The Federal Election Commission has issued new rules governing participation by federal candidates and officeholders in nonfederal fundraising events. These rules were issued in response to the court’s decision in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008), which invalidated the portion of the Commission’s former rules that allowed federal candidates and officeholders to speak at state, district and local party committee fundraising events “without restriction or regulation.” 11 CFR 300.64(b) (2005). The FAQ's below offer additional information regarding the revised rules.
1. Who is affected by the new rules?
The new rules affect federal candidates and officeholders who participate in nonfederal fundraising events and describe how they may participate both in the event itself and in publicity for the event. (11 CFR 300.64(a).)
2. Do the new rules apply to state parties, state candidates, state political committees, or 527 political organizations?
While the rules don’t impose any new obligations on state parties, state candidates, state political committees, or 527 organizations, any entity that hosts a nonfederal fundraising event in connection with an election should work with any federal candidate or officeholder who plans to participate in the event to ensure that the federal candidate or officeholder complies with the new rules. This is especially true if the host plans to identify federal candidates or officeholders in invitations or other publicity for the event. (11 CFR 300.64(a).)
3. What are “nonfederal fundraising events”?
Nonfederal fundraising events are events that are held in connection with any election and at which funds are solicited in excess of the contribution limits allowed under the Federal Election Campaign Act (the “Act”) and/or funds are solicited from sources (such as corporations or labor organizations) prohibited from making contributions under the Act. (11 CFR 300.64(a).)
4. Do the new rules cover all fundraising events in connection with an election?
No, the new rules do not cover fundraising events at which only funds that comply with the Act’s amount limitations and source prohibitions are solicited. (11 CFR 300.64(a).)
5. I’m hosting a fundraising event for a state candidate and am going to solicit donations from corporations and labor organizations at the event. May a federal candidate or officeholder give a speech at my fundraising event?
Yes. Federal candidates and officeholders may attend, speak at, and be featured guests at nonfederal fundraising events. (11 CFR 300.64(b)(1).) What federal candidates and officeholders may NOT do is to solicit nonfederal funds at any time.
6. May a federal candidate or officeholder solicit any funds at a nonfederal fundraising event?
Yes. Federal candidates and officeholders may solicit funds at nonfederal fundraising events, provided that the solicitations are limited to funds that are within the Act’s amount limitations and from permissible sources. A federal candidate may specifically solicit funds at an event by saying, for example, that he or she is asking for donations of only up to $500 and only from individuals. If the federal candidate doesn’t want to limit his or her solicitations in this way, and instead wants to make solicitations without mentioning any amount or the source restrictions, then there must be a clear and conspicuous oral or written statement at the event that the solicitations are limited to permissible amounts and permissible sources. (11 CFR 300.64(b)(2).)
7. When is a statement at a nonfederal fundraising event clear and conspicuous?
A written statement is clear and conspicuous if it is easy to read and if its placement is not easily overlooked by those attending the event. Similarly, an oral statement is clear and conspicuous if it is easy to hear. Examples include statements on placards that are prominently displayed at the entrance of an event, statements on cards that are placed on every table at an event, or statements made during the welcome remarks to event attendees. (11 CFR 300.64(b)(2.)
8. I’m a federal officeholder, and I plan to give the keynote address at a nonfederal fundraising event, such as an event for a state party committee or a 527 political organization. While I don’t intend to solicit any funds at the event, the state party committee or 527 political organization wants to advertise my role at the event in its invitations for the event and other publicity. What should I do to ensure that I comply with the rules?
Federal candidates and officeholders and their staff should work with the event sponsor on the invitations and other publicity. If the invitations and other publicity do not solicit any funds – or only solicit funds that are consistent with the Act’s amount limitations and source prohibitions – then you may be identified in the publicity in any manner. (11 CFR 300.64(c)(1)-(2)) But if the publicity solicits funds that are not consistent with the Act’s amount limitations or source prohibitions, then you may approve, authorize, agree to, or consent to the use of your name or likeness in the publicity only if: (1) you are identified in a manner not specifically related to fundraising; and (2) the publicity includes a clear and conspicuous disclaimer explicitly stating that you are not soliciting funds. (11 CFR 300.64(c)(3).)
