Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Rules and Regulations 24375 

1Public Law 107–155, 116 Stat. 81 (2002). 

2The amount limitations on contributions 

depend on the type of contributor and the recipient. 

See 2 U.S.C. 441a(a)(1), (2), and (3). For example, 

an individual and a non-multicandidate PAC may 

each contribute up to $2,400 per election to a 

candidate, up to $5,000 per calendar year to a PAC, 

and up to $10,000 per year to a State party 

committee (or to a State party’s respective district 

and local party committees, which share the State 

party committee’s combined limit). A 

multicandidate PAC, by contrast, may contribute up 

to $5,000 per election to a candidate, up to $5,000 

per calendar year to a PAC, and up to $5,000 per 

calendar year to a State party committee (or to a 

State party’s respective district and local party 

committees, which share the State party 

committee’s combined limit). Sources prohibited 

from making contributions under the Act include 

national banks, corporations, labor organizations, 

and foreign nationals. See 2 U.S.C. 441a, 441b, and 

441e; see also 2 U.S.C. 441c (government 

contractors) and 441f (contributions made in the 

name of another). Furthermore, funds raised in 

connection with an election for Federal office are 

subject to the reporting requirements of the Act. See 

2 U.S.C. 441i(e)(1)(A). 

3 ‘‘Levin funds’’ are funds raised by State, district, 

or local party committees pursuant to the 

restrictions in 11 CFR 300.31 and disbursed subject 

to the restrictions in 11 CFR 300.32. See 11 CFR 

300.2(i). 

FEDERAL ELECTION COMMISSION 

11 CFR Part 300 

[Notice 2010–11] 

Participation by Federal Candidates 

and Officeholders at Non-Federal 

Fundraising Events 

AGENCY: Federal Election Commission. 

ACTION: Final rules. 

SUMMARY: The Federal Election 

Commission (‘‘Commission’’) is revising 

its rules regarding appearances by 

Federal officeholders and candidates at 

State, district, and local party 

fundraising events under the Federal 

Election Campaign Act of 1971, as 

amended. Consistent with the decision 

of the U.S. Court of Appeals for the 

District of Columbia Circuit in Shays v. 

FEC, Federal candidates and 

officeholders may no longer speak at 

State, district, and local party 

fundraising events ‘‘without restriction 

or regulation.’’ The revised rules address 

participation by Federal candidates and 

officeholders at all non-Federal 

fundraising events that are in 

connection with an election for Federal 

office or any non-Federal election and 

in related publicity. 

DATES: Effective Date: These rules are 

effective on June 4, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy L. Rothstein, Assistant General 

Counsel, or Attorneys, Mr. David C. 

Adkins or Mr. Neven F. Stipanovic, 999 

E Street, NW., Washington, DC 20463, 

(202) 694–1650 or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: The 

Bipartisan Campaign Reform Act of 

2002 1 (‘‘BCRA’’) contained extensive 

and detailed amendments to the Federal 

Election Campaign Act of 1971, as 

amended, 2 U.S.C. 431 et seq. (‘‘the 

Act’’). The Commission promulgated a 

number of rules to implement BCRA, 

including rules at 11 CFR 300.64 

regarding Federal candidate and 

officeholder solicitations at State, 

district, and local party committee 

fundraising events. The Court of 

Appeals for the District of Columbia 

Circuit found aspects of these rules 

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

(D.C. Cir. 2008) (‘‘Shays III’’). The 

Commission is revising its rules at 11 

CFR 300.64 to implement the Shays III 

decision. 

I. Background Information 

A. BCRA 

In 2002, Congress amended the Act by 

restricting the fundraising activity of 

Federal candidates and officeholders, 

their agents, and entities directly or 

indirectly established, financed, 

maintained, controlled by, or acting on 

behalf of, Federal candidates or 

officeholders. See BCRA at Section 

323(e) (codified at 2 U.S.C. 441i(e)). 

These persons may not ‘‘solicit, receive, 

direct, transfer or spend’’ funds in 

connection with an election for Federal 

office or any non-Federal election 

unless the funds comply with the 

amount limitations and source 

prohibitions of the Act.2 See 2 U.S.C. 

441i(e)(1)(A) and (e)(1)(B); 11 CFR 

300.61 and 300.62. Furthermore, 

Congress prohibited State, district and 

local party committees from accepting 

or using as Levin funds 3 any funds that 

have been solicited, received, directed, 

transferred, or spent by or in the name 

of Federal candidates and officeholders. 

Thus, Federal candidates and 

officeholders were effectively prohibited 

from raising Levin funds. See 2 U.S.C. 

441i(b)(2)(C)(i); 11 CFR 300.31(e). 

As one principal BCRA sponsor 

noted, ‘‘The basic rule in the bill is that 

federal candidates and officials cannot 

raise non-federal (or soft) money 

donations—that is, funds that do not 

comply with federal contribution limits 

and source prohibitions.’’ 148 Cong. Rec. 

H407 (daily ed. Feb. 13, 2002) 

(statement of Rep. Shays). As that ban 

related to party committees, another of 

BCRA’s main sponsors noted: ‘‘The rule 

here is simple: Federal candidates and 

officeholders cannot solicit soft money 

funds, funds that do not comply with 

Federal contribution limits and source 

prohibitions, for any party committee— 

national, State, or local.’’ 148 Cong. Rec. 

S2139 (daily ed. March 20, 2002) 

(statement of Sen. McCain). 

Notwithstanding these restrictions, 

though, Section 323(e)(3) of BCRA states 

explicitly that Federal candidates and 

officeholders are permitted to ‘‘attend, 

speak, or be a featured guest at a 

fundraising event for a State, district, or 

local committee of a political party.’’ See 

2 U.S.C. 441i(e)(3). 

B. 2002 Rulemaking 

In 2002, the Commission commenced 

a rulemaking to establish rules 

governing Federal candidate and 

officeholder participation in State, 

district, and local party committee 

fundraising events. The Commission 

proposed alternative interpretations of 2 

U.S.C. 441i(e)(3). One interpretation 

would have allowed Federal candidates 

and officeholders only to attend, speak, 

or be a featured guest at State, district, 

and local party committee fundraising 

events, but, consistent with the Act’s 

prohibition on the solicitation of funds 

outside the amount limitations and 

source prohibitions of the Act by 

Federal candidates and officeholders, 

would have prohibited those persons 

from soliciting, receiving, directing, 

transferring, or spending funds or 

participating in any other fundraising 

aspect of a State, district, or local party 

committee fundraising event. See Notice 

of Proposed Rulemaking on Prohibited 

and Excessive Contributions; NonFederal Funds or Soft Money, 67 FR 

35654, 35672, 35688 (May 20, 2002) 

(‘‘2002 NPRM’’). 

An alternative interpretation 

proposed a ‘‘total exemption from the 

general solicitation ban.’’ 2002 NPRM at 

35672–73; see also 2 U.S.C. 

441i(e)(1)(B); 11 CFR 300.62. Under this 

interpretation, Federal candidates and 

officeholders would be permitted to 

‘‘speak freely at [party fundraising 

events] without restriction or 

regulation.’’ 2002 NPRM at 35672–73. 

The Commission separately explored 

how 2 U.S.C. 441i(e)(3)—specifically, its 

reference to ‘‘featured guests’’—affected 

the role that Federal candidates and 

officeholders could play in publicizing 

State, district, and local party committee 

events. See 2002 NPRM at 35673. For 

example, the Commission sought 

comment on whether this provision of 

BCRA allowed Federal candidates and 

officeholders to be named in invitation 

materials and to appear as members of 

a host committee. Id. 

The Commission concluded that 

Section 441i(e)(3) was a total exemption 

from the general solicitation ban. Under 

the Commission’s regulation, Federal 

candidates and officeholders were 

permitted to attend, speak, and appear 


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as featured guests at State, district, and 

local party committee fundraising 

events ‘‘without restriction or 

regulation.’’ See Final Rules on 

Prohibited and Excessive Contributions; 

Non-Federal Funds or Soft Money, 67 

FR 49064, 49108 (July 29, 2002) (‘‘2002 

Final Rule’’); 11 CFR 300.64(b). The 

Commission did not, however, interpret 

2 U.S.C. 441i(e)(3) to allow unrestricted 

participation in publicity by Federal 

candidates and officeholders. Indeed, 

the Commission concluded that Federal 

candidates and officeholders were 

‘‘prohibited from serving on ‘host 

committees’ for a party fundraising 

event or from personally signing a 

solicitation in connection with a State, 

local, or district party fundraising event 

on the basis that these pre-event 

activities are outside the permissible 

activities* * * flowing from a Federal 

candidate’s or officeholder’s appearance 

or attendance at the event.’’ See 2002 

Final Rule at 49108. 

