>> This file contains archived live captions of the open meeting of the Federal Election Commission held on March 19, 2015.  This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission.


>> Good morning, everybody. The open meeting of the Federal Election Commission for Thursday, March 19th, 2015 will come to order. We have some late submitted documents for this meeting. Mr. Vice Chair, do you have a motion?
>> Yes, I do. Thank you, Madam Chair. I move to suspend the rules on the submission of agenda documents in order to consider the late submission of agenda document number 15-10-C-2, also known as revised draft C, agenda document number 15-15-C, the rule-making petition reg 2014-09, and agenda document number 15-17-A, rule-making petition reg 2015-01.
>> Thank you, Mr. Vice Chair. Are there any questions? Hearing none, all those in favor of the motion, please indicate by saying I. All those opposed? Those were I's, right, over on your side? Okay, the motion passes unanimously. The first item on the agend a is correction and approval of minutes. Mr. Vice Chair?
>> Thank you, Madam Chair. Time of approval of the minutes for the meeting on March 10th, 2015 is set forth in agenda document number 15-16-A.
>> Thank you. Any questions? Corrections to the minutes? Hearing none, all those in favor of the motion, please say I. Okay, that motion, Madam Secretary, passes unanimously. Item number two is the advisory opinion request 2014-20, submitted by Make Your Laws Pack Inc. by Si, President and Treasurer, and I understand that Si is attending by phone, Madam Secretary.
>> Yes.
>> He is. You're there, Si?
>> Yes, I'm here.
>> Okay, thank you very much. Welcome to the meeting. We also have Nevins Stipanovik from OGC here, and would you like to augment your previous comments about this matter?
>> Sure. Thank you, Madam Chair, and good morning, Commissioners. This request was held over from the last open session, and there are a couple updates I wanted to bring to your attention. The requester has submitted an additional comment since the last open session, and yesterday, the Commission released another draft, revised draft C, which is labeled as agenda document 15-10-C-2. Um, should the Commission approve a draft, we ask for authority to make technical and conforming amendments, and I would be happy to answer any questions that you may have. Thank you.
>> Thank you. Are there any questions for Mr. Stipanovik? Any comments that anybody would like to make? Commissioner Weintraub?
>> Thank you. Actually, this is a question for the requester, since we have him on the phone. Um, there's something I'm a little bit unclear about, Si. Have you identified specific individuals who are foreign nationals that you believe want to provide these services to you should you get a positive response from the Commission?
>> Yes, Commissioner Weintraub.
>> So, there are, we're talking about real people here, this isn't a hypothetical?
>> Yes.
>> Okay.
>> Any other comments? Questions with regard to this matter? Hearing none, is there a motion? Mr. Vice Chair?
>> Thank you, Madam Chair. Approval of agenda document number 15-10-C-2, known as revised draft C in connection with draft advisory opinion 2014-20, which is Make Your Laws Pack and authorize the Office of General Council to make any conforming amendments.
>> Thank you, Mr. Vice Chair. Are there any comments? Questions? Commissioner Weintraub?
>> Thank you, Madam Chair. I will not be supporting the motion for reasons that I've alluded to when this came up previously. I think it would be possible to answer this requester's question and give him most of what he wants without doing damage to the Commission's prior precedence, and I don't think that what the Commission has said in the past is, I believe it can all be read in harmony. I think that, probably, a good portion of what the requester seeks could be covered by the Internet exemption in terms of the coding services that will be incorporated into the web-based platform that Make Your Laws Pack has. I think the place where I differ is to the extent that intellectual property in logos or trademarks would be conveyed and those would be used off the Internet to sell t-shirts or any other parafunelia. I think intellectual property is a thing of value, it's well-established in other parts of the law, and I don't think that the statute permits foreign nationals to donate things of value. I don't think this is inconsistent with the MER that gets cited, involving Elton John. It's one thing for Elton John to sing personally at a campaign event, I think it's quite a different thing for him to say I'm going to give you the rights to Candle In The Wind, and you can draw the profits from that for the next year while you're running for office to some candidate, because that's an intellectual property right, it's a thing of value, it generates money, and, um, we don't generally allow foreigners to contribute money to campaigns in this country. Similarly, if somebody wanted to volunteer their services to paint someone's office, they could do that, but, um, as I believe the AO Wrightly held, and I think it's unfortunate that this AO will supersede that, if somebody gives a painting that can be sold, that is, again, a thing of value and could be, you know, if you're a famous artist, potentially a very valuable thing of value that would be donated to the campaign. So, I don't think it is necessary to supersede the prior AOs in order to interpret the law in a way that would continue to permit foreign nationals to volunteer their personal services. We have a long history of allowing that, of saying those kinds of personal services aren't contributions, but just as I think we would say, at least I hope we would still say that if somebody donated a valuable painting to a campaign, that's a thing of value, that's a contribution, an in-kind contribution that would have to be valued. I don't know why we would draw a different conclusion if it's coming from a foreign national. So, I will be dissenting from the AO.
>> Any other comments? Commissioner Goodman?
