This file contains archived live captions of the open meeting of the Federal Election Commission held on November 10, 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.



>> Chairperson: Good morning, everybody. Welcome. Thank you all for joining us today. The open meeting of the Federal Elections Commission for Tuesday, November 10th, 2015 will come to order, and I do want to apologize to everyone who's waiting for the late start, but we had some discussions that we had to complete prior to the meeting. So please -- we're sorry. 
There are some late submitted documents. Mr. Vice chair? 
>> Thank you, Madam chair. I move that we waive the rules on the timely submission of agenda documents in order to consider the following. Agenda documents 15-57C. 15-57D, 15-57E, 15-62A, 15-61-A. 15-60A, 15-63A and 15-57F. 
>> Chairperson: Okay. The vice chairman has so moved. All those in favor, please indicate by saying aye. Madam secretary, that matter passes unanimously. 
The first item, item number 1, is draft advisory opinion 2015-9, senate majority PAC and house majority PAC. Today we have Neven Stipanovic from OGC, and Amy Rothstein in the back there, here to discuss the matter. We also have, please come forward, thank you, even without a tie, you can come forward. 
>> I apologize. 
>> Chairperson: No problem. 
>> I have one in my office if you'd like one. That would be a true moment in bipartisanship. 
>> Chairperson: Right. Marc Elias, Jonathan Berkon and Rachel Jacobs, and these are requestor's counsel who are here. Mr. Stipanovic. 
>> Thank you. And good morning, commissioners. This advisory opinion request was held over from the last open session, and since then, the commission released several new draft advisory opinions labeled as agenda documents 15-57-C, D, E and F. The commission also received comments -- three comments since the last open session. Thank you. 
>> Chairperson: Thank you. All right. Where to start. Are there any questions for counsel, perhaps, or do we want to just begin the discussion? Commissioner Weintraub? 
>> Thank you, Madam chair. Not questions for counsel, but I did have, before we get into the nitty gritty of the individual answers, I did have a couple of sort of over-arching comments that I wanted to make. I want to say, first of all, that I have sympathy both for the requestor who has been expressing some frustration at the prospect that perhaps he won't get answers to his questions, and I think we're going to try. Probably won't be able to answer all of them. 
And also for those commentors who expressed frustration that, you know, drafts came out late, and they didn't feel that they had adequate time to comment. I think that what this emphasizes is that these are important issues that are in front of us, and as I have said before, I think we really should have addressed these issues long ago through rule making and that would have given everybody adequate time to comment. It would have given us the opportunity to have a hearing. I also suggested to my colleagues that perhaps this might be a good case to at least try out a proposal that the chair and I made earlier this year that we ought to invite people besides just the requestor to engage with us at meetings where we're discussing advisory opinions. I know there's at least three lawyers in the audience today from outside the building who are probably interested in this. And several people who commented in writing, you know, Mr. Spees commented, Mr. Backer commented. I suspect that they might have a different perspective than Mr. Elias and that our debate would be informed by having them here to talk to us, and I think it is unfortunate that nobody was interested in doing that. But I think it would have been helpful. And would have served the purpose that some of the commentors raised of getting more public engagement on these important issues. 
In the last week, I've heard one republican lawyer describe this agency as an epic failure publicly, and I've heard from another lawyer privately that his impression is that lawyers all over town are giving different advice to their clients, that, you know, some people are taking more aggressive stances towards the law and other people are taking more conservative approaches to the law. And I know that, from my experience as a lawyer and from what people continue to tell me, that one of the questions that clients ask is what's going to happen to me if I don't do what you're telling me, even when they do get good advice from their lawyers. I think that Mr. Elias has presented us with an opportunity, an opportunity to defy expectations and actually provide some meaningful guidance and perhaps set some boundaries, and make the rules clear to everybody so that everybody's playing from the same play book and every candidate is following the same set of rules. And I think that I wish that we would fully rise to the occasion. I think that we will probably partially rise to the occasion, answer some of the easier questions. 
But I wanted to also point out that even in areas where we may not end up agreeing, there are the seeds for perhaps later agreements. I was, to take one example, and I don't want to at this point go through every single of the 12 questions, but I noted that in Draft C, which some commissioners support, not me, in response to one of the questions, the answer says, an individual's act of participation in the formation and operation of a contemplated single candidate committee is the sole purpose of which is to support that individual's federal candidacy, or in the filming of video intended to be used to promote that individual's federal candidacy, could evidence the making of a decision to seek nomination for election or election to a federal office. 
Now, some of us, who support a different draft -- [Inaudible] -- definitely would, and other commissioners appear to think that it could. And the premise of several of the answers in Draft C appears to be that we are assuming for the purposes of this answer, they seem to think this was baked into the request, and I'm not sure that it actually was, that we know that this individual has not already decided to run for office, that this individual is still up in the air as to whether they are going to declare their candidacy, and several of the answers in Draft C or premised on that assumption. Which, as I said, I'm not sure that was intended to be baked into the question, but that seems to be the way the answer is written. But that actually gives me some hope that down the road, as we are dealing with individual fact patterns, that there could be grounds for consensus, because there seems to be more consensus that might be indicated in draft F, I guess, was the last draft we issued, that there is some consensus about what factors could be relevant. You know, perhaps we're not viewed as decisive in response to this question that's in front of us, but could be relevant in other circumstances. And I think that I would assume that when we're looking at these fact-specific analysis sis of who's a candidate and when they become a candidate, that these factors have got to be cumulative. So the questions were asked individually, what if the individual does this, does that trigger candidacy, and what if they do that, does that trigger candidacy? But if we were presented with a fact pattern where somebody did a lot of those things all together, I think that might be yet a different answer because there is a cumulative effect of a series of activities and conduct that an individual engages in that could make it clearer to perhaps even a majority of commissioners that somebody has made their decision and is, indeed, determined to run for office. 
So even to the extent that we were not -- I think we may not be able to answer the question as fully as I would hope today, at least not with a majority of commissioners behind it, behind every answer, I think that there is -- there are seeds for agreement. It doesn't mean it will happen, but I prefer to remain optimistic that we could, going forward, find some common ground on how to approach these problems. So that's just sort of my overall take. 
>> Chairperson: Thank you. Any other comments? Commissioner Hunter. 
>> Yes. I have a question for the requestor, but briefly just responding to some of what Commissioner Weintraub said. You know, I bet we cannot think of a moment in time since this agency was established where somewhere is there out there complaining that different lawyers are out there interpreting different things differently. I worked at the Republican National Committee three times. There were different issues, where you all one lawyer resays one thing, you call another, and he says another, he or she, and so I think that's a common refrain. Another is the rule that you referenced that you wanted to pass a few years ago, my recollection -- I could be wrong -- but my recollection is that it did noes address the questions that Mr. Elias is asking today so even if we had done that, I don't recall that there was anything in there about pre-candidacy and testing and the waters and some other things that are coming up now. So no matter what we do, you know, we're never going to be able to answer everything that creative lawyers who want to participate in the local process come up with, and that doesn't bother me. 
With respect to the request before us today, Mr. Elias, you point out in your comment that you may have some consensus on questions 11 and 12. Because both draft A and draft C answer those questions, and say that the conduct is okay. And I wanted to ask you if you have any comment on that. I'm not sure how that lines up. I know that I would be willing to support questions 11 and 12 in draft C and A. They're the same. So do you have any comments on those issues? 
>> Yeah. So at the risk of guessing where drafts came from, I am going -- I assume -- and by the way, I tweeted about this last night. So a number of you have undoubtedly interacted with me. You can -- the public can know that. That's fine. I've been very vocal about my view of this for anyone who's followed me on twitter, at least, which maybe is less vocal than I would like. But if I'm correct, Draft C, I assume, enjoys at least the support of one or more republican commissioners, and draft A originated, I assume, and became part of the public record because one or more Democratic commissioners supported it. 
I think that, therefore, there should be a basis for compromise on the total -- on the votes. On the merits, I want to say that in some respects, 11 and 12 were put in -- they are in some respects the -- they're very, very important functional questions that campaign finance lawyers need answered. They are also less -- it would seem that they play more closely to the statutory, regulatory and past guidance of the commission. I am not sure how you get to no on 11 without fundamentally undoing the guidance that this agency has given regarding agency. I just -- I just -- I have looked at it over the last week, and I just don't see how you get there. 
This commission told -- in a bipartisan vote, in fact it may have been 6-0 -- that a republican chief of staff for a sitting house member, okay, an employee of a house member, could raise soft money for a state party. 
And let us be honest. We can dress up and put all kinds of lipstick on the idea that state parties operate for a myriad of purposes. When you are the Republican party chair in Montana, they only have one house seat, and he was the chair of the party, and the chief of staff for that house member. So I'm not -- I think the commission got it right there, by the way, so this is not a criticism, but the idea that somehow the law evolved involving super PACs doesn't enjoy any statutory support, doesn't enjoy any regulatory support, and I am not sure what the commission is doing -- will have done if it unwinds what seems to me to be relatively well-settled guidance about wearing multiple hats. I came into this commission on behalf of Roy Reid and the Nevada Democratic Party in connection with Senator Harry Reid's campaign, and the FEC established the multiple hats theory. 
Again, it was not hidden from this commission that Senator Reid was a candidate for senate in cycle, and the Nevada Democratic party was going to be doing activity. That was going to be seen as directly benefiting the senate campaign. Again, consistent with the FEC's regulations around federal election activity and the allocation of funds and all. 
But to me, 11 is, in some sense, the easiest question I asked, because all it does is re-affirm a principle that the commission has now affirmed in any number of AOs, the Corsine AO it affirmed it. 
>> Chairperson: Which one was that? Sorry. 
>> The Corsine, where John Corsine was a U.S. Senator running for governor and the question was whether he could -- whether he or his staff could raise soft money for his gubernatorial campaign, not for the campaign itself, but for attendant party organizations and county groups which are not FEC committees, by the way, in New Jersey in most instances, and the FEC again trotted out multiple hats and said well, you know, John Corsine can't wear a multiple hat, but these other people around him, if they're doing it on behalf of the county party committee or on behalf of these local groups, they can wear multiple hats, so 11 to me, like I said, seems like it is just a logical -- a logical re-affirmance of where the commission has been. 
On 12, you know, I have scoured, and there are probably few issues that we have looked at as intensely as this question of what is an event. 
And the history of this event exception, as you know, is somewhat long and complicated because it began with an FEC rule that limited it solely to state parties. Then there was a lawsuit challenge, and then in a bipartisan moment, the commission unanimously extended it to all groups, not just state parties. In exchange for some other things about what could happen at the event. 
And so obviously that allowance extends to super PACs. I don't think that's an issue even in any answers to 12. So the question is what is an event. And we have looked at every possible place to find guidance from the FEC or other agencies that defines an event. And we've been unable to. So in the request, we made a point of not saying, okay, this is just going to be two people sitting in a room. They're going to walk in and hold an event. We lay out specifically what we think are reasonable criteria for an event, which is that there will be sent an invitation. The invitation will list the senate or house candidate as a special guest and contain proper disclaimers. It will include a date-certain and a time-certain when the event will be held. There will be a program for the event, including formal remarks. And they will not disseminate publicity for the event, or the -- the senate candidate or house candidate won't disseminate publicity for the event or otherwise extend invitations for the event. 
We are asking about something that is a genuine event. And we are simply asking whether there is -- whether numerocity, whether there is a threshold of numerocity for that. I think unquestionably if you issue invitations, have a date certain, issue disclaimers, have formal remarks, we're describing an event. And our only question is does number matter? And I think Draft A gets it right on the law, which is that there is nothing in the FEC's precedent. There is nothing in the statute. There is nothing in the legislative history. There is nothing in the regulatory history. I mean, we have looked at all of these, and I was eager to see if -- there is nothing that suggests that numerocity is a criteria. And again, it seems like that is a relatively easy place to draw a line. And I think for people who are worried about creep in this area, look at the other criteria we have lined up here. Look at the other things we have said we will do, and ask yourself, doesn't that -- isn't that really the safeguard for abuse? That you may or may not be concerned about. 
So to me, I think you're right, that Commissioner -- to pivot here, Commissioner Weintraub, I think you're right. The commission has an opportunity here. The commission has an opportunity to -- this is an audience full of skeptics that the FEC is going to grant anything that involve super PACs, and much of what is being -- is in Draft F is -- are answers that are saying that people can't do stuff. So in some sense, if you were to divide -- and I won't say I'm partisan -- if you were to divide between the more permissive and less permissive, the less permissive among you are getting something -- get something out of drafts -- out of Draft F, and it seems to me that a reasonable balance to that, or a reasonable accommodation to that is to add Draft A's answer or draft A and C's answer to 11 and 12 to be able to tell the public you agreed on six questions of 12 in one of the most hotly contested areas of the law would be a great message for the commission. I also think, by the way, 11 and 12 are rightly -- it has the benefit of also being the right answer. But I would encourage folks to -- the commissioners to, you know, to work towards finding a solution for 11 and 12. So that's a long answer. 
>> Chairperson: Commissioner Weintraub? 
>> Well, let me respond to that since neither Draft A or Draft C are my drafts and I don't think I'm disclosing any secret in saying that Draft A was the original draft that the staff gave us. That was their recommendation. 
>> The general counsel? 
>> The general counsel, yep. 
My draft, the one that I would support, is Draft E, so let me address 11 and 12 in Draft E. 
>> I apologize. I've got a lot of -- 
>> You got a lot of drafts. I know. 
>> I just want to be able to follow along. 
>> And as I tweeted at you last night, if you thought six was the maximum number of answers we could have come up with, six commissioners could have come up in response to 12 questions, you underestimate our creativity. 
>> I was asked this morning if the FEC has ever had more than six drafts, and I don't believe so. 
>> I don't know. I don't know. But you might know since you are a heavy user of our advisory opinion process. 
And let me just mention that I was recused from several, if not all, of the AOs that you cited to earlier. I know -- I don't know whether that makes it unanimous or not if somebody is recused, but everybody else agrees, but in any event, it wasn't with my participation. 
I think that with respect to the question 11, the agency question, I don't think that the FEC has ever squarely addressed the situation where somebody is an authorized agent and fundraiser for a candidate, and at the same time claims to switch hats and go out and raise money for that same candidate, for that very same candidate, for a group that is indisputably going to spend that money to benefit that candidate. And be raising hard money here and soft money there. And I'm not -- I'm not convinced that just in the real world that scenario works. I think that everybody will understand that the candidate's agent is, indeed, when they are raising funds to benefit that candidate, they are acting as that candidate's agent. 
You can agree with me or disagree with me on that, but I think factually that's the way people would see that situation and that is what underlies the answer to question 11. And, indeed, it's been one of my frustrations for quite a long time, that, you know, that fact pattern was not part of the majority PAC AO that you submitted, I think it was majority PAC and not common sense 10 in that iteration, asking about whether candidates and office holders could solicit hard money for super PACs, but nothing in that AO suggested that those super PACs were going to be spending that money on behalf of those same candidates. So I think it was an open question there and remains an open question, and I would answer it the other way. Come on, Mr. Elias, you had a long time to talk about your views of 11 and 12. 
On 12, I actually feel even stronger. The commission went down that road of revising its solicitation in response to BCRA and initially established state party events and I think we should have stuck with that distinction. Because there's that special carve-out in the statute that says that candidates can be featured guests at state party events and we know where that came from. That came from the desire of -- [phone ringing] -- oh, heavens. Sorry about that. 
That came from the desire of members of congress not to be excluded from their Lincoln Day or Jefferson Jackson Day events. They wanted to be able to go back to their home state and mingle with the grassroots activists and show up at these events which are almost always crowd events and wave to the crowd and see and be seen, and make comments and address them and they didn't want to be excluded from that, regardless of whether they were soft money that was going to be raised in that event. But that whole scenario, even if it wasn't explicitly laid out in the statute or the regulations, suggest a group event, a crowd event. 
The kinds of concerns that animate contribution limits, and that the supreme court has recognized as far back as the Buckley Decision, go to the inherent risk -- that's what the supreme court said -- there's an inherent risk of corruption when members are soliciting unlimited amounts of money, when candidates and office holders are soliciting unlimited amounts of money, and that goes to their agents as well. And I think that is nowhere more present than in a small, back-room meeting with, you know, a couple of people there, and this day and age, it could be a billionaire donor who has the resources to put millions of dollars behind a super PAC, and a candidate or office holder, and then one other person, perhaps, who would be the representative of the super PAC. So, you know, I'm trying to envision how this would even work in such a small group setting. How does one make formal remarks when there are three people in the room? Does that mean I stand up and say, now, Mr. Elias, I'm going to make my formal remarks to you? 
>> You have to get an invitation first. 
>> I have to get an invitation first. That's true. The regulations that we put out talked about things like publicity for the event and putting placards at the door, and we're just sort of infused with this notion that this was a group event. And I think that we run a very big risk if we say that it's okay to, in settings of two or three or four people, to pretend that this is a fundraising event as opposed to a private meeting with a prospective very large donor. 
Now, I hear your concern that it would be nice to have a bright line rule so that you would know, and I don't know that we can pick a number in the context of an advisory opinion, but I will offer you an analogy. From an area of law that you and I are both well familiar with. 
In another context, where members of congress were concerned about improper influence and private dinners in the devising of the gift rules in the house and the senate, they devised an exception for what they called widely attended events, and the floor on that is 25 people. So there is at least another context in which, you know, if you want to look for an analogy somewhere in the world where members of congress have deemed an event to be something that has at least 25 bodies in the room, or at least a reasonable expectation of 25 bodies in the room. And, you know, I can't tell you right now that we're just going to adopt that rule because I don't think we can do that in the advisory opinion context, but I do think that that is a place that one could look to for an analogy, perhaps some sort of unofficial safe harbor of, you know, that at least has been recognized by members of congress as event worthy to have 25 people in the room. And I think that when you have 25 people in the room, it is a very different feel, and much more event-like than if you have two or three or four people in the room. So I know you're not going to agree with me on that, but -- and as I said, I think we could do a rule-making and maybe if we did do a rule-making, we would come up with a different number. Maybe we would say 20 people. Maybe, you know, people would come in and say let us tell you how fundraising events work and how common it is to have ten people in the room at a real fundraising event, and I might be persuaded by that, but, you know, outside of the rule-making context, I think the best I can do is to try to stay true to the animating concerns behind the anti-corruption principles that underlie the act, and to offer you the best analogy that I could come up with. 
>> Chairperson: Mr. Elias. 
>> If I can just respond to a couple things. I realize I'm not going to convince you, but I just want the record to be clear. 
The first is with respect to the agency, you said that it will look like that they are fundraising for the candidate if they have multiple hats. The FEC considered apparent authority and rejected it. And this is why I keep speaking to this side of the dais. If you are saying the agency rules don't apply as they are written, don't assume that people are going to mean that this means that we go more restrictive, because if the agency rules don't apply, if we go to what does it look like, and it's not -- it's no longer actual authority, it's -- in your mind it's apparent authority, I am sure in their minds it's express authority. And then we're back having that debate again. 
And so I don't see how, under the rules, you get to -- under the rules as they are -- you get to a no on 11. I understand under apparent authority how you get there, but apparent authority was rejected by this commission, along with express authority. We wound up in this middle place. 
>> But there's still implied authority. 
>> Yes. But not -- but you said what -- what it will look like, and that's apparent authority. And that's what was rejected by the commission, number one. 
Number two is we are not talking about candidates doing this. Candidates are always agents of themselves. I actually sought an advisory opinion asking whether John Corsine -- same one -- whether John Corsine could in some cases wear multiple hats and not be a U.S. senate. Could we wear a multiple hat and I was told no, that the candidate is always the candidate. So we're not talking about circumstances in which a senate candidate is going to say that they themselves could take advantage of multiple hats. We're talking about the myriad of circumstances, which is what the FEC dealt with, where you hold a fundraiser in your house for a congressional candidate, and at the same time, you are, unbeknownst to the candidate, or maybe beknownst to the candidate, but likely unbeknownst to the candidate, also raising money for a super PAC. 
Honestly, that happens probably thousands of times a day, or thousands of times -- whether good or bad, thousands of times a month. And I frankly simply don't see the basis to argue that that -- that the chief of staff for the congressman who's sitting in his official office and doing his business 24/7 as the chief of staff somehow wears two hats and yet the lay fundraiser who is, you know, sometimes raising money for a super PAC, sometimes -- may hold one event or solicit three checks from their friends for the campaign, somehow can't wear multiple hats. I think 11 just flat-out wrong on the law. I think it would be a departure from existing FEC precedent. I guess the best I could say is that it would be such a stark departure from existing FEC precedent that unless it commanded four votes, we would just reverse back to existing FEC precedent, which would be terrible. It would be a bad thing for the commission, frankly, for a commission that's trying to establish itself as rule-bound as opposed to just I feel this way and I feel that way, and then let's deadlock because we don't get anything done. 
So I find 11 to just be inscrutible on how 11 could be no. 
On 12, you say -- I understand -- I wanted again -- I realize I'm not going to persuade you, but two things. Number one, you said soliciting. The theory of the event, the exception is that the candidate is not soliciting so there is no solicitation by the candidate. So we don't have to worry about -- the whole reason why congress created the exemption for a featured guest was that the candidate was attending speaking or as a future guest, but was not soliciting. So we actually don't have to worry about the corruption rationale that you lay out because, in fact, congress has told us that where they're just attending, being the featured guest, the fact that there may be a $5 million price tag, right, so the Virginia Republican Party holds an event, a JJ dinner, or your hypothetical, 25 people, and a federal candidate -- Eric Cantor left. I'm not sure who to pick. 
>> Bob. 
>> Bob is the featured guest at that event, the reason why -- and it says on the invitation, ticket price $5 million, corporate money only. And please have interest before the U.S. Congress, okay, that's permissionible under the campaign finance laws precisely because the theory of the statute and the courts, which, as you know, haven't played a role in this, and the agency is that in that instance, Bob Goodlight is not soliciting. He's just attending the event. And so we have said that we would abide by the rules that the candidates would not make themselves a solicitation or make a federal solicitation. So I think that it's not true that this is a solicitation. I think it's important to keep that -- again, just for purposes of making the record, because who knows where we wind up next, that if your position is that's a solicitation, I think that's a very different thing than what the statute says. Finally, we actually looked at this. The fact is congress -- first of all, there's always an inherent question of whether you can take a rule -- a ethical rule of congress and say that it provides analogous guidance to a federal statute. But interestingly, congress inserted the words "Widely attended," whereas here, they did not. So if you assume that congress acts purposefully in the language they use, the fact that they did not require these events to be widely attended, I think is actually quite telling because congress had proved itself able to where it wanted to, include some importance of numerocity, congress knew how to do that and, in fact, had done it with its own rules. Here, congress chose not to put numerocity into the exception. Which they could have. They could have said look, this is an exception to go to big events and they could have very well have used language that empowered the agency to use numerocity as a criteria, but they didn't. So I just wanted to respond to those legal points. But I understand, commissioner, you are not likely to vote for 11 and 12. 
>> Chairperson: Commissioner Walther. 
>> I have questions you referred general counsel to. I understand that there's not any number, and you seem to be -- it seems to be very important to you, the number. 
>> Or that there is not a number. 
>> Or that there is not a number. 
>> A simple answer to the question would be no -- 
>> In the past, you have not felt that there was a magic number or the other. I have not seen this issue come before us as a big issue before. Where we tied everything to a number, and it seems to me there could be a lot of other factors. It's who's there as opposed to who isn't there. 
>> Right. 
>> And how they got there and who got the invitation, so there's a bunch of ways that you can approach a gathering, call it, before we call it an event, but, you know, you'll get the State of Nevada, for example, and we don't have big events except for in two potential cities, and so I'm not sure that it makes sense if somebody -- you had 25 as your rule and 24 show up, then what do you do. So to me I'm wondering why you're asking that now. 
>> Well, so Commissioner, first of all, if there is a compromise to be had here, I would take as an answer to number 12, just the word, "No." Okay? Because the question we asked is there a minimum number of expected attendees? Is there a minimum number of expected attendees? 
We only get to that -- and I in some ways wish I hadn't done the 2, 3, 4 in the request because now everyone is latched on to is why are you asking for 2. What I'm really asking is numerocity, is there a minimum number? Is numerocity itself a threshold that we have to clear. So if you all can just agree on one word, no, I don't need any other reason. I think the general counsel, now that I know it's your draft, I think your analysis is spot-on, but if you don't want to adopt any law on this, just say no, numerocity doesn't matter and in Utah it will be different than -- you know, because of the other facts and circumstances. 
>> Utah -- it's Nevada here. 
>> The -- to your question of why ask the question. I have, you know, despite whatever lawyer said whatever they said that you quoted, I believe that what the FEC does is important. And what you say matters. And where I am asked advice by a client, I try to cabin the advice the best I can to what the law is, what the regulations are, what other guidance is. Yes, I offer judgment about how I think the law is likely to be interpreted, but this question has caused uncertainty for these two super PACs. They are in a world in which they are doing more and more fundraising. They are doing more and more events, and the question of do they have to worry, do they have to cancel an event if a certain number of people don't show up, do they have to reschedule things if -- do they have to take attendance? Is at issue, and it's an issue for them because the world of super PAC fundraising, whether -- again, whether you invent it or whether you celebrate it, the world of super PAC fundraising is growing and the question of numerocity is a live one. So, you know, if you can -- perhaps Commissioner Weintraub, I can convince you to just say no and then you can live to fight another day on the facts that come before you, but if we can all agree that there is not a threshold number then the answer to question 12 is just no. 
>> Chairperson: Commissioner Weintraub. 
>> I'll just say briefly the fact that this is a live question, that people are not confident that the answer is no, despite your eloquent arguments for why the answer should be no, suggests to me that it's not all that clear that the answer has to be no. 
>> So Commissioner, I've tried to always be clear. I ask questions of the FEC. I -- people say why did you ask this question. I ask the question because I need an answer, right, I -- if I knew the answer entirely, it is rare, there have been a handful of times where I've come to the agency because I have a client that just, you know, typically in the corporate sector, where they just want that piece of paper, but I usually come because I am -- I think I know the answer. I have to say I have become more bullish that I am right hearing that the general council drafted A. Because honestly, the general council carries no partisan agenda and certainly has never been accused in this agency going back to many general councils before them of being a deregulatory force in the law. 
So if the general council's office says I'm right on 11 and 12, I actually sleep pretty well at night thinking that the general counsel and hopefully a majority of the commission, but certainly a substantial -- I hope a substantial number of commissioners agree with me. 
>> Chairperson: No other comments, questions? 
>> I've got a question for my colleagues. 
>> Chairperson: Commissioner Weintraub. 
>> This is just a point of confusion, actually, and it is on -- hang on. I gotta find the right question. 
On Draft C, oh, yes. So Draft C on page 16 says when an individual becomes a candidate, payments for testing the waters activities may be made only with funds permissible under the act. If that is the only time when the testing the waters regulations apply, then they never apply. Sorry. Page 16. Page 16, Draft C, top paragraph. The carry-over paragraph from the preceding page. 
>> I'm sorry. What page? 
>> Page 16. 1-6. This is in response to whether requestors and the single candidate committees can work with individuals to establish separate 527 organizations to pay for testing the waters activities with soft money, despite the fact that the regulations say that you can't pay for testing the waters activities with soft money, and the answer that, in Draft C, is yes, but if the candidates decide to become candidates, use of such money would violate regulations, this is because when an individual becomes a candidate, payments for testing the waters activities may be made only with funds permissible under the act. And the problem that I have with that answer is that when an individual becomes a candidate, they're no longer testing the waters, there are no more testing the waters activities to pay for. So if that is the only time when the testing the waters activity regulation applies after somebody becomes a candidate, then it never applies. You're writing the regulation out of the book. 