C. Shays I 

The Commission’s 2002 regulation 

implementing 2 U.S.C. 441i(e)(3) was 

challenged in Shays v. FEC, 337 F. 

Supp. 2d 28 (D.D.C. 2004) (‘‘Shays I’’). 

The district court held that the meaning 

of 2 U.S.C. 441i(e)(3) was ambiguous, 

and that the Commission’s regulation 

was not necessarily contrary to 

congressional intent. Shays I at 90 

(applying Chevron U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 

837 (1984)). And, while the court 

acknowledged that the regulation 

created ‘‘the potential for abuse,’’ it did 

not find that the regulation unduly 

compromised BCRA’s purpose such that 

it was not entitled to deference from the 

court. Id. at 91. The court did, however, 

find that the Commission’s explanation 

of the rule was inadequate and, 

therefore, in violation of the 

Administrative Procedure Act, 5 U.S.C. 

553. Shays I at 92–93. The Commission 

did not challenge this holding by the 

district court. 

D. 2005 Rulemaking 

Upon remand, the Commission 

commenced a rulemaking to implement 

the Shays I district court’s opinion. See 

Revised Explanation and Justification, 

Candidate Solicitation at State, District 

and Local Party Fundraising Events, 70 

FR 37649 (June 30, 2005) (‘‘2005 Revised 

E&J’’). This rulemaking provided 

additional explanation and justification 

of the 2002 Final Rule, but it did not 

change the text of that rule. The 

Commission, as it did in 2002, 

concluded that 2 U.S.C. 441i(e)(3) was 

a total exemption from the general 

solicitation ban. Thus, Federal 

candidates and officeholders could still 

attend, speak, and appear as featured 

guests at State, district, and local party 

committee fundraising events ‘‘without 

restriction or regulation.’’ See 2005 

Revised E&J at 37650–51. 

E. Shays III 

Against this backdrop, the 

Commission’s rule implementing 2 

U.S.C. 441i(e)(3) was again challenged 

in court. The District Court for the 

District of Columbia upheld the 

Commission’s regulation. Shays v. FEC, 

508 F. Supp. 2d. 10 (D.D.C. 2007). 

On appeal, however, the United States 

Court of Appeals for the District of 

Columbia Circuit reversed the district 

court, concluding that the total 

exemption from the general solicitation 

ban ‘‘allows what BCRA directly 

prohibits.’’ Shays III at 933. In 

addressing the Commission’s regulation, 

the Court first concluded that 2 U.S.C. 

441i(e)(3) did not create an ambiguity in 

the law, but should be read as ‘‘merely 

clarif[ying] that * * * federal 

candidates may still ‘attend, speak, or be 

a featured guest’ at State party events 

where soft money is being raised, which 

the statute might otherwise be read as 

forbidding.’’ Id. The court then held that 

the Commission had ‘‘no basis’’ to read 

2 U.S.C. 441i(e)(3) as creating ‘‘an 

implied fourth exception’’ to the 

solicitation restrictions at Section 

441i(e)(1), given that Congress had 

explicitly enumerated the instances in 

which Federal candidates and 

officeholders could ‘‘solicit’’ funds 

outside BCRA’s restrictions. Id. at 933– 

34. The court found compelling the 

specific language in the statute—noting 

that ‘‘Congress repeatedly used the term 

‘solicit’ and ‘solicitation’ in Section 

441i—over a dozen times—yet chose not 

to do so in Section 441i(e)(3).’’ 

F. Advisory Opinions 

The Commission has also issued 

several advisory opinions regarding 

aspects of participation by Federal 

candidates and officeholders in nonFederal fundraising events not 

specifically addressed by the Act and 

regulations. In particular, the 

Commission has provided guidance on 

the extent to which Federal candidates 

and officeholders may participate in 

non-Federal fundraising events for 

entities other than State, district, and 

local party committees and the degree to 

which that participation can be 

publicized before such an event. 

In Advisory Opinions 2003–02 

(Cantor) and 2003–36 (Republican 

Governors Association), the 

Commission stated that a Federal 

candidate or officeholder may attend 

and speak at non-Federal fundraising 

events for State and local candidates 

and other non-Federal political 

organizations, even if non-Federal funds 

are being raised at the event. The 

Commission concluded that this type of 

participation would not violate BCRA’s 

restrictions on soliciting funds outside 

the limits and prohibitions of the Act 

because attending such an event or 

giving a speech at such an event is not 

a solicitation under Commission 

regulations. 

In those same advisory opinions, the 

Commission also determined that 

Federal candidates and officeholders 

may solicit funds at events at which 

non-Federal funds are being raised if 

their solicitations are limited to funds 

that comply with the amount limitations 

and source prohibitions of the Act. To 

ensure that these solicitations are 

properly limited, Federal candidates 

and officeholders have had to either (1) 

make a specific solicitation such as ‘‘I 

am soliciting $500 from individuals 

only,’’ or (2) condition a general 

solicitation with a disclaimer indicating 

that the solicitation is only for funds 

within the limitations and prohibitions 

of the Act. This disclaimer may be made 

orally by the Federal candidate or 

officeholder or, alternatively, in writing 

by posting at the event a clear and 

conspicuous notice limiting the 

solicitation. 

The Commission also issued several 

advisory opinions addressing the role 

that Federal candidates and 

officeholders may play in publicizing 

non-Federal fundraising events for 

State, district, and local party 

committees and other non-Federal 

entities. See Advisory Opinions 2003– 

03 (Cantor), 2003–36 (Republican 

Governors Association), and 2007–11 

(California State Party Committees). The 

Commission reasoned that if publicity 

does not contain a solicitation, then it 

is not subject to BCRA’s solicitation 

restrictions. Id. If the publicity does 

contain a solicitation, and the Federal 

candidate or officeholder consents to be 

featured or appear in the publicity, then 

the publicity must contain a clear and 

conspicuous disclaimer limiting the 

solicitation to funds compliant with the 

amount limitations and source 

prohibitions of the Act. See Advisory 

Opinions 2003–03 (Cantor), and 2003– 

36 (Republican Governors Association). 

The Commission made clear, however, 

that Federal candidates and 

officeholders may not solicit funds in 

excess of the limitations and 

prohibitions of the Act and then qualify 

that impermissible solicitation with a 

limiting disclaimer. See Advisory 


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Opinion 2003–36 (Republican 

Governors Association). 

The Commission was unable to 

resolve whether a Federal candidate or 

officeholder could be named as 

honorary chairperson or featured 

speaker in a solicitation for non-Federal 

funds that is not otherwise signed by the 

Federal candidate or officeholder. See 

Advisory Opinions 2003–36 

(Republican Governors Association) and 

2007–11 (California State Party 

Committees). In addition, the 

Commission was unable to resolve 

whether a Federal candidate or 

officeholder may be named as a featured 

speaker on publicity that is mailed with 

(e.g., in the same envelope as) a 

solicitation for non-Federal funds that 

does not name a Federal candidate or 

officeholder. See Advisory Opinion 

2007–11 (California State Party 

Committees). 

G. Present Rulemaking 

In response to the circuit court’s 

decision in Shays III, the Commission 

published a Notice of Proposed 

Rulemaking on December 7, 2009. See 

Notice of Proposed Rulemaking on 

Participation by Federal Candidates and 

Officeholders at Non-Federal 

Fundraising Events, 74 FR 64016 (Dec. 

7, 2009) (‘‘NPRM’’). The NPRM proposed 

three alternative revisions to the 

Commission’s rule at 11 CFR 300.64. 

The first alternative proposed a surgical 

revision to the rule, striking the 

‘‘without restriction or regulation’’ 

language but leaving the other language 

unchanged. The other two alternatives 

effected the same change but also 

proposed new rules governing Federal 

candidate and officeholder participation 

in all non-Federal fundraising events— 

those for State, district, and local party 

committees as well as other entities, 

including State and local candidates 

and State political committees and 

organizations—and related publicity. 

The initial public comment period for 

the NPRM closed on February 8, 2010, 

and a reply comment period concluded 

on February 22, 2010. In total, the 

Commission received seven comments 

(six initial comments and one reply 

comment) from seven commenters. The 

Commission held a public hearing on 

the proposed rules on March 16, 2010, 

at which four witnesses testified. All 

comments and a public transcript of the 

hearing are available at http://

www.fec.gov/law/

law_rulemakings.shtml

#solicitationshays3. For purposes of this 

document, the terms ‘‘comment’’ and 

‘‘commenter’’ apply to both written 

comments and oral testimony at the 

public hearing. 