9. What roles are “not specifically related to fundraising”?
The following roles are not specifically related to fundraising: featured guest, honored guest, special guest, featured speaker, and honored speaker. These, however, are not the only permissible ways for a federal candidate or officeholder to be identified. For example, publicity that states, “The state party invites you to join Senator X and Candidate Y,” does not identify either federal candidate or officeholder in a role specifically related to fundraising. (11 CFR 300.64(c)(3)(i)(A).)
10. Does it matter what form the publicity takes?
No, it doesn’t matter what form the publicity takes. Publicity includes any advertisement, announcement, or invitation related to a fundraising event, whether by phone call, mail, e-mail, fax, text message, or some other method. (11 CFR 300.64(c).)
11. When does the publicity for a nonfederal fundraising event need to include a fundraising disclaimer?
Publicity for a nonfederal fundraising event that solicits funds outside the Act’s amount limitations or source prohibitions and that identifies a federal candidate or officeholder must include a fundraising disclaimer. The fundraising disclaimer must explicitly provide that the federal candidate or officeholder is not soliciting funds, and it must be clear and conspicuous. (11 CFR 300.64(c)(3)(i).) Note, however, that federal candidates and officeholders may not under any circumstances be identified in a manner specifically related to fundraising in publicity that solicits nonfederal funds. Including a fundraising disclaimer will not make such publicity permissible. (11 CFR 300.64(c)(3)(v).)
12. What makes a fundraising disclaimer on publicity clear and conspicuous?
To be clear and conspicuous, fundraising disclaimers on written publicity must meet the requirements of the “Paid for by” disclaimers in 11 CFR 110.11(c)(2). (11 CFR 300.64(c)(3)(ii).) Specifically, the disclaimer must be of a sufficient type size to be clearly readable by the recipient of the communication, must be in a printed box set apart from the rest of the communication, and must be printed with a reasonable degree of color contrast from the background. For oral publicity, a disclaimer is required only if the oral publicity is recorded or follows any form of written script or is conducted according to a structured or organized program. (11 CFR 300.64(c)(3)(iii).)
13. I’m a federal candidate. May I be identified as a member of the host committee in publicity for a state candidate’s nonfederal fundraising event, if the publicity solicits nonfederal funds?
No, federal candidates and officeholders may not approve, authorize, agree to, or consent to the use of their names or likenesses in publicity that solicits nonfederal funds and that identifies them in a manner specifically related to fundraising. Serving on a host committee or as an honorary chair are roles specifically related to fundraising. (11 CFR 300.64(c)(3)(v).)
14. As a federal candidate or officeholder, may I extend invitations to a nonfederal fundraising event if the invitations solicit nonfederal funds?
No. If an invitation solicits non-federal funds, then a federal candidate or officeholder may not be identified as the person extending the invitation, nor may a federal candidate or officeholder sign the invitation. Federal candidates and officeholders are also prohibited from disseminating publicity that solicits nonfederal funds. Dissemination includes forwarding emails that include publicity soliciting nonfederal funds. Any of these actions would be an impermissible solicitation of nonfederal funds by a federal candidate or officeholder. (11 CFR 300.64(c)(3)(v)-(vi).)
15. As a federal candidate or officeholder, may I extend invitations to, or disseminate publicity for, a nonfederal fundraising event if the invitations or publicity do not solicit nonfederal funds?
Yes. If the invitation or publicity does not solicit nonfederal funds (or does not make a solicitation at all), federal candidates and officeholders may be identified as extending the invitation or otherwise disseminate such materials. Federal candidates and officeholders also may disseminate their own publicity regarding their participation at a nonfederal fundraising event, such as through a public schedule, so long as such publicity does not solicit nonfederal funds.
16. Where can I get more information about federal candidate and officeholder participation in nonfederal fundraisers?
The full text of the new rules, and their Explanation and Justification, is available on the FEC website at http://www.fec.gov/law/law_rulemakings.shtml#solicitationshays3. Questions may be directed to the FEC’s Information Division at 202-694-1100 or 1-800-424-9530 (prompt #6).
