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					October 2010                           Federal Election Commission                           Volume 36, Number 10



Table of Contents
                                          Reports                                    Regulations
   Reports
 1 October Reporting Reminder          October Reporting                          Final Rules on Coordinated
                                       Reminder                                   Communications
   Regulations                           The following reports are due in             On August 26, 2010, the Commis-
 1 Final Rules on Coordinated          October:                                   sion approved final rules and Expla-
   Communications
 3 Final Rules for Definition of       •	 All	principal	campaign	commit-          nation and Justification regarding
   Federal Election Activity              tees of House and Senate candi-         coordinated communications. These
                                          dates must file a quarterly report      rules comply with the decision of the
 7 Advisory Opinions                      by October 15, 2010. The report         U.S. Court of Appeals for the Dis-
                                          covers financial activity from July     trict of Columbia Circuit in Shays v.
   Court Cases                            1 (or the day after the closing date    FEC, 528 F.3d 914 (D.C. Cir. 2008)
10 Cao v. FEC                                                                     (“Shays III Appeal”). See the July
                                          of the last report) through Sep-
                                          tember 30;                              2008 Record. The new rules take ef-
   800 Line                                                                       fect December 1, 2010.
11 FEC Rules Governing Public          •	 Principal	campaign	committees	
                                          of Presidential candidates must             The new rules add to the existing
   Debates
                                          file a report by October 15, if         definition of coordinated communi-
12 Disclosing Independent
   Expenditures on FEC Form 5             they are quarterly filers (the re-      cations a content standard for com-
                                          port covers financial activity from     munications that are the “functional
13 Nonfilers                              July 1 through September 30), or        equivalent of express advocacy.” The
                                          by October 20, if they are month-       new rules also create a safe harbor
   Outreach                               ly filers (the report covers activity   for certain business and commercial
13 FEC to Host Reporting and              for the month of September);            communications and provide further
   E-Filing Workshops                                                             explanation and justification for two
13 Winding Down the Campaign
                                       •	 National	party	committees,	politi-
                                          cal action committees (PACs) fol-       “conduct standards” in the existing
   Reporting Roundtable                                                           regulations.
14 Outreach Initiatives for 2011-12       lowing a monthly filing schedule
                                          and state, district and local party     Background
14 Index                                  committees that engage in report-          Commission regulations imple-
                                          able “federal election activity”        menting the Bipartisan Campaign
                                          (see “State, District and Local         Reform Act of 2002 (BCRA)
  NY-29 Special                           Party Committees, on page 6)            established a three-prong test for
  Election Reporting                      must file a monthly report by           determining whether a communica-
                                          October 20. This report covers          tion is coordinated with a candidate,
  			For	reporting	dates	for	the	NY-      activity for the month of Septem-       a candidate’s authorized committee,
  29 Special General Election on          ber. 11 CFR 104.5; and                  a political party committee or the
  November	2,	2010,	see	the	FEC’s	
                                                                                  agents of any of these. Coordinated
  reporting page at http://www.fec.
                                                                                  communications generally result
  gov/info/report_dates.shtml.                         (continued on page 5)
                                                                                                  (continued on page 2)
Federal Election Commission RECORD                                                                            October 2010



Regulations                              have an “express advocacy” standard        related speech that is not express
(continued from page 1)                  as the only content standard that ap-      advocacy from non-election related
                                         plies outside of 90-day and 120-day        speech. The new content standard
in an in-kind contribution. The test
                                         windows before an election runs            applies to all speakers subject to the
includes a payment prong, a content
                                         counter to the purpose of BCRA and         coordinated communications rules
prong and a conduct prong. The con-
                                         the Administative Procedure Act.           at 11 CFR 109.21, including indi-
tent and conduct prong each include
                                         The court noted that the FEC “must         viduals and advocacy organizations,
several standards, and satisfying any
                                         demonstrate that the standard it           without regard to when a com-
one of the standards within a prong
                                         selects ‘rationally separates election-    munication is made or its intended
satisfies that prong of the test. 11
                                         related advocacy from other activity       audience. As required by Shays III
CFR 109.21(a)(1)-(3).
                                         falling outside [the Act’s] expen-         Appeal, the new content standard
   Various aspects of the coordinated
                                         diture definition.’” In addition, the      also captures more communications
communications test were chal-
                                         court invalidated the 120-day period       than the express advocacy content
lenged in court. The new regulations
                                         used in the existing conduct prong         standard outside of the 90-day and
respond to the decision by the U.S.
                                         to determine whether a common              120-day time windows.
Court of Appeals for the District of
                                         vendor or former campaign employ-
Columbia Circuit in Shays III Ap-                                                   Conduct Standards
                                         ee’s relationship with a candidate
peal. In that decision, the court held                                                  The “common vendor” and “for-
                                         committee or party committee would
that the Commission’s decision to                                                   mer employee/independent contrac-
                                         satisfy the prong. 11 CFR 109.21(d)
                                         (4) and (d)(5). The court found that       tor” standards of the conduct prong
                                         the Commission failed to justify its       were challenged in Shays III Appeal.
    Federal Election Commission                                                         Current Commission regulations
    999 E Street, NW                     decision to apply a 120-day window.
                                                                                    provide that the “common vendor”
    Washington, DC 20463
                                         New Content Standard                       standard of the conduct prong is
    800/424-9530 (Toll-Free)                 Functional Equivalent of Express       satisfied if the person paying for the
    202/694-1100 (Information Div.)      Advocacy. The Commission is revis-         communication had contracted or
    202/501-3413 (FEC Faxline)           ing the content prong by adding a          employed a commercial vendor who
    202/219-3336 (TDD for the            new standard to cover public com-          provided certain specified services to
     hearing impaired)
                                         munications that are the “functional       the candidate clearly identified in the
    Matthew S. Petersen,                 equivalent of express advocacy.”           communication, the candidate’s au-
      Chairman                           See new 11 CFR 109.21(c)(5). A             thorized committee, the candidate’s
    Cynthia L. Bauerly,                  communication is the functional            opponent, the opponent’s authorized
     Vice Chair                          equivalent of express advocacy if          committee or a political party com-
    Caroline C. Hunter,                  it is “susceptible of no reasonable        mittee during the previous 120 days.
      Commissioner                       interpretation other than as an appeal     Also, the commercial vendor must
    Donald F. McGahn II,                 to vote for or against a clearly identi-   use or convey to the person paying
      Commissioner                       fied Federal candidate.” This new          for the communication information
    Steven T. Walther,                   standard applies without regard to         about the plans, projects, activi-
      Commissioner                       the timing of the communication or         ties or needs of the candidate, the
    Ellen L. Weintraub,
                                         the targeted audience.                     candidate’s opponent or political
      Commissioner
                                             In its application of the functional   party committee, and that informa-
    Alec Palmer,                         equivalent of express advocacy test,       tion must be material to the creation,
     Acting Staff Director               the Commission will be guided by           production or distribution of the
    Christopher Hughey,                  the Supreme Court’s reasoning and          communication. 109.21(d)(4).
     Acting General Counsel              application of the test to the commu-          The former employee/indepen-
    Published by the Information         nications at issue in Wisconsin Right      dent contractor conduct standard
     Division of the Office of           to Life v. FEC (WRTL) 551 U.S. 449         is satisfied if the communication
     Communications                      (2007) and Citizens United v. FEC,         is paid for by a person or by the
    Greg J. Scott,                       130 S. Ct. 876 (U.S. Jan 21, 2010).        employer of a person who was an
     Assistant Staff Director                The new content standard is an         employee or independent contractor
    Amy L. Kort,
                                         objective, well-established standard.      of the candidate clearly identified in
     Deputy Assistant Staff Director
    Myles G. Martin,                     The functional equivalent of express       the communication, or the candi-
     Editor                              advocacy test has been developed           date’s authorized committee, the
                                         by the Supreme Court to apply to a         candidate’s opponent, the opponent’s
    http://www.fec.gov                   wide range of speakers as a stand-
                                         alone test for separating election-                        (continued on page 3)

2
October 2010                                                                           Federal Election Commission RECORD