These final rules address participation 

by Federal candidates and officeholders 

at all fundraising events in connection 

with an election for Federal office or 

any non-Federal election—both those 

for State, district, and local party 

committees and those for other 

entities—at which funds outside the 

amount limitations and source 

prohibitions of the Act, or Levin funds, 

are solicited, even if funds that comply 

with the amount limitations and source 

prohibitions are also solicited at the 

event. The final rules cover 

participation by Federal candidates and 

officeholders at the event as well as 

participation by Federal candidates and 

officeholders in publicizing the event. 

Importantly, they set forth the manner 

in which Federal candidates, 

officeholders, and their agents can be 

involved in such activities without 

making a solicitation of funds outside 

the amount limitations and source 

prohibitions of the Act. 

Under the APA, 5 U.S.C. 553(d), and 

the Congressional Review of Agency 

Rulemaking Act, 5 U.S.C. 801(a)(1), 

agencies must submit final rules to the 

Speaker of the House of Representatives 

and the President of the Senate and 

publish them in the Federal Register at 

least 30 calendar days before they take 

effect. The final rules that follow were 

transmitted to Congress on April 30, 

2010. 

II. Explanation and Justification 

The Commission is amending 11 CFR 

300.64 in response to the circuit court’s 

decision in Shays III. In the NPRM, the 

Commission proposed three alternative 

rules. Alternative 1 would have 

removed the ‘‘without restriction or 

regulation’’ language from 11 CFR 

300.64 pursuant to the decision of the 

Shays III court, and would have left the 

rest of the rule largely intact. Under 

Alternative 1, 11 CFR 300.64 would 

have continued to address only 

fundraising events for State, district, 

and local party committees. 

Alternatives 2 and 3 proposed more 

extensive revisions of 11 CFR 300.64. 

Like Alternative 1, and in response to 

the court of appeals’ decision, both 

Alternatives 2 and 3 would have 

removed the ‘‘without restriction or 

regulation’’ language from 11 CFR 

300.64. Unlike Alternative 1, 

Alternatives 2 and 3 also proposed 

addressing more broadly participation 

by Federal candidates and officeholders 

at all fundraising events at which funds 

outside the limits and prohibitions of 

the Act are raised (‘‘non-Federal 

fundraising events’’), and not just party 

committee events. Alternatives 2 and 3 

proposed detailed guidance on Federal 

candidate and officeholder participation 

at non-Federal fundraising events. In 

addition, the alternatives proposed 

guidance on the manner in which 

Federal candidates and officeholders 

could participate in publicizing such 

events. While Alternatives 2 and 3 

addressed the same range of activities, 

their treatment of those activities 

differed. Alternative 2 proposed a single 

set of rules for all non-Federal 

fundraising events and related publicity; 

it did not distinguish State, district, and 

local party events from other nonFederal fundraising events. Alternative 

3, though, proposed two different 

standards: One for State, district, and 

local party committee fundraising 

events and another for non-party 

fundraising events. 

The contrasting approaches in 

Alternatives 2 and 3 were rooted in 

differing interpretations of 2 U.S.C. 

441i(e)(3), particularly in the wake of 

the Shays III decision. Alternative 2 was 

predicated on the statement in the 

Shays III decision that 2 U.S.C. 

441i(e)(3) ‘‘merely clarifies’’ that Federal 

candidates may attend, speak, and 

appear as featured guests at State, 

district, and local party committee 

events without such activities 

constituting an unlawful ‘‘solicitation.’’ 

Shays III at 933. As a ‘‘mere[ ] 

clarif[ication],’’ 2 U.S.C. 441i(e)(3) 

neither affords special permissions with 

regard to Federal candidate and 

officeholder participation in State, 

district, and local party committee 

fundraising events, nor does it imply 

any restrictions with regard to other 

non-Federal fundraising events. 

Accordingly, Alternative 2 did not 

distinguish between State, district, and 

local party events and other non-Federal 

fundraising events. 

Alternative 3 was instead informed by 

an interpretation of 2 U.S.C. 441i(e)(3) 

as establishing a limited statutory 

exception for Federal candidates to 

attend, speak and be featured guests at 

State, district, and local party committee 

fundraisers—activities that the court in 

Shays III acknowledged ‘‘might 

otherwise be read as forbid[den]’’ by the 

Act’s fundraising restrictions—which 

did not extend to non-party fundraisers 

because they were not addressed by the 

statutory provision. Shays III at 933. 

Accordingly, Alternative 3 proposed 

one standard for Federal candidate and 

officeholder participation at State, 

district, and local party committee 

events and another—more restrictive— 

standard for Federal candidate and 

officeholder participation at other nonFederal fundraising events. 

The Commission sought comments on 

the three alternatives, specifically 


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4While the latter issue was addressed by the 

Commission in advisory opinions with respect to 

non-Federal fundraising events for State candidates 

and 527 political organizations, see Advisory 

Opinions 2003–03 (Cantor) and 2003–36 

(Republican Governors Association), the advisory 

opinions did not address Federal candidate and 

officeholder solicitation at State, district, or local 

party committee non-Federal fundraising events 

because 11 CFR 300.64 permitted Federal 

candidates and officeholders to solicit funds at such 

events ‘‘without restriction or regulation.’’ The 

invalidation of this aspect of 11 CFR 300.64 in 

Shays III raised the question for the first time. 

asking whether each would faithfully 

implement the statute, whether each 

was responsive to the Shays III decision, 

and whether each would provide 

sufficient guidance to Federal 

candidates and officeholders; State, 

district, and local party committees; and 

other affected entities. 

Regarding Alternative 1, commenters 

acknowledged that it was technically 

responsive to the Shays III opinion, but 

that it would leave unanswered many 

important questions regarding Federal 

candidate and officeholder participation 

in non-Federal fundraising events. In 

particular, the commenters pointed out 

that Alternative 1 would not address the 

Commission’s previous guidance 

regarding Federal candidate and 

officeholder participation in publicity 

for non-Federal fundraising events and 

whether—or how—a Federal candidate 

or officeholder could solicit funds at a 

State, district, or local party committee 

non-Federal fundraising event.4 One 

commenter suggested that failure to 

address these related areas would create 

‘‘uncertainty and trepidation for State 

and local parties’’ that would chill 

involvement between them and Federal 

candidates and officeholders and 

ultimately limit the parties’ ability ‘‘to 

communicate their message and to fully 

participate in the political process.’’ No 

commenters objected to the 

Commission’s proposal to establish 

rules addressing more broadly Federal 

candidate and officeholder participation 

at all non-Federal fundraising events. 

A number of commenters supported 

the approach of Alternative 2, which 

applied the same framework to nonFederal fundraising events for State, 

district, and local party committees and 

to other non-Federal fundraising events. 

These commenters stated that 

Alternative 2 properly balanced the 

concerns of the Shays III court with the 

congressional intent behind BCRA, and 

that it better implemented the court’s 

interpretation of 441i(e)(3). None of the 

commenters objected to this alternative. 

With regard to Alternative 3, 

commenters generally did not favor its 

distinction between party committee 

events and other non-Federal 

fundraising events. Those commenters 

suggested that Alternative 3’s approach 

went further than is required by the 

court’s holding in Shays III, and that it 

would reverse previous Commission 

guidance that had come to be relied on 

by Federal candidates, officeholders, 

and party committees alike. One 

commenter predicted that Alternative 3 

would effectively end participation by 

Federal candidates and officeholders at 

non-Federal fundraising events. The 

commenters that did not object to 

Alternative 3 nevertheless noted that the 

Act did not require ‘‘a distinction 

between different types of nonfederal 

fundraising events,’’ as proposed in 

Alternative 3. 

The Commission agrees that 

Alternative 1, while responsive to the 

Shays III decision, would leave 

unanswered many important questions 

regarding Federal candidate and 

officeholder participation in nonFederal fundraising events. Although 

the Shays III decision does not mandate 

the adoption of a single rule that 

addresses participation by Federal 

candidates and officeholders at all nonFederal fundraising events, Federal 

candidates and officeholders, as well as 

entities that solicit non-Federal funds in 

connection with elections, would 

benefit from the explicit guidance of a 

more comprehensive rule. 

Accordingly, the Commission is 

revising 11 CFR 300.64 to provide 

guidance on participation by Federal 

candidates and officeholders in all nonFederal fundraising events in 

connection with an election for Federal 

office or any non-Federal election. As 

set forth in more detail below, the 

Commission’s final rule explicitly 

addresses participation by Federal 

candidates and officeholders at such 

fundraising events, as well as 

participation by Federal candidates, 

officeholders, and their agents in 

publicizing these events. In addition, 

the rule covers participation by Federal 

candidates and officeholders regardless 

of whether the entity sponsoring the 

event is a State or local candidate 

committee, State political committee, or 

any other organization that hosts a 

fundraising event in connection with an 

election for Federal office or any nonFederal election. 