>> I don't think that's -- if there's some ambiguity on that front, that's not what was intended. I viewed this question as being a pretty straightforward question, and it comes down to -- I think it could have even been asked in a different way. I'm not -- 
>> I apologize. 
>> No. No. I'm not criticizing at all because I think you had a very specific question in mind, but I think there's even the larger issue of can you finance testing the waters activities with soft money if you later become a candidate. Is that a problem, and I think that is. I mean, under our regulations, it is very clear that if you -- that testing the waters activities need to be, for people who become candidates, those need to be financed with amounts that are subject to the, you know, source restrictions and amount limitations. 
And now we've had some disagreement about what happens with an individual who was testing the waters and doesn't become a candidate. And we may have some disagreement on that front, but on the question of can someone use soft money, whether through a 527, a 501C4, a super PAC, what have you, if you are financing those testing the waters activities with money that's outside the amount limitations and source restrictions then I do think that violates the law. 
So I hope that clarifies. 
>> That does, and I appreciate it. 
>> Okay. 
>> So if that's the case, is there not another question that we can at least have partial agreement on, even if not on the question of what happens if they don't become a candidate, but it sounds like there's agreement -- sorry to play it like this, but -- 
>> Commissioner Goodman. 
>> Let me just as to what the vice chair said. 11 CFR section 100.72, Subsection (A), states that funds received solely for the purpose of determining whether an individual should become a candidate are not contributions. 
Now, then you go down halfway through that paragraph and it stays, if the individual subsequently becomes a candidate, the funds received are contributions. It's the becoming a candidate that triggers them into becoming contributions. 
>> Right. The funds that were already received, though. When they were testing the waters. It does try to capture the notion. 
>> That's what I thought. 
>> Okay. 
>> Mr. Vice chair. 
>> Thank you, Madam chair. Mr. Elias proposed whether or not we might be able to answer another question. Can we just take a quick two minutes? I just want to consult -- if you don't mind -- 
>> I think I proposed you had three questions. 
>> Well -- just while you were at the table you added an additional one, and we had a discussion about 11 and 12 -- 
>> Chairperson: And so you're asking for a response to a question that you did not ask. 
>> Well, I think that the vice chair was being nicer to me than that and saying that we asked it, but we may have been -- no? 
>> No. No. I'm not saying -- I don't criticize the question at all. I was just saying that he asked about a specific scenario, and I was just saying that I think you could answer the scenario even if it were -- if you were to substitute a 501C4, or 527, so I don't criticize the question at all on this, I was just asking the question at a higher level of generality. 
>> Chairperson: Okay. Let's take a couple of minutes for conversation. 
[Recess]. 
>> Chairperson: The record and the vice chair has an amendment to draft to add. 
>> Thank you, Madam chair. Let me, first of all, read it just so that you have a chance to hear it before we actually vote on it. It's kind of in chicken scratch here, so if you needed me to show it to you -- but the answer to the question, which would be question 4 -- 
>> Is there a draft I can work off of? 
>> Oh, yes. Well, let's just go to -- 
>> If you would twitter that, maybe it would work. 
>> It's true. If you all were on twitter, you would get the same annoying tweets at you that they get. 
>> So on Draft F, what is it, on page 6, lines 1 and 2. So that's the question that we'll be answering. 
And so the proposed answer -- why don't you grab that. The proposed answer would be if an individual becomes a candidate, payments that were made for any testing the waters activities must have been made with, quote, funds permissible under the act, end quote, and a citation to 11-CFR sections 1.72-A, 100.131-A. 
The next sentence would be, thus, the proposed organizations, possessive, use of funds raised outside of the act's limitations and prohibitions to pay for individuals testing the waters activities would violate commission regulations if those individuals decide to become candidates. 
Then a new paragraph would be the commission could not agree whether a violation of the act would occur if the individuals never decide to become a candidate. 
>> That makes sense. 
>> Okay. Madam secretary, should I read that again, or if I share a copy of that, would that be sufficient? 
>> That should be sufficient, and I've got it on tape. I will go back and check it. But this is the answer -- proposed answer to question 4? 
>> To question 4, which I imagine we'll insert on page 7, after legal analysis and conclusions and before question 5. 
>> Okay. Thank you. 
>> And so I would make a motion that Draft F, which is agenda document 15-57-F be amended with the language that I just went through. 
>> Chairperson: Okay. Commissioner -- yeah, he'll -- go ahead. Go ahead. You go first. 
>> I appreciate that. I'm really glad that I asked the question for clarification, because it's -- as I said at the beginning, I think that there are glimmers in here that there's more agreement than might at first meet the eye. You know, this issue of whether somebody who never becomes a candidate must have conducted their testing the waters activities with hard money is one in which we have disagreed on in the past. You know, that's open. It actually concerns somebody who did not become a candidate in 2012 but did become a candidate this year, Mr. Trump. So there are, you know, statements and public reports on that. And I acknowledge -- while I believe that the testing the waters regulations apply regardless of whether somebody ultimately becomes a candidate or not, I recognize we're never going to reach agreement on that and I appreciate the effort to find the part of this that we actually do agree on, and I'm pleased to support the amendment. 
>> Did you have a comment? 
>> I was just going to say in practical terms it answers the question, we were -- we were not so much focused on people who don't. Our PACs are going to be involved with people who -- we're worried what happens if they become a candidate. 
>> Not what happens if they don't. 
>> Are you working with people that you know have decided to become candidates? 
>> No. 
>> That's a different question, though. 
>> Chairperson: Commissioner Hunter? 
>> Can we take a five-minute break? 
>> Chairperson: Yes. We want to take a minute. 
[Recess]. 
>> Chairperson: This motion, the motion that's on the table, is for clarification to amend Draft F. And then after this, we can go through and either discuss or vote on other drafts, if that's amenable with everybody. 
Okay. Mr. Vice Chair made a motion. All those in favor please indicate by saying aye. Okay. Madam secretary, that motion passes unanimously. 
Are there any other motions or any discussion about any other matters? Commissioner Hunter? 
>> Thank you, Madam chair. With respect, going back now to question 11, this is more directed at my colleagues. I'm not sure how many of them support the answer in Draft E on question 11. I know commissioner Wine /TKRAUB does so maybe I'm directing this question to her and it's similar to the one we talked about in the hallway yesterday, which is your answer -- the answer is unclear er to me with respect to how far does the prohibition, I guess we could call it, go, with respect to an agent who's raising money for a candidate. When can they not change hats now, which has been pointed out is permissible under our current regulations and advisory opinions under this new theory of the law. Is it only if there's a single candidate committee that was established by the same candidate, or is it as suggested on page 27 of draft E, line 11, if the candidate's agent would be soliciting funds for an organization that makes independent expenditures in support of the candidate. 
So if that's the case, that, as I said to you yesterday, is very broad, and somebody who's raising money for a federal candidate may not now be able to go raise money for the Sierra Club, because the Sierra Club may run an independent expenditure on behalf of that same federal candidate, and so would you have to, you know, go to these other organizations and say, gee, I can't raise money for you because I raised money for candidate so and so and you may not run, an independent expenditure. It's just unclear to me how far this goes, which is an additional problem. 
>> Chairperson: Commissioner Weintraub. 
>> I have thought about the question that you asked me in the hallway yesterday and I went back and looked at it and I think that my answer is that I propose that we answer the question that was asked, which was about a single candidate super PAC supporting the same candidate, or majority PAC, which will, I'm quite sure, have targeted races where they identify candidates that they are going to support. So it won't actually be too difficult to figure out whether they are supporting that candidate or not. 
>> And would your answer be the same for both of those? Because the majority PAC raises money for a variety of different candidates, and also would participate, I guess, under this hypothetical question, would participate in raising money for these other super PACs. Does that make sense? 
>> No. I think I lost you. 
>> Okay. Is your answer the same for both the super PAC and majority PAC? 
>> Yes. 
>> Why? 
>> Because, as I said, majority PAC would be supporting the same candidate that the -- under this fact pattern that the fundraiser is an authorized fundraiser for. 
>> But majority PAC is not a single candidate super PAC. 
>> I understand that. But your question was would I extend it to majority PAC and the answer is yes. 
>> Okay. So a fundraiser who's raising money for Hillary Clinton may not raise money for a majority PAC. 
>> Actually, I'm not sure -- oh, wait, no. Sorry. For senator -- for candidate -- a candidate for senate, cannot raise money for majority PAC. 
>> If majority PAC is going to be spending money for that person, yes. 
>> So they should call first and ask majority PAC. 
>> I suspect it will be public information. It won't be hard to figure out. 
>> Whether majority PAC is working with a single candidate super PAC and what the transfer of funds will be between them will not be typically public. 
>> No. I meant just whether majority PAC would be spending on behalf of identified candidates. 
>> So how about making the hypo maybe a little bit more -- 
>> But I'll tell you what, since we're plainly not going to agree on that, could we agree on the single candidate super PAC part? 
>> No. 
>> Well, then this -- 
>> But with respect to majority PAC, assume that -- we'll talk about somebody who's already declared, which may or may not be part of the question, but Maggie Hasan in New Hampshire. So she is a candidate, and majority PAC may or may not run an ad for her in her campaign. I don't know if they already have. But if someone's raising money for her and they then want to go raise money for majority PAC, they should call majority PAC and say are you going to be running any IEs for her? And if so, then I can't raise money for majority PAC? 
>> Well, as I said, I don't think it's really going to be that hard to figure out. I think there are going to be targeted races and everybody's going to know who majority PAC is supporting in those races, so I don't -- 
>> So if they're targeted, just check on the Web site, maybe look at political report and see if it's a targeted race and if it's a targeted race, then they can't raise money for majority PAC? 
>> I don't really understand what the point of your question is. You're not going to agree with me. I have expressed my point of view. You're not going to agree with me no matter what I say, so, you know, when I asked, it actually resulted in further agreement so that was good, but -- 
>> Maybe not I'm trying to get your vote. Maybe I'm not trying to get your vote. 
>> So what's the point? 
>> Because I'm trying to get somebody else's vote. So what about -- 
>> Well, why don't you talk to that person then. 
>> I have a question. Commissioner Weintraub, I suspect that Mr. Simon would view it as a violation of the coordination rules if we had the conversation that you anticipate we'd have to have. Right? If the donors who -- 
>> I never said anything about a conversation! 
>> Well, but if the donor -- if the donor needs -- if the fundraiser needs to inquire in some form or fashion or find out, they're not going to just say well, I read it in the newspaper or I assume it's true because they're going to face liability, all right? They're going to feel like they need to get an answer. If I can't be an agent for both, are they doing that stuff? And I suspect that Mr. Simon would say -- and I don't mean to speak for him -- and I suspect some of you on this side of the table would say that if you had donors who were calling up super PACs and saying I'm an agent for a candidate and we want to know -- I need to know are you going to be running ads in this race, that you would frown on that under the coordination rule so I just want to make sure you are harmonizing. 
>> And I have never suggested and it doesn't say in Draft E that anybody would have to call up majority PAC and ask them who they're supporting. 
>> So if they don't know, could they proceed? So if they didn't happen to read the Web site that you think they're going to read, could you do it? 
>> I think if there's a -- trying to think back to my previous days as a lawyer in other areas of the law. I think there's a concept out there about what one could, you know, reasonably find out. You know, if it's on your Web site, here are majority PACs, you know, targeted races that we're going to be supporting, then I might be skeptical if the person came in and said they didn't know. But if it is actually not on your Web site, and it's not easy to find out, yeah, I think somebody could say no. 
>> I have to say Commissioner Weintraub and I understand your position, you're not going to vote for this, but as someone who counsels clients, and I look at Mr. Patellis, who I first met in the criminal division, it is cold comfort what you're /-FRG. It is not law, it is not statute, it's not regs. I hope maybe they check the Web site and if they don't check the Web site, they're probably okay. I'm dealing with folks down the street who have badges and guns who have announced campaign finance as a priority, so with all due respect, I need something a little bit more concrete from the agency, which is why I'm here. If the answer is there's no dual agency and you're repealing two hats, then just say it. If you don't get four votes for it, quite frankly, we're going to live in the world that the agency has already announced, but maybe they find it on our Web site, maybe they don't find it on our Web site, unless you tell me the criminal division is going to take your position, it is absolutely nothing that you are offering us. Of everything that is nothing we are being offered. 
>> My view is not going to get four votes, so you don't have to worry about it, Mr. Elias. And I'm certainly not sending anybody with guns after you. 
>> Chairperson: Are there other questions, comments? Commissioner Walther. 
>> Can I ask a couple questions. You know, I generally have been supporting Draft A and I give a lot of creedance to the advice we get from general counsel on these issues, so I kind of start from there, but my concern is with these single candidate super PACs, how that can realistically be expected to be independent if a person who's an agent for the candidate is also raising money for that super PAC. I'm a little bit -- I mean, I see the -- we already have an AO that seems to be in place with respect to whether they can raise money for another entity. That was some time ago, so it's not like we can't wear two hats, it's just that there's a closer relationship here. And, I mean, could you address that? Could there be some mitigating language which would say consistent with -- see, an agent is not really necessarily got a sim fiduciary duty as a fiduciary. An agent is an agent. And so sometimes the issues of disclosure are not there. So I'm just wondering, can you suggest any language in connection with a super PAC that might -- 
>> So I wonder if one way to tackle -- 
>> -- reduce that concern. 
>> So I wonder if one way to tackle this is to note in the answer to the question that none of this alleviates the coordination -- the anti-coordination obligations, that this -- that they can do this, but that they need to be mindful that they need to still abide by 109.21, 109.29 -- 21. Right? 
>> 21. 
>> 21. Which is one way, Commissioner, that you address the question of how do we make sure that this doesn't become a issue of coordination. We can simply reference the coordination rules, and in the AO and say nothing in this opinion, you know, is -- undermines that, or alleviates the responsibility under the coordination rules. I don't know if that -- I'm looking for a solution, so I'm open -- 
>> I understand. So am I, and I was thinking of something along that line. I wasn't thinking of tagging it with a reg necessarily, but that's a possibility. Or some language. But, you know, in theory, we're already there in a lot of respects. 
>> We are. We are, commissioner, and it's like the general counsel's office so neatly and well put their analysis here, because they really just sailed behind the existing law. 
>> I understand that. And, you know, the other thing I would say, commissioner, is that the line between single candidate super PACs and not single-candidate super PACs is also a little blurry. And I realize we're partially responsible for that, but, you know, if senate majority PAC plays in five senate races, you know, is that -- it's not single candidate, but it's five, you know, what if towards the end, they are only playing in two separate races because those are the two senate races that most need the money. 
So I think that this is really a place where the commission would do well to follow existing precedent, if you want to heighten the awareness of the coordination rules, that they are uniquely implicated by these kinds of -- or not uniquely, they are -- there is a heightened concern about that, then I think that that would be completely appropriate from my standpoint. 
But I would really caution against -- it would be a bad thing for the agency and for the regulated community if we -- if there is doubt cast on whether the FEC is still following its agency rules, which it did not change before Citizens United, didn't change after Citizens United. Citizens United didn't say anything about. 
>> So what if the person who raises money is raising money for the candidate and just instinctively knows that there's some taboos that the candidate does not want to address, or has a particular point of view, or has a particular vulnerability, or something really relevant to the -- then takes a position as a fundraiser for the single candidate PAC, and could injure the single candidate PAC if they did not know this. 
>> So, look, that's a concern now, whether it's a single candidate pack or not a single candidate PAC. 
>> I gather that, but on the other hand -- 
>> Coordination. That would pose a direct issue under the coordination rules and probably violate the coordination rules. 
>> I think that, too, but a that's not so much even coordination, it's just a matter of coordination implies to me that you are -- there's two that are agreeing on a course of conduct, where here this would be -- if somebody would have a fiduciary obligation to the candidate to keep themselves confidential. We can't raise that issue, or here's my weakness, or something along that line. And then they go over to the single candidate super PAC and that issue arises in some way, and puts the person, the fundraiser, in a difficult spot as to whether to disclose his or her knowledge about that particular fact. Would they disqualify themselves? Would they -- 
>> I think they would have to -- 
>> Would they plunder ahead? 
>> So I think legally they would have to disqualify themselves under the coordination rules. Otherwise you would have a sharing of non-public material information regarding the projects, plans, activities or needs of -- 
>> I like the way you phrase that, so it may go down into history. 
>> Yeah, but that's the -- that's 109.21. I think more realistically, what this is getting at, commissioner, is, you know, Joe Jones is a big supporter of congressman Goodlat and he hosts a fundraiser at his house. He doesn't know anything about Congressman Goodlat's campaign. He's just raising money for him. He's a bundler for him, he's raising money for him, so because he's a bundler or holding a fundraising event, he is an agent. And at the same time he's doing that, he gets called by someone from the super PAC, from a super PAC, and says hey, could you raise money -- can you raise money for us? And he calls two or three of his friends and says hey, you ought to get into the super PAC because at this point, the person who's done it is not -- is not -- doesn't know anything about the projects, plans, activities or needs of the campaign, nor of the super PAC, nor, by the way, dids the super PAC care what the person thinks the super PAC ought to do. It's just a question of whether or not they can do that, and to Commissioner Hunter's point, if the case is a majority PAC, which is what perked my ears and I apologize for my tone, but what perked my ears is this becomes actually totally unworkable for multi-candidate super PACs, because senate majority PACs can have an agent who's raising money for senate majority PAC, who doesn't care where the money is going but now they've gotta worry whether that person is also holding a fundraising event for a U.S. senator who's in cycle. I mean, and that's just, honestly, that's just completely unworkable, and the idea that they're going to sort that out by looking at the Web site and trying to figure out which races they're supporting, you know, like I said, you know, and I'll say it more calmly, you know, we are told that the Department of Justice is looking at coordination issues. I am told that. You're not going to confirm or deny that. 
And, you know, I think having, you know, they went after someone in, what, New Jersey or Virginia? 
>> Virginia. 
>> Virginia and the idea that we can't have a clear rule, that -- there's always going to be some facts and circumstances, but the idea that we need to tell donors it's incumbent upon them to sort out the other relationships that these super PACs have with one another. I mean, I think I read like there's three super PACs supporting Senator Cruz and then someone told me this morning there are another actually four. Like how is that donor supposed to know what the connection is between various outside groups. 
>> Well, I think -- you know, the first example you gave I can live with because I understand that to be fairly clear to the law right now, but here, somebody has three or four people that raise -- who have their own super PACs, I don't know what you do at that point, but if you have one donor -- I mean, one person raising money, that -- I'm aassuming the closer situation where the person who's raising money is close to the candidate, not because it's -- like I say, I'm not too up tight about the professional fundraiser who's just -- you know, he's raising money, or she is, and it's the people that raise money and have a -- and haven't otherwise sufficiently personal or professional relationship. So you're really into the candidate's strengths, weaknesses, thoughts, taboos, who you can call, who you can't, type thing. 
>> Look, all of this gets to the question whether they are actually acting as an agent for the candidate, which would be a problem, a legal problem. Or whether they are coordinating, which would be a problem. And I think we can emphasize both of those in the draft. I think the general counsel draft does lay that out but I think it can be pointed out more clearly, but to your point of what you have said is appropriate and legal, which was my hypothetical, and then the commercial fundraiser hypothetical would be illegal under the draft -- the alternative that's being offered by, I don't know Commissioner Weintraub whether you're offering the draft or just supporting the draft. So in that draft. So just to be clear, you're kind of in between two possibilities. And I would suggest that a draft that suggests that is professional fundraiser is illegal and the situation I posit of somebody raising a fundraiser here or holding a fundraiser there is legal. I think it's A much more common, and much more likely scenario, but the second is it would be incredibly disruptive, and would not be consistent with existing FEC precedent that people currently rely on. 
So like I said I think there's a way to highlight that it has to genuinely be not on behalf of the candidate, which is, you know, the agency law. It has -- they have to be acting on behalf of the super PAC. And then the second is that, you know, they can't violate 109.21 I think is the way to tackle what you're getting at. I don't think it's to vote for the alternative that would ban the other situations. 
>> I'm not suggesting one way or the other, I'm just trying to see how you address that problem when you -- when these two automatically, in theory, going down the same road without any line drawn between the two lines of traffic. 
>> Yeah. 
>> Chairperson: Commissioner Weintraub. 
>> Just a point of clarification. I think this is just a little bit of imprecision, but you were talking about how is a donor supposed to know, what's a donor supposed to -- we're not talking about donors. We're talking about fundraisers. 
>> I'm sorry. The lay fundraiser. 
>> So I just wanted that to be clear. 
>> No, no. That's fair. The lay fundraiser. Yeah. 
>> Chairperson: Commissioner Hunter. 
>> I think that's a helpful suggestion and I would be willing to amend the answer to question 11 to add the coordination prohibitions of 109.21. I think that's -- if that helps get to four or five votes, I'm happy to do that. 
>> I'm willing to consider that. 
>> Chairperson: Mr. Vice chair. 
>> Thank you, Madam chair. Just looking at -- I'm looking at Draft C. But I guess we could look at either Draft C or Draft A which I think are the same, except for one footnote. But on Draft -- on the answer to question 11, we could -- we answer the question by saying individuals who are agents of federal candidates may solicit non-federal funds to requestors as proposed. And I just would pose this to my colleague, Commissioner Walther, that we could put a footnote there and say this answer presumes that such individuals will act in compliance with 11 CFR section 109.21. 
>> Just a clarification question. Mr. Vice chair, were you referring to 109.20 or 109.21 or both? 
>> I was referring to 109.21. 
>> 21? 
>> Yes. 
>> I guess just to clarify, then, because the question is about solicitation. So it wouldn't -- it's not immediately obvious that 21 would be the provision implicated versus 20. But I don't -- 
>> Because the person -- 
>> It depends what the concern that commissioners are trying to address is. 
>> As the person who came up with the cite, the reason why I cited 109.21 is that what I understood the hypothetical to be is that you got a super PAC that's going to run television ads or do, you know, paid internet ads. And now you got a person who's close to the candidate who knows that they don't want it run on healthcare, healthcare reform. Campaign is not interested in anything on healthcare reform but does want it -- does want ads run on national security. So now the -- that person who knows that goes to the super PAC and says all right, I'm going to raise money for you, and by the way, you know, don't run ads on healthcare. Run ads on national security. So it would implicate 109.21. That was what I understood to be -- 
>> Well, I understood it a little differently. 
>> Okay. Well, you're the commissioner, so -- 
>> The fundraiser would not say anything. He just wouldn't do it. 
>> He just wouldn't do what? 
>> Well, the fundraiser would know enough not to do anything in violation of the agency, you know, his -- or the single candidate, the candidate is raising -- he or she is raising money for, but when it gets to the single candidate PAC, that knowledge would infuse the way that person raises money, and the actual super PAC, people who are in charge of it maybe would probably know that. 
In other words, the -- 
>> That it would be the form of a -- 
>> That's what I'm saying, it's not really coordination, it's just a matter of putting the agent -- the fundraiser in a position. And what does the fundraiser do then? So that was my -- so you're really in a trust relationship and you can't disclose the information because you are already the agent no the candidate. So but agency and a trustee has got different fiduciary obligations, usually. So then you -- that person is put in the position of raising money for the super PAC, and that really affects, without having to say anything, you go to television station A and you don't call person B and you do call person C, and so I'm wondering how does that work in terms of trying to satisfy the appearance of independence? 
>> So that's why I do think it's a 109.21 because we're talking about television -- we're talking about television and public communications. I didn't mean to jump into -- 
>> I want to see if general counsel wants to offer some information to clarify that. Maybe we can take some time and see what we can do. 
>> Chairperson: Commissioner Hunter. 
>> Commissioner Walther, did you want some time to think about that footnote? 
>> Yeah. 
>> Okay. 
>> But did you have -- 
[Recess]. 
>> Chairperson: Okay. We're back for a moment. Commissioner Hunter, so -- 
>> Mr. Elias. 
>> We have another question for you, just sort of somewhat unrelated to what we're talking about, but somewhat related. With regard to the single candidate super PAC, so when somebody tells the FEC they're going to be a super PAC, they don't say, I'm going to be a single candidate super PAC and so I sort of don't like calling it that for a variety of reasons, and I generally try not to do that. That's the way you asked the question, but, you know, often, I think, there's a super PAC who's interested in free market principles or global warming, or whatever the issue, and then they may sort of morph into a super PAC that decides to spend a lot of its money on independent expenditures for one candidate, maybe two, maybe three. And so I think, you know, that the distinction that I may be hearing from some of my colleagues that, you know, okay maybe it is a problem to say that raising money for a majority PAC would be difficult to adhere to, in looking at the Web site and all that, but the single candidate stuff is really bad. And so again, we don't know, often, whether -- no, you didn't say that, I just sort of felt that. That we don't know often when a super PAC, you know, is formed who they're going to support. And that super PAC may not know. I mean, it may depend on a variety of different things, including issues or who's doing well in the polls, or whatever. So do you have any comment on that? 
>> Yeah, I mean, I did ask the question the way I did, and I realize it's -- I don't like asking questions that use imprecise language, and we did, because single candidate doesn't have a legal definition. It's just a colloquialism. But at least that ties more neatly to something. You're correct about that. I would actually point out also that sometimes PACs change. 
>> Right. 
>> Right? So I think I recently read that -- and I may be wrong, but it was either a Fiorina PAC supported someone else in the race, or someone else in the race supported Fiorina -- there was some -- there was some, like, migration among super PACs, and of course -- 
>> Scott Walker's PAC. 
>> Scott Walker's PAC. Thank you. And, in fact, if you look on the Democratic side, priorities U.S.A. supported President Obama. It then supported in the midterm elections it gave money to house majority PAC and senate majority PAC to support their efforts. It's, you know, what I read about in the newspapers that it's going to support someone in the presidential campaign this time. So, you know, it's not always a -- it's not always a single -- it's always a rightful shot. So yeah, and I don't -- that creates a practical problem from a regulatory standpoint because if you created a rule that was just for single candidate super PACs, I imagine every super PAC in America would then go spend $5,000 on a second candidate or a third candidate, or a fifth -- or whatever, or they'd look at their lineage. So I don't have an answer. I don't have a solution to that. But I think it's a practical problem. I think that, you know, going back to Draft A or Draft C, you know, I think the fact is that agency is like one of these things that is just working. Like, you are not facing a deluge of problems or scandals involving agency before the commission, and I'm just not sure why this is the place that the commission, in an advisory opinion where they're going to remain some significant differences on some big issues, and compromises on some other issues, why this isn't one of those places, as well as the next question, 12, we haven't gotten to yet, why there couldn't be compromise, because really all we're asking for in this, which is what C does, is to simply reaffirm -- I mean, if you want, you can just answer it by saying, you know, yes, see, you know, Roy Reid and whatever the guy was in Montana. 
What was it? Iverson. Okay. Got it. Right? It shouldn't be that much more complicated than that, I don't think. 
>> Chairperson: Thank you. Okay. I think that maybe we need to take some time to consider this and potentially also to have lunch. For those of you who eat. So I hate to -- I know everybody's sitting there, and we've got a lot to do today, but -- yes -- 
>> Could I just suggest that while you're having lunch, that in addition to 11 and 12, and I hesitate to do this because you're going to kill me, but -- Commissioner Weintraub's first point, it's also not clear to me why questions 5 and 7 -- I'm sorry, 7 and 10, rather, there's -- it feels to me like there is a -- you are roughly saying the same thing, just one of starts with yes and one of starts with no, but -- but it may be that your view is that it is factors in a finding of candidacy and yours is that it is conclusive factors. And maybe the solution is to just say, they're factors, you know, and some commissioners, you can -- some commissioners say they thought it was more than that, but if the republican commissioners are saying, as I read it, it is relevant factors, like there ought to be at least four votes for relevant factors, even if your view is it's actually more than relevant factors, it's conclusive, so I almost wonder whether there is another compromise just on that that you all can look at, and I'll -- 
>> Commissioner Hunter. 
>> I'm happy to look at that, but I'm just curious, how does that help you? 
>> It's an answer. It doesn't give me the certainty that I wish, but I'm trying to do the best I can here today to get as many -- to get as much information to the regulated and to my clients about if it's a relevant factor, then they know they need to -- then they know they need to be mindful of it when they engage in these activities with candidates. It may not be conclusive, but they know it's relevant. If you deadlock, we're left with -- you know, so I'm actually suggesting that you all's formulation with some reservation of rights by the Democrats may -- which is sort of what you just did on the last one, might be a solution. It may not be. And I only mention it because we are -- if we had ended before lunch, I wouldn't bring it up, but since your staffs don't have enough else to do, I just thought they might look at that as well. 
>> Chairperson: All right. What do you think about timing? It's about 12:25. Do you want to come back at 2:00? 
All right. We'll be back at 2:00. Thank you. 
>> I'll be here. 
>> Thank you all. 
[Luncheon recess until 2:00]. 