Regulations                               has become problematic in the time        Final Rules for Definition of
(continued from page 2)                   the 120-day period has been in ef-        Federal Election Activity
                                          fect. The Commission concludes               On August 26, 2010, the Com-
authorized committee or a political
                                          that it is extremely unlikely that a      mission approved final rules revising
party committee during the previous
                                          common vendor or former employee          the regulations at 11 CFR 100.24
120 days. Additionally, the former
                                          may possess information that re-          regarding federal election activity
employee or independent contractor
                                          mains material when it is more than       (FEA). The final rules modify the
must use, or convey to the person
                                          four months old.                          definitions of “voter registration
paying for the communication, in-
formation about the plans, projects,      Safe Harbor for Certain Business          activity” and “get-out-the-vote-activ-
activities or needs of the candidate      and Commercial Communications             ity” (GOTV activity) and make other
or political party committee that is         The Commission is also adopting        changes in response to the decision
material to the creation, production      a safe harbor to address certain com-     of the U.S. Court of Appeals for
or distribution of the communica-         mercial and business communica-           the District of Columbia in Shays v.
tion. 109.21(d)(5).                       tions. The new safe harbor excludes       FEC, 528 F.3d 914 (D.C. Cir. 2008)
   The Commission is not revis-           from the definition of a coordinated      (“Shays III Appeal”).
ing the common vendor or former           communication any public commu-
employee conduct standards at this                                                  Scope
                                          nication in which a federal candidate        Under the new definitions, voter
time. In order to comply with the         is clearly identified only in his or
Shays III Appeal decision, the Com-                                                 registration and GOTV activities that
                                          her capacity as the owner or opera-       urge, encourage or assist potential
mission has decided to provide a          tor of a business that existed prior to
more detailed explanation and justi-                                                voters in registering to vote or voting
                                          the candidacy, so long as the public      must be paid for with federal funds
fication for the 120-day period.          communication does not promote,
   Based on the record, 120 days has                                                or with a combination of federal and
                                          attack, support or oppose (PASO)          Levin funds regardless of whether
been shown to be a sufficient time        that candidate or another candidate
period to prevent circumvention of                                                  the message is delivered individu-
                                          who seeks the same office, and so         ally or to a group of people via mass
the Act. Many commenters, in writ-        long as the communication is consis-
ten and oral testimony, agreed that                                                 communication. However, the Com-
                                          tent with other public communica-         mission created exceptions to the
campaign information must be both         tions made by the business prior to
current and proprietary (i.e. non-                                                  new definitions for:
                                          the candidacy in terms of the medi-
public) to be subject to the coordi-      um, timing, content and geographic        •	 Brief,	incidental	exhortations	to	
nated communications regulation.          distribution.	New	11	CFR	109.21(i).	         register to vote or to vote;
The information in the rulemak-           The new safe harbor is meant to           •	 GOTV	and	voter	identification	
ing record shows the widespread           exclude communications that have             activities conducted solely in con-
public availability of certain types of   bona fide business and commercial            nection with a nonfederal elec-
campaign information that used to         purposes from the definition of coor-        tion; and
remain confidential for much longer       dinated communication.                    •	 Certain	de minimis activities.
in years past. The record also dem-
onstrates that changes in technol-        Additional Information                    Definition of “Voter Registration
ogy have significantly reduced the           The final rules and Explanation        Activity”
duration of the news cycle, further       and Justification were published in          In compliance with the court of
decreasing the time that campaign         the Federal Register on September         appeals’ decision in Shays III Ap-
information remains relevant.             15, 2010. The full text of the Federal    peal, the Commission revised the
   There is no information in the         Register	Notice	is	available	at	http://   definition of “voter registration ac-
rulemaking record showing that use        www.fec.gov/law/cfr/ej_compila-           tivity” to cover activities that assist,
or conveyance by common vendors           tion/2010/notice2010-17.pdf.              encourage or urge potential voters to
and former employees of informa-                   —Myles Martin                    register to vote. The revised defini-
tion material to public communica-                                                  tion lists the following activities as
tions outside of the 120-day period                                                 voter registration activity:
                                                                                    •	 Encouraging	or	urging	potential	
                                                                                       voters to register to vote, whether
                                                                                       by mail, e-mail, in person, by
                                                                                       telephone or by any other means;
                                                                                                     (continued on page 4)


                                                                                                                             3
Federal Election Commission RECORD                                                                              October 2010



Regulations                               identifies the following activities as     to ensure that communications that
(continued from page 3)                   GOTV activity:                             would not otherwise be voter regis-
                                                                                     tration activity or GOTV activity do
•	 Preparing	and	distributing	in-         •	 Encouraging	or	urging	potential	
                                                                                     not become so merely because they
   formation about registration and          voters to vote;
                                                                                     include a brief, incidental exhorta-
   voting;                                •	 Informing	potential	voters	about	
                                                                                     tion to register to vote or to vote.
•	 Distributing	voter	registration	          the hours and location of polling
                                                                                         To qualify for the exception, the
   forms or instructions to potential        places, or about early voting or
                                                                                     exhortation must be both brief and
   voters;                                   voting by absentee ballot;
                                                                                     incidental. For example, exhortations
•	 Answering	questions	about	or	          •	 Offering	or	arranging	to	transport	
                                                                                     to register to vote or to vote that con-
   assisting potential voters in com-        voters to the polls, as well as
                                                                                     sume several minutes of a speech, or
   pleting or filing voter registration      actually transporting voters to the
                                                                                     that occupy a large amount of space
   forms;                                    polls; and
                                                                                     on a mailer, are not brief and will
•	 Submitting	or	delivering	a	com-        •	 All	activities	that	assist	potential	
                                                                                     not qualify for the exception. Also,
   pleted voter registration form on         voters in voting.
                                                                                     a message in a mailer that stated
   behalf of a potential voter;             The Commission provided two              only “Register to Vote by October
•	 Offering	or	arranging	to	transport,	   examples of GOTV activities falling        1st!” or “Vote on Election Day!”
   or actually transporting, potential    under the new definition:                  with no other text would not be
   voters to a board of elections or
   county clerk’s office for them to      •	 Driving	a	sound	truck	through	a	
   fill out voter registration forms;        neighborhood that plays a mes-
                                                                                                      (continued on page 5)
   or                                        sage urging listeners to “Vote next
•	 Any	other	activity	that	assists	po-       Tuesday at the Main Street com-
   tential voters to register to vote.       munity center”; and                       Legal History of the
                                          •	 Making	telephone	calls	(includ-           Presidential
   The Commission provided two               ing robocalls) reminding the re-
examples of voter registration activ-        cipient of the times during which         Election Campaign
ity falling under the new definition:        the polls are open on election day.       Fund Act Available
•	 Sending	a	mass	mailing	of	voter	                                                    from the FEC
                                             The Commission emphasized
   registration forms; and                that the new definition is a compre-
•	 Submitting	completed	voter	reg-                                                       The FEC’s Law Library is
                                          hensive list of activities designed          making available case-bound
   istration forms to the appropriate     to cover all means of contacting
   state or local office handling voter                                                copies of the Legal History of the
                                          potential voters to assist, encour-          Presidential Election Campaign
   registration.                          age or urge them to vote. However,           Fund Act in two volumes.
   The Commission emphasized              consistent with the Shays III Appeal         Compiled and printed by agency
that the new definition is a compre-      decision, the Commission carved out          staff in 1984, these editions
hensive list of activities designed to    an exception to the new definition           provide an exhaustive historical
cover all means of contacting po-         for brief, incidental exhortations to        record of the bills, accompanying
tential voters to assist, encourage or    vote (discussed below).                      reports and floor debates from
urge them to register to vote, regard-                                                 which the present law originated.
less of the means used to deliver the     Brief, Incidental Exhortation
                                             The Commission created a new              The material is presented in
message. However, consistent with                                                      chronological fashion, starting
the Shays III Appeal decision, the        exception to the definitions of voter
                                          registration activity and GOTV ac-           with the 1957 Gore Report,
Commission carved out an excep-                                                        which examined the campaign
tion to the new definition for brief,     tivity that allows for a brief exhorta-
                                          tion to register to vote or to vote, so      contributions and expenditures
incidental exhortations to register to                                                 during the 1956 federal elections.
vote (discussed below).                   long as the exhortation is incidental
                                          to a communication, activity or              These volumes are available to the
                                          event. The exception applies to brief,       public free of charge. They can be
Definition of “GOTV Activity”
                                          incidental exhortations regardless of        obtained at the Federal Election
   The Commission also revised the
                                          the forum or medium in which they            Commission’s headquarters at 999
definition of “GOTV activity” to
                                          are made. Also, the exception does           E	Street	NW,	Washington,	DC,	
comply with the court of appeals’
                                          not inoculate speeches or events that        20463. To obtain a copy, please
decision in Shays III Appeal. The
                                          otherwise would meet the defini-             contact Leta Holley at lholley@
new definition covers activities that
                                          tion of voter registration activity          fec.gov or (202) 694-1516.
assist, encourage or urge potential
voters to vote. The revised definition    or GOTV activity, but is intended