The Commission’s final rule is based 

on Alternative 2 in the NPRM. The 

Commission has determined that 

Alternative 2 best accomplishes two 

important goals: (1) Implementing 2 

U.S.C. 441i(e) in accordance with the 

Shays III decision, and (2) providing 

clear, comprehensive guidance 

regarding Federal candidate and 

officeholder participation in nonFederal fundraising events and related 

publicity. 

A. 300.64(a)—Scope 

The scope of new 11 CFR 300.64 is set 

out in paragraph (a). The rule applies to 

all fundraising events in connection 

with an election for Federal office or 

any non-Federal election at which funds 

outside the limitations and source 

prohibitions of the Act, or Levin funds, 

are solicited. The rule applies even if 

funds within the amount limitations 

and source prohibitions of the Act are 

also solicited at an event or in publicity. 

The rule does not cover events at which 

funds outside the amount limitations 

and source prohibitions of the Act or 

Levin funds are not solicited but are, 

nevertheless, received. Nor does the rule 

cover fundraising events at which only 

Federal funds are solicited or 

fundraising events in connection with 

any non-Federal election at which only 

funds subject to the limitations and 

prohibitions of the Act are solicited, 

such as an event soliciting small-dollar, 

non-corporate, non-union funds for a 

State candidate. 

The rule covers only non-Federal 

fundraising events that are ‘‘in 

connection with an election for Federal 

office or any non-Federal election.’’ It 

does not apply to Federal candidate and 

officeholder participation in fundraising 

events that are not in connection with 

an election, consistent with the Act’s 

prohibition on Federal candidates and 

officeholders from soliciting, receiving, 

directing, transferring, spending, or 

disbursing funds in connection with an 

election for Federal office or any nonFederal elections. See 2 U.S.C. 

441i(e)(1)(B). 

The scope of the final rule is very 

similar to the scope proposed in the 

NPRM, except that the proposed rule 

would have covered non-Federal 

fundraising events at which funds 

outside the limitations and prohibitions 

of the Act are raised, and the final rule 

covers non-Federal fundraising events at 

which funds outside the limitations and 

prohibitions of the Act are solicited. The 

Commission made this change in 

response to a comment that a 

solicitation-based standard more 

accurately captured the intent behind 2 

U.S.C. 441i(e), which governs 

solicitations by Federal candidates and 

officeholders. The commenter expressed 

concern that a standard based on 

whether non-Federal funds are raised at 

an event could be triggered when, for 

example, a donor spontaneously 

donates a large, corporate check at a 

non-Federal fundraising event, even 

though no one, including the 

participating Federal candidate or 


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officeholder, had solicited funds outside 

the amount limitations or source 

prohibitions of the Act. The 

Commission agrees that a solicitationbased standard is more consistent with 

the Act’s prohibition on solicitation 

than a standard based on whether funds 

are raised at an event. See 2 U.S.C. 

441i(e)(1). 

Commenters generally supported the 

proposed scope of the Commission’s 

rule in the NPRM. They differed, 

however, on whether the rule’s 

applicability should be limited to 

fundraising events that are ‘‘in 

connection with an election for Federal 

office or any non-Federal election.’’ One 

commenter supported the proposal to 

limit the scope of the rule in this 

manner, while noting the Commission’s 

articulation of the standard in previous 

advisory opinions, such as Advisory 

Opinions 2003–12 (Flake) and 2005–10 

(Berman/Doolittle). One commenter 

urged the Commission to supersede 

Advisory Opinion 2005–10 (Berman/ 

Doolittle), which, in the commenter’s 

view, had incorrectly applied the ‘‘in 

connection with an election for Federal 

office or any non-Federal election’’ 

standard. Another commenter explicitly 

urged the Commission not to supersede 

the same. 

The Commission declines to 

supersede Advisory Opinion 2005–10 

(Berman/Doolittle) in this rulemaking 

and continues to be guided by its prior 

advisory opinions on the ‘‘in connection 

with an election for Federal office or 

any non-Federal election’’ standard. See, 

e.g., Advisory Opinions 2005–10 

(Berman/Doolittle) (solicitation of 

donations by Federal officeholders to a 

State ballot measure committee was not 

in connection with any election under 

the circumstances described in the 

request); 2004–14 (Davis) (solicitation of 

donations by a Federal officeholder to a 

charity was not in connection with any 

election); 2003–20 (Hispanic College 

Fund) (solicitation of donations by a 

Federal officeholder to a scholarship 

fund was not in connection with any 

election); and 2003–12 (Flake) 

(solicitation of donations by Federal 

officeholders for a political organization 

supporting a State referendum was in 

connection with an election under the 

circumstances described in the request). 

Further guidance from the Commission 

on which activities are in connection 

with an election for Federal office or 

any non-Federal election, and which are 

not, is best offered through the advisory 

opinion process. 

The rule does not alter the fundraising 

exception for Federal candidates and 

officeholders who are also State 

candidates, found at 11 CFR 300.63, or 

the fundraising exceptions for certain 

tax-exempt organizations, found at 11 

CFR 300.65. See also 2 U.S.C. 441i(e)(2) 

and (e)(4). Thus, in the event of any 

inconsistencies with new 11 CFR 

300.64, the provisions of 11 CFR 300.63 

and 300.65 govern. 

B. 300.64(b)—Participation at NonFederal Fundraising Events 

Paragraph (b) of new 11 CFR 300.64 

addresses participation by Federal 

candidates and officeholders at nonFederal fundraising events. Paragraph 

(b)(1) addresses attendance, speeches, 

and appearances as featured guests by 

Federal candidates and officeholders at 

non-Federal fundraising events. 

Paragraph (b)(2) addresses solicitations 

made by Federal candidates and 

officeholders at non-Federal fundraising 

events. 

1. 300.64(b)(1)—Attending, Speaking or 

Being a Featured Guest at Non-Federal 

Fundraising Events 

New 11 CFR 300.64(b)(1) provides 

that Federal candidates and 

officeholders may attend, speak at, and 

be featured guests at non-Federal 

fundraising events. This provision is 

consistent with the Shays III decision, 

which stated that 2 U.S.C. 441i(e)(3) 

‘‘merely clarifies that despite the 

statute’s ban on soliciting soft money, 

federal candidates may still ‘attend, 

speak or be a featured guest’ at state 

party events where soft money is raised, 

which the statute might otherwise be 

read as forbidding.’’ Shays III at 933. If 

2 U.S.C. 441i(e)(3) is a ‘‘mere[ ] 

clarifi[cation],’’ it follows that the same 

underlying framework applies to all 

fundraising events. Thus, if the statutory 

ban on soliciting soft money does not 

prohibit a Federal candidate or 

officeholder from attending, speaking at, 

or being a featured guest at a State, 

district, or local party committee’s nonFederal fundraising event, then the 

statutory ban also does not prohibit the 

same person from engaging in the same 

activities at any other non-Federal 

fundraising event. 

This portion of the final rule is 

identical to that proposed in Alternative 

2 of the NPRM. No comments were 

received on this provision, although the 

commenters generally supported the 

Commission’s broader proposal to treat 

Federal candidates’ and officeholders’ 

participation in all non-Federal 

fundraising events the same. 

2. 300.64(b)(2)—Solicitations at NonFederal Fundraising Events 

Under new 11 CFR 300.64(b)(2), 

Federal candidates and officeholders 

may solicit funds at non-Federal 

fundraising events, provided that the 

solicitation is limited to funds that 

comply with the limitations and 

prohibitions of the Act and that are 

consistent with State law. Federal 

candidates and officeholders may no 

longer speak ‘‘without restriction or 

regulation’’ at any non-Federal 

fundraising event, consistent with the 

circuit court’s decision in Shays III. 

New 11 CFR 300.64(b)(2) provides 

that Federal candidates and 

officeholders may limit solicitations 

made at non-Federal fundraising events 

by displaying at the event a clear and 

conspicuous written notice or by 

making a clear and conspicuous oral 

statement that the solicitation is not for 

Levin funds (if the beneficiary of the 

fundraiser has a Levin fund account and 

is raising funds for that account), does 

not seek funds in excess of Federally 

permissible amounts, and does not seek 

funds from sources prohibited under the 

Act, including corporations, labor 

organizations, national banks, Federal 

contractors, or foreign nationals. A 

notice or statement limiting a 

solicitation will not be considered ‘‘clear 

and conspicuous’’ for purposes of the 

final rule if it is difficult to read or hear 

or if its placement is easily overlooked 

by any significant number of those in 

attendance. The Commission’s 

regulation at 11 CFR 100.11(c) further 

informs the ‘‘clear and conspicuous’’ 

standard. 

