83 FR 3996 - Independent Expenditures by Authorized Committees; Reporting Multistate Independent Expenditures and Electioneering Communications

FEDERAL ELECTION COMMISSION

Federal Register Volume 83, Issue 19 (January 29, 2018)

The Federal Election Commission requests comments on proposed changes to its regulations concerning independent expenditures by candidates. The Commission also requests comments on proposed changes to its regulations to address reporting of independent expenditures and electioneering communications that relate to presidential primary elections and that are publicly distributed in multiple states but that do not refer to any particular state's primary election. The Commission has made no final decision on the issues and proposals presented in this rulemaking.

[Federal Register Volume 83, Number 19 (Monday, January 29, 2018)]
[Proposed Rules]
[Pages 3996-4005]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-01074]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 83, No. 19 / Monday, January 29, 2018 / 
Proposed Rules

[[Page 3996]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 102, 104, and 109

[Notice 2018-01]


Independent Expenditures by Authorized Committees; Reporting 
Multistate Independent Expenditures and Electioneering Communications

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Election Commission requests comments on proposed 
changes to its regulations concerning independent expenditures by 
candidates. The Commission also requests comments on proposed changes 
to its regulations to address reporting of independent expenditures and 
electioneering communications that relate to presidential primary 
elections and that are publicly distributed in multiple states but that 
do not refer to any particular state's primary election. The Commission 
has made no final decision on the issues and proposals presented in 
this rulemaking.

DATES: Comments must be received on or before March 30, 2018.

ADDRESSES: All comments must be in writing. Comments may be submitted 
electronically via the Commission's website at http://sers.fec.gov/fosers, reference REG 2014-02. Commenters are encouraged to submit 
comments electronically to ensure timely receipt and consideration. 
Alternatively, comments may be submitted in paper form. Paper comments 
must be sent to the Federal Election Commission, Attn.: Robert M. Knop, 
Assistant General Counsel. Comments submitted before the Commission's 
relocation on March 5, 2018 must be sent to 999 E Street NW, 
Washington, DC 20463; comments submitted after the Commission's 
relocation must be sent to 1050 First Street NE, Washington, DC 20463. 
See Change of Address; Technical Amendments, 82 FR 60852 (Dec. 26, 
2017). Each commenter must provide, at a minimum, his or her first 
name, last name, city, state, and zip code. All properly submitted 
comments, including attachments, will become part of the public record, 
and the Commission will make comments available for public viewing on 
the Commission's website and in the Commission's Public Records room. 
Accordingly, commenters should not provide in their comments any 
information that they do not wish to make public, such as a home street 
address, personal email address, date of birth, phone number, social 
security number, or driver's license number, or any information that is 
restricted from disclosure, such as trade secrets or commercial or 
financial information that is privileged or confidential.
    The Commission may hold a public hearing on this notice of proposed 
rulemaking. Commenters wishing to testify at a hearing must so indicate 
in their comments. If a hearing is to be held, the Commission will 
publish a notification of hearing in the Federal Register announcing 
the date and time of the hearing.

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General 
Counsel, Ms. Esther D. Gyory, or Ms. Joanna S. Waldstreicher, 
Attorneys, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Commission is considering revising some 
of its regulations concerning independent expenditures and 
electioneering communications, and it seeks comment on the proposed 
changes.
    The Commission is proposing revisions to its regulations concerning 
whether authorized committees may make independent expenditures. The 
Federal Election Campaign Act, 52 U.S.C. 30101-46 (the ``Act'') and 
Commission regulations state that no political committee that 
``supports'' more than one candidate may be designated as an authorized 
campaign committee. 52 U.S.C. 30102(e)(3); 11 CFR 102.12(c), 102.13(c). 
The statute and regulations do not define ``support'' for the purposes 
of these two provisions, except to state that the term ``does not 
include contributions by an authorized committee in amounts aggregating 
$2,000 or less per election to an authorized committee of any other 
candidate.'' 52 U.S.C. 30102(e)(3)(B); 11 CFR 102.12(c)(2), 
102.13(c)(2). The Commission is considering revising its regulations to 
specifically state that for the purposes of these provisions, 
``support'' includes making independent expenditures, or, in the 
alternative, that ``support,'' in this context, does not include 
independent expenditures. The Commission is seeking comment on the 
following proposed revisions to its regulations, which would clarify 
the meaning of ``support'' as it is used in 11 CFR 102.12(c)(2) and 
102.13(c)(2). In the event that the Commission promulgates final rules 
that exclude independent expenditures from the definition of support, 
the Commission is also proposing changes to its reporting regulations 
at 11 CFR 104.3 and 104.4 to provide for authorized committees to 
report independent expenditures.
    The Commission is also seeking comment on proposed revisions to its 
regulations concerning independent expenditures and electioneering 
communications as they apply to communications that relate to 
presidential primary elections and that are publicly distributed in 
multiple states but that do not refer to any particular state's primary 
election. The Act and Commission regulations require persons who make 
independent expenditures and electioneering communications to report 
certain information to the Commission within specified periods of time. 
See 52 U.S.C. 30104(b)-(c), (g); 11 CFR 104.3, 104.4, 104.20, 109.10. 
The Commission is considering revising its regulations to specifically 
address how these reporting requirements apply to an independent 
expenditure or electioneering communication that relates to a 
presidential primary election and is distributed in multiple states but 
does not refer to any particular state's primary election (a 
``multistate independent expenditure'' or ``multistate electioneering 
communication''). The Commission is seeking comment on the following 
proposed revisions to its regulations, which would clarify when and how 
multistate independent expenditures and multistate electioneering 
communications must be reported.

I. Background

    The Act and Commission regulations require that political 
committees report all disbursements. 52 U.S.C. 30104(b)(4); 11 CFR 
104.3(b). Political committees must also itemize their

[[Page 3997]]

disbursements according to specific categories. 52 U.S.C. 30104(b)(4); 
11 CFR 104.3(b)(1)-(2).
    An ``independent expenditure'' is an expenditure that expressly 
advocates the election or defeat of a clearly identified federal 
candidate and is not coordinated with such candidate (or his or her 
opponent) or political party. 52 U.S.C. 30101(17); see also 11 CFR 
100.16(a). Under existing regulations, a political committee (other 
than an authorized committee) that makes independent expenditures must 
itemize those expenditures on its regular periodic reports, stating, 
among other things, the name of the candidate whom the expenditure 
supports or opposes and the office sought by that candidate. 52 U.S.C. 
30104(b)(4)(H)(iii), (6)(B)(iii); 11 CFR 104.4(a). Any person other 
than a political committee that makes independent expenditures 
aggregating in excess of $250 during a calendar year must disclose the 
same information in a statement filed with the Commission.\1\ 52 U.S.C. 
30104(c); 11 CFR 109.10(b).
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    \1\ Further, Commission regulations provide that persons other 
than political committees ``shall [also] file a report or statement 
for any quarterly period during which any such independent 
expenditures that aggregate in excess of $250 are made and in any 
quarterly reporting period thereafter in which additional 
independent expenditures are made.'' 11 CFR 109.19(b).
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    In addition, any person that makes independent expenditures 
aggregating $10,000 or more for an election in any calendar year, up to 
and including the 20th day before an election, must report the 
expenditures within 48 hours. 52 U.S.C. 30104(g)(2)(A); 11 CFR 
104.4(b)(2), 109.10(c). Additional reports must be filed within 48 
hours each time the person makes further independent expenditures 
aggregating $10,000 or more with respect to the same election. 52 
U.S.C. 30104(g)(2)(B); 11 CFR 104.4(b)(2), 109.10(c).
    Any person that makes independent expenditures aggregating $1,000 
or more less than 20 days, but more than 24 hours, before the date of 
an election must report the expenditures within 24 hours. 52 U.S.C. 
30104(g)(1)(A); 11 CFR 104.4(c), 109.10(d). Additional reports must be 
filed within 24 hours each time the person makes further independent 
expenditures aggregating $1,000 or more with respect to the same 
election. 52 U.S.C. 30104(g)(1)(B); 11 CFR 104.4(c), 109.10(d).