4
October 2010                                                                           Federal Election Commission RECORD



Regulations                               ing activities from the FEA funding       Reports
(continued from page 4)                   restrictions:                             (continued from page 1)

incidental and would not qualify for      •	 On	the	website	of	a	party	commit-      •	 Pre-General	reports	are	due	on	
the exception from the definition of         tee or association of state or local      October 21 (close of books,
GOTV activity. Additional examples           candidates, posting a hyperlink           October 13). Candidate com-
of exhortations that would qualify           to a state or local election board’s      mittees must file this report if
for the exception are provided in the        web page containing information           their candidate is running in the
final rules.                                 on voting or registering to vote;         general election. PACs and party
                                          •	 On	the	website	of	a	party	com-            committees that file quarterly
Voter Identification and GOTV                mittee or association of state or         must file this report if they make
Activity Solely in Connection with           local candidates, enabling visitors       contributions or expenditures
a Nonfederal Election                        to download a voter registration          in connection with the general
   In an attempt to better distin-           form or absentee ballot applica-          election during the October 1-13
guish between voter identification           tion;                                     reporting period. PACs and party
and GOTV activities that are FEA,         •	 On	the	website	of	a	party	com-            committees that file on a monthly
and those activities that do not af-         mittee or association of state or         schedule must file the Pre-Gen-
fect elections in which a federal            local candidates, providing infor-        eral report in lieu of the regular
candidate appears on the ballot, the         mation about voting dates and/            November	20	monthly	report.	
Commission created new exceptions            or polling locations and hours of
to 11 CFR 100.24(c) for activi-              operation; and                         Notification of Filing Deadlines
ties exclusively in connection with       •	 Placing	voter	registration	forms	          In addition to publishing this
nonfederal elections. Under the new          or absentee ballot applications        article, the Commission notifies
provisions, FEA does not include             obtained from the board of elec-       committees of filing deadlines on its
any amount expended or disbursed             tions at the office of a party com-    website, via its automated Faxline
by a state, district or local party          mittee or association of state or      and through reporting reminders
committee for:                               local candidates.                      called prior notices. Prior notices are
•	 Voter	identification	that	is	con-          The Commission emphasized that        distributed exclusively by electronic
   ducted solely in connection with a     the exception is only for the spe-        mail. For that reason, it is impor-
   nonfederal election held on a date     cific activities listed and that costs    tant that every committee update
   no federal election is held, and       associated with activities not on the     its Statement of Organization (FEC
   which is not used in a subsequent      list, no matter how small the amount      Form 1) to disclose a current e-mail
   election in which a federal candi-     or how closely related the activities,    address. To amend Form 1, electron-
   date is on the ballot; 100.24(c)(5);   do not qualify for the exception. In      ic filers must submit Form 1 filled
   and                                    addition, amounts incurred for the        out in its entirety. Paper filers should
•	 Certain	GOTV	activity	that	is	         enumerated activities that are not        include only the committee’s name,
   conducted solely in connection         de minimis do not qualify for the         address, FEC identification number
   with a nonfederal election held on     exception.                                and the updated or changed portions
   a date on which no federal elec-                                                 of the form.
   tion is held. 100.24(c)(6).            Additional Information
                                             The Final Rules were published in      Treasurer’s Responsibilities
                                          the Federal Register on September             The Commission provides
Activities involving De Minimis           10, 2010, and take effect on Decem-       reminders of upcoming filing dates
Costs                                     ber 1, 2010. The Federal Register         as a courtesy to help committees
    Finally, mindful of the admin-        Notice	is	available	on	the	Commis-        comply with the filing deadlines set
istrative complexities that state,        sion’s website at http://www.fec.         forth in the Federal Election Cam-
district and local party committees       gov/law/cfr/ej_compilation/2010/          paign Act (the Act) and Commission
and associations of state and local       notice2010-18.pdf.                        regulations. Committee treasurers
candidates would face in tracking                          —Zainab Smith            must comply with all applicable
nominal, incidental costs, the Com-                                                 filing deadlines established by law,
mission carved out an exception for                                                 and the lack of prior notice does not
de minimis costs associated with                                                    constitute an excuse for failing to
certain enumerated activities. The                                                  comply with any filing deadline. Ac-
Commission excluded the follow-                                                     cordingly, reports filed by methods

                                                                                                     (continued on page 6)

                                                                                                                             5
Federal Election Commission RECORD                                                                              October 2010



Reports                                  tronically.1 Reports filed electroni-       fied mail must be postmarked on or
(continued from page 5)                  cally must be received and validated        before the mailing deadline to be
                                         by the Commission by 11:59 p.m.             considered timely filed. A commit-
other than electronically, or other                                                  tee sending its reports by certified
than Registered, Certified or Over-      Eastern Standard/Daylight Time
                                         on the applicable filing deadline.          or registered mail should keep its
night Mail must be received by the                                                   mailing receipt with the U.S. Postal
Commission’s (or the Secretary of        Electronic filers who instead file on
                                         paper or submit an electronic report        Service (USPS) postmark as proof
the Senate Public Records Office’s)                                                  of filing because the USPS does
close of business on the last business   that does not pass the Commission’s
                                         validation program by the filing            not keep complete records of items
day before the deadline.                                                             sent by certified mail. See 2 U.S.C.
                                         deadline will be considered nonfilers
Filing Electronically                    and may be subject to enforcement           §434(a)(5) and 11 CFR 104.5(e).
   Under the Commission’s manda-         actions, including administrative              Overnight Mail. Reports filed via
tory electronic filing regulations,      fines. 11 CFR 104.18(e).                    overnight mail2 will be considered
individuals and organizations that           Senate committees and other             timely filed if the report is received
receive contributions or make ex-        committees that file with the Sec-          by the delivery service on or before
penditures, including independent        retary of the Senate are not subject        the mailing deadline. A committee
expenditures, in excess of $50,000 in    to the mandatory electronic filing          sending its reports by Express or
a calendar year—or have reason to        rules, but may file an unofficial copy      Priority Mail, or by an overnight de-
expect to do so—must file all reports    of their reports with the Commis-           livery service, should keep its proof
and statements with the FEC elec-        sion in order to speed disclosure.          of mailing or other means of trans-
                                         The Commission’s electronic filing          mittal of its reports. See 2 U.S.C.
                                         software, FECFile, is free and can be       §434(a)(5) and 11 CFR 104.5(e).
                                         downloaded from the FEC’s web-                 Other Means of Filing. Reports
    FEC Offices Open                     site. New FECFile Version 6.4.2.0           sent by other means—including first
    Extended Hours for                   is available for download from the          class mail and courier—must be re-
    October 15 Reports                   FEC website at http://www.fec.gov/          ceived by the FEC (or the Secretary
                                         elecfil/updatelist.html. All reports        of the Senate Public Records Office)
      The FEC’s Reports Analysis         filed after June 1, 2010, must be           before close of business on the filing
    Division (RAD) and Electronic        filed in Format Version 6.4.2.0 (the        deadline. See 11 CFR 100.19 and
    Filing Office will be open until     new version). Reports filed in previ-       104.5(e).
    8:00 p.m. (EDT) on Friday,           ous formats will not be accepted.              Paper forms are available for
    October 15, to help committees       Filers may also use commercial or           downloading at the FEC’s website
    complete and file their quarterly    privately developed software as long        (http://www.fec.gov/info/forms.
    reports. RAD analysts will be        as the software meets the Commis-           shtml) and from FEC Faxline, the
    available to answer committees’      sion’s format specifications, which         agency’s automated fax system
    questions on reporting specific      are available on the Commission’s           (202/501-3413). The 2010 Report-
    transactions, and E-Filing staff     website. Committees using com-              ing Schedule is also available on the
    will be on hand to address           mercial software should contact their       FEC’s website (http://www.fec.gov/
    any technical issues filers may      vendors for more information about          info/report_dates_2010.shtml), and
    encounter. To reach these offices,   the Commission’s latest software            from Faxline. For more informa-
    call 800-424-9530 and press 4 for    release.                                    tion on reporting, call the FEC at
    the E-Filing Office or press 5 for
                                                                                     800/424-9530 or 202/694-1100.
    RAD. Locally, call RAD at (202)
                                         Timely Filing for Paper Filers
                                           Registered and Certified Mail.            State, District and Local Party
    694-1130 and the E-Filing Office                                                 Committees
    at (202) 694-1307.
                                         Reports sent by registered or certi-
                                                                                       State, district and local party
                                                                                     committees that engage in certain
                                         1
                                          The regulation covers individuals and
                                         organizations required to file reports of                    (continued on page 7)
                                         contributions and/or expenditures with
                                         the Commission, including any person        2
                                                                                      “Overnight mail” includes Priority or
                                         making an independent expenditure.          Express Mail having a delivery confir-
                                         Disbursements for “electioneering           mation, or an overnight service with
                                         communications” do not count toward         which the report is scheduled for next
                                         the $50,000 threshold for mandatory         business day delivery and is recorded in
                                         electronic filing. 11 CFR 104.18(a).        the service’s on-line tracking system.

