Proposed Rule2024-29989
Modification and Redaction of Contributor Information
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 19, 2024
Issuing agencies
Federal Election Commission
Abstract
The Federal Election Commission proposes to amend its regulations by establishing procedures for contributors or their agents to request the Commission--in certain limited circumstances when there is a reasonable probability the contributor may face threats, harassment or reprisal--to modify or redact, in whole or in part, certain contributor information (i.e., mailing address, occupation, and employer name) from a disclosure report or statement that has been filed with the Commission. The Commission seeks comment on the proposed rules and has not made any final decisions about the issues presented in this rulemaking.
Full Text
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<title>Federal Register, Volume 89 Issue 244 (Thursday, December 19, 2024)</title>
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[Federal Register Volume 89, Number 244 (Thursday, December 19, 2024)]
[Proposed Rules]
[Pages 103701-103709]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29989]
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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. 89, No. 244 / Thursday, December 19, 2024 /
Proposed Rules
[[Page 103701]]
FEDERAL ELECTION COMMISSION
11 CFR Parts 104, 110, and 400
[Notice 2024-29]
Modification and Redaction of Contributor Information
AGENCY: Federal Election Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Election Commission proposes to amend its
regulations by establishing procedures for contributors or their agents
to request the Commission--in certain limited circumstances when there
is a reasonable probability the contributor may face threats,
harassment or reprisal--to modify or redact, in whole or in part,
certain contributor information (i.e., mailing address, occupation, and
employer name) from a disclosure report or statement that has been
filed with the Commission. The Commission seeks comment on the proposed
rules and has not made any final decisions about the issues presented
in this rulemaking.
DATES: Comments must be received on or before February 18, 2025. The
Commission may hold a public hearing on this rulemaking. Anyone wishing
to testify at such a hearing must file timely written comments and must
include in the written comments a request to testify. If a hearing is
to be held, the Commission will publish a notification in the Federal
Register announcing the date and time of the hearing.
ADDRESSES: All comments must be in writing. Commenters are encouraged
to submit comments electronically via the Commission's website at
<a href="https://sers.fec.gov/fosers">https://sers.fec.gov/fosers</a>, reference REG 2024-06. Alternatively,
comments may be submitted in paper form addressed to the Federal
Election Commission, Attn.: Mr. Robert M. Knop, Assistant General
Counsel for Policy, 1050 First Street NE, Washington, DC 20463 (for
U.S. Postal Service) or 20002 (for all other delivery services).
Each commenter must provide, at a minimum, their first name, last
name, city, and state. 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 Office. 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.
FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General
Counsel for Policy, Ms. Lindsay Bird, Attorney, or Mr. Isaac Campbell,
Attorney, 1050 First Street NE, Washington, DC 20463 (for U.S. Postal
Service) or 20002 (for all other delivery services), (202) 694-1650 or
(800) 424-9530.
SUPPLEMENTARY INFORMATION: The Federal Election Campaign Act (``the
Act'') \1\ generally requires contributors' identities to be disclosed
in reports or statements filed with the Commission. Namely, political
committees must disclose the name, mailing address, occupation, and
employer name of each individual who contributes an aggregate in excess
of $200 per calendar year (or per election cycle in the case of an
authorized committee).\2\ Moreover, conduits and intermediaries
receiving and forwarding earmarked contributions to candidates must
disclose every contributor's name and mailing address, regardless of
the amount of the earmarked contribution.\3\ The Commission, in turn,
must post the reports and statements containing the identification
information on its website.\4\
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\1\ 52 U.S.C. 30101-45.
\2\ 52 U.S.C. 30104(b)(3)(A); 11 CFR 104.3(a)(4).
\3\ 11 CFR 110.6(c)(1)(iv)(A). If the contribution exceeds $200,
the conduit or intermediary must also report the contributor's
occupation and employer. Id.
\4\ 52 U.S.C. 30112(a).
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While recognizing that there are important governmental interests
that justify the Act's disclosure requirements, the Supreme Court has
acknowledged that disclosing a contributor's identity may expose them
to threats, harassment, or retaliation, resulting in a significant
burden on their First Amendment rights.\5\ Accordingly, the Court has
required an exemption from the Act's reporting requirements when there
is a ``reasonable probability'' that the contributor may face such
threats, harassment, or retaliation.\6\
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\5\ Buckley v. Valeo, 424 U.S. 1, 68 (1976) (per curiam).
\6\ Id.
