Federal Election Commission.
Notice of proposed rulemaking.
The Federal Election Commission (“Commission”) requests comments on the proposed deletion of its rules regarding increased contribution limits and coordinated party expenditure limits for Senate and House of Representatives candidates facing self-financed opponents. These rules were promulgated to implement sections 304 and 319 of the Bipartisan Campaign Reform Act of 2002, known as the “Millionaires' Amendment.” In
Comments must be received on or before November 21, 2008.
All comments must be in writing, must be addressed to Mr. Robert M. Knop, Assistant General Counsel, and must be submitted in either e-mail, facsimile, or paper copy form. Commenters are strongly encouraged to submit comments by e-mail to ensure timely receipt and consideration. E-mail comments must be sent to
Mr. Robert M. Knop, Assistant General Counsel, or Mr. Neven F. Stipanovic, Attorney, 999 E Street, NW., Washington, DC 20463, (202) 694–1650 or (800) 424–9530.
The Commission seeks to revise its current regulations to reflect the Supreme Court's decision in
The Millionaires' Amendment
On December 19, 2002, the Commission approved interim final rules to implement the Millionaires' Amendment.
On June 26, 2008, the Supreme Court invalidated the Millionaires' Amendment. In
On July 25, 2008, the Commission issued a Public Statement that, in light of the
The Commission proposes to delete current 11 CFR Part 400 because the statutory foundation for Part 400 has been invalidated by the Supreme Court's decision in
The Supreme Court in
The Commission's rules at Part 400 implement the Millionaires' Amendment provisions for both House and Senate elections. The Commission, therefore, proposes to delete 11 CFR Part 400 in its entirety.
The Commission proposes to delete current 11 CFR 100.19(g) because the statutory foundation for this provision has been invalidated by the Supreme Court's decision in
As explained above, the Commission proposes to delete current 11 CFR Part 400 in its entirety because the Supreme Court invalidated the Millionaires' Amendment. The Commission proposes to delete paragraph (g) from section 100.19 because the candidate's notifications under 11 CFR 400.21 and 400.22 would no longer be required.
The Commission proposes to revise the definition of “personal funds” in 11 CFR 100.33 by deleting the cross-reference to current section 400.2, which the Commission intends to remove through this rulemaking. The Commission proposes to retain the remainder of section 100.33 because the definition of “personal funds” in section 100.33 applies generally to other Title 2 rules that use the term “personal funds.”
The Commission proposes to delete the sentence in paragraph (a) of current 11 CFR 101.1 that requires Senate and House of Representatives candidates to state, on their Statements of Candidacy on FEC Form 2 (or, if the candidate is not required to file electronically, on his or her letter containing the same information), the amount by which the candidate intends to exceed the threshold amount as defined in 11 CFR 400.9. The reporting requirements of that sentence would no longer be necessary because, as explained above, the Commission proposes to delete 11 CFR Part 400 through this rulemaking.
The Commission proposes to retain and revise current 11 CFR 102.2(a)(1)(viii), which requires principal campaign committees to provide an electronic mail address and a facsimile number on FEC Form 1. Paragraph (viii) was promulgated by the Interim Final Rules to facilitate the notification of expenditures from personal funds under Part 400.
Consistent with its delegated authority to require political committees to provide an “address” when filing a statement of organization under 2 U.S.C. 433(b)(1), the Commission proposes to retain the requirement that committees report their electronic mail address on FEC Form 1.
The Commission proposes the remove and reserve current 11 CFR 104.19 because the statutory foundation of this section was invalidated by the Supreme Court's decision in
The Commission proposes to delete current paragraph (b)(2) of section 110.5 because the statutory foundation for this provision has been invalidated by the Supreme Court's decision in
The Commission proposes to retain sections 11 CFR 116.11 and 116.12 of the regulations concerning the repayment of candidates' personal loans. The Commission seeks comment on this proposal in light of the Supreme Court's decision in
BCRA added a new provision prohibiting candidates and their authorized committees from using contributions made after the election to repay loans from the candidates to their authorized committees to the extent the contributions total over $250,000.
