, 

consultation, or concert with’’ a 

candidate or political party committee) 

even though the statutory definition in 

2 U.S.C. 431(17) does not retain the 

term. 

Section 109.11 Non-Authorization 

Notice (Disclaimers) (2 U.S.C. 441d)

The Commission would move the 

disclaimer requirement for independent 

expenditure communications from preBCRA 11 CFR 109.3 to proposed section 

109.11. There would be no substantive 

changes to this section. Proposed 

changes to 11 CFR 110.11 itself will be 

forthcoming in a separate rulemaking, in 

light of BCRA’s changes to the statutory 

disclaimer requirement. See 2 U.S.C. 

441d. 

Proposed Subpart C of Part 109

Coordination 

I. Proposed 11 CFR 109.20 What Does 

‘‘Coordinated’’ Mean? 

Congress did not define the term 

‘‘coordinated’’ directly in FECA or in 

BCRA, but it did provide that an 

expenditure is considered to be a 

contribution to a candidate when it is 

‘‘made by any person in cooperation, 

consultation, or concert, with, or at the 

request or suggestion of,’’ that 

candidate, the authorized committee of 

that candidate, or their agents. 2 U.S.C. 

441a(a)(7)(B)(i). Likewise, in BCRA, 

Congress added a new paragraph to 

section 441a(a)(7)(B) to require that 

expenditures ‘‘made by any person 

(other than a candidate or candidate’s 

authorized committee) in cooperation, 

consultation, or concert, with, or at the 

request or suggestion of, a national, 

State, or local committee of a political 

party shall be considered to be 

contributions made to such party 

committee.’’ 2 U.S.C. 441a(a)(7)(B)(ii). 

Also, as explained above, an 

expenditure would not be 

‘‘independent’’ if it is ‘‘made in 

cooperation, consultation, or concert, 

with, or at the request or suggestion of,’’

a candidate or a political party 

committee. See proposed 11 CFR 

100.16. 

Proposed section 109.20 would 

incorporate the language in 2 U.S.C. 

441a(a)(7)(B)(i) and (ii) into the 

Commission’s regulations. While the 

definition of ‘‘coordinated’’ in proposed 

paragraph 109.20(a) would potentially 

encompass a variety of payments made 

by a person on behalf of a candidate or 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60047

party committee, the Commission 

recognizes that the majority of issues 

regarding coordination involve 

communications. Therefore, the 

proposed regulations in 11 CFR 109.21 

and 109.37 would specifically address 

the meaning of the phrase ‘‘made in 

cooperation, consultation, or concert, 

with, or at the request or suggestion of’’

in the context of communications. 

In addition, proposed paragraph 

109.20(b) would address expenditures 

that are not made for communications 

but that are coordinated with a 

candidate or political party committee. 

The Commission proposes to move preBCRA 11 CFR 109.1(c), to proposed 

paragraph (b). This provision would 

also be revised to make it clear that 

these other expenditures, when 

coordinated, are also in-kind 

contributions (or coordinated party 

expenditures, if a political party 

committee so elects) to the candidate or 

political party committee with whom or 

with which they are coordinated. The 

exceptions contained in 11 CFR part 

100, subpart C (exceptions to the 

definition of ‘‘contribution’’) and 

subpart E (exceptions to the definition 

of ‘‘expenditure’’) would continue to 

apply. The Commission requests 

comment on whether these noncommunication expenditures should be 

further addressed in a later rulemaking. 

II. Background: The Commission’s PreBCRA Coordination Regulations 

Prior to the enactment of BCRA, the 

Commission initiated a series of 

rulemakings in response to the Supreme 

Court’s ruling on the appropriate 

application of the so-called 

‘‘coordinated party expenditure’’

provisions of FECA. See Colorado 

Republican Federal Campaign 

Committee v. Federal Election 

Commission, 518 U.S. 604 (1996) 

(‘‘Colorado I’’). For example, the 

Commission addressed the issue of 

coordination when it promulgated 11 

CFR 100.23 in December 2000. See 

Explanation and Justification of General 

Public Political Communications 

Coordinated with Candidates and Party 

Committees; Independent Expenditures,

65 Fed. Register 76138 (Dec. 6, 2000). 

Section 100.23 defined a new term, 

‘‘coordinated general public political 

communication,’’ drawing from judicial 

guidance in Federal Election 

Commission v. The Christian Coalition,

52 F.Supp.2d 45, 85 (D.D.C. 1999) 

(‘‘Christian Coalition’’), to determine 

whether expenditures for 

communications by unauthorized 

committees, advocacy groups, and 

individuals were coordinated with 

candidates or qualified as independent 

expenditures. Consistent with Christian 

Coalition, id. at 92, the Commission’s 

regulations stated that such 

coordination could be found when 

candidates or their representatives 

influenced the creation or distribution 

of the communications by making 

requests or suggestions regarding, or 

exercising control or decision-making 

authority over, or engaging in 

‘‘substantial discussion or negotiation’’

regarding, various aspects of the 

communications. 11 CFR 100.23(c)(2). 

The regulations explained that 

‘‘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.’’ 11 CFR 100.23(c)(2)(iii). 

III. Proposed 11 CFR 109.21 What is a 

‘‘Coordinated Communication’’? 

In BCRA, Congress expressly repealed 

11 CFR 100.23, Pub. L. 107–155, sec. 

214(b) (March 27, 2002), and instructed 

the Commission to promulgate new 

regulations on ‘‘coordinated 

communications paid for by persons 

other than candidates, authorized 

committees of candidates, and party 

committees.’’ Pub. L. 107–155, sec. 

214(c) (March 27, 2002). Congress also 

mandated that the new regulations 

address four specific aspects of 

coordinated communications: 

republication of campaign materials; the 

use of a common vendor; 

communications directed or made by a 

former employee of a candidate or 

political party; and communications 

made after substantial discussion about 

the communication with a candidate or 

party. See Pub. L. 107–155, sec. 

214(c)(1) through (4) (March 27, 2002). 

A. Basic Elements of a ‘‘Coordinated 

Communication’’

Proposed paragraph (a) of section 

109.21 would set forth the three 

required elements of a ‘‘coordinated 

communication,’’ which would 

comprise a three-part test. For a 

communication to be ‘‘coordinated’’

under the proposed rule, all three parts 

of the test would have to be satisfied. 

While no one of these elements standing 

alone fully answers the question of 

whether a communication is for the 

purpose of influencing a Federal 

election, see 11 CFR 100.52(a), 

100.111(a), the Commission proposes 

that the satisfaction of all of the three 

specific tests set out in the proposed 

regulation justifies the conclusion that 

payments for the coordinated 

communication are for the purpose of 

influencing a Federal election. 

The first part of the three-part test, in 

proposed paragraph (a)(1), would be 

that the communication would have to 

be paid for by someone other than a 

candidate, an authorized committee, or 

a political party committee. However, a 

person’s status as a candidate would not 

exempt him or her from the 

coordination regulations with respect to 

payments he or she makes on behalf of 

a different candidate. Under proposed 

paragraph (a)(2), the second part of the 

three-part test would be a ‘‘content 

standard’’ regarding the subject matter 

of the communication. The content 

standards would be addressed in detail 

in proposed paragraph (c) of this 

section. Under proposed paragraph 

(a)(3), the final part of the test would be 

a ‘‘conduct standard’’ regarding the 

interactions between the person paying 

for the communication and the 

candidate or political party committee. 

The conduct standards would be 

addressed in detail in proposed 

paragraph (d).

B. Treatment of Coordinated 

Communications as In-Kind 

Contributions 

Proposed paragraph (b) of section 

109.21 would provide that a payment 

for a coordinated communication would 

be made ‘‘for the purpose of 

influencing’’ an election for Federal 

office, a phrase used by Congress in the 

definition of both ‘‘expenditure’’ and 

‘‘contribution.’’ 2 U.S.C. 431(8)(A) and 

(9)(A). Thus, the Commission would 

make a determination that satisfying the 

content and conduct standards of 

proposed 11 CFR 109.21 would, in turn, 

satisfy the statutory requirements for an 

expenditure and a contribution. 

Proposed paragraph (b)(1) would state 

the general rule that a payment for a 

coordinated communication would 

constitute an in-kind contribution to the 

candidate or political party committee 

with whom or with which it is 

coordinated, unless excepted under 

subpart C of 11 CFR part 100. Please 

note that this section encompasses 

communications described in 11 CFR 

100.29(a)(1) (electioneering 

communications) in addition to other 

communications. Congress expressly 

provided that when these 

communications are coordinated with a 

candidate or political party committee, 

they must be treated like other 

coordinated communications in that 

disbursements for these 

communications are in-kind 

contributions to the candidate or party 

committee with whom or which they 

were coordinated. See 2 U.S.C. 

441a(a)(7)(C). 

60048 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

Proposed paragraph (b)(2) would 

create an exception to the general rule 

of proposed paragraph (b)(1). Under the 

general rule in proposed paragraph 

(b)(1), a candidate or a political party 

committee would be deemed to receive 

an in-kind contribution, subject to the 

contribution limits, prohibitions, and 

reporting requirements of the Act. As 

explained below, two of the conduct 

standards, found in proposed 

paragraphs (d)(4) and (d)(5) of section 

109.21, would not focus on the conduct 

of the candidate, his or her authorized 

committee, or his or her agents, but 

would focus on the conduct of the 

person paying for the communication, a 

common vendor, or a former employee. 

To avoid the result where a candidate or 

political party committee might be held 

responsible for receiving or accepting an 

in-kind contribution that did not result 

from its conduct or the conduct of its 

agents, the Commission proposes to 

explicitly provide that the candidate or 

political party committee would not 

receive or accept in-kind contributions 

that result from conduct described in 

the proposed conduct standards of 

paragraphs (d)(4) and (d)(5) of section 

109.21. This treatment would be 

generally analogous to the handling of 

republished campaign materials under 

the Commission’s current regulations. 

See 11 CFR 109.1(d)(1). However, please 

note that the person paying for a 

communication that is coordinated 

because of conduct described in 

proposed paragraphs (d)(4) or (d)(5) 

would still be responsible for making an 

in-kind contribution for purposes of the 

contribution limitations, prohibitions, 

and reporting requirements of the Act. 

Proposed paragraph (b)(3) of 11 CFR 

109.21 would provide that a political 

committee, other than a political party 

committee (which would be covered in 

proposed subpart D), must report 

payments for coordinated 

communications as in-kind 

contributions to the candidate or 

political party committee with whom or 

which they are coordinated. Proposed 

paragraph (b) would also clarify that a 

political party committee with which a 

communication is coordinated must 

report that communication as an in-kind 

contribution received under 11 CFR 

104.13. The recipient political party 

committee must also report making a 

corresponding expenditure in the same 

amount. 11 CFR 104.13. 

C. Content Standards 

The Commission proposes to include 

‘‘content standards’’ in the definition of 

‘‘coordinated communication.’’ Such 

content standards would serve to limit 

11 CFR 109.21 to communications 

whose subject matter is reasonably 

related to an election. The purpose of 

the content standards would not be to 

definitively decide if the content of the 

communication is for the purpose of 

influencing a Federal election. 

Answering that larger question would 

be the purpose of the three-part test of 

which the content standard would be 

one part. 

Proposed paragraph (c) would set out 

four possible content standards. A 

communication that satisfies any one of 

the four would be deemed to satisfy the 

‘‘content’’ requirement of the proposed 

regulation. 

Under proposed paragraph (c)(1), the 

first content standard would be whether 

the communication satisfies the 

requirements of a communication 

described in proposed 11 CFR 100.29 or 

communication that would otherwise be 

‘‘electioneering communication.’’ Notice 

of Proposed Rulemaking, 

‘‘Electioneering Communications,’’ 67 

FR 51131 (Aug. 7, 2002). 

The second proposed content 

standard addresses the Congressional 

requirement that the Commission’s new 

rules on coordinated communications 

address the ‘‘republication of campaign 

materials.’’ See Pub. L. 107–155, sec. 

214(c)(1) (March 27, 2002). The 

Commission proposes to satisfy this 

mandate by providing, in proposed 

paragraph (c)(2) of section 109.21 that 

the republication of candidate materials 

in a communication would satisfy the 

content standard if the republication, 

dissemination, or distribution, in whole 

or in part, amounts to a contribution 

under proposed 11 CFR 100.57 

(discussed below). 

In light of the candidate’s initial role 

in preparing the campaign material that 

is subsequently incorporated into a 

different, ‘‘republished’’

communication, it is possible that the 

candidate’s involvement in the original 

preparation of part or all of that content 

might be construed as triggering one or 

more of the proposed conduct standards 

in paragraph (d) of this section. To 

avoid this result, the Commission would 

clarify that the candidate’s actions in 

preparing the original campaign 

materials are not to be considered in the 

conduct analysis of proposed paragraph 

(d). Instead, the proposed rules in 11 

CFR 109.21(d)(6) would only focus on 

the conduct of the candidate that occurs 

after the initial preparation of the 

campaign materials. For example, if a 

candidate requests or suggests that a 

supporter pay for the republication of a 

campaign ad, the resulting 

communication paid for by the 

supporter would satisfy both a content 

standard (republication) and conduct 

standard (request or suggestion, see

discussion of proposed 11 CFR 

109.21(d)(1) below) and would therefore 

be a coordinated communication. The 

Commission also proposes a second 

sentence in proposed paragraph (a)(3) of 

section 109.21 indicating that the 

republication content standard of 

proposed paragraph (c)(2) is evaluated 

under the conduct standard in proposed 

paragraph (d)(6). 

The third content standard in 

proposed paragraph (c)(3) of section 

109.21 would state that a 

communication would also satisfy the 

content standard if it ‘‘expressly 

advocates’’ the election or defeat of a 

clearly identified candidate for Federal 

office. 

In addition to electioneering 

communications described in proposed 

11 CFR 100.29, communications that 

republish campaign materials, and 

communications that ‘‘expressly 

advocate’’ the election or defeat of a 

clearly identified candidate, the 

Commission is considering a number of 

other possible content standards. In this 

NPRM, the Commission presents and 

discusses three other possible content 

standards, which are labeled 

Alternatives A through C in the 

proposed rules. Any, all, or none of 

these alternatives could be adopted in 

the final rules. 

Each of these alternatives is framed in 

terms of a ‘‘public communication,’’ a 

term added to the Act by BCRA. 2 

U.S.C. 431(22); 11 CFR 100.26. The use 

of the term ‘‘public communication’’

would provide consistency within the 

regulations and would distinguish 

covered communications from, for 

example, private correspondence and 

internal communications between a 

corporation or labor organization and its 

restricted class. In addition, although 

the term ‘‘public communication’’

covers a broad range of 

communications, it does not cover some 

forms of communications, such as those 

transmitted using the Internet and 

electronic mail. 11 CFR 100.26. The 

Commission seeks comment on whether 

it is appropriate to limit the scope of 

coordinated communications through 

the use of the term ‘‘public 

communication,’’ or whether it would 

be adequate for this purpose to require 

only that the communication be ‘‘made 

available to the public.’’ The 

Commission also seeks comment on 

these three alternatives, as well as any 

other possible standards. 

Alternative A

The first alternative, labeled 

‘‘Alternative A’’ in the proposed rules, 

would require that the communication 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60049

be a public communication, as defined 

in 11 CFR 100.26, and that it clearly 

identify a Federal candidate. The terms 

‘‘clearly identified’’ and ‘‘candidate’’ are 

defined in 11 CFR 100.17 and 100.3, 

respectively. This alternative would 

seem to cover the widest range of public 

communications of all the alternatives. 

Alternative B 

The second alternative, labeled 

‘‘Alternative B’’ in the proposed rules, 

would require that the communication 

promote or support or attack or oppose 

a clearly identified candidate. This 

standard would be modeled on one of 

the definitions of ‘‘Federal election 

activity’’ added to the Act by BCRA. 2 

U.S.C. 431(20)(A)(iii), 11 CFR 100.24. A 

public communication that refers to a 

clearly identified Federal candidate, and 

‘‘that promotes or supports * * * or 

attacks or opposes’’ the candidate or his 

or her opponent is one type of Federal 

election activity. The phrase ‘‘promote 

or support, or attack or oppose’’ is also 

the key component of the alternative 

statutory definition of ‘‘electioneering 

communication.’’ See 2 U.S.C. 

434(f)(3)(A)(ii). 

The content standards set out in 

proposed paragraph (c) would apply to 

any person who or which pays for a 

communication, including political 

party committees. See proposed 11 CFR 

109.37(a)(2), discussed below, which 

would cover coordination of 

communications paid for by political 

party committees. The Commission 

seeks comment on whether, in the 

context of coordination, 

communications paid for by political 

party committees should be analyzed 

under different or additional content 

standards. For example, should the 

promote-or-support or attack-or-oppose 

content standard set out in Alternative 

B apply only to communications paid 

for by political party committees, and 

not to other persons? Should it be the 

only content standard applicable to 

communications paid for by political 

party committees? 

Alternative C 

The third alternative, labeled 

‘‘Alternative C’’ in the proposed rules, 

would represent a new approach. This 

possible content standard would 

attempt to focus as much as possible on 

the face of the public communication or 

on facts on the public record. This latter 

point is important. The intent would be 

to require as little characterization of the 

meaning or the content of 

communication, or inquiry into the 

subjective effect of the communication 

on the reader, viewer, or listener as 

possible. See Buckley v. Valeo, 424 U.S. 

1, 42–44 (1975). For example, it should 

not require inquiry into whether the 

communication ‘‘garners or diminishes 

support’’ for the candidate or was 

designed to urge the public to elect a 

certain candidate or party. Cf. AO 1984–

15 and 1985–14 (the former 

‘‘electioneering message’’ standard). 

Alternative C would be applied by 

asking if certain things are true or false 

about the face of the public 

communication or with limited 

reference to external facts on the public 

record. 

The proposed content standard would 

consist of a test based on three factors. 

