Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 55947 

The Board reviewed and unanimously 

recommended 2010–11 expenditures of 

$6,812,100. Prior to arriving at this 

budget, the Board considered alternative 

expenditure levels but ultimately 

decided that the recommended levels 

were reasonable to properly administer 

the order. The assessment rate of 

$0.0174 per kernelweight pound of 

assessable walnuts was derived by 

dividing anticipated expenses of 

$6,812,100 by expected 2010–11 

shipments of California walnuts 

certified as merchantable. Merchantable 

shipments for the year are estimated at 

391,500,000 kernelweight pounds, 

which should provide $6,812,100 in 

assessment income and allow the Board 

to cover its expenses. Unexpended 

funds may be retained in a financial 

reserve, provided that funds in the 

financial reserve do not exceed 

approximately two years’ budgeted 

expenses. If not retained in a financial 

reserve, unexpended funds may be used 

temporarily to defray expenses of the 

subsequent marketing year, but must be 

made available to the handlers from 

whom they were collected within five 

months after the end of the year, 

according to § 984.69 of the order. 

According to NASS, the season 

average grower prices for the years 2008 

and 2009 were $1,280 and $1,690 per 

ton, respectively. Although no official 

NASS data is yet available regarding the 

2010 average grower price, the 2008 and 

2009 prices provide a range within 

which the 2010–11 season average price 

could fall. Dividing these average 

grower prices by 2,000 pounds per ton 

provides an inshell price per pound 

range of $0.640 to $0.845. Dividing 

these inshell prices per pound by the 

0.45 conversion factor (inshell to 

kernelweight) established in the order 

yields a 2010–11 price range estimate of 

$1.42 to $1.88 per kernelweight pound 

of assessable walnuts. 

To calculate the percentage of grower 

revenue represented by the assessment 

rate, the assessment rate of $0.0174 per 

kernelweight pound is divided by the 

low and high estimates of the price 

range. The estimated assessment 

revenue for the 2010–11 marketing year, 

stated as a percentage of total grower 

revenue, will thus likely range between 

1.22 and 0.927 percent. 

This action decreases the assessment 

obligation imposed on handlers. 

Assessments are applied uniformly on 

all handlers, and some of the cost 

savings may be passed on to growers. In 

addition, the Board’s meeting was 

widely publicized throughout the 

California walnut industry, and all 

interested persons were invited to 

attend the meeting and participate in 

Board deliberations on all issues. Like 

all Board meetings, the June 11, 2010, 

meeting was a public meeting, and all 

entities, both large and small, were able 

to express their views on this issue. 

Finally, interested persons are invited to 

submit comments on this interim rule, 

including the regulatory and 

informational impacts of this action on 

small businesses. 

This rule imposes no additional 

reporting or recordkeeping requirements 

on either small or large California 

walnut handlers. As with all Federal 

marketing order programs, reports and 

forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and public 

sector agencies. 

AMS is committed to complying with 

the E–Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Antoinette 

Carter at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

After consideration of all relevant 

material presented, including the 

Board’s recommendation, and other 

information, it is found that this rule, as 

hereinafter set forth, will tend to 

effectuate the declared policy of the Act. 

Pursuant to 5 U.S.C. 553, it is also 

found and determined upon good cause 

that it is impracticable and contrary to 

the public interest to give preliminary 

notice prior to putting this rule into 

effect and that good cause exists for not 

postponing the effective date of this rule 

until 30 days after publication in the 

Federal Register because: (1) The 2010– 

11 marketing year begins on September 

1, 2010, and the marketing order 

requires that the rate of assessment for 

each marketing year apply to all 

assessable walnuts handled during the 

year; (2) the Board needs to have 

sufficient funds to pay its expenses, 

which are incurred on a continuous 

basis; and (3) handlers are aware of this 

action, which was unanimously 

recommended by the Board at a public 

meeting and is similar to other 

assessment rate actions issued in past 

years. 

List of Subjects in 7 CFR Part 984 

Marketing agreements, Nuts, 

Reporting and recordkeeping 

requirements, Walnuts. 

■ For the reasons set forth in the 

preamble, 7 CFR part 984 is amended as 

follows: 

PART 984—WALNUTS GROWN IN 

CALIFORNIA 

■ 1. The authority citation for 7 CFR 

part 984 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 984.347 is revised to read 

as follows: 

§ 984.347 Assessment rate. 

On and after September 1, 2010, an 

assessment rate of $0.0174 per 

kernelweight pound is established for 

California merchantable walnuts. 

Dated: September 10, 2010. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–22982 Filed 9–14–10; 8:45 am] 

BILLING CODE 3410–02–P 

FEDERAL ELECTION COMMISSION 

11 CFR Part 109 

[Notice 2010–17] 

Coordinated Communications 

AGENCY: Federal Election Commission. 

ACTION: Final rules. 

SUMMARY: The Federal Election 

Commission is revising its regulations 

regarding coordinated communications. 

The Commission is issuing these rules 

and offering a more complete 

explanation and justification for parts of 

the existing rules to comply with the 

decision of the Court of Appeals for the 

District of Columbia Circuit in Shays v. 

FEC and to address other issues 

involving the coordinated 

communications rules. 

DATES: These rules are effective on 

December 1, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy L. Rothstein, Assistant General 

Counsel, Ms. Jessica Selinkoff, Attorney, 

Ms. Joanna S. Waldstreicher, Attorney, 

or Ms. Esther D. Heiden, Attorney, 999 

E Street, NW., Washington, DC 20463, 

(202) 694–1650 or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: The 

Commission is revising its regulations 

regarding coordinated communications 

at 11 CFR 109.21. The Commission is: 

(1) Adding a new content standard at 11 

CFR 109.21(c)(5) for communications 

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55948 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

1For purposes of this document, ‘‘comment’’ and 

‘‘commenter’’ apply to both written comments and 

oral testimony at the public hearing. 

that are the functional equivalent of 

express advocacy; and (2) creating a safe 

harbor for certain business and 

commercial communications. The 

Commission is retaining the conduct 

standards for common vendors and 

former employees at 11 CFR 

109.21(d)(4) and (5) and is providing 

further explanation and justification for 

those rules. The Commission is not, at 

this time, adopting a safe harbor for 

certain public communications paid for 

by non-profit organizations described in 

26 U.S.C. 501(c)(3) (‘‘501(c)(3) 

organizations’’) or revising the rules 

concerning party coordinated 

communications at 11 CFR 109.37. 

Transmission of Final Rules to 

Congress 

Under the Administrative Procedure 

Act, 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 thirty calendar days before they 

take effect. The final rules that follow 

were transmitted to Congress on 

September 7, 2010. 

Explanation and Justification 

I. Background 

The Federal Election Campaign Act of 

1971, as amended, 2 U.S.C. 431 et seq. 

(‘‘the Act’’), and Commission regulations 

limit the amount a person may 

contribute to a candidate and that 

candidate’s authorized committee with 

respect to any election for Federal 

office, and also limit the amount a 

person may contribute to other political 

committees in a given calendar year. See 

2 U.S.C. 441a(a)(1); 11 CFR 110.1(b)(1), 

(c)(1), and (d); see also 2 U.S.C. 441b; 11 

CFR 114.2 (prohibitions on corporate 

contributions). A ‘‘contribution’’ may 

take the form of money or ‘‘anything of 

value,’’ including an in-kind 

contribution, provided to a candidate or 

political committee for the purpose of 

influencing a Federal election. See 2 

U.S.C. 431(8)(A)(i) and (9)(A)(i); 11 CFR 

100.52(a) and (d)(1), 100.111(a) and 

(e)(1). An expenditure made in 

coordination with a candidate, a 

candidate’s authorized political 

committee, or political party committee 

constitutes an in-kind contribution to 

that candidate or party committee 

subject to contribution limits and 

prohibitions and must, subject to certain 

exceptions, be reported both as a 

contribution to and as an expenditure 

by that candidate or party committee. 

See 2 U.S.C. 441a(a)(7); 11 CFR 109.20 

and 109.21(b). 

A. The Rulemaking Record 

These final rules for coordinated 

communications respond to the 

decision of the Court of Appeals for the 

District of Columbia Circuit in Shays v. 

FEC, 528 F.3d 914 (DC Cir. 2008) 

(‘‘Shays III Appeal’’), discussed below. 

The Commission published a Notice of 

Proposed Rulemaking (‘‘NPRM’’) in the 

Federal Register on October 21, 2009. 

See Notice of Proposed Rulemaking on 

Coordinated Communications, 74 FR 

53893 (Oct. 21, 2009). The NPRM 

comment period closed on January 19, 

2010. The Commission received nine 

comments from 16 commenters on the 

NPRM. The NPRM comments are 

available at http://www.fec.gov/pdf/

nprm/coord_commun/2009/ 

shays3comments.shtml. 

The Commission published a 

Supplemental Notice of Proposed 

Rulemaking (‘‘SNPRM’’) in the Federal 

Register on February 10, 2010. See 

Supplemental Notice of Proposed 

Rulemaking on Coordinated 

Communications, 75 FR 6590 (Feb. 10, 

2010). The SNPRM invited comments 

on the effect, if any, of the Supreme 

Court’s decision in Citizens United v. 

FEC, 130 S.Ct. 876, 78 U.S.L.W. 4078 

(U.S. Jan. 21, 2010), on the rulemaking. 

The SNPRM comment period closed on 

February 24, 2010. The Commission 

received twelve comments from fifteen 

commenters on the SNPRM. The 

SNPRM comments are available at 

http://www.fec.gov/pdf/nprm/ 

coord_commun/2009/snprmcoordinated

comments.shtml. 

The Commission held a public 

hearing on March 2 and 3, 2010, at 

which eleven witnesses testified. Audio 

files of the hearing and a transcript of 

the proceeding are available at http:// 

www.fec.gov/pages/hearings/

coordinationshays3hearing.shtml. 

The Commission kept the rulemaking 

record open until March 17, 2010. 

During this post-hearing period, the 

Commission received three additional 

comments from four commenters. These 

additional comments are available at 

http://www.fec.gov/law/ 

law_rulemakings.shtml#coordination

shays3.1

B. Coordinated Communications Before 

the Bipartisan Campaign Reform Act of 

2002 

The Supreme Court first examined 

independent expenditures and 

coordination or cooperation between 

candidates and other persons in Buckley 

v. Valeo, 424 U.S. 1, 58 (1976), although 

coordination was not explicitly 

addressed in the Act at that time. See 

Public Law 93–443, 88 Stat. 1263 

(1974); Public Law 92–225, 86 Stat. 3 

(1972) (codified as amended at 2 U.S.C. 

431 et seq.). In Buckley, the Court 

distinguished expenditures that were 

not truly independent—that is, 

expenditures made in coordination with 

a candidate or the candidate’s 

authorized committee—from 

‘‘independent expenditures.’’ Buckley, 

424 U.S. at 46–47. The Court noted that 

a third party’s ‘‘prearrangement and 

coordination of an expenditure with the 

candidate or his agent’’ presents a 

‘‘danger that expenditures will be given 

as a quid pro quo for improper 

commitments from the candidate.’’ Id. at 

47. The Court further noted that the 

Act’s contribution limits must not be 

circumvented through ‘‘prearranged or 

coordinated expenditures amounting to 

disguised contributions.’’ Id. The Court 

concluded that a ‘‘contribution’’ 

includes ‘‘all expenditures placed in 

cooperation with or with the consent of 

a candidate, his agents, or an authorized 

committee of the candidate.’’ Id. at 78; 

see also id. at 47 n.53. 

After Buckley, Congress amended the 

Act to define an ‘‘independent 

expenditure’’ as ‘‘an expenditure by a 

person expressly advocating the election 

or defeat of a clearly identified 

candidate which is made without 

cooperation or consultation with any 

candidate’’ and ‘‘not made in concert 

with, or at the request or suggestion of’’ 

a candidate or the candidate’s 

authorized committee or agent. 2 U.S.C. 

431(p) (1976) (current version at 2 

U.S.C. 431(17)). Congress also amended 

the Act to provide that an expenditure 

‘‘shall be considered to be a 

contribution’’ when it is made by any 

person ‘‘in cooperation, consultation, or 

concert, with, or at the request or 

suggestion of’’ a candidate, a candidate’s 

authorized committees, or their agents. 

2 U.S.C. 441a(a)(7)(B)(i) (1976). The Act 

separately addressed as contributions 

expenditures made for the 

dissemination, distribution, or 

republication of campaign materials 

prepared by a candidate, a candidate’s 

authorized committees, or their agents. 

See 2 U.S.C. 441a(a)(7)(B)(ii) (1976) 

(now codified at 2 U.S.C. 