 
>> Chairperson: Thank you, Madam secretary. All right. We are reconvening. It's not quite 2:00. It's more like not quite 3:00. But perhaps everyone can kind of give a little report on -- Mr. Vice Chair, maybe -- about where you think we are in terms of -- well, otherwise, I'm not sure how we can continue -- go with a discussion. Thank you. 
>> Thank you, Madam chair. I would be prepared to support questions 11 and 12 as set forth in Draft C right up front, but I'm not sure that I've got the support for that, and just to recap where I think we may be, commissioner Walther -- and I'll let you speak to this, but had requested the office of general counsel to propose some potential footnote language with respect to question 11. That would speak to the issue of coordination, and that the -- that the conclusion would not affect the application of the coordination regulations, and there was some other language that -- I would be -- going back to the issue that I think was raised by some of my colleagues beforehand about -- I don't draw a distinction between multi-candidate super PACs and single candidate super PACs but I think that gives some of my colleagues trouble, and I know that that's an issue that may need to be teased out. So -- and I would just say on question 12, I'll just throw something out there that I may have no support from either my colleagues on my left or my right, but I'll at least propose it, that stating the obvious, advisory opinions aren't rule making, and Mr. Elias proposed this to us, that these would be events, invitations, dates certain, indication of a member as a special guest, an actual program, remarks given, whether there might be some appetite to having kind of a stripped-down answer saying, in answer to the question of whether or not there's a minimum number of guests, we would say no under the circumstances set forth in this request. We don't -- we don't believe that there is a minimum number. I don't know if that would allow people to kind of keep their powder dry for future -- because I know that what we all I think have concerns about whenever we make decisions is whether or not we are somehow either going to inadvertently bless things that we don't want to bless or that we're going to inadvertently paint ourselves into corners that are going to be difficult to extricate ourselves out of in future matters, and that's just one proposal on how maybe we could answer the question while still keeping our powder dry for future scenarios that might be presented, and future opinions. 
>> Chairperson: Well, I don't think I would be comfortable with that, but I do think that in 12, there is a potential of saying something which would be a little more clear in response to the question, other than what you have in C, because my concern here is that, first off, I don't think that a gathering of two people would be a fundraising event, even if they did all of those things that are set forth in 11-CFR-300.64. So, you know, my way of dealing with this issue would be to answer the question, you know, that it's at the end of the page 19, line 22, that it's unlikely that a gathering of two people would be a fundraising event, and then eliminate the -- thus in light of requestor's representation sentence, eliminate that. 
>> If I can just add -- 
>> Chairperson: And I'd be comfortable -- 
>> Because I do want to make sure we get our questions answered. Our question was not is two. Our question was is there a minimum number. So that's the question we've asked, and it's the question that I think we should have answered. 
>> Chairperson: I think that clearly it says -- well, in C it says, although requestor's proposed to fundraise with as few as two attendees, but neither the act nor the commission regulations prescribe a minimum number. I mean, that's in the C. So I do not propose changing that at all. But what I want to keep open is the possibility that based on certain -- keep going. I'm sorry. I now understand. 
>> Chairperson: Circumstances, that you may comply with those other provisions that are set forth in your version C, and it still might not be an event. That's my concern. Or my proposal. 
So, you know, I don't know how else we can go forward here on these two. Commissioner Walther? 
>> I'm not quite so hung up on that because my concern has been that there could be a variety of factors to determine whether or not it's a fundraising event, and so -- and I don't -- I think we've -- at least I've felt that could be a challenge in the past, one way or the other. Frankly, we haven't really run across it to any great degree is an issue, but in the regs itself, we refer to a fundraising event. A fundraising event in my view, and it's always interpreted is it has to be, you know, a fundraising event. We may disagree and not disagree on what it is, but my concern is you say okay, we do this. It's automatically a fundraising event, and we've never said it that way. So I wanted to leave open the understanding that what we're really talking about is compliance with a reg, and you could give all the, you know, engage in all of those various steps -- I'm trying to find them right now -- but it doesn't necessarily mean one way or the other these are requirements. But I didn't want to get into the issue as to the fact that it just seals that automatically as a fundraising event. So I also agree that there's no -- that I'm not required to -- I don't believe there needs to be anything more than we do not have a requirement that there needs to be a minimum number. But in a given case, if there really is an event at all, it's a factor that could be taken into consideration. That's all. Not to be exclusive -- exclusive and say it has to be over three, because four could be no better than three, it just depends on, you know, kind of like the facts involved in who is there and how they got there and what took place. 
And we've never had that as a big issue, but that's one reason why I'd like to maybe propose some way to take that issue into consideration without trying to make a federal case out of it. 
>> It's already a federal case. 
>> I said it exactly with that in mind. I guess you took it seriously when I said that. 
If you have any thoughts on addressing that -- 
>> Well, we tried to lay out in the request the facts that we thought would make it an event. We thought that -- which is why I thought, you know, I thought that if you -- you know, by saying that, you know, we would have a program, we would have invitations, I thought gave a level of specificity that it would be a real event. I think that if you look at the draft that the general counsel's office provided on this question on Draft A, I think the general counsel's office does a pretty good job of cueing to the regulations. You know, they do say that neither the act nor the commission regulates -- regulations describing minimum number of attendees for nonfederal fund raisers involving federal candidates. Thus, in light of our representations that we will comply with the regulation, which is the regulation that you cite, that they can -- that they can do it. I wonder if it might help the hang-up of some of -- let me put it this way. Does it help any one of the Democratic commissioners if we remove the phrase, although requestor's propose to fund raise with as few as two attendees? So that the question that is being asked is does it require that there's a minimum -- be a minimum number of expected attendees, and the answer is no, and then when we get to that section, it just says neither the act nor the commission's regulations prescribe a minimum number of attendees without reference to -- 
>> What page are you on? 
>> I'm sorry. This is Draft A, page 31, the very last page. Line 3. 
>> All right. Thank you. 
>> All right. So if you delete the reference to two, which, like I said, was maybe more provocative to put in the request that was intended, it was simply that if you said that there was a minimum number, I wanted to know what the minimum number was. But maybe I should have just said that in the request. But the actual question posed, though, doesn't really hinge on whether it's two or five or 20, it just asks is there, in concept, a minimum number, and Commissioner Walther, if you are saying in concept that there is no minimum number, then I think if you delete that first clause, then you have the general counsel's draft without reference to two, and therefore it just hinges on is it a real event and have we followed the regulation. 
>> Right. That's a good comment. Now, the next sentence down looks good to me. It says thus in light of the requestor's representations they will comply with all other requirements. That gets me there as long as we don't get the impression that all that they do is just that. You see -- you comply with that reg, this -- the reg -- those activities mentioned don't trump your obligations under the reg necessarily. It even says here, you know, publicity for a fundraising events concludes but is not limited to. Okay. I mean, at least there's elasticity there that I think is important to retain. So something along that line gets me there. 
>> And at the risk of asking commissioners questions, Republican commissioners. 
>> I guess there's three more votes that are required to get this thing. 
>> Steve, could you say that again? 
>> How far do you want me to backtrack? 
>> I'm sorry? 
>> How far do you want me to backtrack? 
>> The part where you said -- 
>> If there's a way to make the point clear, like I believe is the case, compliance -- the steps that are mentioned are ones which -- I didn't read it verbatim, but are included in the regs, my point, it's important for me to understand that compliance with the regulation itself, that that is consistent with the compliance, but the regulation itself is not minimized, the effect of it, but the listing of those various activities that they mention will take place beforehand. 
So that the reg doesn't get watered down by listing those activities. 
So if we just say, you know, that the compliance, something to the effect that, you know, you get the point. 
>> Yeah, I just wonder if the following language, just to try to pinpoint this. So if we delete, although requestor's propose a fund raiser with as few as two attendees and the sentence begins neither the act nor the commission. And then the next sentence says, thus, in writer's representations of fact, as well as that they will comply with -- in other words, so you're buying in the facts that we laid out. 
>> That's fine. 
>> That works? Because we are, after all, only seeking an advisory opinion on the facts presented, so -- 
>> Which fact? 
>> The facts being that there's an invitation, there's -- 
>> But aren't all of those facts listed in the -- 
>> Yes. 
>> That's what I mean. 
>> They're listed in the regulation. 
>> No. 
>> No. 
>> No. The facts are that we will have an invitation. We'll have -- 
>> Okay. 
>> We'll have a date certain. We'll have a time certain. I don't know. Maybe facts is the wrong word. Representation? Is there a better word? 
>> Based on the facts represented. 
>> Based on the facts represented. 
>> So do you want to -- oh. 
>> Yes, commissioner Weintraub. 
>> So, does in light of the facts represented include the fact that you might do it with as few as two people? 
>> I don't think that's a fact we said. I think that was a question we asked if the answer was that there is a minimum number. Does that make sense? 
>> Do I -- 
>> I'm just trying to figure out what are the -- when you say, you know, you're going to send an invitation, we're going to do this, we're going to do that, we're going to do that, and we might do that with as few as two people in the room. Is that part of what you're incorporating in it or not? 
>> We never say in our request we may do it with as few as two people in a room. What we say is we propose to invite prospective donors to an event where one, fund raisers listed to an event exceeding more than $5,000. Two, an E-mail invitation. Three, the invitation lists senate or house candidates as special guests, the cantor disclaimer, or whatever we call it now. Four, the information includes the date and time where the event will be held. Five, there is a program for the event which includes former remarks by the senate candidate or house candidate, introduction by the event hosts or some other person. Six, the senate or house candidate complies with 300 .64-B-2 at the time of the event. 7, neither senate nor house candidate nor other agents for the event or otherwise extend invitations to the event. Those are the bullets which set forth the facts. What we then asked, which is what everyone is hooked on to is we say we believe that events like this are most effective where the number of attendees is small so the attendees have a more personal experience. May senate contender, house contender appear at the event described above. If the number of of expected attendees is two. But that is only if numerosity is required. If you just answer -- that isn't under the question presented. The question presented under -- 
>> I think you're quibbling. 
>> No, I'm not actually quibbling. If you look at question 12, the question 12 is does the regulation require there be a minimum number expected attendees before the candidate can speak, attend or be the featured guest. 
>> So I guess my question to you is, are you amending your request, which includes that, you know, long series of information, and the fact that, you know, there could be as few as two attendees, or are you just trying to bury it? 
>> I'm not burying anything. I'm asking does the number of attendees -- is there a minimum number of attendees? If you begin with the answer no, then we never need to get to the question of the minimum number of attendees. If you answer the question yes, then you have to address, is it two? Is it five? Is it ten? Is it 50? But if the answer is no, and I think I heard agreement among four of the commissioners, that the answer is no, then I think the question of numerosity just falls away. 
>> I think that's right because by saying no, you've already said that it could be as few as two, and, you know, there may well be four commissioners who are content to say that, but that's -- that's the result of that. 
>> And I would ask that if it is not -- if it is not, what is the minimum number? That question has been excluded from all of the drafts that have come to the answer yes. What is the minimum number? And it is not a hypothetical. It is a real question. And we deserve an answer to that, either number matters or number doesn't matter. If number matters, how many people do you need? 
>> Chairperson: Commissioner Walther, go ahead. 
>> The way I see it is I don't think you can say that numbers never matter. It's just that there's nothing required at this time. In other words, if you give -- I mean, it could be a factor in saying wait a minute, they didn't have an event, some guy drove up in a truck, gave them a beer and drove off, you know. 
>> Then it's not an event. 
>> Then it's not an event. And that's the point. And that's the question that I want to raise. If somebody says well, we have an event, and somebody says well, yeah, but there's only two of you guys, and you're sitting in a pickup truck. And it could be a factor. 
>> And that's why I thought I addressed it by saying we are as the facts presented. Which I thought addressed that perfect. 
>> Well, if we all end up at the end of the day understanding it's exactly within those factors represented, sure. 
>> Yeah, and the question is are the -- 
>> But I'd like to be able to say for purposes of clarity just for me even when we say no, it doesn't mean it's exclusively out of the picture in terms of considering, for example, whether it is an event. Can you live with that? I mean, that's -- 
>> Well, I mean, so on the text -- I'll live with whatever we can -- I'm just trying to see if there are four votes for the two text changes that I proposed, the one being the deletion of that first clause, and then the second is adding -- is adding thus based on the facts of the request -- I'm sorry, thus, based on the facts represented, and -- that they will comply with all the -- and the -- and the requestor's representations -- hold on. Based on the facts represented and the requestor's representation that they will comply with all the requirements of. That's what I thought got us there. 
>> Right. And can you say in addition to any of the requirements that might be required under the reg? 
>> With all of the requirements of 11-CFR-300.64 and commission regulations -- and other commission regulations. We always seek to abide by all commission regulations. 
>> Do you mind if -- I mean, is there -- it could be a factor? There's no requirement at this time one way or the other. It doesn't matter if it says you can't do it. It just says if you do do it, people might take a second look and want to see what else went on. 
>> Well, I mean, I guess the question is under the facts we presented -- 
>> Your facts don't present a number. 
>> Correct. But would it matter what the number is under the facts we presented? If there was an invitation. 
>> I doubt it. But -- 
>> Right. So that's kind of -- I'm trying to hold it to what the facts are we presented, because honestly, if we had a hundred people, I might not have a speaking program. Like, I don't want the worst of all worlds, which is I have to have a written invitation, and -- we specifically said we would do something very formal because we were looking to see whether it, as you say, you doubt that it would matter, that it wouldn't matter. Understanding that we may do something more colloquial with a much larger room and not have some of those other event type things, so we didn't ask five different variation of events, whether it's big and doesn't have this, we just tried to set out something which was quite formally an event that anyone would recognize to be an event and then was asked about numbers, so if the commissioners are comfortable with that, with the amendments to the language, then I think that would be our proposal. 
>> Chairperson: Okay. Mr. Vice chair. 
>> Thank you, Madam chair. I just want to make sure that I understand the proposed edits. I know the striking the language on the preparatory clause on line 3, so the although requestor's propose to fund raise with as few as two attendees, we strike that, cappalize neither. And then the next center, just to make sure, would it be something that thus in light of requestor's factual representations and its -- and also its representations that they will comply with all other requirements 11-CFR, section 300.64, and any other applicable commission regulations when engaging in the specified activity, a federal candidate may attend, speak or be a featured guest, as proposed. Is that -- 
>> I had a slightly different formulation, but that's perfectly acceptable. 
>> Okay. 
>> But if Commissioner Walther preferred my formulation -- 
>> I will defer to that as well. 
>> I was just trying to approach and give you -- 
>> I don't remember exactly the difference between the two, but they're both -- 
>> I think it's probably -- 
>> They're semantics. 
>> I think they are substantively the same, maybe semantically slightly different, but I would be happy with either one. 
>> We say and neither the act nor -- do you have any problem if I say but under certain circumstances it could be a factor? 
>> The problem is under certain circumstances. We've laid out the circumstances, so the -- that's what's hard for me about that. 
>> Under certain circumstances not present here? 
>> Yeah. Under circumstances not present here. 
>> I'm fine with that. 
>> Is that -- 
>> Chairperson: Mr. Noti. 
>> I just want to make sure that commissioners are aware that there's a reference, page 29 line 10, it's the short answer. There's a reference to the expected number of attendees. I just want to make sure all commissioners -- page, on Draft A page 29, line 10. 29, line 10, there's a reference to the expected number of attendees that seems to be the continued inclusion of that seems to be fine in light of the changes on page 31, but I just wanted to make sure that commissioners saw that that's there. 
>> Where is it? 
>> Chairperson: It's 29 line 10. It says federal candidates -- 
All right. So are those proposals for Draft C, and then there's a Draft F with an amendment that we agreed to this morning. Are we ready for a series of votes? Yes? 
>> Before we go to vote, the amendments just being discussed, were they to Draft A or to Draft C? 
>> I think we were working on Draft A. 
>> We were working off of A but you want to move draft C with -- 
>> I think what we would be doing here is amending Draft F and then so that we would be in essence preparing Draft F to be voted on after we go through a series of other votes just so that we can all -- 
>> I don't know that that's right. 
>> Well, I think it could be right if we break up the votes. So what I would prefer is to move Draft F as amended earlier today, but without any amendments addressing questions 11 and 12 first, because I would support that motion. And then there could be a second motion where you move the answers to 11 and 12. To the extent that there's agreement. And honestly, you know, I know Mr. Elias is going to kill me for this, but he's going to take out the gun, but as I listen to what people are saying at the table, it -- I'm not sure that there actually is agreement here because what I hear Commissioner Walther saying is that he thinks that the number could matter, but you're agreeing to an answer that says the number doesn't matter. So I don't really -- I'm not really sure what's going on. 
>> Well, I think, commissioner, it says prescribe a minimum number of attendees. I'm saying that there's not a prescription for a minimum number, period. Except for one maybe. Right? 
>> Be a heck of a fundraising event being there alone. 
>> Doesn't sound very successful. 
>> Right. 
>> Depends who the candidate is. 
>> Mirror, mirror on the wall. So it's just eliminating that as a minimum requirement. Not to say it couldn't be a factor, when you look at all the factors, and decide, you know, this wasn't a real true fundraising event, it was a mock event, but the way this is structured, we're saying on the facts present here, I could live with that. And all of this has to do with good faith compliance anyway. 
>> Chairperson: Did you have something that you wanted to mention, commissioner? 
>> I think -- I don't know if there are four votes, but just going back to the procedural question on how to get there, I take it that Commissioner Weintraub would like to vote on F as-is. 
>> As amended earlier. 
>> As amended earlier, okay. 
>> Yes. Yes. 
>> And then what would be the form of the motion, usually you propose amendments to that, and they either pass or fail, but then that would put you in the position of voting for an F that you later did not support. So I'm just asking procedurally, assume that there were four votes for 11 and 12 as amended to go in to F. I understand you want to vote for F as is. 
>> Or without any answer to 11 and 12. 
>> Right. 
>> But then leaving open to then amend F with 11 and 12 or add them to 11. Just looking for the form of that motion. 
>> I think we have in the past -- I'll let Mr. Noti speak after a second, but it's my understanding that we have sometimes done this, where we sequence the votes and say we're moving the answers to these questions, you know, we're moving the answers to questions 1 through 9 as set forth in agenda document F as amended earlier today by Commissioner Peterson's amendment, and that would pass, but it would not necessarily address 11 and 12, and then there would be a subsequent motion that would say we now move to adopt the answers to -- 
>> One way to do this under Robert's rules is Seriotum, and take up the questions one, and then at the end of the day, you might have had six votes on some of them, five on some, four on some, and anything that's got four or more goes into the final draft. That's one way to do it. I think, however, without objection, the chair could amend something already adopted to see if it gets four votes to amend. I mean -- but I think it takes a contortion of Robert's Rules motions to do that but I think we can do that without objection. Bob, is that -- 
>> We had thought about this possibility and had a few ideas. One would be either by consensus, or by vote the commission could agree right now that the final AO will be draft F, including any amendments that are agreed to by a majority of commissioners, which would obviate the need, then, at the end to vote on draft F, which is going to include something that at least three commissioners will object to. So if the commission agrees now, we will vote on Draft F, and then any additional amendments will be incorporated into the final, so there wouldn't need to be a final vote. 
>> Just do the amendments after the fact, basically. 
>> Right. Without a final vote on the resulting documents. 
>> And Larry, without objection, that will work, right? I mean, if there's an agreement of the body to handle it that way. Okay. 
>> Can I ask a procedural question? 
>> Just a minute. Go ahead. 
>> Thank you, Madam chair. I was just going to ask, yeah, another question is I also assumed that we would probably want to have motions on kind of our perfect world drafts, which I think is helpful just for the sake of the record so that people can know, okay, this is where people really were before they found the middle on Draft F, so I don't know if that would mean that you would want to move Draft E first -- 
>> Actually I -- 
>> We would make a motion with respect to Draft C and then I think that we could then move to Draft F and move forward. 
>> Or additions to F. 
>> Okay. 
>> I just have a procedural question. Is there something odd about adopting a draft that says 11 and 12 deadlocked when, in fact, 11 and 12 won't have been dead locked? 
>> Yeah, I agree that might be an issue. 
>> Will it make more sense to vote Draft F like with literally not with anything for 11 and 12. 
>> That's sort of what I was suggesting, that we could move the answers of 1 through 9 as set forth in agenda document F as amended earlier today by commissioner Peterson. Actually, that's already been incorporated, I think. 
>> That answers five questions as it stands right now. 
>> Yeah, it's not all -- 
>> All Draft F says at the end is -- so there are the answers to the questions and then it says the commission could not approve by four votes the answers to the other questions so whatever gets added to Draft F will necessarily not be included in the line that says we couldn't approve an answer to the other questions. That's all it says. It doesn't specifically say there's no answer to 11 and 12. 
>> Oh, I see. 
>> It doesn't delineate them. 
>> Correct. It just says we don't have answers to the other questions. 
>> And we will vote on the other two immediately after today. Right? Like at this meeting. Because I don't want to leave this meeting with an answer to 11 and 12 that is you couldn't agree. 
>> Chairperson: Why don't we take the vote. 
>> Why don't we see where the chips fall. 
>> See how we go. Otherwise you're going to stay overnight and not leave the meeting. 
>> No, he'll come back tomorrow. 
>> Chairperson: Yeah, all right. Well, why don't we -- 
>> So hold on, before we proceed, can I ask Mr. -- 
>> Sure. 
>> Walk me through why you would prefer seriotum, because I don't know that there are four votes on -- 
>> Yeah, there are. 
>> There are? 
>> At least for 12. 
>> Okay. If there's confidence then we're okay. 
>> If you all have confidence we have four votes for 11 and 12 -- 
>> Then you're okay with this procedure. 
>> I'm okay with this procedure. 
>> Well, I guess if -- I would want to wait to finish our discussion here, but I mean, I'm -- 
>> I'm not sure there's anything left to say. 
>> Yeah, I think we've -- we're ready to take a vote. 