If the public communication satisfies all 

three factors of the test, it would be 

deemed to satisfy the content standard. 

The first factor would be proximity in 

time to a Federal election. Proposed 

paragraph (c)(4)(i) would require that 

the public communication must be 

made 120 days or fewer before either a 

primary election or a general election in 

which a Federal candidate appears on 

the ballot. The 120-day time-frame 

would be borrowed from 2 U.S.C. 

431(20)(A)(i) (see 11 CFR 100.24(b)(1)), 

and it would have several advantages. 

First, it would be a ‘‘bright-line’’ rule. 

Second, it would focus the regulation on 

activity reasonably close to an election, 

but not so distant from the election as 

to implicate political discussion at other 

times. The Commission seeks comment 

on what, if any, regulation should apply 

more than 120 days from an election in 

this context. 

The second factor would relate to the 

intended audience of the public 

communication. Proposed paragraph 

(c)(4)(ii) would provide that a public 

communication must be ‘‘directed to 

voters in the jurisdiction of the clearly 

identified Federal candidate.’’ For 

example, a public communication that 

otherwise makes express statements 

about promoting or attacking 

Representative X or Senator Y for their 

stance on the ‘‘X–Y Bill’’ would not 

satisfy this requirement if it were only 

broadcast in Washington, DC, and not in 

either member’s district or State. For 

purposes of this paragraph, 

‘‘jurisdiction’’ would mean a member of 

Congress’ district, the State of a U.S. 

Senator, and the entire United States for 

the President and Vice President in the 

general election or before the national 

nominating convention. 

The third factor, which would be in 

paragraph (c)(4)(iii), would focus on 

public communications that are 

specifically linked to a clearly identified 

candidate. This factor would look to 

whether the public communication, on 

its face, makes express statements about 

the record or position or views on an 

issue, or the character, or the 

qualifications or fitness for office, or 

party affiliation of a clearly identified 

candidate. If this factor is satisfied, in a 

context where the factors in proposed 

paragraphs (c)(4)(i) and (ii) are also 

satisfied, the combination of these 

factors would lead to the conclusion 

that the public communication satisfies 

the content standard.

The Commission seeks comment on 

whether the third factor in Alternative 

C should be deleted from this proposed 

content standard. By deleting the third 

factor, the resulting content standard 

would resemble the ‘‘electioneering 

communication’’ content standard in 

proposed paragraph (c)(1), but with a 

broader time frame (120 days compared 

with 30 or 60 days) and with a different 

‘‘targeting’’ requirement. Eliminating the 

third factor from Alternative C would 

allow for coordination to be established 

in the case of a communication that 

does not refer to a candidate’s position 

on an issue, but rather refers specifically 

to a candidate along with his or her 

party’s position on the issue or with the 

stand of another politician on the issue. 

The Commission notes that most of 

the proposed content standards would 

require that a communication refer to a 

clearly identified candidate. The 

Commission seeks comment on whether 

a person whose interactions with a 

political party committee satisfy the 

conduct standard, and who pays for a 

communication that merely says ‘‘Vote 

Democratic’’ or ‘‘Vote Republican,’’

should be deemed to have made a 

coordinated communication, even 

though no specific candidate is 

mentioned. Should proposed 11 CFR 

109.21(c) include a content standard 

that would cover this type of 

communication? 

D. Conduct Standards 

Proposed paragraph (d) of section 

109.21 would list special types of 

conduct that would satisfy the ‘‘conduct 

standard’’ of the proposed, three-part 

coordination formula. Under the 

proposed rules, if one of these types of 

conduct is present, and the other 

requirements described in paragraphs 

(a) and (c) are satisfied, the 

communication would not be made 

‘‘totally independently’’ from the 

candidate or party committee, see 

Buckley, 424 U.S. at 47, and thus would 

be coordinated. The Commission 

emphasizes that the conduct standards 

in proposed paragraph (d) would only 

apply if the communication in question 

also satisfies one or more of the 

‘‘content standards’’ in proposed 

paragraph (c) of section 109.21. The 

introductory sentence of proposed 

60050 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

paragraph (d) would implement a 

Congressional mandate in BCRA that 

the coordination regulation not require 

‘‘agreement or formal collaboration.’’

Pub. L. 107–155, sec. 214(c) (March 27, 

2002); see more complete discussion 

below. 

1. Request or Suggestion 

Under the Act, as amended by BCRA, 

an expenditure made by any person at 

the ‘‘request or suggestion’’ of a 

candidate, an authorized committee, a 

political party committee, or an agent of 

any of the foregoing is a contribution to 

the candidate or political party 

committee. 2 U.S.C. 441a(a)(7)(B)(i), (ii). 

The first proposed conduct standard, in 

proposed 11 CFR 109.21(d)(1), would 

implement this ‘‘request or suggestion’’

statutory language, which would have 

two prongs. Satisfying either prong 

would satisfy the proposed conduct 

standard. 

The first prong, in proposed 

paragraph (d)(1)(i), would be satisfied if 

the person creating, producing, or 

distributing the communication does so 

at the request or suggestion of a 

candidate, authorized committee, 

political party committee, or agent of 

any of the foregoing. The Buckley court 

originally drew on the 1974 House and 

Senate reports accompanying the 1974 

Amendments to the Act when it upheld 

language in that Act that distinguished 

a communication made ‘‘at the request 

or suggestion’’ of the candidate or 

political party committee from those 

that are made ‘‘totally independently 

from the candidate and his campaign.’’

Buckley, 424 U.S. at 47 (citing H.R. Rep. 

No. 93–1239, p. 6 (1974) and S. Rep. No. 

93–689, p. 18 (1974)). A ‘‘request or 

suggestion’’ is therefore a form of 

coordination under the Act, as approved 

by Buckley. A request or suggestion 

encompasses the most direct form of 

coordination, given that the candidate 

or political party committee 

communicates desires to another person 

who effectuates them. 

The Commission notes that this 

provision, for example, would not apply 

to general appeals for support, such as 

a speech at a campaign rally, but, in 

appropriate cases, would apply to 

requests or suggestions to specific 

individuals or small groups for the 

creation, production, or distribution of 

communications. 

The second prong of the proposed 

‘‘request or suggestion’’ conduct 

standard (proposed paragraph (d)(1)(ii)) 

would be satisfied if a person paying for 

the communication suggests the 

creation, production, or distribution of 

the communication to the candidate, 

authorized committee, political party 

committee, or agent of any of the 

foregoing, and the candidate or political 

party committee assents to the 

suggestion. This second prong of the 

proposed conduct standard would be 

intended to prevent circumvention of 

the statutory ‘‘request or suggestion’’

language (2 U.S.C. 441a(a)(7)(B)(i), (ii)) 

by, for example, the expedient of 

implicit understandings that a candidate 

or political party committee never 

formally requests or suggests a 

communication, but nonetheless creates 

the expectation that the suggestion 

should be made by a person paying for 

the communication. 

The requirement of assent would limit 

the reach of the proposed regulation. A 

candidate or a political party committee 

would have accepted an in-kind 

contribution only if there is assent to the 

suggestion; by rejecting the suggestion, 

the candidate or political party 

committee may unilaterally avoid any 

coordination. The Commission requests 

comments on whether ‘‘express’’ assent 

should be required. Should the rule 

cover situations where assent is 

implied, and if so, how?

As discussed above, the Buckley

Court expressly recognized a request or 

suggestion by a candidate as a direct 

form of coordination resulting in a 

contribution. Buckley, 424 U.S. at 47. 

The Commission seeks comment on 

whether this unique nature of requests 

or suggestions by candidates or political 

party committees indicates that such 

conduct should be handled differently 

under the proposed coordination 

regulations. Specifically, should a 

request or suggestion for a 

communication by a candidate or 

political party committee be viewed as 

a special case, and as sufficient, in and 

of itself and without reference to a 

‘‘content standard,’’ to establish 

coordination? 

2. Materially Involved in Decisions 

The second conduct standard 

proposed 11 CFR 109.21(d)(2), would 

address situations in which a candidate, 

authorized committee, or a political 

party committee is ‘‘materially involved 

in decisions’’ regarding specific aspects 

of a public communication paid for by 

someone else. Those specific aspects 

would be listed in proposed paragraphs 

(i) through (vi) of paragraph (d)(2): (i) 

The content of the communication; (ii) 

the intended audience; (iii) the means 

and mode of the communication; (iv) 

the specific media outlet used; (v) the 

timing or frequency of the 

communication; or (vi) the size or 

prominence of a printed communication 

or duration of a communication on a 

television, radio, or cable station or by 

telephone. 

In this proposed regulation, 

‘‘material’’ would have its ordinary legal 

meaning, which is ‘‘important; more or 

less necessary; having influence or 

effect; going to the merits.’’ Black’s Law 

Dict. (6th ed. 1990) p. 976. Thus, the 

term ‘‘materially involved in decisions’’

would not be intended to encompass all 

interactions, only those which are 

important to the communication. In 

addition to the materiality of the 

candidate’s involvement in decisions 

regarding the communication under 

proposed paragraph (d)(3) through 

(d)(5), the Commission would focus on 

the materiality of the information 

conveyed, and its specific use. 

A candidate or political party 

committee would be considered 

‘‘materially involved’’ in the decisions 

enumerated in paragraph (d)(2) if either 

shares material information about 

campaign plans, projects, activities, or 

needs with the person making the 

communication. Likewise, a candidate 

or political party committee would be 

‘‘materially involved in decisions’’ if the 

candidate, political party committee, or 

agent conveys approval or disapproval 

of the other person’s plans. The 

Commission notes, however, that as 

with the ‘‘request or suggest’’ standard, 

the ‘‘materially involved’’ standard 

would not apply to general appeals for 

support, such as a speech, but 

specifically to the creation, production, 

or distribution of communications. 

The Commission invites comments on 

the wording and scope of this standard. 

In particular, the Commission welcomes 

comment on whether, and if so, how, 

the phrases ‘‘materially involved’’ and 

‘‘decisions’’ should be further defined in 

the rules. 

3. Substantial Discussion 

In BCRA, Congress also directed the 

Commission to address ‘‘payments for 

communications made by a person after 

substantial discussion about the 

communication with a candidate or 

political party.’’ Pub. L. 107–155, sec. 

214(c)(4) (March 27, 2002). Under 

proposed paragraph (d)(3) of 11 CFR 

109.21, a communication would meet 

the conduct standard if it is created, 

produced, or distributed after one or 

more substantial discussions between 

the person paying for the 

communication, or the person’s agents, 

and the candidate clearly identified in 

the communication, his or her 

authorized committee, his or her 

opponent, or the opponent’s authorized 

committee, a political party committee, 

or their agents. Proposed paragraph 

(d)(3) would explain that a ‘‘discussion’’

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60051

would be ‘‘substantial’’ if 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 is conveyed to a 

person paying for the communication. 

‘‘Discuss’’ would have its plain and 

ordinary meaning, which the 

Commission understands to mean an 

interactive exchange of views or 

information. ‘‘Material’’ would have the 

meaning explained above in the context 

of proposed paragraph (d)(2) of section 

109.21 (‘‘material involvement’’). In 

other words, the substantiality of the 

discussion would be measured by the 

materiality of the information conveyed 

in the discussion. The Commission 

seeks comments as to whether 

additional explanation or examples 

should be provided to further refine the 

term ‘‘substantial discussion.’’

4. Employment of Common Vendor 

In BCRA, Congress required the 

Commission to address ‘‘the use of a 

common vendor’’ in the context of 

coordination. Pub. L. 107–155, sec. 

214(c)(2) (March 27, 2002). Proposed 

paragraph (d)(4) of section 109.21 would 

create a conduct standard to implement 

this Congressional mandate. It would 

explain what a common vendor is, and 

provide that the use of a common 

vendor in the creation, production, or 

distribution of a communication 

satisfies the conduct standard if three 

conditions are all met. 

The first condition, in proposed 

paragraph (d)(4)(i), would be that the 

person paying for the communication, 

or the agent of such a person, must 

contract with, or employ, a ‘‘commercial 

vendor’’ to create, produce, or distribute 

the communication. The term 

‘‘commercial vendor’’ is defined in the 

Commission’s pre-BCRA regulations as 

‘‘any person[] providing goods or 

services to a candidate or political 

committee whose usual and normal 

business involves the sale, rental, lease, 

or provision of those goods or services.’’

11 CFR 116.1(c). Thus, this standard 

would only apply to a vendor whose 

usual and normal business includes the 

creation, production, or distribution of 

communications, and would not apply 

to the activities of persons who do not 

create, produce, or distribute 

communications as a commercial 

venture. 

The second condition, in proposed 

paragraph (d)(4)(ii), would be that the 

commercial vendor must have a 

previous or current relationship with 

the candidate or political party 

committee that puts the commercial 

vendor in a position to acquire material 

information about the plans, projects, 

activities, or needs of the candidate or 

political party committee. This previous 

or current relationship would be 

defined in terms of nine specific 

services related to campaigning and 

campaign communications, which 

would be enumerated in proposed 

paragraphs (d)(4)(ii)(A) through (I). Note 

that these services would have to have 

been rendered during the current 

election cycle. Such a previous or 

current relationship, as defined, would 

put the ‘‘common vendor’’ in a position 

to convey material information about 

the plans, projects, activities, or needs 

of the candidate or political party 

committee to the person paying for the 

communication. 

The proposed regulation refers to the 

current election cycle as a temporal 

limit on the operation of the regulation. 

‘‘Election cycle’’ would have the 

meaning defined in 11 CFR 100.3. The 

Commission seeks comment on whether 

a different time period, such as a fixed 

two-year period, would more accurately 

align the proposed rule with existing 

campaign practices. Or, should the time 

limit be the ‘‘the current election cycle, 

but not more than the previous two 

years of that election cycle’’? 

The third condition, in proposed 

paragraph (d)(4)(iii), would require that 

the commercial vendor make use of or 

convey material information about, the 

plans, projects, activities, or needs of 

the candidate or political party 

committee, or material information used 

by the commercial vendor in serving the 

candidate or political party committee, 

to the person paying for the 

communication. This requirement 

would be intended to encompass 

situations in which the vendor assumes 

the role of a conduit of information 

between a candidate or political party 

committee and the person making or 

paying for the communication, as well 

as situations in which the vendor makes 

use of the information received from the 

candidate or political party committee 

without actually transferring that 

information to another person. 

The Commission seeks comment 

about whether the conduct standard in 

proposed paragraph (d)(4) would 

adequately address the Congressional 

mandate in section 214(c)(2) of BCRA. 

The Commission also seeks comment on 

whether purchasing advertising time 

slots for television, radio, or other media 

should be added to the list of common 

vendor services covered in proposed 

paragraph (d)(4)(ii). 

5. Former Employee/Independent 

Contractor 

In BCRA, Congress required the 

Commission to address ‘‘persons who 

previously served as an employee of’’ a 

candidate or political party committee 

in the context of coordination. Pub. L. 

107–155, sec. 214(c)(3) (March 27, 

2002). Proposed paragraph (d)(5) of 

section 109.21 would create a conduct 

standard to implement this 

Congressional mandate.

Proposed paragraph (d)(5) would 

apply to communications paid for by a 

person who was previously an 

employee or an independent contractor 

of a candidate, authorized committee, or 

political party committee, or by the 

employer of such a person. Note that 

this employment or independent 

contractor relationship would have to 

exist during the current election cycle, 

as a temporal limit on the operation of 

the regulation. ‘‘Election cycle’’ would 

have the meaning defined in 11 CFR 

100.3. As discussed above with regard 

to proposed paragraph (d)(4) on 

common vendors, the Commission 

requests comments on whether this time 

period should be a fixed two-year 

period, or the same election cycle, but 

not more than two years. 

This proposed conduct standard 

would expressly extend to a person who 

had previously served as an 

‘‘independent contractor’’ of a candidate 

or political party committee to preclude 

circumvention of the rule by the 

expedient of characterizing an 

‘‘employee’’ as an ‘‘independent 

contractor’’ where the characterization 

makes no difference in the person’s 

relationship with the candidate or 

political party committee. This 

proposed coordination standard would 

also apply to the employer of a person 

who was an employee or independent 

contractor of a candidate, authorized 

committee, or political party committee. 

The Commission interprets the 

Congressional intent behind section 

214(c)(3) of BCRA to encompass 

situations in which former employees, 

who by virtue of their former 

employment have been in a position to 

acquire material information about the 

plans, projects, activities, or needs of 

the candidate or political party 

committee, may subsequently use that 

information or convey it to a person 

paying for a communication. 

Proposed paragraph (d)(5) would 

require that the former employee 

actually make use of, or convey material 

information about, the plans, projects, 

activities, or needs of the candidate or 

political party committee, or material 

information used by the former 

60052 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

employee in serving the candidate or 

political party committee, to the person 

paying for the communication. As with 

the proposed conduct standard covering 

common vendors, this requirement 

would be intended to encompass both 

situations in which the former employee 

assumes the role of a conduit of 

information and situations in which the 

former employee makes use of the 

information but does not share it with 

the person who is paying for the 

communication. 

The Commission proposes this 

conduct standard to address what it 

understands to be Congress’ primary 

concern, which is a situation in which 

a former employee of a candidate goes 

to work for a third party that pays for 

a communication that promotes or 

supports the former employer/candidate 

or attacks or opposes the former 

employer/candidate’s opponent. The 

conduct standard, as proposed, does not 

require that the former employee act 

under the continuing direction or 

control of, at the behest of, or on behalf 

of, his or her former employer. This is 

because a former employee who acts 

under such circumstances is a present 

agent, and would presumably be 

regulated as an agent, not as a former 

employee. To give effect to the statutory 

language that mandates the 

Commission’s coordination regulations 

address ‘‘former employees’’ (see Pub. L. 

107–155, sec. 214(c)(3)) the Commission 

assumes that a ‘‘former employee,’’ as 

that term is used in the statute, must be 

different from ‘‘agent.’’