441a(a)(7)(B)(iii)). Although Congress 

made some further adjustments to the 

Act in the decades following Buckley, 

the coordination provisions in the Act 

remained substantially unchanged until 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 55949 

2Public Law 107–155, 116 Stat. 81 (2002). 

3See Colo. Republican Fed. Campaign Comm. v. 

FEC, 518 U.S. 604 (1996) (concluding that political 

parties may make independent expenditures on 

behalf of their Federal candidates); FEC v. Christian 

Coalition, 52 F. Supp. 2d 45, 92 (D.D.C. 1999) 

(‘‘Christian Coalition’’) (setting forth a test for 

concluding when an ‘‘expressive expenditure’’ 

becomes ‘‘coordinated’’ with a candidate). 

4The Court of Appeals for the District of 

Columbia has noted that ‘‘[a]part from this negative 

command—‘shall not require’—BCRA merely listed 

several topics the rules ‘shall address,’ providing no 

guidance as to how the FEC should address them.’’ 

Shays v. Federal FEC, 414 F.3d 76, 97–98 (DC Cir. 

2005). 

5A third case filed by the same Plaintiff, referred 

to as ‘‘Shays II,’’ addressed the Commission’s 

approach to regulating section 527 organizations 

and is not relevant to the coordination rules at issue 

in this rulemaking. See Shays v. FEC, 511 F. Supp. 

2d 19 (D.D.C. 2007). 

6A sixth conduct standard clarifies the 

application of the other five to the dissemination, 

distribution, or republication of campaign 

materials. See 11 CFR 109.21(d)(6) (2003). 

the Bipartisan Campaign Reform Act of 

2002 2 (‘‘BCRA’’), as discussed below. 

The Commission issued new 

regulations to implement these postBuckley changes to the Act. See H.R. 

Doc. No. 95–1A (1977). The new rules 

defined an ‘‘independent expenditure’’ 

as an ‘‘expenditure by a person for a 

communication expressly advocating 

the election or defeat of a clearly 

identified candidate which is not made 

with the cooperation or with the prior 

consent of, or in consultation with, or at 

the request or suggestion of’’ a candidate 

or committee and set forth the 

‘‘arrangements or conduct’’ constituting 

coordination. 11 CFR 109.1 (1977). In 

2001, the Commission adopted new 

coordinated communications 

regulations in response to several court 

decisions.3 See 11 CFR 100.23 (2001); 

Explanation and Justification for Final 

Rules on General Public Political 

Communications Coordinated with 

Candidates and Party Committees; 

Independent Expenditures, 65 FR 76138 

(Dec. 6, 2000). Drawing on judicial 

guidance in Christian Coalition, the 

Commission defined a new term, 

‘‘coordinated general public political 

communication’’ (‘‘GPPC’’), to address 

communications paid for by 

unauthorized committees, advocacy 

groups, and individuals that were 

coordinated with candidates or party 

committees. A GPPC that ‘‘included’’ a 

clearly identified candidate was 

coordinated if a third party paid for it 

and if it was created, produced, or 

distributed (1) at the candidate’s or 

party committee’s request or suggestion; 

(2) after the candidate or party 

committee exercised control or 

decision-making authority over certain 

factors; or (3) after ‘‘substantial 

discussion or negotiation’’ with the 

candidate or party committee regarding 

certain factors. 11 CFR 100.23(b) and (c) 

(2001). 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) 

(2001). 

C. Impact of BCRA on Coordinated 

Communications 

In 2002, Congress revised the 

coordination provisions in the Act. See 

BCRA at secs. 202, 214, 116 Stat. at 90– 

91, 94–95. BCRA retained the statutory 

provision that an expenditure is 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 candidate’s authorized committee, 

or the agents of either. See 2 U.S.C. 

441a(a)(7)(B)(i). BCRA added a similar 

provision governing coordination with 

political party committees: expenditures 

made by any person, other than a 

candidate or the candidate’s authorized 

committee, ‘‘in cooperation, 

consultation, or concert, with, or at the 

request or suggestion of’’ a national, 

State, or local party committee, are 

contributions to that political party 

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

BCRA also amended the Act to specify 

that a coordinated electioneering 

communication shall be a contribution 

to, and expenditure by, the candidate 

supported by that communication or 

that candidate’s party. See 2 U.S.C. 

441a(a)(7)(C); see also 2 U.S.C. 434(f)(3) 

(defining ‘‘electioneering 

communication’’). 

BCRA expressly repealed the GPPC 

regulation at 11 CFR 100.23 and 

directed the Commission to promulgate 

new regulations on ‘‘coordinated 

communications’’ in their place. See 

BCRA at sec. 214, 116 Stat. at 94–95. 

Although Congress did not define the 

term ‘‘coordinated communications’’ in 

BCRA, the statute specified that the 

Commission’s new regulations ‘‘shall 

not require agreement or formal 

collaboration to establish 

coordination.’’ 4 BCRA at sec. 214(c), 116 

Stat. at 95. BCRA also required that, 

‘‘[i]n addition to any subject determined 

by the Commission, the regulations 

shall address (1) payments for the 

republication of campaign materials; (2) 

payments for the use of a common 

vendor; (3) payments for 

communications directed or made by 

persons who previously served as an 

employee of a candidate or a political 

party; and (4) payments for 

communications made by a person after 

substantial discussion about the 

communication with a candidate or a 

political party.’’ BCRA at sec. 214(c), 116 

Stat. at 95; 2 U.S.C. 441a(7)(B)(ii) note. 

D. Coordinated Communications After 

BCRA 

As detailed below, the Commission 

promulgated revised coordinated 

communications regulations in 2002 as 

required by BCRA. Several aspects of 

those revised regulations were 

successfully challenged in Shays v. FEC, 

337 F. Supp. 2d 28 (D.DC 2004) (‘‘Shays 

I District’’), aff’d, Shays v. FEC, 414 F.3d 

76 (DC Cir. 2005) (‘‘Shays I Appeal’’), 

petition for reh’g en banc denied, No. 

04–5352 (DC Cir. Oct. 21, 2005). 

In 2006, the Commission further 

revised its coordination regulations in 

response to Shays I Appeal. These 

revised rules were themselves 

challenged in Shays v. FEC, 508 F. 

Supp. 2d 10 (D.DC 2007) (‘‘Shays III 

District’’), aff’d, Shays III Appeal, 528 

F.3d 914.5 The NPRM in this 

rulemaking was issued in response to 

Shays III Appeal. 

1. 2002 Rulemaking 

On December 17, 2002, the 

Commission promulgated regulations as 

required by BCRA. See 11 CFR 109.21 

(2003); see also Explanation and 

Justification for Final Rules on 

Coordinated and Independent 

Expenditures, 68 FR 421 (Jan. 3, 2003) 

(‘‘2002 E&J’’). The Commission’s 2002 

coordinated communication regulations 

set forth a three-prong test for 

determining whether a communication 

is a coordinated communication, and 

therefore an in-kind contribution to, and 

an expenditure by, a candidate, a 

candidate’s authorized committee, or a 

political party committee. See 11 CFR 

109.21(a). First, the communication 

must be paid for by someone other than 

a candidate, a candidate’s authorized 

committee, a political party committee, 

or the agents of either (the ‘‘payment 

prong’’). See 11 CFR 109.21(a)(1) (2003). 

Second, the communication must satisfy 

one of four content standards (the 

‘‘content prong’’). See 11 CFR 

109.21(a)(2), (c) (2003). Third, the 

communication must satisfy one of five 

conduct standards (the ‘‘conduct 

prong’’).6 See 11 CFR 109.21(a)(3) and (d) 

(2003). A communication must satisfy 

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55950 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

7 ‘‘Electioneering communication’’ is defined as 

‘‘any broadcast, cable, or satellite communication 

that: (1) Refers to a clearly identified candidate for 

Federal office; (2) is publicly distributed within 60 

days before a general election for the office sought 

by the candidate; or within 30 days before a 

primary or preference election, or a convention or 

caucus of a political party that has authority to 

nominate a candidate, for the office sought by the 

candidate, and the candidate referenced is seeking 

the nomination of that political party; and (3) is 

targeted to the relevant electorate, in the case of a 

candidate for Senate or the House of 

Representatives.’’ 11 CFR 100.29; see also 2 U.S.C. 

434(f)(3). 

8 ‘‘Public communication’’ is defined as 

‘‘communication by means of any broadcast, cable, 

or satellite communication, newspaper, magazine, 

outdoor advertising facility, mass mailing, or 

telephone bank to the general public, or any other 

form of general public political advertising.’’ 11 CFR 

100.26; see also 2 U.S.C. 431(22). 

9See 11 CFR 109.21(d)(4)(ii) for the specific 

services that a vendor must provide in order to 

trigger the common vendor standard. 

all three prongs to be a ‘‘coordinated 

communication.’’ 

The Commission also adopted a safe 

harbor at 11 CFR 109.21(f) for responses 

to inquiries about legislative or policy 

issues. See 2002 E&J, 68 FR at 440–41. 

a. Content Standards 

The 2002 coordinated communication 

regulations contained four content 

standards identifying communications 

whose ‘‘subject matter is reasonably 

related to an election.’’ 2002 E&J, 68 FR 

at 427. The first content standard was 

satisfied if the communication was an 

electioneering communication.7 See 11 

CFR 109.21(c)(1) (2003). The second 

content standard was satisfied by a 

public communication 8 made at any 

time that disseminates, distributes, or 

republishes campaign materials 

prepared by a candidate, a candidate’s 

authorized committee, or agents thereof. 

See 11 CFR 109.21(c)(2) (2003) and 

109.37(a)(2)(i) (2003). The third content 

standard was satisfied if a public 

communication made at any time 

expressly advocates the election or 

defeat of a clearly identified candidate 

for Federal office. See 11 CFR 

109.21(c)(3) (2003) and 109.37(a)(2)(ii) 

(2003). The 2002 version of the fourth 

content standard was satisfied if a 

public communication (1) refers to a 

political party or a clearly identified 

Federal candidate; (2) is publicly 

distributed or publicly disseminated 

120 days or fewer before an election (the 

‘‘120-day time window’’); and (3) is 

directed to voters in the jurisdiction of 

the clearly identified Federal candidate 

or to voters in a jurisdiction in which 

one or more candidates of the political 

party appear on the ballot. See 11 CFR 

109.21(c)(4) (2003). 

b. Conduct Standards 

The 2002 coordinated communication 

regulations also contained five conduct 

standards. A communication created, 

produced, or distributed (1) at the 

request or suggestion of, (2) after 

material involvement by, or (3) after 

substantial discussion with, a candidate, 

a candidate’s authorized committee, or 

a political party committee, would 

satisfy the first three conduct standards. 

See 11 CFR 109.21(d)(1)–(3) (2003). 

These three conduct standards were not 

at issue in Shays III Appeal, and are not 

addressed in this rulemaking. 

The remaining two conduct 

standards, which are at issue in this 

rulemaking, are the (1) ‘‘common 

vendor’’ and (2) ‘‘former employee’’ 

standards. The 2002 version of the 

common vendor conduct standard was 

satisfied if (1) the person paying for the 

communication contracts with, or 

employs, a ‘‘commercial vendor’’ to 

create, produce, or distribute the 

communication, (2) the commercial 

vendor has provided certain specified 

services to the political party committee 

or the clearly identified candidate 

referred to in the communication within 

the current election cycle, and (3) the 

commercial vendor uses or conveys 

information to the person paying for the 

communication about the plans, 

projects, activities, or needs of the 

candidate or political party committee, 

or information used by the commercial 

vendor in serving the candidate or 

political party committee, and that 

information is material to the creation, 

production, or distribution of the 

communication. See 11 CFR 

109.21(d)(4) (2003). 

The 2002 version of the former 

employee conduct standard was 

satisfied if (1) 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 

or the political party committee clearly 

identified in the communication within 

the current election cycle, and (2) the 

former employee or independent 

contractor uses or conveys information 

to the person paying for the 

communication about the plans, 

projects, activities, or needs of the 

candidate or political party committee, 

or information used by the former 

employee or independent contractor in 

serving the candidate or political party 

committee, and that information is 

material to the creation, distribution, or 

production of the communication. See 

11 CFR 109.21(d)(5) (2003). 

These two conduct standards covered 

only former employees, independent 

contractors, and vendors 9 who had 

provided services to a candidate or 

party committee during the ‘‘current 

election cycle,’’ as defined in 11 CFR 

100.3. 2002 E&J, 68 FR at 436; 11 CFR 

109.21(d)(4) and (5) (2003). 