A. Independent Expenditures by Authorized Committees

    The Act requires that every candidate for federal office (other 
than the nominee for Vice President) designate a political committee 
``to serve as the principal campaign committee'' for that candidate. 52 
U.S.C. 30102(e)(1); 11 CFR 102.12(a). The principal campaign committee 
of a candidate is ``authorized'' by the candidate to receive 
contributions or to make expenditures on behalf of that candidate. See 
11 CFR 102.13(a)(1); 52 U.S.C. 30102(e)(1), (3). A candidate may also 
designate additional political committees to serve as authorized 
committees of that candidate. 52 U.S.C. 30102(e)(1); 11 CFR 
102.13(a)(1). The Act and Commission regulations state that no 
political committee that ``supports'' more than one candidate may be 
designated as an authorized committee. 52 U.S.C. 30102(e)(3); 11 CFR 
102.12(c), 102.13(c). The Act and regulations further state that for 
the purposes of these provisions, ``the term support does not include 
contributions by an authorized committee in amounts aggregating $2,000 
or less per election to an authorized committee of any other 
candidate,'' but the term is not otherwise defined. 11 CFR 
102.12(c)(2), 102.13(c)(2); 52 U.S.C. 30102(e)(3)(B).\2\
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    \2\ ``Support'' appears in other places in the regulations but 
is not defined in most of those other instances. See, e.g., 11 CFR 
100.24(b)(3) (defining ``federal election activity'' as public 
communication that refers to clearly identified candidate for 
federal office and that ``promotes or supports, or attacks or 
opposes any candidate for Federal office''), 104.5(d) (requiring 
treasurer of political committee ``supporting'' candidate for Vice 
President to file reports on same basis as principal campaign 
committee of presidential candidate), 110.1(h) (addressing 
circumstances in which person may contribute to more than one 
committee ``supporting'' the same candidate), 114.4(d)(1) (stating 
that corporation or labor organization may ``support or conduct'' 
voter registration and get-out-the-vote drives), 114.4(d)(2) 
(specifying that voter registration and get-out-the-vote drives are 
not expenditures when they meet certain criteria, including that 
individuals conducting drive are not paid on basis of number of 
individuals registered or transported ``who support one or more 
particular candidates''), 300.2(m) (stating that definition of 
``solicitation'' does not include ``mere statements of political 
support''), 300.37(a)(3)(iv) (excluding from prohibition on 
fundraising for certain tax-exempt organizations a ``political 
committee under [s]tate law, that `supports' only [s]tate or local 
candidates . . . .''). Section 100.6, which defines ``connected 
organization,'' states that, for the purposes of that provision, the 
term ``financially supports'' does not include contributions to a 
political committee, but does include payments of establishment, 
administration, and solicitation costs of a political committee.
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    Until recently, the Commission had not definitively addressed 
whether the term ``support'' in section 30102(e)(3) includes 
independent expenditures.\3\ In Matter Under Review (``MUR'') 6405 
(Friends of John McCain Inc., et al.), the Commission dismissed an 
allegation that an authorized committee violated 52 U.S.C. 30102(e)(3) 
by running ads that expressly advocated the election of another 
candidate. Factual and Legal Analysis at 2-3, MUR 6405 (Friends of John 
McCain Inc., et al.) (Feb. 25, 2015), http://eqs.fec.gov/eqsdocsMUR/15044371159.pdf (``McCain''). In its analysis, the Commission cited the 
Supreme Court's decisions in Buckley v. Valeo, 424 U.S. 1 (1976) 
(striking down limits on independent expenditures for most individuals 
and groups), Colorado Republican Federal Campaign Committee v. FEC, 518 
U.S. 604 (1996) (striking down limit on independent expenditures by 
political party committees on grounds that independent expenditures do 
not pose a risk of corruption or the appearance of corruption), and 
Citizens United v. FEC, 558 U.S. 310 (2010) (striking down prohibition 
on independent expenditures by corporations). McCain at 9-10. The 
Commission concluded that ``it is unlikely that independent spending by 
authorized committees would be deemed more potentially corrupting than 
independent expenditures by individuals, political parties, or 
corporations, each of which has been found [by the Supreme Court] to 
have a constitutional right to make unlimited independent 
expenditures.'' McCain at 10.
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    \3\ In MUR 2841 (Jenkins), the Commission stated that 2 U.S.C. 
432(e) (now 52 U.S.C. 30102(e)) precluded a principal campaign 
committee from ``making expenditures on behalf of another candidate, 
thus supporting more than one candidate,'' but ultimately decided 
the matter on other grounds. See Conciliation Agreement ] IV.13 
(Dec. 11, 1992), http://www.fec.gov/disclosure_data/mur/2841.pdf. In 
a subsequent MUR, the Office of the General Counsel, relying on the 
Commission's reasoning in MUR 2841 (Jenkins), recommended finding 
reason to believe that an authorized committee violated 2 U.S.C. 
432(e). See First General Counsel's Report at 11, MUR 3676 (Stupak) 
(Jan. 11, 1995), all documents for MUR 3676 available at http://www.fec.gov/disclosure_data/mur/3676.pdf. The Commission rejected 
OGC's recommendation, though the four Commissioners did not agree on 
the reasoning for that decision. See Thomas Statement of Reasons; 
Aikens et al. Statement of Reasons, MUR 3676 (Stupak).
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    Currently, neither the regulations nor the Commission's reporting 
forms provide a mechanism for authorized committees to report 
independent expenditures. Section 104.3(b)(2), which covers reporting 
by authorized committees, does not include independent expenditures 
made by the reporting committee among the categories of disbursements 
that must be itemized. Similarly, Sec.  104.3(b)(4) sets out the 
categories of information that authorized committees must report about 
itemized disbursements and does not contain a provision for independent 
expenditures. Finally, section 104.4 specifies that political 
committees that make independent expenditures must report them on 
Schedule E of FEC Form

[[Page 3998]]

3X, but authorized committees file Form 3 (for House and Senate 
candidates) or Form 3P (for presidential candidates), neither of which 
contains Schedule E.

