[Federal Register Volume 74, Number 202 (Wednesday, October 21, 2009)]
[Proposed Rules]
[Pages 53893-53913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25240]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / 
Proposed Rules

[[Page 53893]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 100 and 109

[Notice 2009--23]


Coordinated Communications

AGENCY: Federal Election Commission.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The Federal Election Commission seeks comments on proposed 
changes to its rules regarding coordinated communications under the 
Federal Election Campaign Act of 1971, as amended. These proposed 
changes are in response to the decision of the U.S. Court of Appeals 
for the District of Columbia Circuit in Shays v. FEC. The Commission 
has made no final decision on the issues presented in this rulemaking. 
Further information is provided in the supplementary information that 
follows.

DATES: Comments must be received on or before January 19, 2010. The 
Commission will hold a hearing on these proposed rules and will 
announce the date of the hearing at a later date. Anyone wishing to 
testify at the hearing must file written comments by the due date and 
must include a request to testify in the written comments.

ADDRESSES: All comments must be in writing, addressed to Ms. Amy L. 
Rothstein, Assistant General Counsel, and submitted in either 
electronic, facsimile or hard copy form. Commenters are strongly 
encouraged to submit comments electronically to ensure timely receipt 
and consideration. Electronic comments should be sent to 
<a href="/cdn-cgi/l/email-protection#74371b1b06101d1a15001d1b1a271c150d0747341211175a131b02"><span class="__cf_email__" data-cfemail="62210d0d10060b0c03160b0d0c310a031b1151220407014c050d14">[email protected]</span></a>. If the electronic comments include an 
attachment, the attachment must be in Adobe Acrobat (.pdf) or Microsoft 
Word (.doc) format. Faxed comments should be sent to (202) 219-3923, 
with hard copy follow-up. Hard copy comments and hard copy follow-up of 
faxed comments should be sent to the Federal Election Commission, 999 E 
Street, NW., Washington, DC 20463. All comments must include the full 
name and postal service address of the commenter or they will not be 
considered. The Commission will post comments on its Web site after the 
comment period ends. The hearing will be held in the Commission's ninth 
floor meeting room, 999 E Street, NW., Washington, DC

FOR FURTHER INFORMATION, CONTACT: Ms. Amy L. Rothstein, Assistant 
General Counsel, or Attorneys Ms. Jessica Selinkoff, Ms. Esther D. 
Heiden or Ms. Joanna S. Waldstreicher, 999 E Street, NW., Washington, 
DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 
2002\1\ (``BCRA'') contained extensive and detailed amendments to the 
Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. 
(``the Act''). The Commission promulgated a number of rules to 
implement BCRA, including rules defining ``coordinated communications'' 
at 11 CFR 109.21. The Court of Appeals for the District of Columbia 
Circuit found aspects of these rules invalid in Shays v. FEC, 528 F.3d 
914 (DC Cir. 2008) (``Shays III Appeal'').
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    \1\ Public Law 107-155, 116 Stat. 81 (2002).
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    In response to the Shays III Appeal decision, the Commission seeks 
comment on possible changes to the ``coordinated communication'' 
regulations at 109.21, which govern communications made in coordination 
with Federal candidates, their authorized committees, or political 
party committees, but paid for by persons other than the candidate, the 
authorized committee, or the political party committee with whom the 
communication is coordinated. The Commission's rules at 11 CFR 109.37 
regulate communications made in coordination with Federal candidates or 
their authorized committee, but paid for by a political party committee 
with which the coordination occurred (``party coordinated 
communication'' regulations). The party coordinated communication 
regulations (11 CFR 109.37) mirror, to a large extent, the coordinated 
communications regulations.\2\ The Commission is not proposing to 
revise the party coordinated communication rules in this rulemaking 
because they were not addressed by the Shays III Appeal decision, but 
invites comment on whether it should issue a notice of proposed 
rulemaking on this subject.
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    \2\ When the Commission revised its coordinated communications 
rules in 2002 pursuant to the statutory mandate in BCRA, the 
Commission also adopted substantially parallel party coordinated 
communication rules to address coordinated communications that were 
paid for by political party committees in order ``to give clear 
guidance to those affected by BCRA.'' See Explanation and 
Justification for Final Rules on Coordinated and Independent 
Expenditures, 68 FR 421 (Jan. 3, 2003). When the Commission revised 
its coordinated communications rules in 2006, the Commission gave 
consideration as to whether its party coordinated communication 
rules at 11 CFR 109.37 should continue to mirror the coordinated 
communication rules at 11 CFR 109.21.
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I. Background Information

    The Act and Commission regulations limit the amount a person may 
contribute to a candidate and that candidate's authorized political 
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), (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), (9)(A)(i); 11 CFR 
100.52(a), (d)(1), 100.111(a), (e)(1). An expenditure made in 
coordination with a candidate, or with a candidate's authorized 
political committee, constitutes an in-kind contribution to that 
candidate subject to contribution limits and prohibitions and must, 
subject to certain exceptions, be reported as an expenditure by that 
candidate. See 2 U.S.C. 441a(a)(7); 11 CFR 109.20, 109.21(b).
    The national committees and State committees of political parties 
may also make ``coordinated party expenditures'' in connection with the 
general election campaigns of Federal candidates, within certain 
limits. 2 U.S.C. 441a(d); 11 CFR 109.32(a), (b). Coordinated party 
expenditures are in addition to any contributions by the political 
party committees to candidates within the contribution limits of 11 CFR 
110.1 and 110.2. 2 U.S.C. 441a(d); 11 CFR 109.32(a)(3), (b)(4).

[[Page 53894]]

A. Before BCRA

    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), though 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 constitutionally protected ``independent 
expenditures.'' Buckley, 424 U.S. at 78-82. 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 excluding an expenditure made in ``cooperation or 
consultation with'' or ``in concert with, or at the request or 
suggestion of'' a candidate or the candidate's authorized committee or 
agent. Public Law 94-283 (1976) (now codified 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. Public Law 94-283 (1976) (codified at 2 U.S.C. 
441a(a)(7)(B)(i) (1976)). The Act treats expenditures made for the 
dissemination, distribution, or republication of campaign materials 
prepared by a candidate, a candidate's authorized committees, or their 
agents as contributions. See Public Law 94-283 (1976) (now codified at 
2 U.S.C. 441a(a)(7)(B)(iii)). Although Congress made some adjustments 
to the Act in the decades following Buckley, as discussed below, the 
coordination provisions remained substantively unchanged until BCRA.
    Prior to the enactment of BCRA, the Commission adopted new 
coordination 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 determine whether expenditures for 
communications by unauthorized committees, advocacy groups, and 
individuals qualified as independent expenditures or 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), (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).
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    \3\ See 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'') (concluding that an ``expressive 
expenditure'' only becomes ``coordinated'' when the candidate 
requests or suggests the expenditure or when a candidate can 
exercise control over or when there has been substantial discussion 
or negotiation between the candidate and the spender over a 
communication's: (1) Content; (2) timing; (3) location, mode, or 
intended audience (e.g., choice between newspaper or radio 
advertisement); or (4) ``volume'' (e.g., number of copies of printed 
materials or frequency of media spots)).
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B. Impact of BCRA

    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 their agents. 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).
    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.
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    \4\ The 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).
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    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.D.C. 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

[[Page 53895]]

response to Shays I Appeal. These revised rules were themselves 
challenged in Shays v. FEC, 508 F. Supp. 2d 10 (D.D.C. 2007) (``Shays 
III District''), aff'd, Shays v. FEC, 528 F.3d 914 (DC Cir. 2008) 
(``Shays III Appeal'').\5\ The Commission is issuing this Notice of 
Proposed Rulemaking (``NPRM'') in response to Shays III Appeal.
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    \5\ A third case filed by the same Plaintiff, referred to as 
``Shays II,'' addressed the Commission's approach to regulating so-
called ``527'' organizations and is not relevant to the coordination 
rules at issue in this NPRM. See Shays v. FEC, 511 F. Supp. 2d 19 
(D.D.C. 2007).
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C. 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 their agents (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), (d) (2003). A communication must satisfy all three prongs 
to be a ``coordinated communication.''
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    \6\ A 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).
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1. Content Standards
    As stated in the 2002 E&J, each of the four standards that comprise 
the content prong of the 2002 coordinated communication regulation 
identified a category of communications whose ``subject matter is 
reasonably related to an election.'' 2002 E&J, 68 FR at 427. The first 
content standard is satisfied if the communication is an electioneering 
communication. See 11 CFR 109.21(c)(1) (2003). The second content 
standard is satisfied by a public communication 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), 109.37(a)(2)(i) (2003). The third 
content standard is 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), 
109.37(a)(2)(ii) (2003). The fourth content standard is satisfied if a 
public communication (1) refers to a political party or a clearly 
identified Federal candidate; \7\ (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).
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    \7\ The party coordinated communications content prong contains 
a similar standard, except that element (1) includes only references 
to clearly identified Federal candidates. 11 CFR 109.37(a)(2)(iii) 
(2003).
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2. Conduct Standards
    The 2002 coordinated communication regulations also contained five 
conduct standards.\8\ 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.
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    \8\ The party coordinated communications rule incorporated the 
same conduct standards by reference to 11 CFR 109.21(d)(1) through 
(d)(6). See 11 CFR 109.37(a)(3) (2003).
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    The remaining two conduct standards, which are at issue in this 
rulemaking, are the (1) ``common vendor'' and (2) ``former employee'' 
standards. The common vendor conduct standard is 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 former employee conduct standard is 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 former employees, independent 
contractors, and vendors \9\ only if they 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), 
(5) (2003).
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    \9\ See 11 CFR 109.21(d)(4)(ii) for the specific services that a 
vendor must provide in order to trigger the common vendor standard.
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D. Shays I Appeal

    The Court of Appeals in Shays I Appeal found that the content prong 
regulations did not run counter to the unambiguously expressed intent 
of Congress. 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'') and affirmed the Shays I District court's invalidation of 
the rule. Shays I Appeal, 414 F.3d at 102. Although the Court of 
Appeals found the explanation for the particular time frame adopted 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.

[[Page 53896]]

    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 court 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.

E. 2005 Rulemaking

    In 2005, in the post-Shays I Appeal rulemaking, the Commission 
proposed seven alternatives for revising the content prong. See Notice 
of Proposed Rulemaking on Coordinated 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.
    The Commission also noted that the party coordinated communication 
regulation, while not addressed in Shays I Appeal, contained a three-
prong test that was ``substantially the same'' as the coordinated 
communication regulation that had been invalidated by the Shays I 
Appeal court. 2005 NPRM, 70 FR at 73956. The Commission sought comment 
on whether it should make conforming changes to the party coordinated 
communication regulation if it revised the existing coordinated 
communication regulation. 2005 NPRM, 70 FR at 73956.
    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. 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 Explanation and Justification for Final Rules on 
Coordinated Communications, 71 FR 33190 (June 8, 2006) (``2006 E&J'').
    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.
    Although the party coordinated communication regulations were not 
addressed in the Shays I Appeal, in 2006 the Commission also revised 
the regulations at 11 CFR 109.37 to provide consistency with revisions 
to the coordinated communication regulations at 11 CFR 109.21. 
Specifically, the Commission revised the time periods in the content 
standard at 11 CFR 109.37(a)(2)(iii) of the party coordinated 
communication regulations, adopting the same time periods for 
presidential candidates (120 days before a State's primary through the 
general election) and congressional candidates (90 days before the 
primary and general elections) as in the coordinated communication 
regulations at 11 CFR 109.21(c)(4). See 2006 E&J, 71 FR at 33207. The 
Commission also incorporated into the party coordinated communication 
regulations the new safe harbors at 11 CFR 109.21(d)(2)-(5) for use of 
publicly available information, and the safe harbors at 11 CFR 
109.21(g) for endorsements and solicitations by Federal candidates, and 
at 11 CFR 109.21(h) for the establishment and use of a firewall. See 
2006 E&J, 71 FR at 33207-08.

F. Shays III Appeal

    On June 13, 2008, the Court of Appeals issued its opinion in Shays 
III Appeal.
1. Content Standards
    The Shays III Appeal court 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''); 
see also McConnell v. FEC, 251 F. Supp. 2d 176, 303-04 (D.D.C. 2003) 
(Henderson, J.); id. at 534 (Kollar-Kotelly, J.); id. at 875-79 (Leon, 
J.)) (discussing ``magic words'').
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    \10\ The 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).
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    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

[[Page 53897]]

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.
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    \12\ An ``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).
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    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.
2. 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.