The Commission seeks comment on 

whether a requirement of continuing 

direction or control by the former 

employer/candidate should be added to 

the proposed conduct standard. 

Consider, for example, an employee of 

a candidate in a contested primary who 

leaves the employment of that candidate 

to work for a third-party organization 

that makes a communication satisfying 

one or more of the proposed content 

standards. Under the proposed conduct 

standard, that third-party organization 

could be found to make an in-kind 

contribution. Assuming that the former 

employee is not acting under the 

continuing direction or control of, at the 

behest of, or on behalf of, his or her 

former employer, it can be argued that 

the third-party organization is making 

an independent expenditure or a noncoordinated disbursement for an 

electioneering communication, albeit 

with the windfall of the former 

employee’s knowledge. Should the 

regulation provide that the third-party 

organization does not make an in-kind 

contribution in this specific 

circumstance? 

The Commission also seeks comment 

on a related situation illustrated by the 

following example. Consider an 

employee, disgruntled or otherwise, of a 

candidate in a contested primary who 

leaves the employment of that candidate 

to work for a third-party organization 

that makes a communication satisfying 

one or more of the proposed content 

standards. Under the proposed conduct 

standard, that third-party organization 

could be found to make an in-kind 

contribution. But suppose the thirdparty organization uses information 

gained by the employee to run ads 

critical of the former employer or that 

favor the opponent of the former 

employer? Assume also that the thirdparty organization has no contact with 

the opponent, his campaign or any agent 

of the opponent. Should the 

Commission consider those 

communications to be in-kind 

contributions to the candidate who is 

the intended beneficiary? Or, assuming 

that the communication would 

otherwise qualify as an independent 

expenditure or electioneering 

communication, should the Commission 

merely consider this third-party 

communication to be either an 

independent expenditure or a nocoordinated disbursement for an 

electioneering communication? 

The Commission seeks comment 

about whether this proposed conduct 

standard should be extended to 

volunteers, such as ‘‘fundraising 

partners,’’ who by virtue of their 

relationship with a candidate or a 

political party committee, have been in 

a position to acquire material 

information about the plans, projects, 

activities, or needs of the candidate or 

political party committee. 

E. No Requirement of Agreement or 

Formal Collaboration 

When Congress, in BCRA, required 

the Commission to promulgate new 

regulations on coordinated 

communications, it specifically barred 

any regulatory requirement of 

‘‘agreement or formal collaboration’’ to 

establish coordination. Pub. L. 107–155, 

sec. 214(c) (March 27, 2002). The 

proposed regulation at 11 CFR 109.21(e) 

would explicitly implement that 

Congressional mandate. Although 

Congress did not define this term, the 

Commission notes that earlier versions 

of BCRA stated that ‘‘collaboration or 

agreement’’ would not be required to 

show coordination. See S. 27, 107th 

Cong., 1st Sess. (as passed by the Senate 

and transferred to the House, 478 Cong. 

Rec. H2547 (May 22, 2001)). The phrase 

‘‘agreement or formal collaboration’’

reached its final form through a 

substitute amendment to H.R. 2356 

offered by Representative Shays. See H. 

Amdt. 417, 478 Cong. Rec. H393 

through H492 (February 13, 2002). 

The Commission would therefore 

attach significance to the addition of the 

term ‘‘formal’’ as it modifies the term 

‘‘collaboration.’’ Thus, the conduct 

standards proposed in paragraph (d) of 

section 109.21 would require some 

degree of collaboration. However, 

proposed paragraph (e) would state that 

this collaboration need not be ‘‘formal,’’

in the sense of being planned or 

systematically approved or executed. 

Under proposed paragraph (e), the 

word ‘‘agreement’’ would be explained 

as well. A finding of coordination under 

proposed section 109.21 would not 

require a showing of a mutual 

understanding or meeting of the minds 

as to all, or even most, of the material 

aspects of a communication. Even a 

minimal amount of agreement would 

mean the communication would not be 

made ‘‘totally independently’’ from the 

candidate or party. See Buckley, 424 

U.S. at 47. In the case of a request or 

suggestion under proposed paragraph 

(d)(1) of section 109.21, agreement is not 

required at all. 

F. Should Exceptions Apply to the 

Content and Conduct Standards? 

Proposed 11 CFR 109.21 does not 

include any exceptions. The 

Commission seeks comment on whether 

exceptions to the proposed content or 

conduct standards should be included 

in the final rule. For example, should 

there be an exception to the content 

standards for communications that refer 

to the ‘‘popular name’’ of a bill or law 

that includes the name of a Federal 

candidate who was a sponsor of the bill 

or law? Should there be an exception to 

the conduct standards for a candidate’s 

response to an inquiry about his or her 

position on legislative or policy issues? 

IV. Proposed 109.22 Who Is Prohibited 

From Making Coordinated 

Communications? 

The Commission proposes a separate 

section to make it clear that any person 

who is otherwise prohibited from 

making a contribution or expenditure is 

also prohibited from making a 

coordinated communication. The 

Commission seeks comment on whether 

it is necessary to include this separate 

section.

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60053

Proposed Subpart D of Part 109—

Special Provisions for Political Party 

Committees 

I. Proposed 11 CFR 109.30 How are 

Political Party Committees Treated for 

Purposes of Coordinated and 

Independent Expenditures? 

National, State, and subordinate 

committees of political parties may 

make expenditures up to prescribed 

limits in connection with the general 

election campaigns of Federal 

candidates without counting such 

expenditures against the committees’

contribution limits. See 2 U.S.C. 

441a(d). These expenditures are 

commonly referred to as ‘‘coordinated 

party expenditures.’’ Political party 

committees, however, need not 

demonstrate actual coordination with 

their candidates to avail themselves of 

this additional spending authority. 

In BCRA, Congress sets certain new 

restrictions on these ‘‘coordinated party 

expenditures’’ and related restrictions 

on political party committee 

independent expenditures. There are 

also certain new restrictions on transfers 

and assignments of coordinated party 

expenditure authorizations between 

party committees. 2 U.S.C. 441a(d)(4)(A) 

through (C). 

The Commission proposes an 

introduction to subpart D of part 109 

that would state how political party 

committees are treated for purposes of 

coordinated and independent 

expenditures. Proposed section 109.30 

would first clarify that party committees 

may make independent expenditures 

subject to the provisions of proposed 

sections 109.35 and 109.36. (See

discussion below.) Second, proposed 

section 109.30 would explain that 

political party committees may support 

candidates with ‘‘coordinated party 

expenditures,’’ a term that would be 

defined at proposed 11 CFR 109.31, and 

would state that these coordinated party 

expenditures are subject to limits that 

are separate from and in addition to the 

contribution limits at 11 CFR 110.1 and 

110.2. 

II. Proposed 11 CFR 109.31 What Is a 

‘‘Coordinated Party Expenditure’’? 

FECA provides a special expenditure 

authority for coordinated party 

expenditures that is available only to 

certain political party committees. 2 

U.S.C. 441a(d). The Commission would, 

in proposed section 109.31, define 

‘‘coordinated party expenditures’’ to 

include payments made by a national 

committee of a political party and a 

State committee of a political party, 

including any subordinate committee of 

a State committee, for something of 

value in connection with the general 

election campaign of a candidate. 

Proposed section 109.31 would also 

introduce the term ‘‘party coordinated 

communication’’ (which would be 

defined in proposed section 109.37) as 

an example of something of value for 

which political party committees may 

make a coordinated party expenditure. 

III. Proposed 11 CFR 109.32 What Are 

the Coordinated Party Expenditure 

Limits? 

The Commission proposes to move 

the coordinated party expenditure limits 

found at pre-BCRA 11 CFR 110.7(a) and 

(b) to proposed section 11 CFR 109.32. 

This new section would retain the basic 

organizational structure of paragraphs 

(a) and (b) of pre-BCRA section 110.7. 

The Commission would set forth in 

proposed paragraph (a), in amended 

fashion, the coordinated party 

expenditure limit for the national 

committee of a political party for 

presidential elections that appears at 

pre-BCRA section 110.7(a). Because 

political party committees may also 

make independent expenditures, 

Colorado I, 518 U.S. at 618, the 

Commission would clarify that the 

‘‘expenditures’’ referred to in proposed 

section 109.32 are ‘‘coordinated party 

expenditures.’’ This change also appears 

in proposed paragraphs (a)(1), (2), (3), 

and (4) of section 109.32. In addition, 

proposed paragraph (a)(2), setting out 

the coordinated party expenditure limit 

at two cents multiplied by the voting 

age population of the United States, 

would state that this limit shall be 

increased in accordance with 11 CFR 

110.17, which would amend pre-BCRA 

11 CFR 110.9(c). See Notice of Proposed 

Rulemaking, Contribution Limitations 

and Prohibitions, 67 FR 54366 (August 

22, 2002.) In addition, proposed 

paragraph (a)(2) of section 109.32 would 

refer to the term ‘‘voting age 

population’’ at proposed 11 CFR 110.18, 

discussed below. 

Further, proposed 11 CFR 

109.32(a)(4), to which pre-BCRA 11 CFR 

110.7(a)(6) would be moved, would 

provide that coordinated party 

expenditures on behalf of presidential 

candidates do not count against the 

candidate’s expenditure limitations 

under 11 CFR 110.8. Proposed 

paragraph (a)(4) of section 109.32 would 

also state that the national party 

committee may make such expenditures 

and may assign their spending authority 

to other political party committees to do 

so under proposed section 109.33, 

which is discussed below. 

Proposed paragraph (b) would set 

forth, and make minor changes to, the 

regulations, pre-BCRA, at 11 CFR 

110.7(b) addressing coordinated party 

expenditure limits of the national 

committee of a political party and a 

State committee of a political party, 

including any subordinate committee of 

a State committee, for Federal elections 

other than presidential elections. As in 

proposed paragraph (a) above, proposed 

paragraph (b) would specify that the 

‘‘expenditures’’ referred to in 

paragraphs (b)(1), (2), and (4) are 

coordinated party expenditures. In 

addition, proposed paragraph (b)(2), 

setting out the coordinated party 

expenditure limits of two cents 

multiplied by the voting age population 

of the United States and dollar figures 

of $10,000 and $20,000, would be 

subject to proposed paragraphs (b)(3) 

and (b)(4) regarding inflation 

adjustments and the relationship with 

contribution limits. 

IV. Proposed 11 CFR 109.33 May a 

Political Party Committee Assign Its 

Coordinated Party Expenditure 

Authority to Another Political Party 

Committee? 

Proposed 11 CFR 109.33 would 

continue the pre-BCRA rule permitting 

assignment of coordinated party 

expenditure authority between political 

party committees by consolidating the 

authorizing provisions found in the preBCRA regulations at 11 CFR 110.7(a)(4) 

and (c). Such assignments, however, 

would be prohibited under certain 

circumstances in which the assigning 

political party committee had made 

coordinated party expenditures (using 

part of the spending authority) and the 

intended assignee political party 

committee had made or intends to make 

independent expenditures with respect 

to the same candidate during an election 

cycle. See 2 U.S.C. 441a(d)(4)(C) and 

proposed 11 CFR 109.35(c). 

Proposed paragraph (a) of section 

109.33 would also restate the 

Commission’s longstanding policy that a 

political party committee with authority 

to make coordinated party expenditures 

may assign all or part of that authority 

to other political party committees, and 

that this interpretation extends to both 

national and State committees of 

political parties. See Campaign Guide 

for Political Party Committees at p.16 

(1996). Proposed paragraph (a) of 

section 109.33 would also state that 

coordinated party expenditure authority 

may be assigned only to other political 

party committees. See 2 U.S.C. 441a(d), 

and pre-BCRA 11 CFR 110.7(a)(4), 

which indicates that coordinated 

expenditures may be made ‘‘through 

any designated agent, including State 

and subordinate party committees.’’ The 

Commission makes this change to 

60054 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

preclude confusion, and possible 

circumvention of the restrictions on 

transfers and assignments between 

political party committees found in 

BCRA. 2 U.S.C. 441a(d)(4)(B), (C). 

Proposed paragraph (a) would provide 

that whenever a political party 

committee authorized to make 

coordinated party expenditures assigns 

another political party committee to use 

part or all of its spending authority, the 

assignment must be in writing, must 

specify a dollar amount, and must be 

made before the assigned party 

committee actually makes the 

coordinated party expenditure. See 

Campaign Guide for Political Party 

Committees at p.16 (1996). This would 

apply to both national and State party 

committees. 

Proposed paragraph (b) of section 

109.33 would continue the pre-BCRA 

rule in 11 CFR 110.7(c) that, for 

purposes of the coordinated spending 

limits, a State committee includes 

subordinate committees of the State 

committee. Proposed paragraph (b) of 

section 109.33 would add district and 

local political party committees (see 11 

CFR 100.14(b)) to the extent that they 

are assigned authority to make 

coordinated party expenditures by 

another political party committee. 

Finally, proposed paragraphs (b)(1) 

and (2) of section 109.33 would contain 

the pre-BCRA rule in 11 CFR 110.7(c)(1) 

and (2) setting out State committees’

methods of administering the 

coordinated party expenditure 

authority. 

The Commission seeks comments on 

whether to require political party 

committees to attach copies of written 

assignments to reports they file with the 

Commission, or to fax or e-mail them if 

they are electronic filers.

V. Proposed 11 CFR 109.34 When May 

a Political Party Committee Make 

Coordinated Party Expenditures? 

Proposed 11 CFR 109.34 would 

continue the pre-BCRA rule in 11 CFR 

110.7(d) permitting a political party 

committee to make coordinated party 

expenditures in connection with the 

general election campaign before or after 

its candidate has been nominated. All 

pre-nomination coordinated 

expenditures would continue to be 

subject to the coordinated party 

expenditure limitations, whether or not 

the candidate on whose behalf they are 

made receives the party’s nomination. 

VI. Proposed 11 CFR 109.35 What are 

the Restrictions on a Political Party 

Committee Making Both Independent 

Expenditures and Coordinated Party 

Expenditures in Connection with a 

Candidate’s Campaign? 

Under BCRA, Congress prohibits 

political party committees, under 

certain conditions, from making 

coordinated party expenditures, 

independent expenditures, and transfers 

and assignments to other political party 

committees. 2 U.S.C. 441a(d)(4). 

Congress plainly intended to combine 

certain political party committees into a 

collective entity or entities for purposes 

of these prohibitions. 2 U.S.C. 

441a(d)(4)(B). The statutory language 

and legislative history raise a significant 

threshold question of statutory 

interpretation: Whether an entire, 

nationwide political party is to be 

treated as a single entity or as separate 

national and State political party 

entities for the purposes of these 

restrictions. The Commission would 

adopt the latter approach in proposed 

11 CFR 109.35. This interpretation, in 

turn, raises additional issues regarding 

which political party committees are to 

be included in certain defined groups of 

political party committees for the 

purposes of the new restrictions in 

BCRA. 

A. Applicability of Prohibitions 

1. Statutory Interpretation 

Congress provided that for the 

purposes of these new prohibitions, 

sbull ‘‘all political committees 

established and maintained by a 

national political party (including all 

Congressional campaign committees) 

and all political committees established 

and maintained by a State political 

party (including any subordinate 

committee of a State committee) shall be 

considered to be a single political 

committee.’’ 2 U.S.C. 441a(d)(4)(B). 

One reading of this statutory 

provision would combine all 

committees established and maintained 

by a political party at all levels into ‘‘a 

single political committee’’ for the 

purposes of the prohibitions discussed 

below. An alternative reading would 

provide that all committees established 

and maintained by a national political 

party, including Congressional 

campaign committees, would be ‘‘a 

single political committee,’’ while all 

committees established and maintained 

by a given State political party, 

including any subordinate committee of 

a State committee, would be another 

‘‘single political committee.’’ The 

Commission notes that the Senate 

sponsors of BCRA stated that all 

national and State committees of a 

political party are considered to be one 

entity for the purposes of the 

prohibitions codified at 2 U.S.C. 

441a(d)(4). See 148 Cong. Rec. S1993 

(daily ed. March 18, 2002) (section-bysection analysis included by Sen. 

Feingold in the Record); 148 Cong. Rec. 

S2144 (daily ed. March 20, 2002) 

(statement of Sen. McCain). 

One of the new prohibitions, 

regarding political party committee 

transfers and assignments, would 

appear to imply that political parties are 

inherently divisible into different 

groups of political committees. See 2 

U.S.C. 441a(d)(4)(C). This is because, 

without more than one group of 

political party committees, no transfers 

or assignments between political party 

committee groups could occur. In other 

words, if there were only a single group, 

there could be no transfers or 

assignments and thus this provision 

would be without effect. See Colautti v.

Franklin, 439 U.S. 379, 392 (1979) (it is 

an ‘‘elementary canon of construction 

that a statute should be interpreted so as 

not to render one part inoperative’’). 

Therefore, to give the transfers and 

assignments provision effect, the 

Commission believes that BCRA may 

contemplate multiple groups of political 

party committees. See 2 U.S.C. 

441a(d)(4). The Commission seeks 

comment on this interpretation of the 

statute. 

2. Proposed Rule 

In light of the foregoing statutory 

interpretation, proposed 11 CFR 109.35 

would contemplate multiple political 

party committee groups. Proposed 

paragraphs (a)(1) and (a)(2) would apply 

this interpretation by combining all 

political committees established and 

maintained by a national political party 

into one group and all political 

committees established and maintained 

by a given State political party into 

another group. See 2 U.S.C. 

441a(d)(4)(B). The Commission would 

use these ‘‘political party groups’’ to 

implement the prohibitions discussed 

below. 

