Final rules defining “solicit” and “direct”

On March 13, 2006, the Commission approved final rules and explanation and justification that expand the definitions of “solicit” and “direct” as those terms relate to the raising and spending of federal and nonfederal funds. The rulemaking stems from court decisions in Shays v. FEC that invalidated the existing regulatory definitions of those terms.

Background

On July 15, 2005, the U.S. Court of Appeals for the District of Columbia upheld the U.S. District Court for the District of Columbia’s September 18, 2004 decision in Shays v. FEC. (See the September 2005 Record, page 1.) That decision invalidated several Commission regulations implementing provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), including the regulations that define “to solicit” and “to direct.”

The Court of Appeals concluded that by limiting the definition of “to solicit” only to explicit, direct requests for money, thus permitting indirect requests for funds, the Commission’s regulatory definition allows candidates and parties to circumvent BCRA’s prohibitions and restrictions on nonfederal funds and thereby violates “Congress’s intent to shut down the soft-money system.” As to the term “direct,” the Court of Appeals held that the Commission’s definition of “direct” was invalid because it effectively defined “direct” as “ask” and thus, like the definition of “solicit” and contrary to Congress’s intent, limited “direct” to explicit requests for funds.

Final rules

The Commission had approved a Notice of Proposed Rulemaking (NPRM) on September 28, 2005, seeking comments on proposed revisions to its definitions of the terms “solicit” and “direct.” On November 15, 2005, the Commission held a public hearing to receive testimony on the proposed revisions. (See December 2005 Record, page 7.) After considering the public comments and testimony, the Commission issued final rules.

Definition of “solicit”

The revised definition of “solicit” encompasses written and oral communications that, construed as reasonably understood in the context in which they are made, contain a clear message asking, requesting or recommending, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide something of value. Included in the regulations is a non-exhaustive list of examples of communications and statements that constitute solicitations. For instance, “Group X has always helped me financially in my elections. Keep them in mind this fall” would constitute a solicitation under the revised definition, whereas a statement such as “Thank you for your support of the Democratic Party” made during a policy speech would not.

Under the revised definition, a solicitation may be made directly or indirectly and mere statements of political support or guidance as to the application of the law do not constitute solicitations.

To “direct”

The new definition of “direct” focuses on guidance provided to a person who intends to donate funds. Specifically, “to direct” means to guide, directly or indirectly, a person who has expressed an intent to make a contribution, donation, transfer of funds, or otherwise provide anything of value by identifying a candidate, political committee or organization for the receipt of such funds, or things of value. A contribution, donation, transfer or thing of value may be made or provided directly or through a conduit or intermediary.

As with the definition of “solicit,” direction does not include merely providing information or guidance as to the applicability of a particular law or regulation.

The final rules appeared in the Federal Register on March 20, 2006, and will become effective on April 19, 2006.