>> Madam Chair, I think that Commissioner Walther is referring to the fact that we've now talked about 12 and I think we may have a place we can land on 12. There was the earlier question about 11, and the proposed footnote that OGC drafted up at Commissioner Walther's request, and Steve, if you don't mind, if you have a question, I defer to you because there was a question I wanted to ask Mr. Elias with respect to that, but I would be happy to defer to any questions you -- 
>> Go for it. 
>> Okay. So this would -- so this would be with respect to -- I'll just work off Draft A for right now. Since that's the one I have in front of me. The footnote at the end of the first -- of the short answer I think would be replaced. I know in footnote -- in Draft C we do not have that footnote because that's not applicable to our analysis of other questions. But substituting that footnote, Commissioner Walther requested that a footnote -- or at least -- I'm not saying he's necessarily endorsed this, but some proposed language that was drafted up by the office of general counsel was that the commission could not approve a response by the required four affirmative votes to the question of whether the individuals would be permitted to raise non-federal funds on behalf of the single candidate committees, and then cite 52 USC 3106-C and 11-CFR 112.4-A. And the question I have is this would be -- we've never really -- I mean, the number of matters -- excuse me. The number of advisory opinions where we've opined about the nature of super PACs isn't very numerous, and this would be the first time would indicate that there is some division on the commission between multi-candidate super PACs and single-candidate super PACs. I don't think that that would be a commission blessing of that distinction. I think that that would just merely be -- especially in light of the fact that we will have a Draft C that will be voted on as well, which will indicate that there isn't a division, but I just wanted to get your thoughts on some -- on what -- how you think that that sort of proposed language might work and whether or not you think that that would be problematic. 
>> Can you -- 
>> I'd be happy to re-read it. 
>> Can you read it one more time? 
>> I'm trying to find what language -- or where am I -- 
>> Oh, okay. So this would be the short answer -- so question 11, short answer. 
>> What page is this? I'm sorry. 
>> So page 27 of Draft A. So it has a footnote 13. Instead of that footnote, strike that footnote. And substitute this language in instead: And it would say, the commission could not approve a response by the required four affirmative votes to the question of whether the individuals would be permitted to raise non-federal funds on behalf of the single candidate committees. As I understand where my colleague may be going -- oh, and then I -- let me add that there would then be citations to 52 USC section 3106-C, and 11 CFR 112.4-A. And as I understand my colleagues' concern, they would be willing to approve it -- approve this -- give an affirmative answer to this question, at least with respect to the, you know, quote unquote multi-candidate super PACs, but not to the single candidate super PACs. 
>> The single-candidate committees as described in the request? The reason I ask is that I am thrilled that I created a new term of art, single-candidate committee but I'm afraid if you use it in your answer unqualified, it will mean a lot of different things to different people. 
>> It will be like super PAC. You'll be the guy who invented the new -- I mean, people are using that term. 
>> Madam chair. 
>> Chairperson: Mr. Noti, please. 
>> Madam chair -- right. So it's not in the request, it's a defined term in the draft, and it's defined to mean these committees that are at issue in the draft, so if capitalized as it is in the written version that you have, it would refer only to these committees and not to single candidate super PACs and I would recommend the commission use the defined term. It's used everywhere else in the draft. 
>> Would there be a problem then with us putting a parenthetical saying something as earlier defined in the request, or something like that? 
>> Yes. 
>> Perfect. 
>> Whereas defined above. 
>> Mr. Noti, could you just point us to the specific place where that's defined just for our own application? 
>> In Draft A, it is page 2, lines seven and eight. It quotes the request and saying therein after the, referring specifically to those proposed in the request. 
>> I see that there's some discussion -- 
>> As long as it's limited to the definition as set forth in the draft. 
>> But if the definition is what Mr. Noti just said it was, it's not really a definition. 
>> I mean, the reason why I say that is that there are -- that we asked about a particular type of super PAC, which is one that is established -- established by majority pac and a potential candidate, a pre-candidate, a non-candidate. 
>> Right. So this is not the definition. 
>> But that is the definition. That's what I'm -- 
>> Mr. Noti. 
>> The language on the draft is just intended to say that the term -- the capitalized term, "Single candidate committee," as used in all six drafts, refers only to the committees that the request proposes to establish, not to single candidate super PACs as a general term. It's about these committees and no others. That's what that language is intended to encompass. 
>> So in other words, the here single -- here single candidate committees is defined as a -- as where majority pac or house majority pac, senate majority pac will work closely with their prospective candidate and their agents to establish these entities. 
>> And from where are you reading when you say that part? 
>> It's page 2, lines 6 and 7 of Draft A. 
>> Of Draft A? 
>> Right. 
>> But what if you work closely with them to establish, you know, joint fundraising committee among several candidates. My problem is I don't think this really defines anything. It's kind of a non-definition. But that's just me. 
>> But you're saying that the definition follows, not just in lines 6 and 7 but throughout that paragraph. 
>> Correct. 
>> Right. Okay. So it's not just lines 6 and 7. 
>> I was just pointing you to where it began. 
>> Right. Okay. Okay. So then that's what I thought as well at first, that it really wasn't a definition, but we mean the whole paragraph, in which case it is a definition, I think. 
>> I mean, can you put in the parenthetical "That." 
>> What's that? 
>> Can you put that in the parenthetical that commissioner Peterson proposed? 
>> Yeah. 
>> Just a suggestion. Maybe we want to move the hearing after the single candidate committees to the end of the paragraph. 
>> That's what I was thinking. 
>> If you don't want to encompass the entire paragraph. 
>> And I'll just -- Commissioner Walther, I may be stepping all over your toes on this. Shove me off at any point. There was another footnote that he proposed that deals with the coordination issue that I believe would be added to the end of the -- to the last sentence in answer to question 12. So this would be on page 29, line 5, and this would say, the commission notes that this conclusion does not affect the application of the coordination regulations. And then cite -- 
>> This is question 11. 
>> Right. Right. Last sentence of question 11. So the commission notes that this conclusion does not affect the application of the coordination regulations, and then a citation to 11-CFR sections 109.20 and 109.21. 
>> Seems -- 
>> Just to address the issue. 
>> Yeah, that seems right. I think that's what we discussed earlier. I was suggesting it was 109.21, but it's in the hypothetical, so that's fine. 
>> Chairperson: Okay. Any further comments? Do you want to start with Draft C or do you want a motion on -- 
>> You're going to vote on the ones that are -- 
>> We're going to go for the ones that don't have four votes. Perfect world, yes. 
>> And then we'll go -- and then we're going to finalize where we can find agreement. 
>> Chairperson: Right. Okay. Go ahead. 
>> I'll be happy to begin by moving in consideration of advisory opinion request 2015-09, senate majority pac and house majority pac, I move the adoption of agenda document number 15-57-C, which is otherwise known as Draft C. 
>> Chairperson: Questions? Comments? All those in favor, please say aye. All those opposed. All right. Madam secretary, that motion fails 3-3, with commissioners Goodman, Hunter and vice chair Peterson voting aye, and myself, Commissioner Walther and Commissioner Weintraub voting no. Commissioner Weintraub. 
>> Thank you, Madam chair. I have a slight amendment to Draft E, so I move approval of agenda document 15-57-E, which is labeled Draft E, with the following amendment, that on page 13, line 12, we substitute a semicolon for the period at the end of the sentence and add the following citation: Advisory opinion 2007-1 [McCaskill] [concluding that a federal candidate and office holder's campaign committee for state office, formed years before she became a federal candidate and office holder, was, quote, directly established, finance maintained and controlled by her," i.e. by a federal candidate, and thus was subject to the restrictions of 52 USC section 30125-E-1. And I will provide that to the secretary to make sure we get that. 
>> Clarification. That's Draft E page 13 line 12. Thank you. 
>> Yep. 
>> Chairperson: Okay. With that revision, questions, comments? All those in favor, please indicate by saying aye. All those opposed. 
>> No. 
>> No. 
>> No. 
>> No. 
>> Chairperson: Okay. That motion fails, Commissioner Weintraub, it's 4-2 against. Commissioner Weintraub and myself voting yes. Commissionerers Walther, vital chair Peterson, Commissioner Hunter and Commissioner Goodman voting no. 
The first Draft F. 
>> Now, just to clarify, did we do without objection to make this the base draft, so to speak so should I make an actual motion toward that end? 
>> I don't think it's been done yet so either a motion or an agreement by consensus that if Draft F gets more than three votes, the final will be Draft F as amended by any other majority votes that come right after it. 
>> So moved. 
>> Should we have a motion that moves all those that we understand are further agreement as opposed to the paragraph that says we can't reach agreement and then try and reach agreement? 
>> Exactly. 
>> Well, the way the draft is written now, they can't reach -- there are still going to be some things on which we can't reach agreement, and it's not specific as to what those are. It will refer to whatever is left over at the end of all the votes. 
>> So we -- I mean, are you comfortable with the fact that we vote for Draft F, basically, and then we come back and amend Draft F? 
>> Draft F as it was amended first this morning. 
>> That's the goal. 
>> And then there's going to be a second vote to include those other matters. Okay? 
>> And just to be clear, this draft, it answers questions 4, 5, 6, 8 and 9, after the amendment today. Just so anybody who's following along at home knows what's covered in this draft, and then we'll deal with the subsequent questions. 
>> I feel sorry for those people. 
>> Chairperson: Yeah, they're asleep. Okay. Any other comments, questions? All those in favor of Draft F as amended this morning, as described by the vice chair, please indicate by saying aye. 
>> Aye. 
>> Aye. 
>> Aye. 
>> Aye. 
>> Aye. 
>> Chairperson: Madam secretary, that motion passes unanimously. Mr. Vice Chair. 
>> Okay. And Commissioner Walther, make sure that I'm making this motion -- and let me also ask, Mr. Noti, should I just make my motions that I move to amend Draft F as follows. If I preface my motions as such, will that be sufficient? 
>> Should be perfectly. 
>> Okay. Just want to make sure. 
>> For me, we would be incorporating the answer to Draft A. 
>> Yeah, I have Draft A as my base. 
>> All right. 
>> So I move that we amend Draft F, which just to go back and make sure I have the correct agenda document, which is agenda document 15-57-F, that we amend it to answer question 11, as set forth in Draft A, subject to the following amendments, or the following edits, that the footnote on line -- I mean, excuse me, that the short answer to that question on page 27, lines 14 and 15, that the footnote at the end of that be substituted with the following language. The commission could not approve a response by the required four affirmative votes to the question of whether the individuals would be permitted to raise non-federal funds on behalf of the single candidate committees, then parenthetically add, as defined above. Close paren, period citation 2, 52 USC section 3106-C, and 11 CFR 112.4-A. That this answer be further edited with the following addition. On page 9 -- excuse me, page 29, line 5, that if the sentence that ends with "On their behalf" that there be a footnote added, saying the commission notes that this conclusion does not affect the application of the coordination regulations, period. Citation 2, 11 CFR 109.20 and 109.21. 
>> Okay. Is that clear, Madam secretary? 
>> Yes, it is. 
>> Okay. 
>> You missed a parenthetical. 
>> That's back on page 2, I believe that this -- it's part of this motion on page 2, that we would make the change so that we -- so that -- 
>> That's a parenthetical. 
>> What's that? 
>> That's a parenthetical. 
>> Yeah, the parenthetical herein after the single candidate committees, which is currently on lines 7 and 8 of page 2, that that be moved to the -- behind the last -- was it the last -- at the end of the paragraph. 
>> Mr. Vice Chair, we have another proposal you might want to consider that might work a little better. 
>> Okay. I'm always happy to hear suggestions. 
>> Could we propose just a reword? And this is in draft F now we're talking about. 
>> Well, it's -- yeah. 
>> A into F. 
>> It's in F also, but -- 
>> Okay. 
>> The beginning is still F. 
>> Oh. 
>> To simply take out the word herein after and say instead as described herein? 
>> Okay. 
>> What page is that? 
>> Page 2. 
>> Oh, right. Okay. 
>> So just as described herein, comma, the single candidate committees. 
>> Delete herein after, replaced with as described herein. 
>> Okay. And then put that /PAEURPB /THETical at the end of the paragraph. 
>> We were considering it as avoiding the need to move it, and the term is then used before defined. 
>> Mr. Noti, so you're replacing hereinafter with -- 
>> As described herein. 
>> And moving that to the end of the paragraph? 
>> No. At the same spot, right it? 
>> The idea would be to leave it there. It would be a little confusing to leave it in until the end. 
>> Okay. 
>> Does that capture that language then defining single candidate committee where you were going to put it in the parenthetical in question 12? Question 11. Question 11. 
>> No. That's an additional -- we would have to then say -- 
>> But that's going to be -- I think that's going to be part of the motion with respect to question 12. 
>> Okay. 
>> I'm sorry. Wrong question. 
>> I can't imagine why any of us would be getting mixed up on that, but -- yeah, I'll make sure that's included. Not a problem. 
>> Okay. So your changes are on page 2, page 29. I saw an earlier one, too. 
>> I had page 2, page 27. 
>> 27. 
>> And page 29. 
>> Okay. Is that clear, Madam secretary? 
>> It is clear, but I want to take a look at the text again from the draft, just to take one further quick look at it. In other words, we've been negotiating on a few points, but I want to take another look at what all that paragraph says. 
>> Right now -- 
>> Or do you want to go through and get 11 and 12 -- 
>> Would you like me to make a motion as to both right now and then you have a chance, or do you want to do -- 
>> Let's do that. 
>> Okay. So I'll, in the same motion then -- 
>> Chairperson: Wait. Just a minute, Madam secretary. 
>> Can I ask for clarification? I'm trying to follow along. I'm clear with what we're doing on page 27. And then we're backtracking to page 2, and changing line 7 to now read, as described herein, in the parenthetical. 
>> Was it herein or hereafter? 
>> Herein. 
>> Herein. 
>> Herein. And then -- 
>> I'm sorry. I think it's line 4. 
>> I think it's hereinafter. 
>> I think it's line 7. 
>> I'm working off of Draft A. 
>> Draft A. 
>> I was looking at F. 
>> I think we're now looking at Draft F. Since the same language is in Draft F and since we're amending it, it probably makes sense to stay in that draft. 
>> Bear with me. 
>> Yeah, I know. There's quite a few to juggle. 
>> So we're going to say, in Draft F on line 4 of page 2, as described herein -- 
>> Hereinafter. 
>> As described herein? 
>> Striking hereinafter, replacing it with, as described herein. 
>> Okay. And now we're at page 29, if I may continue. And at the end of line 5, we're adding a footnote that OGC had provided via E-mail. 
>> Yes. The one regarding the application of the coordination regulations. 
>> Okay. And that footnote will read, the commission notes that this conclusion does not affect the application of the coordination regulations, period. Then the citations of 11 CFR 109.20 and 109.21, period? 
>> Correct. 
>> Thank you. 
>> Mr. Elias. 
>> I apologize, but the problem with doing what you've just done is we lose the requestor's propose to work closely with respect to candidates or agents including establishing. We use the establishing language because you're now talking herein, and that comes right before herein. 
>> That's what I was trying to say. 
>> Would it -- 
>> We could just define it. We could just say single candidate committee is here by defined as, and then spell it out. 
>> That's fine. I just -- I don't want to lose -- that's the heart of what we're asking about. 
>> That's what I was thinking. 
>> Are you dropping hereinafter and replacing with herein was intended to encompass the whole thing, whereas hereinafter, which is only after, but at this point -- 
>> One possibility, which I credit Mr. Berkon would be to lower case single candidate committees in both of those two places and then at the end of that paragraph, say defined as capital single candidate -- single candidate committees. 
>> Wait. Say that again? 
>> It would be to put at the end of that paragraph. It would be lower case single candidate committees, lower case single candidate committees, and then at the end of the paragraph, defined as single candidate -- single candidate committees in capital. Would that work? Or does that not solve it? 
>> I just think it might be cleaner to say for the purposes of this AO, single candidate committees are defined as a super PAC that raises funds in a limited amounts, blah, blah, blah, and sort of list it out. No? No. No. No. Just the super PACs that we're talking about here. 
>> I'm almost ready to go back to herein. Because I think -- is there some other word that we could use that would indicate it is used globally throughout, whether there's a reference to that before or after that parenthetical? 
>> How about saying something like as defined or described in this paragraph? 
>> That's kind of where I was trying to go. Yeah. 
>> Okay. As defined in this paragraph? Or as described in this paragraph? 
>> Yeah. 
>> But is that also -- but does that mean it's only limited to that paragraph -- 
>> As described in this paragraph and elsewhere. 
>> Okay. As described in this paragraph and throughout this draft? 
>> Yes. 
>> There you go. 
>> All right. 
>> We're on item 1 of seven items. We're on a roll. 
>> All right. Is that it? 
>> Is that understood by the secretary? 
>> I think so. 
>> As described in this paragraph and throughout. 
>> And throughout this request. 
>> And throughout this opinion. 
>> Opinion? 
>> Whatever. Yeah. 
>> All right. Any questions, comments about the -- did you make a motion? 
>> I think -- well, I think that I need to add to that motion. I believe Commissioner Walther wanted me to also include the question 12 in this or did you want to do separate motions with respect to 11 and 12? 
>> I think we can get the language squared away and we can do it separately. I'm still going to take a minute here. 
>> Okay. 
>> Let's rephrase them. 
>> Should we just do -- I'll just add it as part of my motion, just question 12 as well. I think considering we're -- in some ways there is some overlap, and I know that the chair is looking at her watch as she -- 
>> Chairperson: We have a number of things to go. 
>> So this -- let me first ask, Madam Secretary, as part of the footnote, the first footnote that was on page 27, was -- did that include the parenthetical after on behalf of the single candidate committees, a parenthetical that says, as defined above? 
>> No. 
>> Okay. That's also part of the motion, the as defined above, just to make sure that we are belt and suspenders as to -- 
>> Oh, I apologize, I do have that written in the margin. 
>> Okay. Then I would also propose that in answer to -- that we also amend Draft F to include an answer to question 12, and we will use as the base the answer in Draft A, which starts on line 6 of page 29, and extends to line 7 of page 31. The final paragraph -- the paragraph on page 31, from 3 to 7 will be modified as follows. Although the requestor's propose to fund raise with as few as two attendees, comma, that language will be stricken, or struck. What's the appropriate tense? Neither will be capitalized. And the rest of that sentence will just read neither the acts nor commission regulations prescribe a minimum number of attendees for non-federal fund raisers involving federal candidates. The next sentence will read, thus, in light of requestor's factual -- insert factual representation -- representations, and then following representations, we will insert, and its representations, and then we will pick up from there, and its representations that they will comply with all the requirements of 11 CFR section 300.64 and any other applicable commission regulations, we will insert after 300.64, when engaging in the specified activity, a federal candidate may attend, speak, or be a featured guest, as proposed. Oh, I see waving hands. 
>> That's okay. Mr. -- 
>> Just one minor thing. Instead of its representations, I believe it should be their representations. 
>> Okay. 
>> If you wouldn't mind. 
>> Thank you. Okay. Is that clear? 
>> Chairperson: Yes. Thank you. All right. Any questions, comments about the motion? 
>> Hang on a second. 
>> Chairperson: Okay. We still haven't finished the discussion whether or not we can mention that number is a factor. 
>> Chairperson: I'm sorry. Did you have a question? What was the question? 
>> That number can be a factor -- 
>> Can I just make one more -- kind of a technical amendment that needs to be made is on page 30, line 10, there's a footnote with 15, which is a which means it needs to be stricken, because it's not relevant, because that's a relic from the old draft, and that wouldn't be carried forward to draft F. 
>> Chairperson: Did you get that, Madam Secretary? 
>> Yes, I did. Thank you. 
>> Chairperson: Thank you. 
>> Point of clarification. Were you going to leave in on page 29, line 10 regardless of the number of expected attendees, or not? 
>> I'm sorry. Can you -- 
>> I was asking as a point of clarification whether the phrase regardless of the number of expected attendees was going to remain on page 29 line 10. 
>> I didn't hear any objections to that, so -- 
>> And that is what is important to us is we have given you the detail of what this event is. We've told you what the format is, we've told you the invitation, to say that that -- I understand, Commissioner Walther, your point, that in other circumstances, numerosity could matter, but I think what we did -- I thought what we agreed to was that that's why we were capping it to just the facts of this request, so that it is not -- it is not -- it is not addressing anything other than an event exactly like this one. In other events, it might involve other facts and other factors. But for this event, as contemplated, numerosity wouldn't matter. So that's why I thought it was intended to be left in because that's why we brought you all the details about the event. 
>> Just a further point of clarification, when you talk about what we've agreed to, you don't get a vote, Mr. Elias, so it's a question of what they've agreed to. 
>> I understand. 
>> Chairperson: All right. Commissioner Walther. 
>> Let's get some clarification, though. It's still important to me that if -- I think what's left unsaid is no matter what people do with the language, there could be facts one way or the other that might sway what actually would satisfy fundraiser. 
>> I think that that's right, Commissioner. 
>> And the crux of your question was does numbers matter. And my -- or is there a minimum number, as I recall, and the answer is no. There's no minimum number. But it doesn't mean that you can't consider it when you take a look and see if it was really, you know, a fundraising event that is entitled to credit as a fundraising event. 
>> Right. And I agree with you. 
>> So I need that clarification. That's all. 
>> And I agreed with you about two guys in a pickup truck, which was your -- that was your example. And that's -- 
>> Maybe three guys. 
>> And then that's when we added the language about it only being applicable to the facts as represented here, because I would propose that under the facts, we've set forth, it actually doesn't matter, that you have the relevant facts for that particular kind of event. Where there's an invitation, where there's a set time, where there are remarks, that in that circumstance, it's not two guys in a pickup truck. 
Now, if you want to include -- you know, I don't know what the other commissioners think, something that says that if the facts were different than this, it might be a factor. 
>> True. But that doesn't mean that there couldn't be -- I could see somebody taking the skeleton and using it no matter what the facts are, and it still might not be right, and that's my concern, to say -- and maybe if we just said no, I guess that's a possibility. 
>> I proposed that hours ago. 
[Laughter] 
>> At the very onset. No, there's no minimum number, period. And without having to necessarily bless this particular thing with these adjectives, is compliance. 
>> I would be -- I would be totally fine with just a straight no. I think, honestly, that is a wide r answer, not a narrower answer because then the answer is just no, and then your two guys with a pickup truck -- I mean, I thought that what you were trying to do is by capping it to these facts you were narrowing it, but I proposed several hours ago, if we just say no, my clients are fine. 
>> But it can be a factor. 
>> Well, just no. The -- 
>> Well, I couldn't agree to not saying that you could look and see if two guys in a pickup truck or there's 20 people standing around a bunch of pickup trucks. Do you see what I mean? It kind of depends on what occurs. 
>> But with all due respect, commissioner, we're here seeking an advisory committee so that we have a shield. You're worrying about what other people may do. And we're trying to get a shield against liability, which we're entitled to under the statute and the commission's regulations and we've proposed the specific facts that we are going to engage in and either that's okay regardless of the number, and then it's no, with or without capping it to the facts, with or without -- or the answer is yes, which is where I think commissioner Weintraub is, the numerosity does matter, but I do think we're entitled to a not have a facts and circumstances further than the facts and circumstances we've proposed for this transaction. If other people want to do different facts and circumstances, two guys with a pickup truck, ten people without an invitation, 50 people with an invitation but no formal program, they're on their own, but I think we're entitled to an answer under this -- under the set of facts we put forward because no one has proposed a hypothetical, and therefore it's a complete request and therefore, we should have this certainty of an advisory opinion as to whether or not that's okay, for these facts. 