II. Proposals To Address Coordinated Communications Content Standards

    To address the Shays III Appeal court's concern regarding election-
related communications taking place outside the 90-day and 120-day 
windows, the Commission is considering retaining the existing four 
content standards in 11 CFR 109.21(c), and adopting one or more of the 
following four approaches: (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) adopting a content standard to cover public 
communications that are the ``functional equivalent of express 
advocacy,'' as articulated in FEC v. Wis. Right to Life, Inc., 551 U.S. 
449, 469-70 (2007) (the ``Modified WRTL content standard''); (3) 
clarifying that the existing content standard includes express advocacy 
as defined under both 11 CFR 100.22(a) and (b); and (4) adopting a 
standard that pairs a public communication standard with a new conduct 
standard (the ``Explicit Agreement'' standard).\13\ The Commission has 
not made any determination as to which, if any, of these standards to 
adopt in the final rules, or whether it should adopt a combination of 
these standards, or some other standard altogether.
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    \13\ A ``public communication'' is ``a 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. The term general public political advertising 
shall not include communications over the Internet, except for 
communications placed for a fee on another person's Web site.'' 11 
CFR 100.26; see also 2 U.S.C. 431(22).
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    The Commission invites comment on which, if any, of the four 
proposals best complies with the Shays III Appeal decision and why. The 
Commission is particularly interested in whether any of the proposals, 
standing alone, would satisfy the decision of the Court of Appeals in 
Shays III Appeal. Additionally, several of the alternatives propose 
broader content standards than those that are currently in 11 CFR 
109.21, thus potentially bringing a broader range of communications 
under the Commission's more restrictive contribution regulations. The 
Commission invites comment on how this possibility relates to (1) the 
Commission's jurisdictional limitations; (2) the distinction courts 
have drawn between contributions versus independent spending and other 
protected speech (see, e.g., Buckley, 524 U.S. at 22; FEC v. Colo. 
Republican Fed. Campaign Comm., 533 U.S. 431 (2001) (``Colorado II''); 
Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996) 
(``Colorado I'')); and (3) the possibility that enforcement of the 
Commission's regulations that draw the line between independent and 
coordinated speech may have the potential to chill independent speech.

A. Alternative 1--The PASO Standard--Proposed 11 CFR 109.21(c)(3) and 
Proposed PASO Definition Alternatives A and B at 11 CFR 100.23

    Alternative 1 would amend 11 CFR 109.21(c) by replacing the express 
advocacy standard with a PASO standard. Under the PASO standard, any 
public communication that promotes, supports, attacks, or opposes a 
political party or a clearly identified candidate for Federal office 
would meet the content prong of the coordinated communications test, 
without regard to when the communication is made or the targeted 
audience. The Commission also is considering two alternative 
definitions of promote, support, attack, or oppose (``PASO'').
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); 441i(b), (e), (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 in 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 also 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

[[Page 53898]]

CFR 100.24(b)(3) and (c)(1); 11 CFR 300.33(c), 300.71, 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.
    The Commission seeks comment on whether the Supreme Court's 
statement that the ``words `promote,' `oppose,' `attack,' and `support' 
clearly set forth the confines within which potential party speakers 
must act'' applies (1) only to party committees, or also to other 
speakers; and (2) only to Federal election activity, or also in other 
contexts. After McConnell, is any rule defining PASO, or its component 
terms, necessary? Would a regulatory definition nonetheless be helpful 
in providing guidance and explicit standards whereby persons would know 
which communications are intended to be covered and which ones are not?
    Additionally, does the Court's decision in Wisconsin Right to Life 
have any effect on the scope of the definition of PASO? After Wisconsin 
Right to Life, is it permissible for the Commission to regulate any 
speech, whether independent or not, that does not fall within either 
the Court's definition of ``express advocacy'' or its definition of the 
``functional equivalent of express advocacy''? Is the decision in 
Wisconsin Right to Life applicable in the coordinated communications 
context, since the Court's decision was confined to independent 
electioneering communications?
2. Content Standard
    The court in Shays III Appeal held that the Commission ``must 
demonstrate that the standard it selects `rationally separates 
election-related 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). The Commission seeks comment, 
consistent with the decision in Shays III Appeal, on whether use of the 
PASO standard, which would replace, but incorporate, the express 
advocacy standard, and whether alone or in conjunction with a 
definition of PASO, would rationally separate election-related advocacy 
from other communications falling outside the Act's expenditure 
definition.
    The Commission also seeks comment on whether the PASO standard, 
either alone, or in conjunction with a definition of PASO, could 
potentially encompass public communications that are not made for the 
purpose of influencing a Federal election. If so, should the PASO 
standard be limited by, for example, requiring that the communication 
be disseminated in the jurisdiction in which the clearly identified 
candidate seeks election, or in some other way? See, e.g., Alternative 
B at proposed 11 CFR 100.23(b)(4). Alternatively, could communications 
disseminated outside the jurisdiction in which the clearly identified 
candidate seeks election still be made for the purpose of influencing 
the election, such as by soliciting funds for the election or 
generating other communications that will be directed to the 
jurisdiction? One such example would be a communication distributed 
outside Ohio that states: ``Write your friends in Ohio and urge them to 
support/oppose candidate X.''
    Conversely, the Commission seeks comment on whether limiting the 
PASO standard could potentially exclude public communications that are 
made for the purpose of influencing a Federal election provided that 
the payment and conduct prongs of the coordinated communication 
regulation are also satisfied. Would limiting the PASO standard fail to 
address the court's concern in Shays III Appeal that the Commission 
rationally separate election-related advocacy from other communications 
falling outside the Act's expenditure definition?
3. PASO Definitions
    As part of its consideration of a PASO content standard, the 
Commission is also considering whether it should adopt a definition of 
PASO. This NPRM sets forth two possible approaches to defining PASO. In 
brief, the proposed PASO definition in Alternative A provides a 
specific definition for each of the component terms, which applies when 
any of those terms is used in conjunction with one or more of the other 
terms. See Alternative A at proposed 11 CFR 100.23(b). The proposed 
PASO definition in Alternative B utilizes a multi-prong test to 
determine whether a given communication PASOs. See Alternative B at 
proposed 11 CFR 100.23(b). The Commission seeks public comment on the 
proposed alternative definitions at 11 CFR 100.23. In light of the 
Supreme Court's conclusion in McConnell, as discussed above, that the 
component terms of the PASO standard ``provide explicit standards for 
those who apply them and `give the person of ordinary intelligence a 
reasonable opportunity to know what is prohibited,' '' McConnell, 540 
U.S. at 170 n.64, the Commission seeks comment on whether any 
regulatory definition is necessary or whether such a definition would 
be confusing.
a. Proposed Applicability
    The proposed PASO definitions differ in their applicability. 
Proposed Alternative A would apply to those instances in the Commission 
regulations in which two or more of the four component PASO words are 
used together. See Alternative A at proposed 11 CFR 100.23(a). Proposed 
Alternative B would apply to those instances in the Commission 
regulations in which all four of the component PASO words are used 
together. See Alternative B at proposed 11 CFR 100.23(a). The 
Commission seeks comment on whether the proposed applicability of 
either alternative is underinclusive or overinclusive.
    The Act articulates the PASO concept by using the following 
phraseology: ``promotes or supports a candidate for that office, or 
attacks or opposes a candidate for that office.'' 2 U.S.C. 
431(20)(A)(iii) (definition of ``Federal election activity''); 
434(f)(3)(A)(ii) (backup definition of ``electioneering 
communication''). The Commission has adopted several similar, though 
not identical, phrases throughout its regulations. Some of the 
regulations group the four words in two disjunctive groups of two 
(e.g., promote or support,

[[Page 53899]]

or attack or oppose) \14\ and some of the regulations group the words 
in one disjunctive group of four (e.g., promote, support, attack, or 
oppose).\15\
---------------------------------------------------------------------------

    \14\ See, e.g., 11 CFR 100.24(b)(3) (definition of Federal 
election activity) (``promotes or supports, or attacks or opposes 
any candidate for Federal office''), 100.24(c)(1) (exception from 
definition of Federal election activity) (``promote or support, or 
attack or oppose a clearly identified candidate for Federal 
office''), and 300.71 (Federal funds for certain public 
communications) (``promotes or supports any candidate for that 
Federal office, or attacks or opposes any candidate for that Federal 
office'').
    \15\ See, e.g., 11 CFR 100.29(c)(5) (electioneering 
communications) (``promote, support, attack, or oppose''), 109.21(g) 
(coordinated communications safe harbor) (``promotes, supports, 
attacks, or opposes''), 300.33 (allocation of Federal election 
activity) (``promote, support, attack, or oppose''), and 300.72 
(Federal funds not required for certain public communications) 
(``promote, support, attack, or oppose'').
---------------------------------------------------------------------------

    Additionally, the words ``promote,'' ``support,'' and ``oppose'' 
appear throughout the Act and Commission regulations often in other 
contexts unrelated to communications that PASO and unrelated to any 
electoral context. For example, the word ``support'' is used 
individually throughout the Act and Commission regulations in the 
context of technical, administrative, or financial support or 
``supporting documentation.'' \16\ The word ``support'' is also used 
individually in Commission regulations with respect to political 
committees and individuals that support candidates financially or in 
other, non-communicative, ways.\17\ The word ``opposed'' is used 
individually in the Commission's definition of ``election.'' See 11 CFR 
100.2(a) (definition of ``election'' includes ``opposed'' and 
``unopposed'' individuals).
---------------------------------------------------------------------------

    \16\ See, e.g., 2 U.S.C. 442 (technical support); 11 CFR 
110.14(j)(2)(viii) (administrative support); see also 11 CFR 
200.3(a)(1) (comments ``in support of or opposition to'' Commission 
Federal Register publication).
    \17\ See, e.g., 2 U.S.C. 434(a)(10) (reporting requirements for 
committees supporting vice presidential candidates), (f)(3)(B)(iii) 
(communications which promote debates or forums); 11 CFR 
110.2(l)(1)(iii)(A) (the use of polling to determine the support 
level for a candidate), and 9008.50 (promotion of convention city by 
national convention committee).
---------------------------------------------------------------------------

    The words are also used in combinations of less than four in some 
contexts that may be closer to that contemplated by the Commission in 
proposing the PASO definition. For example, many of the reporting 
requirements in the Act and Commission regulations concern 
communications that support or oppose clearly identified 
candidates.\18\ Also, several provisions in the Act and Commission 
regulations treat certain communications or disbursements differently 
on the basis of whether they support, promote, or oppose 
candidates.\19\
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    \18\ See, e.g., 2 U.S.C. 434(b)(6)(B), (c)(2)(A) (reporting of 
expenditures); 11 CFR 104.4(b)(2), (c) and (e) (reporting 
independent expenditures).
    \19\ See, e.g., 2 U.S.C. 431(21) (``generic campaign activity'' 
defined as ``promotes a political party'' but not a candidate); 11 
CFR 100.25 (``generic campaign activity''), 100.57 (solicitations to 
support or oppose a candidate), 114.9(a)(1) and (b)(1) (use of 
corporate or labor organization facilities).
---------------------------------------------------------------------------

    Given the many uses of the words ``promote,'' ``support,'' and 
``oppose'' throughout the Act and Commission regulations, the 
Commission seeks comment on whether the PASO definition should apply 
only when at least two of the four PASO component words appear together 
(as in Alternative A). Should the PASO definition apply instead only 
when all four PASO component words appear together (as in Alternative 
B)? Or, should the PASO definition apply wherever any one of the four 
PASO component words appears in the Commission's regulations? Are there 
particular rules that use only one or two of the four PASO words--such 
as the expenditure reporting rules\20\--to which the proposed 
definitions should or should not apply? Should the proposed PASO 
definition apply to the definition of ``generic campaign activity'' in 
11 CFR 100.25 because section 100.25 implements BCRA? Finally, the 
Commission seeks comment on whether it should limit the applicability 
of the proposed definitions of PASO to only coordinated communications. 
Such an approach could result in divergent meanings of PASO in 
coordination and other contexts, such as Federal election activity or 
electioneering communications. Would this create confusion?
---------------------------------------------------------------------------

    \20\ See, e.g., 11 CFR 104.3(b)(3)(vii)(B), 104.4(b)(2), (c) and 
(e); 11 CFR 104.5(g)(3), 104.6(c)(4), 109.10(e)(1)(iv).
---------------------------------------------------------------------------