One example of a limited solicitation 

under new 11 CFR 300.64(b)(2) is for the 

Federal candidate or officeholder to say 

at a non-Federal fundraising event for a 

State or local candidate: ‘‘I am only 

asking for donations of up to 

$[applicable Federally permissible 

amount, currently $2,400 per election] 

from individuals and for donations of 

up to $[applicable Federally permissible 

amount, currently $5,000 per year] from 

multi-candidate political committees. I 

am not asking for donations in excess of 

these amounts or for donations from 

corporations, labor organizations, 

foreign nationals, Federal contractors, or 

national banks.’’ When delivered to the 

general audience, this type of statement 

need be made only once; Federal 

candidates and officeholders are not 

obligated to repeat it during one-on-one 

discussions with individuals at the 

fundraising event. Federal candidates 

and officeholders may not, however, 

recite a limitation publicly, and then 

encourage event attendees to disregard 

the limitation during one-on-one 

discussions. 

If a Federal candidate or officeholder 

wishes to make a general solicitation 

that does not expressly refer to the 

amount limitations and source 


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prohibitions of the Act at a non-Federal 

fundraising event, then the candidate or 

officeholder may limit the solicitation 

by displaying a clear and conspicuous 

written notice or by making a clear and 

conspicuous oral statement at the event 

that the solicitation is limited to funds 

that comply with the limitations and 

prohibitions of the Act. An example of 

an adequate written notice is a placard 

prominently displayed so that it cannot 

be overlooked at the entrance to a 

fundraising event for a State or local 

candidate at which the Federal 

candidate or officeholder is appearing, 

or a card placed on every table at the 

event, stating: 

Solicitations made by Federal candidates 

and officeholders at this event are limited by 

Federal law. The Federal candidates and 

officeholders speaking tonight are soliciting 

only donations of up to $[applicable 

Federally permissible amount, currently 

$2,400 per election] from individuals and up 

to $[applicable Federally permissible 

amount, currently $5,000 per year] from 

multi-candidate political committees. They 

are not soliciting donations in any amount 

from corporations, labor organizations, 

national banks, Federal contractors, or 

foreign nationals. 

Alternatively, an event official or the 

Federal candidate or officeholder could 

make the same or a similar statement 

orally before any general solicitations 

are made by the Federal candidate or 

officeholder, such as in welcoming 

remarks to persons attending the 

fundraising event. These types of 

public, limiting statements need not be 

repeated in one-on-one discussions 

between the Federal candidate or 

officeholder and event attendees, so 

long as the Federal candidate or 

officeholder does not encourage event 

attendees to disregard the limitation 

during one-on-one discussions. 

The provisions of new 11 CFR 

300.64(b) are substantially the same as 

those proposed in paragraph (b) of 

Alternative 2 of the NPRM. Most of the 

comments on the proposal focused on 

the requirement that Federal candidates 

and officeholders limit their 

solicitations at non-Federal fundraising 

events. Two commenters asked the 

Commission to provide in its final rule 

more explicit guidance on how to limit 

such solicitations. In particular, the 

commenters requested additional 

examples of acceptable oral and written 

limitations and a clearer articulation of 

the ‘‘clear and conspicuous’’ standard. In 

response to these commenters, and to 

facilitate compliance with the 

regulations, the Commission has 

provided examples of acceptable 

statements. 

Two other commenters suggested that 

it would be unnecessary and ‘‘awkward 

and confusing’’ to require Federal 

candidates and officeholders to limit 

their solicitations at non-Federal 

fundraising events with clear and 

conspicuous oral or written statements. 

The Commission concludes that any 

solicitation that is not limited either by 

its express terms or otherwise (such as 

through a clear and conspicuous oral 

statement or written notice) risks being 

understood as soliciting donations in 

amounts and from sources prohibited 

under the Act, especially if other 

individuals at the fundraising event 

explicitly solicit funds that are not 

consistent with the limitations and 

prohibitions of the Act. See 11 CFR 

300.2(m) (defining ‘‘to solicit’’ to include 

‘‘an oral or written communication that, 

construed as reasonably understood in 

the context in which it is made, 

contains a clear message, asking, 

requesting, or recommending that 

another person make a contribution, 

donation, transfer of funds, or otherwise 

provide anything of value’’). 

C. 300.64(c)—Publicity for Non-Federal 

Fundraising Events 

Paragraph (c) of new 11 CFR 300.64 

addresses participation by Federal 

candidates and officeholders in 

publicity for non-Federal fundraising 

events. The final rule applies to Federal 

candidate and officeholder participation 

in all types of publicity for non-Federal 

fundraising events, including publicity 

soliciting funds. The term ‘‘publicity’’ as 

used in new 11 CFR 300.64 includes all 

methods used to publicize a nonFederal fundraising event, including 

advertisements, announcements, and 

pre-event invitations, regardless of form 

or medium (and includes phone calls, 

mail, e-mail, facsimile, and text 

messages), as well as follow-up contacts. 

New paragraph (c) is intended to ensure 

that Federal candidates and 

officeholders do not, in the course of 

publicizing a non-Federal fundraising 

event, solicit funds outside the amount 

limitations and source prohibitions of 

the Act. 

Paragraph (c) of the final rules is 

substantially similar to paragraph (c) of 

Alternative 2 in the NPRM, except as 

described below. All commenters 

supported the Commission’s proposal to 

address publicity for non-Federal 

fundraising events in the rule and to 

clarify guidance provided by the 

Commission in previous advisory 

opinions and Matters Under Review. As 

one commenter noted, ‘‘these rules 

regarding pre-event publicity in practice 

are what * * * really matter.’’ Another 

commenter expressed a similar 

sentiment: ‘‘Frankly, once you’re at the 

event, it’s very rare that solicitations are 

ever made regardless. So it is 

appropriate that you’ve opened the door 

to revisiting the guidance and the rules 

regarding pre-event publicity. And 

clarity really is an important thing in 

these rules[.]’’ 

1. 300.64(c)(1)—Publicity Not 

Containing a Solicitation 

Paragraph (c)(1) of new 11 CFR 300.64 

provides that if publicity for, or 

information about, a non-Federal 

fundraising event does not solicit funds, 

then Federal candidates, officeholders, 

or their agents may approve, authorize, 

agree to, or consent to the use of the 

Federal candidates’ or officeholders’ 

name and likenesses in it. Such 

publicity may, for example, use the 

name or likeness of a Federal candidate 

or officeholder to indicate that such 

person will attend, speak, or be a 

featured guest at the event. The 

publicity may also indicate the Federal 

candidate’s or officeholder’s 

involvement or role in the event. See 

discussion of paragraph (c)(3), below. 

No Federal disclaimer or attribution 

statement is required on such publicity. 

Paragraph (c)(1) is nearly identical to 

proposed paragraph (c)(1) in Alternative 

2 of the NPRM, except that it now 

explicitly applies to agents of Federal 

candidates and officeholders. 

The Commission did not receive any 

comments specifically addressing this 

provision, although the commenters 

generally supported the Commission’s 

proposed treatment of publicity for nonFederal fundraising events. One 

commenter, for example, indicated that 

the mere listing of a Federal candidate 

or officeholder on an invitation for a 

non-Federal fundraising event does not 

constitute a solicitation. 

The Commission agrees that, in the 

context of publicity that does not 

otherwise contain a solicitation, merely 

approving, authorizing, agreeing to, or 

consenting to the use of the Federal 

candidate’s or officeholder’s name or 

likeness does not, in and of itself, 

constitute a solicitation by that Federal 

candidate or officeholder. 

The Commission also concludes that 

paragraph (c)(1) gives full effect to 2 

U.S.C. 441i(e)(3), as interpreted by the 

court in Shays III, which states that 

Federal candidates and officeholders 

may be featured guests at State, district, 

and local party committee fundraising 

events. One aspect of being a featured 

guest is being identified as such in 

publicity. Thus, paragraph (c)(1) is 

consistent with the Act and the Shays 

III court decision. 


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2. 300.64(c)(2)—Publicity Containing a 

Solicitation Limited to Funds That 

Comply With the Amount Limitations 

and Source Prohibitions of the Act 

Paragraph (c)(2) of new 11 CFR 300.64 

provides that Federal candidates, 

officeholders, or their agents may 

approve, authorize, agree to, or consent 

to the use of the Federal candidates’ or 

officeholders’ names and likenesses in 

publicity for a non-Federal fundraising 

event if the publicity solicits only funds 

that comply with the amount limitations 

and source prohibitions of the Act. 

Federal candidates and officeholders 

may be identified on the publicity in a 

manner specifically related to 

fundraising, such as honorary 

chairperson of the fundraising event, 

and may also sign the solicitation letters 

themselves, if the solicitation is limited 

to funds that comply with the amount 

limitations and source prohibitions of 

the Act. 

This provision merely makes explicit 

what was implicit in the proposed rule, 

and reiterates what is expressly 

provided for in 2 U.S.C. 441i(e)(1): That 

Federal candidates and officeholders 

may solicit funds that comply with the 

amount limitations and source 

prohibitions of the Act. 

