The Federal Election Commission recently initiated a rulemaking on Coordinated Communications in order to comply with the decision of the U.S. Court of Appeals for the District of Columbia in Shays v. Federal Election Commission, 337 F. Supp. 2d 28 (D.D.C. 2004), 414 F.3d 76 (D.C. Cir. 2005). The court invalidated one aspect of the “content prong” of the Coordinated Communications regulations. This aspect of the content prong exempts from the coordination regulations certain public communications made 120 days prior to an election. The Court of Appeals concluded that the Commission did not adequately justify this 120-day standard and directed the Commission to undertake a factual inquiry to determine the appropriate time frame regarding “election-related advocacy.”
To address these issues regarding the 120-day time frame and other issues related to the Coordinated Communication regulations, the Commission issued a Notice of Proposed Rulemaking, 70 FR 73946 (“NPRM”), and held a public hearing. In the NPRM, the Commission asked commenters to provide empirical evidence that supports the 120-day window or an alternative time frame. The Commission did not receive any empirical data in response to the Commission’s request.
As a result, the Commission sought out empirical data from TNS Media Intelligence/CMAG ("CMAG") regarding election-related communications. CMAG describes itself as "the leading provider of data and analysis of political public affairs and issue advocacy advertising. CMAG provides customized media analysis services to national trade associations, foundations, Fortune 100 companies, national media organizations, academia and hundreds of national statewide and local political campaigns." The "Buying Time" studies published by the Brennan Center for Justice at NYU Law School relied, in part, on data provided by CMAG.
The Commission created graphical representations of these licensed data depicting the number of advertising spots purchased prior to the 2004 Congressional and Presidential primary and general elections and the estimated amount of money candidates spent on these advertising spots. The Commission is seeking comment on these data and on the issues and questions raised in the NPRM and at the public hearing regarding the content prong time frame.
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