B. Multistate Independent Expenditures and Electioneering 
Communications

    As described above, the Act and Commission regulations require any 
person who makes independent expenditures aggregating at or above 
certain threshold amounts and within certain periods prior to an 
election to report those independent expenditures within 48 or 24 
hours. 52 U.S.C. 30104(g)(1)(A), (2)(A); 11 CFR 104.4(b)(2), (c), 
109.10(c)-(d). The 48- and 24-hour filing requirements begin to run 
when the independent expenditures aggregating at least $10,000 or 
$1,000, respectively, are ``publicly distributed or otherwise publicly 
disseminated'' 11 CFR 104.4(b)(2), (c), (f), 109.10(c)-(d). For 
purposes of calculating these expenditures and determining if a 
communication is ``publicly distributed'' within an applicable 24-hour 
pre-election filing window, each state's presidential primary election 
is considered a separate election. See Advisory Opinion 2003-40 (U.S. 
Navy Veterans' Good Government Fund) at 3-4 (noting that ``publicly 
distributed'' in section 104.4 has same meaning as the term in 11 CFR 
100.29(b)(3)(ii)(A), under which each state's presidential primary 
election is a separate election) (citing Bipartisan Campaign Reform Act 
of 2002 Reporting, 68 FR 404, 407 (Jan. 3, 2003); Electioneering 
Communications, 67 FR 65190, 65194 (Oct. 23, 2002)).
    An ``electioneering communication,'' in the context of a 
presidential election, is a broadcast, cable, or satellite 
communication that refers to a clearly identified candidate for 
President or Vice President and is ``publicly distributed'' within 
sixty days before a general election or thirty days before a primary 
election or nominating convention. 52 U.S.C. 30104(f)(3)(A)(i); 11 CFR 
100.29(a). If the candidate identified in the communication is seeking 
a party's nomination for the presidential or vice presidential 
election, ``publicly distributed'' means the communication can be 
received by at least 50,000 people in a state where a primary election 
is being held within 30 days, or that it can be received by at least 
50,000 people anywhere in the United States within the period between 
30 days before the first day of the national nominating convention and 
the conclusion of the convention. 11 CFR 100.29(b)(3). A person who 
makes electioneering communications that aggregate in excess of $10,000 
in a calendar year must file a statement with the Commission disclosing 
certain information about the electioneering communication, including 
the election to which the electioneering communication pertains. 52 
U.S.C. 30104(f); 11 CFR 104.20(b)-(c). As with independent 
expenditures, each state's presidential primary election is considered 
a separate election for purposes of determining whether an 
electioneering communication is ``publicly distributed'' within the 
pre-election reporting window. See Advisory Opinion 2003-40 (U.S. Navy 
Veterans' Good Government Fund) at 3-4.
    The Commission's current regulations do not specifically address 
how the public distribution criteria and other reporting requirements 
apply to independent expenditures or electioneering communications that 
are made in the context of a presidential primary election and that are 
distributed in multiple states. In particular, the regulations do not 
specify which state's primary election date is relevant for determining 
whether the communication falls within the 24-hour reporting window 
(for independent expenditures) or the 30-day definitional window (for 
electioneering communications).
    In a 2012 advisory opinion, the Commission considered how the 
independent expenditure reporting requirements applied to independent 
expenditures that supported or opposed a presidential primary candidate 
and were distributed nationwide without referring to any specific 
state's primary election. See Advisory Opinion 2011-28 (Western 
Representation PAC). In that advisory opinion, the Commission concluded 
that a political committee making such an independent expenditure 
should divide the cost of the independent expenditure by the number of 
states that had not yet held their primary elections, and should use 
the resulting amounts to determine whether the committee must file 24- 
and 48-hour reports and for which states. Id.
    In 2014, the Commission made available for public comment three 
alternative draft interpretive rules on this topic. Draft Notices of 
Interpretive Rule Regarding Reporting Nationwide Independent 
Expenditures in Presidential Primary Elections (Jan. 17, 2014) (``Draft 
Interpretive Rules''), www.fec.gov/law/policy/nationwideiereporting/draftnationwideiereporting.pdf.\4\ Draft A would have followed the 
approach set forth in Advisory Opinion 2011-28 (Western Representation 
PAC), instructing persons making a nationwide independent expenditure 
to divide the cost of the nationwide independent expenditure by the 
number of states with upcoming presidential primary elections. Draft B 
would have instructed persons making a nationwide independent 
expenditure to report it as a single expenditure without indicating a 
state where the expenditure was made, instead using ``memo text'' \5\ 
to indicate that the independent expenditure was made nationwide. Draft 
B also would have instructed filers to use the first day of the 
candidate's national nominating convention as the election date for 
determining whether they must file 24- and 48-hour reports. Finally, 
Draft C would have provided the same reporting guidance as Draft B, 
except that Draft C would have instructed filers to use the date of the 
next presidential primary election (rather than the beginning of the 
national nominating convention) as the election date.
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    \4\ The Draft Interpretive Rules referred to the type of 
independent expenditures that are the subject of this proposed 
rulemaking as ``nationwide independent expenditures.'' As discussed 
below, however, the Commission has not yet determined the number of 
states in which an independent expenditure or electioneering 
communication must be distributed to fall under the proposed rules. 
Accordingly, such communications are referred to in this Notice as 
``multistate''--rather than ``nationwide''--independent expenditures 
and electioneering communications.
    \5\ ``Memo text'' refers to a means of including additional 
information or explanation about a receipt or disbursement on a 
Commission form. See FEC, Campaign Guide for Nonconnected Committees 
(2008), https://www.fec.gov/resources/cms-content/documents/nongui.pdf.
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    The Commission received two comments on the Draft Interpretive 
Rules.\6\ Both comments generally supported Draft B. Both comments also 
argued that the approach in Draft A was unnecessarily complex and would 
not provide clear information to the public about the reported 
independent expenditures.
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    \6\ These comments are available on the Commission's website at 
http://www.fec.gov/law/policy.shtml.
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    After reviewing the comments and engaging in further deliberation, 
the Commission has determined that this issue would be better addressed 
through regulatory amendments than through an interpretive rule. 
Accordingly, the Commission is now seeking comment on proposed 
revisions to its regulations regarding reporting of independent 
expenditures and electioneering communications.

[[Page 3999]]

II. Proposed Revisions to 11 CFR Parts 102 and 104--Independent 
Expenditures by Authorized Committees of a Candidate

    As set forth below, the Commission proposes revisions to section 
102.12, concerning principal campaign committees, and section 102.13, 
concerning authorized committees. The Commission also proposes 
revisions to sections 104.3 and 104.4 regarding authorized committees' 
reporting of independent expenditures. The Commission seeks comment on 
these revisions, which are intended to clarify the type of activity 
that an authorized committee may engage in without ``supporting'' 
another candidate, as well as to require disclosure of independent 
expenditures by authorized committees if such expenditures are 
determined to be permissible.

A. Proposed New 11 CFR 102.12(c)(2)(i) and 102.13(c)(2)(i)--Definition 
of ``Support''

    In both sections 102.12 and 102.13, the Commission is proposing to 
redesignate current paragraph (c)(2) as paragraph (c)(2)(ii) and to add 
new paragraph (c)(2)(i), which would define the term ``support.'' The 
Commission is proposing two alternative provisions for new 11 CFR 
102.12(c)(2)(i) and 102.13(c)(2)(i) and seeks comment on whether either 
alternative is preferable.
    Under either alternative, the regulations would continue to exclude 
from the definition of support contributions by an authorized committee 
in amounts aggregating $2,000 or less per election to an authorized 
committee of any other candidate. Under both alternatives, current 
Sec. Sec.  102.12(c)(2) and 102.13(c)(2) would be redesignated as 
Sec. Sec.  102.12(c)(2)(ii) and 102.13(c)(2)(ii), respectively.
    Under Alternative A, new Sec. Sec.  102.12(c)(2)(i) and 
102.13(c)(2)(i) would state that for the purposes of the regulation, 
the term ``support'' includes an independent expenditure by an 
authorized committee. (The proposed regulations would clarify that this 
does not affect the ability of a national committee of a political 
party that has been designated as the principal campaign committee of 
that party's presidential candidate to make independent expenditures 
supporting or opposing other candidates. See 11 CFR 109.36.\7\) Under 
Alternative B, new Sec. Sec.  102.12(c)(2)(i) and 102.13(c)(2)(i) would 
state that for the purposes of the regulation, the term ``support'' 
does not include independent expenditures by an authorized committee.
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    \7\ Currently, both sections 102.12 and 102.13 state that the 
national party committee of a political party that has been 
designated as the principal campaign committee of that party's 
presidential candidate may contribute to another candidate in 
accordance with certain regulations. Section 102.13 states that such 
contributions must be made in accordance with 11 CFR part 109, 
subpart D (coordinated party expenditures) and part 110 
(contribution limits and prohibitions); section 102.12, however, 
states only that such contributions must be made in accordance with 
11 CFR part 110. Under both alternatives A and B, proposed paragraph 
102.12(c)(2) would be revised to include a reference to 11 CFR part 
109, subpart D, tracking the existing language in 11 CFR 
102.13(c)(2).
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    The Commission seeks comment on the two alternatives. Is either 
alternative preferable as a matter of statutory interpretation, taking 
into account the applicable case law? If both alternatives are 
statutorily permissible, is either alternative preferable as a matter 
of policy?
    For the purposes of sections 102.12 and 102.13, the term 
``support'' does not include contributions aggregating $2,000 or less. 
Thus, Alternative A would prohibit authorized committees from making 
independent expenditures in any amount, while not prohibiting those 
committees from making contributions (including coordinated 
expenditures and coordinated communications, see 52 U.S.C. 
30116(a)(7)(B)(i); 11 CFR 109.20) of up to $2,000 to other candidates. 
If the Commission adopts Alternative A, should the Commission also 
exclude independent expenditures aggregating $2,000 or less per 
election from the definition of support? If the Commission adopts 
Alternative B, authorized committees would be allowed to make 
independent expenditures in any amount. What are the implications of 
authorized committees' potentially using substantial portions of their 
resources on independent expenditures?