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Thus far, the courts have granted disclosure exemptions only to
committees and organizations that sought to withhold the identity of
their contributors due to demonstrated threats, harassment, or
reprisals resulting from association with that committee or
organization. The Commission has also granted such exemptions via the
advisory opinion process when the requesting committee or organization
was able to demonstrate specific evidence of past threats and
harassment.\7\ From time to time, the Commission has also received
requests from individual contributors who wished to have their
identifying information removed from disclosure reports. And the
Commission granted such requests when they were supported by evidence
of threats, harassment, or reprisal. The Commission is now considering
whether to establish a procedure to formalize the submission and
consideration of requests by individual contributors when reasonable
probability exists that the contributors may face threats, harassment,
or reprisal.
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\7\ Advisory Opinion 1990-13 (Socialist Workers' Party);
Advisory Opinion 1996-46 (Socialist Workers' Party); Advisory
Opinion 2003-02 (Socialist Workers' Party); Advisory Opinion 2009-01
(Socialist Workers' Party); Advisory Opinion 2012-38 (Socialist
Workers' Party).
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Accordingly, the Commission proposes to revise its regulations to
establish a process for individual contributors (or their agents) to
request that the Commission modify or redact, in whole or in part,
certain contributor information (i.e., mailing address, occupation, and
employer name) from a disclosure report or statement that has been
filed with the Commission under 52 U.S.C. 30104 and 30116(a)(8). The
Commission would grant the request if it determines that the request
establishes a reasonable probability that
[[Page 103702]]
disclosure of the requestor's identifying information would subject the
requestor to threats, harassment, or reprisals. The Commission invites
public comments on the proposed rules.
I. Background
A. Requirements To Disclose Contributor's Identities
1. Political Committees
Political committees must file disclosure reports with the
Commission on a regular basis.\8\ These reports must include the
``identification'' of any person who contributes more than $200 during
a calendar year (or during an election cycle, in the case of an
authorized committee).\9\ The Act defines the term ``identification''
to mean ``in the case of any individual, the name, the mailing address,
and the occupation of such individual, as well as the name of his or
her employer.'' \10\ ``Mailing address'' means any address where a
person receives mail, including a business address.\11\
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\8\ See 52 U.S.C. 30104(a).
\9\ Id. 30104(b)(3)(A); 11 CFR 104.3(a)(4).
\10\ 52 U.S.C. 30101(13). See also 11 CFR 100.12.
\11\ See, e.g., Federal Election Commission, Record at 4 (Dec.
2009) (``A mailing address is any address at which an individual can
receive mail, including a work address or a P.O. Box.''), <a href="http://www.fec.gov/pdf/record/2009/dec09.pdf">http://www.fec.gov/pdf/record/2009/dec09.pdf</a>.
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When the treasurer of a political committee demonstrates to the
Commission that the committee used best efforts to obtain, maintain,
and submit the information required by the Act, any report or records
of such committee will be considered in compliance with the Act.\12\
Commission regulations specify the actions that treasurers must take to
demonstrate that they have exercised best efforts to obtain and report
the ``identification'' of each person whose contribution(s) they are
required to disclose.\13\
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\12\ 52 U.S.C. 30102(i); 11 CFR 104.7.
\13\ 11 CFR 104.7(b).
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First, the committee must include a clear and conspicuous request
for the contributor's identification information in any
solicitations.\14\ Second, if the contributor does not provide
sufficient identification information when making the contribution, the
committee must make at least one request for the information within 30
days of receipt of the contribution.\15\ Third, if the contributor does
not respond to the follow-up request, but the committee possesses the
information in its contributor records, fundraising records, or prior
reports filed during the same two-year election cycle, then the
committee must use that information when disclosing the
contribution.\16\ Finally, if the requested information about a
contribution is received after the contribution has been disclosed on a
report, the committee must file a memo or amend its report to disclose
the information.\17\
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\14\ Id. Sec. 104.7(b)(1).
\15\ Id. Sec. 104.7(b)(2).
\16\ Id. Sec. 104.7(b)(3).
\17\ Id. Sec. 104.7(b)(4).
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2. Persons Who Are Not Political Committees
Persons that spend money to influence Federal elections but fall
outside of the definition of a political committee are not required to
file regular disclosure reports; however, an obligation to file
disclosures with the FEC may be triggered if they engage in specified
election-related spending.\18\ Namely, a person that is not a political
committee may be required to disclose the identity of their
contributors if they make independent expenditures or electioneering
communications.
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\18\ See 52 U.S.C. 30104(c), (f).