Under proposed paragraph (a)(1), the 

national ‘‘political party group’’ would 

combine the national committee of a 

given political party, all Congressional 

campaign committees of that political 

party, and all political committees 

established, financed, maintained, or 

controlled by any of the foregoing. The 

Commission notes that the phrase, 

sbull I11‘‘established, financed, 

maintained, or controlled’’ would differ 

from the statutory phrase, ‘‘established 

and maintained.’’ The proposed 

formulation, however, would be 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60055

consistent with, and serve the same 

purposes as, the analogous antiproliferation provision in FECA. 2 

U.S.C. 441a(a)(5). Under section 

441a(a)(5), for the purposes of the 

contribution limitations, all 

contributions made by political 

committees ‘‘established or financed or 

maintained or controlled’’ by the same 

person or entity shall be considered to 

have been made by a single political 

committee. 2 U.S.C. 441a(a)(5). 

A State ‘‘political party group’’ would 

combine the State committee of a given 

political party in a given State, all 

subordinate committees of that State 

committee, and all district or local 

committees of that political party within 

that State that meet the definition of 

‘‘political committee’’ under 11 CFR 

100.5. See proposed 11 CFR 

109.35(a)(2). Subordinate committees 

are expressly mentioned in the statute. 

2 U.S.C. 441a(d)(4)(B). 

The Commission notes that the 

prohibitions discussed below would 

appear to apply to district or local 

committees because those prohibitions 

apply to any ‘‘committee of a political 

party.’’ See 2 U.S.C. 441a(d)(4)(A) and 

(C). The regulatory definition of district 

and local committee includes the 

requirement that the organization be 

part of the ‘‘official party structure.’’ 11 

CFR 100.14(b). 

The Commission notes that the phrase 

‘‘established, financed, maintained, or 

controlled’’ would differ from the 

statutory phrase ‘‘established and 

maintained.’’ See 2 U.S.C. 441a(d)(4)(B). 

The proposed rule would be based on 

the Commission’s definitions of ‘‘State 

committee’’ and ‘‘subordinate 

committee’’ at 11 CFR 100.14(a) and (c), 

which both use the phrase ‘‘established, 

financed, maintained, or controlled,’’

given that both would be included in 

the proposed State political party group.

The Commission seeks comment on 

the proposed combinations of 

committees of a political party into a 

national political party group and into 

State political party groups. For 

example, should the State political party 

group in a given State include district or 

local committees in that State only to 

the extent that the State party exercises 

functional control over them? 

B. Prohibition on Certain Coordinated 

and Independent Expenditures 

Congress provided in BCRA that on or 

after the date on which a political party 

nominates a candidate, no ‘‘committee 

of the political party’’ may make: (1) 

Any coordinated expenditure under 2 

U.S.C. 441a(d) with respect to the 

candidate during the election cycle at 

any time after ‘‘it’’ makes any 

independent expenditure with respect 

to the candidate during the election 

cycle; or (2) any independent 

expenditure with respect to the 

candidate during the election cycle at 

any time after ‘‘it’’ makes any 

coordinated expenditure under 2 U.S.C. 

441a(d) with respect to the candidate 

during the election cycle. 2 U.S.C. 

441a(d)(4)(A). 

Arguably, the use of the pronoun ‘‘it’’

in the statute is ambiguous in that it 

could be construed to refer either to the 

entire political party or to only a 

committee within the party. However, 

as explained above, the Commission 

would interpret the statute in terms of 

national and State ‘‘political party 

groups.’’ In the terms of this proposed 

interpretation, ‘‘it’’ would be construed 

to mean a given ‘‘political party group.’’

Thus, the Commission would interpret 

the prohibition on making both 

independent and coordinated 

expenditures with respect to a given 

candidate after nomination as applying 

to the ‘‘political party groups’’ defined 

above, and not to the party as a whole. 

The language of proposed paragraph 

(b) would generally track the statutory 

language, but would employ new terms 

in places to clarify its application. 

Proposed 11 CFR 109.35(b)(1) would 

prohibit a political committee within a 

political party group from making any 

post-nomination coordinated party 

expenditure under section 109.32 in 

connection with the general election 

campaign of a candidate at any time 

after any committee within that political 

party group makes any post-nomination 

independent expenditure with respect 

to that candidate. 2 U.S.C. 441a(d)(4). 

Proposed paragraph (b)(2) would 

prohibit a political committee within a 

political party group from making any 

post-nomination independent 

expenditure with respect to a candidate 

at any time after any political committee 

within that political party group makes 

any post-nomination coordinated 

expenditure under section 109.32 in 

connection with the general election 

campaign of that candidate. As soon as 

a political committee within a political 

party group makes an independent 

expenditure or a coordinated party 

expenditure with respect to a candidate 

after nomination, all political 

committees within that political party 

group are bound during the remainder 

of the election cycle to whichever type 

of expenditure the first political 

committee makes. 2 U.S.C. 441a(d)(4). 

The restrictions in proposed 

paragraphs (b)(1) and (b)(2) would apply 

‘‘during the remainder of the election 

cycle.’’ See 2 U.S.C. 441a(d)(4)(A). This 

would clarify that proposed paragraph 

(b) would apply to exclusively postnomination events through the end of 

the election cycle. The prohibitions 

would apply to political committees 

within a political party group upon the 

first post-nomination independent or 

coordinated expenditure by a committee 

within that political party group and 

would run until the end of the election 

cycle. 

The Commission notes that 

coordinated party expenditures and 

independent expenditures made by a 

political committee within a political 

party group before nomination would 

have no bearing on the application of 

proposed paragraph (b). 

Under proposed paragraph (d)(2) of 

section 109.35, the term ‘‘election 

cycle’’ has the meaning in 11 CFR 

100.3(b), except that the election cycle 

ends on the date of the general election 

runoff, if one is held. For purposes of 11 

CFR 109.35, ‘‘election cycle’’ would 

thus begin on the first day following the 

date of the previous general election for 

the office or seat which the candidate 

seeks and ending on the date on which 

the general election for the office or seat 

that the individual seeks is held, or on 

the date of any general election runoff 

is held. Since proposed paragraph (b) of 

section 109.35 would only apply after 

nomination, see 2 U.S.C. 441a(d)(4), the 

‘‘election cycle’’ period for this 

provision would effectively extend from 

nomination through the general election 

or general election runoff. Finally, the 

Commission notes that the political 

party of a candidate running in a general 

election runoff would not be permitted 

an additional coordinated party 

expenditure authority with respect to 

that candidate for the runoff. See 

Democratic Senatorial Campaign 

Committee v. FEC, No. 93–1321 (D.D.C., 

November 14, 1994.) 

In proposed paragraph (d)(1), the 

Commission would define when 

independent expenditures that are made 

by a political party committee are ‘‘with 

respect to’’ a candidate, for purposes of 

section 109.35. Independent 

expenditures made ‘‘with respect to’’ a 

candidate would include those 

independent expenditures expressly 

advocating the defeat of any other 

candidate seeking nomination for 

election, or election, to the Federal 

office sought by that party’s candidate. 

The Commission’s proposed definition 

would facilitate the appropriate 

coverage, and help avoid 

circumvention, of the prohibitions at 

proposed paragraph (b) of section 

109.35 discussed above and proposed 

paragraph (c) of section 109.35 

discussed below. See proposed 11 CFR 

100.16 (definition of express advocacy 

60056 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

that includes communications expressly 

advocating the ‘‘election or defeat’’ of a 

clearly identified candidate). 

C. Prohibition on Certain Transfers and 

Assignments 

Congress provided in BCRA that a 

‘‘committee of a political party’’ that 

makes coordinated party expenditures 

with respect to a candidate shall not, 

during an election cycle, transfer any 

funds to, assign authority to make 

coordinated party expenditures under 2 

U.S.C. 441a(d) to, or receive a transfer 

of funds from, a ‘‘committee of the 

political party’’ that has made or intends 

to make an independent expenditure 

with respect to the candidate. 2 U.S.C. 

441a(d)(4)(C). Congress apparently 

intended to prevent a circumvention of 

the prohibition against making both 

coordinated and independent 

expenditures by means of transfers or 

assignments. On its face, this 

prohibition applies only to a 

‘‘committee of a political party’’ that is 

making coordinated party expenditures 

with respect to a candidate. Although 

Congress prohibits transfers in either 

direction between a party committee 

making coordinated party expenditures 

and a political party committee making 

or intending to make independent 

expenditures with respect to the same 

candidate, Congress prohibits 

assignments of coordinated party 

expenditure spending authority only 

from the political party committee 

making coordinated expenditures to a 

political party committee making or 

intending to make independent 

expenditures, and not in the other 

direction. 

Proposed paragraph (c) of 11 CFR 

109.35 would generally track the 

statutory language in 2 U.S.C. 

441a(d)(4)(C), employing the terms 

defined in proposed section 109.35. It 

would prohibit transfers of funds and 

some assignments of authority to make 

coordinated party expenditures between 

political committees in different 

political party groups after the 

occurrence of two events: (1) A political 

committee within a political party group 

makes a coordinated party expenditure 

in connection with the general election 

campaign of a candidate, and (2) a 

political committee within another 

political party group makes an 

independent expenditure or declares its 

intention to do so with respect to the 

same candidate. After these two events 

take place, no political committee 

within one political party group would 

be able make any transfers to, or receive 

any transfers from, any political 

committee within the other political 

party group during the remainder of the 

election cycle. Also, after these two 

events take place, no political 

committee within a political party group 

electing to make coordinated party 

expenditures would be able to assign 

authority to make coordinated party 

expenditures in connection with the 

general election campaign of a 

candidate to any political committee 

within the political party group electing 

to make independent expenditures 

during the remainder of the election 

cycle. This proposed provision would 

not, however, prohibit transfers and 

assignments between committees within

a given political party group. 

The Commission seeks comment on 

the approach in proposed 11 CFR 

109.35(c). Should the Commission set 

forth rules requiring party committees to 

keep track of the expenditure activities 

of other party committees, within the 

same or another political party group? 

Cf. proposed section 109.33, pre-BCRA 

11 CFR 110.7(c), which places 

responsibility on the State committee to 

insure that the coordinated party 

expenditures of the entire party 

organization are within the limitations. 

In proposed 11 CFR 109.35(c), the 

Commission would replace the statutory 

phrase ‘‘during the election cycle’’ in 

the statute with ‘‘during the remainder 

of the election cycle.’’ See 2 U.S.C. 

441a(d)(4)(C). As noted above, the 

transfer prohibitions would only go into 

effect after the occurrence of the two 

specific events. Thus, the period during 

which the prohibitions would apply 

would start after the occurrence of both 

events and run until the end of the 

election cycle. 

In contrast to the prohibition on a 

party committee making both 

independent and coordinated 

expenditures with respect to a 

candidate, that is expressly limited to 

the post-nomination period, the 

transfers and assignments provision 

does not include the same restriction 

and thus could apply prior to 

nomination as well as after nomination. 

See 2 U.S.C. 441a(d)(4)(A) and (C); 

proposed 11 CFR 109.34, which would 

be renumbered from 11 CFR 110.7(d) 

(party committees may make 

coordinated expenditures in connection 

with the general election campaign 

before their candidates have been 

nominated); see also Colorado I

(involved pre-nomination independent 

expenditures by a State party 

committee). Indeed, the Commission’s 

proposed rules regarding ‘‘election 

cycle’’ would clarify that the 

prohibitions in proposed 11 CFR 

109.35(c) could take effect prior to 

nomination. As noted above, ‘‘election 

cycle’’ begins on the first day following 

the date of the previous general election, 

and may span a two, four, or six year 

period depending on the office sought, 

although in practice it would be 

unusual for the prohibitions of proposed 

11 CFR 109.35(c) to go into effect far 

before the date of nomination. In 

addition, such prohibitions would only 

go into effect. After a committee within 

one political party group made a 

coordinated party expenditure with 

respect to the candidate and a 

committee within another political 

party group made or intended to make 

an independent expenditure with 

respect to the same candidate. See

proposed 11 CFR 109.35(c). 

Comment is sought on the distinction 

between the post-nomination 

application of proposed 11 CFR 

109.35(b) and the pre- and postnomination application of proposed 11 

CFR 109.35(c). As an alternative 

approach, is there an interpretation of 

the transfers and assignments provision 

in the statute such that the prohibitions 

would only apply after nomination? See

2 U.S.C. 441a(d)(4)(C). 

Comment is also sought on whether 

the prohibitions in proposed paragraph 

(c) should only go into effect after the 

occurrence of the two specified 

expenditures. Is there an interpretation 

of 2 U.S.C. 441a(d)(4)(C) that would 

restrict transfers and assignments prior

to a political party group making 

coordinated expenditures with respect 

to a candidate and the other political 

party group making or intending to 

make independent expenditures with 

respect to the candidate? 

Finally, the Commission notes that it 

is not at this time proposing specific 

rules to implement the statutory 

language ‘‘intends to make’’ an 

independent expenditure with respect 

to the candidate. 2 U.S.C. 441a(d)(4)(C). 

The Commission seeks comment on 

whether such rules are necessary, and if 

so, how would they implement the 

statutory language. 

D. Impact of Political Party Committee 

Activity Carried Out Pursuant to 

Contribution Limits 

2 U.S.C. 441a(d)(4) applies to 

coordinated party expenditures and to 

political party committee independent 

expenditures. Congress did not directly 

address political party committees’

monetary and in-kind contributions to 

candidates that are subject to the 

contribution limits under 2 U.S.C. 

441a(a) and 441a(h). See 2 U.S.C 

441a(d)(1) (’’Notwithstanding any other 

provision of law with respect to . . . 

limitations on contributions, [political 

party committees] may make 

expenditures in connection with the 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60057

general election campaign of candidates 

for Federal office, subject to the 

limitations contained [in this 

subsection]’’ [emphasis added]). See 

also proposed 11 CFR 109.30, 109.32. 

Political party committees may make 

in-kind contributions to a candidate in 

the form of party coordinated 

communications, as addressed in 

proposed 11 CFR 109.37. The 

Commission notes that such 

coordination between political party 

committee and candidate may 

compromise the actual independence of 

any simultaneous or subsequent 

independent expenditures the political 

party committee may attempt with 

respect to that candidate. See Buckley v. 

Valeo, 424 U.S. at 47 (in striking down 

limits on independent expenditures, the 

Court described such expenditures as 

made ‘‘totally independently of the 

candidate and his campaign’’ [emphasis 

added]). Comment is sought on this 

analysis. 

E. Transfers under 11 CFR 102.6(a)(1)(ii) 

As a result of the enactment of 2 

U.S.C. 441a(d)(4) and other provisions 

from BCRA affecting transfers between 

political party committees, the 

Commission proposes to revise 11 CFR 

102.6(a)(1)(ii) to clarify the interaction 

of this section with certain provisions of 

BCRA. Before BCRA, the Commission 

permits unlimited transfers between or 

among national party committees, State 

party committees and/or any 

subordinate committees. See pre-BCRA 

11 CFR 102.6(a)(1)(ii).

First, in BCRA, Congress provided 

that a national committee of a political 

party, including a national 

Congressional campaign committee of a 

political party, may not solicit, receive, 

or direct to another person a 

contribution, donation, or transfer of 

funds or other thing of value, or spend 

any funds, that are not subject to the 

limitations, prohibitions, and reporting 

requirements of FECA. 2 U.S.C. 441i(a); 

see Explanation and Justification for 11 

CFR 300.10(a), 67 FR 49122 (July 29, 

2002). 

Second, in the ‘‘Levin Amendment,’’

Congress placed restrictions on how 

State, district, and local party 

committees raise ‘‘Levin funds’’ and 

prohibited certain transfers between 

political party committees. See 2 U.S.C. 

441i(b)(2)(C)(i); Explanation and 

Justification for 11 CFR 300.31, 67 FR 

49124 (July 29, 2002). 

Third, also in the Levin Amendment, 

Congress provided that a State, district, 

or local committee of a political party 

that spends Federal funds and Levin 

funds for Federal election activity must 

raise those funds solely by itself. These 

committees may not receive or use 

transferred funds in contravention of 

such requirements. 2 U.S.C. 

441i(b)(2)(B)(iv); see Explanation and 

Justification for 11 CFR 300.34(a) and 

(b), 67 FR 49127 (July 29, 2002). 

Fourth, Congress provided in BCRA 

that a committee of a political party that 

makes coordinated party expenditures 

under 2 U.S.C. 441a(d) in connection 

with the general election campaign of a 

candidate shall not, during that election 

cycle, transfer any funds to, assign 

authority to make coordinated party 

expenditures under this subsection to, 

or receive a transfer from, a committee 

of the political party that has made or 

intends to make an independent 

expenditure with respect to the 

candidate. 2 U.S.C. 441a(d)(4)(C); see

proposed 11 CFR 109.35(c), discussed 

above. 

The Commission proposes the 

addition of a new opening clause in 

paragraph (a)(1)(ii) of section 102.6 

incorporating these restrictions by 

reference into the rules regarding the 

transfer of funds and the use of 

transferred funds. 

VII. Proposed 11 CFR 109.36 Are 

There Additional Circumstances Under 

Which a Party Committee Is Prohibited 

From Making Independent 

Expenditures? 

Prior to the enactment of BCRA, a 

national committee of a political party 

was prohibited from making 

independent expenditures in 

connection with the general election 

campaign of a candidate for President. 

See 11 CFR 110.7(a)(5). In Colorado I,

the Supreme Court held that political 

party committees may make 

independent expenditures, but 

indicated that its decision involved only 

Congressional races, and did not 

address issues that might grow out of 

the public funding of presidential 

campaigns. 518 U.S. at 611–612. Of 

course, not all presidential campaigns 

are publicly-funded, thus raising an 

additional category of circumstances not 

addressed by the Court in Colorado I.

However, Congress may have 

effectively repealed the prohibition at 

11 CFR 110.7(a)(5). See 2 U.S.C. 

441a(d)(4). Under a new statutory 

provision, Congress prohibits political 

party committees from making both 

post-nomination independent 

expenditures and post-nomination 

coordinated expenditures in support of 

a candidate. See 2 U.S.C. 441a(d)(4)(A). 

