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Public Affairs Council

FEC Deadlocks on Rulemaking Following Citizens United


The Federal Election Commission has deadlocked on whether to propose new rules to comply with the U.S. Supreme Court's landmark decision early last year in Citizens United v. FEC.

In a 3-3 vote during its first meeting of the year, the commission voted on two drafts of a Notice of Proposed Rulemaking that respond to the high court's ruling, which loosened longstanding spending restrictions on corporations, associations and unions during federal elections.

But the commission was unable to approve either of the two drafts put before it, which addressed independent expenditures and electioneering communications by corporations and labor organizations.

If and when it's approved, the Notice of Proposed Rulemaking would seek public comment on changes to the FEC's rules regarding corporate and labor organization funding and reporting of expenditures, independent expenditures and electioneering communications. The two drafts addressed the following issues:

  • Draft A addressed: 1) eliminating regulations that prohibit the use of corporate and labor organization general treasury funds to finance expenditures, independent expenditures and electioneering communications; 2) eliminating a regulation that permits corporations and labor organizations to make only electioneering communications that are not the functional equivalent of express advocacy; 3) eliminating prohibitive regulations regarding express advocacy in communications to the general public and revising the standards for voter registration and get-out-the-vote (GOTV) drives; 4) revising the Commission's corporate facilitation rules and related conduit rule; 5) revising certain reporting requirements pertaining to independent expenditures and electioneering communications in order to provide comprehensive disclosure of such spending; and 6) revising the regulations governing financial participation by foreign nationals in the U.S. electoral process.
  • Draft B addressed: 1) eliminating regulations that prohibit the use of corporate and labor organization general treasury funds to finance expenditures, independent expenditures and electioneering communications; 2) eliminating a regulation that permits corporations and labor organizations to make only electioneering communications that are not the functional equivalent of express advocacy; 3) eliminating prohibitive regulations regarding express advocacy in communications to the general public and revising the standards for voter registration and get-out-the-vote (GOTV) drives; and 4) revising the Commission's corporate facilitation rules.

In general, commissioners appointed by Democrats supported more disclosure of campaign contributions and spending following the court ruling. They also backed restrictions on campaign spending by companies under foreign ownership or control.

Commissioners appointed by Republicans called only for eliminating remaining restrictions on campaign spending by corporations and unions.

"I remain hopeful that the commission will be able to reach consensus on a Notice of Proposed Rulemaking addressing corporate and labor union expenditures so that stakeholders and the general public have an opportunity to have their voices heard by the commission," said Commission Chairwoman Cynthia L. Bauerly. "There continues to be disagreement between the members of the commission over the proper scope of the proposed rulemaking. Nonetheless, I felt the discussion was positive and necessary towards finding common ground on this topic. "

To read the FEC news release, click here