    In addition, the Commission seeks comment on whether, in the 
absence of the proposed guidance above, it would be clear from a 
particular regulation's use of ``promote,'' ``support,'' ``attack,'' 
and ``oppose'' alone, that the PASO definitions would apply based on 
whether the word is used in an electoral context.
b. Proposed Dictionary Definitions
    Consistent with the Supreme Court's statement concerning PASO in 
McConnell, both proposed PASO definitions would construe the words 
``promote,'' ``support,'' ``attack,'' and ``oppose'' according to the 
words' commonly understood meaning applicable to the election context. 
The proposed PASO definitions do, however, differ in some of the 
particulars. Proposed Alternative A would define each of the four 
component PASO words separately according to dictionary definitions. 
Proposed Alternative B would not define any of the four PASO words, but 
does provide that a communication PASOs if it unambiguously performs 
one of several actions described in the dictionary definitions of the 
component words.
    Dictionary definitions of the word ``promote'' include ``to help or 
encourage to exist or flourish; further; to advance in rank, dignity, 
position, etc.'' and ``to encourage the sales, acceptance, etc. of (a 
product), esp. through advertising or publicity.'' Webster's Unabridged 
Dictionary 1548 (Random House 2nd ed. 2005) (``Webster's Dictionary''); 
see also American Heritage Dictionary of the English Language 1095 (4th 
ed. 2006) (``American Heritage'') (defining ``promote'' as ``to 
advance; further; to help''). The dictionary also identifies ``support 
* * * elevate, raise, exalt'' as synonyms of ``promote.'' Webster's 
Dictionary at 1548.
    Dictionary definitions of the word ``support'' include ``to uphold 
(a person, cause, policy, etc.) by aid, countenance, one's vote, etc.'' 
and ``to * * * advocate (a theory, principle, etc.).'' Webster's 
Dictionary at 1913; see also American Heritage Dictionary at 1364 
(defining ``support'' as ``to aid; to argue in favor of; advocate'').
    Dictionary definitions of the word ``attack'' include ``to blame; 
to direct unfavorable criticism against; criticize severely; argue with 
strongly.'' Webster's Dictionary at 133; see also American Heritage 
Dictionary at 88 (defining ``attack'' as ``to criticize strongly or in 
a hostile manner'').
    Dictionary definitions of the word ``oppose'' include ``to act 
against or provide resistance to; to stand in the way of; hinder; 
obstruct; to set as an opponent or adversary; to be hostile or adverse 
to, as in opinion.'' Webster's Dictionary at 1359.
    Based on these definitions, proposed Alternative A defines 
``promote'' as ``to help, encourage, further, or advance.'' It defines 
``support'' as ``to uphold, aid, or advocate.'' ``Attack'' is defined 
to mean ``to argue with, blame or criticize.'' ``Oppose'' is defined as 
``to act against, hinder, obstruct, be hostile or adverse to.'' See 
proposed Alternative A at 11 CFR 100.23(a). Based on these definitions, 
proposed Alternative B requires that a communication only PASOs if it 
``helps, encourages, advocates for, praises, furthers, argues with, 
sets as an adversary, is hostile or

[[Page 53900]]

adverse to, or criticizes.'' See proposed Alternative B at 11 CFR 
100.23(b)(2).
    The Commission seeks comment on whether defining each of the 
component terms individually, as in Alternative A, or a single 
definition for PASO, as in Alternative B, provides the clearest 
guidance. Alternatively, would a definition that combines some, but not 
all, of the terms (such as ``promote or support'' or ``attack or 
oppose'') be preferable?
c. Relationship Between PASO and Express Advocacy
    In addition to these dictionary definitions, both proposed PASO 
definitions would state that all communications that expressly advocate 
the election or defeat of a clearly identified candidate also PASO that 
candidate. See Alternative A at proposed 11 CFR 100.23(b) and 
Alternative B at proposed 11 CFR 100.23(b)(2). The Commission seeks 
comment on whether this recognition that all communications that 
expressly advocate will PASO--that is, that express advocacy is a 
subset of PASO--provides useful guidance. Additionally, the Commission 
seeks comment on whether both proposed PASO definitions apply to a 
broader range of communications than the express advocacy standard as 
intended.
d. Scope of Proposed PASO Definitions
    Under Alternative A, the PASO definition would not require any 
reference to the fact that an individual is a Federal candidate or any 
reference to a political party. The definition in Alternative B would 
require an ``explicit'' reference to either a clearly identified 
Federal candidate or a political party. See proposed Alternative B at 
100.23(b)(1)(ii). Additionally, Alternative B requires the unambiguous 
PASOing of a candidate or party in addition to a clear nexus between 
that candidate or party and an upcoming election or candidacy.
    For PASO with respect to candidates, Alternative B's definition of 
``clearly identified'' incorporates by reference the definition in 11 
CFR 100.17 of the same term; with respect to parties, the definition is 
adapted from 11 CFR 100.17. The Commission invites comment on whether a 
reference to a clearly identified candidate or party is necessary or 
appropriate. Alternatively, would a limited application of the proposed 
PASO definition--i.e., to apply it only to those communications that 
constitute Federal election activity, to communications coordinated 
with candidates or parties, and as a limit to the exemptions from the 
definition of ``electioneering communication''--suffice in lieu of a 
``refers to'' criterion? The Commission seeks comment on whether either 
Alternative A or Alternative B is too broad or too narrow in this 
respect.
    Conversely, not all communications that refer to a clearly 
identified Federal candidate necessarily PASO that candidate. The 
Commission has concluded that a particular proposed endorsement did not 
PASO the endorser. See Advisory Opinion 2003-25 (Weinzapfel) (the 
proposed communication--a television advertisement in which Senator 
Bayh would identify himself and endorse Jonathan Weinzapfel, a 
candidate for State office--did not PASO Senator Bayh).\21\ Both 
alternatives are intended to reflect the principle in the Weinzapfel AO 
that a communication in which a Federal candidate endorses another 
candidate does not, by itself, PASO the endorser. Both alternatives are 
also intended to reflect the idea--in BCRA's legislative history and in 
the Commission's prior analysis of PASO--that identification of a 
candidate does not automatically PASO that candidate. Should the 
Commission revise the proposed definitions to better reflect these 
principles?
---------------------------------------------------------------------------

    \21\ ``The mere identification of an individual who is a Federal 
candidate does not automatically promote, support, attack, or oppose 
that candidate.'' 148 Cong. Rec. S2143 (daily ed. Mar. 20, 2002) 
(statement of Sen. Feingold) (quoted in 2006 E&J, 71 FR at 33202) 
(PASO exception to the coordinated communications solicitation and 
endorsement safe harbor).
---------------------------------------------------------------------------

    Alternative A, in proposed 11 CFR 100.23(b), also is intended to 
recognize that many types of communications may PASO, even if, on their 
face, they also serve another function. For example, the proposed 
inclusion of ``in whole or in part'' is intended to incorporate the 
Commission's previous analysis that communications may promote both a 
business or organization and a candidate. Additionally, this proposed 
paragraph is consistent with the Commission's previous analysis that a 
communication may have dual purposes. See Explanation and Justification 
for Final Rules on Electioneering Communications, 70 FR 75713, 75714 
(Dec. 21, 2005). Proposed paragraph 100.23(b) in Alternative A would 
define PASO so that a communication may PASO a candidate not as a 
candidate per se, but in another capacity such as a prominent 
individual, legislator, or public official.
    The Commission seeks comment on whether Alternative A--in which the 
PASO component of a communication may be only one part of the 
communication and in which the communication may not have an explicit 
electoral nexus--is consistent with the Supreme Court's decisions in 
Buckley, McConnell, and Wisconsin Right to Life. Should Alternative A 
be explicitly limited to apply only to those communications that 
constitute Federal election activity, to communications coordinated 
with candidates or parties, and as a limit to the exemptions from the 
definition of ``electioneering communication''? Alternatively, or 
additionally, should Alternative A define PASO to include fewer 
communications, such as by requiring that, in the absence of an 
explicit electoral nexus, the communication must PASO the candidate's 
character, qualifications, or fitness for office? See, e.g., Wis. Right 
to Life, 551 U.S. at 470; 11 CFR 114.15(b)(2), (c)(1)(ii) (referring to 
character, qualifications, or fitness for office as indicia of express 
advocacy). Conversely, the Commission seeks comment on whether 
Alternative A should define PASO to include more communications and, if 
so, how.
    Alternative B is intended to exclude communications directed only 
at legislation or some other cause by requiring PASO to be directed 
unambiguously at a candidate or party. Additionally, Alternative B's 
clear nexus criterion is intended to exclude communications that merely 
refer to an individual who may be a candidate for Federal office. For 
example, Alternative B is intended to exclude an advertisement that 
merely discusses a Senator's position on a legislative issue and 
promotes that position, but does not discuss the Senator's candidacy 
for reelection. Does Alternative B exclude more than mere references to 
individuals who are candidates for office or discussions of a 
candidate's position on legislative issues?
    The Commission seeks comment on whether proposed Alternative B's 
requirement that a communication have a ``clear nexus'' to an upcoming 
Federal election or to a candidacy for such election is appropriate. In 
Buckley, the Court explained that its narrowing construction of the 
Act's disclosure provisions would ensure that reporting of independent 
expenditures by persons other than candidates or political committees 
would ``shed the light of publicity on spending that is unambiguously 
campaign related.'' Buckley, 424 U.S. at 81. Is the phrase 
``unambiguously campaign related'' relevant or appropriate in the 
context of coordinated communications? Does the proposed ``clear 
nexus'' criterion properly capture or implement the Act's definition of 
a contribution, which

[[Page 53901]]

includes anything of value given ``for the purpose of influencing any 
election for Federal office''? When used in this context, do the terms 
``unambiguous'' and ``clear nexus'' provide sufficiently clear 
guidance?
    Commonly, during an election season, ads are run that compare 
opposing candidates' records or positions on legislative issues without 
mentioning their candidacies or an election. For instance, the ``Willie 
Horton'' ad, referenced below, is an example of this type of 
communication. Would ads like these be encompassed by either 
Alternative A or B? Should they be?
    In short, do the proposed ``unambiguous'' and ``clear nexus'' 
criteria properly capture or implement the Act's definition of a 
contribution? Conversely, do these requirements overly narrow the scope 
of the PASO definition?
e. Verbal or Pictorial Means
    Alternative B contains the additional requirement that the element 
of the communication that unambiguously PASOs be done through verbal 
(whether by visual text or audio speech) or pictorial (whether 
depictions of party officials, candidates, or their respective logos) 
means, or a combination of the two. Alternative B further provides that 
``photographic or videographic alterations, facial expressions, body 
language, poses, or similar features'' may not be considered in 
determining whether the communication PASOs. In contrast, Alternative A 
would not restrict the manner in which a communication PASOs a 
candidate.
    Are Alternative B's limits clear? Should any of the following 
elements of communications be excluded from the PASO determination: 
song lyrics, images of the American flag, patriotic or frightening 
music, or altered candidate images? The Commission seeks comment on 
whether to exclude from the PASO definition digital or other 
manipulation of images, for example an image that shows the candidate's 
face morphing into the visage of either Adolph Hitler, Mother Theresa, 
or a popular or unpopular political figure.
    The Commission seeks comment on whether non-speech elements are 
often relevant, or even essential, in determining whether the 
communication promotes, supports, attacks, or opposes a candidate for 
Federal office.
    Commenters are invited to provide the Commission with specific 
examples of communications in which non-speech elements are necessary 
to the communicative purpose. Which approach is clearer, more objective 
and administrable? Which approach best effectuates congressional 
intent?
f. Jurisdiction
    Alternative B contains the additional criterion that the 
communication be publicly distributed or disseminated in the clearly 
identified Federal candidate's or party's jurisdiction. This criterion 
is based on the content reference standard of the current coordinated 
communications regulation at 11 CFR 109.21(c)(4). However, unlike the 
content reference standard, the fourth criterion in the proposed PASO 
definition does not contain the 90/120-day window. The proposed 
jurisdictional requirement is intended to provide an objective, bright-
line standard by which to determine PASO. Does this requirement 
distinguish between those communications that are made for the purpose 
of influencing a Federal election and those that are not? Alternative A 
does not contain a jurisdictional requirement.
    The Commission invites comment on the proposed jurisdictional 
criterion. In Shays III Appeal, the court held that the Commission's 
revised content standard must ``rationally separate[] election-related 
advocacy from other activity falling outside FECA's expenditure 
definition.'' Shays III Appeal, 528 F.3d at 926. Does the proposed 
jurisdictional criterion accomplish this? Conversely, does this 
requirement overly narrow the scope of the PASO definition? Are there 
communications outside a candidate's jurisdiction that nonetheless are 
made for the purpose of influencing that candidate's election (e.g., 
solicitations of funds, volunteers, or requests to contact voters)?
    Additionally, are the phrases ``publicly distributed'' and 
``publicly disseminated'' sufficiently objective, or are they too 
vague? Are the phrases under- or overinclusive? Should the Commission 
adopt a different jurisdictional element, such as one adapted from the 
electioneering communications definition at 11 CFR 100.29(b)(5)?
    The Commission also invites comment on whether a jurisdictional 
criterion appropriately limits the PASO definition to those 
communications made for the purpose of influencing a Federal election. 
See, e.g., Shays I Appeal, 414 F.3d at 99 (``Nor is such purpose [of 
influencing a Federal election] necessarily evident in statements, 
referring, say, to a Connecticut senator but running only in San 
Francisco media markets.''). Alternatively, could communications 
arguably favorable or critical of a candidate but disseminated outside 
that candidate's jurisdiction still be made for the purpose of 
influencing the election? How, for example, should the definition treat 
a communication that urges people outside a candidate's jurisdiction to 
influence their friends inside the jurisdiction? Would a geographic 
jurisdictional limit be too narrow?
g. Proposed Examples \22\
---------------------------------------------------------------------------

    \22\ Please note that the examples in the alternative proposed 
PASO definitions are different from, and in addition to, the 
examples discussed below in the coordination-specific sections.
---------------------------------------------------------------------------

    Finally, both proposed PASO definitions also provide several 
examples, some of which are adapted from closed Commission enforcement 
matters,\23\ of communications that would and would not PASO. 
Alternatives A and B treat the examples differently. The Commission 
seeks comments on these differences.
---------------------------------------------------------------------------

    \23\ The example at proposed Alternative A at 11 CFR 
100.23(c)(1) and Alternative B at 11 CFR 100.23(d)(1) is adapted 
from Matter Under Review (``MUR'') 6019 (Dominic Caserta for 
Assembly); the example at proposed Alternative A at 11 CFR 
100.23(c)(2) and proposed Alternative B at 11 CFR 100.23(d)(2) is 
adapted from MURs 5365 (Club for Growth) and 5694 (Americans for Job 
Security); the example at proposed Alternative A at 11 CFR 
100.23(d)(1) and proposed Alternative B at 11 CFR 100.23(e)(2) is 
adapted from MUR 6064 (Missouri State University); the example at 
proposed Alternative A at 11 CFR 100.23(d)(2) and proposed 
Alternative B at 11 CFR 100.23(e)(3) is adapted from MUR 5387 (Welch 
for Wisconsin); the example at proposed Alternative A at 11 CFR 
100.23(e)(1) and proposed Alternative B at 11 CFR 100.23(d)(3) is 
adapted from ADR Case 250 (Your Art Here); the example at proposed 
Alternative A at 11 CFR 100.23(e)(2) and proposed Alternative B at 
11 CFR 100.23(e)(5) is adapted from MUR 5974 (New Summit 
Republicans); and the example at proposed Alternative A at 11 CFR 
100.23(e)(3) and proposed Alternative B at 11 CFR 100.23(d)(4) is 
adapted from MUR 5714 (Montana State Democratic Central Committee).
---------------------------------------------------------------------------

    The Commission invites comment on (1) whether including examples 
would be helpful, either in the final rule or in the Explanation and 
Justification, if the definition is adopted; (2) whether the proposed 
examples properly apply the proposed definitions; (3) whether the 
examples provide sufficient context for determining whether specific 
communications PASO; and (4) whether additional or different examples 
are needed, such as an example adapted from Advisory Opinion 2003-25 
(Weinzapfel).
    The Commission seeks comment on whether the proposed alternative 
definitions for 11 CFR 100.23, in all their parts, provide clear 
guidance as to PASO, and if not, what aspects of the proposed 
definitions require further explanation or clarification.