A national party committee could thus 

make independent expenditures with 

respect to a candidate after nomination 

unless the committee had already made 

post-nomination coordinated 

expenditures with respect to that 

candidate. Because this provision 

appears to equally apply to party 

committee expenditures in support of 

presidential or Congressional 

candidates, a national party committee 

would appear able to make independent 

expenditures with respect to a 

presidential candidate. Thus, Congress 

appears to have superseded 11 CFR 

110.7(a)(5). Finally, this interpretation 

appears to apply regardless of whether 

a presidential candidate accepts public 

funding. The legislative history of BCRA 

does not appear to address the issue of 

prohibitions on independent 

expenditures by national party 

committees in connection with 

presidential elections. 

Rather than completely delete the 

prohibition at 11 CFR 110.7(a)(5), 

however, the Commission proposes to 

limit its application to certain limited 

circumstances in which the national 

committee of a political party serves as 

the principal campaign committee or 

authorized committee of its presidential 

candidate, as permitted under 2 U.S.C. 

432(e)(3)(A)(i) and 441a(d)(2). See 11 

CFR 102.12(c)(1) and 9002.1(c). Such a 

prohibition would be consistent with 

proposed 11 CFR 100.16(b) 

(redesignated from pre-BCRA section 

109.1(e)) providing that no expenditure 

by an authorized committee of a 

candidate on behalf of that candidate 

shall qualify as an independent 

expenditure. 

Comments are sought on whether the 

prohibition at pre-BCRA 11 CFR 

110.7(a)(5) should be limited to the 

circumstances identified in proposed 11 

CFR 109.36 or whether the prohibition 

should be removed completely. 

VIII. Proposed 11 CFR 109.37 What Is 

a ‘‘Party Coordinated Communication’’? 

In BCRA, Congress requires the 

Commission to promulgate new 

regulations on ‘‘coordinated 

communications’’ that are paid for by 

persons other than candidates, 

authorized committees of candidates, 

and party committees. Pub. L. 107–155, 

sec. 214(b), (c); see proposed 11 CFR 

109.21 above. Although Congress did 

not specifically direct the Commission 

to address coordinated communications 

paid for by political party committees, 

the Commission proposes to do so to 

give clear guidance to those affected by 

BCRA. 

Proposed section 109.37 would 

generally apply the same regulatory 

analysis to communications paid for by 

the political party committees that 

would be applied to communications 

paid for by other persons. See proposed 

11 CFR 109.21(a) through (e). This 

60058 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

analysis would determine when 

communications paid for by a political 

party committee would be considered to 

be coordinated with a candidate, a 

candidate’s authorized committee, or 

their agents. The Commission bases the 

proposed similarity of coordination 

standards on two Supreme Court cases, 

Colorado I and Federal Election 

Commission v. Colorado Republican 

Federal Campaign Committee, 533 U.S. 

431 (2001) (‘‘Colorado II’’). In Colorado 

I, the Supreme Court in a plurality 

opinion concluded that political parties, 

like other persons paying for political 

communications, 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 

independent expenditures to the 2 

U.S.C. 441a(d) expenditure limits. 

Colorado I, 518 U.S. at 615–616. 

Subsequently in Colorado II, the 

Supreme Court, in upholding the 

constitutionality of coordinated party 

expenditure limits at 2 U.S.C. 441a(d), 

stated that political parties are in the 

same position as other persons who 

have contribution limits potentially 

affected by coordination. Colorado II,

533 U.S. at 455. 

Comment is sought on this approach. 

Should political party committee 

communications be subject to the same 

conduct standards at proposed 11 CFR 

109.21(d) for coordination with 

candidates as are communications by 

other persons? Should the ‘‘content 

standards’’ at proposed 11 CFR 

109.21(c) be the same for political party 

committee communications as for 

communications by other persons? If 

not, how should the standards vary? 

Would such variations be confusing? 

Are any of the possible content 

standards set forth at proposed 11 CFR 

109.21(c)(4) alternatives (A) through (C) 

appropriate for political party 

committees? In light of the relationship 

between political party committees and 

candidates, should any of the conduct 

standards set forth at proposed 11 CFR 

109.21(d) be excluded from application 

to political party committee 

communications? On the other hand, in 

light of such relationship, should there 

be additional or different conduct 

standards that would only apply to 

political party committees? Should any 

exceptions apply to party committee 

communications? Should the conduct 

standards set forth at proposed 11 CFR 

109.21(d) vary depending on whether 

the party communication was made 

prior to nomination or after nomination? 

Finally, should the ‘‘content’’ standard 

of communications other than 

electioneering communications vary 

depending on whether the political 

party communication was made prior to 

nomination or after nomination? 

Following proposed 11 CFR 109.21(a), 

proposed section 109.37(a) would 

define the circumstances in which 

communications paid for by political 

party committees would be considered 

to be coordinated with a candidate, a 

candidate’s authorized committee, or 

agents thereof. Under proposed 11 CFR 

109.37(a)(1) through (3), such 

communications would be deemed to be 

‘‘party coordinated communications’’

when they were paid for by a political 

party committee or its agent, satisfy at 

least one of the content standards in 11 

CFR 109.21(c), and satisfy at least one 

of the conduct standards in 11 CFR 

109.21(d).

For the content standards for party 

coordinated communications, in 

proposed paragraph (a)(2) of section 

109.37, the Commission would refer to 

the content standards proposed in 11 

CFR 109.21(c). The Commission also 

proposes a second sentence in proposed 

paragraph (a)(2) of section 109.37 

indicating that the republication content 

standard of proposed 11 CFR 

109.21(c)(2) is evaluated under the 

conduct standard in proposed 11 CFR 

109.21(d)(6). See the discussion above 

of proposed 11 CFR 109.21(c). 

For the conduct standards for party 

coordinated communications, in 

proposed paragraph (a)(3) of section 

109.37, the Commission would refer to 

the conduct standards proposed in 11 

CFR 109.21(d). As in proposed 11 CFR 

109.21(d), agreement or formal 

collaboration would not be necessary for 

a finding that a communication is 

coordinated. See the discussion above of 

proposed 11 CFR 109.21(d) and (e). The 

Commission also proposes a second 

sentence in proposed paragraph (a)(3) of 

section 109.37 addressing circumstances 

in which the in-kind contribution 

results solely from conduct in 11 CFR 

109.21(d)(4) or (d)(5). Under these 

circumstances, the candidate would not 

receive or accept an in-kind 

contribution. See the discussion above 

regarding proposed 11 CFR 109.21(b)(2). 

Proposed 11 CFR 109.37(b) would 

explain the treatment of party 

coordinated communications. This 

paragraph would provide that political 

party committees must treat payments 

for communications coordinated with 

candidates as either in-kind 

contributions or coordinated party 

expenditures. 

The Commission would except from 

proposed 11 CFR 109.37(b) such 

payments that are otherwise excepted 

from the definitions of ‘‘contribution’’

and ‘‘expenditure’’ found at 11 CFR part 

100 subparts C and E. For example, the 

payment by a State or local committee 

of a political party of the costs of 

preparation, display, or mailing or other 

distribution incurred by such committee 

with respect to a printed slate card, 

sample ballot, palm card, or other 

printed listing(s) of three or more 

candidates for any public office for 

which an election is held in the State in 

which the committee is organized is not 

a contribution or an expenditure. 11 

CFR 100.80 and 100.140. Thus, if such 

communications were coordinated with 

candidates, the payments for such 

communications would not be treated as 

either in-kind contributions or as 

coordinated party expenditures. 

For such a payment that a political 

party committee treats as an in-kind 

contribution, proposed paragraph (b)(1) 

of section 109.37 would state that it is 

made for the purpose of influencing a 

Federal election. See the discussion 

above regarding proposed 11 CFR 

109.21(b). 

For such a payment that a political 

party committee treats as a coordinated 

party expenditure, proposed paragraph 

(b)(2) of section 109.37 would state that 

such expenditure is made pursuant to 

coordinated party expenditure authority 

under proposed 11 CFR 109.32 in 

connection with the general election 

campaign of the candidate with whom 

it was coordinated. 

Finally, proposed paragraphs (b)(1) 

and (b)(2) of section 109.37 would each 

refer to the reporting obligations flowing 

from party coordinated communications 

under 11 CFR part 104. 

Additional Proposed Regulatory 

Changes 

Proposed 11 CFR 100.57

Dissemination, Distribution, or 

Republication of Candidate Campaign 

Materials 

The FECA categorizes a payment of 

the dissemination, distribution, or 

republication of campaign materials 

created by a candidate as an 

expenditure made by the person making 

the payment. See 2 U.S.C. 441a(7)(B)(iii) 

(redesignated from pre-BCRA 2 U.S.C. 

441a(7)(B)(ii)). In addition, when such 

an expenditure is coordinated with a 

candidate, it is treated as an in-kind 

contribution received by the candidate 

with whom the communication was 

coordinated. See 2 U.S.C. 441a(7)(B)(i). 

Likewise, under BCRA, when such an 

expenditure is coordinated with a 

political party committee, it is also a 

contribution received by the political 

party committee with which it is 

coordinated. See 2 U.S.C. 441a(7)(B)(ii). 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60059

Under the pre-BCRA regulations at 11 

CFR 109.1(d)(1), payments for the 

dissemination, distribution, or 

republication of the campaign material 

count against the contribution limits of 

the person financing the dissemination, 

distribution, or republication, and 

political committees and any other 

person who is otherwise required to 

report expenditures are required to 

report the payment in the same manner 

as other expenditures, regardless of 

whether coordination occurred. A 

candidate does not incur any reporting 

obligations regarding the dissemination, 

distribution, or republication of 

campaign material by another person in 

the absence of coordination. 

The Commission’s pre-BCRA 

regulation at 11 CFR 109.1(d)(1) would 

be moved to the definition of 

contribution at proposed 11 CFR 100.57 

as part of the proposed reorganization of 

11 CFR part 109. The Commission 

would make changes to reflect 

Congress’s determination that 

dissemination, distribution, or 

republication of campaign material in 

coordination with a political party 

committee, as well as with a candidate, 

constitutes a contribution. In addition, 

the dissemination, distribution, or 

republication of campaign material 

would be coordinated if the 

dissemination, distribution, or 

republication satisfies the conduct 

standards set forth in proposed 11 CFR 

109.21(d)(6). The only other substantive 

change would be the addition of several 

exceptions explained below. The 

Commission seeks comment on the 

proposed location of the new regulation 

(that is, whether the dissemination, 

distribution, or republication of 

campaign material should be made a 

part of the definition of ‘‘contribution’’), 

and whether a corresponding provision 

should be added to the definition of an 

‘‘expenditure’’ in 11 CFR part 100, 

subpart D, to maintain a parallel 

structure with the contribution 

definition. Alternatively, given that the 

pre-BCRA statute and BCRA categorize 

dissemination, distribution, or 

republication of campaign materials as 

‘‘expenditures’’, 2 U.S.C. 

441a(a)(7)(B)(iii), the Commission seeks 

comment on whether such 

dissemination, distribution, or 

republication should be considered a 

contribution by the person paying for 

the materials absent coordination with 

the campaign. Please note that this 

alternative is not included in the text of 

the draft regulations. 

In addition, the Commission notes 

that 2 U.S.C. 441a(a)(7)(B)(iii) refers to 

‘‘campaign materials prepared by the 

candidate, his campaign committees, or 

their authorized agents,’’ but does not 

include campaign materials prepared by 

political party committees. The 

Commission requests comment on 

whether the latter campaign materials 

should be included in light of the fact 

that Congress now considers 

coordination with a political party 

committee to result in a contribution. 2 

U.S.C. 441a(a)(7)(B)(ii).

In proposed 11 CFR 100.57, the 

Commission would include new 

exceptions for different types of 

republication of campaign material so 

that they would not constitute 

contributions. In proposed 11 CFR 

100.57(b)(1), the Commission would 

make it clear that candidates and 

political party committees are permitted 

to republish or disseminate their own 

materials without making a 

contribution. Proposed paragraph (b)(2) 

would exempt the use of material when 

it is used to advocate the defeat of the 

candidate or party who prepared the 

material. For example, Person A would 

not make a contribution to Candidate B 

if Person A incorporates part of 

Candidate B’s campaign material into its 

own public communication that 

advocates the defeat of Candidate B. 

However, if the same public 

communication also urged the election 

of Candidate B’s opponent, Candidate C, 

and incorporated a picture or quote that 

had been prepared by Candidate C’s 

campaign, then the result would 

constitute a contribution to Candidate C. 

A third exception in paragraph (b)(3) 

would make it clear that campaign 

material may be republished as part of 

a bona fide news story as provided in 

11 CFR 100.73 or 11 CFR 100.132. In 

proposed paragraph (b)(4), the 

Commission would continue to allow a 

corporation or labor organization to 

make limited use of candidate materials 

in communications to its restricted 

class, as provided in 11 CFR 114.3(c)(1). 

Finally, in proposed paragraph (b)(5), 

the Commission would recognize that a 

national, State, or subordinate 

committee of a political party would 

make a coordinated party expenditure 

rather than an in-kind contribution 

when it pays for the dissemination, 

distribution, or republication of 

campaign material using coordinated 

party expenditure authority under 11 

CFR 109.32. This proposed rule is 

somewhat broader than pre-BCRA 11 

CFR 109.1(d)(2), which provided that a 

State or subordinate party committee 

could engage in such dissemination, 

distribution, or republication as agents 

designated by a national committee 

pursuant to 11 CFR 110.7(a)(4). 

The Commission seeks comments on 

whether any additional exceptions 

should be added in proposed paragraph 

(b), such as an exception for the 

republication of campaign materials in a 

non-partisan voter guide, and whether 

the proposed exceptions are 

appropriate. 

Contribution and Expenditure 

Limitations and Prohibitions 

I. Proposed 11 CFR 110.1 and 110.2 

Limits on Contributions Made to 

Political Committees Making 

Independent Expenditures 

The Commission proposes to clarify 

that the section 110.1 and 110.2 

limitations on contributions to political 

committees making independent 

expenditures would apply to 

contributions made by multicandidate 

committees and other persons to 

political party committees that make 

independent expenditures. See

proposed 11 CFR 110.1(n) and 110.2(k). 

Paragraphs 110.1(n) and 110.2(k) would 

apply to contributions by 

multicandidate committees and 

contributions by persons other than 

multicandidate committees, 

respectively. These two proposed 

paragraphs would replace pre-BCRA 

paragraphs (d)(2) of sections 110.1 and 

110.2 regarding the application of the 

contribution limits to contributions to 

committees that make independent 

expenditures. 

These sections need to be updated 

because under pre-BCRA paragraphs 

(d)(2) of each section, the Commission 

recognized that political committees 

other than party committees may make 

independent expenditures, but did not 

contemplate party committees doing so. 

See Colorado I, 518 U.S. at 618. For 

example, national party committees may 

receive contributions aggregating 

$20,000 per year from individuals, a 

contribution limit that Congress 

increased to $25,000 for contributions 

made on or after January 1, 2003. See 2 

U.S.C. 441a(a)(1)(B). Consequently, 

under the proposed new language, the 

$20,000 ($25,000) contribution limit 

would continue to apply when the 

recipient national party committee uses 

the contribution to make independent 

expenditures. The Commission notes 

that 11 CFR 110.1(h) regarding 

contributions to political committees 

supporting the same candidate, remains 

in effect and unchanged except to the 

extent that the support to candidates by 

political party committees may now 

include independent expenditures. The 

Commission requests comments on 

proposed new paragraph (n) of section 

110.1 and new paragraph (k) of section 

110.2. 

60060 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

Additional proposed changes to 11 

CFR 110.1 and 110.2 are being 

addressed in a separate rulemaking on 

BCRA’s increased contribution limits. 

See Notice of Proposed Rulemaking, 67 

FR 54366 (August 22, 2002). 

II. Proposed 11 CFR 110.7 Removed and 

Reserved 

The pre-BCRA regulations at 11 CFR 

110.7 contain the coordinated party 

expenditure limits and related 

provisions. As noted above, the 

Commission proposes to incorporate 

section 110.7, in amended form, into 11 

CFR part 109, subpart D. Specifically, 

the provisions in section 110.7 would be 

revised and redesignated as follows: 11 

CFR 110.7(a) and (b) to 11 CFR 109.32(a) 

and (b) and 109.36; section 110.7(c) to 

section 109.33; and section 110.7(d) to 

section 109.34. 

Presidential Candidate Expenditure 

Limitations 

Proposed 11 CFR 110.8 Presidential 

Candidate Expenditure Limitations 

As in proposed 11 CFR 109.32(a) and 

(b) discussed above, the Commission 

would clarify that the expenditure 

limits for publicly funded Presidential 

candidates would be increased in 

accordance with 11 CFR 110.9(c). See

proposed 11 CFR 110.8(a)(2). To 

accommodate this proposed new section 

110.8(a)(2), the Commission proposes to 

re-designate pre-BCRA paragraphs (a)(1) 

and (a)(2) as (a)(1)(i) and (a)(1)(ii), 

respectively. 

In proposed 11 CFR 110.8(a)(3), the 

Commission would reference the 

definition of ‘‘voting age population’’ at 

proposed 11 CFR 110.18. The voting age 

population is a factor in the calculation 

of expenditure limitations in 11 CFR 

110.8(a). Finally, the Commission is 

proposing additional changes to 11 CFR 

110.9(c) in a separate rulemaking. See 

Notice of Proposed Rulemaking, 67 FR 

54366 (August 22, 2002). Comment is 

sought on these proposals. 

Voting Age Population 

Proposed 11 CFR 110.18 Voting Age 

Population 

The Commission proposes a 

redesignation of pre-BCRA section 

110.9(d) regarding voting age population 

(‘‘VAP’’) to proposed 11 CFR 110.18 as 

part of a reorganization of section 110.9. 

This provision is referenced in proposed 

paragraphs 109.32(a) and (b) 

(coordinated party expenditure limits) 

and 110.8(a)(3) (presidential candidate 

expenditure limits) where the VAP is 

used as a factor in calculating the limits. 

