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Proposed Rule

Mailing Lists of Political Committees

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Federal Election Commission.


Notice of disposition; termination of rulemaking.


On September 4, 2003, the Commission issued a Notice of Proposed Rulemaking seeking comment on proposed rules that addressed the rental, sale, and exchange of political committee mailing lists, and the treatment and use of proceeds from such transactions. The Commission is not amending its current rules and is terminating this rulemaking at this time for several reasons, including the lack of perceived need by political committees for guidance beyond what has been presented in Commission advisory opinions. Further information is provided in the supplementary information that follows.

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Ms. Mai T. Dinh, Acting Assistant General Counsel, or Mr. Jonathan M. Levin, Senior Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

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On September 4, 2003, the Commission issued a Notice of Proposed Rulemaking (“NPRM”), 68 FR 52531 (Sept. 4, 2003). The proposed rules would have set forth the conditions under which the proceeds from the sale, rental, or exchange of a political committee's mailing list would not be contributions to that political committee. The proposed rules would also have prohibited the conversion of an authorized committee's mailing list, or any proceeds from the rental or sale of the list, to the personal use of the candidate or any other person. In addition, the proposed rules would have addressed the sale or rental of mailing lists owned by the authorized committee of a publicly funded presidential candidate. The NPRM sought comments on these rules generally and asked for comments as to specific aspects of mailing list transactions. In particular, the Commission asked for comment on whether the final rules should list specific factors to determine the usual and normal charge for the mailing lists involved in the transactions, and what those factors should be.

The Commission received nine comments in response to the NPRM. These were from: (1) Charles R. Spies on behalf of the Republican National Committee; (2) Stephen M. Hoersting on behalf of the National Republican Senatorial Committee; (3) Donald F. McGahn II, on behalf of the National Republican Congressional Committee; (4) Joseph E. Sandler and Robert F. Bauer on behalf of the Democratic National Committee, the Democratic Start Printed Page 64572Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee; (5) William W. Hall, on behalf of the Libertarian National Committee; (6) Lawrence Noble and Paul Sanford on behalf of the Center for Responsive Politics and FEC Watch; (7) Glen Shor on behalf of the Campaign Legal Center; (8) Lisa J. Danetz on behalf of the National Voting Rights Institute; and (9) the law firm of Ryan, Phillips, Utrecht & MacKinnon. At the public hearing on October 1, 2003, testimony was given by Messrs. Bauer, Hoersting, Shor, McGahn, and Spies, and Marc E. Elias of Perkins, Coie, LLP. The Commission received no written comments or testimony from list brokers or other persons whose business primarily involves the sale or leasing of mailing lists. Copies of the comments and the transcript of the hearing are available on the Commission's Web site at

On November 6, 2003, the Commission voted to close the rulemaking on mailing lists of political committees. The Commission made this decision for several reasons. The written comments and oral testimony of a number of the commenters indicate that the regulated community does not perceive a need for further regulation of political committee mailing list transactions. In general, a number of the commenters believe that Commission advisory opinions, particularly Advisory Opinion 2002-14 (issued with respect to the rental of mailing lists of the Libertarian National Committee to other entities), have provided clear enough guidance on the conditions under which the proceeds from the sale or rental of mailing lists are not considered contributions to the political committee. The commenters expressed broad opposition to the proposed rules and questioned the need for such rules at this time.

In addition, a number of commenters asserted that there are a significant number of factors that must be considered in determining the usual and normal charge and whether the transaction is commercially reasonable. As several commenters stated, appropriate factors may vary considerably depending upon the circumstances. Because the Commission is not currently in possession of a factual record adequate to conclude that a particular test is sufficiently flexible and comprehensive to address all circumstances to which the proposed rules would apply, the Commission has decided not to proceed with final rules at this time, and to terminate this rulemaking.

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Dated: November 7, 2003.

Bradley A. Smith,

Vice Chairman, Federal Election Commission.

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[FR Doc. 03-28473 Filed 11-13-03; 8:45 am]