2. Shays I Appeal 

The Court of Appeals in Shays I 

Appeal held that the Act did not 

preclude content-based standards for 

coordinated communications. Shays I 

Appeal, 414 F.3d at 99–100 (applying 

Chevron U.S.A., Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837 (1984)). 

Nonetheless, the court found the 120- 

day time window in the fourth standard 

of the content prong of the coordinated 

communication regulations to be 

unsupported by adequate explanation 

and justification and, thus, arbitrary and 

capricious under the Administrative 

Procedure Act (‘‘APA’’). Shays I Appeal, 

414 F.3d at 102. Although the Court of 

Appeals found the explanation for the 

particular time frame to be lacking, the 

Shays I Appeal court rejected the 

argument that the Commission is 

precluded from establishing a ‘‘bright 

line test.’’ Id. at 99. 

The Shays I Appeal court concluded 

that the regulation’s ‘‘fatal defect’’ was in 

offering no persuasive justification for 

the 120-day time window and ‘‘the weak 

restraints applying outside of it.’’ Id. at 

100. The court concluded that, by 

limiting coordinated communications 

made outside of the 120-day time 

window to communications containing 

express advocacy or the republication of 

campaign materials, the Commission 

‘‘has in effect allowed a coordinated 

communication free-for-all for much of 

each election cycle.’’ Id. Indeed, the 

‘‘most important’’ question the court 

asked was, ‘‘would candidates and 

collaborators aiming to influence 

elections simply shift coordinated 

spending outside that period to avoid 

the challenged rules’ restrictions?’’ Id. at 

102. 

The Shays I Appeal decision required 

the Commission to undertake a factual 

inquiry to determine whether the 

temporal line that it drew ‘‘reasonably 

defines the period before an election 

when non-express advocacy likely 

relates to purposes other than 

‘influencing’ a Federal election’’ or 

whether it ‘‘will permit exactly what 

BCRA aims to prevent: evasion of 

campaign finance restrictions through 

unregulated collaboration.’’ Id. at 101– 

02. 

3. 2005 Rulemaking 

Following the Shays I Appeal 

decision, the Commission proposed 

seven alternatives for revising the 

content prong. See Notice of Proposed 

Rulemaking on Coordinated 

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10The court did not address the republication of 

campaign materials, see 11 CFR 109.21(c)(2), in its 

analysis of the period outside the time windows. 

11 ‘‘Magic words’’ are ‘‘examples of words of 

express advocacy, such as ‘vote for,’ ‘elect,’ 

‘support,’ * * * ‘defeat,’ [and] ‘reject.’ ’’ McConnell 

v. FEC, 540 U.S. 93, 191 (2003) (quoting Buckley, 

424 U.S. at 44 n.52). 

12An ‘‘expenditure’’ includes ‘‘any purchase, 

payment, distribution, loan, advance, deposit, or 

gift of money or anything of value, made by any 

person for the purpose of influencing any election 

for Federal office.’’ 2 U.S.C. 431(9); see also 11 CFR 

100.111(a). 

Communications, 70 FR 73946 (Dec. 14, 

2005) (‘‘2005 NPRM’’). The Commission 

also used licensed data that provided 

empirical information regarding the 

timing, frequency, and cost of television 

advertising spots in the 2004 election 

cycle. See Supplemental Notice of 

Proposed Rulemaking on Coordinated 

Communications, 71 FR 13306 (Mar. 15, 

2006). 

Although not challenged in Shays I 

Appeal, the ‘‘election cycle’’ time frame 

of the common vendor and former 

employee conduct standards at 11 CFR 

109.21(d)(4) and (5), among other 

aspects of that prong, was also 

reconsidered in the 2005 NPRM. The 

Commission sought comment on how 

the ‘‘election cycle’’ time limitation 

works in practice and whether the 

strategic value of information on a 

candidate’s plans, products, and 

activities lasts throughout the election 

cycle. 2005 NPRM, 70 FR at 73955–56. 

In 2006, the Commission promulgated 

revised rules that retained the content 

prong at 11 CFR 109.21(c), but revised 

the time periods in the fourth content 

standard. See Explanation and 

Justification for Final Rules on 

Coordinated Communications, 71 FR 

33190 (June 8, 2006) (‘‘2006 E&J’’). 

Relying on the licensed empirical data, 

the Commission revised the coordinated 

communication regulation at 11 CFR 

109.21(c)(4) and applied different time 

periods for communications 

coordinated with Presidential 

candidates (120 days before a state’s 

primary through the general election), 

congressional candidates (separate 90- 

day time windows before a primary and 

before a general election), and political 

parties (tied to either the Presidential or 

congressional time periods, depending 

on the communication and election 

cycle). See id. 

The 2006 coordinated communication 

regulations also reduced the period of 

time during which a common vendor’s 

or former employee’s relationship with 

the authorized committee or political 

party committee referred to in the 

communication could satisfy the 

conduct prong, from the entire election 

cycle to 120 days. 2006 E&J, 71 FR at 

33204. The 2006 E&J noted that, 

especially in regard to the six-year 

Senate election cycles, the ‘‘election 

cycle’’ time limit was ‘‘overly broad and 

unnecessary to the effective 

implementation of the coordination 

provisions.’’ Id. The 2006 E&J reasoned 

that 120 days was a ‘‘more appropriate’’ 

limit. Id. 

The Commission also adopted new 

safe harbors at 11 CFR 109.21(d)(2)–(5) 

for use of publicly available 

information, 11 CFR 109.21(g) for 

endorsements and solicitations by 

Federal candidates, and 11 CFR 

109.21(h) for the establishment and use 

of a firewall. See 2006 E&J, 71 FR at 

33201–02, 33205–07. 

4. Shays III Appeal 

On June 13, 2008, the Court of 

Appeals issued its opinion in Shays III 

Appeal. The court addressed both the 

content and conduct prongs of the 

coordinated communication regulations. 

a. Content Standards 

The Shays III Appeal opinion held 

that the Commission’s decision to apply 

‘‘express advocacy’’ as the only content 

standard 10 outside the 90-day and 120- 

day windows ‘‘runs counter to BCRA’s 

purpose as well as the APA.’’ Shays III 

Appeal, 528 F.3d at 926. The court 

found that, although the administrative 

record demonstrated that the ‘‘vast 

majority’’ of advertisements were run in 

the more strictly regulated 90-day and 

120-day windows, a ‘‘significant 

number’’ of advertisements ran before 

those windows and ‘‘very few ads 

contain magic words.’’ 11 Id. at 924. The 

Shays III Appeal court held that ‘‘the 

FEC’s decision to regulate ads more 

strictly within the 90/120-day windows 

was perfectly reasonable, but its 

decision to apply a ‘functionally 

meaningless’ standard outside those 

windows was not.’’ Id. at 924 (quoting 

McConnell v. FEC, 540 U.S. 93, 193 

(2003) (concluding that Buckley’s ‘magic 

words’ requirement is ‘‘functionally 

meaningless’’), overruled in part by 

Citizens United, 130 S. Ct. at 913); see 

also McConnell v. FEC, 251 F. Supp. 2d 

176, 303–04 (D.DC 2003) (Henderson, 

J.); id. at 534 (Kollar-Kotelly, J.); id. at 

875–79 (Leon, J.)) (discussing ‘‘magic 

words’’). 

The court noted that ‘‘although the 

FEC * * * may choose a content 

standard less restrictive than the most 

restrictive it could impose, it must 

demonstrate that the standard it selects 

‘rationally separates election-related 

advocacy from other activity falling 

outside FECA’s expenditure 

definition.’ ’’ 12 Shays III Appeal, 528 

F.3d at 926 (quoting Shays I Appeal, 414 

F.3d at 102). The court stated that ‘‘the 

‘express advocacy’ standard fails that 

test,’’ but did not explicitly articulate a 

less restrictive standard that would meet 

the test. Id. 

The court expressed particular 

concern about a possible scenario in 

which, ‘‘more than 90/120 days before 

an election, candidates may ask wealthy 

supporters to fund ads on their behalf, 

so long as those ads do not contain 

magic words.’’ Id. at 925. The court 

noted that the Commission ‘‘would do 

nothing about’’ such coordination, ‘‘even 

if a contract formalizing the 

coordination and specifying that it was 

‘for the purpose of influencing a federal 

election’ appeared on the front page of 

the New York Times.’’ Id. The court held 

that such a rule not only frustrates 

Congress’s purpose to prohibit funds in 

excess of the applicable contribution 

limits from being used in connection 

with Federal elections, but ‘‘provides a 

clear roadmap for doing so.’’ Id. 

b. Conduct Standards 

The Shays III Appeal court also 

invalidated the 120-day period of time 

during which a common vendor’s or 

former campaign employee’s 

relationship with an authorized 

committee or political party committee 

could satisfy the conduct prong at 11 

CFR. 109.21(d)(4) and (d)(5). Shays III 

Appeal, 528 F.3d at 928–29. The Shays 

III Appeal court found that with respect 

to the change in the 2006 coordinated 

communication regulations from the 

‘‘current election cycle’’ to a 120-day 

period, ‘‘the Commission’s 

generalization that material information 

may not remain material for long 

overlooks the possibility that some 

information * * * may very well 

remain material for at least the duration 

of a campaign.’’ Id. at 928. The court 

therefore found that the Commission 

had failed to justify the change to a 120- 

day time window, and, as such, the 

change was arbitrary and capricious. Id. 

The court concluded that, while the 

Commission may have discretion in 

drawing a bright line in this area, it had 

not provided an adequate explanation 

for the 120-day time period, and that the 

Commission must support its decision 

with reasoning and evidence. Id. at 929. 

E. Current Rulemaking 

On October 21, 2009, the Commission 

published the NPRM in this rulemaking 

in response to Shays III Appeal. See 74 

FR 53893. The deadline for public 

comment on the NPRM was January 19, 

2010. Two days after the close of the 

NPRM’s comment period, on January 

21, 2010, the Supreme Court issued its 

decision in Citizens United. Because 

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13See 11 CFR 114.15. The Commission intends to 

issue a separate NPRM to address the regulations 

at 11 CFR 114.15 in light of the Supreme Court’s 

decision in Citizens United. 

Citizens United raised issues that were 

potentially relevant to this rulemaking, 

the Commission published the SNPRM. 

See 75 FR 6590. As discussed more fully 

below, the SNPRM re-opened the 

comment period and sought additional 

comment as to the effect of the Citizens 

United decision on the proposed rules, 

issues, and questions raised in the 

NPRM. 

II. Coordinated Communications 

Content Prong Revisions (11 CFR 

109.21(c)(3) and (c)(5)) 

The Commission is revising the 

content prong of the coordinated 

communication rules at 11 CFR 

109.21(c) in response to Shays III 

Appeal. As explained further below, the 

Commission is adding a new standard to 

the content prong of the coordinated 

communication rules. New 11 CFR 

109.21(c)(5) covers public 

communications that are the functional 

equivalent of express advocacy. 

The new functional equivalent 

content standard was the second of four 

alternative approaches that the 

Commission proposed in the NPRM. 

The Commission also proposed 

adopting a content standard that would 

cover public communications that 

promote, support, attack, or oppose a 

political party or a clearly identified 

candidate (the ‘‘PASO standard’’). In 

addition, the Commission proposed 

clarifying the express advocacy content 

standard by including a cross-reference 

to 11 CFR 100.22. Finally, the 

Commission proposed covering all 

public communications made for the 

purpose of influencing an election that 

are the product of an explicit agreement 

between a candidate, authorized 

committee, or political party committee 

and the person paying for the 

communication (the ‘‘Explicit 

Agreement’’ standard). The proposed 

approaches that the Commission is not 

adopting are discussed in Part III, 

below. 

A. Functional Equivalent of Express 

Advocacy—11 CFR 109.21(c)(5) 

The new content standard applies to 

any public communication that is the 

‘‘functional equivalent of express 

advocacy.’’ New 11 CFR 109.21(c)(5) 

specifies that a communication is the 

functional equivalent of express 

advocacy if it is susceptible of no 

reasonable interpretation other than as 

an appeal to vote for or against a clearly 

identified Federal candidate. The new 

content standard applies without regard 

to the timing of the communication or 

the targeted audience. 