Proposed section 110.18 would be 

revised from pre-BCRA section 110.9(d) 

only by noting the fact of, rather than 

the Commission assuring, that the 

Secretary of Commerce shall each year 

certify to the Commission and publish 

in the Federal Register an estimate of 

the VAP pursuant to 2 U.S.C. 441a(e). 

Proposed changes to the other 

provisions of section 110.9, including 

section 110.9(c) as noted above, are 

included in a separate rulemaking. See 

Notice of Proposed Rulemaking, 67 FR 

54366 (August 22, 2002). Comment is 

sought on this proposal. 

Corporate and Labor Organization 

Activity 

Proposed 11 CFR 114.4(c)(5) Voter 

Guides 

Paragraph (c)(5) of section 114.4 

pertains to voter guides paid for by 

corporations and labor organizations. 

The Commission proposes several 

changes to this paragraph to conform 

with other regulatory changes proposed 

in response to BCRA. 

The pre-BCRA version of paragraphs 

(c)(5)(i) and (ii) of section 114.4 

provides that a corporation or labor 

organization must not, among other 

things, ‘‘contact’’ a candidate in the 

preparation of a voter guide, except in 

writing. In this rulemaking, the 

Commission proposes coordination 

rules that would allow a person, such as 

a corporation or labor union, to contact 

a candidate to inquire about the 

candidate’s positions on the issues 

without a subsequent communication 

paid for by that person being deemed 

coordinated with the candidate 

(assuming there was no other evidence 

of coordination). See 109.21(f). 

Accordingly, proposed paragraphs 

(c)(5)(i) and (ii) of section 114.4 would 

be amended to delete the prohibition 

against any contact with a candidate in 

the preparation of a voter guide.

Pre-BCRA paragraph (c)(5)(ii) of 

section 114.4 provides that a 

corporation or a labor union preparing 

a voter guide may direct questions in 

writing to a candidate. In the 

coordination rules proposed in this 

rulemaking, a person, such as a 

corporation or labor union, may 

informally contact a candidate to 

inquire about the candidate’s positions 

on the issues without a subsequent 

communication paid for by that person 

being deemed coordinated with the 

candidate (assuming there was no other 

evidence of coordination). See 109.21(f). 

That is, the inquiry would not need be 

in writing. Accordingly, proposed 

paragraph (c)(5)(ii) of section 114.4 

would be amended to delete the 

requirement that contact with the 

candidate be in writing. 

The Commission would also make 

several non-substantive changes to 

proposed paragraphs (c)(5)(i) and (ii) to 

conform these provisions to the 

statutory provisions on which they are 

based. Compare 2 U.S.C. 441a(a)(7)(B) 

with 11 CFR 114.5(c)(5)(i) and (ii). 

The Commission notes that an 

appeals court in one circuit has 

invalidated portions of pre-BCRA 11 

CFR 114.4(c)(5). See Clifton v. Federal 

Election Commission, 927 F.Supp. 493 

(D. Me. 1996), modified in part and 

remanded in part, 114 F.3d 1309 (1st 

Cir. 1997), cert. denied, 522 U.S. 1108 

(1998). Subsequently, in 1999, the 

Commission received a Petition for 

Rulemaking asking the Commission to 

repeal its voter guide regulation. The 

Commission published a Notice of 

Availability. See 64 FR 46319 (Aug. 25, 

1999). The Commission’s present 

rulemaking proposes changes 

necessitated by BCRA, and the 

Commission would reserve any 

additional changes to the voter guide 

regulations to a future rulemaking. 

Comment is sought on this approach. 

Certification of No Effect Pursuant to 5 

U.S.C. 605(b) 

[Regulatory Flexibility Act] 

The Commission certifies that the 

attached proposed rules, if promulgated, 

will not have a significant economic 

impact on a substantial number of small 

entities. The basis of this certification is 

that the national, State, and local party 

committees of the two major political 

parties, and other political committees 

are not small entities under 5 U.S.C. 601 

because they are not small businesses, 

small organizations, or small 

governmental jurisdictions. Further, 

individual citizens operating under 

these rules are not small entities. 

To the extent that any political 

committee may fall within the 

definition of ‘‘small entities,’’ their 

numbers are not substantial, particularly 

the number that would coordinate 

expenditures with candidates or 

political party committees in connection 

with a Federal election. 

In addition, the small entities to 

which the rules would apply would not 

be unduly burdened by the proposed 

rules because there is no significant 

extra cost involved, as independent 

expenditures must already be reported. 

Collectively, the differential costs will 

not exceed 100 million dollars per year. 

In addition, new reporting requirements 

would not significantly increase costs, 

as they only apply to those spending 

$10,000 or more on independent 

expenditures, and the actual reporting 

requirements are the minimum 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60061

necessary to comply with the new 

statute enacted by Congress.

List of Subjects 

11 CFR Part 100

Elections. 

11 CFR Part 102

Political committees and parties, 

reporting and recordkeeping 

requirements. 

11 CFR Part 104

Campaign funds, political committees 

and parties, reporting and 

recordkeeping requirements. 

11 CFR Part 105

Document filing. 

11 CFR Part 109

Elections, reporting and 

recordkeeping requirements. 

11 CFR Part 110

Campaign funds, political committees 

and parties. 

11 CFR Part 114

Business and industry, elections, 

labor.

For the reasons set out in the 

preamble, the Federal Election 

Commission proposes to amend 

subchapter A of chapter I of title 11 of 

the Code of Federal Regulations as 

follows:

PART 100—SCOPE AND DEFINITIONS 

1. The authority citation for part 100 

would be revised to read as follows:

Authority: 2 U.S.C. 431, 434, and 438(a)(8).

2. Section 100.16 would be revised to 

read as follows:

§ 100.16 Independent expenditure (2 

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

(a) 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 in 

cooperation, consultation, or concert 

with, or at the request or suggestion of, 

a candidate, a candidate’s authorized 

committee, or their agents, or a political 

party committee or its agents. A 

communication is ‘‘made in 

cooperation, consultation, or concert 

with, or at the request or suggestion of, 

a candidate, a candidate’s authorized 

committee, or their agents, or a political 

party committee or its agents’’ if it is a 

coordinated communication under 11 

CFR 109.21 or a party coordinated 

communication under 11 CFR 109.37. 

(b) No expenditure by an authorized 

committee of a candidate on behalf of 

that candidate shall qualify as an 

independent expenditure. 

3. In § 100.19, paragraphs (b) and (d) 

would be revised to read as follows:

§ 100.19 File, filed, or filing (2 U.S.C. 

434(a)).

* * * * *

(b) Timely filed. General rule. A 

document other than those addressed in 

paragraphs (c) through (f) of this section 

is timely filed upon deposit as 

registered or certified mail in an 

established U.S. Post Office and 

postmarked no later than 11:59 p.m. 

Eastern Standard/Daylight Time of the 

day of the filing date, except that preelection reports so mailed must be 

postmarked no later than 11:59 p.m. 

Eastern Standard/Daylight Time of the 

fifteenth day before the date of the 

election. Documents sent by first class 

mail must be received by the close of 

business on the prescribed filing date to 

be timely filed.

* * * * *

(d) 48-hour and 24-hour reports of 

independent expenditures. 

(1) 48-hour reports of independent 

expenditures. A 48-hour report of 

independent expenditures under 11 

CFR 104.4(b) or 109.10(c) is timely filed 

when it is received by the Commission 

no later than 11:59 p.m. Eastern 

Standard/Daylight Time of the second 

day following the date on which 

independent expenditures aggregate 

$10,000 or more in accordance with 11 

CFR 104.4(f), any time during the 

calendar year up to and including the 

20th day before an election. 

(2) 24-hour reports of independent 

expenditures. A 24-hour report of 

independent expenditures under 11 

CFR 104.4(c) or 109.2(c) is timely filed 

when it is received by the Commission 

no later than 11:59 p.m. Eastern 

Standard/Daylight Time of the day 

following the date on which 

independent expenditures aggregate at 

least $1,000, in accordance with 11 CFR 

104.4(f), during the period less than 20 

days but more than 24 hours before an 

election. 

(3) Permissible means of filing. In 

addition to other permissible means of 

filing, a 24-hour report or 48-hour report 

of independent expenditures may be 

filed using a facsimile machine or by 

electronic mail if the filer is not 

required to file electronically in 

accordance with 11 CFR 104.18.

* * * * *

§ 100.23 [Removed and reserved] 

4. Part 100 would be amended by 

removing and reserving §100.23: 

5. Part 100, subpart B would be 

revised by adding §100.57 to read as 

follows:

§ 100.57 Dissemination, distribution, or 

republication of candidate campaign 

materials (2 U.S.C. 441a(a)(7)(B)(iii)). 

(a) Except as provided in paragraph 

(b) of this section, a payment for the 

dissemination, distribution, or 

republication, in whole or in part, of 

any broadcast or of any written, graphic, 

or other form of campaign materials 

prepared by a candidate, the candidate’s 

authorized committee, or an agent of 

any of the foregoing is a contribution to 

the candidate or political party 

committee if the dissemination, 

distribution, or republication or 

campaign materials satisfies any of the 

conduct standards set forth in 11 CFR 

109.21(d)(6) with respect to any conduct 

other than the original preparation of 

campaign materials. If the 

dissemination, distribution, or 

republication of campaign materials is 

not coordinated with a candidate or 

political party committee, then the 

payment for such dissemination, 

distribution, or republication is a 

contribution by the person making the 

payment for the purposes of that 

person’s contribution limits and 

reporting requirements. The candidate 

who prepared the campaign material 

does not receive or accept an in-kind 

contribution that results solely from the 

dissemination, distribution, or 

republication of campaign material 

originally prepared by that candidate, 

unless the dissemination, distribution, 

or republication of the campaign 

materials is coordinated with that 

candidate or a political party committee 

as a result of conduct other than the 

original preparation of campaign 

materials. 

(b) The following uses of campaign 

materials do not constitute a 

contribution to the candidate who 

originally prepared the materials: 

(1) The campaign material is 

disseminated, distributed, or 

republished by the candidate, the 

candidate’s authorized committee, or an 

agent of either of the foregoing who 

prepared that material; 

(2) The campaign material is 

incorporated into a communication that 

advocates the defeat of the candidate or 

party that prepared the material; 

(3) The campaign material is 

disseminated, distributed, or 

republished in a news story, 

commentary, or editorial exempted 

under 11 CFR 100.73 or 11 CFR 100.132; 

(4) The campaign material used 

consists of a brief quote or portions of 

materials that demonstrate a candidate’s 

60062 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

position as part of a corporation’s or 

labor organization’s expression of its 

own views to its restricted class under 

11 CFR 114.3(c)(1); or 

(5) A national political party 

committee or a State or subordinate 

political party committee pays for such 

dissemination, distribution, or 

republication of campaign materials 

using coordinated party expenditure 

authority under 11 CFR 109.32.

PART 102—REGISTRATION, 

ORGANIZATION, AND 

RECORDKEEPING BY POLITICAL 

COMMITTEES (2 U.S.C. 433) 

6. The authority citation for Part 102 

would continue to read as follows:

Authority: 2 U.S.C. 432, 433 434(a)(11), 

438(a)(8), and 441d. 

7. Section 102.6(a)(1)(ii) would be 

revised to read as follows:

§ 102.6 Transfers of funds; collecting 

agents. 

(a) * * * 

(1) * * * 

(ii) Subject to the restrictions set forth 

at 11 CFR 109.35(c), 300.10(a), 300.31, 

300.34(a) and (b), transfers of funds may 

be made without limit on amount 

between or among a national party 

committee, a State party committee and/

or any subordinate party committee 

whether or not they are political 

committees under 11 CFR 100.5 and 

whether or not such committees are 

affiliated.

* * * * *

PART 104—REPORTS BY POLITICAL 

COMMITTEES (2 U.S.C. 434) 

8. The authority citation for part 104 

would continue to read as follows:

Authority: 2 U.S.C. 431(1), 431(8), 431(9), 

432(i), 434, 438(a)(8) and (b), and 439a.

9. Section 104.4 would be revised to 

read as follows:

§ 104.4 Independent expenditures by 

political committees (2 U.S.C. 434(b), (d), 

and (g)).

(a) Regularly scheduled reporting.

Every political committee that makes 

independent expenditures must report 

all such independent expenditures on 

Schedule E in accordance with 11 CFR 

104.3(b)(3)(vii). Every person other than 

a political committee must report 

independent expenditures in 

accordance with 11 CFR 109.10. 

(b) Reports of independent 

expenditures made at any time up to 

and including the 20th day before an 

election.

(1) Independent expenditures 

aggregating less than $10,000 in a 

calendar year. Political committees 

must report on Schedule E of FEC Form 

3X at the time of their regular reports in 

accordance with 11 CFR 104.3, 104.5 

and 104.9, all independent expenditures 

aggregating less than $10,000 with 

respect to a given election any time 

during the calendar year up to and 

including the 20th day before an 

election. 

(2) Independent expenditures 

aggregating $10,000 or more in a 

calendar year. Political committees 

must report on Schedule E of FEC Form 

3X all independent expenditures 

aggregating $10,000 or more with 

respect to a given election any time 

during the calendar year up to and 

including the 20th day before an 

election. Political committees must 

ensure that the Commission receives 

these reports no later than 11:59 p.m. 

Eastern Standard/Daylight Time of the 

second day following the date on which 

a communication that constitutes an 

independent expenditure is publicly 

distributed or otherwise publicly 

disseminated. Each time subsequent 

independent expenditures relating to 

the same election aggregate an 

additional $10,000 or more, the political 

committee must ensure that the 

Commission receives a new 48-hour 

report of the subsequent independent 

expenditures. See 11 CFR 104.4(f) for 

aggregation. Each 48-hour report must 

contain the information required by 11 

CFR 104.3(b)(3)(vii) indicating whether 

the independent expenditure is made in 

support of, or in opposition to, the 

candidate involved. In addition to other 

permissible means of filing, a political 

committee may file the 48-hour reports 

under this section by any of the means 

permissible under 11 CFR 100.19(d)(3). 

(c) Reports of independent 

expenditures made less than 20 days, 

but more than 24 hours before the day 

of an election. Political committees 

must ensure that the Commission 

receives reports of independent 

expenditures aggregating $1,000 or more 

with respect to a given election, after the 

20th day, but more than 24 hours, before 

12:01 a.m. of the day of the election, no 

later than 11:59 p.m. Eastern Standard/

Daylight Time of the day following the 

date on which a communication is 

publicly distributed or otherwise 

publicly disseminated. Each time 

subsequent independent expenditures 

relating to the same election aggregate 

$1,000 or more, the political committee 

must ensure that the Commission 

receives a new 24-hour report of the 

subsequent independent expenditures. 

Each 24-hour report shall contain the 

information required by 11 CFR 

104.3(b)(3)(vii) indicating whether the 

independent expenditure is made in 

support of, or in opposition to, the 

candidate involved. Political 

committees may file reports under this 

section by any of the means permissible 

under 11 CFR 100.19(d)(3). 

(d) Verification. Political committees 

shall verify reports of independent 

expenditures filed under paragraph (b) 

or (c) of this section by one of the 

methods stated in paragraph (d)(1) or (2) 

of this section. Any report verified 

under either of these methods shall be 

treated for all purposes (including 

penalties for perjury) in the same 

manner as a document verified by 

signature. 

(1) For reports filed on paper (e.g., by 

hand delivery, U.S. Mail or facsimile 

machine), the treasurer of the political 

committee that made the independent 

expenditure shall certify, under penalty 

of perjury, the independence of the 

expenditure by handwritten signature 

immediately following the certification 

required by 11 CFR 104.3(b)(3)(vii). 

(2) For reports filed by electronic 

mail, the treasurer of the political 

committee that made the independent 

expenditure shall certify, under penalty 

of perjury, the independence of the 

expenditure by typing the treasurer’s 

name immediately following the 

certification required by 11 CFR 

104.3(b)(3)(vii). 

(e) Where to file. Political committees 

must file reports of independent 

expenditures under this section and part 

109 as set forth at paragraphs (c)(1) and 

(2) of this section. 

(1) For independent expenditures in 

support of or in opposition to, a 

candidate for President or Vice 

President: with the Commission and the 

Secretary of State for the State in which 

the expenditure is made. 

(2) For independent expenditures in 

support of, or in opposition to, a 

candidate for the Senate or the House of 

Representatives: with the Commission 

and the Secretary of State for the State 

in which the candidate is seeking 

election. 

(f) Aggregating independent 

expenditures for reporting purposes. For 

purposes of determining whether 24-

hour and 48-hour reports must be filed 

in accordance with paragraphs (b) and 

(c) of this section and 11 CFR 109.10(c) 

and (d), aggregations of independent 

expenditures must be calculated as of 

the first date during the calendar year 

on which a communication that 

constitutes an independent expenditure 

is publicly distributed or otherwise 

publicly disseminated, and as of the 

date that any such communication with 

respect to the same election is 

subsequently publicly distributed or 

otherwise publicly disseminated. Every 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60063

person must include in the aggregate 

total all disbursements for independent 

expenditures, and all enforceable 

contracts, either oral or written, 

obligating funds for disbursements for 

independent expenditures, made with 

respect to any communication that has 

been publicly distributed or otherwise 

publicly disseminated, during the 

calendar year, with respect to a given 

election for Federal office. 

10. In §104.5, paragraph (g) would be 

revised to read as follows:

§ 104.5 Filing dates (2 U.S.C. 434(a)(2)).

* * * * *

(g) Reports of independent 

expenditures.