[[Page 53902]]

B. Alternative 2--The Modified WRTL Content Standard--Proposed 11 CFR 
109.21(c)(5)

    Alternative 2 would add a new content standard that would apply to 
any public communication that is the ``functional equivalent of express 
advocacy.'' The proposed standard 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. This standard is 
based on the test articulated in Wisconsin Right to Life, 551 U.S. at 
469-70, and McConnell, 540 U.S. at 204-06, both addressing 
electioneering communications. The proposed Modified WRTL content 
standard would apply without regard to the timing of the communication 
or the targeted audience. The Commission seeks comment on whether the 
proposed Modified WRTL content standard complies with the Court of 
Appeals' requirement in Shays III Appeal that the Commission adopt a 
standard that rationally separates election-related advocacy from other 
communications falling outside the Act's expenditure definition. Would 
a content standard that covers communications containing the 
``functional equivalent of express advocacy'' comply with the Shays III 
Appeal requirement that the Commission adopt a standard more 
restrictive than ``express advocacy'' outside the 90-day and 120-day 
time windows?
    In Wisconsin Right to Life, the Supreme Court decided an as-applied 
challenge to the BCRA provision prohibiting the use of general treasury 
funds by corporations and labor organizations to pay for electioneering 
communications.\24\ 551 U.S. at 449; see also 2 U.S.C. 441b(b)(2) 
(corporate and labor organization funding prohibitions); 434(f)(3) 
(defining electioneering communications). Wisconsin Right to Life 
limited the reach of the electioneering communication funding 
prohibitions to communications by corporations and labor organizations 
that contain the functional equivalent of express advocacy. 551 U.S. at 
456-57. Following the Wisconsin Right to Life decision, the Commission 
promulgated rules that incorporated the Wisconsin Right to Life test in 
a provision governing the funding of electioneering communications by 
corporations and labor organizations. See 11 CFR 114.15.
---------------------------------------------------------------------------

    \24\ Electioneering communications are broadcast, cable or 
satellite communications that refer to a clearly identified 
candidate for Federal office, are publicly distributed within sixty 
days before a general election or thirty days before a primary 
election, and are targeted to the relevant electorate. See 2 U.S.C. 
434(f)(3)(A)(i); 11 CFR 100.29. By definition, an electioneering 
communication is a communication that is not an expenditure or an 
independent expenditure. 2 U.S.C. 434(f)(3)(B)(ii). Thus, by 
definition, a communication that contains express advocacy is not an 
electioneering communication. See 2 U.S.C. 431(17).
---------------------------------------------------------------------------

    The proposed Modified WRTL content standard for coordinated 
communications uses the same language as 11 CFR 114.15(a). The proposed 
Modified WRTL content standard in the coordinated communications 
content prong does not, however, refer to or incorporate any other 
provision from 11 CFR 114.15. For example, the proposed Modified WRTL 
content standard does not contain the safe harbor in 11 CFR 
114.15(b),\25\ the rules of interpretation in 11 CFR 114.15(c), or the 
limitation on information to be considered in 11 CFR 114.15(d). Does 
the proposed Modified WRTL content standard, without these elements, 
provide sufficient guidance for compliance with the Commission's 
coordination rules? Would including in the Modified WRTL content 
standard any of these, or similar, elements provide clear guidance? 
Does the proposed Modified WRTL content standard, with or without the 
additional elements from 11 CFR 114.15, satisfy the court's concern in 
Shays III Appeal that the Commission rationally separate election-
related advocacy from other communications falling outside the Act's 
expenditure definition? The Commission seeks comment on the practical 
effect, if any, of creating two different approaches to the Modified 
WRTL content standard if the Commission does not incorporate all 
aspects of 11 CFR 114.15 in the coordinated communication Modified WRTL 
content standard.
---------------------------------------------------------------------------

    \25\ Although the proposed Modified WRTL content standard does 
not contain the 11 CFR 114.15(b) safe harbor, the Commission also is 
proposing safe harbors at 11 CFR 109.21(i) and (j) that are 
generally applicable to all coordinated communications. These safe 
harbors are similar to the provision at 11 CFR 114.15(b). See below.
---------------------------------------------------------------------------

    The Commission also seeks comment on whether the proposed Modified 
WRTL content standard and the existing express advocacy content 
standard are too similar to give effect to the Shays III Appeal court's 
decision. Does the Modified WRTL content standard's formulation of the 
``functional equivalent of express advocacy'' as communications that 
are ``susceptible of no reasonable interpretation other than as an 
appeal to vote for or against a specific candidate'' bear substantial 
resemblance to components of the Commission's definition of ``expressly 
advocating'' at 11 CFR 100.22? Would a content standard that covers 
communications containing the ``functional equivalent of express 
advocacy'' comply with the Shays III Appeal requirement that the 
Commission adopt a standard other than ``magic words'' or ``express 
advocacy'' outside the 90- and 120-day time windows?
    The Commission also seeks comment on whether the Modified WRTL 
content standard lends itself to applications outside of the 
``electioneering communication'' context. The Supreme Court, in 
McConnell, observed that the electioneering communication definition 
was not unconstitutionally vague because it contained narrowly 
tailored, easily understood, and objectively determinable elements. 
McConnell, 540 U.S. at 194. And Wisconsin Right to Life suggested that 
the Wisconsin Right to Life ``test is only triggered if the speech 
meets the bright-line requirements of [the definition of electioneering 
communications] in the first place.'' Wis. Right to Life, 551 U.S. at 
474 n.7. Untethered from the temporal and jurisdictional limitations 
present in the electioneering communication definition, is the Modified 
WRTL content standard too vague, broad, or overinclusive? If so, should 
the Modified WRTL content standard for coordinated communications be 
limited by, for example, requiring, as proposed PASO definition B does, 
that the communication be targeted to the relevant jurisdiction, or 
contain some other restriction? Alternatively, could communications 
disseminated outside the jurisdiction in which the election is sought 
still be made for the purpose of influencing the election, for example, 
by soliciting funds or volunteers, or requesting that the recipient of 
the communication contact voters within the jurisdiction?
    In addressing electioneering communications, the Supreme Court in 
Wisconsin Right to Life stated that ``in a debatable case'' the ``tie 
goes to the speaker.'' Wis. Right to Life, 551 U.S. at 474; id. at n.7. 
Does that concept have any application to the proposed Modified WRTL 
content standard? Does it have application outside of the corporate and 
labor organization funding restriction at issue in Wisconsin Right to 
Life? The Commission seeks comment on whether application of the 
proposed Modified WRTL content standard as well as the payment and 
conduct prongs raises the same First Amendment issues that underlie the 
Supreme Court's decision in Wisconsin Right to Life.

[[Page 53903]]

    Finally, neither the Commission's electioneering communication 
definition nor the Wisconsin Right to Life decision addresses 
communications referring to political parties. Similarly, the proposed 
Modified WRTL content standard for coordinated communications would not 
address political parties, either. Congress in BCRA, however, amended 
the Act's coordination provisions to include expenditures made in 
coordination with political party committees. See 2 U.S.C. 
441a(a)(7)(b)(ii). The Commission seeks comment on whether it should 
revise the proposed Modified WRTL content standard to include 
communications that are ``susceptible of no reasonable interpretation 
other than as an appeal to vote for or against'' a political party.

C. Examples

    In addition to the examples in the proposed PASO definitions in 
this NPRM, the Commission is considering whether to include in the 
final rule, or in its Explanation and Justification, additional 
examples of communications that would, and would not, satisfy the 
proposed PASO standard, the proposed Modified WRTL content standard, or 
both standards, if these standards are adopted. These examples are 
drawn from actual communications evaluated by the courts, the 
Commission, and from prior Explanations and Justifications for 
Commission rulemakings.
    The Commission seeks comment on the application of the proposed 
PASO definition and content standard, as well as the proposed Modified 
WRTL content standard to the following examples, and asks whether 
further examples would be helpful.

    Example 1 (from Koerber v. FEC, 583 F. Supp. 2d 740 (E.D.N.C. 
2008)): Senator Obama. Why did you vote against protecting infants 
that survived late term abortions? Not once, but four times. Even 
Congress unanimously supported protections identical to those you 
blocked in Illinois. The Supreme Court upheld the ban on partial 
birth abortions. And yet today, you keep working to roll back this 
law. Call Senator Obama. Tell him to stop trying to overturn these 
basic human rights.
    Example 2 (from Matter Under Review (``MUR'') 5854 (The Lantern 
Project)): It's hard to make ends meet. Yet Rick Santorum voted 
against raising the minimum wage. But Santorum voted to allow his 
own pay to be raised by $8000. What is he thinking?
    Example 3 (from MUR 5991 (U.S. Term Limits, Inc.)) Today, we 
have more charter schools thanks to Bob Schaffer. Thanks, Bob! 
Thanks, Bob! Thanks, Bob! Thanks, Bob! Thanks, Bob! We couldn't have 
done it without you. Thanks for standing up for us. Even when it was 
really, really hard. Bob does the right thing. Bob keeps his 
promises. Thanks, Bob Schaffer, for giving my daughter a chance. Bob 
Schaffer helped create the Colorado Charter School Act. Tell Bob to 
keep giving us real education options. Thanks, Bob! Thanks, Bob!
    Example 4 (from McConnell, 540 U.S. at 193 n.78) Who is Bill 
Yellowtail? He preaches family values but took a swing at his wife. 
And Yellowtail's response? He only slapped her. But ``her nose was 
not broken.'' He talks law and order * * * but is himself a 
convicted felon. And though he talks about protecting children, 
Yellowtail failed to make his own child support payments--then voted 
against child support enforcement. Call Bill Yellowtail. Tell him to 
support family values.
    Example 5 (from Explanation and Justification for Final Rules on 
Electioneering Communications, 72 FR 72899 (Dec. 26, 2007)): [VISUAL 
OF CANDIDATE SALLY SMITH]: Hello, I'm Sally Smith. Most of us think 
of heart disease as a problem that mostly affects men. But today, 
heart disease is one of the leading causes of death among American 
women. It doesn't have to stay that way. Lower cholesterol, daily 
exercise, and regular visits to your doctor can help you fight back. 
So have heart, America, and together we can reduce the risk of heart 
disease.