Shays III Appeal required the 

Commission to adopt a content standard 

that ‘‘ ‘rationally separates electionrelated advocacy from other activity 

falling outside FECA’s expenditure 

definition.’ ’’ Shays III Appeal, 528 F.3d 

at 926 (quoting Shays I Appeal, 414 F.3d 

at 102). Specifically, the Court indicated 

that the Commission must choose a 

content standard that is more inclusive 

than ‘‘express advocacy’’ to apply 

outside the 90-day and 120-day time 

windows. Id. The Commission has 

determined that the functional 

equivalent of express advocacy content 

standard best meets these criteria. In 

this, the Commission agrees with the 

majority of the commenters that the 

concept of the functional equivalent of 

express advocacy, which the Supreme 

Court first articulated in McConnell, 

then explained in FEC v. Wisconsin 

Right to Life, Inc. (‘‘WRTL’’), and later 

applied in Citizens United, is broader 

than express advocacy and provides a 

rational basis for separating electoral 

from non-electoral speech. See Citizens 

United, 130 S. Ct. at 889–90; WRTL, 551 

U.S. 449, 469–70 (2007); McConnell, 540 

U.S. at 204–06, overruled in part by 

Citizens United, 130 S. Ct. at 913. 

1. Origin and Application of the New 

Standard 

The functional equivalent of express 

advocacy standard has its origins in the 

Supreme Court’s decision in McConnell. 

In that case, the Supreme Court rejected 

a facial challenge to BCRA’s prohibition 

on the use of corporate and labor 

organization treasury funds to pay for 

electioneering communications, ‘‘to the 

extent that issue ads broadcast during 

the 30- and 60-day periods preceding 

federal primary and general elections 

are the functional equivalent of express 

advocacy.’’ McConnell, 540 U.S. at 206. 

In WRTL, the Supreme Court 

explained the standard when it 

addressed BCRA’s prohibitions on 

corporate and labor organization 

funding of electioneering 

communications, as they applied to 

three particular ads financed by a 

nonprofit corporation. As discussed 

below, the Court’s controlling opinion 

set forth a test for determining when 

communications contain the ‘‘functional 

equivalent of express advocacy.’’ 551 

U.S. at 466–67, 469–70. Following the 

WRTL decision, the Commission 

promulgated rules that incorporated the 

functional equivalent of express 

advocacy test, discussed below, in a 

provision governing the funding of 

electioneering communications by 

corporations and labor organizations.13

The Supreme Court applied the 

functional equivalent of express 

advocacy test a second time in Citizens 

United. In that decision, the Court 

found, among other things, that the 

provision in BCRA prohibiting 

corporations and labor organizations 

from using their general treasury funds 

to pay for electioneering 

communications was unconstitutional. 

See Citizens United, 130 S. Ct. at 889– 

90, 913. 

The final rule at 11 CFR 109.21(c)(5) 

adopts the Supreme Court’s functional 

equivalent of express advocacy test. ‘‘As 

explained by The Chief Justice’s 

controlling opinion in WRTL, the 

functional-equivalent test is objective: ‘a 

court should find that [a 

communication] is the functional 

equivalent of express advocacy only if 

[it] is susceptible of no reasonable 

interpretation other than as an appeal to 

vote for or against a specific 

candidate.’ ’’ Citizens United, 130 S. Ct. 

at 889–90 (quoting WRTL, 551 U.S. at 

469–470). 

In applying the test, the Commission 

will follow the Supreme Court’s 

reasoning and application of the test to 

the communications at issue in WRTL 

and Citizens United. 

In WRTL, the Court found that the 

particular ads in question were not the 

functional equivalent of express 

advocacy. WRTL ran three similar radio 

advertisements. The transcript of 

‘‘Wedding’’ reads as follows: 

PASTOR: And who gives this woman to be 

married to this man? 

BRIDE’S FATHER: Well, as father of the 

bride, I certainly could. But instead, I’d like 

to share a few tips on how to properly install 

drywall. Now you put the drywall up * * * 

VOICE–OVER: Sometimes it’s just not fair 

to delay an important decision. But in 

Washington it’s happening. A group of 

Senators is using the filibuster delay tactic to 

block federal judicial nominees from a 

simple yes or no vote. So qualified 

candidates don’t get a chance to serve. It’s 

politics at work, causing gridlock and 

backing up some of our courts to a state of 

emergency. Contact Senators Feingold and 

Kohl and tell them to oppose the filibuster. 

Visit: BeFair.org. Paid for by Wisconsin Right 

to Life (befair.org), which is responsible for 

the content of this advertising and not 

authorized by any candidate or candidate’s 

Committee. 

WRTL aired a similar radio 

advertisement entitled ‘‘Loan,’’ which 

only differs from ‘‘Wedding’’ in its 

introduction. The ‘‘Loan’’ radio script 

begins: 

LOAN OFFICER: Welcome Mr. and Mrs. 

Shulman. We’ve reviewed your loan 

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application, along with your credit report, 

the appraisal on the house, the inspections, 

and well * * * 

COUPLE: Yes, yes * * * we’re listening. 

OFFICER: Well, it all reminds me of a time 

I went fishing with my father. We were on 

the Wolf River Waupaca * * * 

VOICE–OVER: Sometimes it’s just not fair 

to delay an important decision. But in 

Washington it’s happening * * *. 

The remainder of the script is identical 

to ‘‘Wedding.’’ 

The third WRTL communication is a 

television advertisement, ‘‘Waiting,’’ 

where ‘‘the images on the television ad 

depict a middle-aged man being as 

productive as possible while his 

professional life is in limbo. The man 

reads the morning paper, polishes his 

shoes, scans through his Rolodex, and 

does other similar activities.’’ WRTL, 

551 U.S. at 459 n.5. The television script 

reads: 

VOICE–OVER: There are a lot of judicial 

nominees out there who can’t go to work. 

Their careers are put on hold because a group 

of Senators is filibustering—blocking 

qualified nominees from a simple yes or no 

vote. It’s politics at work and it’s causing 

gridlock. 

The Supreme Court stated that ‘‘the 

remainder of the script is virtually 

identical to ‘Wedding.’ ’’ Id. 

In finding that the advertisements 

were not the functional equivalent of 

express advocacy and explaining its 

rationale, the Supreme Court stated: 

Under this test, WRTL’s three ads are 

plainly not the functional equivalent of 

express advocacy. First, their content is 

consistent with that of a genuine issue ad: 

The ads focus on a legislative issue, take a 

position on the issue, exhort the public to 

adopt that position, and urge the public to 

contact public officials with respect to the 

matter. Second, their content lacks indicia of 

express advocacy: The ads do not mention an 

election, candidacy, political party, or 

challenger; and they do not take a position 

on a candidate’s character, qualifications, or 

fitness for office. 

WRTL, 551 U.S. at 470. 

In Citizens United, the Court applied 

the same ‘‘functional-equivalent test’’ to 

a 90-minute documentary about thenSenator Hillary Clinton, who was a 

candidate in the Democratic Party’s 

2008 Presidential primary elections. 

Citizens United, 130 S. Ct. at 887. The 

Court found: 

Under this test, Hillary is equivalent to 

express advocacy. The movie, in essence, is 

a feature-length negative advertisement that 

urges viewers to vote against Senator Clinton 

for President. In light of historical footage, 

interviews with persons critical of her, and 

voiceover narration, the film would be 

understood by most viewers as an extended 

criticism of Senator Clinton’s character and 

her fitness for the office of the Presidency. 

The narrative may contain more suggestions 

and arguments than facts, but there is little 

doubt that the thesis of the film is that she 

is unfit for the Presidency. The movie 

concentrates on alleged wrongdoing during 

the Clinton administration, Senator Clinton’s 

qualifications and fitness for office, and 

policies the commentators predict she would 

pursue if elected President. It calls Senator 

Clinton ‘‘Machiavellian’’ and asks whether 

she is ‘‘the most qualified to hit the ground 

running if elected President.’’ The narrator 

reminds viewers that ‘‘Americans have never 

been keen on dynasties’’ and that ‘‘a vote for 

Hillary is a vote to continue 20 years of a 

Bush or a Clinton in the White House.’’ 

Citizens United argues that Hillary is just 

‘‘a documentary film that examines certain 

historical events.’’ We disagree. The movie’s 

consistent emphasis is on the relevance of 

these events to Senator Clinton’s candidacy 

for President. The narrator begins by asking 

‘‘could [Senator Clinton] become the first 

female President in the history of the United 

States?’’ And the narrator reiterates the 

movie’s message in his closing line: ‘‘Finally, 

before America decides on our next 

president, voters should need no reminders 

of * * * what’s at stake—the well being and 

prosperity of our nation.’’ 

As the District Court found, there is no 

reasonable interpretation of Hillary other 

than as an appeal to vote against Senator 

Clinton. Under the standard stated in 

McConnell and further elaborated in WRTL, 

the film qualifies as the functional equivalent 

of express advocacy. 

Id. at 890 (internal citations to record 

omitted). 

As stated above, in its application of 

the functional equivalent of express 

advocacy test, the Commission will be 

guided by the Supreme Court’s 

reasoning and application of the test. A 

communication will be considered the 

functional equivalent of express 

advocacy if it is susceptible of no 

reasonable interpretation other than as 

an appeal to vote for or against a clearly 

identified Federal candidate. 

2. Proposed Rule and Comments 

Received 

The new functional equivalent 

content standard at 11 CFR 109.21(c)(5) 

is identical to the one proposed in the 

NPRM. Sixteen commenters provided 

comments on the proposed content 

standard. Of the sixteen, eleven 

commenters supported the proposal and 

five opposed it. 

Three commenters argued that the 

functional equivalent of express 

advocacy standard does not apply to 

coordinated communications. They 

noted that the court cases in which the 

standard was developed did not address 

coordinated speech. In their view, the 

functional equivalent of express 

advocacy standard, like the express 

advocacy standard, was developed as a 

constitutional limitation for 

independent speech by persons other 

than candidates and political 

committees and was never intended to 

apply to candidates, political parties, or 

those who coordinate with them. 

Eight commenters disagreed and 

argued that the functional equivalent of 

express advocacy test could be 

appropriately used in the coordinated 

communication context. In particular, 

several commenters asserted that 

nothing in the test is expressly or 

impliedly limited to independent 

speech; rather, the functional equivalent 

test, which focuses on the 

communication’s content, incorporates 

general principles of campaign finance 

law that are equally applicable to 

coordinated speech. 

A number of the commenters 

supporting the functional equivalent 

standard noted that the standard ‘‘both 

has the imprimatur of the Supreme 

Court and the virtue of using language 

with which the regulated community is 

now familiar.’’ As one commenter 

stated: 

[A]lthough it is not perfect, the Wisconsin 

Right to Life standard is something that 

people are familiar with, it is already in 

[Commission] regulations, and in fact, the 

regulated community has had experience 

under that standard in the 2008 election, and 

* * * both corporate and union and other 

types of organizations seem to have 

effectively used that standard just two days 

before the Citizens United opinion in a 

special election in Massachusetts. 

The Commission received eight 

comments on whether the proposed 

functional equivalent content standard 

would satisfy the concerns of the Shays 

III Appeal court. A majority of those 

commenters who addressed the topic 

concluded that the test would satisfy the 

court. In particular, several commenters 

asserted that a functional equivalent 

content standard would rationally 

separate election-related speech from 

non-electoral speech. Two of these 

commenters observed that the proposed 

functional equivalent standard would 

accomplish this goal because it is an 

objective standard that was designed by 

the Supreme Court as a means of 

identifying election-related advocacy. 

One commenter noted that the Supreme 

Court had developed the functional 

equivalent of express advocacy test to 

‘‘address exactly what Shays III 

criticized—regulation based solely on a 

‘functionally meaningless’ express 

advocacy standard.’’ 

By contrast, three commenters 

maintained that a functional equivalent 

content standard would be overly 

similar to the express advocacy content 

standard, which was rejected by the 

Shays III Appeal court. These 

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14The NPRM also sought comment on the 

application of the functional equivalent of express 

advocacy test to a number of examples. The 

Commission received no comments on those 

examples. As noted above, the Commission will 

follow the Supreme Court’s reasoning and 

application of the test. 

15Party coordinated communications are 

addressed in 11 CFR 109.37. 

16See Part III(B) below, regarding the proposal in 

the NPRM to address the Shays III Appeal court’s 

concerns solely by adding a cross reference to the 

express advocacy definition in the express 

advocacy content standard. 

commenters argued that the proposed 

standard, like the express advocacy 

standard, is under-inclusive, and would 

fail to rationally separate electionrelated speech from other 

communications as required by Shays 

III Appeal. 

Several commenters urged the 

Commission to adopt a standard that 

would protect lobbying and similar 

policy communications, and that would 

neither deter nor prohibit the legitimate 

efforts of groups to influence legislation 

and policy. These commenters observed 

that groups often work closely with 

officeholders who are also Federal 

candidates on public communications 

involving legislative efforts, grassroots 

lobbying, issue advocacy, and 

educational messages that are 

completely unrelated to elections. They 

noted that groups often coordinate with 

these officeholders on the timing and 

content of communications in order to 

generate public support for legislation. 