(1) 48-hour reports of independent 

expenditures. Every person who or 

which must file a 48-hour report under 

11 CFR 104.4(b) must ensure the 

Commission receives the report no later 

than 11:59 p.m. Eastern Standard/

Daylight Time of the second day 

following the date on which a 

communication that constitutes an 

independent expenditure is publicly 

distributed or otherwise publicly 

disseminated. Each time subsequent 

independent expenditures by that 

person relating to the same election as 

that to which the previous report relates 

aggregate $10,000 or more, that person 

must ensure that the Commission 

receives a new 48-hour report of the 

subsequent independent expenditures 

no later than 11:59 p.m. Eastern 

Standard/Daylight Time of the second 

day following the date on which the 

$10,000 threshold is reached or 

exceeded. See 11 CFR 104.4(f) for 

aggregation. 

(2) 24-hour report of independent 

expenditures. Every person who or 

which must file a 24-hour report under 

11 CFR 104.4(c) must ensure that the 

Commission receives the report no later 

than 11:59 p.m. Eastern Standard/

Daylight Time of the day following the 

date on which a communication that 

constitutes an independent expenditure 

is publicly distributed or otherwise 

publicly disseminated. Each time 

subsequent independent expenditures 

by that person relating to the same 

election as that to which the previous 

report relates aggregate $1,000 or more, 

that person must ensure that the 

Commission receives a 24-hour report of 

the subsequent independent 

expenditures no later than 11:59 p.m. 

Eastern Standard/Daylight Time of the 

day following the date on which the 

$1,000 threshold is reached or 

exceeded. See 11 CFR 104.4(f) for 

aggregation. 

(3) Each 24-hour or 48-hour report of 

independent expenditures filed under 

this section shall contain the 

information required by 11 CFR 

104.3(b)(3)(vii) indicating whether the 

independent expenditure is made in 

support of, or in opposition to, the 

candidate involved. 

(4) For purposes of this part, a 

communication that is mailed to its 

intended audience is publicly 

disseminated when it is relinquished to 

the U.S. Postal Service.

* * * * *

PART 105—DOCUMENT FILING (2 

U.S.C. 432(g)) 

11. The authority citation for part 105 

would be revised to read as follows:

Authority: 2 U.S.C. 432(g), 434, 438(a)(8).

12. Section 105.2 would be revised to 

read as follows:

§ 105.2 Place of filing; Senate candidates, 

their principal campaign committees, and 

committees supporting only Senate 

candidates (2 U.S.C. 432(g)(2), 434(g)(3)). 

(a) General Rule. Except as provided 

in paragraph (b) of this section, all 

designations, statements, reports, and 

notices as well as any modification(s) or 

amendment(s) thereto, required to be 

filed under 11 CFR parts 101, 102, and 

104 by a candidate for nomination or 

election to the office of United States 

Senator, by his or her principal 

campaign committee or by any other 

political committee(s) that supports 

only candidates for nomination for 

election or election to the Senate of the 

United States shall be filed in original 

form with, and received by, the 

Secretary of the Senate, as custodian for 

the Federal Election Commission. 

(b) Exceptions. The following 

statements and reports must be filed 

with the Commission and not with the 

Secretary of the Senate, even if the 

communication refers to a Senatorial 

candidate: 

(1) 48-hour statements of 

electioneering communications; and 

(2) 24-hour and 48-hour reports of 

independent expenditures. 

13. Part 109 would be revised to read 

as follows:

PART 109—COORDINATED AND 

INDEPENDENT EXPENDITURES (2 

U.S.C. 431(17), 441a, Pub. L. 107–155 

sec. 214(c) (March 27, 2002)).

Sec.

Subpart A—Scope and Definitions 

§ 109.1 When will this part apply? 

§ 109.2 [Reserved] 

§ 109.3 Definitions.

Subpart B—Independent Expenditures 

§ 109.10 How do political committees and 

other persons report independent 

expenditures? 

§ 109.11 When is a ‘‘non-authorization 

notice’’ (disclaimer) required?

Subpart C—Coordination 

§ 109.20 What does ‘‘coordinated’’ mean? 

§ 109.21 What is a ‘‘coordinated 

communication’’? 

§ 109.22 Who is prohibited from making 

coordinated communications?

Subpart D—Special Provisions for Political 

Party Committees 

§ 109.30 How are political party committees 

treated for purposes of independent 

expenditures and coordination? 

§ 109.31 What is a ‘‘coordinated party 

expenditure’’? 

§ 109.32 What are the coordinated party 

expenditure limits? 

§ 109.33 May a political party committee 

assign its coordinated party expenditure 

limit to another political party 

committee? 

§ 109.34 When can a political party 

committee make coordinated party 

expenditures? 

§ 109.35 What are the restrictions on a 

political party making both independent 

expenditures and coordinated party 

expenditures in connection with a 

candidate? 

§ 109.36 Are there additional circumstances 

under which a political party committee 

is prohibited from making independent 

expenditures? 

§ 109.37 What is a ‘‘party coordinated 

communication’’?

Authority: 2 U.S.C. 431(17), 434(c), 441a; 

Pub. L. 155–107 214(c).

Subpart A—Scope and Definitions

§ 109.1 When will this part apply? 

This part applies to expenditures that 

are made independently from a 

candidate, an authorized committee, a 

political party committee, or their 

agents, and to those payments that are 

made in coordination with a candidate, 

a political party committee, or their 

agents. The regulations in this part 

explain the differences between the two 

kinds of payments and state how each 

type of payment must be reported and 

who must report it. In addition, subpart 

D of part 109 describes procedures and 

limits that apply only to payments, 

transfers, and assignments made by 

political party committees.

§ 109.2 [Reserved]

§ 109.3 Definitions. 

For the purposes of 11 CFR part 109 

only, agent means any person who has 

actual authority, either express or 

implied, to engage in any of the 

following activities on behalf of the 

specified persons: 

60064 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

(a) In the case of a national, State, 

district, or local committee of a political 

party, any one or more of the activities 

listed in paragraphs (a)(1) through (a)(5) 

of this section: 

(1) To request or suggest that a 

communication be created, produced, or 

distributed. 

(2) To make or authorize any 

communication described in 11 CFR 

100.29(a)(1), or to make or authorize a 

public communication that meets the 

content standard set forth in 11 CFR 

109.21(c). 

(3) To create, produce, or distribute 

any communication at the request or 

suggestion of a candidate. 

(4) To be materially involved in 

decisions regarding: 

(i) The content of the communication; 

(ii) The intended audience; 

(iii) The specific media outlet used; 

(iv) The timing or frequency of the 

communication; 

(v) The size or prominence of a 

printed communication or duration of a 

communication on a television, radio, or 

cable station or by telephone; or, 

(vi) The script of a telephone message. 

(5) To make or direct a 

communication that is created, 

produced, or distributed with the use of 

material or information derived from a 

substantial discussion about the 

communication with a candidate. 

(b) In the case of an individual who 

is a Federal candidate or an individual 

holding Federal office, any one or more 

of the activities listed in paragraphs 

(b)(1) through (b)(5) of this section:

(1) To request or suggest that a 

communication be created, produced, or 

distributed. 

(2) To make or authorize any 

communication described in 11 CFR 

100.29(a)(1), or to make or authorize a 

public communication that meets the 

content criteria set forth in 11 CFR 

109.21(c). 

(3) To request or suggest that any 

other person create, produce, or 

distribute any communication. 

(4) To be materially involved in 

decisions regarding: 

(i) The content of the communication; 

(ii) The intended audience; 

(iii) The specific media outlet used; 

(iv) The timing or frequency of the 

communication; 

(v) The size or prominence of a 

printed communication or duration of a 

communication on a television, radio, or 

cable station or by telephone; or, 

(vi) The script of a telephone message. 

(5) To provide material or information 

to assist another person in the creation, 

production, or distribution of any 

communication.

Subpart B—Independent Expenditures

§ 109.10 How do political committees and 

other persons report independent 

expenditures? 

(a) Political committees, including 

political party committees, must report 

independent expenditures under 11 

CFR 104.4. 

(b) Every person, other than a political 

committee, who makes independent 

expenditures aggregating in excess of 

$250 with respect to a given election in 

a calendar year shall file a verified 

statement, or report on FEC Form 5 with 

the Commission or Secretary of the 

Senate containing the information 

required by paragraph (e) of this section. 

Every person filing a report or statement 

under this section shall do so at the end 

of the reporting period during which 

any such independent expenditures that 

aggregate in excess of $250 is made and 

in any reporting period thereafter in 

which additional independent 

expenditures are made. 

(c) Every person, other than a political 

committee, who makes independent 

expenditures aggregating $10,000 or 

more with respect to a given election 

any time during the calendar year up to 

and including the 20th day before an 

election, must report the independent 

expenditures on FEC Form 5, or by 

signed statement if the person is not 

otherwise required to file electronically 

under 11 CFR 104.18. (See 11 CFR 

104.4(f) for aggregation). The person 

making the independent expenditures 

aggregating $10,000 or more must 

ensure that the Commission receives the 

report or statement no later than 11:59 

p.m. Eastern Standard/Daylight Time of 

the second day following the date on 

which a communication is publicly 

distributed or otherwise publicly 

disseminated. Each time subsequent 

independent expenditures relating to 

the same election aggregate an 

additional $10,000 or more, the person 

making the independent expenditures 

must ensure that the Commission 

receives a new 48-hour report of the 

subsequent independent expenditures. 

Each 48-hour report must contain the 

information required by paragraph (e)(1) 

of this section. 

(d) Every person making, after the 

20th day, but more than 24 hours before 

12:01 a.m. of the day of an election, 

independent expenditures aggregating 

$1,000 or more with respect to a given 

election must report those independent 

expenditures and ensure that the 

Commission receives the report or 

signed statement no later than 11:59 

p.m. Eastern Standard/Daylight Time of 

the day following the date on which a 

communication is publicly distributed 

or otherwise publicly disseminated. 

Each time subsequent independent 

expenditures relating to the same 

election aggregate $1,000 or more, the 

person making the independent 

expenditures must ensure that the 

Commission receives a new 24-hour 

report of the subsequent independent 

expenditures. See 11 CFR 104.4(f) for 

aggregation. Such report or statement 

shall contain the information required 

by paragraph (e) of this section. 

(e) Verified statements.

(1) Contents of verified statement. If a 

signed statement is submitted, the 

statement shall include: 

(i) The reporting person’s name, 

mailing address, occupation, and the 

name of his or her employer, if any; 

(ii) The identification (name and 

mailing address) of the person to whom 

the expenditure was made; 

(iii) The amount, date and purpose of 

each expenditure; 

(iv) A statement that indicates 

whether such expenditure was in 

support of, or in opposition to a 

candidate, together with the candidate’s 

name and office sought; 

(v) A verified certification under 

penalty of perjury as to whether such 

expenditure was made in cooperation, 

consultation or concert with, or at the 

request or suggestion of a candidate, a 

candidate’s authorized committee, or 

their agents, or a political party 

committee or its agents; and 

(vi) The identification of each person 

who made a contribution in excess of 

$200 to the person filing such report, 

which contribution was made for the 

purpose of furthering the reported 

independent expenditure. 

(2) Verification of independent 

expenditure statements and reports.

Every person shall verify reports of 

independent expenditures filed 

pursuant to the requirements of this 

section by one of the methods stated in 

paragraph (2)(i) or (ii) of this section. 

Any report verified under either of these 

methods shall be treated for all purposes 

(including penalties for perjury) in the 

same manner as a document verified by 

signature. 

(i) For reports filed on paper (e.g., by 

hand delivery, U.S. Mail or facsimile 

machine), the person who made the 

independent expenditure shall certify, 

under penalty of perjury, the 

independence of the expenditure by 

handwritten signature immediately 

following the certification required by 

paragraph (e)(1)(v) of this section.

(ii) For reports filed by electronic 

mail, the person who made the 

independent expenditure shall certify, 

under penalty of perjury, the 

independence of the expenditure by 

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60065

typing the treasurer’s name immediately 

following the certification required by 

paragraph (e)(1)(v) of this section.

§ 109.11 When is a ‘‘non-authorization 

notice’’ (disclaimer) required? 

Whenever any person makes an 

independent expenditure for the 

purpose of financing communications 

expressly advocating the election or 

defeat of a clearly identified candidate, 

such person shall comply with the 

requirements of 11 CFR 110.11.

Subpart C—Coordination

§ 109.20 What does ‘‘coordinated’’ mean? 

(a) Coordinated means made in 

cooperation, consultation or concert 

with, or at the request or suggestion of, 

a candidate, a candidate’s authorized 

committee, or their agents, or a political 

party committee or its agents. 

(b) Any expenditure that is 

coordinated within the meaning of 

paragraph (a) of this section, but is not 

made for a coordinated communication 

under 11 CFR 109.21 or a party 

coordinated communication under 11 

CFR 109.37, is an in-kind contribution 

or a coordinated party expenditure with 

respect to the candidate or political 

party committee with whom or with 

which it was coordinated, unless 

otherwise exempted under 11 CFR part 

100, subparts C or E.

§ 109.21 What is a ‘‘coordinated 

communication’’? 

(a) Definition. A communication is 

coordinated with a candidate, an 

authorized committee, or their agents, or 

a political party committee or its agents 

when the communication: 

(1) Is paid for by a person other than 

that candidate, or an authorized 

committee, a political party committee, 

or agent of any of the foregoing; 

(2) Satisfies at least one of the content 

standards in paragraph (c) of this 

section; and 

(3) Satisfies at least one of the conduct 

standards in paragraph (d) of this 

section. For a communication that 

satisfies the content standard in 

paragraph (c)(2) of this section, the 

conduct standard in paragraph (d)(6) of 

this section must be satisfied for the 

communication to be deemed 

coordinated. 

(b) Treatment as an in-kind 

contribution; Reporting.

(1) General rule. A payment for a 

communication that is coordinated with 

a candidate or political party committee 

is made for the purpose of influencing 

a Federal election, and is an in-kind 

contribution under 11 CFR 100.52(d) to 

the candidate or political party 

committee with whom or which it was 

coordinated, unless excepted under 11 

CFR part 100, subpart C. 

(2) In-kind contributions resulting 

from conduct described in paragraphs 

(d)(4) or (d)(5) of this section.

Notwithstanding paragraph (b)(1) of this 

section, the candidate, authorized 

committee, or political party committee 

with whom or which a communication 

is coordinated does not receive or 

accept an in-kind contribution that 

results from conduct described in 

paragraphs (d)(4) or (d)(5) of this 

section, unless the candidate, 

authorized committee, or political party 

committee engages in conduct described 

in paragraphs (d)(1) through (d)(3) of 

this section. 

(3) Reporting of coordinated 

communications. A political committee, 

other than a political party committee, 

that makes a coordinated 

communication must report the 

payments for the communication as a 

contribution made to the candidate or 

political party committee with whom or 

which it was coordinated and as an 

expenditure in accordance with 11 CFR 

104.3(b)(1)(v). A political party 

committee with which a communication 

paid for by another person is 

coordinated must report the usual and 

normal value of the communication as 

an in-kind contribution received and as 

an expenditure in accordance with 11 

CFR 104.13. 

(c) Content standards. Any one of the 

following types of content satisfies the 

content standard of this section: 

(1) The communication would 

otherwise be considered an 

electioneering communication under 11 

CFR 100.29; or 

(2) The communication disseminates, 

distributes, or republishes, in whole or 

in part, campaign materials prepared by 

a candidate, the candidate’s authorized 

committee, or an agent of any of the 

foregoing, unless the dissemination, 

distribution, or republication is 

excepted under 11 CFR 100.57(b); or 

(3) The public communication 

expressly advocates the election or 

defeat of a clearly identified candidate 

for Federal office; or 

Alternative A for Paragraph (c)(4) 

(4) The communication is a public 

communication, as defined in 11 CFR 

100.26, that refers to a clearly identified 

candidate for Federal office. 

Alternative B for Paragraph (c)(4) 

(4) The communication is a public 

communication, as defined in 11 CFR 

100.26, that promotes or supports or 

attacks or opposes a clearly identified 

candidate for Federal office. 

Alternative C for Paragraph (c)(4) 

(4) The communication is a public 

communication, as defined in 11 CFR 

100.26, and each of the following 

statements in paragraphs (c)(4)(i), (ii), 

and (iii) of this section are true. 

(i) The public communication is made 

120 days or fewer before a general, 

special, or runoff election, or 120 days 

or fewer before a primary or preference 

election, or a convention or caucus of a 

political party that has authority to 

nominate a candidate; 

(ii) The public communication is 

directed to voters in the jurisdiction of 

the clearly identified candidate; and 

(iii) The public communication makes 

express statements about the record or 

position or views on an issue, or the 

character, or the qualifications or fitness 

for office, or party affiliation, of a clearly 

identified Federal candidate. 

(d) Conduct standards. Any one of the 

following types of conduct satisfies the 

conduct standard of this section 

whether or not there is agreement or 

formal collaboration, as defined in 

paragraph (e) of this section: 

(1) Request or suggestion.

(i) The communication is created, 

produced, or distributed at the request 

or suggestion of a candidate or an 

authorized committee, political party 

committee, or agent of any of the 

foregoing; or 

(ii) The communication is created, 

produced, or distributed at the 

suggestion of a person paying for the 

communication and the candidate, 

authorized committee, political party 

committee, or agent of any of the 

foregoing, assents to the suggestion. 

(2) Material involvement. A candidate, 

an authorized committee, a political 

party committee, or an agent of any of 

the foregoing, is materially involved in 

decisions regarding: 

(i) The content of the communication; 

(ii) The intended audience for the 

communication; 

(iii) The means or mode of the 

communication; 

(iv) The specific media outlet used for 

the communication; 

(v) The timing or frequency of the 

communication; or 

(vi) The size or prominence of a 

printed communication, or duration of a 

communication by means of broadcast, 

cable, or satellite. 

(3) Substantial discussion. The 

communication is created, produced, or 

distributed after one or more substantial 

discussions about the communication 

between the person paying for the 

communication, or the employees or 

agents of the person paying for the 

communication, and the candidate who 

60066 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

is clearly identified in the 

communication, or his or her authorized 

committee, or his or her opponent or the 

opponent’s authorized committee, or a 

political party committee, or an agent of 

any of the foregoing. A discussion is 

substantial within the meaning of this 

paragraph if information about the 

plans, projects, activities, or needs of 

the candidate or political party 

committee is conveyed to a person 

paying for the communication, and that 

information is material to the creation, 

production, or distribution of the 

communication. 