B. Proposed Revisions to 11 CFR 104.3--Contents of Reports and 11 CFR 
104.4--Independent Expenditures by Political Committees

    Currently, all political committees--including authorized 
committees--must report the name and address of any person who has 
received any disbursement in an aggregate amount exceeding $200 within 
a certain period, along with the date, amount, and purpose of such 
disbursement. 52 U.S.C. 30104(b)(5), (6); 11 CFR 104.3(b)(3), (4). 
Additionally, political committees--other than authorized committees--
must provide for each reported disbursement in connection with an 
independent expenditure the date, amount, and purpose of the 
independent expenditure, a statement indicating whether the independent 
expenditure was in support of, or in opposition to, a candidate, the 
name and office sought by that candidate, and a certification that the 
expenditure was, in fact, independent. 52 U.S.C. 30104(b)(6)(B); 11 CFR 
104.3(b)(3)(vii).
    If the Commission adopts Alternative B above, the Commission also 
proposes to revise 11 CFR 104.3 and 104.4 to provide a mechanism for 
authorized committees to report independent expenditures. Specifically, 
the Commission proposes revising Sec.  104.3(b)(2) to add independent 
expenditures to the categories of itemized disbursements for authorized 
committees, and adding new Sec.  104.3(b)(4)(iv) to require authorized 
committees to report the same information about independent 
expenditures that other political committees must report. Proposed 
Sec.  104.3(b)(4)(iv) would bring authorized and non-authorized 
committees into parity by requiring that authorized committees report 
the same information about independent expenditures that non-authorized 
committees are required to report, using the same form (Schedule E).\8\
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    \8\ Because Schedule E is not currently included in the forms 
used by authorized committees, the Commission would add that 
schedule to Form 3 (for House and Senate candidates) and Form 3P 
(for presidential candidates).
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    The Commission seeks comment on these proposed changes to Sec.  
104.3(b)(2) and (4), which are intended to require authorized 
committees that make independent expenditures to report the same 
information, in the same manner, as all other political committees. If 
authorized committees make independent expenditures, should they report 
more or less detailed information about those disbursements than other 
political committees? Is there another method that the Commission 
should use to allow for authorized committees to report independent 
expenditures?
    The Commission also proposes revisions to 11 CFR 104.4 to refer to 
the new paragraphs that it proposes to add to section 104.3, described 
above. In Sec.  104.4(a), (b), (c), and (d), the Commission proposes 
adding cross-references to 11 CFR 104.3(b)(4)(iv) to reflect the 
independent expenditure reporting requirements for authorized 
committees, described above. The Commission also proposes revising 
Sec.  104.4(b)(1) and (2) to omit the specific references to FEC Form 
3X because, as discussed above, authorized committees do not file that 
form. These proposed regulatory changes would be in conjunction with 
changes to Schedule E and to Forms 3 and 3P. The Commission

[[Page 4000]]

seeks comment on these proposed changes.

III. Proposed Revisions to 11 CFR 104.3 and 104.4--Reporting Multistate 
Independent Expenditures by Political Committees

    As set forth below, the Commission proposes revisions to section 
104.3, concerning the content of independent expenditure reports by 
political committees, and section 104.4, concerning the timing of 
independent expenditure reports by political committees. The Commission 
seeks comment on these revisions, which are intended to clarify the 
reporting obligations of a political committee when it makes a 
multistate independent expenditure. The Commission is considering three 
alternative proposals and seeks comment on which alternative would be 
preferable.

A. Alternative A

1. Proposed New 11 CFR 104.3(b)(3)(vii)(C)--Content of Reports
    In section 104.3, the Commission proposes adding new paragraph 
(b)(3)(vii)(C), which would require that when a political committee 
makes an independent expenditure in support of or in opposition to a 
candidate in a presidential primary election, and the communication is 
publicly distributed or otherwise disseminated in more than a specified 
number of states but does not refer to any particular state, the 
political committee must report the independent expenditure as a single 
expenditure and use memo text to indicate the states where the 
communication is distributed. The Commission would also redesignate 
current paragraph (b)(3)(vii)(C) as paragraph (b)(3)(vii)(D).
    The Commission seeks comment on the proposed new provision. Would 
the proposed paragraph provide sufficient guidance to political 
committees reporting multistate independent expenditures? Is the 
proposed provision necessary or desirable to provide full, accurate, 
and timely disclosure to the public regarding multistate independent 
expenditures that are made by political committees?
    If the Commission amends section 104.3(b)(4) to account for 
independent expenditures by authorized committees as described above in 
Section II.B, the Commission would propose to include regulatory text 
in revised section 104.3(b)(4) providing that the reporting 
requirements for authorized committees that make independent 
expenditures would mirror the reporting requirements for all other 
political committees that make independent expenditures. The Commission 
seeks comment on whether these proposed requirements should apply to 
multistate independent expenditures made by authorized committees.
    The Commission also seeks comment on the number of states that 
would be the threshold for a communication to fall within the new 
paragraph. Requiring an independent expenditure to be ``nationwide''--
i.e., disseminated in all fifty states plus the District of Columbia 
(and possibly Puerto Rico, Guam, and American Samoa)--would exclude 
some independent expenditures that are distributed in a large number of 
states (e.g., the entire continental United States). This would 
significantly limit the benefits and application of the proposed 
reporting rule. Alternatively, applying the new provision to 
independent expenditures that are disseminated in only a handful of 
states might result in independent expenditures that are targeted to a 
specific state's primary--but partially distributed in neighboring 
states that share its media markets--being misleadingly reported as 
``multistate'' communications. In how many states should an independent 
expenditure have to be distributed to fall within the proposed new 
reporting rule? Should the rule specify a particular number of states, 
or are there other ways to effectively delineate the communications 
that would be reported as multistate independent expenditures?
    The proposed new paragraph would represent a change from the 
Commission's previous guidance on this issue. In Advisory Opinion 2011-
28 (Western Representation PAC), the Commission instructed a political 
committee to allocate the cost of a multistate independent expenditure 
among all the states where the communication was distributed. None of 
the persons who commented on the Draft Interpretive Rules supported 
retaining that approach, and the Commission is not proposing it here. 
Nonetheless, are there advantages to that approach that the Commission 
should consider in crafting the new rule?
    If the proposed new paragraph is adopted, the Commission recognizes 
that implementing it would likely require modifying the instructions 
for the Commission's Schedule E form. The Commission anticipates that 
these modified instructions would provide political committees 
flexibility on how to report the states where the multistate 
independent expenditure is distributed. For example, the instructions 
would permit the memo text for a multistate independent expenditure to 
indicate that the independent expenditure was distributed 
``nationwide,'' in ``all fifty states,'' in ``IN, OH, WI, MI, MN, IL, 
PA, MO,'' or in ``all states except Alaska and Hawaii,'' etc. Would 
such instructions provide sufficient guidance and flexibility to 
filers? Should the Commission provide more specific guidelines on how 
political committees should indicate the states where multistate 
independent expenditures are distributed? Should the proposed new 
regulation address this issue specifically? If so, how?
2. Proposed New 11 CFR 104.4(f)(2)--Timing of Reports
    In section 104.4, the Commission is proposing to redesignate 
current paragraph (f) as paragraph (f)(1) and add new paragraph (f)(2), 
concerning when a political committee must file a 24- or 48-hour report 
for a multistate independent expenditure.
    Following the approach proposed in Draft Interpretive Rule B, a 
political committee that makes a multistate independent expenditure 
would report it as a single expenditure, as discussed above, and the 
political committee would use the date of the national nominating 
convention for the clearly identified candidate's party as the date of 
the election to determine whether the independent expenditure is within 
the 20 days before the election and is therefore subject to the 24-hour 
reporting requirement under 52 U.S.C. 30104(g)(1).
    The Commission seeks comment on this proposal. Does it provide 
sufficient guidance to political committees as to how to determine 
whether they must file 24-hour or 48-hour reports for multistate 
independent expenditures? Is this proposal preferable to the 
Commission's existing guidance under Advisory Opinion 2011-28 (Western 
Representation PAC)? Would this proposal enhance the public's access to 
full, accurate, and timely information about multistate independent 
expenditures?