The Commission received thirteen 

comments on whether a functional 

equivalent content standard should 

incorporate any elements of the 

regulations at 11 CFR 114.15 

implementing the Supreme Court’s 

decision in WRTL, or whether the 

Commission should use criteria other 

than those set forth in WRTL and 

Citizens United for determining when a 

communication is the functional 

equivalent of express advocacy. 

The commenters were divided in their 

approach. Six commenters opposed 

adding additional criteria to the 

proposed functional equivalent content 

standard; they argued that there was no 

need, after Citizens United, for any 

regulatory elaboration of the test. 

Conversely, one commenter argued that 

the functional equivalent test as 

developed by the Supreme Court was 

neither objective nor clear, and urged 

the Commission to enumerate specific 

words that would indicate that a 

communication was unambiguously 

related to an election because of a 

reference to a candidacy, voting, or 

election. Another commenter supported 

incorporating all the elements of 11 CFR 

114.15 into a functional equivalent 

content standard, while a different 

commenter argued that the rules at 11 

CFR 114.15 are too vague. Five 

commenters argued in favor of a bright 

line rule. Two commenters urged the 

Commission to adopt language from the 

WRTL decision stating that, in 

considering whether a communication 

is the functional equivalent of express 

advocacy, ‘‘the tie goes to the 

speaker.’’ 14 WRTL, 551 U.S. at 474 & n.7. 

The new content standard applies to 

all speakers subject to revised 11 CFR 

109.21 15—including individuals and 

advocacy organizations—without regard 

to when a communication is made or its 

intended audience. The functional 

equivalent of express advocacy test has 

been applied by the Supreme Court as 

a stand-alone test for separating 

election-related speech that is not 

express advocacy from non-election 

related speech. Additionally, the 

Supreme Court developed the 

functional equivalent of express 

advocacy test for communications by 

the full range of speakers covered by the 

coordinated communication rules. As 

noted by the commenters, groups often 

work closely with officeholders on 

public communications involving 

legislation, grassroots lobbying, issue 

advocacy, and educational messages 

that are completely unrelated to 

elections. In recognition of these 

interests, the Commission has decided 

to use an objective, well-established 

standard that has been sanctioned by 

the Supreme Court and that is familiar 

to those subject to it. As the court noted 

in Shays III Appeal, ‘‘the FEC, properly 

motivated by First Amendment 

concerns, may choose a content 

standard less restrictive than the most 

restrictive it could impose.’’ 528 F.3d at 

926. 

In addition, the functional equivalent 

of express advocacy content standard 

best serves to separate election-related 

advocacy from other speech in the 

periods outside the 90- and 120-day preelection time windows, where the 

content standard likely will have its 

greatest impact. See 11 CFR 109.21(c)(4) 

(public communications satisfy content 

standard within the pre-election 

windows with references to clearly 

identified candidates or political 

parties). Like the express advocacy and 

republication content standards at 11 

CFR 109.21(c)(2) and (c)(3), the new 

content standard applies both inside 

and outside of the 90- and 120-day time 

windows in the fourth content standard 

at 11 CFR 109.21(c)(4). Outside of those 

time windows, a significantly lower 

percentage of ads have the purpose and 

effect of influencing Federal elections. 

See 2006 Final Rule at 33193–97; 

Citizens United, 130 S. Ct. at 895 (‘‘It is 

well known that the public begins to 

concentrate on elections only in the 

weeks immediately before they are held. 

There are short timeframes in which 

speech can have influence.’’). 

As required by Shays III Appeal, the 

new content standard also captures 

more communications than the express 

advocacy content standard outside of 

the 90-day and 120-day time windows. 

As one commenter noted, the functional 

equivalent of express advocacy 

necessarily encompasses more than 

express advocacy. As discussed above, 

the functional equivalent of express 

advocacy content standard would apply 

to all communications that are 

‘‘susceptible of no reasonable 

interpretation other than as an appeal to 

vote for or against a clearly identified 

Federal candidate.’’ For each of these 

reasons, the Commission concludes that 

the functional equivalent test satisfies 

the concerns of the Shays III Appeal 

court. Accordingly, the Commission has 

decided to adopt the functional 

equivalent of express advocacy test as a 

new content prong for determining 

whether a communication is 

coordinated. 

B. Technical Amendment—11 CFR 

109.21(c)(3) 

The Commission is making a 

technical change to the express 

advocacy content standard at 11 CFR 

109.21(c)(3) by adding a cross-reference 

to the definition of express advocacy at 

11 CFR 100.22. 

This change is identical to the one 

proposed as part of Alternative 2 in the 

NPRM. The Commission received no 

comments on this aspect of proposed 

Alternative 2.16

III. Proposed Content Standards Not 

Adopted 

The Commission is not adopting any 

of the other proposals from the NPRM 

for revising the content prong of the 

coordinated communications rule. In 

addition to the functional equivalent of 

express advocacy content standard 

discussed above, the NPRM contained 

three alternative proposals: (1) Adopting 

a content standard to cover public 

communications that promote, support, 

attack, or oppose a political party or a 

clearly identified Federal candidate (the 

‘‘PASO standard’’); (2) clarifying the 

express advocacy content standard by 

adding a reference to the definition of 

express advocacy in 11 CFR 100.22; and 

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(3) adopting a new content standard and 

a new conduct standard to address 

public communications for which there 

is explicit agreement (the ‘‘Explicit 

Agreement’’ standard). 

A. Proposed Alternative 1—Promote, 

Support, Attack or Oppose (‘‘PASO’’) 

The Commission is not adopting 

proposed Alternative 1, which would 

have amended 11 CFR 109.21(c) by 

replacing the express advocacy standard 

with a PASO standard. Under the 

proposed PASO standard, any public 

communication that promoted, 

supported, attacked, or opposed a 

political party or a clearly identified 

Federal candidate would have met the 

content prong of the coordinated 

communications test, without regard to 

when the communication was made or 

the targeted audience. The Commission 

is also not adopting a definition of 

PASO as proposed in the NPRM. 

1. Background 

In BCRA, Congress created a number 

of new campaign finance provisions that 

apply to communications that PASO 

Federal candidates. For example, 

Congress included public 

communications that refer to a 

candidate for Federal office and that 

PASO a candidate for that office as one 

type of Federal election activity (‘‘Type 

III’’ Federal election activity). BCRA 

requires that State, district, and local 

party committees, Federal candidates, 

and State candidates pay for PASO 

communications entirely with Federal 

funds. See 2 U.S.C. 431(20)(A)(iii) and 

441i(b), (e), and (f); see also 2 U.S.C. 

441i(d) (prohibiting national, State, 

district, and local party committees 

from soliciting donations for tax-exempt 

organizations that make expenditures or 

disbursements for Federal election 

activity). 

Congress also included PASO as part 

of the backup definition of 

‘‘electioneering communication,’’ should 

that term’s primary definition be found 

to be constitutionally insufficient. See 

2 U.S.C. 434(f)(3)(A)(ii). In addition, 

Congress incorporated by reference 

Type III Federal election activity as a 

limit on the exemptions that the 

Commission may make from the 

definition of ‘‘electioneering 

communication.’’ See 2 U.S.C. 

434(f)(3)(B)(iv); see also 2 U.S.C. 

431(20)(A)(iii). Congress did not define 

PASO or any of its component terms. 

Accordingly, the Commission 

incorporated PASO in its regulations 

defining ‘‘Federal election activity,’’ and 

in the soft money rules governing State 

and local party committee 

communications and the allocation of 

funds for these communications. See 11 

CFR 100.24(b)(3) and (c)(1), 300.33(c), 

300.71, and 300.72. The Commission 

also incorporated PASO as a limit to the 

exemption for State and local 

candidates from the definition of 

‘‘electioneering communication,’’ and as 

a limit to the safe harbors from the 

coordinated communications rules for 

endorsements and solicitations. See 11 

CFR 100.29(c)(5) and 109.21(g). To date, 

the Commission has not adopted a 

regulatory definition of either PASO or 

any of its component terms. 

The Supreme Court in McConnell 

upheld the statutory PASO standard in 

the context of BCRA’s provisions 

limiting party committees’ Federal 

election activities to Federal funds, 

noting that ‘‘any public communication 

that promotes or attacks a clearly 

identified federal candidate directly 

affects the election in which he is 

participating.’’ McConnell, 540 U.S. at 

170. The Court further found that Type 

III Federal election activity was not 

unconstitutionally vague because the 

‘‘words ‘promote,’ ‘oppose,’ ‘attack,’ and 

‘support’ clearly set forth the confines 

within which potential party speakers 

must act in order to avoid triggering the 

provision.’’ Id. at 170 n.64. The Court 

stated that the PASO words ‘‘‘provide 

explicit standards for those who apply 

them’ and ‘give the person of ordinary 

intelligence a reasonable opportunity to 

know what is prohibited.’’’ Id. (quoting 

Grayned v. City of Rockford, 408 U.S. 

104, 108–09 (1972)). The Court stated 

that this is ‘‘particularly the case’’ with 

regard to Federal election activity, 

‘‘since actions taken by political parties 

are presumed to be in connection with 

election campaigns.’’ Id. 

2. Comments Received 

The commenters were divided on the 

proposed PASO content standard. Some 

commenters asserted that PASO would 

be most consistent with BCRA’s 

purpose; that it would be a ‘‘fair proxy’’ 

for determining when a communication 

is for the purpose of influencing a 

Federal election; and that it would be 

most responsive to the Shays III Appeal 

court’s requirement that the 

Commission adopt a content standard 

that rationally separates election-related 

advocacy from other activity falling 

outside of the Act’s expenditure 

definition. Other commenters, however, 

argued that the PASO standard would 

reach non-electoral speech and, thus, 

would not rationally separate electionrelated advocacy from activity falling 

outside of the Act’s expenditure 

definition as required by Shays III 

Appeal. Additionally, some of these 

commenters argued that the PASO 

standard should not be extended to 

contexts other than those defined in 

BCRA and approved by the Supreme 

Court in McConnell—that is, Federal 

election activities of political parties. 

See McConnell, 540 U.S. at 170. 

The Commission notes that it has 

used PASO in both the coordinated 

communications safe harbor for 

endorsements and solicitations, and in 

the new coordination safe harbor for 

commercial communications discussed 

in Part V below, even though such uses 

were not required by BCRA. See 11 CFR 

109.21(g) and (i). Nonetheless, the 

Commission is not adopting the PASO 

standard because it has decided that the 

Shays III Appeal court’s mandate is best 

addressed by adopting a content 

standard based on the functional 

equivalent of express advocacy, for the 

reasons given in Part II above. 

Nor is the Commission adopting any 

definition of PASO, as proposed in the 

NPRM. In the NPRM, the Commission 

stated that it was considering possible 

definitions of PASO ‘‘[a]s part of its 

consideration of a PASO content 

standard.’’ Because the Commission is 

not adopting a PASO content standard, 

it is also not adopting a definition of 

that standard. 

B. Proposed Alternative 3—Clarification 

of the Express Advocacy Content 

Standard 

The Commission is not adopting 

proposed Alternative 3, which would 

have addressed Shays III Appeal solely 

by incorporating a cross-reference to the 

express advocacy definition at 11 CFR 

100.22 in the express advocacy content 

standard at 11 CFR 109.21(c)(3). 

As discussed above, Shays III Appeal 

interpreted the existing express 

advocacy content standard as follows: 

‘‘more than 90/120 days before an 

election, candidates may ask wealthy 

supporters to fund ads on their behalf, 

so long as those ads do not contain 

magic words.’’ Shays III Appeal, 528 

F.3d at 925 (emphasis added). However, 

‘‘magic words’’ are only one part of the 

Commission’s express advocacy 

regulation. See 11 CFR 100.22. 

The Commission proposed adding an 

explicit reference to 11 CFR 100.22 to 

the express advocacy content standard 

at 11 CFR 109.21(c)(3) to clarify that, 

outside of the 90- and 120-day 

windows, communications containing 

more than just ‘‘magic words’’ are 

coordinated communications, provided 

that the conduct and payment prongs of 

the coordinated communication test are 

also met. The Commission sought 

comment on whether, by itself, the 

clarification of 11 CFR 109.21(c)(3) as 

encompassing not only ‘‘magic words,’’ 

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17The court has twice upheld the Commission’s 

determination to promulgate coordinated 

communications rules that ‘‘drew distinctions based 

on content.’’ Shays I Appeal, 414 F.3d at 100; see 

also Shays III Appeal, 528 F.3d at 924. 

but also the entirety of the express 

advocacy definition at 11 CFR 100.22, 

would fully address the Shays III 

Appeal court’s concern about the 

current limitations of the content prong. 

