FEC Announces Rule-Making on Coordinated Communications

The Federal Election Commission (FEC) approved two Notices of Proposed Rulemaking (NPRMs) to implement the D.C. Circuit Court of Appeals Opinion in Shays v. FEC (Shays III). The court struck down FEC coordination rules, and other rules regarding "federal election activity."

Coordinated activities are regulated beginning 90 days before a primary election and 120 days before a general election, unless they contain express advocacy calling directly for a vote for or against a particular candidate. The importance of coordination rules has been amplified with recent court cases, such as last month's decision involving the group EMILY's List [1].

In regards to the NPRM [2] on Coordinate Communications, the FEC has put forth various alternatives, including restricting any coordinated political message from an outside group that "promotes, supports, attacks or opposes" a federal candidate or political party regardless of when it airs. Other possibilities include using the "express advocacy" standard or the "functional equivalent" of express advocacy as defined after the Wisconsin Right to Life case. The notice also provides examples of actual ads and asks whether the proposed standards would apply to the examples. Public comments are due Jan. 19, 2010.

The NPRM on Federal Election Activity [3] addresses definitions of regulated get-out-the-vote and voter registration activity. The Hill [4] notes that this may "make it harder for state and local political parties to pay for voter registration and get-out-the-vote efforts."

"The changes could have a major impact on the way state and local parties operate, election law experts say — an impact that could severely limit small political organizations from getting their voters to the polls."

During the same meeting, the FEC also passed an advisory opinion allowing a Virginia state chapter and 527 group affiliated with the Sierra Club to conduct voter drives, and air issue ads. The FEC concluded that the Sierra Club organizations are not political committees subject to the FEC regulation.