    VOICE OVER: This message brought to you by DISH Network.
    Example 6 (from McConnell, 251 F. Supp. 2d 176, 876 (D.D.C. 
2003)) It's our land; our water. America's environment must be 
protected. But in just 18 months, Congressman Ganske has voted 12 
out of 12 times to weaken environmental protections. Congressman 
Ganske even voted to let corporations continue releasing cancer-
causing pollutants into our air. Congressman Ganske voted for the 
big corporations who lobbied these bills and gave him thousands of 
dollars in contributions. Call Congressman Ganske. Tell him to 
protect America's environment. For our families. For our future.
    Example 7 (from Wis. Right to Life v. FEC, 466 F. Supp. 2d 195, 
198 n.4 (D.D.C. 2006)) LOAN OFFICER: Welcome Mr. and Mrs. Shulman. 
We've reviewed your loan 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. 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 aren't 
getting 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.
    Example 8 (from MUR 6013 (Friends of Peter Teahen)): VOICE OVER 
AND APPEARANCE BY CANDIDATE PETER TEAHEN: My father served in the 
Navy and like many veterans he didn't talk about his military 
experience. But we all knew how much he loved his country. Dad had a 
big flag pole in our front yard and I used to help him raise the 
flag. Now, when I see a flag, I think of Dad and all the men and 
women who sacrifice their lives for the sake of freedom. I'm Peter 
Teahen and I'm proud to be an American. Teahen Funeral Home: Life 
ends, but memories live on.
    Example 9 (from MUR 6122 (National Association of Home 
Builders)): Protecting the American Dream. Gary voted to create a 
$7,500 temporary first-time home buyer tax credit. Voted for 
legislation to make more mortgage bonds available. He voted for 
legislation to help victims of the sub-prime crisis.
    Energy Independence Is No Longer Just An Economic Issue, But 
Also A National Security Issue. Gary supports increased development 
of clean coal, natural gas, and oil. Supports increasing domestic 
exploration in Alaska and off our coast. Congressman Miller supports 
incentives to encourage further development and use of alternative 
fuels.
    Example 10 (from The Real Truth About Obama v. FEC, No. 3:08-CV-
483, 2008 WL 4416282 (E.D. Va. 2008), aff'd, 575 F.3d 342 (4th Cir. 
2009)): 
    WOMAN'S VOICE: Just what is the real truth about Democrat Barack 
Obama's position on abortion?
    OBAMA-LIKE VOICE: Change. Here is how I would like to change 
America * * * about abortion: Make taxpayers pay for all 1.2 million 
abortions performed in America each year. Make sure that minor 
girls' abortions are kept secret from their parents. Make partial-
birth abortion legal. Give Planned Parenthood lots more money to 
support abortion. Change current Federal and State laws so that 
babies who survive abortions will die soon after they are born. 
Appoint more liberal Justices on the U.S. Supreme Court. One thing I 
would not change about America is abortion on demand, for any 
reason, at any time during pregnancy, as many times as a woman wants 
one.
    WOMAN'S VOICE: Now you know the real truth about Obama's 
position on abortion. Is this the change you can believe in?
    VOICE OVER: To learn more real truth about Obama, visit 
www.TheRealTruthAboutObama.com.
    Example 11: 1964 Presidential Campaign Television Spot, ``Peace 
Little Girl'' (``Daisy'' Ad), available at LBJ Library and Museum 
Media Archives, http://www.lbjlib.utexas.edu/johnson/media/daisyspot 
(last visited Oct. 7, 2009) (but without express advocacy language).
    Example 12: ``Willie Horton Political Ad 1988,'' available at 
http://www.youtube.com/watch?v=SLafbHYVqVE (last visited Oct. 8, 
2009).
    Example 13 (from MUR 5525 (Swift Boat Veterans for Truth)): 
    JOHN KERRY: They had personally raped, cut off ears, cut off 
heads * * *
    JOE PONDER: The accusations that John Kerry made against the 
veterans who served in Vietnam was just devastating.
    JOHN KERRY: * * * randomly shot at civilians* * *
    JOE PONDER: and it hurt me more than any physical wounds I had.
    JOHN KERRY: * * * Cut off limbs, blown up bodies* * *

[[Page 53904]]

    KEN CORDIER: That was part of the torture, was to sign a 
statement that you had committed war crimes.
    JOHN KERRY: * * * razed villages in a fashion reminiscent of 
Ghengis Khan* * *
    PAUL GALANTI: John Kerry gave the enemy for free what I and many 
of my comrades in North Vietnam in the prison camps took torture to 
avoid saying. It demoralized us.
    JOHN KERRY: * * * Crimes committed on a day to day basis* * *
    KEN CORDIER: He betrayed us in the past. How could we be loyal 
to him now?
    JOHN KERRY: * * * Ravaged the countryside of South Vietnam* * *
    PAUL GALANTI: He dishonored his country, but more importantly, 
the people he served with. He just sold them out.
    ANNOUNCER: Swift Boat Veterans for Truth is responsible for the 
content of this advertisement.

    The Commission seeks comment on whether such examples should be 
provided, and what other types of communications would be appropriate 
examples. Furthermore, the Commission invites commenters to provide 
additional examples of communications demonstrating that the proposed 
PASO standard or proposed Modified WRTL content standard would 
rationally separate election-related advocacy from other activity 
falling outside the Act's expenditure definition. Conversely, the 
Commission invites commenters to provide examples of communications 
demonstrating that the proposed PASO standard or proposed Modified WRTL 
content standard would be either underinclusive or overinclusive.

D. Alternative 3--Clarification of the Express Advocacy Standard--
Revised 11 CFR 109.21(c)(3)

    Alternative 3 would clarify existing 11 CFR 109.21(c)(3) by 
including a cross-reference to the express advocacy definition at 11 
CFR 100.22. As discussed above, the Shays III Appeal court 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(a). As noted above, paragraph (a) of the 
regulatory definition also includes any ``campaign slogan(s) or 
individual word(s), which in context have no other reasonable meaning 
than to urge the election or defeat of one or more clearly identified 
candidate(s).'' Id.
    Additionally, paragraph (b) of that regulation provides that a 
communication expressly advocates:

    When taken as a whole and with limited reference to external 
events, such as the proximity to the election, could only be 
interpreted by a reasonable person as containing advocacy of the 
election or defeat of one or more clearly identified candidate(s) 
because--
    (1) The electoral portion of the communication is unmistakable, 
unambiguous, and suggestive of only one meaning; and
    (2) Reasonable minds could not differ as to whether it 
encourages actions to elect or defeat one or more clearly identified 
candidate(s) or encourages some other kind of action.

See 11 CFR 100.22(b).
    The Commission is considering adding an explicit reference to 11 
CFR 100.22 in the current express advocacy content standard at 11 CFR 
109.21(c)(3) to clarify that, outside of the 90/120-day window, 
communications containing more than just ``magic words'' are regulated, 
provided that the conduct and payment prong are also met. The 
Commission seeks comment on whether, by itself, the clarification of 11 
CFR 109.21(c)(3) as encompassing not only ``magic words,'' but also the 
entirety of the express advocacy definition at 11 CFR 100.22, would 
fully address the court's concern about the current limitations of the 
content prong (i.e., the ``decision to apply a `functionally 
meaningless' standard'' outside the 90- and 120-day windows). Shays III 
Appeal, 528 F.3d at 924. Or, did the court's concern about the 
limitations of the express advocacy standard go beyond ``magic words''?

E. Alternative 4--The ``Explicit Agreement'' Standard--Proposed 11 CFR 
109.21(c)(5), (d)(7), and (e)

    Congress specified in BCRA that the Commission's regulations 
``shall not require agreement or formal collaboration to establish 
coordination.'' BCRA at sec. 214(c), 116 Stat. at 95. However, the 
court in Shays III Appeal indicated that some agreements are so 
explicit that to ignore them would be to permit the evasion of the law 
as written by Congress. Shays III Appeal, 528 F.3d at 925. In 
concluding that the current coordinated communication 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 
court then 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).
    The NY Times scenario is a hypothetical. But recently, an actual 
case came to light in which a campaign operative, with the knowledge 
and acquiescence of the candidate, set up an organization, funded by 
the candidate's donors, to run purportedly independent negative ads 
about the candidate's chief opponent.\26\ Should the coordination 
regulations capture this fact pattern? Does the answer depend on the 
content of the ads? When combined with the court's hypothetical, does 
the existence of actual instances of such coordination heighten the 
need for this approach?
---------------------------------------------------------------------------

    \26\ David A. Lieb, Lawmakers Plead Guilty in Obstruction Case, 
Resign, Associated Press, Aug. 26, 2009 (`` `I wrongly believed we 
could conceal my campaign's coordination with the independent 
operator' Smith confessed to U.S. District Judge Carol Jackson * * 
*''); see also Jeff Smith, Think You Won't Get Caught? Think Again, 
St. Louis Post-Dispatch, Sept. 8, 2009 (``As Election Day drew near, 
I authorized a close friend and two aides to help an outside 
consultant send out a mailer about my opponent but without 
disclosing my campaign's connection.'').
---------------------------------------------------------------------------

    Alternative 4 is an attempt to address the underlying concern that 
appears to have motivated both Shays courts' concerns: conduct that 
explicitly reveals both an unquestionable agreement and unequivocal 
intent to affect a Federal election is the quintessential conduct that 
Congress sought to regulate. The reason that coordinated expenditures 
are treated differently is precisely because of the collaboration 
between the candidate's committee and outside groups. The Commission 
seeks comment on whether an ``Explicit Agreement'' standard addresses 
these

[[Page 53905]]

concerns. Should the ``Explicit Agreement'' standard be adopted in 
conjunction with another proposed standard? The proposed ``Explicit 
Agreement'' standard requires a formal or informal agreement between a 
candidate, candidate's committee or political party committee and the 
person paying for the ``public communication,'' as defined in 11 CFR 
100.26. Either the agreement or the communication must be made for the 
purpose of influencing an election.
    The Commission seeks comment on whether limiting the standard to 
those public communications that are explicitly made for the purpose of 
influencing an election, as in the Act's definition of ``expenditure,'' 
is adequate to separate election-related advocacy from other 
communications. Like the other alternatives the Commission is now 
considering, the proposed ``Explicit Agreement'' standard would apply 
without regard to when the communication is made or the targeted 
audience. Should it be so limited? The Commission also seeks comment on 
whether the proposed ``Explicit Agreement'' standard is overinclusive, 
underinclusive, or vague. Should the proposed ``Explicit Agreement'' 
standard be limited by, for example, requiring a reference to a 
political party or a clearly identified candidate for Federal office?
    The proposed rule states that whether the purpose of the 
communication is for the purpose of influencing a Federal election may 
be found in either the content of the communication or the agreement. 
This is a fact-specific determination. The Commission seeks comment on 
the types of facts that should lead to a determination of the purpose 
of a communication. For example, should the text, timing, or intended 
audience of the communication be considered? Should agreements entered 
into by a candidate's campaign staff be treated differently from 
agreements entered into by a candidate's congressional staff? Should 
the purpose be determined more broadly, e.g., by inference, 
discussions, implicit agreements, or course of dealing?
    The proposed ``Explicit Agreement'' standard requires a formal or 
informal agreement, and incorporates the current coordinated 
communication regulatory definition of ``agreement'' as ``a mutual 
understanding or meeting of the minds on all or any part of the 
material aspects of the communication or its dissemination.'' 11 CFR 
109.21(e). For purposes of the proposed ``Explicit Agreement'' 
standard, would this current definition suffice and does it provide 
sufficient guidance? Should the definition not be incorporated in the 
proposed text? Why or why not? Does the difference between a formal and 
informal agreement need to be clarified, and if so, how?
    Additionally, the requirement of a formal or informal agreement in 
the proposed ``Explicit Agreement'' standard would require certain 
conforming changes to the existing coordinated communications 
regulations. The Commission proposes to amend the statement in 11 CFR 
109.21(d) that all conduct standards could be satisfied regardless of 
agreement. As revised, this statement would not apply to the proposed 
``Explicit Agreement'' standard. Similarly, the statement in 11 CFR 
109.21(e) that agreement is not required would be amended to exclude 
the proposed ``Explicit Agreement'' standard.
1. Examples
    The Commission seeks comment on whether one, two, all, or none of 
the following scenarios should be, or are, covered by the proposed 
``Explicit Agreement'' standard:

    Example 1: Outside advocacy group G's director meets Candidate 
Jones at a cafe. Jones says she wants to become known as ``the 
education candidate'' but expresses concern that her campaign 
coffers are low. G's director tells Jones that her group could save 
Jones money by running the ``education issue'' component of Jones' 
campaign. Jones agrees that that is a wonderful plan. Group G pays 
for a series of television advertisements stressing that one of the 
most important issues affecting the future of our nation is 
education. Jones runs ads in which she states, ``I'm the education 
candidate.''

    In this example, the candidate and outside group agree that the 
outside group will spend its funds to highlight what the candidate has 
identified as an issue of importance to her campaign through an issue 
ad or series of issue ads, which the candidate's campaign could then 
build on. The ad would not clearly identify the candidate. Is this kind 
of ``piggybacking'' contemplated by the Shays III Appeal--NY Times 
hypothetical?

    Example 2: Candidate Jones meets with a well-heeled supporter 
more than 120 days before the next election and suggests the 
supporter run ads about Candidate Jones' record on education. 
Candidate Jones instructs the supporter that the ads should 
highlight Candidate Jones' success in Congress on the issue and the 
ads should ask viewers to call Candidate Jones and thank her for her 
``strong voice for our State,'' but should not contain ``magic 
words.''

    Example 3: Candidate Jones is approached by Jane Doe with an 
offer to produce and distribute ads against Candidate Jones' 
opponent. Candidate Jones agrees and directs members of his campaign 
to raise money for Ms. Doe and provide Ms. Doe with negative 
information about the opponent as well as mailing addresses. Ms. Doe 
distributes the ads, with no mention of Candidate Jones or his 
campaign committee. The ads name Candidate Jones' opponent (Senator 
Black) and list a series of missed votes over the course of the 
previous year. The ads label Senator Black as the ``Absent Senator'' 
and end with the tag line: ``Sorry Mr. Black, we need a Senator who 
shows up for work!''