Ten commenters addressed this 

proposal, all of whom opposed it. Eight 

commenters challenged the definition of 

‘‘express advocacy’’ at 11 CFR 100.22, 

which is beyond the scope of this 

rulemaking. Two commenters asserted 

that the proposal ‘‘is still an express 

advocacy test and, for that reason * * * 

would be radically under-inclusive and 

would not comply with the [Shays III 

Appeal] remand.’’ 

The Commission agrees that merely 

clarifying the express advocacy content 

standard at 11 CFR 109.21(c)(3) by 

adding a cross-reference to the 

definition of the term at 11 CFR 100.22 

would not, by itself, satisfy the direction 

of the court in Shays III Appeal. The 

Commission therefore is not adopting 

the proposal in Alternative 3 of the 

NPRM. 

Although the Commission is not 

adopting proposed Alternative 3 as a 

response to the Shays III Appeal court 

decision, it is adding a cross reference 

to the definition of express advocacy as 

described in Part II above. 

C. Proposed Alternative 4—The 

‘‘Explicit Agreement’’ Standard 

The Commission is not adopting 

proposed Alternative 4, which would 

have revised 11 CFR 109.21(c)(5), (d)(7), 

and (e), to provide that both the content 

and conduct prongs of the coordinated 

communication test would be satisfied 

by a formal or informal agreement 

between a candidate, candidate’s 

committee or political party committee, 

and a person paying for a ‘‘public 

communication,’’ as defined in 11 CFR 

100.26. Under the proposal, either the 

agreement or the communication would 

have had to be made for the purpose of 

influencing a Federal election. Like the 

other proposed content standards, the 

proposed ‘‘Explicit Agreement’’ 

alternative would have applied without 

regard to when the communication was 

made or the targeted audience. The 

Commission sought comment on 

whether the Explicit Agreement 

alternative should be adopted in 

conjunction with another content 

proposal. 

The proposed Explicit Agreement 

alternative was an attempt to address a 

concern that appears to have motivated 

the courts in both Shays I Appeal and 

Shays III Appeal: communications 

plainly intended to influence a Federal 

election could be explicitly coordinated 

outside the 90- and 120-day windows, 

so long as such communications did not 

contain the ‘‘magic words’’ of express 

advocacy. See Shays III Appeal, 528 

F.3d at 925–26; Shays I Appeal, 414 

F.3d 98. In concluding that the current 

coordinated communications 

regulations ‘‘frustrate Congress’s goal of 

‘prohibiting soft money from being used 

in connection with Federal elections,’ ’’ 

the Shays III Appeal court stated that, 

‘‘[o]utside the 90/120-day windows, the 

regulation allows candidates to evade— 

almost completely—BCRA’s restrictions 

on the use of soft money.’’ Id. (quoting 

McConnell, 540 U.S. at 177 n. 69). 

The Shays III Appeal court presented 

an example (the ‘‘NY Times 

hypothetical’’) to illustrate that ‘‘the 

regulation still permits exactly what we 

worried about’’ in Shays I Appeal: ‘‘more 

than 90/120 days before an election, 

candidates may ask wealthy supporters 

to fund ads on their behalf, so long as 

those ads do not contain magic words,’’ 

and the Commission would do nothing 

about this, ‘‘even if a contract 

formalizing the coordination and 

specifying that it was ‘for the purpose of 

influencing a Federal election’ appeared 

on the front page of the New York 

Times.’’ Id. The Shays III Appeal court’s 

discussion referenced the identical 

concern raised in Shays I Appeal, where 

the court noted that: 

[M]ore than 120 days before an election or 

primary, a candidate may sit down with a 

well-heeled supporter and say, ‘‘Why don’t 

you run some ads about my record on tax 

cuts?’’ The two may even sign a formal 

written agreement providing for such ads. 

Yet so long as the supporter neither recycles 

campaign materials nor employs the ‘‘magic 

words’’ of express advocacy—‘‘vote for,’’ ‘‘vote 

against,’’ ‘‘elect,’’ and so forth—the ads won’t 

qualify as contributions subject to FECA. 

Shays III Appeal, 528 F.3d at 921 

(quoting Shays I Appeal, 414 F.3d 98). 

Comments Received 

Of the twelve commenters who 

addressed the Explicit Agreement 

proposal, none supported the proposal 

on its own. Five commenters did, 

however, support the proposal if it were 

adopted in addition to another content 

standard. Two commenters supported 

the Explicit Agreement standard only if 

it were adopted in addition to the PASO 

content standard, and three commenters 

supported the proposal only if it were 

adopted in addition to a functional 

equivalent of express advocacy content 

standard. 

Seven commenters expressed concern 

that the ‘‘fact specific’’ determination of 

whether a communication or agreement 

was made for the purpose of influencing 

a Federal election would require broad 

and intrusive investigations to 

determine the speaker’s intent. Eight 

commenters noted that the Supreme 

Court has rejected intent-based 

standards requiring broad discovery, 

most explicitly and recently in WRTL: 

‘‘an intent-based test would chill core 

political speech by opening the door to 

a trial on every ad.’’ WRTL, 551 U.S. at 

467. 

Six commenters asserted that the 

adoption of a revised content standard 

that rationally separates election-related 

advocacy from other communications 

would satisfy the Shays III Appeal 

court’s concerns. These commenters 

argued that the NY Times hypothetical 

was intended to show the weakness of 

the existing content standard. As one 

commenter stated, ‘‘The court’s point 

here was about how bad the express 

advocacy content standard is, not an 

endorsement of an ‘explicit agreement’ 

conduct standard.’’ 

The Commission agrees with the 

majority of commenters that the Explicit 

Agreement proposal is not necessary 

and would not be the best way to carry 

out the Shays III Appeal court’s 

mandate. The court required the 

Commission to adopt a content standard 

that ‘‘rationally separates electionrelated advocacy from other activity 

falling outside FECA’s expenditure 

definition.’’ Shays III Appeal, 528 F.3d 

at 926. The revised content prong of the 

coordinated communication test does 

so. It ‘‘rationally separates’’ electionrelated advocacy from other 

communications about which a 

candidate may coordinate with an 

outside group, such as issue 

advertisements, by filtering out nonelectoral communications.17 See 2002 

E&J at 430. 

The Commission agrees with the 

commenters who stated that the NY 

Times hypothetical served to 

demonstrate the Shays III Appeal 

court’s concerns about the sufficiency of 

the express advocacy standard outside 

the 90- and 120-day windows. The 

revised content standard addresses this 

concern. Thus, the Commission is not 

required to adopt the Explicit 

Agreement proposal, which would have 

significantly altered the structure of the 

current rules. 

Furthermore, the Explicit Agreement 

proposal would require the Commission 

to determine whether the agreement or 

communication in question was made 

for the purpose of influencing an 

election. This inquiry could require the 

Commission to examine the subjective 

intent of the parties to an agreement. 

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Although it is possible, as Shays III 

Appeal suggested, that a candidate’s 

supporter would explicitly state that 

communications are being coordinated 

for the purpose of influencing an 

election, in most cases meeting the 

Explicit Agreement standard would 

require other proof demonstrating that 

the agreement or communication was 

made for the purpose of influencing an 

election. In such cases, the Commission 

would need to investigate and evaluate 

the parties’ subjective intent, a task that 

the Supreme Court has cautioned 

against. See, e.g., WRTL, 551 U.S. at 467 

(‘‘[A]n intent-based test would chill core 

political speech by opening the door to 

a trial on every ad[.]’’). 

The Commission also recognizes 

commenters’ concerns regarding the 

practical difficulty of investigating the 

purpose of agreements or 

communications. Although the presence 

of the conduct standard inevitably 

requires investigation into parties’ 

actions, the content standard serves to 

limit those inquiries to election-related 

activity. This screening function is 

particularly important when 

considering communications made at 

any time, without regard to their 

proximity to a Federal election. 

For these reasons, the Commission 

has decided not to adopt the Explicit 

Agreement proposal. 

IV. Coordinated Communications 

Conduct Prong—Common Vendor and 

Former Employee Standards (11 CFR 

109.21(d)(4) and (d)(5)) 

The Commission is not adopting any 

changes to the common vendor or 

former employee conduct standards at 

this time. In order to comply with the 

Shays III Appeal decision, the 

Commission has decided to retain the 

current 120-day time period in the 

common vendor and former employee 

conduct standards, while providing a 

more detailed explanation and 

justification about why this time frame 

is sufficient to prevent circumvention of 

the Act. 

BCRA required the Commission to 

promulgate new coordinated 

communications rules that address 

‘‘payments for the use of a common 

vendor’’ and ‘‘payments for 

communications directed or made by 

persons who previously served as an 

employee of a candidate or a political 

party.’’ BCRA at sec. 214(c), 116 Stat. at 

95; 2 U.S.C. 441a(7)(B)(ii) note. In 

response to these requirements, the 

Commission adopted two conduct 

standards in the 2002 coordinated 

communications rulemaking, at 11 CFR 

109.21(d)(4) and (d)(5), that directly 

addressed common vendors and former 

employees of candidates and party 

committees. See 2002 E&J, 68 FR 421. 

The 2002 regulation provided that the 

fourth standard of the conduct prong 

(the ‘‘common vendor’’ standard) was 

satisfied if three conditions were met. 

First, the person paying for the 

communication must contract with or 

employ a ‘‘commercial vendor’’ to create, 

produce, or distribute the 

communication. 11 CFR 109.21(d)(4)(i). 

Second, the commercial vendor must 

have provided certain specified services 

to the candidate clearly identified in the 

communication, the candidate’s 

authorized committee, the candidate’s 

opponent, the opponent’s authorized 

committee, or a political party 

committee during the same election 

cycle. 11 CFR 109.21(d)(4)(ii) (2002). 

Third, the commercial vendor must use 

or convey to the person paying for the 

communication information about the 

plans, projects, activities, or needs of 

the candidate, candidate’s opponent, or 

political party committee, and that 

information must be material to the 

creation, production, or distribution of 

the communication. 11 CFR 

109.21(d)(4)(iii)(A). Alternatively, the 

commercial vendor must use or convey 

to the person paying for the 

communication information used 

previously by the commercial vendor in 

providing services to the candidate, the 

candidate’s authorized committee, the 

candidate’s opponent, the opponent’s 

authorized committee, or the political 

party committee, and that information 

must be material to the creation, 

production, or distribution of the 

communication. 11 CFR 

109.21(d)(4)(iii)(B). Material information 

that was obtained from a publicly 

available source does not meet this 

conduct standard. 11 CFR 

109.21(d)(4)(iii). 

Similarly, the fifth conduct standard 

(the ‘‘former employee’’ standard) was 

satisfied if two conditions were met. 

First, the communication must be paid 

for by a person or by the employer of a 

person who was an employee or 

independent contractor of the candidate 

clearly identified in the communication, 

or the candidate’s authorized 

committee, the candidate’s opponent, 

the opponent’s authorized committee, or 

a political party committee during the 

same election cycle. 11 CFR 

109.21(d)(5)(i) (2002). Second, the 

former employee or independent 

contractor must use, or convey to the 

person paying for the communication, 

information about the plans, projects, 

activities, or needs of the candidate or 

political party committee that is 

material to the creation, production, or 

distribution of the communication. 11 

CFR 109.21(d)(5)(ii)(A). Alternatively, 

the former employee or independent 

contractor must use, or convey to the 

person paying for the communication, 

information used previously by the 

former employee or independent 

contractor in providing services to the 

candidate, the candidate’s authorized 

committee, the candidate’s opponent, 

the opponent’s authorized committee, or 

the political party committee that is 

material to the creation, production, or 

distribution of the communication. 11 

CFR 109.21(d)(5)(ii)(B). Material 

information that was obtained from a 

publicly available source does not meet 

this conduct standard. 11 CFR 

109.21(d)(5)(ii). 