6
October 2010                                                                         Federal Election Commission RECORD



Reports                                                                           to staff who will divide their time
(continued from page 6)
                                           Advisory                               between working on campaign
                                                                                  activities and preparing for possible
levels of “federal election activity”
must file on a monthly schedule.
                                           Opinions                               recounts or contests, and (2) the
                                                                                  expenses of fundraising attributable
See 11 CFR 300.36(b) and (c)(1).         AO 2010-14                               to the solicitation of both recount
Committees that do not engage in         Using Recount Funds to Pay               funds and campaign funds. The
reportable “federal election activity”                                            DSCC asks whether it may allocate
may file on a quarterly basis in 2010.
                                         Recount Expenses Before
                                         Election Day                             the fundraising expenses on a “funds
See 11 CFR 104.5(c)(1)(i).                                                        received” basis. See, e.g. 11 CFR
                                             The Democratic Senatorial Cam-
National Party Committees                                                         106.1(a) and 106.7(d)(4).
                                         paign Committee (DSCC) may use
   National	committees	of	political	     its recount funds before the general     Analysis
parties must file on a monthly sched-    election to pay expenses incurred           The DSCC may use recount
ule in all years. 2 U.S.C. §434(a)(4)    preparing for possible general           funds before the date of the general
(B) and 11 CFR 104.5(c)(4).              election recounts. Additionally,         election to retain attorneys and staff
                                         the DSCC may allocate the cost of        for possible recounts and election
Political Action Committees              certain expenses that are attributable
   PACs (separate segregated funds                                                contests, to pay for legal and other
                                         to both recount and campaign activi-     research in preparation for a recount
and nonconnected committees)             ties between its principal campaign
that filed on a semi-annual basis                                                 or election contest and to defray the
                                         account and its recount fund.            costs of soliciting contributions to
in 2009 file on a quarterly basis in
2010. Monthly filers continue on                                                  the recount fund. Additionally, the
                                         Background
the monthly schedule. PACs may                                                    DSCC may allocate expenses attrib-
                                            The DSCC asks if it may make
change their filing schedule, but                                                 utable to the solicitation of recount
                                         disbursements from its recount fund
must first notify the Commission in                                               funds and campaign funds based on
                                         before the date of the general elec-
writing. Electronic filers must file                                              the “funds received” formula in 11
                                         tion to prepare for potential recounts
this request electronically. A com-                                               CFR 106.1(a), and may also allocate
                                         and election contests that may occur
mittee may change its filing fre-                                                 the salary and benefits of staff who
                                         in connection with the results of the
quency only once a year, after giving                                             work on both recount and campaign
                                         general election. Such planned ex-
notice of change in filing frequency                                              activities. However, none of these
                                         penses include retaining the services
to the Commission. The committee                                                  activities, or their results, may be
                                         of attorneys and staff to research
will receive a letter indicating the                                              used for campaign activity before
                                         state laws on recounts and elec-
Commission’s acknowledgment of                                                    Election Day, and the DSCC must
                                         tion contests, developing plans and
the request. All future reports must                                              account for and report the use of
                                         budgets for anticipated recounts and
follow the new filing frequency. 11                                               these funds according to the proce-
                                         recruiting volunteers to help with the
CFR 104.5(c).                                                                     dures set forth below.
                                         recount process. All of these dis-
                                                                                     In 2009, the Commission con-
                                         bursements, and the activities funded
Additional Information                                                            cluded that the DSCC could create
                                         with these disbursements, will be
   For more information on 2010                                                   a recount fund and use that fund to
                                         dedicated solely to post-election re-
reporting dates:                                                                  pay for expenses incurred in con-
                                         counts and contests, and will not be
                                                                                  nection with recounts and election
•	 See	the	reporting	tables	in	the	      usable for any pre-election campaign
                                                                                  contests	of	federal	elections.	Neither	
   January 2010 Record;                  activities, such as get-out-the-vote
                                                                                  the Federal Election Campaign Act
•	 Call	and	request	the	reporting	       activity, voter registration and poll-
                                                                                  (the Act) nor Commission regula-
   tables from the FEC at 800/424-       ing. The DSCC also asks if it may
                                                                                  tions and advisory opinions address
   9530 or 202/694-1100;                 use recount funds to defray the costs
                                                                                  when recount funds may be raised or
•	 Fax	the	reporting	tables	to	          of soliciting donations to its recount
                                                                                  spent. On its face, the exclusion of
   yourself using the FEC’s Faxline      fund.
                                                                                  donations and disbursements “made
   (202/501-3413, document 586);            Additionally, the DSCC asks if
                                                                                  with respect to a recount of the
   or                                    it may allocate the cost of certain
                                                                                  results of a Federal election, or an
•	 Visit	the	FEC’s	web	page	at	          expenses that are attributable to
                                                                                  election contest concerning a Fed-
   http://www.fec.gov/info/report_       both recount activities and cam-
                                                                                  eral election” from the definitions
   dates_2010.shtml to view the          paign activities between its principal
                                                                                  of “contribution” and “expenditure”
   reporting tables online.              campaign account and its recount
                                         fund. These expenses consist of: (1)
         —Elizabeth Kurland              the payment of salaries and benefits                     (continued on page 8)

                                                                                                                          7
Federal Election Commission RECORD                                                                           October 2010