III. Proposals for Revising the Common Vendor and Former Employee 
Provisions at 11 CFR 109.21

    The fourth standard of the conduct prong (the ``common vendor'' 
standard) is 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 candidate who is 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 previous 120 days, and (3) the 
commercial vendor uses or conveys 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 that is material to the creation, production, or distribution 
of the communication, or 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 that also is 
material to the creation, production, or distribution of the 
communication. See 11 CFR 109.21(d)(4).
    The fifth conduct standard (the ``former employee'' standard) is 
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 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 (2) the former employee or independent 
contractor uses, or conveys 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; or if the 
former

[[Page 53906]]

employee or independent contractor uses, or conveys 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. See 11 CFR 109.21(d)(5).
    As discussed above, the 2006 coordinated communication regulations 
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.
    In order to comply with the Shays III Appeal holding concerning the 
insufficient justification for the change from the ``current election 
cycle'' to a 120-day period in the common vendor and former employee 
conduct standards, the Commission invites comment on three alternatives 
for the time periods specified in the common vendor and former employee 
conduct standards. The Commission is not, at this time, proposing 
specific changes to any other aspects of these two conduct standards.
    The Commission seeks comments on whether each of the three 
alternatives would comply with the court's holding in Shays III Appeal 
that the Commission failed to provide an adequate explanation for its 
revision of the common vendor and former employee conduct standards to 
cover a 120-day period rather than the ``current election cycle.'' The 
Commission also seeks comments on whether it should adopt a different 
time period for these two conduct standards than those proposed.
    With respect to all three alternatives, the Commission seeks 
comment on the following questions concerning different types of 
campaign vendors, employees, and campaign-related information. Such 
comments will help the Commission determine the realistic ``shelf 
life'' of the types of information that a campaign vendor, former 
employee, or independent contractor is likely to possess, and tailor 
the regulations accordingly. Does the Shays III Appeal decision suggest 
that empirical evidence is necessary? What factors affect how long 
campaign information retains its usefulness? Do some types of campaign 
information (e.g., polling data, campaign strategy, advertising 
purchases, slogans, graphics, mailing lists, donor lists, or 
fundraising strategy) maintain their value to a campaign for a longer, 
or shorter, period of time than other types of information? What types 
of information tend to retain their usefulness the longest, and for how 
long? What types of information retain their usefulness for a shorter 
period, and for how long? Does the ``shelf life'' of campaign-related 
information depend on the type of campaign or election involved? That 
is, does information retain its usefulness longer for presidential 
campaigns, for example, than for Senate or House campaigns? Does the 
``shelf life'' of campaign information vary depending on the particular 
vendor or type of media (e.g., print vs. television, direct mail vs. 
newspaper)?
    The Commission also seeks comments on whether the date a candidate 
files a statement of candidacy for a given election is an accurate 
indicator of when the candidate begins actively campaigning for that 
election; Commission regulations require a candidate to file such a 
statement within fifteen days after receiving contributions or making 
expenditures in excess of $5,000, or authorizing other persons to do 
so. 11 CFR 100.3(a) and 101.1(a). If the filing date of the statement 
of candidacy is an accurate indicator of the start of a campaign, is 
the duration of the campaign a reasonable proxy for the ``shelf life'' 
of campaign information? If so, should the Commission adopt a time 
period for the common vendor and former employee conduct standards that 
is based on when candidates typically file their statements of 
candidacy? If so, how should the Commission determine what is the 
typical date when candidates file their statements of candidacy? 
Alternatively, should the Commission use a date based on when 
individual candidates actually file their statements of candidacy? If 
not, is there some other date the Commission should use? The Commission 
has observed that when Federal officeholders win an election, many of 
them file statements of candidacy for the next election shortly 
thereafter, while challengers often file their statements of candidacy 
at a later date, closer to the election in which they plan to run. How 
should the Commission address this general discrepancy between 
incumbents and challengers?
    In addition to the useful life of campaign information, the 
Commission seeks comment on any relevant distinctions between different 
types of vendors or campaign employees, and the types of information 
they are likely to possess. Do different categories of vendors or 
campaign employees typically possess different types of campaign-
related information that would affect how long their knowledge would 
remain material? If so, would adopting different time periods for 
different categories of vendors or employees, or different types of 
information, be too cumbersome for presidential, congressional, or 
other political committees to implement?
    The Commission also seeks comment on whether the list of vendor 
services set forth at 11 CFR 109.21(d)(4)(ii) captures the appropriate 
range of services that are likely to result in a common vendor's 
conveying timely campaign information that is material to a 
communication to a person paying for the communication. Are the types 
of vendor services listed the appropriate types of services to be 
covered by this conduct standard? Should any of them be eliminated from 
the list? Should any other vendor services be added? Alternatively, 
should the list be abandoned?

A. Alternative 1--Retain 120-Day Period

    Proposed Alternative 1 would not amend 11 CFR 109.21(d)(4) and (5). 
The Shays III Appeal court 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,'' and that although the Commission 
has discretion in determining where to draw a bright-line rule, ``it 
must support its decision with reasoning and evidence, for `a bright 
line can be drawn in the wrong place.' '' Shays III Appeal, 528 F.3d at 
929 (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. The first alternative would therefore retain the 
existing rule with the 120-day period, and the Commission would provide 
additional justification for that period, if it receives sufficient 
empirical data or other evidence using specific examples supplied in 
response to this NPRM demonstrating that the 120-day period is the 
appropriate standard.
    The Commission seeks comment on whether to adopt Alternative 1. Is 
the 120-day period an appropriate temporal limit on the operation of 
the regulation, in light of current campaign practices and with respect 
to the questions posed above? Does the 120-day period accurately 
reflect the period during which a vendor or former employee is

[[Page 53907]]

likely to possess and convey timely campaign information? Does 120 days 
approximate the length of time that a vendor or campaign employee is 
likely to possess information that remains useful to a campaign?

B. Alternative 2--Two-Year Period

    Alternative 2 would amend 11 CFR 109.21(d)(4) and (5) by deleting 
the phrase ``the previous 120 days'' from paragraphs (d)(4)(ii) and 
(d)(5)(i), and replacing it with ``the two-year period ending on the 
date of the general election for the office or seat that the candidate 
seeks.'' The two-year period corresponds with the election cycle for 
the House of Representatives, the most common election cycle of those 
regulated by the Commission.
    The Commission seeks comment on whether to adopt Alternative 2. 
Does this proposal represent the period during which the majority of 
candidates engage in active campaigning? Does the period of active 
campaigning for incumbent candidates differ from that of non-incumbent 
candidates? Does the period of active campaigning for Senate and 
presidential candidates differ significantly from that of House 
candidates? Is the two-year period a reasonable length of time for 
Senate and presidential candidates?
    The specific language of this proposal (``ending on the date of the 
general election for the office or seat that the candidate seeks'') is 
intended to reflect the fact that a candidate may run in a primary 
election but not in the subsequent general election, or may run in a 
special election or other special circumstances. The period during 
which this provision would apply is the same regardless of whether a 
candidate participates in the primary and/or general election, and to 
obviate any uncertainty about when the two-year period begins for 
candidates who participate in elections, such as special elections, 
that are held at a different time from the usual general election. Does 
the language of the proposal accomplish these goals?
    Should there be a different standard for the common vendor and 
former employee provisions in special elections? If so, what standard 
should apply to special elections?

C. Alternative 3--Current Election Cycle

    Alternative 3 would amend 11 CFR 109.21(d)(4) and (5) by replacing 
the existing 120-day period in paragraphs (d)(4)(ii) and (d)(5)(i) with 
a ``current election cycle'' period, as in the pre-2006 version of the 
regulation. See 11 CFR 109.21(d)(4), (5) (2002). ``Current election 
cycle'' is defined in current Commission regulations as beginning ``on 
the first day following the date of the previous general election for 
the office or seat which the candidate seeks. * * * The election cycle 
shall end on the date on which the general election for the office or 
seat that the individual seeks is held.'' 11 CFR 100.3(b). The 
``current election cycle'' period was not challenged in Shays I Appeal, 
and has not been invalidated or questioned by any court.
    The Commission seeks comment on whether to adopt Alternative 3. Is 
the ``current election cycle'' an appropriate length of time to 
restrict the activities of former campaign employees and common 
vendors? That is, does the ``current election cycle'' accurately 
reflect the length of time that vendors and former employees are likely 
to possess and convey campaign information that is still relevant to 
the campaign? Given that the ``current election cycle'' differs in 
length for House, Senate, and presidential candidates, is this period 
more appropriate for some elections or candidates than for others? 
During previous rulemakings, several commenters asserted that ``the 
current election cycle'' was too long with respect to presidential and 
Senate candidates, whose election cycles are four and six years, 
respectively. Do Senate and presidential candidates typically engage in 
active campaigning for the entire election cycle, or for some shorter 
period preceding the actual election? If the latter, what shorter 
period is typical? If this proposal is adopted, should the definition 
of ``current election cycle'' be modified in any way for purposes of 
this provision, or is the definition set forth at 11 CFR 100.3(b) 
appropriate?

IV. Proposed Safe Harbors for Communications in Support of 501(c)(3) 
Organizations and for Business and Commercial Communications--Proposed 
11 CFR 109.21(i) and (j)

    The Commission is considering adding a safe harbor to 11 CFR 
109.21(i) to address certain public communications in which Federal 
candidates endorse or solicit support for non-profit entities organized 
under section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 
501(c)(3)), or for public policies or legislative proposals espoused by 
those organizations. The Commission also is considering adding a new 
safe harbor at 11 CFR 109.21(j) for certain commercial and business 
communications.

A. Proposed 11 CFR 109.21(j)--Safe Harbor for Public Communications in 
Support of Tax-Exempt Organizations

    From time to time, Federal candidates and officeholders may choose 
to participate in public communications in support of 501(c)(3) tax-
exempt organizations or public policies or legislative proposals 
espoused by those organizations. The Commission seeks comment on 
whether it should adopt a new safe harbor in the coordinated 
communications rules to exempt these communications from regulation as 
coordinated communications, under certain circumstances. The Commission 
also seeks comment on the appropriate location of a safe harbor for 
communications that endorse or solicit support for non-profit 
organizations.
    Currently, the coordinated communication rules contain safe harbors 
for public communications in which a Federal candidate endorses a 
Federal or non-Federal candidate, see 11 CFR 109.21(g)(1), and for 
public communications in which a candidate solicits funds for a Federal 
or non-Federal candidate or a particular organization, see 11 CFR 
109.21(g)(2). These safe harbors do not apply, however, to public 
communications in which a candidate expresses or seeks non-monetary 
support for an organization's mission, or for a legislative or policy 
initiative supported by the organization.
    Such a communication was the subject of a recent enforcement 
action. See MUR 6020 (Alliance/Pelosi). The enforcement action involved 
a television advertisement sponsored 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 jurisdiction, within 90 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 solicitation safe harbor at 11 CFR 
109.21(g)(2).
    Proposed 11 CFR 109.21(i) would, under certain circumstances, 
enable a Federal candidate to participate in such a public 
communication, without the communication being treated as an in-kind 
contribution to the candidate.

[[Page 53908]]

Specifically, the proposed safe harbor would provide that a public 
communication paid for by a non-profit organization described in 26 
U.S.C. 501(c)(3), 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, would not be a 
coordinated communication, unless the public communication PASOs the 
candidate or another candidate who seeks the same office.
    Alternatively, rather than creating a new provision, would it be 
sufficient to expand the current safe harbor for endorsements at 11 CFR 
109.21(g)(1) to include endorsements of an entity that is exempt from 
taxation under section 501(c)(3) of the Internal Revenue Code? \27\ 
Would expanding the safe harbor at 11 CFR 109.21(g)(1) adequately 
capture communications that solicit support for a nonprofit but neither 
explicitly endorse nor solicit funds for the entity? Would the 
expansion of existing 11 CFR 109.21(g)(1) address the same concerns 
that proposed 11 CFR 109.21(i) is intended to address? If so, is such 
an approach preferable to creating a new safe harbor at proposed 11 CFR 
109.21(i)?
---------------------------------------------------------------------------

    \27\ The safe harbor for solicitation by a Federal candidate at 
11 CFR 109.21(g)(2) is broader than the safe harbor for endorsement 
by a Federal candidate at 11 CFR 109.21(g)(1), which is limited to 
endorsement of candidates for Federal and non-Federal office.
---------------------------------------------------------------------------