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a. Independent Expenditures
An ``independent expenditure'' is defined as an expenditure for a
communication made without coordination with a candidate, campaign, or
political party that ``expressly advocat[es] the election or defeat of
a clearly identified candidate.'' \19\ The Act provides that any person
that is not a political committee and makes independent expenditures
aggregating more than $250 with respect to a given election per
calendar year must file a statement containing, among other
information, the name, address, occupation, and employer of each person
whose contributions aggregated more than $200 within the calendar
year.\20\ The Act also provides that the statement must include the
same details for those who contributed more than $200 for the purpose
of furthering an independent expenditure.\21\
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\19\ Id. 30101(17).
\20\ See id. 30104(c).
\21\ Id. 30104(c)(2).
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b. Electioneering Communications
An electioneering communication is any broadcast, cable, or
satellite communication that refers to a clearly identified Federal
candidate, is publicly distributed within 30 days of a primary or 60
days of a general election and is targeted to the relevant
electorate.\22\ All persons who make electioneering communications
totaling more than $10,000 in any calendar year must file a statement
with the Commission.\23\ The statement must include, among other
information, the name and address of each person who gave a total of
$1,000 or more within a specified period.\24\ If the electioneering
communications were paid exclusively from a segregated account, only
donors to that account must be disclosed.\25\
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\22\ Id. 30104(f)(3).
\23\ Id. 30104(f)(1); 11 CFR 104.20(b).
\24\ 52 U.S.C. 30104(f)(2); 11 CFR 104.20(c).
\25\ 52 U.S.C. 30104(f)(2)(E); 11 CFR 104.20(c)(8).
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3. Conduits and Intermediaries
The Act and Commission regulations have special disclosure
requirements for conduits and intermediaries. A conduit or intermediary
is any person not authorized by the campaign to raise funds who
receives and forwards an earmarked contribution to a candidate or a
candidate's authorized committee.\26\ An earmarked contribution is one
that a contributor directs (either orally or in writing) to a clearly
identified candidate or authorized committee through an intermediary or
conduit.\27\ Individuals, political committees, partnerships, and
unregistered organizations may serve as conduits for earmarked
contributions.
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\26\ 11 CFR 110.6(b)(2).
\27\ 11 CFR 110.6.
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A conduit or intermediary must report the source of an earmarked
contribution to the Commission and the intended recipient.\28\
Commission regulations require such reports to include each
contributor's name and mailing address, regardless of the amount of the
earmarked contribution.\29\ If the contribution exceeds $200, the
conduit must also report the contributor's occupation and employer.\30\
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\28\ 52 U.S.C. 30116(a)(8); 11 CFR 110.6 (c)(1)(i).
\29\ 11 CFR 110.6(c)(1)(iv)(A).
\30\ Id.
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B. The Commission's Duty To Make Reports Public
The Commission must make a disclosure report or statement available
for public inspection within 48 hours of receipt.\31\ The Commission is
required to post all publicly available election-related reports and
information on its website.\32\ Commission regulations provide that it
``will make the fullest possible disclosure of records to the public,
consistent with the rights of individuals to privacy. . . .'' \33\
Thus, when a person or entity files a report or statement with the
Commission containing a contributor's identification information, that
information becomes accessible to the general public on the
Commission's website.
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\31\ 52 U.S.C. 30111(a)(4), 30104(a)(11)(B).
\32\ Id. 30112(a).
\33\ 11 CFR 5.2(a).
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[[Page 103703]]
C. Exemptions From Disclosure Requirements
The Supreme Court has recognized that there are important
governmental interests that justify the Act's disclosure requirements,
including: (1) providing information to the electorate about the
financial support enjoyed by a candidate or political committee, (2)
deterring corruption and avoiding the appearance of corruption, and (3)
preventing circumvention of the Act's contribution limits.\34\ The
Court has generally determined that the Act's disclosure requirements
are properly tailored to the advancement of these interests.\35\
However, the Court has also recognized the need for as-applied
exemptions from compelled disclosure in some circumstances.
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\34\ Buckley, 424 U.S. at 66-67.
\35\ See id.; McConnell v. Fed. Election Comm'n, 540 U.S. 93,
103-104 (2003); Citizens United v. Fed. Election Comm'n, 558 U.S.
310, 368-70 (2010).
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The Commission has provided as-applied exemptions from the Act's
disclosure requirements in three ways: (1) conformance with court
decisions, (2) the Commission's advisory opinion process, and (3)
informal requests to the Commission.