B. Alternative B

1. Proposed New 11 CFR 104.3(b)(3)(vii)(C)--Content of Reports
    In section 104.3, the Commission proposes making the same changes 
as described above under Alternative A, adding new paragraph 
(b)(3)(vii)(C) and redesignating current paragraph (b)(3)(vii)(C) as 
paragraph (b)(3)(vii)(D).
2. Proposed New 11 CFR 104.4(f)(2)--Timing of Reports
    Similar to Alternative A, in section 104.4, the Commission is 
proposing to

[[Page 4001]]

redesignate current paragraph (f) as paragraph (f)(1) and add new 
paragraph (f)(2), concerning when a political committee must file a 24- 
or 48-hour report for a multistate independent expenditure. However, 
under Alternative B, which follows the approach proposed in Draft 
Interpretive Rule C, the political committee would determine whether 
the independent expenditure is within the 20 days before the election 
and is therefore subject to the 24-hour reporting requirement under 52 
U.S.C. 30104(g)(1) by using as the date of the election the date of the 
next upcoming presidential primary among the presidential primaries to 
be held in the states in which the independent expenditure is 
distributed or disseminated.
    The Commission seeks comment on this proposal. Does it provide 
sufficient guidance to political committees as to how to determine 
whether they must file 24-hour or 48-hour reports for multistate 
independent expenditures? Is this proposal preferable to the 
Commission's existing guidance under Advisory Opinion 2011-28 (Western 
Representation PAC)? Would this proposal enhance the public's access to 
full, accurate, and timely information about multistate independent 
expenditures?

C. Alternative C

1. Proposed New 11 CFR 104.3(b)(3)(vii)(C)--Multistate Independent 
Expenditures
    As with Alternatives A and B, for Alternative C the Commission 
proposes to amend section 104.3 by adding new paragraph (b)(3)(vii)(C). 
For Alternative C, however, the new paragraph would provide that for 
any independent expenditure in support of or in opposition to a 
candidate in a presidential primary election, where the communication 
is publicly distributed or otherwise disseminated in more than a 
specified number of states but does not refer to any particular state, 
the political committee must report the independent expenditure 
according to new section 104.4(f)(2), discussed below. The Commission 
would also redesignate current paragraph (b)(3)(vii)(C) as paragraph 
(b)(3)(vii)(D).
2. Proposed New 11 CFR 104.4(f)(2)--Reporting Multistate Independent 
Expenditures
    As with Alternatives A and B, for Alternative C the Commission 
proposes to amend section 104.4 by redesignating current paragraph (f) 
as paragraph (f)(1) and adding new paragraph (f)(2). Under Alternative 
C, new paragraph (f)(2) would bring together all of the aggregation and 
reporting requirements for multistate independent expenditures in one 
paragraph. New section 104.4(f)(2) would set forth the requirements for 
determining whether and when a 24- or 48-hour report is required, along 
with the specific information to be included in such a report.
    In contrast to Alternatives A and B, which would require a 
political committee to determine whether a 24-hour report is required 
based on the total amount of the independent expenditure, Alternative C 
would require political committees to allocate the amount of the 
expenditure among the states where it is distributed whose primary 
elections have yet to occur. Political committees who file 
electronically would be able to rely on the new electronic filing 
system that the Commission expects to introduce before the 2020 
election cycle or third-party electronic filing software to do this 
calculation. If this alternative is adopted, the Commission also 
proposes to make a calculator available on its website to aid political 
committees that do not file electronically in making the necessary 
allocations.
    Under Alternative C, a political committee would disregard any 
states where the communication was distributed but where the 
presidential primary election has already occurred, and would allocate 
the total amount of the independent expenditure among the remaining 
states, according to a ratio based on the number of U.S. House of 
Representatives districts apportioned to each state.
    For purposes of determining whether the independent expenditure is 
within the 20 days before the election and is therefore subject to the 
24-hour reporting requirement under 52 U.S.C. 30104(g)(1), the 
political committee would use the date of the next upcoming primary 
election among the states where the independent expenditure was 
distributed. If that date is more than 20 days away from the date of 
the expenditure and the amount allocated to that state causes the 
political committee's aggregate spending in that state to exceed 
$10,000, the committee would be required to file a 48-hour report. If 
that date is between 1 and 20 days away and the amount allocated to 
that state causes the political committee's aggregate spending in that 
state to exceed $1,000, the committee would be required to file a 24-
hour report.
    Information about the dates of the major-party presidential primary 
elections and the number of House districts apportioned to each state 
would be incorporated into the Commission's electronic filing system, 
so a political committee that filed electronically would be able to 
enter the date and amount of the independent expenditure and the states 
where it was distributed, and the software would do the calculation to 
determine whether any reports were required. The same information would 
be provided on the Commission's website for the benefit of any 
political committees that do not file electronically, in the form of a 
calculator that would perform the allocation calculation when a 
political committee enters the amount and date of a communication and 
the states in which it is publicly distributed.
    Example: A political committee spent $40,000 on an independent 
expenditure broadcast in Texas, Arizona, New Mexico, and Oklahoma on 
March 15, where the next upcoming primary election was going to be in 
Oklahoma on March 20. There are a total of 53 House districts in those 
four states: 9 in Arizona, 3 in New Mexico, 5 in Oklahoma, and 36 in 
Texas. On the date the communication was distributed, all four states 
where it was distributed had yet to hold their presidential primary 
elections. Therefore the political committee would allocate the $40,000 
according to each state's proportion of House districts out of the 53 
total: $6,792 for Arizona (40,000 x (9/53)), $2,264 for New Mexico 
(40,000 x (3/53)), $3,773 for Oklahoma (40,000 x (5/53)), and $27,169 
for Texas (40,000 x (36/53)). Because the next upcoming primary 
election where the communication was distributed would be within 20 
days, in Oklahoma, and the political committee would have spent more 
than $1,000 in that state, a 24-hour report would be required.
    The Commission acknowledges that the proposed allocation 
calculation may seem complex, but notes that this proposal would allow 
political committees to take advantage of advancing technology to 
relieve them of the burden of determining whether and when to report 
multistate independent expenditures. A political committee would need 
only enter the date and total amount of an independent expenditure and 
the states in which it was publicly distributed, and the electronic 
filing system or calculator would determine whether a 24- or 48-hour 
report was required and what amount to allocate to each state. The 
Commission would not implement Alternative C until the new electronic 
filing system and calculator were in place so as to avoid requiring any 
political committee to perform the allocation calculation manually.