    The Commission seeks comment on the proposed safe harbor with 
respect to both of the alternative proposed PASO definitions. The 
Commission is particularly interested in the following: Should the 
Commission exempt public communications in which a candidate expresses 
support for a tax-exempt organization as described above or for a 
position or action with respect to a specific legislative or public 
policy initiative, but does not PASO the candidate or another candidate 
seeking the same office, from regulation as coordinated communications? 
If so, does proposed 11 CFR 109.21(i) accomplish this goal?
    Assuming that the Commission adopts such a safe harbor, what 
restrictions or conditions, if any, should apply to it, in addition to 
the existing PASO limitation? For example, should any proposed safe 
harbor be limited to public communications that are distributed 
nationwide? Should the proposed safe harbor be limited to public 
communications that are paid for by the tax-exempt organizations 
described above? Should proposed 11 CFR 109.21(i) ``public policy or 
legislative proposal'' be limited to legislation that is before 
Congress? Should it encompass other types of public policies, such as 
urging the public to engage in charitable work or community service, or 
encouraging the public to seek medical testing or take other health 
measures? Can public communications containing any of these examples 
PASO the candidate who expresses or seeks support for them or for the 
tax-exempt organizations paying for the communications?
    Would any communications that satisfy the content standards at 11 
CFR 109.21(c)(2) (republication) or (c)(3) (express advocacy) qualify 
for the proposed safe harbor? Or would the proposed safe harbor, as a 
practical matter, exempt only communications covered by the content 
standards at 11 CFR 109.21(c)(1) (electioneering communications) and 
(c)(4) (reference to a candidate), because any communications that 
would satisfy the republication or express advocacy content standards 
would necessarily PASO?
    The Commission previously has considered a similar exemption for 
public service announcements in the context of electioneering 
communications. See Notice of Proposed Rulemaking on Electioneering 
Communications, 67 FR 51131, 51136 (Aug. 7, 2002) (``2002 EC NPRM''). 
Under the Act, the Commission may promulgate regulations exempting 
certain communications from the definition of an electioneering 
communication, only if ``the exempted communication [is] not * * * a 
`public communication' that refers to a clearly identified candidate 
for Federal office and that promotes or supports a candidate for that 
office, or attacks or opposes a candidate for that office.'' 2002 EC 
E&J, 67 FR at 65198 (quoting 2 U.S.C. 434(f)(3)(B)(iv)).
    In the 2002 electioneering communications rulemaking, the 
Commission asked whether the proposed electioneering communications 
regulation should include an exemption for public service announcements 
that refer to a clearly identified Federal candidate. The Commission 
also asked whether it ``should limit any of [several possible] 
exemptions to ads that do not promote, support, attack, or oppose any 
clearly identified candidate.'' 67 FR at 51136. The Commission 
ultimately decided not to exempt public service announcements, citing 
some commenters' assertions of ``the possibility that such an exemption 
could be easily abused by using a [public service announcement] to 
associate a Federal candidate with a public-spirited endeavor in an 
effort to promote or support that candidate.'' 2002 EC E&J, 67 FR at 
65202. The Commission concluded that ``television and radio 
communications that include clearly identified candidates and that are 
distributed to a large audience in the candidate's State or district 
for a fee are appropriately subject to the electioneering 
communications provisions in BCRA * * * . Consequently, a [public 
service announcement] exemption is not included in the final rules.'' 
Id.
    The Act does not limit the Commission's authority to exempt certain 
types of communications from regulation as a coordinated communication 
to communications that do not PASO, as it does for electioneering 
communications. Would a public communication that PASOs a clearly 
identified Federal candidate nonetheless present similar concerns in 
the coordination context as it does in the electioneering 
communications context? If so, does the inclusion of a PASO limitation 
in the proposed safe harbor address that concern? What effect, if any, 
would the adoption of either of the proposed PASO definitions have on 
the PASO limitation in the proposed safe harbor? What effect, if any, 
would declining to adopt a definition of PASO have on the PASO 
limitation in the proposed safe harbor?
    The Commission invites comments on the following hypothetical 
example. Tax-exempt Organization A pays for a television advertisement 
in which a candidate appears. The candidate states in the 
advertisement: ``My name is X, and I endorse Organization A because I 
believe in equality of educational opportunities for all children. I 
believe in robust early childhood programs. I believe in rigorous 
standards for teachers. And I believe that community involvement 
contributes to the quality of our schools. So join me in supporting the 
good work of Organization A.'' Should this advertisement qualify for 
the proposed safe harbor, or should it continue to be treated as a 
coordinated communication? Does it PASO Candidate X? Why or why not?
    Assuming the Commission determines that a safe harbor is necessary, 
is there a reason to prefer one approach to the other? Alternatively, 
does the Commission's dismissal of MUR 6020 (Alliance/Pelosi) 
demonstrate that such a safe harbor is not necessary because the 
Commission has adequate means of addressing the concerns at issue? Is 
the proposed safe harbor described above appropriate and

[[Page 53909]]

advisable? Is the proposed safe harbor under- or over-inclusive?

B. Proposed 11 CFR 109.21(j)--New Safe Harbor for Business and 
Commercial Communications

    The Commission is also considering adding a new coordinated 
communications safe harbor at 11 CFR 109.21(j) to address certain 
commercial and business communications. The proposed safe harbor would 
apply to 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 prior to the candidacy 
in terms of the medium, timing, content, and geographic distribution.
    The proposed new safe harbor is intended to encompass the types of 
commercial and business communications that were the subjects of 
several recent enforcement actions. In each enforcement action, a 
business owned by a Federal candidate that had been operating prior to 
the candidacy paid for television advertisements that included the 
name, image, and voice of the candidate and that were distributed in 
the candidate's district within 90 days before the election, thus 
satisfying the fourth coordinated communications content standard at 11 
CFR 109.21(c)(4). See MUR 6013 (Teahen), MUR 5517 (Stork), and MUR 5410 
(Oberweis); see also MUR 4999 (Bernstein).
    The Commission seeks comments on the proposed new safe harbor. 
Should the Commission exclude these commercial and business 
communications from regulation as coordinated communications? If so, 
would the proposed safe harbor accomplish this goal? Are Federal 
candidates who own or operate businesses or who are involved in other 
commercial activity currently impeded under the coordinated 
communications rules from being able to conduct their business 
activities? In addressing the time windows that are applicable to 
common vendors and former employees, the Shays III District court 
determined that the Commission is ``certainly not at liberty to 
accommodate'' business activities ``at the expense of BCRA's statutory 
goals.'' Shays III District, 508 F. Supp. 2d at 51. Notwithstanding 
this conclusion, could the current coordinated communications 
regulations be more narrowly tailored to accomplish BCRA's statutory 
goals without unnecessarily impeding non-electoral business activities?
    Alternatively, would the proposed safe harbor provide an electoral 
advantage to candidates who participate in business activities as 
opposed to their election opponents who do not? If so, would any such 
advantage depend on the type of business activity in question, the type 
or content of the public communication at issue, the office or seat the 
candidate seeks or holds, or other factors? In addressing the 
``Millionaires' Amendment,'' the Supreme Court reaffirmed that the 
government may not ``level electoral opportunities'' by equalizing 
candidates' advantages. Davis v. FEC, 128 S. Ct. 2759, 2773 (2008). 
Accordingly, may the Commission consider competitive advantages or 
disadvantages in fashioning its coordination rules?
    Would the proposed safe harbor have the potential for circumvention 
of the Act's contribution limitations and prohibitions? If so, could 
that potential be minimized or eliminated, and if so, how?
    What changes to the proposed safe harbor, if any, would better 
capture only bona fide business and commercial communications, without 
also encompassing election-related communications? Should the proposed 
safe harbor distinguish between pre-existing businesses and those that 
are established after a candidate files a statement of candidacy or 
after the beginning of the election cycle? Should it be limited to 
communications that are consistent with those that were made prior to 
the candidacy in terms of medium, timing, content, and geographic 
distribution, or should firms be allowed to adjust their advertising 
based on bona fide commercial need, regardless of any candidacy? How 
would the Commission determine bona fide commercial need? Should the 
proposed safe harbor apply only to public communications on behalf of a 
business whose name includes the candidate's name, or should it also 
apply to public communications in which a candidate appears as a 
spokesperson for a business, product, or service that does not share 
his or her name? Should the proposed safe harbor require that the 
public communication explicitly propose a transaction, such as the 
purchase of a product or service? Should the proposed safe harbor 
require that the public communication include contact information such 
as the address, phone number, or Web site of the business? Would this 
proposal be more appropriately limited to being an exception from only 
the content standard at 11 CFR 109.21(c)(4) regarding communications 
that refer to the candidate? What effect, if any, would the adoption of 
either of the proposed PASO definitions have on the PASO limitation in 
the proposed safe harbor? What effect, if any, would declining to adopt 
a definition of PASO have on the PASO limitation in the proposed safe 
harbor?
    The Commission previously considered an exemption for business 
advertisements in the electioneering communications context. See 2002 
EC NPRM at 51136. In that rulemaking, the Commission asked whether the 
proposed electioneering communications regulation should include an 
exemption for communications that refer to a clearly identified Federal 
candidate ``but that promote a candidate's business or professional 
practice,'' but it did not provide proposed text for such an exemption. 
Id. As discussed above, the Commission also asked whether it ``should 
limit any of [several proposed] exemptions to ads that do not promote, 
support, attack, or oppose any clearly identified candidate.'' Id. The 
Commission ultimately decided not to adopt an exemption for business 
advertisements, concluding that ``it is likely that, if run during the 
period before an election, such communications could well be considered 
to promote or support the clearly identified candidate, even if they 
also serve a business purpose unrelated to the election.'' 2002 EC E&J 
at 65202.
    Nevertheless, in response to the Supreme Court's Wisconsin Right to 
Life decision, the Commission adopted, in 2007, a safe harbor at 11 CFR 
114.15(b) to exclude from the prohibition on corporate-funded 
electioneering communications, inter alia, an electioneering 
communication that ``proposes a commercial transaction, such as 
purchase of a book, video, or other product or service, or such as 
attendance (for a fee) at a film exhibition or other event,'' provided 
that the communication also does not mention any election, candidacy, 
political party, opposing candidate, or voting; and does not take a 
position on any candidate's or officeholder's character, qualification, 
or fitness for office. As the Commission explained, such an 
electioneering communication ``could reasonably be interpreted as 
having a non-electoral, business or commercial purpose,'' and thus ``is 
susceptible of a reasonable interpretation other than as an appeal to 
vote.'' Explanation and Justification for Final Rules on Electioneering

[[Page 53910]]

Communications, 72 FR 72899, 72904 (Dec. 26, 2007).
    Does the rationale for adopting the electioneering communication 
safe harbor for business transactions carry over into the coordination 
context, or did the reasoning of Wisconsin Right to Life apply only to 
electioneering communications? Would the new safe harbor be over- or 
underinclusive or vague?

V. Party Coordinated Communication Provisions in 11 CFR 109.37

    The party coordinated communication regulation at 11 CFR 109.37 
contains a three-prong test for determining whether a communication 
paid for by a political party committee is coordinated between a 
candidate and the party committee. The party coordinated communication 
test in 11 CFR 109.37 has a content prong that is substantially the 
same as the one for coordinated communications in 11 CFR 109.21(c). See 
11 CFR 109.37(a)(2). Also, the common vendor and former employee 
conduct standards of 11 CFR 109.21(d) that were struck down in Shays 
III Appeal are incorporated by reference in the party coordinated 
communication regulations. See 11 CFR 109.37(a)(3).
    As pointed out in footnote 2, above, the Commission previously has 
adopted parallel regulations for coordinated communications at 11 CFR 
109.21 and party coordinated communications at 11 CFR 109.37. However, 
the party coordinated communication regulations were never challenged 
by the plaintiffs in the Shays litigation, nor were they addressed or 
even referenced by the appellate or district court decisions. Section 
109.37 does not incorporate by reference any of the content standards 
of 11 CFR 109.21 that are the subject of the other parts of this 
rulemaking. Accordingly, the Commission is not proposing to revise the 
party coordinated communication regulations to maintain parallelism 
with any revisions to the regulations for coordinated communications at 
11 CFR 109.21 in this rulemaking but seeks comment on whether it should 
issue a notice of proposed rulemaking on this subject, and if so, when.
    In the event, however, that the Commission revises the common 
vendor and former employee conduct standards of 11 CFR 109.21(d), any 
changes to the common vendor and former employee standards that the 
Commission adopts will apply automatically to 11 CFR 109.37(a)(3) 
because, as noted above, the latter incorporates by reference the 
former. The Commission seeks comment on whether this result is 
appropriate.

Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory 
Flexibility Act)

    The Commission certifies that the attached proposed rules, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities. The basis for this certification 
is that any individuals and not-for-profit enterprises that would be 
affected by these proposed rules would not be ``small entities'' under 
5 U.S.C. 601.
    The definition of ``small entity'' does not include individuals, 
and includes a not-for-profit enterprise as a ``small organization'' if 
it is independently owned and operated and not dominant in its field. 5 
U.S.C. 601(4). Any State, district, and local party committees that 
would be affected by these proposed rules would be not-for-profit 
committees that do not meet the definition of ``small organization.'' 
State political 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.
    Furthermore, any separate segregated funds that would be affected 
by these proposed rules would be 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 financial 
support for certain expenses from corporations, labor organizations, 
membership organizations, or trade associations, and therefore are not 
independently owned and operated. Most of the other political 
committees that would be affected by these proposed rules would be 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. In addition, most political committees rely on 
contributions from a large number of individuals to fund the 
committees' operations and activities.
    To the extent that any State party committees representing minor 
political parties or any other political committees might be considered 
``small organizations,'' the number that would be affected by this 
proposed rule would not be substantial, particularly the number that 
would coordinate expenditures with candidates or political party 
committees in connection with a Federal election. Accordingly, to the 
extent that any other entities may fall within the definition of 
``small entities,'' any economic impact of complying with these rules 
would not be significant.
    These proposed rules would not impose any new requirements on 
commercial vendors. Any indirect economic effects that the proposed 
rules might have on commercial vendors would result from the decisions 
of their clients rather than Commission requirements.