3. 300.64(c)(3)—Publicity Containing a 

Solicitation Outside the Amount 

Limitations and Source Prohibitions of 

the Act 

Paragraph (c)(3) of new 11 CFR 300.64 

addresses publicity that solicits funds 

outside the amount limitations and 

source prohibitions of the Act or Levin 

funds. This provision is based on the 

Commission’s determination that a 

Federal candidate, officeholder, or an 

agent of either may approve, authorize, 

agree to, or consent to the use of the 

Federal candidate’s or officeholder’s 

name or likeness on publicity for a nonFederal fundraising event in a manner 

that does not result in the solicitation 

being attributed to the Federal candidate 

or officeholder. 

Under paragraph (c)(3)(i), a Federal 

candidate, officeholder, or an agent of 

either may approve, authorize, agree to, 

or consent to the use of the Federal 

candidate’s or officeholder’s name or 

likeness in publicity for a non-Federal 

fundraising event that contains a 

solicitation of funds outside the amount 

limitations and source prohibitions of 

the Act or Levin funds, but only if: (1) 

The Federal candidate or officeholder is 

identified in the publicity in a manner 

not specifically related to fundraising, 

and (2) the publicity includes a clear 

and conspicuous disclaimer that the 

solicitation is not being made by the 

Federal candidate or officeholder. 

New 11 CFR 300.64(c)(3)(i)(A) 

provides nonexhaustive examples of the 

positions that a Federal candidate or 

officeholder may be identified as 

holding that are not specifically related 

to fundraising. They include featured 

guest, honored guest, special guest, 

featured speaker, or honored speaker. 

Thus, merely identifying a Federal 

candidate or officeholder as holding a 

position not specifically related to 

fundraising on publicity does not 

constitute a solicitation of funds outside 

the amount limitations and source 

prohibitions of the Act or Levin funds 

by the Federal candidate or officeholder. 

The Commission is not requiring that all 

Federal candidates or officeholders be 

identified by one of the listed titles. 

Rather, the Federal candidate or 

officeholder may be identified in any 

manner not specifically related to 

fundraising. For example, the Federal 

candidate or officeholder may be 

identified simply by name, as in ‘‘Please 

join the State Party at a reception with 

Senator Jones and Governor Smith.’’ 

To avoid any confusion in this regard, 

paragraph (c)(3)(i)(B) requires the 

publicity to include a clear and 

conspicuous disclaimer stating that the 

solicitation is not being made by the 

Federal candidate or officeholder. New 

11 CFR 300.64(c)(3)(ii) provides that 

disclaimers on written publicity must 

meet the requirements in 11 CFR 

110.11(c)(2). For publicity disseminated 

via non-written means, such as by 

telephone calls, a disclaimer is required 

if the publicity is recorded, follows any 

form of a written script, or is conducted 

according to a structured or organized 

program. A script for these purposes 

means any written text that callers use 

to guide their conversations with 

potential attendees, regardless of 

whether it takes the form of complete 

paragraphs, bullet points, notes, or other 

written prompts. As long as the text 

includes appropriate disclaimers, the 

Commission will presume (absent 

evidence to the contrary) that the 

requirements of the rule were met. 

When non-written solicitations are 

conducted according to a structured or 

organized program, the Commission 

will similarly presume that the 

requirements of the rule were met where 

a sworn statement that appropriate 

disclaimers were made is submitted by 

the person making the solicitation or by 

the Federal candidate or officeholder 

who authorized the use of his or her 

name. A structured or organized 

program includes the making, at a 

designated time, of telephone calls that 

invite people to and solicit funds for a 

non-Federal fundraising event, and 

which is authorized, requested, or 

agreed to by the Federal candidate or 

officeholder. 

New paragraph (c)(3)(iv) provides two 

examples of disclaimers that would 

satisfy the requirement. Both examples 

state that the Federal candidate or 

officeholder is not soliciting funds in 

connection with the fundraising event. 

These examples are intended to serve as 

guidance for Federal candidates, 

officeholders, and sponsors of nonFederal fundraising events. Importantly, 

written disclaimers, including those that 

conform to the examples provided in 

the rule, are not sufficient unless they 

are ‘‘clear and conspicuous’’ under 11 

CFR 110.11(c)(2). To the extent the 

publicity already has a disclaimer 

required by 11 CFR 100.11 (Federal 

disclaimer), the disclaimer required by 

this paragraph may be included in the 

same box as the Federal ‘‘Paid for by’’ 

disclaimer. Some additional limitations 

on the use of disclaimers are addressed 

in new paragraph (c)(3)(v) of 11 CFR 

300.64, as discussed below. 

Paragraph (c)(3)(v) of new 11 CFR 

300.64 states that a Federal candidate, 

officeholder, or an agent of either may 

not approve, authorize, agree to, or 

consent to the use of the Federal 

candidate’s or officeholder’s name or 

likeness in publicity that contains a 

solicitation of non-Federal or Levin 

funds if the Federal candidate or 

officeholder is identified in the 

publicity as serving in a position 

specifically related to fundraising. 

Positions specifically related to 

fundraising include, for example, 

honorary chair of the fundraising event 

or member of the host committee. Nor 

may a Federal candidate, officeholder, 

or an agent of either approve, authorize, 

agree to, or consent to the use of the 

Federal candidate’s or officeholder’s 

name or likeness if the Federal 

candidate or officeholder is identified 

on publicity containing a solicitation of 

non-Federal or Levin funds as extending 

an invitation to the event. For example, 

an invitation stating ‘‘Featured guest 

Congressman X invites you to join him 

at next week’s reception’’ would fall into 

this category, as would an invitation 

signed by the Federal candidate or 

officeholder. 

The Commission has concluded that 

participation by the Federal candidate 

or officeholder in this manner would be 

an impermissible solicitation of funds 

outside the amount limitations and 

source prohibitions of the Act or Levin 

funds. As such, no disclaimer, even one 

that complies with paragraph (c)(3)(i)(B) 

of new 11 CFR 300.64, would be capable 

of curing the violation of 2 U.S.C. 


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441i(e), no matter how clear or 

conspicuous the disclaimer may be. 

Finally, paragraph (c)(3)(vi) prohibits 

Federal candidates, officeholders, and 

their agents from disseminating 

publicity for a non-Federal fundraising 

event if the publicity solicits funds 

outside the amount limitations and 

source prohibitions of the Act or Levin 

funds. This paragraph is a logical 

outgrowth of the proposal in the NPRM; 

the Commission has decided to 

implement this provision to prohibit 

conduct that could result in an 

impermissible solicitation by Federal 

candidates and officeholders. 

The final rule covers much of the 

same activity as the rule proposed in 

Alternative 2 of the NPRM, but is 

organized differently. The proposed rule 

did not, for example, explicitly address 

publicity that solicits only funds within 

the limitations and prohibitions of the 

Act, whereas the final rule does. More 

significantly, the structure of the 

proposed rule depended on whether the 

solicitation in the publicity was made 

by the Federal candidate or officeholder. 

By contrast, the structure of the final 

rule depends on whether the publicity 

solicits funds within the amount 

limitations and source prohibitions of 

the Act. The final rule also applies to 

the agents of Federal candidates and 

officeholders. 

The comments received on this aspect 

of the proposed rule focused for the 

most part on the disclaimer requirement 

for publicity naming a Federal 

candidate or officeholder and including 

a solicitation by a person other than the 

Federal candidate or officeholder. Four 

commenters disagreed with the 

disclaimer requirement, arguing that the 

disclaimers would confuse the average 

person. These commenters observed 

that the average recipient of publicity 

could easily conclude that the mere 

listing of a Federal candidate or 

officeholder—as a featured guest, for 

example—on publicity was not a 

solicitation by that Federal candidate or 

officeholder, even if the publicity 

included a solicitation of funds outside 

the amount limitations and source 

prohibitions of the Act. Moreover, one 

commenter opined that fundraising 

hosts would bear a substantial burden if 

employees and volunteers were required 

to issue such disclaimers during the 

telephone calls and conversations that 

frequently follow the distribution of 

written publicity for a non-Federal 

fundraising event. Instead, two 

commenters suggested that the 

Commission require such disclaimers 

only when a Federal candidate or 

officeholder signs a solicitation or 

explicitly solicits funds. 

Other commenters supported the 

Commission’s proposed disclaimer 

requirement, stating that it would make 

‘‘infinitely clear to the recipient of the 

solicitation’’ that the Federal candidate 

or officeholder was not asking for funds 

outside the limitations or prohibitions 

of the Act. Another commenter asked 

the Commission to provide specific 

examples of statements that would 

satisfy the disclaimer requirement. 