[[Page 4002]]

    Would Alternative C satisfy the Act's provisions for reporting 
independent expenditures? Would this approach enhance the public's 
access to full, accurate, and timely information about multistate 
independent expenditures? Would this proposal provide sufficient 
guidance to political committees as to how to determine whether they 
must file 24-hour or 48-hour reports for multistate independent 
expenditures and what information to include in such reports? Is this 
proposal preferable to the Commission's existing guidance under 
Advisory Opinion 2011-28 (Western Representation PAC)? Does the 
feasibility of this proposal depend on whether a political committee 
files electronically, and if so, is the number of political committees 
that make multistate independent expenditures but do not file 
electronically significant?
    The Commission seeks comment on whether it is appropriate or 
desirable to use House representation, which is based on population, as 
a basis for allocation. Does the use of House districts assume that the 
entire population of a state receives the communication, and does that 
question make a difference in how independent expenditures should be 
reported? Does this proposed use of House districts to determine 
whether and when independent expenditures must be reported differ 
materially from proposed Alternatives A and B?
    The Commission also seeks overall comment on which of the three 
alternatives (A, B or C) is preferable with respect to (1) the burden 
on the political committees that must report their multistate 
independent expenditures, and (2) the usefulness of the information 
disclosed to the public. Are there other approaches that might be 
preferable to any of these proposed alternatives?

IV. Proposed Revision to 11 CFR 109.10--Reporting Multistate 
Independent Expenditures by Persons Other Than Political Committees

    In 11 CFR 109.10(e)--which addresses the content of independent 
expenditure reports filed by persons other than political committees--
the Commission proposes to reference the requirements for reporting 
multistate independent expenditures that the Commission proposes to add 
to section 104.3(b)(3)(vii)(C) or in new section 104.4(f)(2). 
Specifically, revised section 109.10(e)(1)(iv) would provide that when 
a person other than a political committee makes an expenditure meeting 
the criteria set forth in section 104.3(b)(3)(vii)(C) (i.e., an 
independent expenditure that supports or opposes a presidential primary 
candidate and that is distributed in more than the specified number of 
states but does not refer to any particular state), the person must 
report the expenditure pursuant to the provisions of section 
104.3(b)(3)(vii)(C) or section 104.4(f)(2).
    The Commission requests comments on this proposed revision to 11 
CFR 109.10. Should the reporting requirements for multistate 
independent expenditures made by persons other than political 
committees parallel the reporting requirements for multistate 
independent expenditures made by political committees? Although 
Advisory Opinion 2011-28 (Western Representation PAC) and the Draft 
Interpretive Rules did not address how persons other than political 
committees should report multistate independent expenditures, is there 
any legal or policy reason that the reporting requirements for 
political committees and for other persons should differ in the context 
of multistate independent expenditures? Does the proposed revision to 
section 109.10 clarify the reporting obligations of persons who make 
multistate independent expenditures? Is the proposed revision to 
section 109.10 necessary or desirable to provide full, accurate, and 
timely disclosure to the public regarding multistate independent 
expenditures made by persons other than political committees? Would the 
proposed revision reduce or increase the administrative burden on such 
persons? If the proposed revision does increase the administrative 
burden on such persons, is that burden outweighed by the usefulness of 
the information disclosed to the public?

V. Proposed Revision to 11 CFR 104.20--Electioneering Communications

    In section 104.20(c), which concerns the content of reports 
regarding electioneering communications, the Commission proposes to add 
a new paragraph (c)(6) and redesignate current paragraphs (c)(6)-(9) as 
paragraphs (c)(7)-(10). Proposed new paragraph (c)(6) would apply when 
the relevant election (which the reporting person is required to 
disclose pursuant to paragraph (c)(5)) is a presidential primary 
election and the electioneering communication is distributed in more 
than a specified number of states but does not refer to any particular 
state's primary election.
    In such situations, this new paragraph would parallel the new 
reporting requirements for multistate independent expenditures as 
discussed above, either new section 104.3(b)(3)(vii)(C) if Alternative 
A or B is adopted, or new section 104.4(f)(2) if Alternative C is 
adopted. If Alternative A or B is adopted, new paragraph (c)(6) would 
provide that the reporting person must report the electioneering 
communication as a single communication and use a memo text to indicate 
the states in which the communication constitutes an electioneering 
communication (as defined in 11 CFR 100.29(a)).
    If Alternative C is adopted, new paragraph (c)(6) would provide 
that the reporting person must allocate the cost of the communication 
among the states where it is publicly distributed and whose 
presidential primary elections have not yet occurred as set forth in 
new section 104.4(f)(2). The proposed revision would thus treat 
multistate electioneering communications similarly to multistate 
independent expenditures, as discussed above.
    The Commission seeks comment on the proposed revision to section 
104.20. Should multistate electioneering communications be treated 
similarly to multistate independent expenditures, or are there 
differences between the two types of communications or the persons that 
make them that would call for different reporting requirements? Should 
the same number of states constitute the threshold for multistate 
independent expenditures and multistate electioneering communications? 
Should the cost of an electioneering communication be allocated among 
the states where the communication is publicly distributed for 
reporting purposes?
    Would the proposed new paragraph increase or decrease the 
administrative burden on persons reporting electioneering 
communications? If the proposed revision does increase the 
administrative burden on such persons, is that burden outweighed by the 
usefulness of the information disclosed to the public? Would the 
proposed revision provide sufficient information on how persons making 
multistate electioneering communications should disclose them? Is the 
proposed revision necessary or desirable to provide full, accurate, and 
timely disclosure of information about multistate electioneering 
communications to the public?

Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory 
Flexibility Act)

    The Commission certifies that the attached proposed rules, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities. The proposed rules would

[[Page 4003]]

clarify whether authorized committees may make independent expenditures 
and provide a mechanism for authorized committees to report independent 
expenditures. The proposed reporting requirements would only affect 
authorized committees that choose to make independent expenditures. 
Moreover, authorized committees are already required to report all 
disbursements, as well as the name and address of any person who has 
received any disbursement in an aggregate amount exceeding $200 within 
a certain period, along with the date, amount, and purpose of such 
disbursement. Thus, the proposed rules would not materially change the 
amount of information reported, but rather would change how 
disbursements for independent expenditures are identified on reports.
    The proposed rules would also provide for consolidated reporting of 
certain independent expenditures and electioneering communications that 
the Commission's current reporting guidance indicates should be 
allocated among elections in multiple states. The Commission 
anticipates that the proposed consolidation of these reports would 
generally result in a modest reduction of the administrative burdens on 
reporting entities, and it would not impose any new reporting 
obligations. Thus, to the extent that any entities affected by these 
proposed rules might fall within the definition of ``small businesses'' 
or ``small organizations,'' the economic impact of complying with these 
rules would not be significant.