>> Say well it says there's no minimum number therefore I can do it with two or three people or however many people I want because that's what it says in this request and if you want that qualification in there that number can be a factor. 
>> You do exactly what you told us we would do. You spend eight hours before us talking about this and then you do exactly what you were told to do and then we get an FEC complaint and then discovery my head will explode I will have come to the agency and ask if I hold this event with these facts does number matter if I then hold an event with these facts and people show up, and someone follows -- and the Republicans file a frivolous complaint I should be able to say I came to the FEC and asked them and there were no other facts that matter because I fall within the foursquare of the advisory. If facts should matter for other people then say other facts may be different other circumstances may be different. 
But for this request, I do -- I have to say I don't think there are any other facts that could matter other than the ones we propose if other facts matter the time to tell me that is when I waited nine and a half days for the general counsel's office to put this on the public record in requests or when I sat here last time and answered questions and could have submitted more facts there are no more facts to ask. Do I get safe harbor or don't I I apologize for raising my voice but I'm at the end of this process being told more facts had mattered I wish Dan Patelis had told me that 45 days ago. 
>> CAROLINE HUNTER: We're closer to an answer than Commissioner Winetraub suggests she's just being helpful. 
>> ELLEN WINETRAUB: I'm not trying to be mischievous I mean this in complete sincerity it's not clear to me everybody is on the same page. 
>> CAROLINE HUNTER: I certainly don't want to speak for everybody but my understanding of what Commissioner Walther was I think there are sort of two different paths on this answer to Question No. -- I can't remember if it's 11 or 12. 12. And one question is no the number doesn't matter and he wants to keep it dry for another circumstance and that's what Mr. Elias just addressed I can't vote for that because of the reasons I told you before because of what Mr. Elias suggest and the other things as well the other path you're considering is where it cabins it in to these specific circumstances I haven't said this to you but I have some trepidation to agree to that propose I'm willing to do so but it's not ideal I think it's truly a compromise but I'm willing to do it and the reason why is because it does in a sense -- one could interpret it to mean that the only way that -- well, the only way you would get a shield is if you do have an invitation if there is a program for the event which includes formal remarks blah blah blah. So it adds stuff that to me aren't required by the regulation. To me as long as you follow the regulation then you have an event and I don't care how many people are there. 
But now you're adding in other stuff here because the requester added it in and in order to get this safe harbor you can't be two guys in a pickup truck because then you wouldn't have had an invitation and formal remarks and blah blah blah I'm willing to go and vote with you on that but the first path down the road probably wouldn't get support and Mr. Elias explained at least in part why but the second one I think does allow you to fight the fight another day. With different facts. 
>> ANN RAVEL: Mr. Vice Chair. 
>> MATTHEW PETERSEN: Thank you I would just add that I think there's actually a meeting of the minds here and I think that the -- I think that what's proposed is actually the very definition of compromise. And I commend Commissioner Walther for all of the efforts that we have gone back and forth not only today but in the past, as well. I think each sides had to give something on what would I think be their ideal answer. But I think what we wanted to do is answer the question that was presented by the requester here. And not go beyond that. But also we're doing it in a careful way so that we don't -- that neither of us feels like we have boxed ourselves in in ways that we're not comfortable with. And I think that the proposed edits to the language accomplish that for both sides. So I think this is -- I actually do think that we -- I think I understand what I'm voting on. I think that there is agreement. But I think there's also -- we also agree that we're not deciding other permutations of factual situations that could arise in further cases. I don't think we're locking ourselves in on any of those at this time. I think that those -- those cases our powder is dry to make those determinations as they come before the Commission. 
If -- well . . . 
I think there's just one other -- I'll just start talking Madam Chair -- 
>> ANN RAVEL: Just two seconds. 
>> MATTHEW PETERSEN: Okay. 
>> CHAIT ANN RAVEL: Commissioner Walther. 
>> STEVE WALTHER: The issue of what's being talked about namely whether the Commission should get into whether there's an actual legitimate event I think that's something we cannot ignore and just say well we'll just call it an event and that's it or do exactly what you say and automatically it's an event because if you get there's all sorts of ways that people as you know can take issues we sent 50 invitations to Abu Dhabi but only 50 people could make it but things come out in the woodwork in a way you never would have expected and I don't feel to feel like if you used those automatic words this is what you call them, this automatic safe harbor in all instances. 
>> Commissioner my frustration before is I wish you had told me at the beginning you thought this was hypothetical and that I didn't deserve an answer because honestly that's what you're telling me, you're telling me I haven't given you enough facts I haven't told you where I'm sending the invitation -- invitation what the venue will be who is the candidate I could have done all of that if you would have asked but no one asked me for that so I'm asking for a safe harbor not for someone else who is going to read the advisory opinion or someone who will misconstrue it but for Senate majority PAC. You didn't ask for more questions with all due respect. 
>> STEVE WALTHER: I'm not here to create what you guys want to do. 
>> If you didn't know -- 
>> STEVE WALTHER: Take -- let's consider -- I think we're getting a little too far into the weeds but if you want to say we want to hold onto a certain days and here is what you want to invite here is where the list comes from and if we have a problem for that and is it okay if only two people show up. 
>> Does the First Amendment really come to you -- really require me to come to you every time I have an eve. 
>> STEVE WALTHER: No that's the whole point. 
>> I submitted this the general counsel sat on it for 9 days, asked no questions, zero it then went to all of you all, you all asked no questions. Then I came to a hearing last week no one told me at that hearing I have a question about what exactly the contours of this event is going to be. To be honest with you if we end up with a Federal judge you better have an answer to him about why it is I wound up at the 8th hour of the second meeting of the 45th day at that point that -- at that point the Commission was uncertain enough about the facts to answer the question that was presented it's terribly disappointing on a day where this Commission could be celebrating and basking in bipartisanship in solving problems the idea the Commission has now decided it will likely deadlock on a central question that we asked because it's a hypothetical just vote it a hypothetical don't -- spare me that you are disagreeing on the law what you're saying is you don't have enough facts. And therefore, you can't give me an answer. And it's a hypothetical and we'll see whether a judge believes that a Commission can raise the question of a hypothetical at this point in the process. I don't think it's a hypothetical I think I asked you a genuine question. 
>> CAROLINE HUNTER: Commissioner Walther, is there a room for this second sort of fork in the road that I was trying to describe or -- I'm not hearing that you need more information. I think you said, well, I would take more information if you gave it to me but did you say that you need more information? 
>> STEVE WALTHER: What I'm trying to say is if -- it doesn't look like we're getting too far along here. I'm trying to make something work. And of today we've done pretty well and in some ways we have not. 
But what I'm concerned about is where all these steps are taken sounds good to me. This is what you want to do. But I want to leave the door open so that we don't get bound up with that word and somebody is using exactly the same scenario in a way that doesn't really amount to an event we were talking about earlier about saying otherwise comply with the regulation. 
>> That's fine. 
>> STEVE WALTHER: We were talking about saying it could be a factor I see no reason why people should be afraid to recognize it in determining whether or not it otherwise complies with the reg as a good faith event a factor can be a factor it can't be a consideration I'm not hearing that's acceptable at this point. 
>> I'm fine with it being a factor in other events people are going to read this and say in other events it will be a factor like -- but if we follow this -- maybe I should turn it this way it's not usually my place to ask questions to you but what other representations do you want about this event to know you say you need more detail. It seems like you need more detail what other representations can we put around this event so we can say unequivocally numerosity doesn't matter. 
>> STEVE WALTHER: Are you asking us here as I understand it you assume two people are going to attend. 
>> No I didn't assume two people are going to attend I ask if we do these things if we have an invitation, we have remarks, we have disclaimers we have it at a date certain time certain in a place where events are customarily held if we do all of that, does it matter how many people we invite if the answer is no, it doesn't matter how many people we invite then we know we don't have to be mindful of a particular number if you say yes it could be a factor well numerosity does matter then we ask is it 2, is it 8 what is a factor of 2 presumably at 1,000 it's no longer a factor so where is it -- where is that place that we need to know so when we hold our event we don't wind up with an FEC complaint and dealing with discovery from Mr. Petalas because I can say I got an advisory opinion. 
>> CAROLINE HUNTER: I honestly couldn't remember what the Chair told me with respect to which one you were willing to work with us on I think you said 12 I honestly can't remember if it was 11 or 12. 
>> CHAIR ANN RAVEL: He didn't agree with it. 
>> CAROLINE HUNTER: Would you agree with the language we've been talking about on Question 12 it's a little different because we have added all kinds of -- 
>> CHAIR ANN RAVEL: I have -- and I understand your argument and I have some of the same concerns I think if we put in and I understand we want to narrow it to the language -- to the facts and the issues that you've set forth I understand that and you've done that. But we do need to -- we live in the real world unfortunately here of the FEC. And and AOs while they relate to you and your questions are often interpreted in other ways. So we do I believe have to have same language in it that ensure it's understood it wouldn't be applicable to potential other factors and you and I had this conversation before. 
>> CAROLINE HUNTER: There's good news there because every advisory opinion ends with a paragraph. 
>> CHAIR ANN RAVEL: Yeah, I know. 
>> CAROLINE HUNTER: That says -- 
>> CHAIR ANN RAVEL: I understand. I know that but nonetheless we know that we have used AOs as precedents in other matters because of language that may not have been narrowly construed. That's my concern. And not to you know be -- I'm not at all saying that I'm suspicious of anybody's motives or any of the discussions that we've had here at the table. I just believe that we now have to have language in here that is enough of a constraining language. 
>> CAROLINE HUNTER: What are you thinking, what kind of language as I said it already says such facts or assumptions are material to the conclusion presented in this advisory opinion if anything changes then people can't rely on it. And you can only rely on it if they are materially indistinguishable facts and that's required by the law. 
>> CHAIR ANN RAVEL: Yes but there are other issues that might arise for example now he's saying that the request doesn't ask for a particular number. Or number of people or any other possible that might make sense to talk about as an issue that's part of the concern I think that we understand that with regard to the question has asked it's appropriate to say what you want to say but we don't want any of the consequential decisions that could be made in Mersa or other circumstances that would expand it. That's the problem. 
>> With all due respect Madam Chair it's not me but you who turned AO into a rulemaking. 
>> CHAIR ANN RAVEL: No I have not turned into a rulemaking they are defacto rule makings at this Commission sadly we do not have rule makings and consequently -- 
>> CAROLINE HUNTER: That's not true. 
>> CHAIR ANN RAVEL: Not very many so consequently this is how they are interpreted and as a result of that I think it's important for us to be extremely cautious about how things are characterized in AO responses. That's just -- you know . . . Mr. Vice Chair. 
>> MATTHEW PETERSEN: I wanted to clarify with Commissioner Walther my colleague are your concerns -- are you just clarifying concerns that you don't want a vote for Question 12 to be construed in the wrong way? And making that part of the public record? We've had the edits about talking about how this is based on and conditioned on the factual representations and the representations regarding compliance with the relevant regulations? Or is your concern that even as proposed in my motion that you've got problems with that, as well? 
>> STEVE WALTHER: I'm trying to leave open for the future a discussion of if -- even if these facts are taken, there could be ways in which it can be abused. And to recognize that fact. 
And so somebody comes to us and says that we did all of these things, that the majority PAC says but we also -- you've got two people that came and yeah it turns out really there was intent to have really only two people there and it was too far away for anybody else to attend. Ways in which the steps could be worked. I'm wondering at this point it seems to me we ought to be able to close a gap. We could vote on everything else and leave this open for further discussion to the next meeting. 
>> The next meeting is past 60 days if I had not been here once before I would have said that's fine. But my clients have to move on with their fundraising. We are in the middle of a cycle. 
>> STEVE WALTHER: We got a huge amount done and it's better to get a possible yes than a clear no. 
>> It might not be it might be better for me to sue the agency and use this record as a basis because I've now been told by the Chair it's a defacto rulemaking I've been told that we need to qualify and not grant my client an advisory opinion and I think it's frankly I can't recommend to my client they hold this open I think it's fair for the agency to say yes it is fair for the agency to say no it is fair for the agency to deadlock between yes and no it is not fair it is profoundly unfair for me to be here now being told that what you wish to do is to have the ability for my client to do exactly what they asked that they wanted to do and follow it and then still be subject to enforcement because you all want the flexibility to have that power. Congress took that away from you Congress gave me the right to an advisory opinion and gave you the obligation to issue advisory opinions and you want the flexibility. 
>> CHAIR ANN RAVEL: I have to have interrupt you here. Because I don't think anybody is saying what you're saying. Not anybody is suggesting that your clients if we agree to an AO in which we say based on your facts that that's not going to be a problem. But in other circumstances there may be other factors. 
>> I'm fine with that. In other circumstances. I'm totally with you. I'm 100% with you if it's other circumstances. 
>> CHAIR ANN RAVEL: But also I think the problem is I mean honestly the real problem here is that you've not added some things that are important for us to know. Such as if there are going to be two people at this event. 
>> When did you ask? The general counsel had ten days to ask did you ask them to ask me. Did they ask me I was here last time did you ask me? I mean if the Commission -- that's why I'm saying if the Commission -- what I take the Commission as saying or at least some of the Commissioners is that the request is a hypothetical it did not present sufficient facts and there was a draft that said it was a hypothetical I was very clear last time I was here I thought it was coming from this side if you said it was hypothetical I was likely going to sue you and what I'm hearing now is you are saying this is a hypothetical. That you do not have sufficient facts to answer the question. And if that's the case, then we will see where my clients decide they want to go with this but I will just tell you the profound disappointment I have in this agency as hopeful as I was a few hours ago I have defended this agency to the press every day and I just have to say how I wind up sitting here now and being told that I didn't tell you enough facts it's just extraordinary Madam Chair. 
>> CHAIR ANN RAVEL: I have your letter dated September 11th, 2015 on Page 19. And in the question it says a House contender appears, speak or be a featured guest described above if the number of expected attendees is two. 
So I know in our draft, we talked about two. 
>> Did you answer the question that was highlighted. 
>> CHAIR ANN RAVEL: Yes we said no, two isn't -- 
>> What about Question 12? What's labeled Question 12? 
>> CHAIR ANN RAVEL: I believe in draft -- 
>> No this is Page 18 you read from my request so I would like to point you to my request, Question 12 did you see 11 CFR 300en 64 require there be a minimum number of expected attendees before the candidate can per miserably speak attend or be featured as a special guest? Have you answered that question? 
>> CHAIR ANN RAVEL: Well my first view on this was that we needed to have a rulemaking. 
>> Did the general counsel's office tell me that? Did you tell me that. 
>> CHAIR ANN RAVEL: I said it in my first draft. 
>> In your first draft did I know it was your first draft. 
>> CHAIR ANN RAVEL: Yeah I said it. 
>> Draft B. 
>> Did I know draft B was your first draft. 
>> CHAIR ANN RAVEL: Yes I said it at the meeting at the last meeting I said it clearly. 
>> Let's just make our record clear where we go from here your position is if you want a rulemaking I don't get an advisory opinion? 
>> CHAIR ANN RAVEL: That's not my position at all. I have done Draft B. And I've signed onto Draft E and I've signed onto parts of Draft F. 
>> I understand. I said you can have -- if your -- in some respects I understand Commissioner Winetraub's position, it is that she just disagrees with me on the law. I totally understand that I think she's wrong and misguided but I understand it. But what I'm hearing from others on the Commission is you may or may not disagree with me on the law I just haven't provided sufficient facts yet and you want a little wiggle room to determine whether or not House majority PAC and Senate majority PAC can meet the subject of future enforcement. 
>> CHAIR ANN RAVEL: Actually if I haven't made it very clear I disagree with you on the law, as well does that help. 
>> That does help. 
>> CHAIR ANN RAVEL: Okay. Commissioner Walther. 
>> STEVE WALTHER: I'm a little afraid to start talking. 
>> CHAIR ANN RAVEL: You should be. 
>> STEVE WALTHER: After the word no can we just delete that sentence that first sentence? 
>> Which draft. 
>> STEVE WALTHER: No for the reasons stated below or something like that. 
>> Are we on Page 29 of Draft. 
>> STEVE WALTHER: Although Federal candidates. 
>> I've always been fine with just no. 
>> STEVE WALTHER: Get over to Page 31. And we think -- I wrote down some language in light of requesters representations that they will comply with all of the requirements of 364 comma together with any and all -- and all other requirements and engagements of that activity. 
Then we have -- at some point I do want an understanding that because the number has become a big deal that the number can be a factor. 
>> Given the facts we have laid out. 
>> STEVE WALTHER: Not necessarily here. 
>> In other cases? In other matters. 
>> STEVE WALTHER: Yeah but here is what my concern is you ask for an opinion but in a way you're asking for a safe harbor where -- 
>> Exactly that's what an advisory opinion is. 
>> STEVE WALTHER: I don't want to get into -- back into this again if you take the skeleton of information and add facts in either direction it can sway totally whether this is legitimate or not that's all that's all I want to say I'm not saying about today but I'm saying if this could be skewed in a way we don't recognize so I'm not comfortable with using the word safe harbor like this is all -- you can do it and you can have it anywhere you can invite anybody you can do whatever you want and the speaker can be a guest speaker we just invited from the other room. That kind of thing. We haven't been faced with these issues much at all. In the time I've been here. So it's not like it's a make or break deal and people haven't tried to comply with the law. 
I'm trying to figure out a way to help get it one more step toward a definitive way to handle matters. But I don't think I can give up on the fact that if somebody came to me and said they ended up having two people there, that's a factor. It's not dispositive I'm more than willing to say that, too. In other words it's a factor but not dispositive. 
I don't think it's unreasonable to recognize that we have to look at whether or not somebody had a fundraising event in good faith. And I don't want to get into the situation that Commissioner Hunter is concerned about but sometimes we find ourselves in situations whether we like it or not. So do you have any thoughts on how to get through this thing. 
>> Maybe the Commissioners should -- I don't know if any of the other Commissioners have thoughts. 
>> MATTHEW PETERSEN: When you say that should be a factor I think you're saying it should be a factor when we consider this in light of other facts under factual scenarios possibly by other requesters or other actors other than this. I mean that's -- because -- I mean if I understand you correctly and if I'm not then clarify. I've said hopefully I'm not completely repeating myself. But I think we want to give this requester I hope we want to give this requester an answer. While trying to confine the reasoning in a way so that -- exactly while my kids are still young. 
But also do so in a way that we're not crafting a precedent that you think could be abused. And that I think that's what this exercise has been about is trying to cabin it to these facts so that this requester as presented by the facts in his request and as he's represented information to us during the course of these many hours that he can take comfort from an advisory opinion but that we still -- if we're given different facts in a different scenario from either a different requester or a respondent that this is a narrowly tailored advisory opinion again I don't want to put words in your mouth. 
>> STEVE WALTHER: I think you're capturing the concern I have and there's got to be a way to make this work and let's get out the door without throwing your file at us. 
>> ELLEN WINETRAUB: I'm going to try framing it this way what Mr. Elias is asking for do numbers matter. Given everything he has told us given a formal invitation and program everything he laid out in his request and two people show up, would you be comfortable with that if you would, then you should say yes, you should join with the Republican Commissioners and say yes. If you wouldn't -- 
>> STEVE WALTHER: Actually say no. 
>> ELLEN WINETRAUB: Sorry say yes to what he wants to do. 
>> It was a trick. I'm just kidding. 
>> ELLEN WINETRAUB: No I wasn't trying to do that. If that makes a difference to you numbers do matter they matter to me I said that at the outset but if that would make a difference to you then as I said before I don't think there actually is a meeting of the minds and I do want to say one thing on one other point. I understand your frustration Mr. Elias we are all a little bit tired, hot, frustrated and cranky at the end of the day but I want to make one point you have repeatedly here today and on Twitter and in public suggested that our Office of General Counsel has sat on your request for an imper miserably long period of time statute provides we have ten days to review a request before we make it public and that gives us -- and you asked a complicated question. And it took our staff a few days to go through it and make sure that they felt comfortable that they had all the information they wanted we posted it to the Web site seven calendar days after it was received and for you to repeatedly imply that our staff was networking in dealing with your request or drag their feet on it in any way I think is completely unfair and they are not going to take to Twitter to respond to that so I wanted to respond to that publicly. They were within all of the timelines you can complain about us about our not being more forthcoming with you at the last meeting or our sitting here all day long and then perhaps not resolving the question. Fair game. I'll take that criticism. But I really think that it was unthwarted of you to criticize the staff in that way. 
>> And I would like to respond if I may. 
>> CHAIR ANN RAVEL: User a minute. 
>> STEVE WALTHER: Give us five minutes. 
>> CHAIR ANN RAVEL: Go ahead and respond. 
>> That's fine, first of all, I asked for expedited treatment for this matter within 30 days whisper sunt to a policy the Commission adopted. 
>> ELLEN WINETRAUB: I get it it was a complicated question and we weren't capable of doing that. 
>> First of all I asked it to be expedited and handled within 30 days because it was sensitive and in case you haven't noticed there's a lot of super PAC activity going on out there. 
I noted publicly and I'm happy to note here that the general counsel's office has ten days and they were prepared to take as much of it as they needed which was a lot of it. And during that time period, they didn't ask me a single follow-up question I send a lot of advisory opinion requests and get a lot of follow-up questions and a lot of follow-up questions that I complain about getting follow-up questions about because how could it possibly be relevant in this instance what I wanted to make sure at 45 days later I wasn't sitting at an FEC hearing being told that the Commission didn't hear all of the facts they needed so when I didn't hear from the Commission from the general counsel's office I was surprised given the complexity of the issues, I was surprised given the complexity of the facts underlying it and I did not want to wind up in a circumstance in which the request was not being granted because it was deemed to be hypothetical I never disparage the staff I think I've been quite complimentary to the staff today I think their draft was excellent. I would have -- would I have wished that the general counsel's office had posted a draft quicker? Yes, I think in general the Federal Government should move as expeditiously as possible on all things that involve customer service. I'm a taxpayer, I represent taxpayers, I represent regulated parties before this agency and they have a right to expect that if they submit a request that they will get things treated as promptly and expeditiously as possible. And not hearing back from the general counsel's office did lead me to question whether or not it was being processed as quickly as possible. 