The Commission has considered the 

comments and has concluded that 

identifying a Federal candidate or 

officeholder as serving in a role not 

specifically related to fundraising does 

not, by itself, result in a solicitation by 

the Federal candidate or officeholder. 

However, just as the circuit court 

concluded in Shays III that 2 U.S.C. 

441i(e)(3) ‘‘merely clarifies’’ the reach of 

‘‘the statute’s ban on soliciting soft 

money,’’ the Commission also seeks to 

make it unmistakably clear that Federal 

candidates and officeholders who 

participate at non-Federal fundraising 

events and in publicity are not making 

a solicitation that would be prohibited 

under the law. Shays III at 933. The 

disclaimer requirement helps to ensure 

that persons receiving publicity for nonFederal fundraising events understand 

that any solicitation of funds outside the 

amount limitations and source 

prohibitions of the Act is made by a 

person other than the Federal candidate 

or officeholder identified in the 

publicity. The disclaimer requirement 

may also help to protect Federal 

candidates and officeholders against 

complaints filed with the Commission 

that result from a misunderstanding as 

to who is soliciting funds in connection 

with the fundraising event. 

D. Effect of This Rulemaking on Prior 

Commission Advisory Opinions 

The Commission has addressed the 

issue of participation by Federal 

candidates and officeholders in nonFederal fundraising events in Advisory 

Opinions 2007–11 (California State 

Party Committees), 2005–02 (Corzine II), 

2004–12 (Democrats for the West), 

2003–36 (Republican Governors 

Association), and 2003–03 (Cantor). As 

explained below, the Commission is 

superseding the aspects of these 

advisory opinions that address this 

issue. 

In Advisory Opinions 2005–02 

(Corzine II) and 2004–12 (Democrats for 

the West), the Commission concluded, 

in part, that Federal candidates and 

officeholders could appear, speak, and 

be featured guests at non-Federal 

fundraising events ‘‘without restriction 

or regulation’’ under former 11 CFR 

300.64(b). Given that this provision of 

the rule was explicitly struck down by 

the Shays III court and has been 

removed by the Commission, the 

Commission is superseding the parts of 

Advisory Opinions 2004–12 (Democrats 

for the West) and 2005–02 (Corzine II) 

that apply the ‘‘without restriction or 

regulation’’ standard. Specifically, the 

Commission is superseding the answer 

to Question 7 in Advisory Opinion 

2004–12 (Democrats for the West), as to 

whether Democrats for the West may 

invite Federal candidates, officeholders, 

or their agents to appear as guests or 

featured speakers at fundraising events, 

and the second paragraph in the answer 

to Question 2 in Advisory Opinion 

2005–02 (Corzine II), regarding Federal 

candidate and officeholder participation 

in raising funds for the non-Federal 

accounts of State and local party 

committees. 

Advisory Opinions 2007–11 

(California State Party Committees), 

2003–36 (Republican Governors 

Association), and 2003–03 (Cantor) also 

addressed participation by Federal 

candidates and officeholders at nonFederal fundraising events in 

connection with elections, and related 

publicity. Some of the conclusions are 

consistent with new 11 CFR 300.64, 

such as the conclusion in Advisory 

Opinions 2003–36 (Republican 

Governors Association) and 2003–03 

(Cantor) that the mere attendance of a 

Federal candidate or officeholder at a 

non-Federal fundraiser does not, in and 

of itself, give rise to a violation of the 

Act or Commission regulations. On the 

other hand, some of the conclusions in 

these prior advisory opinions may not 

be consistent with new 11 CFR 300.64. 

To help avoid potential confusion as 

to which parts of the prior advisory 

opinions are consistent with the new 

rule and which parts are inconsistent, 

the Commission is superseding 

Advisory Opinion 2003–03 (Cantor), 

except for the answer to Question 6 

regarding agency, and Advisory Opinion 

2003–36 (Republican Governors 

Association), except for the answer to 

Question 3 regarding corporate 

donations to the Republican Governors 

Association’s conference account and 

the last paragraph of the answer to 

Question 2 regarding whether the 

conference account’s activities are in 

connection with an election. The 

Commission is also superseding in its 

entirety Advisory Opinion 2007–11 

(California State Party Committees), 

which addressed three types of 

proposed communications related to 

State party fundraising events that 

identified Federal candidates or 

officeholders as featured speakers or 

honored guests. 


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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Rules and Regulations 24383 

These actions are consistent with a 

comment received in response to the 

NPRM. The comment noted the 

potential tension and confusion that 

could result from having to reconcile 

past advisory opinions with the 

Commission’s new rule. The comment 

suggested that the Commission indicate 

explicitly that the series of advisory 

opinions on this issue no longer 

articulate the correct standard of law 

and are thus superseded. 

The Commission agrees that where 

the new rule addresses the same issue 

as a prior advisory opinion, the new 

rule provides the applicable standard of 

law, and the advisory opinion is 

superseded. However, the Commission 

declines to supersede the entire series of 

advisory opinions that reference this 

issue. As discussed above, sections of 

certain advisory opinions are not 

affected by the new rule and hence 

remain in force. Accordingly, the 

Commission has explicitly indicated 

which advisory opinions are now 

superseded, in whole or in part. 

Although new 11 CFR 300.64 is in part 

informed by, and adopts, some of the 

Commission’s conclusions in prior 

advisory opinions, the new rule is based 

entirely on the reasoning set forth in 

this explanation and justification and 

does not rely on any prior Commission 

advisory opinions. 

Certification of No Effect Pursuant to 5 

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

Act] 

The Commission certifies that the 

attached final rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The basis for this certification is that the 

entities affected by this rule do not meet 

the definition of ‘‘small entity’’ under 5 

U.S.C. 601. That definition requires that 

the enterprise be independently owned 

and operated and not dominate in its 

field. 5 U.S.C. 601(4). 

This final rule affects State, district, 

and local party committees, as well as 

Federal candidates and their campaign 

committees. Federal candidates, as 

individuals, do not fall within the 

definition at 5 U.S.C. 601, and campaign 

committees are not independently 

owned and operated because they are 

not financed and controlled by a small 

identifiable group of individuals. 

State, district, and local party 

committees also fall outside the 

definition of ‘‘small entity.’’ These 

committees are not independently 

owned and operated because they are 

not financed and controlled by a small 

identifiable group of individuals, and 

they are affiliated with the larger 

national political party organizations. In 

addition, the State political party 

committees representing the Democratic 

and Republican parties have a major 

controlling influence within the 

political arenas of their States and are 

thus dominant in their fields. District 

and local party committees are generally 

considered affiliated with the State 

committees and need not be considered 

separately. To the extent that any State 

party committees representing minor 

political parties might be considered 

‘‘small organizations,’’ the number 

affected by this final rule is not 

substantial. 

List of Subjects in 11 CFR Part 300 

Campaign funds, nonprofit 

organizations, political committees and 

parties, political candidates, reporting 

and recordkeeping requirements. 

■ For the reasons set out in the 

preamble, Subchapter C of Chapter 1 of 

title 11 of the Code of Federal 

Regulations is amended to read as 

follows: 

PART 300—NON-FEDERAL FUNDS 

■ 1. The authority citation for part 300 

continues to read as follows: 

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

441a(a), 441i, 453. 

■ 2. Section 300.64 is revised to read as 

follows: 

§ 300.64 Participation by Federal 

candidates and officeholders at non-Federal 

fundraising events (2 U.S.C. 441i(e)(1) and 

(3)). 

(a) Scope. This section covers 

participation by Federal candidates and 

officeholders at fundraising events in 

connection with an election for Federal 

office or any non-Federal election at 

which funds outside the amount 

limitations and source prohibitions of 

the Act or Levin funds are solicited. 

This section also covers participation by 

Federal candidates and officeholders in 

publicity related to such non-Federal 

fundraising events. This section applies 

even if funds that comply with the 

amount limitations and source 

prohibitions of the Act are also solicited 

at the event. Nothing in this section 

shall be construed to alter the 

fundraising exception for State 

candidates at 11 CFR 300.63 or the 

fundraising exceptions for certain taxexempt organizations at 11 CFR 300.65. 

(b) Participation at non-Federal 

fundraising events. A Federal candidate 

or officeholder may: 

(1) Attend, speak at, or be a featured 

guest at a non-Federal fundraising 

event. 

(2) Solicit funds at a non-Federal 

fundraising event, provided that the 

solicitation is limited to funds that 

comply with the amount limitations and 

source prohibitions of the Act and that 

are consistent with State law. 

(i) A Federal candidate or officeholder 

may limit such a solicitation by 

displaying at the fundraising event a 

clear and conspicuous written notice, or 

making a clear and conspicuous oral 

statement, that the solicitation is not for 

Levin funds (when applicable), does not 

seek funds in excess of $[Federally 

permissible amount], and does not seek 

funds from corporations, labor 

organizations, national banks, federal 

government contractors, or foreign 

nationals. 