In the 2002 rulemaking, the 

Commission adopted the election cycle 

as the time period during which a 

common vendor or former employee 

must have provided services to an 

authorized committee or political party 

committee to come within these 

conduct standards. The time period 

effectively operates as a screening 

mechanism: it provides a bright line to 

limit potentially difficult investigations 

into whether particular information is 

material to a communication, by 

recognizing that information loses its 

strategic value as it ages. In 2006, the 

Commission reduced the time period 

from the entire election cycle to the 

previous 120 days. See 11 CFR 

109.21(d)(4)(ii) and (d)(5)(i); 2006 E&J, 

71 FR at 33204. 

The 120-day time period was 

challenged in Shays III Appeal. While 

the court did not disagree with the time 

period on its merits, it found that ‘‘the 

FEC has provided no explanation for 

why it believes 120 days is a sufficient 

time period to prevent circumvention of 

the Act.’’ Shays III Appeal, 528 F.3d at 

929. The court recognized that the 

Commission has discretion in 

determining where to draw a bright line, 

but concluded that ‘‘it must support its 

decision with reasoning and evidence, 

for ‘a bright line can be drawn in the 

wrong place.’’’ Id. (quoting Shays I 

Appeal, 414 F.3d at 101). Thus, 

although the Shays III Appeal court held 

that the Commission had failed to 

justify sufficiently the 120-day period 

applicable to both common vendors and 

former employees, it did not hold that 

the 120-day period was inherently 

improper. 

In the NPRM, the Commission 

proposed three alternatives for the 

common vendor and former employee 

conduct standards: retain the 120-day 

period with a more thorough 

explanation and justification; replace 

the 120-day period with a two-year 

period ending on the date of the general 

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55958 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

election; and resume using the former 

current election cycle period. The 

Commission sought comment on 

whether each proposed alternative 

would comply with the court’s holding 

in Shays III Appeal. The Commission 

also sought comment on whether it 

should adopt a different time period 

than the proposed alternatives. In trying 

to determine the most appropriate 

period of time, the Commission asked a 

number of questions, including 

questions about the factors that may 

affect the period of time that campaign 

information remains relevant, and 

whether particular types of information 

remain useful to a campaign for shorter 

or longer periods of time. The 

Commission also asked whether the 

shelf life of campaign information 

depends on the particular election, or 

the specific type of vendor or media 

involved. 

At the hearing, Commissioners 

specifically requested empirical or 

statistical data to be submitted to help 

determine which alternative would best 

implement the court’s holding. The 

consensus at the hearing and in written 

comments appeared to be that no such 

data exist; several commenters stated 

that they doubted whether such data 

existed, and none of the commenters 

provided any. The Commission also 

conducted its own research of the 

existing political science and social 

science literature, and this research also 

failed to uncover any data of this kind. 

Indeed, given the variables involved, 

such as the different types of campaign 

information and the dynamics of 

different campaigns, the Commission is 

doubtful that it could fashion an 

empirical or statistical study that would 

produce meaningful results. 

Two commenters opposed retaining 

the 120-day period. One commenter 

suggested that a 120-day period does not 

accurately reflect the period during 

which a vendor or former employee is 

likely to possess and convey timely 

campaign information. The other 

advocated for a ‘‘strong presumption of 

coordination standard.’’ Neither 

provided empirical or statistical data to 

support adoption of a time-period 

longer than 120 days. 

The bulk of the commenters who 

addressed this issue, however, asserted 

that virtually no information that would 

be material to the creation, production, 

or distribution of a public 

communication made for the purpose of 

influencing an election would retain its 

relevance for longer than 120 days. 

Several commenters explained that the 

shelf life of campaign information has 

been shortened because the Internet and 

cable news outlets continue to reduce 

the duration of the news cycle. They 

agreed that information such as overall 

campaign strategy or campaign ‘‘master 

plans,’’ purchases of television ad time, 

donor lists and mailing lists, polling 

results, and monetary resources and 

spending loses relevance or becomes 

public within the 120-day period. 

Although the Shays III Appeal court 

stated that a ‘‘detailed state-by-state 

master plan prepared by a chief 

strategist may very well remain material 

for at least the duration of a campaign,’’ 

several commenters stated that, based 

on their personal campaign experience, 

this is not the case. Shays III Appeal at 

928 (quoting Shays III District at 51). 

The commenters testified that overall 

campaign strategies and master plans 

grow stale as a campaign progresses, 

and generally become outdated well 

within 120 days. They stated that 

strategies and master plans developed at 

the outset of a campaign often change in 

response to the give and take of political 

campaigns. They stated that what may 

be a battle plan at one point in time 

changes, and could change drastically, 

as events overtake that plan and as 

participants ‘‘react[] to the environment 

on the ground in the election.’’ One 

commenter said she felt that ‘‘if I miss 

one particular meeting one week, the 

plan has completely changed * * * the 

next.’’ 

The commenters also noted that in 

many cases, a campaign’s overall 

strategy becomes a matter of public 

knowledge through its advertisements, 

interactions with the press, and other 

public avenues. In fact, several 

commenters noted that often ‘‘the entire 

press and political world knows what 

the master plan is’’ because ‘‘master 

plans are drawn up to be presented to 

the press to show the road map to 

victory.’’ 

Commenters also addressed the 

purchase of television advertising time, 

noting that the information is publicly 

available from television stations. 

Through this publicly available 

information, candidates and political 

committees can determine when and 

where their allies and opponents are 

devoting resources, and make decisions 

about their own television 

communications accordingly. 

Information obtained from a publicly 

available source is the antithesis of the 

valuable proprietary information known 

only to campaign insiders that is the 

focus of the coordinated 

communications rules. For this reason, 

such information is exempted from the 

common vendor and former employee 

conduct standards. See 11 CFR 

109.21(d)(4)(iii) and (d)(5)(ii). 

Likewise, some commenters pointed 

out that potentially the most valuable 

type of information to a campaign— 

information about a campaign’s 

contributors, available funds, and 

expenditures—is also publicly available, 

through the campaign finance reports 

filed with the Commission. Candidates’ 

authorized committees and political 

party committees must file reports with 

the Commission at least every calendar 

quarter and in many instances more 

often, detailing all receipts and 

disbursements. See 11 CFR 104.3 and 

104.5. This information will thus 

necessarily become publicly available 

within the 120-day window. As noted 

above, information obtained from a 

publicly available source does not 

satisfy the common vendor and former 

employee conduct standards in 11 CFR 

109.21(d)(4) and (d)(5), an exemption 

that was not challenged in Shays III 

Appeal. 

Several commenters also pointed to 

the Commission’s own regulations 

concerning the allocation of polling 

costs, which provide that after sixty 

days polls lose 95 percent of their value, 

and argued that the regulation 

demonstrates how quickly polling 

information becomes stale. See 11 CFR 

106.4(g). The Shays III Appeal court 

also took note of this regulation, 

pointing out that the regulation 

indicates that polling data retains some 

value for 180 days. One commenter 

stated that this regulation no longer 

reflects the realities of political 

campaigns, however, and that ‘‘twomonth-old polls are not worth five 

percent’’ of their original value. Another 

commenter pointed out that the 

Commission’s regulation concerning 

polling data was written ‘‘decades ago,’’ 

and observed that polling practices have 

changed dramatically in the intervening 

years, shortening the lifespan of polling 

results significantly. 

Several commenters addressed the 

shelf life and materiality of contributor 

lists and mailing lists. Most agreed that 

campaign contributor lists do not 

provide information that is not also 

publicly available through reports 

submitted to the Commission. They also 

indicated that these lists are of little use 

to third parties wishing to create or 

distribute public communications in 

support of a campaign, because the 

contributors on the list already 

presumably support the candidate, and 

there is thus little incentive for a third 

party to target its communications to 

those supporters. 

The Commission has decided to retain 

the 120-day period in the common 

vendor and former employee provisions 

at 11 CFR 109.21(d)(4) and (d)(5) 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 55959 

because, based on the record, 120 days 

has been shown to be a sufficient time 

period to prevent circumvention of the 

Act. The clear thrust of the comments is 

that campaign information must be both 

current and proprietary (that is, nonpublic) to be subject to the coordinated 

communications regulation. The 

information in the rulemaking record 

shows the widespread public 

availability of certain types of campaign 

information that used to remain 

confidential for much longer in years 

past, as well as the rapidity with which 

campaign strategy changes in response 

to the give-and-take of the campaign 

process. The record also indicates that 

changes in technology have significantly 

reduced the duration of the news cycle, 

further decreasing the time that 

campaign information remains relevant. 

Moreover, there is no information in the 

rulemaking record showing that the use 

or conveyance by common vendors and 

former employees of information 

material to public communications 

outside of the 120-day period has 

become problematic in the four years 

that the 120-day period has been in 

effect. Therefore, the Commission 

concludes that it is extremely unlikely 

that a common vendor or former 

employee may possess information that 

remains material when it is more than 

four months old. 

The Commission is maintaining the 

120-day time period because of the 

weight of comments and testimony 

stating that information is not valuable 

beyond 120 days. Accordingly, adopting 

either of the alternatives extending the 

common vendor and former employee 

conduct standards beyond 120 days 

would be unsupported by the 

rulemaking record. 

V. Safe Harbor for Certain Business and 

Commercial Communications (11 CFR 

109.21(i)) 

The Commission is adopting a new 

coordinated communications safe 

harbor at 11 CFR 109.21(i) to address 

certain commercial and business 

communications, as proposed in the 

NPRM. The safe harbor excludes from 

the definition of a coordinated 

communication any public 

communication in which a Federal 

candidate is clearly identified only in 

his or her capacity as the owner or 

operator of a business that existed prior 

to the candidacy, so long as the public 

communication does not PASO that 

candidate or another candidate who 

seeks the same office, and so long as the 

communication is consistent with other 

public communications made by the 

business prior to the candidacy in terms 

of the medium, timing, content, and 

geographic distribution. 

The new safe harbor is intended to 

encompass the types of commercial and 

business communications that were the 

subjects of several recent enforcement 

actions. Matter Under Review (‘‘MUR’’) 

6013 (Teahen), MUR 5517 (Stork), and 

MUR 5410 (Oberweis) concerned 

advertisements paid for by businesses 

owned by Federal candidates that had 

been operating prior to the respective 

candidacies. Each advertisement 

included the name, image, and voice of 

the candidate associated with the 

business that paid for the advertisement. 

Although each of these 

advertisements served an apparent 

business purpose and lacked any 

explicit electoral content, the 

advertisements were nonetheless 

coordinated communications under 11 

CFR 109.21. See also MUR 4999 

(Bernstein). The advertisements met the 

payment prong because the candidates’ 

businesses paid for them. They met the 

content prong because they referred to 

the candidates by name and picture and 

were distributed in the candidate’s 

district within the relevant time 

windows before the election. They met 

the conduct prong through the 

candidates’ participation in the 

production of the advertisements. 

To avoid capturing such advertising 

in the future in the coordinated 

communications rules, the Commission 

proposed a new safe harbor for bona 

fide business communications. In the 

NPRM, the Commission asked a series 

of questions about the proposed safe 

harbor. The Commission sought 

comment on whether to exclude these 

kinds of commercial and business 

communications from regulation as 

coordinated communications, and 

whether the proposed safe harbor would 

accomplish this goal. The Commission 

also sought comment on whether the 

proposed safe harbor could be used to 

circumvent the Act’s contribution 

limitations and prohibitions; what 

changes to the proposed safe harbor 

might better capture only bona fide 

business communications without also 

encompassing election-related 

communications; and whether the 

rationale for adopting a similar safe 

harbor in the 2007 electioneering 

communications rulemaking would 

apply in the coordinated 

communications context. 

None of the commenters expressed 

opposition to the proposed safe harbor, 

and only one commenter explicitly 

discussed it. Although that commenter 

did not oppose the safe harbor as 

proposed, the commenter indicated that 

it would also support limiting the safe 

harbor to communications on behalf of 

businesses whose names include 

candidates’ names. 

The Commission has decided not to 

impose the additional limitation 

suggested by the commenter. The new 

safe harbor is already limited to public 

communications in which a candidate is 

referred to solely in his or her capacity 

as owner or operator of the business, 

thus limiting its reach to businesses 

with a bona fide business or commercial 

reason to use the candidate’s name or 

likeness in their communications. The 

public communication must also be 

consistent with previous public 

communications with respect to its 

medium (e.g., television or newspaper), 

timing (e.g., frequency, time of year, and 

for television or radio communications, 

duration and time of day), content, and 

geographic distribution. Finally, as is 

the case with the existing safe harbors 

for endorsements and solicitations, only 

public communications that do not 

PASO either the candidate referred to in 

the communication or any other 

candidate seeking the same office can 

qualify for the new safe harbor. Taken 

together, these multiple safeguards 

make the additional limitation 

suggested by the commenter 

unnecessary. 

The Commission considered a similar 

safe harbor in the 2002 electioneering 

communications rulemaking, but 

declined to adopt it then because some 

public communications might be 

considered to serve electoral purposes 

‘‘even if they also serve a business 

purpose unrelated to the election.’’ 