The language that I used about sitting on it was language I used today. And I used it today because it is inconceivable to me somehow I would love to have been a fly on the wall in this agency to understand how no questions were generated during that time period and yet there are so many questions today by the Commissioners. 
>> ELLEN WINETRAUB: Then you should blame the Commissioners not the staff. 
>> I'm happy to blame the Commissioners I'm saying I routinely get follow-up questions in this instance I didn't. 
>> ELLEN WINETRAUB: You should be gratified by that. 
>> I was until today at which point I'm being told you don't have all of the facts necessary. You do I'm not -- this is not to you Commissioner Winetraub but that there are others who wish they had more facts so that they could more directly cabin or know what it is they are weighing in on and it will surprise you to say I actually don't disagree entirely with the way in which you framed this. I disagree with you on the law but in terms of -- 
>> ELLEN WINETRAUB: You don't like my answer but you don't disagree with the question. 
>> So I hope that answers it I didn't mean disrespect to the staff. I didn't mean to suggest that they violated their duty I think the general public would have been better served if they had an answer within 30 days I know it's complex but there are few things that this agency right now is confronted that it should be more pressing than questions that involve super PAC activity so yes I will not back down a minute and say -- the agency dealt with the text messaging AO last cycle by the phone companies. Where it was a totally novel question. Completely acceptable with getting contributions within text messages they did it within 20 days there are (away from microphone) they did it because I think the agency determined that in the heat of a Presidential campaign when Presidential candidates wanted to raise tax money it was a priority of the agency to move. They clearly didn't view this advisory opinion in that same category. 
>> ELLEN WINETRAUB: I disagree with that. 
>> That's okay that's their prerogative I'm saying I can be critical of that. 
>> ELLEN WINETRAUB: No, A, it's the Commissioners -- the staff came up with one draft it was the Commissioners who came up with another five drafts. 
>> I have complimented that draft. 
>> ELLEN WINETRAUB: You have and I'm sure the staff appreciates that but again I yield to no one in my desire for timely action by this Commission but you cannot expect an instant answer to a complicated question and I think that this in many ways presents more complicated questions for the Commission than the text messaging AO. 
>> That's fine I will add only since I feel like at this point we're just talking while they are talking. 
>> ELLEN WINETRAUB: We are talking while they are talking. 
>> The other thing I will add if you go back to what I said on Twitter at the time I was upset it wasn't posted I do not understand why the agency cannot more timely post materials. 
>> ELLEN WINETRAUB: Because we were considering the staff was going through it and considering whether they needed to ask you some questions that's not an instantaneous decision. And they ultimately decided no it was okay. 
>> This may very well be a moment where perhaps we'll have agreement perhaps disagreement I'm glad the Chair is listening to this, I sat in that John Carrie's Presidential audit was here unable to ask questions that the Commissioners had about the nature of questions in that process -- I'm sorry in an advisory opinion, it was the advisory opinion in which the Cary campaign paid for media I couldn't answer questions as a result there was a change in process of how AOs are handled and I might suggest to the Commission that it consider that materials get posted instantaneously. They are afterall FOIAable. Whether ultimately whether that document was accepted or rejected it's FOIAable so why doesn't the agency committed to disclosure say when you file something with our agency we just post it. It's out there in the world. And then if our lawyers need to ask follow-up questions they ask follow-up questions but that document is public and that's what I was irritated about. I wasn't education pressing how long they were taking to answer the question but if you look closely why isn't it posted. Why doesn't the public who has read about this request in the New York Times why can't they actually see the request on the Web site so it was actually a pro disclosure concern I have. 
>> ELLEN WINETRAUB: I think you raise an interesting -- that would be a change in our procedure as you know by long, long, long tradition what we do is make sure the request is complete and maybe we should consider -- 
>> I ask you to think about it. 
>> ELLEN WINETRAUB: I will think about it you can post it on your Web site Mr. Elias. 
>> I didn't figure this out yesterday. 
>> CHAIR ANN RAVEL: I think it's worthy we're discussing different ways of disclosing more documents and I personally like your idea. We'll discuss it with counsel. 
>> Well thank you. 
>> CHAIR ANN RAVEL: Absolutely. 
>> ELLEN WINETRAUB: If we need to ask you more questions and have you amend it then I guess we can do that. 
>> CHAIR ANN RAVEL: Let me go back because I understand when I was talking to another Commissioner that I missed some of the things that you were saying about us not actually wanting to respond to your questions which we do. There is no question that we do. 
And the issue is as I said you had a statement about the numbers -- -- 
(Audio lost). 
>> Thank you. 
>> CHAIR ANN RAVEL: I agree. So -- 
>> I appreciate that. 
>> CHAIR ANN RAVEL: So to the extent that we can, I mean there's obviously -- this is the most unusual AO so far in my tenure. 
>> I think I've done 50 AOs I think this is actually my 50s. 
>> CHAIR ANN RAVEL: And it's not unusual. 
>> No this is the most unusual AO for me, as well. 
>> CHAIR ANN RAVEL: I was going to make a suggestion but go ahead. 
>> CAROLINE HUNTER: On Question 12 if he does deserve an answer, what is your answer? Am I missing something. 
>> CHAIR ANN RAVEL: No. I think there's still conversations taking place about this. So what I am suggesting there's a number of people -- there's a number of AOs that we still have -- 
>> I didn't come with a tie. 
>> CHAIR ANN RAVEL: We don't mind. 
>> I left it in the office. 
>> CAROLINE HUNTER: So you want to wait to see how this sidebar goes. 
>> CHAIR ANN RAVEL: How the conversations are. 
>> CAROLINE HUNTER: It didn't sound like you were in play even -- but maybe you are. Okay. 
>> CHAIR ANN RAVEL: You know, I have no idea. You know. Let's just -- let's -- 
>> Why don't we take a brief recess to satisfy the Secretary's concerns about status. 
>> CHAIR ANN RAVEL: Let's take a brief recess. 
(Break.) 
(Standing by). 
>> CHAIR ANN RAVEL: All right is there a motion? 
>> STEVE WALTHER: Thank you, Madam Chair because my motion isn't convoluted enough I will further refine my motion with respect to Question 12. And do so as follows. 
>> Can I ask one question, are we on draft A? . 
>> MATTHEW PETERSEN: Yes we're going to import from draft A and insert it into draft F. 
>> Thank you. 
>> CHAIR ANN RAVEL: Could I also mention I understand that Mr. LowenStine is on the phone or Mr. Bates. 
>> They are both on the phone. 
>> CHAIR ANN RAVEL: I am so sorry to both of you. 
>> They can't hear you right now they are in the queue waiting. 
>> But you can still be sorry. 
>> CHAIR ANN RAVEL: I am really sorry I'm sorry for a number of reasons. But is there anyone who can communicate to them. 
>> Yes, Jim Jones can tell them. 
>> CHAIR ANN RAVEL: That we will try to deal with this matter immediately after this. Well, I know Mr. Reese is here, too. Okay. Thank you. Please. 
>> MATTHEW PETERSEN: Just for the sake of clarification of the record during the recession I spoke with Mr. Elias about the proposed motion just so there's no exparte issues or anything or that they are fully disclosed I just wanted to explain what we were doing. 
So on Page 29 of draft A, we will be inserting the analysis with respect to Question 12. But with the following modifications. 
The paragraph from Lines 8 through 10 we will remove. So thatthe answer will begin with although Federal candidates generally may not solicit non-Federal funds, et cetera. 
The next edit is on Page 30. On Line 10 there's a footnote 15. In the text to the footnote at the bottom of the page, delete that and instead insert as explained above, the Commission could not agree whether the single candidate committees would be permitted to raise non-Federal funds period. 
>> Isn't that where you were putting the parenthetical. 
>> MATTHEW PETERSEN: I think we put the parenthetical earlier. But if need be, we could also put -- 
>> Put that in the technical or whatever you guys asked. 
>> MATTHEW PETERSEN: Yeah. Then on Page 31, the sentence beginning with although requesters propose we are going to strike that entire sentence. And the next sentence we are going to -- in the next sense we are going to strike thus and the comma so that this paragraph -- then capitalize in. So it will now read in light of requesters factual representations and their representations that they will comply with all of the requirements of 11 CFR Section 300.64 and in other applicable Commission regulation when engaging in the specified activity comma a Federal candidate may attend, speak or be a featured guest as proposed period. 
>> You said that was the requesters. 
>> MATTHEW PETERSEN: Can you repeat the last phrase and any other -- 
>> MATTHEW PETERSEN: And any other applicable Commission regulation. 
>> CHAIR ANN RAVEL: Okay. 
>> MATTHEW PETERSEN: It's a stroked down answer but it is an answer. 
>> CHAIR ANN RAVEL: Madam secretary, do you have that? 
>> Yes, I do, thank you. 
>> CHAIR ANN RAVEL: Okay. Thank you. 
>> MATTHEW PETERSEN: So going back to after the reference to 11 CFR Section 300.64. 
>> STEVE WALTHER: Which one. 
>> MATTHEW PETERSEN: I'm sorry; on Line 6 of Page 31 it's kind of in the catchall. I'm trying to think of what's -- the requirements of 11 CFR 300.64 and any other requirement under the act or applicable Commission regulations. Commissioner Walther proposed that we also bring in the statute. So it's kind of a catchall. Does that make sense, madam secretary? 
>> Yes it does, thank you. 
>> CHAIR ANN RAVEL: Okay. Is that clear to everybody? Okay. Comments, questions, with regard to that? Already. Ready for a vote. All those in favor please indicate by saying aye 
(Chorus of ayes). 
>> CHAIR ANN RAVEL: All those opposed, no 
(Nos). 
>> CHAIR ANN RAVEL: Madam secretary that motion passes by a vote of 4-2 with Commissioner Goodman, Commissioner Hunter, Vice Chair Peter and Commissioner Walther voting yes. Let me finish. And two votes note, Commissioner Winetraub and myself. Mr. Notty. 
>> Today is the deadline the statutory deadline to send this AO to the requester. Given the time and the fact that it needs to be prepared and signed by yourself and sent, I was wondering if Commissioners might kindly ask Mr. Elias if he would give us a day or two -- tomorrow is a holiday. A day or two to complete that process. 
>> When do you need. 
>> CHAIR ANN RAVEL: You think by Friday. 
>> That would be great. 
>> That's fine. 
>> CHAIR ANN RAVEL: Is Friday good? 
>> Yeah. 
>> MATTHEW PETERSEN: Commissioner Walther also asked we circulate this informationally so we can actually see all of this in a draft. 
>> When we send it to the Chair for her signature we can send it to everybody is that okay. 
>> MATTHEW PETERSEN: That would be great. 
>> CHAIR ANN RAVEL: Don't worry. 
>> You read my mind. 
>> CHAIR ANN RAVEL: Yeah. Okay. Anything further on this matter? 
>> MATTHEW PETERSEN: I would only ask Mr. Noty, did you have the sufficient authority to make any technical informing edits that you need. 
>> You don't need to ask that anymore. 
>> MATTHEW PETERSEN: I wanted to make sure it was properly on the books. 
>> CHAIR ANN RAVEL: They always have it. 
Thank you very much. Really appreciate it. And I wonder if Mr. Reese would it be okay if we skip to the next Item 3. 
>> Thank you very much. 
>> CHAIR ANN RAVEL: Given that your firm has so much time taken up today, we're going to -- 
>> I'm laughing that he's going to say that I took up all of his time. 
>> CHAIR ANN RAVEL: Correct. No. You just have to hang out a little while longer. Thank you. 
So the next item on the agenda is drafted advisory opinion 2015-11-ethic. And we have Sam Levore, Jessica -- is Jessica here? Oh, Jessica. Jessica Sellencoff. And here to discuss the matter from OGC. And we also -- 
>> Mr. Bates Mr. RowenStine. 
>> Yes I'm here it's Mr. Bates. 
>> Mr. RowenStine counsel for ethic. 
>> CHAIR ANN RAVEL: Thank you very much Mr. Bates and Mr. RowenStine and we sincerely apologize for you having to be on the telephone for so long. But we appreciate your patience. 
>> It's all good. 
>> CHAIR ANN RAVEL: Mr. Levore do you have a presentation please. 
>> Yes thank you and good afternoon/evening Commissioners agenda document 1561 A is a draft response to an advisory opinion request submitted by ethic incorporated. Ethic has developed a mobile application that uses among other things Commission data to match users with ideologically similar candidates and corporations. 
The request asks four questions about the proposals permissibility. First whether ethic may display factual information about candidates and corporations to its users second whether ethic may use aggregated Commission data as part of it's algorithm third whether they can license a status including aggregated Commission data to third parties and fourth whether Ethic can sell advertising space on it's application to third parties including political candidates and committees and the draft answers all of these questions in the affirmative. 
Then finally, Ethic also asks if it will be subject to any reporting requirements under the act or Commission regulations. And the draft concludes Ethic will not need to file any reports with the Commission. There were no comments on the draft or request. Any questions? 
>> CHAIR ANN RAVEL: Thank you. 
>> What is the deadline for this advisory opinion. 
>> The deadline is November 30th. 
>> CHAIR ANN RAVEL: Do you have any specific questions of counsel or any other Commissioner, any questions? 
>> ELLEN WINETRAUB: Not a question I just want to say that I have reviewed the draft. I'm prepared to support it. 
>> CHAIR ANN RAVEL: As am I. Commissioner Goodman did you have a question. 
>> LEE GOODMAN: Yeah I had a question for the requester. Is this Mr. LowenStine. 
>> Correct. 
>> LEE GOODMAN: You made a representation that you view your ethics application as a news organization or media company that is distributing information to readers. 
>> That is correct. 
>> LEE GOODMAN: Could you elaborate on that a little bit? Why you categorize your application as a news organization or media company and what it's news gathering function is and it's dissemination function. 
>> I think it is fairly characterized in that way insofar as the purpose of the app is to inform consumers and to match consumers of candidates who may show their preferences and because it's also being updated regularly with recent current events and prompts so as to better determine the preferences of individual voters, it's very much up to date and in that respect it's a news organization. 
>> LEE GOODMAN: Do you exercise -- do you employ journalists? 
>> No. There are no journalists employed to my knowledge. 
>> LEE GOODMAN: Okay. Do you aggregate news? When I understand that you're going to help create a personal profile, what are you delivering to people? Are you delivering news shorts? Just news articles, what are you delivering to these people. 
>> Maybe I should take a step back if I may to describe Ethic at a high level so the purpose of Ethic is for people to use this app, which is free, and to get a profile for each user. And ask a variety of questions what they ask about a variety of political issues and on a variety of current events, which will help determine what the app of that user thinks and believes and that information they use to match them up for candidates they may like or dislike and each candidate that's on the app will be given a score that would be relatively high let's say if the user were broadly liberal speaking then a candidate in largely liberal positions will get a relatively high score and conservatively one would get a low score conversely if the user were conservative the conservative one would get a high score and liberal one a low score so I'm not sure if that helps give some background on what the app is and how it uses the information. 
>> LEE GOODMAN: Let me explain what I'm getting at. I read in your request Ethic is a non-partisan news organization media company available via a mobile platform that enables it to users to make more educated voting and purchasing decisions. Now if I subscribe for free to a daily update from the Washington Post, or the New York Times, I'm sure I can tailor some of the news that I get from them. And with yours, I'm not sure I'm getting anything other than -- I can't tell what I'm getting. I guess because I haven't been able to use your application, I can't tell exactly what I'm getting. 
But if you are a news organization or media company, the answer here might be very different than the proposed answer that you see that is blue. 
And it's -- while you might get yes either way, the rationale is profoundly different. 
Because if you're a news organization or media company that's delivering news content about candidates and businesses, you're exempt from our regulations, wholly exempt under a separate statutory regulatory doctrine called the press exemption. 
And so I couldn't tell from your request that you are a bonafide news organization. I think that the draft you see reflects some that people weren't necessarily impressed that you -- that Ethic qualifies as a bonafide news organization media company as opposed to something else. So I guess I'm asking you, can you help categorize yourself or define yourself for the Commission as a news organization or media company by the -- by the content that you deliver to people. It's a fork in the road. 
>> Did you complete your question. 
>> LEE GOODMAN: It's a very important legal fork in the road that we take if you're a bonafide news organization. 
>> So I think it's fair to characterize Ethic as a news organization but it's certainly not a traditional news organization in the sense of the Washington Post or FOX News for example would be a more traditional news organization. But it is the case that Ethic is intending to present its users with current event information, with perhaps articles or other news content. And so in that regard, I think it is fair to characterize them as a news organization. But because it's not a traditional news organization we felt it was the safest course to ask the questions that we did ask and get the answers that we did. 
>> LEE GOODMAN: So I take it you're not asking for the press exemption from the FEC. 
>> That's correct. 
>> LEE GOODMAN: Okay. 
>> CHAIR ANN RAVEL: I thought he was going to ask another question Commissioner Winetraub. 
>> ELLEN WINETRAUB: Could I ask, I know Commissioner Goodman cares a good deal about the press exemption but perhaps Mr. LowenStine wants to get information he can proceed with his plan so Mr. LowenStine do you have any concerns about the answers set nort in draft A? 
>> No I thought the opinion was perfectly fine from my perspective. 
>> ELLEN WINETRAUB: Thanks. 
>> CHAIR ANN RAVEL: Mr. Vice Chair. 
>> MATTHEW PETERSEN: Thank you, Madam Chair, I just have a question quick this is a question for my colleagues. Not for Mr. LowenStein so Page 4 Line 19 through 21, this was a couple of sentences that say added at one or all of the office's requests to an earlier draft and I just wanted to understand a little bit more of the importance of that language. And why that needed to be put in. 
>> CHAIR ANN RAVEL: Line 14. 
>> MATTHEW PETERSEN: Sorry; Line 19 through 21 so it's the language that says ethic proposes to limit the candidates and committees it chooses to display on its app but ethic will do so based on only business criteria and ethic doesn't support any political party candidate or political cause or organization. And the main reason I just ask, what's -- we've got a lot of different kind of like technological organizations, dealing with process processing and other things I know that limiting the number of candidates that can be incorporated in the site I know that sometimes can be a significant factor. In this particular case where it's not payment processing so you're not really providing a service to a contributor. And you're not providing a service to a political committee, either. Was this just a factual representation or was this -- did you think this was an important premise for reaching the conclusion? 
>> CHAIR ANN RAVEL: No I actually think this was done just to make sure it was clear they are not a political committee so that there's comfort. But it was not intended to create any issue such as -- I mean I actually thought it would be helpful. 
>> MATTHEW PETERSEN: This is a small proposal. Hopefully it's a non-controversial one. And it may seem trivial but may help some of us sleep better at night but Line 21 we use thus as if that contributes that that was a premise leading to the conclusion, the Commission thus concludeseth ache's proposed display can we strike the thus oh excuse me Line 22. I don't think it alters it in any way. 
>> CHAIR ANN RAVEL: It's fine with me. 
>> MATTHEW PETERSEN: Okay. Other than that, I'm fine. 
>> CHAIR ANN RAVEL: Okay. 
>> LEE GOODMAN: Bear with me one second. 
>> CHAIR ANN RAVEL: Okay. 
>> LEE GOODMAN: I've got a question. Is it critical -- that language is repetitive. It appears on Page 2 verbatim from Lines 8 to 11. 
>> CHAIR ANN RAVEL: Right. This is sort of the conclusion of that. Frankly I don't have a problem with it being. 
>> LEE GOODMAN: I propose we strike based on the facts we could do something like that. 
>> CHAIR ANN RAVEL: Okay. 
>> LEE GOODMAN: Okay let's just strike that. 
And that means -- 
>> CHAIR ANN RAVEL: That would be 19 -- 
>> LEE GOODMAN: Strike Lines 19 to 21 until you get to the sentence the Commission concludes. 
>> CHAIR ANN RAVEL: Instead say based on the facts presented. 
>> LEE GOODMAN: The Commission concludes that ethic's proposed display of information regarding candidates voting records statements and campaign financing is permissible you don't lose anything because the language is above. Is that okay? 
>> MATTHEW PETERSEN: That's fine. 
>> LEE GOODMAN: Okay. 
>> CHAIR ANN RAVEL: Is that all right? Do you have that madam secretary. 
>> Yes we're striking the sentence that's on Lines 19 and 21 on Page 4. 
>> CHAIR ANN RAVEL: Right and adding based on the facts presented the Commission concludes. 
>> LEE GOODMAN: Striking the word thus. 
>> CHAIR ANN RAVEL: Yes, strike thus. 
>> Thank you. 
>> CHAIR ANN RAVEL: All right. Is there -- 
>> LEE GOODMAN: Before we go to motions for Mr. LowenStein's benefit, I appreciate you coming to the Commission. I understand that you have an application to take to market to get capitalized and so having a document from the FEC certainly helps you. 
I would encourage you in addition to this to look at the FEC's press exemption. Getting this opinion does not preclude you from coming back for another request in the future. You didn't provide us enough for a conclusion on that since it's not proposed you may want to take a look and come back to the Commission in the future depending on the content and functionality of your application. 
>> That's great. We appreciate it. And we will certainly take it under consideration. 
>> CHAIR ANN RAVEL: All right. 
>> ELLEN WINETRAUB: Maybe just be happy getting his yes today. 
>> LEE GOODMAN: We're going to give him both perhaps. 
>> CHAIR ANN RAVEL: Mr. Vice Chair. 
>> MATTHEW PETERSEN: Thank you Madam Chair in consideration of advisory opinion request 2015-12 Ethic, I move approval of draft A, which is agenda document 15-61-A. As amended at the table. 
>> CHAIR ANN RAVEL: All those in favor 
(Chorus of ayes). 
>> CHAIR ANN RAVEL: All right. Madam secretary -- I'm sorry; all those opposed? 
Did you vote no? I'm sorry. 
It's been a long day for all of us. 
That motion passes 5-1. With Commissioner Winetraub, myself, Vice Chair Petersen, Commissioner Hunter and Commissioner Goodman voting aye and Commissioner Walther voting no. 
>> I would like to note Mr. Lavore is an intern for the NYU law school and has done a great job of creating consensus on the Commission so well done. 
>> CHAIR ANN RAVEL: Yes, well welcome. 
All right, the next item is Item No. 2. AO draft advisory opinion 2015-11 FYP. Today we have Esther and Amy from OGC here to discuss the matter and we have Ezra Reese and Tyler from Perkins counsel for the requester here thank you very much for your patience. Do you need more water? 
>> I have a little bit of a cough so that would be fantastic, thank you. 
>> CHAIR ANN RAVEL: Yeah. 
>> Thank you very much. 
>> CHAIR ANN RAVEL: Full service so welcome. Do you have a presentation, please? 
>> Yes I do thank you Chair and good afternoon Commissioners. 
Before you is agenda document 15-62-A a draft advisory opinion in response to a request from FYP. FYP is a limited liability company registered in New Mexico that's asked to be treated as a corporation for the purpose of this advisory opinion. 
The requester is developing an app called my change. My change will round up a participating user's credit card or debit card transaction to the next whole dollar amount and provide the difference to political committees or other nonprofit organizations designated by the user. 
The requester asks whether it may implement my change without making a prohibited corporate contribution and whether a user's contribution to a political committee through my change would include fees paid by the user to the requester for its services. 
The draft advisory opinion concludes that the requester may implement its proposal without making a prohibited corporate contribution because the requester would be acting as a commercial vendor and would receive the unusual and normal charge for its services. 
The draft also concludes that the requester would not be serving as a conduit because the requester would be acting as a commercial fundraising firm and providing its services. 
The draft further concludes that a contribution made through my change would include the service fees paid by the contributor to the requester. We did not receive any comments on the request or on the draft. Thank you, I would be happy to address any questions that you may have. 
>> CHAIR ANN RAVEL: Thank you. Are there any questions? Comments? Mr. Vice Chair. 
>> MATTHEW PETERSEN: Thank you Madam Chair I just have a ask what your thought was about the analysis in this draft in that it your proposal is basically to provide a service to the contributeers. This draft fits this into an exception so that it in effect treats you like a vendor to a political committee which is a little counter intuitive that you're not in privy with that political committee at all. And I just wanted to get your thoughts on whether or not you think that is the correct analysis. Perhaps you're just happy that it says yes and we'll just move on but when I read that, it struck me as a little bit -- a little counter intuitive so I wanted to first of all since this is your proposal what sort of an impact might that have? 