Advisory Opinions                        may therefore use recount funds to        to allocate staff salary and ben-
(continued from page 7)                  defray the costs of soliciting dona-      efits between the recount fund and
                                         tions to the recount fund. However,       principal campaign account based
is not limited to the post-election      when holding fundraising events at        upon a monthly log is permissible,
period. 11 CFR 100.91, 100.151.          which the DSCC will raise contribu-       so long as the DSCC keeps records
    In contrast, Commission regula-      tions and recount funds, the recount      indicating which duties are consid-
tions do speak to the time frame dur-    solicitations must clearly state the      ered recount activities and which are
ing which other types of funds may       purpose of the fund and note that no      considered election contest activi-
be spent, such as the requirement        donations to the fund will be used to     ties and a monthly log recording the
that general election contributions      influence any federal election. See,      percentage of time each employee
be refunded if a candidate does not      e.g. 11 CFR 9003.3(a)(1)(A).              spends on campaign activities as
become a candidate in the general            Neither	the	Act	nor	Commission	       opposed to recount activities. See 11
election. 11 CFR 102.9(e)(3). How-       regulations and advisory opinions         CFR 106.7(d)(1) and 9003.3(a)(2)
ever, the Commission has, in limited     address the allocation of expenses        (ii)(C).
circumstances, approved disburse-        incurred for both recount and cam-
ments similar to those at issue here.    paign activities. However, Com-           Reporting
In 1986, the Commission concluded        mission regulations do generally             The DSCC must report all dis-
that a candidate may spend general       permit (and in some cases require)        bursements from its recount fund in
election funds prior to the date of      the allocation of expenses attribut-      accordance with 2 U.S.C. §434(a)
his or her primary election in cases     able to more than one purpose. 11         and (e) and 11 CFR 104.3 and
where it was “necessary to make          CFR 102.5(a), Part 106, Part 300,         300.13(a). When reporting allocated
advance payments to vendors for          and 9003.3(a)(2)(ii). Although these      activities, the DSCC must disclose
services that [would] be rendered        regulations do not apply here, they       the entire amount paid by the princi-
. . . with respect to the [potential]    generally stand for the proposition       pal campaign account for the cost of
general election” and that would not     that allocation is appropriate when       fundraising and the salaries and ben-
“influence the primary election or       funding activities with multiple          efits of employees who spend some
nominating process or . . . [be] for     purposes.                                 of their time on recount activities
goods or services to be used in both         The DSCC’s proposal to allocate       and some of their time on campaign
the primary and general elections.”      its fundraising costs based on the ra-    activities, as well as the reimburse-
AO 1986-17.1 Likewise, the DSCC          tio of funds received for its principal   ment from the recount account.
proposes to retain the services          campaign account to its total receipts       Date Issued: August 26, 2010;
of attorneys and staff to conduct        from each fundraising program or             Length: 8 pages.
research and make preparations for       event is appropriate. See, e.g. 11                  —Christopher Berg
a potential recount or contest that      CFR 106.7(d)(4). The DSCC may
will take place (if at all) after the    make an initial payment for all of the                   (continued on page 9)
general election. Accordingly, the       fundraising expenses, both cam-
DSCC may use recount funds to pay        paign-related and recount-related,
recount-related expenses incurred        from its principal campaign account,        Need FEC Material
before Election Day.                     and then reimburse its principal            in a Hurry?
    Commission regulations generally     campaign account from the recount
permit—and occasionally require—         fund for the proportion of the total          Use FEC Faxline to obtain
the proceeds of fundraising activi-      fundraising expenses attributable to        FEC material fast. It operates
ties be used to defray the costs of      recount activities. The reimburse-          24 hours a day, 7 days a week.
those activities. For example, a joint   ment must be made within sixty              Hundreds of FEC documents—
fundraising committee is required        days after payment is made from the         reporting forms, brochures, FEC
to deduct the participants’ allocable    principal campaign account.                 regulations—can be faxed almost
share of expenses before distribut-          The allocation of salaries              immediately.
ing proceeds from the event. 11          and wages between federal and                 Use a touch tone phone to dial
CFR 102.17(c)(7)(i)(A). The DSCC         nonfederal accounts of state and            202/501-3413 and follow the
                                         local party committees is deter-            instructions. To order a complete
                                         mined by the percentage of time             menu of Faxline documents, enter
1
  Such advance payments are limited to   each employee spends in connection          document number 411 at the
goods or services that are provided or   with a federal election, as shown in        prompt.
rendered after a candidate has estab-    monthly logs. The DSCC’s proposal
lished his or her candidacy for the
general election. AO 1986-17.

8
October 2010                                                                         Federal Election Commission RECORD



Advisory Opinions                        March 31, 2010, were treated as          Advisory Opinion Requests
(continued from page 8)                  primary election contributions and
                                         therefore are not required to be         AOR 2010-22
AO 2010-15                               refunded as excessive contributions,         Recognition of CT Working Fam-
Candidate May Receive                    they may be refunded to the candi-       ilies Federal PAC d/b/a Take Back
Refund from His Committee                date.                                    Congress CT as the state committee
   A candidate who made undesig-             The Federal Election Campaign        of a political party (Working Fami-
nated contributions to his authorized    Act (the Act) provides that candi-       lies Party of Connecticut, September
campaign committee and is not a          dates may contribute an unlimited        7, 2010)
candidate in the general election        amount of their personal funds to
may receive refunds, even though         their campaign committees. 11 CFR        AOR 2010-23
the contributions were reported as       110.10; AOs 1985-33 and 1984-60.            Use of cellular phone text mes-
primary election contributions.          Contributions that are not specifi-      saging for anonymous contributions
                                         cally designated by the contributor      to candidates and political commit-
Background                               for use in a particular election are     tees (CTIA-The Wireless Associa-
    Douglas Pike was a first-time        considered to be for the next elec-      tion, September 10, 2010)
Democratic candidate for the House       tion for that federal office. 11 CFR
of Representatives in the May 18,        110.1(b)(2)(ii). In Mr. Pike’s case,     AOR 2010-24
2010, primary in Pennsylvania’s          his contributions were undesig-             Oversight of voter registration
Sixth District. In December of 2009      nated and made before the primary        activity (Republican Party of San
Mr. Pike gave $340,000 in per-           election. As the next election was       Diego County, September 15, 2010)
sonal funds to Pike for Congress,        the May 2010 primary election, the
his principal campaign committee                                                  AOR 2010-25
                                         Committee correctly reported Mr.            Application of press exemption
(the Committee). In March he made        Pike’s contributions as having been
another contribution of $100,000.                                                 and commercial activity exception
                                         made for the primary election.           to documentary film; candidate ap-
Neither	of	these	contributions	was	          Under Commission regulations,
designated for a particular election,                                             pearances and licensing activities in
                                         a contributor, including a candidate,    conjunction with film (RG Entertain-
although the candidate maintained        may request a refund for a primary
they were intended for the general                                                ment, Ltd., September 9, 2010)
                                         election contribution, and the candi-
election.                                date committee is free to make such
    In its year-end 2009 report and      a refund. In its advisory opinion, the
its April 2010 quarterly report, the     Commission noted that the Commit-
Committee reported these two of Mr.      tee had no outstanding debts, had
Pike’s contributions as primary elec-    already refunded the contributions
tion contributions. Mr. Pike made        it received for the general election
other contributions to the Commit-       from other contributors and had
tee, totaling more than $600,000,        enough cash on hand to make the             Federal Register
which Mr. Pike maintains were            refund.
meant for the primary election, and          While the Act contains a restric-       Federal Register notices are
were reported as such.                   tion on converting campaign funds           available from the FEC’s Public
    After losing the primary, Mr. Pike   to personal use, the proposed refund        Records Office, on the website
was no longer a candidate. There-        would not violate this personal use         at http://www.fec.gov/law/law_
fore, the committee refunded all         ban. 11 CFR 113.2(e). The Commit-           rulemakings.shtml and from the
the contributions it received for the    tee may therefore refund Mr. Pike’s         FEC faxline, 202/501-3413.
general election from other contribu-    contributions and must report the           Notice 2010-17
tors. After doing so, the Committee      refund in accordance with the Act           Coordinated Communications (75
had no outstanding debts and almost      and Commission regulations.                 FR 55947, September 15, 2010)
$550,000 leftover in its account. The        Date Issued: August 26, 2010;
Committee asked if it could refund           Length: 4 pages.                        Notice 2010-18
contributions totaling $440,000 to                —Isaac J. Baker                    Definition of Federal Election
Mr. Pike.                                                                            Activity (75 FR 55257, September
Analysis                                                                             10, 2010)
   Despite the fact that the candi-
date’s undesignated contributions
made on December 31, 2009, and

                                                                                                                        9
Federal Election Commission RECORD                                                                              October 2010