The Commission believes that the
The Court in
The Commission's proposal to retain sections 116.11 and 116.12 is consistent with the approach it took in a recent advisory opinion, which was requested after
The Commission also concluded in Advisory Opinion 2008–09 that the personal loan provision was severable from the Millionaires' Amendment. As the Commission explained there, BCRA section 401 provides that the invalidation of one provision of BCRA will not affect the validity of any other provisions of BCRA nor the application of such provisions to other persons and circumstances. 2 U.S.C. 454. It is a well-settled principle of statutory construction that “[u]nless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”
In Advisory Opinion 2008–09, the Commission found that it was not at all “evident” from the text, function, or legislative history of the Millionaires' Amendment that Congress intended the personal loan provision to be inextricably tied to the increased contribution limits of BCRA 304(a). Section 304(a) was codified in two separate provisions of 2 U.S.C. 441a, one providing for the increased contribution limits and the other limiting repayment of personal loans. Functionally, the personal loan provision can operate effectively without the provisions invalidated by
The Commission seeks comment on its proposal to retain the current rules at 11 CFR 116.11 and 116.12 restricting the repayment of personal loans.
The Commission proposes to retain current 11 CFR 110.1(b)(3), which restricts the ability of candidates and their authorized committees to accept contributions after the election. Together with sections 116.11 and 116.12, current 11 CFR 110.1(b)(3) implements 2 U.S.C. 441a(j).
Candidates and their authorized committees cannot accept contributions after the election is over unless the candidate still has net debts outstanding from that election. 11 CFR 110.1(b)(1)(i). This rule was promulgated long before
The Commission proposes to retain the cross-reference in current 11 CFR 9035.2(c) to the definition of “personal funds” in 11 CFR 9003.2. Section 9035.2 provides limitations on expenditures from personal or family funds when a candidate has accepted matching funds in a presidential primary election. In promulgating 11 CFR 9035.2(c), the Commission explained that it cross-referenced that section to the definition of “personal funds” in 11 CFR 9003.2 because it was more appropriate in the context of Title 26 regulations than the Commission's definition of “personal funds” in 11 CFR 100.33, which applies only to FECA.
The Commission proposes to amend 11 CFR 100.153 and 113.1(g)(6)(ii) by revising the cross-reference to the definition of “personal funds” in 11 CFR 110.10(b) to current 11 CFR 100.33. The Commission deleted 11 CFR 110.10(b) in the Interim Final Rules. The proposed change would reflect the Commission's prior removal of the “personal funds” definition from section 110.10(b) to section 100.33.
The Commission proposes to amend 11 CFR 110.5 paragraphs (b), (d), and (e), by revising the spelling of the word “bi-annual” to “biennial.” This proposed change would make the spelling consistent with the title of section 110.5, which uses the term biennial.
The Commission proposes to make technical amendments to these sections that would update the reference to its other regulations to reflect the proposed elimination of Part 400.
The Commission invites comments from the public concerning any of the proposals outlined above. The Commission also invites comments from the public regarding any additional changes that should be made to 11 CFR 100.33, 101.1, 102.2(a)(1)(viii), 110.1(b)(3)(ii)(C), 116.11, 116.12, 9035.2(c), or any other section of the regulations to conform with the holdings and points of law articulated in the Supreme Court's decision in Davis.
The Commission certifies that the attached proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The basis for this certification is that few, if any, small entities would be affected by this proposed rulemaking, which applies only to Federal candidates and their campaign committees, and political committees of political parties. Such committees are not “small entities” under 5 U.S.C. 601. Candidate and party committees are not independently owned and operated because they are not financed and controlled by a small identifiable group of individuals; rather, they rely on contributions from a variety of persons to fund the committee's activities. The Democratic and Republican parties also have a major controlling influence within the political arena and are dominant in their field. However, to the extent that any party committees representing major or minor political parties or any other political committees might be considered “small entities,” the number that would be affected by this rule is not substantial.
The proposed rule also would not add new substantive provisions to the current regulations, but rather it would remove or retain existing regulations. Therefore, the attached proposed rule would not have a significant impact on a substantial number of small entities.
Elections.
Political candidates, Reporting and recordkeeping requirements.
Political committees and parties, Reporting and recordkeeping requirements.
Campaign funds, Political committees and parties, Reporting and recordkeeping requirements.
Campaign funds, Political committees and parties.
Campaign funds.
Administrative practice and procedure, Business and industry, Credit, Elections, Political candidates, Political committees and parties.
Campaign funds, Elections, Political candidates, Political committees and parties, Reporting and recordkeeping requirements.