>> Sure, thank you for the question you're quite right that in general I think the draft is excellent, I think the analysis is. But the answer is generally what we wanted, also, the reasoning is good and I think especially with the treatment of funds going to political committees treats the issue in a much more sophisticated way so in general we're quite pleased. I think the treatment of the organization as essentially acting as a vendor to the political committee even though as you know there really isn't any contract is I think a little troubling I worry it will back the Commission into an odd place in future rulings every company chooses the people it does business with not every -- UPS is I think an interesting analogy here used repeatedly but not every delivery company delivers to every address most don't Starbucks and Walmart will kick you out for no reason even -- (away from microphone) it will bar you for any or no reason. And I wouldn't think that the fact that the screen is ideological would mean that there's less protection there. The fact is that most companies, including for profit companies that deal in politics have an ideological bend and I think there's some First Amendment implications for arguing that a company that chooses its customers based on ideology is somehow at a disadvantage compared to other companies while this issue isn't before a Commission I would think if someone came and said the ideology was based on religious profit they would be forced under religious freedom Restoration Act they would have to back away since there's no precedent to support the argument that an ideological screen means that the committees would have to burden the expenses, I worry about what this would mean for future requesters. It does impact us not in a tremendous way but I think it's a mistake for the Commission to go down that road. 
>> MATTHEW PETERSEN: According to your request, the ideological consideration and the financial consideration are not two separate ones. They are one and the same as I read your question you believe as a commercial decision that's an important one for your client to make. 
>> That's correct. Though I don't want to mislead the Commission there's a host of decisions that FYP makes to determine whether or not they are going to do business a political organization financial considerations are one but there is an ideological screen well if a candidate comes to FYP or a donor wants to give through the my change app and otherwise that recipient candidate would qualify but ideological considerations preclude it then FYP would turn that donor down and say we can't proetion that contribution that said I think that's frankly the way most politics work and also should be a protected activity. 
>> MATTHEW PETERSEN: And in terms of how you read the past AOs the way I've typically viewed the AOs skimmer hat, crowd pack, democracy engine is determining whether or not you're providing a service to the contributor or to the political committee doesn't turn on the availability of the service using U.S. mail or UPS it's on whether or not you're relieving the political committee of a burden and in looking at the proposed -- this proposed app I don't see any burden that's being relieved from a political committee so that's another element that struck me as a little bit like I said counter intuitive to consider that this company that's again not privy with a political committee that's not relieving it of any burden is then considered a vendor that would then be reported on on that committee's disclosure reports as along with all of its other vendors. is it somewhat unusual for an individual to basically thrust themselves upon a political committee as a vendor in this sort of a way I can't think of any other analogous situation there may be some others but none readily come to mind. 
>> Well unsurprisingly I agree. And ideological screen and some of the treatment of funds where it seemed to be uncontroversial the my change system is really no different than any other systems the Commission has approved before the recipient committees don't know how much the fees will be they don't agree to them ahead of time they really don't have any control over it and I agree if it's not a burden that is the committee's to alleviate and if the committee has no control over those expenses, I don't see how the my change system becomes a vendor to the recipient committees. 
>> CHAIR ANN RAVEL: Okay. Any other questions? Commissioner Goodman. 
>> LEE GOODMAN: Walk me through my change's business rationale. It appears to be you'll see reflected in the draft there's significance attributed to the business decision to screen your customers' options to give whether it's nonprofit organizations or political campaigns by perhaps one idealogy now I can imagine a company that decided for business reasons if I'm going to attract the largest possible customer base for this, I need an identity I need to be Pepsi or Coca-Cola I need to be Republican or Democrat I need to be give conservative or liberal. I can imagine one company might operate two apps. One give conservative one liberal in order for brand identification all of the things that would go into attracting people to one community and one app. Can you walk us through the business decision? Because it appears to be there's some trouble here at the Commission that that business decision somehow has changed you from being a vendor to customers, individuals, users to somehow be coming a vendor for campaign so talk to me a little bit about the business decision. 
>> Sure there is a business motivation behind it the goal of my change is to become Brand on the progressive -- branded on the progressive side where an individual can go to give to progressive organizations including candidates that's certainly true. 
I honestly don't know whether people behind it are truly Democrats or not or whether they are cold hearted corporate motivators. I don't know. You can take your guess. But you're quite right that there is a branding decision. That says, I don't believe there are current plans to set up something identical -- 
>> LEE GOODMAN: I'm saying somebody could. 
>> Sure. 
>> LEE GOODMAN: My example was one company could do both to brand two different apps in order to attract people. 
>> Sure, yes. You're quite right and this is in very large part a business decision to try to collect the collective power of people who tend to give to one set of organizations because let us be honest people who give to one progressive candidate are much more likely to give to another progressive candidate than a progressive and conservative these issues tend to track in concert. 
>> LEE GOODMAN: If you're trying to brand yourself as a liberal giving spot, both on the nonprofit and political side of the fence, and all of a sudden the Federal Government says well you've got to take all commerce. I take it that effectively blocks an ineffective business plan for you. 
>> It doesn't block it but does penalize the recipients of the contributions. The FEC is put in this position of saying either you must drop the jl logical screen and accept all comers and -- ideological screen -- and dilute your brand or the people who will be getting those contributions will be less served by donors giving through you than through some of your competitors. 
>> LEE GOODMAN: If you've got -- if you have to -- well let's then talk about what's the practical difficulty of changing your business plan? Because this current draft essentially calls for you to abandon your business plan and adopt a new one. Which I take it means you are no longer going to be a vendor to your individual users and donors you're going to be a vendor to campaigns that meet your screens that vendors requests and want to give to. And I take it that that creates a different set of transactions. You now have to transmit money to the campaign, get paid by the campaign, enter into a payment agreement with the campaign and now you have to go to every campaign that you would like to transmit money to or that your users would like and have to get their agreement to employ you as a vendor. 
>> Certainly some of the transaction documents might have to change. There's a couple of different ways of doing this on -- when dealing with a vendor service where you have to actually have the committees essentially accept and own and report the expenses. 
And I think different organizations and there are some business models that do this treat it in different ways whether you set it up and get paid by the committee ahead of time or send a net check and assume the expense I think there are a couple of different models. we could do that it's not our current proposal and certainly it's a different way to go than we're currently proposing and would affect our launch and our setup absolutely. 
>> LEE GOODMAN: What if campaigns say no we don't want to use you as a fundraising vendor for us now you have to turn to the users and say sorry can't give to candidate Smith. 
>> Honestly I don't know -- let's say we take the netting out option and we send a netted out check to a candidate and the candidate says we don't accept we have incurred these responses we're not going to report them I'm not sure what happens. 
>> LEE GOODMAN: Why did you take our money we didn't agree to pay for this. 
>> Right and they could ask for a piece of their money back that's quite right. 
>> LEE GOODMAN: I guess there appears to be some significance to your selection of candidates. The Commission has a long history of accepting vendors outside of the context of transferring money for example so T-shirt vendors I like to sell Republican oriented T-shirts I don't sell democratic oriented T-shirts at least I don't sell them outside the Republican convention hall I'm going with the ducks are it's my business plan to sell either R or D T-shirts or buttons and pins or Clinton or Bush not the current but the old buttons or pins. The Commission has been passed these issues. So just because a vendor sells only Bush paraphernalia and T-shirts that's still a vendor selling her T-shirts to customers that come to that vendor and that vendor doesn't somehow become a vendor to the Bush -- George W. Bush's campaign. Right? There's an old AO about that. So I guess here what your view somewhat because you've transmitted money so you have chosen to sell instead of T-shirts you've sold an interesting creative collection contribution system where you round up so r to -- round up to $1 and help people participate in civic affairs according to their choice. How are you different from the T-shirt vendor there I take it here there may be some views that just because you're transmitting the money to the campaign now there's a transaction between you and the campaign but I view you like the T-shirt vendor. Do you. 
>> Essentially I do and I would also ask the Commission to look at the reverse my change app is very similar to other systems the FEC has approved with the only exception that we are refusing to work for ideological business reasons with some candidates and committees but that's really the only difference. And you're quite right that partisanship in business is quite an old model it's true for vendors and lawyers I know Mark Elias would represent your campaign that would be an anomaly most companies in the business space are bipartisan that's never given the Commission any trouble as long as there's an arm's length transaction and a profit motive which there is here. 
>> LEE GOODMAN: Uh-huh. I'm just taking this colloquy to the Commission I have a concern with the current draft and I'm not sure I can support the current draft. On the basis that it's going to thrust upon -- we have approved the selection -- a person's -- a retailer's selection of one side of the fence or the other. I believe as of yesterday or today we even agreed to allow repledge to restrict to two campaigns. And we have in skimmer hat and crowd packing agreed that you can recommend a candidate and send the contributions to the candidate that you recommended. By the way if you look at crowd PAC's Web site it asks you your criteria it says are you a Republican or Democrat are you looking for Republican or Democrat candidates so if I put in I'm looking for Republican and it gives you ideological scale and issues, it recommends on that side of the fence and then it transfers the money there. All the way down to the old advisory opinions of the Commission, 1994-30 -- it was about T-shirts and selling T-shirts only on the side of the conservative idealogy and the same thing came up in 1999-17 which was George W. Bush's question about vendors at Bushware.com chose one candidate and sold paraphernalia targeted with only one candidate of all the candidates out there. So we have historically approved vendors having a relationship with individual citizens to sell their wears and services to them. We have extended that to limited choices and recommendations of candidates in the contribution of sphere in skimmer hat in crowd PAC and repledge. I don't know why this requester has somehow stepped beyond the Rubicon so much that it should be considered and thrust upon the political committee as a vendor to the political committees completely changing its business model and its choice to be a vendor to individual people. What's the deadline for this opinion. 
>> November 23rd. 
>> LEE GOODMAN: The 23rd I guess I would ask, do you have -- could you accommodate more time if we needed more time to work through these issues. 
>> Unfortunately not much we're business and launching in early December so we can accommodate until the end of November but unfortunately that's it. 
>> LEE GOODMAN: I'm not sure if the Chair is going to recess this meeting where we can take this up again but I'm not sure I could support draft A the way it is. 
>> CHAIR ANN RAVEL: Mr. Vice Chair. 
>> MATTHEW PETERSEN: Madam Chair since we don't have a meeting in between that time and now, I share many of the same concerns that Commissioner Goodman has. I think that -- the good news is I think all of us are probably feeling like there is a yes there. I'm wondering if it might be worth seeing if we can't work something out before the end of the month preferably before the time runs out but if we needed to extend it to the end of the month then we could ask. I think that -- I think that -- by certain other matters I haven't had a large opportunity to discuss this issue with my colleagues but at least I've had the sense that there's -- we can all get to yes in some way, shape or form. But maybe a way we can do so and a way that gives us comfort for the analysis I think that would be worth. 
>> LEE GOODMAN: I will renew my suggestion that we recess this meeting until next Tuesday morning and we can probably knock a few of these issues out next Tuesday morning before we go into exec session. 
>> CHAIR ANN RAVEL: I think we can figure out a time to recess it, too. I think we should maybe have some discussion about when. But that might make sense. 
>> LEE GOODMAN: Could you tell me the deadline one more time. 
>> November 23rd. 
>> CHAIR ANN RAVEL: Yeah. 
>> CHAIR ANN RAVEL: Okay. Is that the consensus, everybody? 
>> ELLEN WINETRAUB: I'll say I reviewed the draft. I thought the draft was fine. I didn't hear any concerns from anybody other than some vague rumblings that maybe some Commissioners wanted to do something different but we couldn't get any information as to what the concerns were or what they wanted to do differently so I mean I was hoping we could get these folks an answer today and I would be happy to do so. Having said that -- 
>> LEE GOODMAN: We can go to a vote today if you would like to go to a vote. 
>> ELLEN WINETRAUB: If there aren't going to be four votes I'm expressing frustration we couldn't have gotten more information before we showed up at the table. I would like to hear what counsel has to say in response to it. I'm betting they haven't heard any of these concerns before, either. Of course I'm happy to try to -- I'm happy to try to come up with something to propose a different draft happy to look at it and try to give these folks an answer. 
>> CHAIR ANN RAVEL: All right. Let me ask you about that. Do you think that you would be able to -- you were talking about doing it on Tal -- on tally do you think you would be able to come up with something soon in order to do that so that we can sort of keep counsel from having to return since he's been sitting here all day long he's probably sick of this room. 
>> It's always a pleasure. 
>> CHAIR ANN RAVEL: You like the peeling wallpaper. 
>> MATTHEW PETERSEN: Some of that depends on whether or not we are going to try to find another time to meet. between now and next week or something. 
>> CHAIR ANN RAVEL: Right I think the question is if we have a time -- if we do it say Tuesday morning that might not get enough time to be able to think through that. That's why I don't want to suggest Tuesday morning as the time that's what I'm worried about. 
>> MATTHEW PETERSEN: I would hope we could put something together -- I think we may need to consult with OGC. I think -- we have a little bit of a hiccup in the week with tomorrow as Veterans Day but I would hope we could put together something that we could show around I don't know and try to do it with the mind of trying to find something that will be able to attract the largest group of supporters as possible I certainly shoot for trying to get that done in the next few days. 
>> CHAIR ANN RAVEL: Why don't we try to do that where we can agree if necessary we can schedule it for next Tuesday and ask you to come back but hopefully we might be able to resolve it prior. 
>> Wonderful. 
>> CHAIR ANN RAVEL: Okay. But we'll let you know. Madam secretary, did you have a comment? 
>> I'm understanding then that we will recess the open meeting until Tuesday is that correct. 
>> CHAIR ANN RAVEL: But we're not ready yet to recess. There's more to do. We haven't discussed that yet. 
>> Okay. Just wanted -- 
>> CHAIR ANN RAVEL: We haven't discussed it yet. 
>> Thank you. 
>> CHAIR ANN RAVEL: Yeah that's a potential. 
>> Okay. 
>> CHAIR ANN RAVEL: That is a potential. Are there any other questions that might be helpful to be answered by counsel? No? All right. Thank you very much. 
>> Thanks for having us. 
>> CHAIR ANN RAVEL: Thanks for your willingness to be here all day. 
>> CHAIR ANN RAVEL: So I understand into there's an issue with the -- madam secretary. 
>> Yes I am checking. Just bear with me a second. We have the captioning staff on now until 7:00 o'clock. 
>> CHAIR ANN RAVEL: Captioning until 7. The closed captioning people are here until 7. So the next item -- I think we should. Yep. 
>> Are we planning on recessing to a date certain. 
>> CHAIR ANN RAVEL: Yes we may. But you know, we discussed this a little bit. I think it would be good for us to do as much as we possibly can today. Because we have a very full agenda on Tuesday. 
>> Madam Chair, I would request if we're going to recess that we move items 5 and 7 to the recessed meetings take up Items 6, 8, now. 
>> CHAIR ANN RAVEL: Well, we already know that Item 6 we do not need to discuss. There's already -- is that right? The multi-state independent expenditures is going to be -- 
>> We're going to try to work on it offline. 
>> So we're not taking that up today. 
>> CHAIR ANN RAVEL: No we're not going to do that tonight. So -- I would suggest we do Item 4 -- no, wait. Yes, Item 4. 
>> Yes I'm sorry I skipped that one. 
>> CHAIR ANN RAVEL: Yes why don't we do Item 4 which is the next item. So the next item is -- 
>> If we're holding -- if we're going to calendar the rest of those for the next meeting, could we take this -- take Item 4 up at the next meeting, as well? 
>> CAROLINE HUNTER: I don't see any reason to take that up right now. And some of us have child care issues. I mean if it were a relevant important issue that we had to decide right now I think that would be different. But if it's -- it's a regs proposal along the lines of some of the things on the agenda that we're willing to discuss at a later date. Is there a specific need to talk about that. 
>> ELLEN WINETRAUB: I don't think we'll need a long discussion of it I thought it would be pretty quick. 
>> CHAIR ANN RAVEL: I would assume it would be, as well actually. 
>> ELLEN WINETRAUB: I also have child care concerns but I think -- I agree with the Chair we spent a very long time today an one AO and we have a bunch more things on the open. People came earlier and may still be listening in hoping for some resolution. On some of these matters. And we do have a very long agenda my concern is we're going to get backed up on the enforcement docket even further. 
>> CHAIR ANN RAVEL: Let me add that, I mean I assume you have all looked at the enforcement agenda, for the closed session agenda. For Tuesday and Thursday. It is very, very long. So in order for us to be productive, I would like us to at least try to address something else tonight. 
>> LEE GOODMAN: I'm prepared to discuss Item 7. I don't think we can resolve Item 7. But I'm prepared to discuss it in some detail. 
>> CHAIR ANN RAVEL: Yeah you should have been prepared -- you should be prepared to discuss every item since this was the date set forth meeting. 
>> LEE GOODMAN: I'm looking at the hour and what we're going to do. 
>> CAROLINE HUNTER: We need until 8:00 o'clock please. 
(Chuckles). 
>> CHAIR ANN RAVEL: I suppose we can do your priorities. 
>> STEVE WALTHER: What can we vote on. 
>> CHAIR ANN RAVEL: I think we can vote on 4, as well. I don't know what the resistance is to 4? If you think that it's not that significant, then why don't we just deal with it. 
>> CAROLINE HUNTER: Whatever you want to do. Go for it. 
>> CHAIR ANN RAVEL: I mean -- okay. This is Item 4. It's heavy within the -- it is reg 2014-9, amendment of 11 CFR 115. And thank you Nevin Stepanovic you've been here all day, too and Amy RothStein thank you is there a presentation? Do you have a presentation? 
>> I would be happy to make one. 
>> CHAIR ANN RAVEL: Thank you. 
>> Good afternoon, Commissioners. On November 18, 2014 the Commission received a petition for rulemaking from a public citizen. Petition asks the Commission to amend it's regulations regarding Federal contractors. Commission published a notice of availability on March 30th, 2015. And public comment period closed on May 29. 
In all the Commission received about 19,750 comments from individuals. And 9 comments from organizations. And elected officials. 
All but two comments supported the petition. 
The next step in the process is for the Commission to determine whether they should initiate a rulemaking or notice an issue of disposition. Thank you. 
>> CHAIR ANN RAVEL: Thank you. Are there questions of counsel? Any comments? Commissioner Winetraub. 
>> ELLEN WINETRAUB: Thank you, Madam Chair. I think most of what I want to say is incorporated into the motions which I will read at the appropriate moment so I won't repeat all of that first of all I want to apologize Mr. Holman a public citizen who sat here for many hours today and finally gave up on us but perhaps is still listening out there but we did get for us a lot of comments. We don't usually get 20,000 comments but we did get almost 20,000 comments and the consensus was almost unanimous that people want us to move forward on this. 
I know a couple of organizations had submitted comments saying they didn't want us to move forward and had concerns about the particular proposal that public citizen presented to us but if we were to do rulemaking obviously we would put out alternatives and you know we might not adopt the exact proposal that public citizen put before us. There are also some interesting examples that we could follow from Connecticut and the New York City camp and -- campaign finance Board both who submitted comments that were helpful. The New York City campaign finance Board in particular noted that the issue that we're talking about is related to the pay to play rules. And the New York City campaign finance Board noted the pay to play ban and others like it are un-- they can skirt the law by creating nominal subsidiaries to make political contributions to create a complex web of subsidiaries and contracting misleads the public and undermines the pay to play bans purpose of perceived core corruption so I believe that we should open a rulemaking and we should put out any number of alternatives. And solicit public comment on which of those, if any, is the best. And proceed with this in accordance with the views of the almost 20,000 commenters that took the time and we appreciate it to weigh in on this and at the appropriate moment I would be happy to make a motion. 
>> CHAIR ANN RAVEL: Any other comments? Mr. Vice Chair. 
>> MATTHEW PETERSEN: Thank you I won't be able to support the motion. I looked at the motion, went through the petition. I can't say that I read every comment. I tried to get a representative sample across the board. You know obviously it's generated a lot of passion, a lot of interest. This matter arose in the aftermath of an enforcement matter involving khap chevron and the allegation was that it had violated the contractor contribution ban by giving a contribution to a super PAC. And the Commission voted 5-1 to dismiss it to dismiss that complaint on the basis that the -- that the parent corporation was not a Government contractor, that it did have a subsidiary that was engaged in -- in Government contracts. But it was the finding of the Commission that the subsidiary and the parent were distinct entities in terms of its Mind Geek and directors and that it had sufficient revenues from other sources that were not tied to Government contracting to make the contribution so that decision was 5-1. The Commission -- then the complainant from that matter filed the -- this petition. As I've looked through this issue and go back and realize that the way that the Commission has treated Government contractors has been in place that the mode of analysis that we used in the chevron matter is the same analysis that we have used for over 30 years. I think going back to late '70s, early '80s and not only do we apply in the context of Government contractors but have in the context of domestic subsidiaries of foreign parents, Congressionally chartered corporations, national banks, those -- all of the development of how we are going to analyze those entities have developed in tandem and using the mode of analysis that we used in Chevron. 
So to at this point yank one of those pieces out and so have those other entities governed by a different standard than what Government contractors would be governed by I think would be problematic in its own right but probably even a larger issue in that the time that the Commission has employed the analysis that it has with respect to subsidiaries that are Government contractors of parents that are not, like I said, it's been going on for decades. And Congress has had numerous occasions to amend the act and has on a number of occasions but it's never touched this. 
And I think that at least from my perspective that there are some significance to be derived from that. 
I was persuaded by comments that talk about that Congress when it enacted the Government contractor ban did so against a background of common law corporate principles. Among those are traditional principles regarding limited liability. And the piercing of corporate veil. And we haven't been instrubingtded by Congress to dis-- instructed by Congress to disrupt that background understanding though they have amended the law on a number of occasions that's something they have never nudged us to amend. 
So I really do think this matter is one for Congress to give us some direction. If it is believed that the Commission has been applying the analysis incorrectly or that it wishes us to modify that analysis, I believe that that's more in the purview of Congress to give us that direction. 
So I appreciate the efforts of my colleagues. And I understand their concerns in this area but I won't be able to support the motion. 