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 109

    Coordinated and independent expenditures.

    For reasons set out in the preamble, Subchapter A of Chapter I of 
title 11 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)

    1. The authority citation for Part 100 continues to read as 
follows:

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

    2. Section 100.23 is added to read as follows:

Alternative A


Sec.  100.23  Promote, support, attack, or oppose.

    (a) When ``promote,'' ``support,'' ``attack,'' or ``oppose'' is 
used in conjunction with one or more of the other three component terms 
in PASO (as in ``promote or oppose'' or ``promotes or supports, or 
attacks or opposes''):
    (1) The word promote means to help, encourage, further, or advance;
    (2) The word support means to uphold, aid, or advocate;
    (3) The word attack means to argue with, blame, or criticize; and
    (4) The word oppose means to act against, hinder, obstruct, or be 
hostile or adverse to.
    (b) A communication may promote, support, attack, or oppose a 
candidate for Federal office in whole or in part, even if it does not 
refer to any election, candidacy, political party, or voting. All 
communications that expressly advocate the election or defeat of a 
clearly

[[Page 53911]]

identified candidate under 11 CFR 100.22 also promote, support, attack, 
or oppose that candidate.
    (c) The following are examples of communications that promote or 
support candidates for Federal office:
    (1) In a communication by a candidate for State office, the State 
candidate states that, ``We have an outstanding Democratic candidate 
running for President.''
    (2) Senator X is running for reelection and a tax advocacy group 
broadcasts a communication stating, ``Senator X is working hard to 
lower your taxes. Senator X is the one getting it done. Call Senator X 
and tell him `thanks.' ''
    (3) ``Congressman X is an outstanding public servant and of the 
highest moral character. Join Congressman X in supporting the Literacy 
Now! Act.''
    (d) The following are examples of communications that do not 
promote or support a candidate for Federal office:
    (1) A university mails postcards announcing the opening of a new 
campus building named after candidate X.
    (2) Senator X is running for reelection and appears in a television 
advertisement stating, ``I'm Senator X. Republicans in the statehouse 
passed a property tax freeze. The Governor vetoed the freeze. You can 
help override that veto. Visit this Web site: ------.org.''
    (3) Governor X is a candidate for Federal office and appears in a 
television advertisement created by the State's tourism bureau, stating 
``Come see our State!''
    (e) The following are examples of communications that attack or 
oppose a candidate for Federal office:
    (1) A billboard consists of a picture of Candidate X and an arrow 
pointing from the word ``Liar'' to the candidate.
    (2) A local party committee mailer to elect a local party chairman 
contains a picture of Federal Candidate X laughing, with the words: 
``Stop her laughing. We can beat her if we are united. But the county 
needs a new party chairman.''
    (3) Senator X is running for reelection. The State party committee 
in his State airs this communication: ``Is X looking out for our State? 
In Washington, he takes $136,000 from a notorious lobbyist now under 
Federal investigation. Then X fights for and passes legislation to give 
that lobbyist's client $3 million, in another State. X doesn't pass the 
smell test. Call X: tell him to start working for our State.''
    (4) Congressman X is running for reelection and a group opposing X 
broadcasts a communication in which Candidate X's visage morphs into 
the visage of Hitler.
    (f) The following is an example of a communication that does not 
attack or oppose a candidate for Federal office:
    ``We don't know where Congressman X stands on the Literacy Now! 
Act. Call Congressman X and tell him where you stand.''

Alternative B


Sec.  100.23  Promotes, supports, attacks, or opposes (2 U.S.C. 
431(20)(A)(iii)).

    (a) The definition below shall apply to the term ``promotes, 
supports, attacks, or opposes,'' as well as to any instance in which 
the terms ``promotes or attacks'' and ``supports or opposes'' are used 
in conjunction, regardless of the verb tense in which these terms are 
used, but shall not apply to occurrences of these terms when used 
individually or in isolation from any or all of the other terms.
    (b) A communication promotes, supports, attacks, or opposes a 
candidate for Federal office or political party if it:
    (1) Refers explicitly to a clearly identified candidate for Federal 
office or political party;
    (i) With respect to a candidate, ``clearly identified'' shall have 
the same definition as in 11 CFR 100.17;
    (ii) With respect to a political party, ``clearly identified'' 
shall mean the party's name, nickname, logo, or the identity of the 
party is otherwise apparent through an unambiguous reference such as 
``the party controlling the White House,'' ``the party controlling the 
Senate,'' ``the party controlling the House,'' or ``the party 
controlling both houses of Congress'';
    (2) Unambiguously helps, encourages, advocates for, praises, 
furthers, argues with, sets as an adversary, is hostile or adverse to, 
or criticizes such political party or candidate for Federal office. All 
communications that expressly advocate the election or defeat of a 
clearly identified candidate under 11 CFR 100.22 also help, encourage, 
advocate for, praise, further, argue with, set as an adversary, are 
hostile or adverse to, or criticize such candidate;
    (3) Contains a clear nexus between the clearly identified candidate 
for Federal office or political party and an upcoming Federal election 
or a candidacy for such election; and
    (4) Is publicly distributed or otherwise publicly disseminated in 
the clearly identified Federal candidate's jurisdiction, in the case of 
a candidate, or in a jurisdiction in which one or more candidates of 
that political party will appear on the ballot, in the case of a 
political party.
    (c) A communication does not promote, support, attack, or oppose 
unless the element(s) of the communication that unambiguously helps, 
encourages, advocates for, praises, furthers, argues with, sets as an 
adversary, is hostile or adverse to, or criticizes is done through 
means that are verbal or pictorial, or a combination thereof; except 
that photographic or videographic alterations, facial expressions, body 
language, poses, or similar features of party officials or candidates, 
may not be considered in determining whether the communication 
promotes, supports, attacks, or opposes.
    (1) For the purposes of this section, verbal means shall include 
visual text or audio speech.
    (2) For the purposes of this section, pictorial means shall include 
depictions of party officials, candidates, or their respective logos.
    (d) The following are examples of communications that promote, 
support, attack, or oppose, assuming each is publicly distributed or 
disseminated in the candidate's jurisdiction:
    (1) In a public communication by a candidate for State office, the 
State candidate states that, ``We have an outstanding Democrat, John 
Doe, at the top of the ticket this year, running for the White House.''
    (2) A tax advocacy group broadcasts a public communication which 
says, ``Senator X is running for reelection. Senator X has been a 
champion for lowering your taxes. Senator X is the one getting it 
done.''
    (3) A billboard displayed in the congressional district Candidate X 
seeks to represent consists of a picture of Candidate X, an explicit 
identification of Candidate X as a candidate for Congress, and an arrow 
pointing from the word ``Liar'' to the picture of Candidate X.
    (4) Senator X is running for reelection. The opposing party's State 
committee airs this public communication: ``Is X looking out for our 
State? In Washington, he takes $136,000 from a notorious lobbyist now 
under Federal investigation. Then X fights for and passes legislation 
to give that lobbyist's client $3 million, in another State. This 
November when you cast your vote, think about this.''
    (5) A radio advertisement states, ``Congressman X is running for 
reelection. Congressman X is an outstanding public servant and of the 
highest moral character, and has stood with us consistently on the 
Literacy Now! Act.''
    (e) The following are examples of communications that do not 
promote, support, attack, or oppose, even if they

[[Page 53912]]

are publicly distributed or disseminated in the candidate's 
jurisdiction:
    (1) A radio advertisement states, ``Congressman X is an outstanding 
public servant and of the highest moral character. Join Congressman X 
in supporting the Literacy Now! Act.''
    (2) A university mails postcards announcing the opening of a new 
campus building named after candidate X.
    (3) Senator X is running for reelection and appears in a television 
advertisement stating, ``I'm Senator X. Republicans in the statehouse 
passed a property tax freeze. The Governor vetoed the freeze. You can 
help override that veto. Visit this Web site: ------.org.''
    (4) Governor X is a candidate for Federal office and appears in a 
television advertisement created by the State's tourism bureau, stating 
``Come see our State!''
    (5) A local party committee mailer to elect a local party chairman 
contains a picture of Federal Candidate X laughing, with the words: 
``Stop her laughing. We can beat her if we are united. But the county 
needs a new party chairman.''
    (6) A television advertisement features a picture of Congressman X. 
Underneath, the text on the screen gives the date of the upcoming 
election. In the background, the Imperial March theme song from Star 
Wars is played.
    (7) Same as Number 6, but instead, the Star Spangled Banner is 
played.
    (8) A television ad shows grainy video of a presidential candidate 
on a large screen silently speaking to a group of masses. A passerby 
throws a sledgehammer at the screen.

PART 109--COORDINATED AND INDEPENDENT EXPENDITURES (2 U.S.C 
431(17), 441a(a) and (d), and Pub. L. 107-155 Sec. 214(c))

    3. 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.

Content Alternative 1 (PASO Standard)

    4. Section 109.21 is amended by revising paragraph (c)(3) to read 
as follows:


Sec.  109.21  What is a ``coordinated communication''?

* * * * *
    (c) * * *
    (3) A public communication, as defined in 11 CFR 100.26, that 
promotes, supports, attacks, or opposes a political party or a clearly 
identified candidate for Federal office. All communications expressly 
advocating the election or defeat of a clearly identified candidate 
under 11 CFR 100.22 also promote, support, attack, or oppose that 
candidate.
* * * * *

Content Alternative 2 (Modified WRTL Content Standard)

    5. Section 109.21 is amended by revising paragraphs (c) 
introductory text and (c)(3), and adding new paragraph (c)(5) to read 
as follows:


Sec.  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.
* * * * *

Content Alternative 3 (Clarification of Express Advocacy Standard)

    6. Section 109.21 is amended by revising paragraph (c)(3) to read 
as follows:


Sec.  109.21  What is a ``coordinated communication''?

* * * * *
    (c) * * *
    (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.
* * * * *

Content Alternative 4 (``Explicit Agreement'' Standard)

    7. Section 109.21 is amended by revising paragraphs (c) 
introductory text, (c)(3), (d) introductory text, and (e), and adding 
new paragraphs (c)(5) and (d)(7) to read as follows:


Sec.  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, but only 
if the conduct standard in paragraph (d)(7) of this section is also 
satisfied.
    (d) Conduct standards. Any one of the following types of conduct 
satisfies the conduct standard of this section whether or not there is 
formal collaboration, as defined in paragraph (e) of this section. The 
types of conduct described in paragraphs (d)(1) through (d)(6) of this 
section are satisfied whether or not there is agreement, as defined in 
paragraph (e) of this section:
* * * * *
    (7) Agreement. There is a formal or informal agreement between a 
candidate, authorized committee, or political party committee and a 
person paying for the communication to create, produce, or distribute 
the communication. For purposes of this paragraph (d)(7), either the 
communication or the agreement must be made for the purpose of 
influencing a Federal election.
    (e) Agreement or formal collaboration. Agreement between the person 
paying for the communication and 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, is not required for a communication to be a 
coordinated communication if any of the types of conduct described in 
paragraphs (d)(1) through (d)(6) of this section are satisfied. Formal 
collaboration between the person paying for the communication and 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, is not required 
for a communication to be a coordinated communication. Agreement means 
a mutual understanding or meeting of the minds on all or any part of 
the material aspects of the communication or its dissemination. Formal 
collaboration means planned, or

[[Page 53913]]

systematically organized, work on the communication.
* * * * *
    8. Section 109.21 is amended by revising paragraphs (d)(4)(ii) and 
(d)(5)(i) to read as follows:


Sec.  109.21  What is a ``coordinated communication''?

* * * * *
    (d) * * *

Conduct Alternative 1 (No Change)

    (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
* * * * *

Conduct Alternative 2 (Two-Year Period)

    (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 two-year period ending on the date of the general 
election for the office or seat that the candidate seeks;
* * * * *
    (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 two-year period ending on the date of the general 
election for the office or seat that the candidate seeks; and
* * * * *

Conduct Alternative 3 (Current Election Cycle)

    (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 current election cycle;
* * * * *
    (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 current election cycle; and
* * * * *

0
9. Section 109.21 is amended by adding new paragraphs (i) and (j) to 
read as follows:


Sec.  109.21  What is a ``coordinated communication''?

* * * * *
    (i) Safe harbor for Federal candidates' support of public policies 
or legislative initiatives. A public communication paid for by an 
organization described in 26 U.S.C. 501(c)(3) and exempt from taxation 
under 26 U.S.C. 501(a), in which a candidate for Federal office 
expresses or seeks support for that organization, or for a position on 
a public policy or legislative proposal espoused by that organization, 
is not a coordinated communication with respect to the candidate unless 
the public communication promotes, supports, attacks, or opposes the 
candidate or another candidate who seeks election to the same office as 
the candidate.
    (j) 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: October 15, 2009.

    On behalf of the Commission.
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. E9-25240 Filed 10-20-09; 8:45 am]
BILLING CODE 6715-01-P


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