Campaign funds.
Campaign funds, Reporting and recordkeeping requirements.
Campaign funds.
Campaign funds, Reporting and recordkeeping requirements.
Campaign funds, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the Commission proposes to amend Subchapters A, C, E, and F of Chapter I of Title 11 of the
1. The authority citation for part 100 continues to read as follows:
2 U.S.C. 431, 434, 438(a)(8), and 439a(c).
2. In section 100.19, is amended by removing the reference to “(g)” and adding in its place “(f)” in paragraph (b) introductory text and (b)(2) and by removing paragraph (g).
3. Section 100.33 is revised to read as follows:
(a)
(1) Legal and rightful title; or
(2) An equitable interest;
(b)
(1) A salary and other earned income that the candidate earns from bona fide employment;
(2) Income from the candidate's stocks or other investments including interest, dividends, or proceeds from the sale or liquidation of such stocks or investments;
(3) Bequests to the candidate;
(4) Income from trusts established before the beginning of the election cycle;
(5) Income from trusts established by bequest after the beginning of the election cycle of which the candidate is the beneficiary;
(6) Gifts of a personal nature that had been customarily received by the candidate prior to the beginning of the election cycle; and
(7) Proceeds from lotteries and similar legal games of chance; and
(c)
(1) The portion of assets that is equal to the candidate's share of the asset under the instrument of conveyance or ownership; provided, however,
(2) If no specific share is indicated by an instrument of conveyance or ownership, the value of one-half of the property.
5. Section 100.153 is amended by removing the reference to “11 CFR 110.10(b)” and adding in its place “11 CFR 100.33”.
6. The authority citation for part 101 continues to read as follows:
2 U.S.C. 432(e), 434(a)(11), 438(a)(f).
7. Section 101.1(a) is revised to read as follows:
(a)
8. The authority citation for part 102 continues to read as follows:
2 U.S.C. 432, 433, 434(a)(11), 438(a)(8), 441d.
9. In § 102.2, paragraph (a)(1)(viii) is revised to read as follows:
(a) * * *
(1) * * *
(viii) If the committee is a principal campaign committee of a candidate for the Senate or the House of Representatives, the principal campaign committee's electronic mail address.
10. The authority citation for part 104 continues to read as follows:
2 U.S.C. 431(1), 431(8), 431(9), 432(i), 434, 438(a)(8) and (b), 439a, 441a, and 36 U.S.C. 510.
11. Section 104.19 is removed and reserved.
12. The authority citation for part 110 continues to read as follows:
2 U.S.C. 431(8), 431(9), 432(c)(2), 437d, 438(a)(8), 441a, 441b, 441d, 441e, 441f, 441g, 441h, and 36 U.S.C. 510.
13. In § 110.5, paragraphs (b)(1), (d), and (e) are revised, and paragraph (b)(2) is removed and reserved to read as follows:
(b)
(i) $37,500 in the case of contributions to candidates and the authorized committees of candidates; and
(ii) $57,500 in the case of any other contributions, of which not more than $37,500 may be attributable to contributions to political committees that are not political committees of any national political parties.
(d)
(e)
14. The authority citation for part 113 continues to read as follows:
2 U.S.C. 432(h), 438(a)(8), 439a, 441a.
15. Section 113.1(g)(6)(ii) is amended by removing the reference to “11 CFR 110.10(b)” and adding in its place “11 CFR 100.33”.
16. Under the authority of 2 U.S.C. 437d(a)(8), part 400 is removed.
17. The authority citation for part 9001 continues to read as follows:
26 U.S.C. 9009(b).
18. Section 9001.1 is amended by removing the number “400” and adding in its place the number “300” in both instances in which it appears.
19. The authority citation for part 9003 continues to read as follows:
26 U.S.C. 9003 and 9009(b).
20. In section 9003.1, paragraph (b)(8) is amended by removing the number “400” and adding in its place the number “300”.
21. The authority citation for part 9031 continues to read as follows:
26 U.S.C. 9031 and 9039(b).
22. Section 9031.1 is amended by removing the number “400” and adding in its place the number “300” in both instances in which it appears.
23. The authority citation for part 9033 continues to read as follows:
26 U.S.C. 9003(e), 9033 and 9039(b).
24. In section 9033.1, paragraph (b)(10) is amended by removing the number “400” and adding in its place the number “300”.