Thank you. Any other comments? 

I have obviously signed on to this and I was in the majority in the Chevron matter. 

Part of the concern I had with that is I did nothing the rules were sufficient to be able to do with the situation that presented itself in that matter, and so it was necessary to make the decision that I thought was potentially inappropriate. 

I think with my colleague I don't necessarily sign-on to any proposal that has been madeGiven the interest of the public in this matter 

So with that -- 

>> And don't get started on domestic subsidiaries of foreign rights, because we have got a lot of comments on that one too. 

But I hear the chair recognizing before emotion. Whereas on November 18, 2014, public citizens omitted a petition requesting that the commission clarify how its rules that the ban on federal contracting contributions apply to entities of the same corporate family, whereas the commission received approximately 19,750 comments on the notice of availability published in the Federal Register on March 30, 2015, whereas all but two of those comments support of the petition and urged the commission to open rulemaking to clarify its federal contractor rules as requested by the petition, whereas the Connecticut state election enforcement commission and the New York State finance board the minute comments other government contractor relations apply to entities of the same proper family, whereas the US Court of Appeals for the District of Columbia Circuit in an on bank decision recently rejected a constitutional challenge of the federal contractor band and help that quote our national experience supports Congress' fear that political contributions by government contractors can corrupt and interfere with merit-based in ministration,", of government, Wagner of the FEC [indiscernible] DC circuit 2015. 

I move that the commission open a rulemaking and that the office of General Counsel draft a notice of proposed rulemaking that proposes to revise 11 CFR part 115 and six public comment as to whether the rule should be amended as recommended in the petition filed by public citizen whether the commission should adopt another method such as the methods used by the Connecticut State elections enforcement commission for the New York City campaign finance board. 



>> All right, any questions or comments? All those in favor please indicate by saying aye. Although supposed? Madam Secretary, that motion fails by a vote of 3 to 3 with Commissioner Weintraub, Walther, and myself against, and commissioners Goodman, Hunter and vice chair Peterson voting no. 

So the items that remain that we can either put over until Tuesday morning or continue with now are item 5, the rulemaking priorities and proposals, item 7, commission documents, public disclosure, and then finally the motion to set priorities, item 8. 

Commissioner Walther, do you want to have that heard today? 

>> I don't think so. 

>> No? All right, so we should -- 

>> Is Jessica [indiscernible] still with us? Well, I didn't know if there was any interest in hearing a presentation on the tech modernization. We did not get to that last time. And I don't think it's right for a vote today, but I would not my getting it started in the discussion phase. And I did not know if something that we might like a presentation on. 

>> You know, I think that that is a very lengthy document, and so it might be best to have that -- because I am looking at Commissioner Hunter's desire to get -- it's gone? 

Well, what is the will of the rest of the commission? Has Jessica -- yeah, I think so. 



>> Whatever you want to do. I will stay if you want, I believe. 

>> Commissioner Walther, to sort of get this item off the agenda, would you be willing to have a discussion or a vote on this matter, which we can probably do [indiscernible] item 8? 

It is the point of no return? 



>> I think we should do Commissioner Walther's motion because otherwise since it won't take long, it goes to -- [indiscernible] so why should be at that to the agenda? 

>> I think we were going to hear from you another time. 

>> I was listening to you all. 

>> You have been waiting for this moment. [LAUGHING] 

>> Okay. Well, what is the preference here? I think that -- we were discussing having a quick discussion and motion on item 8, Commissioner Walther's motion to set priorities and scheduling. And then Jessica, Tuesday morning bright and early, we want you okay? All right. 

So the next item is agenda document 15-63A, motion to set [indiscernible] on consideration, and this is Commissioner Walther's motion to set. Is there any discussion, do you want to discuss this matter? 

>> Not at this point, this is just an ongoing thing I think about every so often, I would like to be able to call attention to where we are on all of this. I do want to real quick focus on a more -- if we can get these down to a more manageable situation and not have such an amount of time expand between when we get the regulation and when we actually vote. 

Mostly it is a function of calling meetings because I think this is going to take a few bone crushing meetings like this to kind of work through it, but I think it is time to do that. So that's the motion. I'm not going to read it at this point. It sets a proposed schedule for having those meetings. 

So if anybody wants, they can read it. I move -- [indiscernible] 

>> And you have a copy of the document, Madam Secretary? Any questions, anybody? 

>> I don't have any questions. Just a brief comment. Commissioner Walther has introduced a similar motion before, and I have opposed it and I will oppose it again today. I do appreciate the concern that he has here. I think we have added meetings -- I think we have actually disposed of quite a few matters in our recent meetings, and as you mentioned we have a very robust agenda to send us into Thanksgiving next week. 

And I know that this is something that not only Commissioner Walther and Commissioner Weintraub has been a very strong advocate of clearing out some of these matters, and I think that we are starting -- I think we have made some good progress and will continue to make some good progress, so I cannot support it now. But I certainly remain committed to trying to work through as many of these matters in a timely manner as possible. 

>> Wouldn't it be nice to start your chairman year with a clean docket? 

>> Me and Commissioner Walther actually just talking about -- 

>> You are going to be day today starting January 1. 

>> No, January 2. 

>> What's wrong with January 1? It doesn't matter to me. Football? Football interferes with the docket. 

All right, all those in favor please indicate by saying aye. Although as opposed? 

Madam Secretary, that matter fails with a vote of 3 to 3. Commissioners Walther, one up, and myself voting aye, commissioners Hunter, Goodman and Pfister Peterson voting no. 

And with that we have to items, this is pretty good, we should have less time late at night when we go through things more quickly. Item 5 and item 7 will be continued to an open session.. 

>> Along with item 2. 

>> Right. 

>> So item 2 will be moved to the next -- item 5 -- 

>> Well, item 2 unless item 2 is dealt with, is resolved. 

>> Yes. And then item 6, was that -- I'm sorry, I forgot were item 6 -- 

>> Commissioner Hunter and I are going to try to work on that off-line. 

>> So that will be tallied and come back to the table? Okay. All right. 

>> And so we will begin the open session on Tuesday at 10 AM. 

>> We are in recess that. 

>> Yes. 

>> Thank you. 

>> This matter is recessed.