>> Let me just respond. All along, I've thought the Internet exemption could cover this, as well as the volunteer exemption, but I haven't been a stickler for which exemption we use to do it. However, American Political Committee can employ a foreign citizen to be an employee of the committee, and if the individual then performs this very work as an employee, it becomes a work-for-hire, and the employer always owns the work of the employee, and, so, to say that the foreign national can volunteer in lieu of being employed, and that the work that the individual will perform is part and parcel the creation of the website or the intellectual property, indeed we do have the Internet exemption, which would encompass this as well, so I don't think we're treading significant new ground in terms of allowing foreign nationals to make contributions to campaigns in America.
>> Any other comments on this? Let me weigh in on this as well, and it is a great occasion when I can agree with Commissioner Goodman on this matter with respect to the volunteer part of this request. It seems to me that, um, the volunteer exemption is there, because what we want to encourage is volunteer participation in political campaigns. That is of high value that we place on participation of the public in political activity in this country, and no distinction is made, whether that participation is from foreign individuals or individuals who are residents or citizens of the United States. So, the way that we are reading this particular AO is actually very consistent with what the law has been. I disagree with my fellow Commissioner Weintraub, that this is an extension. It is not an extension, it is clearly representative of what the law has provided in the past, and furthermore, I mean, I would say that the results of the AOs that are in conflict are almost nonsenseical, because what would happen in this circumstance is if someone were, as Si has indicated, wanting to provide this service to the committee, it would be of no value whatsoever unless the committee were able to use that. It would be meaningless and thus would prevent this volunteer activity. So, um, I have a number of feelings as well about the Elton John matter and the distinction between having, you know, one of the most highly sold singer, or whatever he does, you know, I'm not a pop culture person, I know he wears glasses, but, you know, it's okay to have him in a huge convention center, giving a free concert for a campaign, but it's not okay for somebody to provide some coding to Pack. It makes no sense whatsoever. Those distinctions make no sense. So, I will be voting yes on this, C, I believe it is. Yes?
>> Sorry, not to belabor the point, and I didn't vote on the Elton John MER, but it's out there, and I think it can be harmonized. I mean, we are specifically superseding at least one prior AO, so it's not entirely consistent with what the Commission has said in the past, but I just want to be clear that I think the coding is not a problem, because I think it's covered under the Internet SHECHL # exemption. The place where I disagree with my colleagues is to the extent that logos or trademarks or other intellectual property is being conveyed, and that, again, you know, if somebody's going to sell t-shirts or whatever, and maybe that won't happen, but that was part of the request, I think that's where the distinction lies, in my mind. People can, when they are employees, convey as part of their contractual arrangement with their employer, they can say, you know, if I convey intellectual property, you get the rights to it, but that's a contractual right that you engage in, it's not --
>> Not necessarily. You employ somebody, and the work-for-hire doctrine is the presumpative treatment of the work they perform while they're employed by you if the individual is an employee.
>> Well, thank you for the interruption, Commissioner Goodman. I don't usually interrupt you when you're speaking, but that, to the extent that there are particular intellectual property rights that are created, I think that's probably a matter of state by state analysis, as to whether automatically, you know, if you work for GE and you create something and it's patented, I think that may well be part of your employment contract, but I don't think that it is an automatic that you supersede all rights to any intellectual property that you create when you work for someone, but, um, that is a small part of this analysis. I do think that we are creating a new exemption here, and you know, we'll see where it goes, if, indeed, it goes anywhere. I guess on the issue of whether we want to encourage volunteer participation, it's an interesting question. Do we, yes, we place a very high value on volunteer participation in this country, do we place as high a value on foreign citizens participating in our election? I'm not sure. I'm not sure at all that we place quite as high a value on that, because I think a lot of people think American elections are for Americans to participate in, but that's fine. I'll stop now.
>> Any other comments? All right, all those in favor of the motion, please indicate by saying I. All those opposed? Okay, Madam Secretary, the vote is four to two, with Commissioners Walther and Weintraub voting no, and the motion passes. The next item on the agenda is item number three, draft notice of availability in rule-making petition reg 2014-9, federal contractors. Again, we have Nevins Stipanovik from OGC here to discuss the matter. Council?
>> Thank you, Madam Chair, and good morning, Commissioners, once again. There's a petition for a rule-making from public citizen, asking the Commission to amend its regulations regarding federal contractors. Agenda documents 15-15-A, 15-15-B, and 15-15-C are draft notices to the public that a petition is available for inspection and that the Commission seeks comment on the petition. Should the Commission approve a draft for publication in the federal register, we ask for authority to make technical and conforming amendments. I'll be happy to answer any questions you may have. Thank you.
>> Are there any questions of council? Hearing none, is there a motion? Yes, Commissioner Weintraub?
