FEC Holds Public Hearing on Coordinated Communications
WASHINGTON—The Federal Election Commission concluded a two-day public hearing Wednesday on alternatives for amendments to rules governing coordinated communications under the Federal Election Campaign Act of 1971, as amended (the Act). The hearing was part of a rulemaking process in response to the decision of the Court of Appeals for the District of Columbia Circuit in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008). The Commission is also considering the potential effect of the recent Supreme Court decision in Citizens United v. FEC, 558 U.S. ___ (2010) on the Commission’s proposals on the coordinated communications rulemaking.
The Commission heard testimony from 11 witnesses, including representatives of national party committees, unions, business federations, and nonprofit organizations; representatives of campaign finance education and reform organizations; and other campaign finance practitioners. Testimony focused on how to address the D.C. Circuit Court of Appeals’ view that the Commission’s prior coordination rules -- which govern communications made in coordination with Federal candidates, their authorized committees, or political parties, but paid for by others -- did not “rationally separate election-related advocacy from other speech.” Witnesses discussed the applicability of the several proposed content standards, including a standard based on whether a communication “promotes, supports, attacks or opposes” (PASO) a candidate and a standard based on the Supreme Court’s test for the “functional equivalent of express advocacy” established in Wisconsin Right to Life v. FEC, 551 U.S. 449 (2007) (WRTL). Witnesses also weighed alternatives for timeframes applicable to the conduct standard regarding common vendors and former employees.
The Commission sought comment on these issues through a Notice of Proposed Rulemaking and Supplemental Notice of Proposed Rulemaking addressing its proposed rules regarding coordinated communications at 11 CFR 109.21.
“I would like to express appreciation on behalf of the Commission for the numerous comments we have received, which will be extraordinarily helpful as we tackle this complex rulemaking,” said Chairman Matthew S. Peterson.
A complete audio file of the hearing will be available here.