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.

Proposed Rules Federal Register

53893 

Vol. 74, No. 202 

Wednesday, October 21, 2009 

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

2When 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. 

FEDERAL ELECTION COMMISSION 

11 CFR Parts 100 and 109 

[Notice 2009—23] 

Coordinated Communications 

AGENCY: Federal Election Commission. 

ACTION: Notice of Proposed Rulemaking. 

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 

CoordinationShays3@fec.gov. 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 

20021 (‘‘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’’). 

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. 

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). 


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

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

parties may make independent expenditures on 

behalf of their Federal candidates); FEC v. Christian 

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

(‘‘Christian Coalition’’) (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)). 

4The Court of Appeals for the District of 

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

command—‘shall not require’—BCRA merely listed 

several topics the rules ‘shall address,’ providing no 

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

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

2005). 

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). 

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. 

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 


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5A 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). 

6A sixth conduct standard clarifies the 

application of the other five to the dissemination, 

distribution, or republication of campaign 

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

7The 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). 

8The 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). 

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

services that a vendor must provide in order to 

trigger the common vendor standard. 

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. 

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.’’ 

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). 

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. 

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). 

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. 


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10The court did not address the republication of 

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

analysis of the period outside the time windows. 11 ‘‘Magic words’’ are ‘‘examples of words of 

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

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

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

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

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

payment, distribution, loan, advance, deposit, or 

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 

standard10 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’’). 

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 


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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). 

13A ‘‘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). 

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

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

‘express advocacy’ standard fails that 

test,’’ but did not explicitly articulate a 

less restrictive standard that would meet 

the test. Id. 

The court expressed particular 

concern about a possible scenario in 

which, ‘‘more than 90/120 days before 

an election, candidates may ask wealthy 

supporters to fund ads on their behalf, 

so long as those ads do not contain 

magic words.’’ Id. at 925. The court 

noted that the Commission ‘‘would do 

nothing about’’ such coordination, 

‘‘even if a contract formalizing the 

coordination and specifying that it was 

‘for the purpose of influencing a Federal 

election’ appeared on the front page of 

the New York Times.’’ Id. The court 

held that such a rule not only frustrates 

Congress’s purpose to prohibit funds in 

excess of the applicable contribution 

limits from being used in connection 

with Federal elections, but ‘‘provides a 

clear roadmap for doing so.’’ Id. 

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 electionrelated 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. 

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 


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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, 


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14See, 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’’). 

15See, 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’’). 

16See, 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). 

17See, 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). 

18See, 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). 

19See, 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). 

20See, 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). 

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

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). 

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

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 rules20—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? 

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 


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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). 

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? 

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 


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Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules 53901 

22Please 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. 

23The 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). 

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 nonspeech 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[] electionrelated 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

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. 

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. 


pwalker on DSK8KYBLC1PROD with PROPOSALS
53902 Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules 

24Electioneering 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). 

25Although 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. 

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. 

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. 

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 brightline 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. 


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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 cancercausing 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* * * 


pwalker on DSK8KYBLC1PROD with PROPOSALS
53904 Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules 

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 PostDispatch, 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.’’). 

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? 

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 


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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 


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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 


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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 pre2006 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 nonFederal 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 inkind contribution to the candidate. 


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27The 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 nonFederal office. 

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)? 

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 


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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 preexisting 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 


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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-forprofit 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 

§ 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 


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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 

§ 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 


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53912 Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules 

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: 

lll.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: 

§ 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: 

§ 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: 

§ 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: 

§ 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 


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

§ 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 

* * * * * 

■ 9. Section 109.21 is amended by 

adding new paragraphs (i) and (j) to read 

as follows: 

§ 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 

SMALL BUSINESS ADMINISTRATION 

13 CFR Part 121 

RIN 3245–AF71 

Small Business Size Standards: 

Accommodation and Food Services 

Industries 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Small Business 

Administration (SBA) proposes to 

increase small business size standards 

for five industries in North American 

Industry Classification System (NAICS) 

Sector 72, Accommodation and Food 

Services—namely NAICS 721110, 

Hotels and Motels, from $7.0 million to 

$30 million; NAICS 721120, Casino 

Hotels, from $7.0 million to $30 million; 

NAICS 722211, Limited Service 

Restaurants, from $7.0 million to $10 

million; NAICS 722212, Cafeterias, from 

$7.0 million to $25.5 million; and 

NAICS 722310, Food Service 

Contractors, from $20.5 million to $35.5 

million. As part of its ongoing initiative 

to review all size standards, SBA has 

evaluated each industry in Sector 72 to 

determine whether the existing size 

standards should be retained or revised. 

This proposed rule is one of a series of 

proposals that will examine industries 

grouped by an NAICS Sector. As part of 

this series of proposed rules SBA is 

publishing concurrently in this issue of 

the Federal Register a proposed rule to 

modify small business size standards in 

Sector 44–45, Retail Trade, and Sector 

81, Other Services. SBA has established 

its ‘‘Size Standards Methodology’’ and 

published elsewhere in this issue of the 

Federal Register a notice of its 

availability on SBA’s Web site at http: 

//www.sba.gov/size. SBA has applied 

‘‘Size Standards Methodology’’ to this 

proposed rule. 


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