>> Just a brief comment. I want to thank the petitioner for putting this in front of us. It raises an issue that came up previously in an MER, and, um, and I appreciate the petition, and I just want to state, for the record, that I'm open-minded on this, and I'm interested in hearing on what the comments are, and I don't feel, I think in the rule-making context, we could do something different than we did in the MER, so I'll be interested to see what the comments are. I suppose I'll make one other sort of general comment about this and the next petition, as our faithful scribe, Mr. Doil, wrote, there was a little bit of a confusion as to whether or not we were going to accept e-mail comments, comments by e-mail, which is something that we have done in the past in any number of instances, so I'm glad we were able to straighten that out, and we will be accepting comments by e-mail, and I think that's appropriate. I got some feedback the last time we received comments, that some people found our comment platform to be a little bit cumbersome to manipulate, so anything that we can do to encourage more public comment and make it easier for them, particularly for the folks who are not, you know, the usual 12 lawyers in Washington that we know we can rely on, and we appreciate them, but I think that's a good thing.
>> Any other comments? Questions? Is there a motion? Thank you, Mr. Vice Chair.
>> Thank you, Madam Chair. With respect to rule-making petition reg 2014-09, relating to federal contractors and this draft notice of availability, I move approval of agenda document number 15-15-C.
>> Thank you, Mr. Vice Chair. Are there any comments? Questions about the motion? Hearing none, all those in favor, please indicate by saying I. Madam Secretary, the vote is unanimous. The next item is item number four, rule-making petition reg 2015-1, administrative finds and forms, draft notice of availability. We have Holly Radcliff, welcome, from OGC here to present the matter. Thank you.
>> Thank you, Madam Chair. Good morning, Commissioners. The Commission has received a petition for rule-making from seven campaign finance attorneys, asking the Commission to undertake a rule-making to expand the administrative finds program and to revise and update several Commission forms. Agenda document number 15-17-A is a draft notice to the public that the petition is available for inspection and that the Commission seeks comment on the petition. Should the Commission approve the draft for publication in the federal register, we ask for authority to make technical and conforming amendments. I'd be happy to answer any questions you may have. Thank you.
>> Are there questions for council? Comments? Commissioner Weintraub?
>> Thank you, Madam Chair. Again, I want to thank the petitioners for their petition. I think the expansion of the administrative finds program has been something that Congress, you know, put out there on our plate, and we haven't really picked it up since they did that, and I think it would be good for us to do so, if only because the administrative find program usually works fairly uncontraverseially, so anything that we can accomplish in a non-controversial fashion around here is probably a good thing. I think that was the motivation behind the petition, to try and find some areas that were maybe less controversial, and while I appreciate that the practitioners would like us to update our forms, I think there are, and it's a well taken request, this would be, really, the first, if the petition were to be successful and we were to do a rule-making, it would be the first rule that really addressed super packs since they came into existence five years ago. I think there are some very serious issues around super packs. They've become extremely influential and important in our elections. I read about them every day in the newspapers. In the last election, they were, I think, in most of the top Senate races, outside spending, actually exceeded candidate spending, so, um, super packs is a subset, actually, of a number of outside spending vehicles that have become increasingly and look to be continue to become increasingly influential in our elections, and I think it raises a lot of issues that we haven't grappled with yet, and that I think we really should grapple with in a rule-making, when people out there in the country who are not the usual 12 lawyers that are in the weeds on all these issues think about the issues related to super packs, I don't think they think the most burning issue is whether or not we have a check-off box on our forms to identify them. I think there are bigger fish to fry out there, and, um, and we really need to be taking those issues on.
>> Thank you. Commissioner Hunter?
>> Thank you, Madam Chair. I'm not sure if my colleague said this, but I don't specifically recall some of the conversations we had with the Office of General Council when we were talking about doing a rule-making on super packs a few years ago, but I think, I could be wrong, but I think the debate wasn't whether or not we needed to do a rule-making to update the form, I think the debate was whether or not we needed to submit the rules to Congress within a 60-day timeframe or something like that. I'd like to go back to our old, you know, documents and take a look at that, but I wasn't under the impression that we needed to do a rule-making to change these forms, and if that ends up being the case, I think that's something that we should probably, you know, discuss in the public, because I don't think that the people who submitted this petition for rule-making thought that either. Like you said, I think you said they were trying to submit some tasks to us that might be relatively easy to do, and I don't think anybody thinks that doing a rule-making on super packs falls into that category.
>> Not easy, but important.
>> Okay. Are there any other comments with regard to this matter? Is there a motion? Mr. Vice Chair?
>> Thank you, Madam Chair. With respect to rule-making petition reg 2015-01, the draft notice of availability relating to administrative finds and Commission forms, I move approval of agenda document number 15-17-A.
>> Thank you, Mr. Vice Chair. Is there any comment or questions relating to the motion? Hearing none, all those in favor of the motion, please indicate by saying I. Madam Secretary, the vote is unanimous. Okay, is Si still on the phone? No? I forgot to say goodbye, but I know we'll see him again, or hear from him again. Item number five is management and administrative matters, and Ms. Orrock, I assume you are here in that capacity. Are there any management or administrative matters the Commission needs to discuss today?
>> There are none, Chair.
>> Okay. Thank you very much. Appreciate it. The meeting then will stand adjourned, and we will reconveneÉ