List of Subjects

11 CFR Part 102

    Political committees and parties, Reporting and recordkeeping 
requirements.

11 CFR Part 104

    Campaign funds, Political committees and parties, Reporting and 
recordkeeping requirements.

11 CFR Part 109

    Elections, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble, the Federal Election 
Commission proposes to amend 11 CFR chapter 1, as follows:

PART 102--REGISTRATION, ORGANIZATION, AND RECORDKEEPING BY 
POLITICAL COMMITTEES (52 U.S.C. 30103)

0
1. The authority citation for part 102 continues to read as follows:

    Authority:  52 U.S.C. 30102, 30103, 30104(a)(11), 30111(a)(8), 
and 30120.

0
2. Revise paragraph (c)(2) of Sec.  102.12 to read as follows:


Sec.  102.12  Designation of principal campaign committee (52 U.S.C. 
30102(e)(1) and (3)).

* * * * *
    (c) * * *

Alternative A

    (2)(i) For purposes of paragraph (c) of this section, the term 
support includes an independent expenditure by an authorized committee.
    (ii) For purposes of paragraph (c) of this section, the term 
support does not include contributions by an authorized committee in 
amounts aggregating $2,000 or less per election to an authorized 
committee of any other candidate.
    (iii) Nothing in paragraph (c)(2) of this section affects the 
ability of a national committee of a political party that has been 
designated as the principal campaign committee of that party's 
presidential candidate to contribute to or make independent 
expenditures in support of another candidate in accordance with 11 CFR 
part 109, subpart D, and 11 CFR part 110.

Alternative B

    (2) For purposes of paragraph (c) of this section, the term support 
does not include:
    (i) Independent expenditures by an authorized committee in any 
amount; or
    (ii) Contributions by an authorized committee in amounts 
aggregating $2,000 or less per election to an authorized committee of 
any other candidate, except that the national committee of a political 
party which has been designated as the principal campaign committee of 
that party's presidential candidate may contribute to another candidate 
in accordance with 11 CFR part 109, subpart D, and part 110.
0
3. Revise paragraph (c)(2) of Sec.  102.13 to read as follows:


Sec.  102.13  Authorization of political committees (52 U.S.C. 
30102(e)(1) and (3)).

* * * * *
    (c) * * *

Alternative A

    (2)(i) For purposes of paragraph (c) of this section, the term 
support includes an independent expenditure by an authorized committee.
    (ii) For purposes of paragraph (c) of this section, the term 
support does not include contributions by an authorized committee in 
amounts aggregating $2,000 or less per election to an authorized 
committee of any other candidate.
    (iii) Nothing in paragraph (c)(2) of this section affects the 
ability of a national committee of a political party that has been 
designated as the principal campaign committee of that party's 
presidential candidate to contribute to or make independent 
expenditures in support of another candidate in accordance with 11 CFR 
part 109, subpart D, and 11 CFR part 110.

Alternative B

    (2) For purposes of paragraph (c) of this section, the term support 
does not include:
    (i) Independent expenditures by an authorized committee in any 
amount; or
    (ii) Contributions by an authorized committee in amounts 
aggregating $2,000 or less per election to an authorized committee of 
any other candidate, except that the national committee of a political 
party which has been designated as the principal campaign committee of 
that party's presidential candidate may contribute to another candidate 
in accordance with 11 CFR part 109, subpart D, and 11 CFR part 110.

PART 104--REPORTS BY POLITICAL COMMITTEES AND OTHER PERSONS (52 
U.S.C. 30104)

0
4. The authority citation for part 104 continues to read as follows:

    Authority:  52 U.S.C. 30101(1), 30101(8), 30101(9), 30102(i), 
30104, 30111(a)(8) and (b), 30114, 30116, 36 U.S.C. 510.


Sec.  104.3  [Amended]

0
5. Redesignate paragraphs (b)(2)(vi) and (b)(2)(vii) as (b)(2)(vii) and 
(b)(2)(viii).
0
6. Add new paragraph (b)(2)(vi) and revise paragraphs (b)(3)(vii)(C) 
and (D) and (b)(4)(vi) to read as follows:


Sec.  104.3  Contents of Reports.

Alternatives A and B

* * * * *
    (b) * * *
    (2) * * *
    (vi) Independent expenditures made by the reporting committee;
* * * * *
    (3) * * *
    (vii) * * *
    (C) For an independent expenditure that is made in support of or 
opposition to a presidential primary candidate and is publicly 
distributed or otherwise publicly disseminated in more than __ states 
but does not refer to any particular state, the political committee 
must report the independent

[[Page 4004]]

expenditure as a single expenditure--i.e., without allocating it among 
states--and must use memo text to indicate the states in which the 
communication is distributed.
    (D) The information required by 11 CFR 104.3(b)(3)(vii)(A) through 
(C) shall be reported on Schedule E as part of a report covering the 
reporting period in which the aggregate disbursements for any 
independent expenditure to any person exceed $200 per calendar year. 
Schedule E shall also include the total of all such expenditures of 
$200 or less made during the reporting period.
    (4) * * *
    (iv)(A) Each person who receives any disbursement during the 
reporting period in an aggregate amount or value in excess of $200 
within the calendar year in connection with an independent expenditure 
by the reporting committee, together with the date, amount, and purpose 
of any such independent expenditure(s);
    (B) For each independent expenditure reported, the committee must 
also provide a statement which indicates whether such independent 
expenditure is in support of, or in opposition to a particular 
candidate, as well as the name of the candidate and office sought by 
such candidate (including State and Congressional district, when 
applicable), and a certification, under penalty of perjury, as to 
whether such independent expenditure is made in cooperation, 
consultation or concert with, or at the request or suggestion of, any 
other candidate or any other authorized committee or agent of such 
committee;
    (C) For an independent expenditure that is made in support of or 
opposition to a presidential primary candidate and is publicly 
distributed or otherwise publicly disseminated in more than __ states 
but does not refer to any particular state, the political committee 
must report the independent expenditure as a single expenditure--i.e., 
without allocating it among states--and must use memo text to indicate 
the states in which the communication is distributed.
    (D) The information required by 11 CFR 104.3(b)(4)(iv)(A) through 
(C) shall be reported on Schedule E as part of a report covering the 
reporting period in which the aggregate disbursements for any 
independent expenditure to any person exceed $200 per calendar year. 
Schedule E shall also include the total of all such expenditures of 
$200 or less made during the reporting period.
* * * * *