                                           had met their burden of establish-        limits on political party committees
     Court Cases                           ing standing under Article III of         and other political committees.
                                           the Constitution, since they had a            Inflation Adjustment. The plain-
Cao v. FEC                                 personal stake in the outcome of the      tiffs also argued that the $5,000
   On September 10, 2010, the              controversy and therefore had stand-      contribution limitation from politi-
U.S. Court of Appeals for the Fifth        ing to bring constitutional claims.       cal party committees to candidates
Circuit upheld several provisions of       The FEC had not contested the             is unconstitutional because it is not
the Federal Election Campaign Act          plaintiffs’ standing in the case.         adjusted for inflation. The plaintiffs
(the Act) relating to political parties’       $5,000 Contribution Limit. The        relied on the Supreme Court’s deci-
contribution limits to federal candi-      Act provides that contributions from      sion in Randall, in which the Court
dates and coordinated expenditure          multicandidate political committees       invalidated contribution limits to
limits. The court held that these pro-     (including political party com-           candidates in Vermont, holding that
visions of the Act did not violate the     mittees) to federal candidates are        “[a] failure to index limits means
First Amendment, and that in light         limited to $5,000 per candidate, per      that limits which are already suspi-
of previous Supreme Court rulings,         election. 2 U.S.C. §441a(a)(2)(A).        ciously low…will almost inevitably
each of the challenged provisions          The plaintiffs had challenged this        become too low over time.” How-
was a constitutionally permissible         provision as a violation of their First   ever, the Court of Appeals held that
regulation of a political party com-       Amendment rights since it imposes         the Supreme Court’s statement “does
mittee’s campaign contributions and        the same contribution limits on           not, in turn, mean that all contribu-
coordinated party expenditures.            political parties as on other multi-      tion limits not indexed for inflation
                                           candidate political committees. The       are automatically ‘suspiciously low’
Background                                 plaintiffs argued that the speech of      and unconstitutional.” The court
    Congressman Anh “Joseph” Cao           political parties deserves a higher       stated that, in the present case, the
is the U.S. Representative for the 2nd     degree of protection than that of         Act’s $5,000 limit is not comparable
Congressional District of Louisiana        other multicandidate political com-       to Vermont’s $200-$400 limit at is-
and	the	RNC	is	the	national	politi-        mittees.                                  sue in Randall.
cal party committee of the Republi-            The court instead held that, while                    (continued on page 11)
can Party (together, plaintiffs). On       Supreme Court precedent acknowl-
November	13,	2008,	the	plaintiffs	         edged the important historic role
filed a suit for declaratory judgment      that political parties have played, the
challenging various provisions of          Court has also acknowledged that            Campaign Guides
the Act as unconstitutional in the         it is precisely this role that politi-      Available
U.S. District Court for the Eastern        cal parties fill that gives rise to the       For each type of committee, a
District of Louisiana.                     government’s compelling inter-              Campaign Guide explains, in clear
    Pursuant to 2 U.S.C. §437h, the        est in regulating their coordinated         English, the complex regulations
district court ultimately certified        expenditures and contributions. The         regarding the activity of political
four constitutional challenges to the      Supreme Court in FEC v. Colorado            committees. It shows readers,
en banc Court of Appeals, while            Republican Fed. Campaign Commit-            for example, how to fill out FEC
dismissing four additional chal-           tee, 533 U.S. 431 (2001) (Colorado          reports and illustrates how the law
lenges as frivolous. The certified         II) recognized a political party’s          applies to practical situations.
challenges involved the plaintiffs’        unique susceptibility to corruption.          The FEC publishes four
standing to bring suit under Article           In the present case, the Court of       Campaign Guides, each for a
III of the Constitution, the Act’s         Appeals further held that the Act           different type of committee,
$5,000 contribution limitation for a       affords a “reasonable limitation”           and we are happy to mail your
political party’s in-kind and direct       of $5,000, and as such does not             committee as many copies as
contributions to federal candidates,       seriously impair political parties’         you need, free of charge. We
the fact that the $5,000 contribu-         ability to effectively participate in       encourage you to view them on
tion limit is not indexed for inflation    the political process, as had been the      our website (www.fec.gov).
and the Act’s “coordinated party           issue in the Supreme Court’s deci-            If you would like to place an
expenditure” limitations at 2 U.S.C.       sion in Randall v. Sorrell, 548 U.S.        order for paper copies of the
§441a(d). See the March 2010               230 (2006) (Randall). Also, the court       Campaign Guides, please call the
Record.                                    found that the Supreme Court’s deci-        Information Division at 800/424-
                                           sion in Citizens United v. FEC did          9530.
Court of Appeals Decision                  not affect the validity of contribution
   Standing of plaintiffs. The court
of appeals held that the plaintiffs

10
October 2010                                                                             Federal Election Commission RECORD



Court Cases                               enhanced by declaring parties’ coor-       Who May Sponsor Debates Under
(continued from page 10)                  dinated spending wide open.” Id. at        the FEC’s Exemption?
                                          457. The Court of Appeals also held           Candidate debates may be paid
    Coordinated Party Expenditure         that Citizens United v. FEC (2010)         for by: (1) a broadcaster, a bona fide
Limits. The plaintiffs’ challenge to      did not undermine Colorado II’s            newspaper or a magazine or other
the coordinated party expenditure         holding that Congress may regulate         periodical publication, so long as
limits of 2 U.S.C. §441a(d) arose         a party’s coordinated expenditures,        they are neither owned nor con-
out	of	the	RNC’s	desire	to	spend	         since Citizens United dealt with           trolled by a political party, political
in excess of the amount allowed           restrictions on independent expendi-       committee or candidate; or (2), a
for Congressman Cao (which was            tures by corporations.                     nonprofit organization described in
$42,100 in 2008 for House candi-                                                     section 501(c)(3) or 501(c)(4) of the
dates in Louisiana). Specifically, the    Remand                                     Internal Revenue Code (Title 26,
RNC	wanted	to	air	a	radio	ad	and	to	         The court remanded the case to          U.S. Code) that does not endorse,
coordinate with the Cao campaign as       the district court for entry of judg-      support or oppose any candidate or
to the “best timing” for the ad.          ment consistent with this opinion.         party. 110.13(a) and 114.4(f)(1)-(2).
    The	RNC	stated	that	its	in-              U.S. Court of Appeals for the
volvement with the Cao campaign           Fifth	Circuit;	No.	10-30080,	No.	          Corporate/Labor Donations
amounted to coordination under            10-30146.                                  Permitted
FEC regulations, and that if they had              —Myles Martin                        A corporation or labor organiza-
aired the ad, it would have violated                                                 tion may donate funds to a nonprofit
the amount limitations of the party                                                  organization described in section
expenditure provision because the                                                    501(c)(3) or 501(c)(4) of the Internal
RNC	had	already	spent	its	limit	un-           800 Line                               Revenue Code (Title 26, U.S. Code)
der	the	Act.	The	RNC	asserted	that	                                                  that does not endorse, support or
this provision of the Act violates its    FEC Rules Governing Public                 oppose any candidate or party to de-
First Amendment rights because the        Debates                                    fray the cost of staging a candidate
provisions	regulate	the	RNC’s	“own	                                                  debate. 114.4(f)(1) and (3).
                                             FEC regulations provide an ex-
speech,” and that its own speech          emption that allows certain nonprofit
may not be regulated, regardless of                                                  Debate Structure
                                          organizations and the news media to           The debates must be structured
whether the speech is coordinated.        stage debates, without being deemed
“Own speech” is defined by the                                                       such that they do not promote or
                                          to have made prohibited corporate          advance one candidate over another,
RNC	as	speech	that	is	attributable	       contributions to the candidates tak-
to	the	RNC,	even	when	candidate	                                                     and they must include at least two
                                          ing part in debates. This exception        candidates. 110.13(b).
writes the speech and decides how it      is consistent with the traditional role
is to be disseminated.                    these organizations have played in         Candidate Selection
    The Court of Appeals held that        the political process. This article de-       The organization staging the de-
the Supreme Court’s holding in            scribes the guidelines for nonprofits      bate must select the candidates based
Colorado II expressly recognized          and news media-sponsored debates.          on pre-established objective criteria.2
that Congress has the power to               Other entities, such as individu-       For primary elections, the organiza-
regulate coordinated expenditures         als or unincorporated organizations,       tion may restrict candidates to those
in order to prevent circumvention of      may sponsor debates; however, their
the contribution limits and political     costs are not exempted under FEC
corruption, provided that the restric-    regulations and thus are considered
tion is “closely drawn” to match a                                                                     (continued on page 12)
                                          contributions and/or expenditures.
sufficiently important government         See the FEC’s explanation and
interest in combating political cor-      justification for 11 CFR 110.13 at
ruption. Colorado II at 456. The          60 Fed. Reg. 64261 (December 14,           2
                                                                                       In its Explanation and Justification for
Court of Appeals stated that if it was    1995).1                                    these regulations, the FEC stated that
to accept the plaintiffs’ arguments, it                                              the choice of which objective criteria to
would “effectively eviscerate the Su-                                                use is largely left to the discretion of the
preme Court’s holding in Colorado                                                    staging organization and advised such
II,” in which the Supreme Court held                                                 organizations to reduce their objective
that coordinated expenditures may         1
                                           Available online at http://www.fec.gov/   criteria to writing and to make the crite-
be restricted because contribution        law/cfr/ej_compilation/1995/1995-23_       ria available to all candidates before the
limits could be eroded if “induce-        Express_Advocacy_Indep_Exp_and_Co-         debate. See 60 Fed. Reg. 64262 (Decem-
ment to circumvent them were              ordination.pdf#page=3.                     ber 14, 1995).