(4) Common vendor. All of the 

following statements in paragraphs 

(d)(4)(i) through (d)(4)(iii) of this section 

are true: 

(i) The person paying for the 

communication, or an agent of such 

person, contracts with or employs a 

commercial vendor to create, produce, 

or distribute the communication; 

(ii) That commercial vendor, 

including any employee of the 

commercial vendor, has provided any of 

the following services to the candidate 

who is clearly identified in the 

communication, or his or her authorized 

committee, or his or her opponent or the 

opponent’s authorized committee, or a 

political party committee, or an agent of 

any of the foregoing, in the current 

election cycle: 

(A) Development of media strategy; 

(B) Selection of audiences; 

(C) Polling; 

(D) Fundraising; 

(E) Developing the content of a public 

communication; 

(F) Producing a public 

communication; 

(G) Identifying or developing voter 

lists, mailing lists, or donor lists; 

(H) Selecting personnel, contractors, 

or subcontractors; or 

(I) Consulting or otherwise providing 

political or media advice; and 

(iii) That commercial vendor makes 

use of or conveys to the person paying 

for the communication: 

(A) Material information about the 

plans, projects, activities, or needs of 

the candidate who is clearly identified 

in the communication, or his or her 

authorized committee, or his or her 

opponent or the opponent’s authorized 

committee, or a political party 

committee, or an agent of any of the 

foregoing; or 

(B) Material information used 

previously by the commercial vendor in 

providing services to the candidate who 

is clearly identified in the 

communication, or his or her authorized 

committee, or his or her opponent or the 

opponent’s authorized committee, or a 

political party committee, or an agent of 

any of the foregoing. 

(5) Former employee or independent 

contractor. Both of the following 

statements in paragraph (d)(5)(i) and 

(d)(5)(ii) of this section are true: 

(i) 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 

who is clearly identified in the 

communication, or his or her authorized 

committee, or his or her opponent or the 

opponent’s authorized committee, or a 

political party committee, or an agent of 

any of the foregoing, during the current 

election cycle; and, 

(ii) That former employee or 

independent contractor makes use of or 

conveys to the person paying for the 

communication: 

(A) Material information about the 

plans, projects, activities, or needs of 

the candidate who is clearly identified 

in the communication, or his or her 

authorized committee, or his or her 

opponent or the opponent’s authorized 

committee, or a political party 

committee, or an agent of any of the 

foregoing; or 

(B) Material information used by the 

former employee or independent 

contractor in providing services to the 

candidate who is clearly identified in 

the communication, or his or her 

authorized committee, or his or her 

opponent or the opponent’s authorized 

committee, or a political party 

committee, or an agent of any of the 

foregoing.

(6) Conduct pertaining to 

communications that disseminate, 

distribute, or republish campaign 

material prepared by a candidate. A 

communication that satisfies the content 

requirement of paragraph (c)(2) of this 

section shall only be considered to 

satisfy one or more of the conduct 

standards of this section if the candidate 

or authorized committee that initially 

prepared the campaign material engages 

in any of the conduct described in 

paragraphs (d)(1) through (d)(3) of this 

section with respect to the subsequent 

dissemination, distribution, or 

republication of the campaign materials. 

(e) Agreement or formal collaboration.

Agreement or formal collaboration 

between the person paying for the 

communication and the candidate 

clearly identified in the communication, 

his or her authorized committee, his or 

her opponent, or the opponent’s 

authorized committee, a political party 

committee, or an agent of any of the 

foregoing, is not required for a 

communication to be considered a 

coordinated communication. Agreement

means a mutual understanding or 

meeting of the minds on all or any part 

of the material aspects of the 

communication or its dissemination. 

Formal collaboration means planned, or 

systematically organized, work on the 

communication.

§ 109.22 Who is prohibited from making 

coordinated communications? 

Any person who is otherwise 

prohibited from making contributions or 

expenditures under any part of the Act 

or Commission regulations is prohibited 

from paying for a coordinated 

communication.

Subpart D—Special Provisions for 

Political Party Committees

§ 109.30 How are political party 

committees treated for purposes of 

coordinated and independent 

expenditures? 

Political party committees may make 

independent expenditures subject to the 

provisions in this subpart. See 11 CFR 

109.35 and 109.36. Political party 

committees may also make coordinated 

party expenditures in connection with 

the general election campaign of a 

candidate, subject to the limits and 

other provisions in this subpart. See 11 

CFR 109.31 through 11 CFR 109.35.

§ 109.31 What is a ‘‘coordinated party 

expenditure’’? 

Coordinated party expenditures

include payments made by a national 

committee of a political party, including 

a national Congressional campaign 

committee, or a State committee of a 

political party, including any 

subordinate committee of a State 

committee, under 2 U.S.C. 441a(d) for 

anything of value in connection with 

the general election campaign of a 

candidate, including party coordinated 

communications defined at 11 CFR 

109.37.

§ 109.32 What are the coordinated party 

expenditure limits? 

(a) Coordinated party expenditures in 

presidential elections.

(1) The national committee of a 

political party may make coordinated 

party expenditures in connection with 

the general election campaign of the 

party’s candidate for President of the 

United States affiliated with the party. 

(2) The coordinated party 

expenditures shall not exceed an 

amount equal to two cents multiplied by 

the voting age population of the United 

States. See 11 CFR 110.18. This 

limitation shall be increased in 

accordance with 11 CFR 110.17. 

(3) Any coordinated party 

expenditure under paragraph (a) of this 

section shall be in addition to—

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60067

(i) Any expenditure by a national 

committee of a political party serving as 

the principal campaign committee of a 

candidate for President of the United 

States; and 

(ii) Any contribution by the national 

committee to the candidate permissible 

under 11 CFR 110.1 or 110.2. 

(4) Any coordinated party 

expenditures made by the national 

committee of a political party pursuant 

to paragraph (a) of this section, or made 

by any other party committee 

designated by a national committee of a 

political party under 11 CFR 109.33, on 

behalf of that party’s presidential 

candidate shall not count against the 

candidate’s expenditure limitations 

under 11 CFR 110.8. 

(b) Coordinated party expenditures in 

other Federal elections.

(1) The national committee of a 

political party, and a State committee of 

a political party, including any 

subordinate committee of a State 

committee, may each make coordinated 

party expenditures in connection with 

the general election campaign of the 

party’s candidate for Federal office in 

that State. 

(2) The coordinated party 

expenditures shall not exceed: 

(i) In the case of a candidate for 

election to the office of Senator, or of 

Representative from a State which is 

entitled to only one Representative, the 

greater of—

(A) Two cents multiplied by the 

voting age population of the State (see

11 CFR 110.18); or 

(B) Twenty thousand dollars. 

(ii) In the case of a candidate for 

election to the office of Representative, 

Delegate, or Resident Commissioner in 

any other State, $10,000. 

(3) The limitations in paragraph (b)(2) 

of this section shall be increased in 

accordance with 11 CFR 110.17(c). 

(4) Any coordinated party 

expenditure under paragraph (b) of this 

section shall be in addition to any 

contribution by a political party 

committee to the candidate permissible 

under 11 CFR 110.1 or 110.2.

§ 109.33 May a political party committee 

assign its coordinated party expenditure 

limit to another political party committee? 

(a) Except as provided in 11 CFR 

109.35(c), the national committee of a 

political party and a State committee of 

a political party, including any 

subordinate committee of a State 

committee, may assign its authority to 

make coordinated party expenditures 

authorized in 11 CFR 109.32 to another 

political party committee, provided that 

before the coordinated party 

expenditure is made, the national or 

State committee specifies in writing to 

the assigned political party committee 

the amount the assigned political party 

committee may spend.

(b) For purposes of the coordinated 

party expenditure limits, State 

committee includes a subordinate 

committee of a State committee and 

includes a district or local committee. 

State committees and subordinate State 

committees and district or local 

committees combined shall not exceed 

the coordinated party expenditure limits 

set forth in 11 CFR 109.32. The State 

committee shall administer the 

limitation in one of the following ways: 

(1) The State committee shall be 

responsible for insuring that the 

coordinated party expenditures of the 

entire party organization are within the 

coordinated party expenditure limits, 

including receiving reports from any 

subordinate committee of a State 

committee or district or local committee 

making coordinated party expenditures 

under 11 CFR 109.32, and filing 

consolidated reports showing all 

coordinated party expenditures in the 

State with the Commission; or 

(2) Any other method, submitted in 

advance and approved by the 

Commission, that permits control over 

coordinated party expenditures.

§ 109.34 When may a political party 

committee make coordinated party 

expenditures? 

A political party committee 

authorized to make coordinated party 

expenditures may make such 

expenditures in connection with the 

general election campaign before or after 

its candidate has been nominated. All 

pre-nomination coordinated party 

expenditures shall be subject to the 

coordinated party expenditure 

limitations of this subpart, whether or 

not the candidate on whose behalf they 

are made receives the party’s 

nomination.

§ 109.35 What are the restrictions on a 

political party committee making both 

independent expenditures and coordinated 

party expenditures in connection with the 

general election of a candidate? 

(a) Applicability. For the purposes of 

this subpart: 

(1) The national committee of a given 

political party, all Congressional 

campaign committees of that political 

party, and all political committees 

established, financed, maintained, or 

controlled by any of the foregoing, 

together comprise a political party 

group. 

(2) The State committee of a given 

political party in a given State, all 

subordinate committees of that State 

committee, and all district or local 

committees of that political party within 

that State that meet the definition of 

political committee under 11 CFR 100.5, 

together comprise a political party 

group. See 11 CFR 100.14. 

(b) Restrictions on certain 

expenditures. On or after the date on 

which a political party nominates a 

candidate for election to Federal office, 

no political committee within a given 

political party group may do any of the 

following during the remainder of the 

election cycle: 

(1) Make any coordinated party 

expenditure under 11 CFR 109.32 in 

connection with the general election 

campaign of that candidate at any time 

after any political committee within that 

political party group makes any 

independent expenditure with respect 

to that candidate; or 

(2) Make any independent 

expenditure with respect to that 

candidate at any time after any political 

committee within that political party 

group makes any coordinated party 

expenditure under 11 CFR 109.32 in 

connection with the general election 

campaign of that candidate. 

(c) Restrictions on certain transfers 

and assignments. On or after the date 

that a political committee within a 

political party group makes any 

coordinated party expenditure under 11 

CFR 109.32 in connection with the 

general election campaign of a 

candidate, no political committee 

within that same political party group 

may do any of the following during the 

remainder of the election cycle: 

(1) Transfer any funds to, or receive 

a transfer of any funds from, any 

political committee within another 

political party group if any political 

committee within that other political 

party group has made or intends to 

make an independent expenditure with 

respect to that candidate; or 

(2) Assign all or any portion of its 

authority to make coordinated party 

expenditures under 11 CFR 109.32 in 

connection with the general election 

campaign of that candidate to any 

political committee within another 

political party group if any political 

committee within that other political 

party group has made or intends to 

make an independent expenditure with 

respect to that candidate. See 11 CFR 

109.33. 

(d) Definitions. For the purposes of 

this section: 

(1) An independent expenditure made 

by a political party committee with 

respect to a candidate includes 

independent expenditures expressly 

advocating the election of that party’s 

candidate, as well as independent 

expenditures expressly advocating the 

60068 Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 

defeat of any other candidate seeking 

nomination for election, or election, to 

the Federal office sought by that party’s 

candidate. 

(2) Election cycle has the meaning in 

11 CFR 100.3(b), except that the election 

cycle ends on the date of the general 

election runoff, if any.

§ 109.36 Are there additional 

circumstances under which a political party 

committee is prohibited from making 

independent expenditures? 

The national committee of a political 

party must not make independent 

expenditures in connection with the 

general election campaign of a 

candidate for President of the United 

States if the national committee of a 

political party is designated as the 

authorized committee of its presidential 

candidate pursuant to 11 CFR 9002.1(c).

§ 109.37 What is a ‘‘party coordinated 

communication’’? 

(a) Definition. A political party 

communication is coordinated with a 

candidate, a candidate’s authorized 

committee, or their agents, when the 

communication satisfies the conditions 

set forth in paragraphs (a)(1), (a)(2), and 

(a)(3) of this section. 

(1) The communication is paid for by 

a political party committee or its agent. 

(2) The communication satisfies at 

least one of the content standards in 11 

CFR 109.21(c). For a communication 

that satisfies the content standard in 11 

CFR 109.21(c)(2), the conduct standard 

in 11 CFR 109.21(d)(6) must be satisfied 

before the communication shall be 

deemed coordinated. 

(3) The communication satisfies at 

least one of the conduct standards in 11 

CFR 109.21(d). Notwithstanding 

paragraph (b)(1) of this section, the 

candidate with whom a party 

coordinated communication is 

coordinated does not receive or accept 

an in-kind contribution that results from 

conduct described in 11 CFR 

109.21(d)(4) or (d)(5), unless the 

candidate or authorized committee 

engages in conduct described in 11 CFR 

109.21 (d)(1) through (d)(3). 

(b) Treatment of a party coordinated 

communication. A payment by a 

political party committee for a 

communication that is coordinated with 

a candidate, and that is not otherwise 

exempted under 11 CFR part 100, 

subpart C or E, must be treated by the 

political party committee making the 

payment as either: 

(1) An in-kind contribution for the 

purpose of influencing a Federal 

election under 11 CFR 100.52(d) to the 

candidate with whom it was 

coordinated, which must be reported 

under 11 CFR part 104; or 

(2) A coordinated party expenditure 

pursuant to coordinated party 

expenditure authority under 11 CFR 

109.32 in connection with the general 

election campaign of the candidate with 

whom it was coordinated, which must 

be reported under 11 CFR part 104.

PART 110—CONTRIBUTION AND 

EXPENDITURE LIMITATIONS AND 

PROHIBITIONS 

14. The authority citation for part 110 

would be revised to read as follows:

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

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

441f, 441g, 441h, and 441k. 

15. In §110.1, paragraph (d) would be 

revised and paragraph (n) would be 

added to read as follows:

§ 110.1 Contributions by persons other 

than multicandidate political committees. (2 

U.S.C. 441a(a)(2)).

* * * * *

(d) Contributions to other political 

committees. No person shall make 

contributions to any other political 

committee in any calendar year which, 

in the aggregate, exceed $5,000.

* * * * *

(n) Contributions to committees 

making independent expenditures. The 

limitations on contributions of this 

section also apply to contributions made 

to political committees making 

independent expenditures under 11 

CFR part 109. 

16. In §110.2, paragraph (d) would be 

revised and paragraph (k) would be 

added to read as follows:

§ 110.2 Contributions by multicandidate 

political committees.

* * * * *

(d) Contributions to other political 

committees. No multicandidate political 

committee shall make contributions to 

any other political committee in any 

calendar year which, in the aggregate, 

exceed $5,000.

* * * * *

(k) Contributions to multicandidate 

political committees making 

independent expenditures. The 

limitations on contributions of this 

section also apply to contributions made 

to multicandidate political committees 

making independent expenditures 

under 11 CFR part 109.

§ 110.7 [Removed and reserved] 

17. Section 110.7 would be removed 

and reserved. 

18. In §110.8, paragraph (a) would be 

amended as follows: 

(a) The introductory text would be 

redesignated as paragraph (a)(1); 

(b) Paragraph (a)(1) would be 

redesignated as paragraph (a)(1)(i); 

(c) Paragraph (a)(2) would be 

redesignated as paragraph (a)(1)(ii); 

(d) A new paragraph (a)(2) would be 

added to read as follows; and 

(e) A paragraph (a)(3) would be added 

to read as follows:

§ 110.8 Presidential candidate expenditure 

limitations. 

(a) * * * 

(2) The expenditure limitations in 

paragraph (a)(1) of this section shall be 

increased in accordance with 11 CFR 

110.9(c). 

(3) Voting age population is defined at 

11 CFR 110.18.

* * * * *

19. In part 110 §110.18 would be 

added to read as follows:

§ 110.18 Voting age population. 

There is annually published by the 

Department of Commerce in the Federal 

Register an estimate of the voting age 

population based on an estimate of the 

voting age population of the United 

States, of each State, and of each 

Congressional district. The term voting 

age population means resident 

population, 18 years of age or older.

PART 114—CORPORATE AND LABOR 

ORGANIZATION ACTIVITY 

20. The authority citation for part 114 

would continue to read as follows:

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

432, 434(a)(11), 437d(a)(8), 438(a)(8), and 

441b. 

21. In section 114.4, paragraphs 

(c)(5)(i) and (c)(5)(ii)(A) would be 

revised to read as follows:

§ 114.4 Disbursements for 

communications beyond the restricted 

class in connection with a Federal election. 

* * * 

(c) Communications by a corporation 

or labor organization to the general 

public. 

* * * 

(5) Voter guides. 

* * * 

(i) The corporation or labor 

organization must not act in 

cooperation, consultation, or concert 

with or at the request or suggestion of 

the candidates, the candidates’

committees or agents regarding the 

preparation, contents and distribution of 

the voter guide, and no portion of the 

voter guide may expressly advocate the 

election or defeat of one or more clearly 

identified candidate(s) or candidates of 

any clearly identified political party. 

(ii) (A) The corporation or labor 

organization must not act in 

cooperation, consultation, or concert 

with or at the request or suggestion of 

the candidates, the candidates’

Federal Register / Vol. 67, No. 185 / Tuesday, September 24, 2002 / Proposed Rules 60069

committees or agents regarding the preparation, contents and distribution of 

the voter guide;

* * * * *

Dated: September 13, 2002. 

Scott E. Thomas, 

Commissioner, Federal Election Commission.

[FR Doc. 02–23813 Filed 9–23–02; 8:45 am] 

BILLING CODE 6715–01–P