Alternative C

* * * * *
    (b) * * *
    (2) * * *
    (vi) Independent expenditures made by the reporting committee;
* * * * *
    (3) * * *
    (vii) * * *
    (C) For an independent expenditure that is made in support of or 
opposition to a presidential primary candidate and is publicly 
distributed or otherwise publicly disseminated in more than __ states 
but does not refer to any particular state, the political committee 
must report the independent expenditure according to 11 CFR 
104.4(f)(2).
    (D) The information required by 11 CFR 104.3(b)(3)(vii)(A) through 
(C) shall be reported on Schedule E as part of a report covering the 
reporting period in which the aggregate disbursements for any 
independent expenditure to any person exceed $200 per calendar year. 
Schedule E shall also include the total of all such expenditures of 
$200 or less made during the reporting period.
    (4) * * *
    (iv)(A) Each person who receives any disbursement during the 
reporting period in an aggregate amount or value in excess of $200 
within the calendar year in connection with an independent expenditure 
by the reporting committee, together with the date, amount, and purpose 
of any such independent expenditure(s);
    (B) For each independent expenditure reported, the committee must 
also provide a statement which indicates whether such independent 
expenditure is in support of, or in opposition to a particular 
candidate, as well as the name of the candidate and office sought by 
such candidate (including State and Congressional district, when 
applicable), and a certification, under penalty of perjury, as to 
whether such independent expenditure is made in cooperation, 
consultation or concert with, or at the request or suggestion of, any 
other candidate or any other authorized committee or agent of such 
committee;
    (C) For an independent expenditure that is made in support of or 
opposition to a presidential primary candidate and is publicly 
distributed or otherwise publicly disseminated in more than __ states 
but does not refer to any particular state, the political committee 
must report the independent expenditure according to 11 CFR 
104.4(f)(2).
    (D) The information required by 11 CFR 104.3(b)(4)(iv)(A) through 
(C) shall be reported on Schedule E as part of a report covering the 
reporting period in which the aggregate disbursements for any 
independent expenditure to any person exceed $200 per calendar year. 
Schedule E shall also include the total of all such expenditures of 
$200 or less made during the reporting period.
* * * * *
0
6. Amend Sec.  104.4 by
0
a. In paragraphs (a), (b), (c), and (d), adding ``and (b)(4)(vi)'' 
after ``11 CFR 104.3(b)(3)(iv)'';
0
b. In paragraph (b) removing ``FEC Form 3X'' and adding, in its place, 
the words ``the applicable FEC Form'';
0
c. Revising paragraph (f) as to read as follows:


Sec.  104.4  Independent expenditures by political committees.

* * * * *
    (f) Aggregating independent expenditures for reporting purposes. 
(1) For purposes of determining whether 24-hour and 48-hour reports 
must be filed in accordance with paragraphs (b) and (c) of this section 
and 11 CFR 109.10(c) and (d), aggregations of independent expenditures 
must be calculated as of the first date on which a communication that 
constitutes an independent expenditure is publicly distributed or 
otherwise publicly disseminated, and as of the date that any such 
communication with respect to the same election is subsequently 
publicly distributed or otherwise publicly disseminated. Every person 
must include in the aggregate total all disbursements during the 
calendar year for independent expenditures, and all enforceable 
contracts, either oral or written, obligating funds for disbursements 
during the calendar year for independent expenditures, where those 
independent expenditures are made with respect to the same election for 
Federal office.

Alternative A

    (2) For purposes of determining whether 24-hour or 48-hour reports 
must be filed in accordance with paragraphs (b) and (c) of this section 
and 11 CFR 109.10(c) and (d), if the independent expenditure is made in 
support of or opposition to a candidate in a presidential primary 
election and is publicly distributed or otherwise publicly disseminated 
in more than __ states but does not refer to any particular state, the 
date of the election is the first day of the national nominating 
convention of the party whose nomination the candidate is seeking.

Alternative B

    (2) For purposes of determining whether 24-hour or 48-hour reports

[[Page 4005]]

must be filed in accordance with paragraphs (b) and (c) of this section 
and 11 CFR 109.10(c) and (d), if the independent expenditure is made in 
support of or opposition to a candidate in a presidential primary 
election and is publicly distributed or otherwise publicly disseminated 
in more than __ states but does not refer to any particular state, the 
date of the election is the date of the next upcoming presidential 
primary election among the presidential primary elections to be held in 
the states in which the independent expenditure is publicly distributed 
or disseminated.

Alternative C

    (2) Multistate independent expenditures. (i) If an independent 
expenditure is made in support of or opposition to a candidate in a 
presidential primary election and is publicly distributed or otherwise 
publicly disseminated in more than __ states but does not refer to any 
particular state, the political committee must allocate the total 
amount of the expenditure among each of the states where it is publicly 
distributed or disseminated and where the presidential primary election 
has yet to occur, according to the number of Congressional districts 
apportioned to each such state relative to the total number of 
Congressional districts in all such states.
    (ii) If the communication is publicly distributed or otherwise 
publicly disseminated up to and including the 20th day before the next 
upcoming presidential primary election in any of the states, and the 
amount calculated in paragraph (f)(2)(i) of this section aggregates to 
$10,000 or more with respect to any of the states in that calendar 
year, the political committee must file a 48-hour report in accordance 
with paragraph (b)(2) of this section.
    (iii) If the communication is publicly distributed or otherwise 
publicly disseminated after the 20th day but more than 24 hours before 
12:01 a.m. of the day of the next upcoming presidential primary 
election in any of the states, and the amount calculated in paragraph 
(f)(2)(i) of this section aggregates to $1,000 or more with respect to 
any of the states, the political committee must file a 24-hour report 
in accordance with paragraph (c) of this section.
    (iv) For any report of an independent expenditure included on a 
political committee's regular report under paragraph (b)(1) of this 
section, or any 48- or 24-hour report of an independent expenditure, 
the political committee must indicate the date and amount of the 
expenditure, and list the states in which the communication is publicly 
disseminated or otherwise publicly distributed.


Sec.  104.20   [Amended]

0
7. In Sec.  104.20:
0
 a. Redesignate paragraphs (c)(6) through (c)(9) as paragraphs (c)(7) 
through (c)(10).
0
 b. Revise the heading and add new paragraph (c)(6) to read as follows:


Sec.  104.20  Reporting electioneering communications (52 U.S.C. 
30104(f)).

* * * * *
    (c) * * *

Alternatives A and B

    (6) If the election identified pursuant to paragraph (c)(5) of this 
section is a presidential primary election and the electioneering 
communication is publicly distributed or otherwise disseminated in more 
than __ states but does not refer to any particular state, the 
electioneering communication shall be reported as a single 
communication, and the states in which it constitutes an electioneering 
communication (as defined in 11 CFR 100.29(a)) shall be indicated in 
memo text.

Alternative C

    (6) If the election identified pursuant to paragraph (c)(5) of this 
section is a presidential primary election and the electioneering 
communication is publicly distributed or otherwise disseminated in more 
than __ states but does not refer to any particular state, the cost of 
the electioneering communication shall be allocated among the states 
where it is publicly distributed or otherwise disseminated in 
accordance with Sec.  104.4(f)(2)(A).
* * * * *

PART 109--COORDINATED AND INDEPENDENT EXPENDITURES (52 U.S.C. 
30101(17), 30116(A) AND (D), AND PUBLIC LAW 107-155 SEC. 214(C))

0
8. The authority citation for part 109 continues to read as follows:

    Authority:  52 U.S.C. 30101(17), 30104(c), 30111(a)(8), 30116, 
30120; Sec. 214(c), Pub. L. 107-155, 116 Stat. 81.

0
9. Revise paragraph (e)(1)(iv) of Sec.  109.10 as follows:


Sec.  109.10  How do political committees and other persons report 
independent expenditures?

* * * * *
    (e) * * *
    (1) * * *

Alternatives A and B

    (iv) A statement that indicates whether such expenditure was in 
support of, or in opposition to a candidate, together with the 
candidate's name and office sought; if the expenditure meets the 
criteria set forth in Sec.  104.3(b)(3)(vii)(C), memo text must be used 
to indicate the states in which the communication is distributed, as 
prescribed in that section;

Alternative C

    (iv) A statement that indicates whether such expenditure was in 
support of, or in opposition to a candidate, together with the 
candidate's name and office sought; if the expenditure meets the 
criteria set forth in Sec.  104.3(b)(3)(vii)(C), the communication must 
be reported in accordance with Sec.  104.4(f)(2);
* * * * *

    On behalf of the Commission.

    Dated: January 17, 2018.
 Caroline C. Hunter,
Chair, Federal Election Commission.
[FR Doc. 2018-01074 Filed 1-26-18; 8:45 am]
 BILLING CODE 6715-01-P