                                                                                                                              11
Federal Election Commission RECORD                                                                             October 2010




800 Line                                    expenditures with respect to a given     a Schedule 5-E filed with the next
(continued from page 11)                    election aggregate more than $250        scheduled report. 109.10(b). For
                                            and must continue to file reports in     example, if a Form 5 filer files a
seeking the nomination of one party.        any succeeding reporting period dur-     24-Hour report before a general
For general elections, the staging          ing the same year in which addition-     election, it must also disclose that
organization may not use nomina-            al independent expenditures of any       independent	expenditure	on	a	Year-
tion by a particular party as the sole      amount are made. 109.10(b). Also,        End report covering the last quarter
objective criterion. 110.13(c).             all Form 5 filers whose independent      of the year. (See “Quarterly Reports”
         —Dorothy Yeager                    expenditures exceed, or are expected     below)
                                            to exceed, $50,000 in any calendar          The 24-Hour Report period for
                                            year, must electronically file FEC       the general election of 2010 begins
Disclosing Independent                      Form 5. 104.18. Visit http://www.        October 13 and runs through Octo-
                                            fec.gov/elecfil/FECFileIntroPage.        ber 31. See http://www.fec.gov/info/
Expenditures on FEC                                                                  charts_ie_dates_2010.shtml.
                                            shtml to access the Commission’s
Form 5                                      FECFile filing software for this
   An independent expenditure is an         purpose.                                 48-Hour Reports
expenditure for a communication,                                                         Once independent expenditures
such as a website, newspaper, televi-       24-Hour Pre-Election Reports             reach or exceed $10,000 in the ag-
sion or direct mail ad that:                    Independent expenditures of          gregate with respect to a given elec-
                                            $1,000 or more (when aggregated          tion at any time during a calendar
•	 Expressly	advocates	the	election	                                                 year—up to and including the 20th
                                            with respect to a given election)
   or defeat of a clearly identified                                                 day before an election—the Form
                                            that are made after the 20th day, but
   federal candidate; and                                                            5 filer must disclose this activity
                                            more than 24 hours, before the day
•	 Is	not	made	in	cooperation,	con-                                                  within 48 hours of the date that the
                                            of an election must be reported on
   sultation or concert with, or at the                                              communication is publicly dis-
                                            FEC Form 5 within 24 hours after
   request or suggestion of, a can-                                                  seminated.	Another	48-Hour	Notice	
                                            the communication is publicly
   didate, a candidate’s authorized                                                  is required each time additional
                                            disseminated. Another 24-Hour
   committee, a party committee or                                                   independent expenditures during the
                                            Notice	is	required	each	time	ad-
   the agents of either. 100.16(a).                                                  period aggregate $10,000 or more.
                                            ditional independent expenditures
    Such expenditures have special          during the period aggregate $1,000       All 48-Hour reports must be filed
filing requirements. This article           or more. The 24-Hour reports must        with and received by the Commis-
focuses on the requirements for fil-        be received by the end of the day        sion by 11:59 p.m. (Eastern time) on
ers who are not registered with the         following the date that the communi-     the second day after the communica-
FEC.1                                       cation is publicly disseminated. All     tion is publicly disseminated. Elec-
                                            Form 5 filers, even those supporting     tronic filers must file these reports
Who Must File Form 5?                       or opposing Senate candidates, must      electronically, and paper filers may
   Any entity not registered with           file 24-Hour reports of independent      file by fax or email. 100.19(d)(3)
the FEC (including a corporation,2 a        expenditures with the Commission.        and 109.10(c).
labor organization, an individual or        Electronic filers must file these re-        The Form 5 filer must then
a group of people) (hereafter in this       ports electronically, and paper filers   disclose the independent expendi-
article referred to as “Form 5 filers”)     may file by fax or email. Addition-      tures a second time on a Schedule
must file a report with the FEC on          ally, paper filers may file 24-Hour      5-E filed with the next scheduled
Form 5 at the end of the first report-      reports using the FEC website’s          report. 109.10(b). For example, if a
ing period in which independent             online program. 100.19(d)(3) and         Form 5 filer files a 48-Hour report in
                                            109.10(d).                               February, it must also disclose those
                                                The Form 5 filer must then           independent expenditures on an
                                            disclose the last-minute indepen-        April Quarterly report.
1
  Filers registered with the FEC, such as   dent expenditure a second time on
PACs and party committees, should con-                                               Quarterly Reports
sult their Campaign Guide and 11 CFR                                                   Form 5 filers must disclose inde-
104.4 for filing requirements specific to                                            pendent expenditures aggregating
them.
2
  See the Supreme Court’s opinion in                                                                 (continued on page 13)
Citizens United v. FEC (2010), avail-
able at http://www.fec.gov/law/litiga-
tion/cu_sc08_opinion.pdf.

12
October 2010                                                                         Federal Election Commission RECORD



800 Line
(continued from page 12)                    Nonfilers                               Outreach
in excess of $250 with respect to a      Committees Fail to File Pre-             FEC to Host Reporting and
given election during the calendar       Election Reports                         E-Filing Workshops
year on a quarterly basis; however,                                                  On October 6, 2010, the Commis-
such filers need only file reports for       The Commission cited four
                                         campaign committees for failing to       sion will host roundtable workshops
any quarterly period during which                                                 on reporting and electronic filing.
independent expenditures aggregat-       file the 12-Day Pre-Primary Election
                                         Report required by the Federal Elec-     The reporting sessions will address
ing in excess of $250 are made and                                                common filing problems and provide
in any period thereafter in which        tion Campaign Act for the Mary-
                                         land,	Massachusetts	and	New	York	        answers to questions committees
additional expenditures are made.                                                 may have as they prepare to file their
The report must be filed by the filing   primary elections held on September
                                         14, 2010.                                financial reports. The electronic fil-
deadline of the next report under the                                             ing sessions will provide hands-on
quarterly filing schedule. 109.10(b).        As of September 10, 2010, the
                                         required disclosure report had not       instruction for committees that use
Aggregating Independent                  been received from:                      the Commission’s FECFile software
Expenditures for Reporting                                                        and will address questions filers may
                                         •	 Committee	to	Elect	Daniel	            have concerning electronic filing. At-
Purposes                                    McAndrew (MD Senate);
   Independent expenditures are ag-                                               tendance is limited to 50 people per
                                         •	 Wilhelm	for	Congress	(MD-3);	         reporting workshop and 16 people
gregated toward the various report-      •	 Keith	Lepor	for	Congress	(MA-
ing thresholds on a per-election,                                                 per electronic filing workshop; the
                                            9); and                               registration fee is $25 per workshop.
per-race basis within the calendar       •	 People	for	Gail	Goode	(NY	Sen-
year. For example, all independent                                                The registration form is available on
                                            ate).                                 the FEC’s website at http://www.fec.
expenditures made in support of
or in opposition to candidates in a          The reports were due on Sep-         gov/info/outreach.shtml#roundtables
particular Senate general election       tember 2, 2010, and should have          and from Faxline, the FEC’s auto-
during a calendar year would be          included financial activity for the      mated fax system (202/501-3413,
aggregated together for purposes of      period July 1, 2010, through Au-         request document 590). For more
applying the reporting thresholds.       gust 25, 2010. If sent by certified or   information, please call the Informa-
   The date that a communication         registered mail, the reports should      tion Division at 800/424-9530 (press
is publicly disseminated serves as       have been postmarked by August 30,       6), or locally at 202/694-1100.
the date that the filer must use to      2010.                                             —Kathy Carothers
determine whether the total amount           The FEC notified committees in-
of independent expenditures has, in      volved in the September 14 primary
the aggregate, reached or exceeded       elections of their potential filing      Winding Down the
the threshold reporting amounts of       requirements on August 10, 2010.         Campaign Reporting
$1,000 or $10,000. The calculation       Those committees that did not file       Roundtable
of the aggregate amount of the inde-     on the due date were sent notifica-         On	November	17,	2010,	the	
pendent expenditures must include        tion on September 3, 2010, that their    Commission will hold a roundtable
both disbursements for indepen-          reports had not been received and        workshop to help candidate com-
dent expenditures and all contracts      that their names would be published      mittees prepare to file their 30 Day
obliging funds for disbursements of      if they did not respond within four      Post-General (30G) Report and
independent expenditures. 104.4(f).      business days.                           wind down their campaigns. The
         —Dorothy Yeager                          —Myles Martin                   workshop will include information
                                                                                  on raising funds to retire campaign
                                                                                  debt, settling debts for less than the
                                                                                  full amount owed, filing the Post
                                                                                  Election Detailed Summary Page
                                                                                  and terminating a committee. Atten-
                                                                                  dance is limited to 50 people and the
                                                                                  registration fee is $25. The registra-
                                                                                  tion form is available on the FEC’s

                                                                                                  (continued on page 14)


                                                                                                                      13
Federal Election Commission RECORD                                                                        October 2010



