Supplemental NPRM on coordinated communications

In order to elicit comments addressing the impact of the Supreme Court's decision in Citizens United v. FEC (Citizens United) on the Commission's proposed rules regarding coordinated communications, the Commission published a Supplemental Notice of Proposed Rulemaking (NPRM), for the NPRM on Coordinated Communications originally published on October 21, 2009. The Commission also announced a public hearing on March 2-3, 2010. The Supplemental NPRM was published in the Federal Register on February 10, and comments were due February 24, 2010.

The original NPRM proposed changes to the Commission's "coordinated communications" regulations at 11 CFR 109.21 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) ("Shays III Appeal"). The deadline for comments on that NPRM was January 19, 2010. However, two days after the close of the NPRM's comment period, the Supreme Court issued its opinion in Citizens United, which may raise issues relevant to the coordinated communications rulemaking. Therefore, the Commission re-opened the comment period for this particular rulemaking.

In the Supplemental NPRM the Commission sought comment on the effect, if any, of the Citizens United decision on the proposed rules as published by the Commission on October 21, 2009. See the November 2009 Record, page 1. The Commission noted possible issues raised by the Citizens United decision included, but are not limited to, whether the Commission should modify its proposed rules regarding the definition of PASO and the content of communications that are coordinated; whether the Commission should examine how it conducts enforcement investigations of coordinated communications; whether the Commission should modify the proposed safe harbors to the coordination test regarding communications paid for by 501(c)(3) organizations or candidates' businesses; and whether the proposed changes are affected by the court’s analysis of the "media exemption."

The Commission will hold a public hearing on Tuesday, March 2, 2010, and Wednesday, March 3, 2010. The witnesses will be those individuals who indicated in their timely comments, whether to the NPRM published on October 21, 2009, or to the Supplemental NPRM, that they wished to testify at the hearing.

The text of the Supplemental NPRM is available on the Commission's website at http://transition.fec.gov/pdf/nprm/coord_commun/2009/notice2010-01.pdf. The original NPRM published by the Commission is available at http://transition.fec.gov/pdf/nprm/coord_commun/2009/notice_2009-23.pdf. Additionally, the text of the Supreme Court's opinion in Citizens United is available at http://transition.fec.gov/law/litigation/cu_sc08_opinion.pdf.