(ii) A written notice or oral statement 

is not clear and conspicuous if it is 

difficult to read or hear or if its 

placement is easily overlooked by any 

significant number of those in 

attendance. 

(c) Publicity for non-Federal 

fundraising events. For the purposes of 

this paragraph, publicity for a nonFederal fundraising event includes, but 

is not limited to, advertisements, 

announcements, or pre-event invitation 

materials, regardless of format or 

medium of communication. 

(1) Publicity not containing a 

solicitation. A Federal candidate, 

officeholder, or an agent of either may 

approve, authorize, agree to, or consent 

to the use of the Federal candidate’s or 

officeholder’s name or likeness in 

publicity for a non-Federal fundraising 

event that does not contain a 

solicitation. 

(2) Publicity containing a solicitation 

limited to funds that comply with the 

amount limitations and source 

prohibitions of the Act. A Federal 

candidate, officeholder, or an agent of 

either may approve, authorize, agree to, 

or consent to the use of the Federal 

candidate’s or officeholder’s name or 

likeness in publicity for a non-Federal 

fundraising event that solicits only 

funds that comply with the amount 

limitations and source prohibitions of 

the Act. 

(3) Publicity containing a solicitation 

of funds outside the amount limitations 

and source prohibitions of the Act. 

(i) A Federal candidate, officeholder, 

or an agent of either may approve, 

authorize, agree to, or consent to the use 

of the Federal candidate’s or 

officeholder’s name or likeness in 

publicity for a non-Federal fundraising 

event that contains a solicitation of 

funds outside the amount limitations 

and source prohibitions of the Act or 

Levin funds only if: 

(A) The Federal candidate or 

officeholder is identified as a featured 

guest, honored guest, special guest, 


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24384 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Rules and Regulations 

1 74 FR 69301 (Dec. 31, 2009). 

2 ‘‘Eligible institution’’ does not include all 

entities for which the Reserve Banks hold accounts. 

For example, the term does not include entities for 

which the Reserve Banks act as fiscal agents, such 

as Federal Home Loan Banks, Fannie Mae, and 

Freddie Mac. 12 CFR 204.2(y). 

3See 12 U.S.C. 461(b)(12). 

featured speaker, or honored speaker, or 

in any other manner not specifically 

related to fundraising; and 

(B) The publicity includes a clear and 

conspicuous disclaimer that the 

solicitation is not being made by the 

Federal candidate or officeholder. 

(ii) The disclaimer required in 

paragraph (c)(3)(i)(B) of this section 

must meet the requirements in 11 CFR 

110.11(c)(2) if the publicity is written. 

(iii) Where publicity is disseminated 

by non-written means, the disclaimer 

described in paragraph (c)(3)(i)(B) of 

this section is required only if the 

publicity is recorded or follows any 

form of written script or is conducted 

according to a structured or organized 

program. 

(iv) Examples of disclaimers that 

satisfy paragraph (c)(3)(i)(B) of this 

section include, but are not limited to: 

(A) ‘‘[Name of Federal candidate/ 

officeholder] is appearing at this event 

only as a featured speaker. [Federal 

candidate/officeholder] is not asking for 

funds or donations’’; or 

(B) ‘‘All funds solicited in connection 

with this event are by [name of nonFederal candidate or entity], and not by 

[Federal candidate/officeholder].’’ 

(v) A Federal candidate, officeholder, 

or an agent of either may not approve, 

authorize, agree to, or consent to the use 

of the Federal candidate’s or 

officeholder’s name or likeness in 

publicity for a non-Federal fundraising 

event that contains a solicitation of 

funds outside the amount limitations 

and source prohibitions of the Act or 

Levin funds if: 

(A) The Federal candidate or 

officeholder is identified as serving in a 

position specifically related to 

fundraising, such as honorary 

chairperson or member of a host 

committee, or is identified in the 

publicity as extending an invitation to 

the event, even if the communication 

contains a written disclaimer as 

described in paragraph (c)(3)(i)(B) of 

this section; or 

(B) The Federal candidate or 

officeholder signs the communication, 

even if the communication contains a 

written disclaimer as described in 

paragraph (c)(3)(i)(B) of this section. 

(vi) A Federal candidate, officeholder, 

or an agent of either, may not 

disseminate publicity for a non-Federal 

fundraising event that contains a 

solicitation of funds outside the amount 

limitations and source prohibitions of 

the Act or Levin funds by someone 

other than the Federal candidate or 

officeholder. 

Dated: April 30, 2010. 

On behalf of the Commission. 

Matthew S. Petersen, 

Chairman, Federal Election Commission. 

[FR Doc. 2010–10571 Filed 5–4–10; 8:45 am] 

BILLING CODE 6715–01–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 204 

[Regulation D; Docket No. R–1381] 

Reserve Requirements of Depository 

Institutions Policy on Payment System 

Risk 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule. 

SUMMARY: The Board is amending 

Regulation D, Reserve Requirements of 

Depository Institutions, to authorize 

Reserve Banks to offer term deposits. 

Term deposits are intended to facilitate 

the conduct of monetary policy by 

providing a tool for managing the 

aggregate quantity of reserve balances. 

Institutions eligible to receive earnings 

on their balances in accounts at Federal 

Reserve Banks (‘‘eligible institutions’’) 

may hold term deposits and receive 

earnings at a rate that does not exceed 

the general level of short-term interest 

rates. Term deposits are separate and 

distinct from balances maintained in an 

institution’s master account at a Reserve 

Bank (‘‘master account’’) as well as from 

those maintained in an excess balance 

account. Term deposits do not satisfy an 

institution’s required reserve balance or 

contractual clearing balance and do not 

constitute excess balances. Term 

deposits are not available to clear 

payments and may not be used to 

reduce an institution’s daylight or 

overnight overdrafts. The Board is also 

making minor amendments to the 

posting rules for intraday debits and 

credits to master accounts as set forth in 

the Board’s Policy on Payment System 

Risk to address transactions associated 

with term deposits. 

DATES: The amendments are effective on 

June 4, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Sophia H. Allison, Senior Counsel (202) 

452–3565, or Dena L. Milligan, Staff 

Attorney (202) 452–3900), Legal 

Division, or Seth Carpenter, Associate 

Director (202) 452–2385, or Margaret 

Gillis DeBoer, Assistant Director (202) 

452–3139, Division of Monetary Affairs; 

for users of Telecommunications Device 

for the Deaf (TDD) only, contact (202) 

263–4869); Board of Governors of the 

Federal Reserve System, 20th and C 

Streets, NW., Washington, DC 20551. 

SUPPLEMENTARY INFORMATION: 

I. Summary of Proposal 

In order to help the Federal Reserve 

implement monetary policy, on 

December 31, 2009, the Board requested 

public comment on a proposal to amend 

Regulation D to authorize Reserve Banks 

to offer term deposits to eligible 

institutions.1 ‘‘Eligible institution’’ is 

defined in Regulation D and includes 

the depository institutions defined in 

section 19(b)(1)(A) of the Act, including 

banks, savings associations, savings 

banks and credit unions that are 

federally insured or eligible to apply for 

federal insurance. ‘‘Eligible institution’’ 

also includes trust companies, Edge and 

agreement corporations, and U.S. 

agencies and branches of foreign banks.2

Under the proposal, the Reserve Banks 

would accept term deposits subject to 

such terms and conditions as the Board 

may establish from time to time, 

including but not limited to conditions 

regarding the maturity of the term 

deposits being offered, maximum and 

minimum amounts that may be 

maintained by an eligible institution in 

a term deposit, the interest rate or rates 

offered and, if term deposits are offered 

through an auction mechanism, the size 

of the offering, and maximum and 

minimum bid amounts. Term deposits 

would not satisfy required reserve 

balances or contractual clearing 

balances and would not be available for 

general payments or other activities. 

The Board also proposed to amend 

section 204.10(b)(3) of Regulation D to 

reflect the fact that term deposits would 

earn interest, and that like other 

balances maintained at Reserve Banks 

by or on behalf of eligible institutions, 

the interest rate on term deposits could 

not exceed the general level of shortterm interest rates, consistent with the 

limitation in the Federal Reserve Act.3

For purposes of that statutory 

requirement, the Board proposed to 

amend section 204.10(b)(3) to define the 

term ‘‘short-term interest rates’’ as 

including ‘‘the primary credit rate and 

rates on obligations with maturities of 

up to one year in which eligible 

institutions may invest, such as rates on 

term federal funds, term repurchase 

agreements, commercial paper, term 

Eurodollar deposits, and other similar 

rates.’’ 


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