Outreach                               Outreach Initiatives for
(continued from page 13)               2011-12                                     Index
website at http://www.fec.gov/info/        During the 2011-12 election
outreach.shtml#roundtables and         cycle, the FEC plans to modify and            The first number in each cita-
from Faxline, the FEC’s automated      expand its outreach efforts to offer      tion refers to the numeric month of
fax system (202/501-3413, request      more opportunities for training on        the 2010 Record issue in which the
document 590). For more informa-       the campaign finance laws at less         article appeared. The second num-
tion, please call the Information      cost to attendees.                        ber, following the colon, indicates
Division at 800/424-9530, or locally       The biggest change involves the       the page number in that issue. For
at 202/694-1100.                       agency’s annual series of confer-         example, “1:4” means that the article
   —Kathy Carothers                    ences in Washington, DC. Beginning        is in the January issue on page four.
                                       next year, these conferences will be
                                       replaced by smaller, more targeted        Advisory Opinions
                                       roundtable workshops and day-long         2009-29: Membership organization
                                       seminars held at FEC headquarters.          may establish SSF without vote of
                                       By hosting the workshops in its own         its membership, 2:4
                                       meeting rooms, the Commission             2009-30: Trade association corporate
                                       can offer more frequent training            members may use treasury funds to
     Roundtable                        sessions, provide separate sessions         assist their SSFs, 3:9
     Schedule                          for beginners and more advanced           2009-31: Employees may use credits
                                       practitioners and dramatically reduce       to make contributions to SSF, 3:10
     Reporting Workshops               registration fees. Additionally, the      2009-32: Proposed sale of art on be-
     October 6-7, 2010                 agency will be able to capture the          half of committees is not a contri-
     FEC Headquarters                  workshops for use on-line as part of        bution, 3:10
                                       its e-learning library and, eventually,   2010-01: State party activity on be-
     Reporting for Candidate           as live webinars to offer individuals       half of presumptive nominee, 4:10
     Committees (Oct. 6)               in remote locations inexpensive ac-       2010-02: State party committee may
     9:30 a.m.-11:00 a.m.              cess to interactive training.               use nonfederal funds to purchase
                                           Those who prefer the FEC’s              office building, 4:11
     FECFile and E-Filing for          traditional, more formal conference       2010-03: Members of Congress may
     PACs and Party Committees         program will still have an opportu-         solicit nonfederal funds for redis-
     (Oct. 6) Sold Out!                nity to attend the agency’s regional        tricting trust, 6:1
     9:30 a.m.-11:00 a.m.              conferences. In the fall of 2011, the     2010-04: Determining composition of
                                       agency plans to conduct two-day             corporation’s restricted class, 6:3
     Reporting for PACs and            conferences in the Midwest and            2010-05: Sale of ad time on a for-
     Party Committees (Oct. 6)         West, and intends to visit the South        eign-owned television station, 7:1
     1:00 p.m.-2:00 p.m.               and	Northeast	during	the	first	half	of	   2010-06: Political affinity accounts
                                       2012.                                       for revenue-generating web plat-
     FECFile and E-Filing for              Additional information concern-         form, 7:3
     Candidate Committees (Oct. 6)     ing the agency’s 2011-12 outreach         2010-07: Members of Congress may
     1:00 p.m.-2:00 p.m.               programs will appear in future issues       solicit funds for state ballot mea-
                                       of the Record and on-line at http://        sure, 7:5
     FECFile and E-Filing for          www.fec.gov/info/outreach.shtml.          2010-08: Film production, distribu-
     PACs and Party Committees
                                                                                   tion costs qualify for press exemp-
     (Oct. 7) Just Added!
                                                                                   tion, 7:6
     9:30 a.m.-11:00 a.m.
                                                                                 2010-09: Corporate sponsored IE-
                                                                                   only committee may solicit and
     Winding Down the Campaign
                                                                                   accept unlimited individual contri-
     Reporting Roundtable
                                                                                   butions, 8:1
     November	17,	2010
                                                                                 2010-10: Attribution of independent
     FEC Headquarters
                                                                                   expenditures, 8:3
     9:30 a.m.-11:00 a.m.



                                                                                                (continued on page 15)

14
October 2010                                                                           Federal Election Commission RECORD



Index                                     Outreach                                  Georgia Special Election Reporting:
(continued from page 14)                  Conferences in 2010, 1:14; 2:5; 3:12-        9th District, 4:4
                                            13; 4:14; 5:7; 6:12                     Hawaii Special Election Reporting:
2010-11: Contributions to an inde-        June Reporting Roundtable, 6:12              1st District, 4:7
  pendent expenditure committee,          Nonconnected	Committee	Seminar,	          Illinois Special Election Reporting:
  8:4                                       2:7; 3:13; 4:14-15                         Senate Vacancy, 9:5
2010-12: Payroll deduction from           October Reporting Roundtable, 8:7;        Indiana Special Election Reporting:
  directors’ compensation for volun-        9:8; 10:13                                 3rd District, 9:6
  tary SSF contributions, 9:1             Outreach initiatives for 2011-12,         Pennsylvania Special Election Re-
2010-13: Libertarian Party of Florida       10:14                                      porting: 12th District, 4:6
  qualifies as state party committee,     Roundtable on new travel rules, 1:15;     Reports Due in 2010, 1:8; 4:1; 7:1;
  9:2                                       2:6                                        10:1
2010-14: Using recount funds to pay       Roundtable on pre-election commu-         West Virginia Senate Special Election
  for recount expenses before elec-         nications, 8:7; 9:8                        Reporting: 8:5
  tion day, 10:7                          Winding down the campaign report-
2010-15: Candidate may receive              ing roundtable, 10:13                   Statistics
  refund from his committee, 10:9         Year-End	reporting	roundtable,	1:14       House and Senate campaigns raise
                                                                                      nearly $600 million in 2009, 4:12
Commission                                Regulations                               PAC activity remains steady in 2009,
Commission statement on Citizens          Effective date for amendments to            5:7
  United v. FEC, 3:1                        travel rules, 8:5                       Party committees report slight in-
FEC Elects Chairman and Vice              Final Rules on campaign travel, 1:1         crease in 2009 receipts, 4:13
  Chair for 2010, 1:1                     Final Rules on coordinated communi-
FEC Introduces new compliance               cations, 10:1                           Website
  map, 2:2                                Final Rules on debt collection, 5:1       Candidate Disbursements search
Message from the Chairman, 2:1            Final Rules for definition of federal       feature available on website, 6:10
Policy statement establishes pilot          election activity, 10:3
  program for requesting consider-        Final Rules on funds received in          800 Line
  ation of legal questions, 8:1             response to solicitations; allocation   Disclosing independent expenditures
                                            of expenses by PACs, 4:8                  on FEC Form 5, 10:12
Compliance                                Final Rules on participation by fed-      FEC rules governing public debates,
Nonfilers,	3:12;	6:10;	7:12;	8:6;	9:7;	     eral candidates and officeholders at      10:11
 10:13                                      nonfederal fundraising events, 6:1      Redesignating and reattributing con-
                                          Hearings on coordinated communica-          tributions, 8:7
Court Cases
______v. FEC                                tions rules, 6:7
  - Cao, 3:1; 10:10                       Hearing on proposed federal election
  - Citizens United, 2:1                    activity (FEA) rules, 3:8
  - CREW, 9:1                             NPRM	on	debt	collection,	4:9
  - Fieger, 4:4                           NPRM	on	federal	candidates’	and	
		-	RNC,	5:3                                officeholders’ participation in party
		-	SpeechNow.org,	5:1;	7:11                fundraisers, 1:5
  - The Real Truth About Obama,           NPRM	on	funds	received	in	response	
    Inc., 7:10                              to solicitations; allocation of ex-
  - Unity08, 4:1                            penses by certain committees, 2:4
  - Utility Workers, et. al, 4:3          NPRM	on	standards	of	conduct,	6:6
FEC v. ______                             Petition for rulemaking on Citizens
			-	Novacek,	5:5                           United, 3:7
U.S. v. O’Donnell, 7:11                   Public hearing rescheduled for March
                                            16, 3:7
Inflation Adjustments                     Supplemental	NPRM	on	Coordinated	
2010 Coordinated party expenditure          Communications, 3:7
  limits, 3:5                             Reports
Lobbyist bundling threshold un-           FEC Form 3L Due in July, 7:9
  changed for 2010, 3:6                   Florida Special Election Reporting:
                                            19th District, 1:12

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