Explanation and Justification for Final 

Rules on Electioneering 

Communications, 67 FR 65190, 65202 

(Oct. 23, 2002). More recently, however, 

the Commission recognized that many 

electioneering communications ‘‘could 

reasonably be interpreted as having a 

non-electoral, business or commercial 

purpose,’’ Explanation and Justification 

for Final Rules on Electioneering 

Communications, 72 FR 72899, 72904 

(Dec. 26, 2007), and adopted a safe 

harbor for communications that propose 

a commercial transaction. 11 CFR 

114.15(b). Similarly, here, the 

Commission recognizes that commercial 

advertisements that meet the criteria in 

the new safe harbor serve non-electoral 

business and commercial purposes. The 

new safe harbor at 11 CFR 109.21(i) is 

an appropriate means of excluding bona 

fide business and commercial 

communications from regulation as 

coordinated communications. 

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55960 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

18The safe harbor at 11 CFR 109.21(g)(2) provides 

that a public communication in which a Federal 

candidate solicits funds for another Federal or nonFederal candidate, a political committee, or certain 

tax-exempt organizations as permitted by 11 CFR 

300.65, is not a coordinated communication with 

respect to the soliciting candidate unless the public 

communication PASOs the soliciting candidate or 

an opponent of that candidate. 

VI. Safe Harbor for Public 

Communications in Support of Certain 

Tax-Exempt Nonprofit Organizations 

The Commission is not adopting the 

safe harbor proposed in the NPRM to 

address certain communications paid 

for by certain tax-exempt nonprofit 

organizations and in which Federal 

candidates and officeholders appear. 

The safe harbor would have excluded 

from the definition of a coordinated 

communication any public 

communication paid for by a non-profit 

organization described in 26 U.S.C. 

501(c)(3) (‘‘501(c)(3) organizations’’), in 

which a candidate expresses or seeks 

support for the payor organization, or 

for a public policy or legislative 

initiative espoused by the payor 

organization, unless the public 

communication PASOs the candidate or 

another candidate who seeks the same 

office. 

The proposed safe harbor was 

intended to address communications 

like the one that was the subject of a 

recent enforcement action. See MUR 

6020 (Alliance/Pelosi). The enforcement 

action involved a television 

advertisement paid for by a 501(c)(3) 

organization. In the advertisement, a 

Federal candidate appeared, discussed 

environmental issues, and asked 

viewers to visit a Web site sponsored by 

the organization paying for the 

advertisement. The advertisement was a 

public communication that was 

distributed nationwide, including in the 

candidate’s congressional district, 

within ninety days before the 

candidate’s primary election, and 

therefore satisfied the fourth 

coordinated communications content 

standard at 11 CFR 109.21(c)(4). The 

advertisement solicited general support 

for the organization’s Web site and 

cause, but did not ‘‘solicit[] funds * * * 

for [an] organization[]’’ under the 

existing solicitation safe harbor at 11 

CFR 109.21(g)(2).18

The NPRM sought comment on 

whether the Commission should adopt 

such a safe harbor. The Commission 

asked whether the proposed safe harbor 

was necessary and permissible, and 

what restrictions or conditions should 

apply to the safe harbor if it were 

adopted. 

The seven commenters who 

addressed the proposed safe harbor 

were divided. Two commenters 

opposed the proposed safe harbor, 

arguing that it would be subject to 

abuse. These commenters noted that the 

proposed safe harbor ‘‘does not 

distinguish between ads primarily about 

the charity from those primarily about 

the candidate.’’ The commenters 

expressed concern that candidates could 

take advantage of the proposed safe 

harbor to coordinate with 501(c)(3) 

organizations to create and distribute 

ads ‘‘to promote [the candidates’] 

campaign agenda, to set forth their 

policy views, or to associate themselves 

with a public-spirited endeavor, all for 

the purpose of influencing that 

candidate’s election.’’ Other commenters 

supported the proposed safe harbor. 

One commenter argued that worthy 

charitable causes should not be limited 

in the means of expression available to 

them by campaign finance regulations. 

Another commenter argued that not all 

joint efforts between public officials and 

501(c)(3) organizations are necessarily 

campaign-related, and asserted that 

some communications by 501(c)(3) 

organizations are more effective if their 

timing and content can be coordinated 

with lawmakers. 

But even some of the commenters that 

supported the proposed safe harbor 

indicated that it may not be necessary 

at this time. These commenters 

acknowledged that 501(c)(3) 

organizations ‘‘risk the loss of their taxexempt status if they engage in any form 

of partisan political activity’’ and are, 

thus, ‘‘very wary’’ about engaging in any 

activity that would possibly bring their 

activities within the coordinated 

communications rules. The commenters 

stated that the Internal Revenue Service 

regulations governing 501(c)(3) 

organizations prohibit a broader range of 

political activity than Commission 

regulations, and that few of those 

501(c)(3) organizations would therefore 

benefit from the proposed safe harbor. 

The Commission is not adopting the 

proposed safe harbor for public 

communications in support of 501(c)(3) 

organizations. The enforcement action 

that prompted the proposed safe harbor, 

MUR 6120 (Alliance/Pelosi), is the only 

Commission enforcement action in 

which a 501(c)(3) organization paid for 

a public communication that satisfied 

all three prongs of the coordinated 

communications rule. The lack of any 

additional complaints against 501(c)(3) 

organizations under the coordinated 

communication rules indicates that 

there is no significant need for the 

proposed safe harbor at this time. Even 

without a safe harbor for 

communications in support of 501(c)(3) 

organizations, the Commission retains 

its prosecutorial discretion to dismiss 

enforcement matters involving such 

communications. 

Certification of No Effect Pursuant to 5 

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

Act] 

The Commission certifies that the 

attached rules will not have a significant 

economic impact on a substantial 

number of small entities. 

The primary basis for this certification 

is as follows. First, any individuals and 

not-for-profit enterprises that will be 

affected by these rules are not ‘‘small 

entities’’ under 5 U.S.C. 601. The 

definition of ‘‘small entity’’ does not 

include individuals. A not-for-profit 

enterprise is included in the definition 

as a ‘‘small organization’’ only if it is 

independently owned and operated and 

not dominant in its field. 5 U.S.C. 

601(4). The National party committees 

are dominant in their field and do not 

meet the definition of ‘‘small 

organization.’’ Most State, district, and 

local party committees also do not meet 

the definition of ‘‘small organization.’’ 

State, district, and local party 

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 arena of their State and are 

thus dominant in their field. District 

and local party committees are generally 

considered affiliated with the State 

committees and need not be considered 

separately. 

Second, any separate segregated funds 

that will be affected by these rules are 

not-for-profit political committees that 

do not meet the definition of ‘‘small 

organization’’ because they are financed 

by a combination of individual 

contributions and receive financial 

support from corporations, labor 

organizations, membership 

organizations, or trade associations, and 

therefore are not independently owned 

and operated. 

Third, most of the other political 

committees that will be affected by 

these rules are also not-for-profit 

committees that do not meet the 

definition of ‘‘small organization.’’ Most 

political committees are not 

independently owned and operated 

because they are not financed by a small 

identifiable group of individuals. Most 

political committees rely on 

contributions from a large number of 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 55961 

individuals to fund the committees’ 

operations and activities. 

Fourth, the number of State party 

committees representing minor political 

parties or any other political committees 

that might be considered ‘‘small 

organizations’’ that might be affected by 

these rules would not be substantial. 

These rules affect political committees 

only if they coordinate expenditures 

with candidates or political party 

committees in connection with a 

Federal election. 

Fifth, to the extent that any other 

entities affected by these rules may fall 

within the definition of ‘‘small entities,’’ 

any economic impact of complying with 

these rules will not be significant 

because any economic impact will not 

affect the revenue stream of such 

entities. These rules do not impose any 

new requirements on commercial 

vendors. Any indirect economic effects 

that the rules might have on commercial 

vendors result from the decisions of 

their clients rather than Commission 

requirements. 

Finally, to the extent that some small 

entities may be significantly affected by 

the attached rules, these rules are 

promulgated pursuant to a court order. 

Thus, any economic impact of these 

rules would be caused by the court 

mandate, rather than agency decisions 

contained in these rules. 

List of Subjects in 11 CFR Part 109 

Coordinated and independent 

expenditures. 

■ For the reasons set out in the 

preamble, Subchapter A of Chapter 1 of 

Title 11 of the Code of Federal 

Regulations is amended as follows: 

PART 109—COORDINATED AND 

INDEPENDENT EXPENDITURES (2 

U.S.C. 431(17), 441a(a) AND (d), AND 

PUB. L. 107–155 SEC. 214(c)) 

■ 1. The authority citation for part 109 

continues to read as follows: 

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

438(a)(8), 441a, 441d; Sec. 214(c) of Pub. L. 

107–155, 116 Stat. 81. 

■ 2. Section 109.21 is amended by: 

■ A. Revising the introductory text of 

paragraph (c), revising paragraph (c)(3), 

and adding new paragraph (c)(5); 

■ B. Republishing paragraphs (d)(4)(ii) 

and (d)(5)(i); and 

■ C. Adding new paragraph (i). 

§ 109.21 What is a ‘‘coordinated 

communication’’? 

* * * * * 

(c) Content standards. Each of the 

types of content described in paragraphs 

(c)(1) through (c)(5) of this section 

satisfies the content standard of this 

section. 

* * * * * 

(3) A public communication, as 

defined in 11 CFR 100.26, that expressly 

advocates, as defined in 11 CFR 100.22, 

the election or defeat of a clearly 

identified candidate for Federal office. 

* * * * * 

(5) A public communication, as 

defined in 11 CFR 100.26, that is the 

functional equivalent of express 

advocacy. For purposes of this section, 

a communication is the functional 

equivalent of express advocacy if it is 

susceptible of no reasonable 

interpretation other than as an appeal to 

vote for or against a clearly identified 

Federal candidate. 

* * * * * 

(d) * * * 

(4) * * * 

(ii) That commercial vendor, 

including any owner, officer, or 

employee of the commercial vendor, has 

provided any of the following services 

to the candidate who is clearly 

identified in the communication, or the 

candidate’s authorized committee, the 

candidate’s opponent, the opponent’s 

authorized committee, or a political 

party committee, during the previous 

120 days: 

* * * 

(5) * * * 

(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 the candidate’s 

authorized committee, the candidate’s 

opponent, the opponent’s authorized 

committee, or a political party 

committee, during the previous 120 

days; and 

* * * * * 

(i) Safe harbor for commercial 

transactions. A public communication 

in which a Federal candidate is clearly 

identified only in his or her capacity as 

the owner or operator of a business that 

existed prior to the candidacy is not a 

coordinated communication with 

respect to the clearly identified 

candidate if: 

(1) The medium, timing, content, and 

geographic distribution of the public 

communication are consistent with 

public communications made prior to 

the candidacy; and 

(2) The public communication does 

not promote, support, attack, or oppose 

that candidate or another candidate who 

seeks the same office as that candidate. 

Dated: September 7, 2010. 

On behalf of the Commission, 

Matthew S. Petersen, 

Chairman, Federal Election Commission. 

[FR Doc. 2010–22649 Filed 9–14–10; 8:45 am] 

BILLING CODE 6715–01–P 

DEPARTMENT OF TRANSPORTATION 

14 CFR Part 97 

[Docket No. 30744; Amdt. No. 3391] 

Standard Instrument Approach 

Procedures, and Takeoff Minimums 

and Obstacle Departure Procedures; 

Miscellaneous Amendments 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This rule establishes, amends, 

suspends, or revokes Standard 

Instrument Approach Procedures 

(SIAPs) and associated Takeoff 

Minimums and Obstacle Departure 

Procedures for operations at certain 

airports. These regulatory actions are 

needed because of the adoption of new 

or revised criteria, or because of changes 

occurring in the National Airspace 

System, such as the commissioning of 

new navigational facilities, adding new 

obstacles, or changing air traffic 

requirements. These changes are 

designed to provide safe and efficient 

use of the navigable airspace and to 

promote safe flight operations under 

instrument flight rules at the affected 

airports. 

DATES: This rule is effective September 

15, 2010. The compliance date for each 

SIAP, associated Takeoff Minimums, 

and ODP is specified in the amendatory 

provisions. 

The incorporation by reference of 

certain publications listed in the 

regulations is approved by the Director 

of the Federal Register as of September 

15, 2010. 

ADDRESSES: Availability of matter 

incorporated by reference in the 

amendment is as follows: 

For Examination— 

1. FAA Rules Docket, FAA 

Headquarters Building, 800 

Independence Avenue, SW., 

Washington, DC 20591; 

2. The FAA Regional Office of the 

region in which the affected airport is 

located; 

3. The National Flight Procedures 

Office, 6500 South MacArthur Blvd., 

Oklahoma City, OK 73169 or 

4. The National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

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