1. Court Decisions
In Buckley v. Valeo, the Court acknowledged that disclosing a
contributor's identity may deter them from contributing and, in some
instances, may expose them to threats, harassment, or retaliation.\36\
The Court recognized that ``[t]hese are not insignificant burdens on
individual rights, and they must be weighed carefully against the
interests which Congress has sought to promote by this legislation.''
\37\ The Court reasoned that, in most applications, disclosure
requirements are ``the least restrictive means of curbing the evils of
campaign ignorance and corruption that Congress found to exist.'' \38\
However, the Court left open the possibility of a case ``where the
threat to the exercise of First Amendment rights is so serious, and the
state interest furthered by disclosure so insubstantial, that the Act's
requirements cannot be constitutionally applied.'' \39\ Specifically,
the Buckley Court instructed that, in such circumstances, ``[t]he
evidence offered need show only a reasonable probability that the
compelled disclosure of a party's contributors' names will subject them
to threats, harassment, or reprisals from either Government officials
or private parties.'' \40\ Organizations have brought suits in Federal
court seeking to be exempted from campaign finance disclosure
requirements pursuant to the Supreme Court's opinion, and minor parties
have, from time to time, demonstrated a reasonable probability that the
disclosure would subject contributors to threats, harassment, or
reprisals.\41\
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\36\ Buckley, 424 U.S. at 68.
\37\ Id.
\38\ Id.
\39\ Id. at 71.
\40\ Id. at 74.
\41\ E.g., Consent Decree, Socialist Workers 1974 Nat'l Campaign
Comm. v. Fed. Election Comm'n, Case No. 74-1338 (D.D.C. 1979); Brown
v. Socialist Workers `74 Campaign Comm. (Ohio), 459 U.S. 87 (1982);
Fed. Election Comm'n v. Hall-Tyner Election Campaign Comm., 678 F.2d
416, 420 (2d Cir.1982). Courts have also declined to order
exemptions, finding that a plaintiff's claims of threat, harassment,
or reprisal were insufficient to oust the general disclosure rule.
<a href="http://ProtectMarriage.com">ProtectMarriage.com</a> v. Bowen, 830 F. Supp. 2d 914, 928-30 (E.D. Cal.
2011).
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2. Advisory Opinions
Committees and organizations that wish to withhold their
contributors' names and other identifying information due to threats,
harassment, or reprisals resulting from association with that committee
or organization can also request an exemption through the advisory
opinion process. The Commission has issued advisory opinions granting
exemptions from the Act's disclosure requirements to one organization:
the Socialist Workers' Party (``SWP'').
In 1979, following an action for declaratory and injunctive relief,
the Commission and SWP entered into a consent agreement stipulating
that, for a limited time, SWP would not be required to comply with
certain disclosure provisions of the Act, including the requirement to
disclose its contributors' identities.\42\ When the consent agreement
expired, SWP sought an advisory opinion concerning its continued
eligibility for disclosure exemptions.
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\42\ Consent Decree, Socialist Workers 1974 Nat'l Campaign Comm.
v. Fed. Election Comm'n, Case No. 74-1338 (D.D.C. 1979).
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In 1990, the Commission issued an advisory opinion extending SWP's
partial reporting exemption for the next two election cycles.\43\ The
Commission reasoned that SWP was a minor party that continued to
demonstrate a reasonable probability that disclosure of its
contributors' names and other identifying information would subject
them to threats, harassment, or reprisals.\44\ The Commission renewed
SWP's exemption on the same grounds four more times.\45\ In 2016, SWP
again sought to renew the exemption, but the Commission was unable to
reach agreement on SWP's request.\46\
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\43\ Advisory Opinion 1990-13 (SWP).
\44\ Id. at 6.
\45\ See Advisory Opinion 1996-46 (SWP); Advisory Opinion 2003-
02 (SWP); Advisory Opinion 2009-01 (SWP); Advisory Opinion 2012-38
(SWP).
\46\ See Advisory Opinion 2016-23 (SWP).
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3. Informal Requests
The Commission has occasionally received informal requests to
substitute or redact an individual's address from publicly available
documents, which it has considered on an ad hoc basis. The concerns
raised in these requests are not necessarily connected to the
individual's support for a particular cause or organization but may
instead be tied to the specific individual's circumstances. For
example, these requests may be submitted by an individual who wishes to
replace a home address with a business address due to personal security
concerns or a victim of intimate partner violence who wishes to prevent
their home address from being publicly disclosed.
A subset of these requests have invoked the Daniel Anderl Judicial
Security and Privacy Act of 2022.\47\ That Federal law requires
Government agencies (including the Commission), persons, businesses,
and associations to remove from public view residential addresses and
certain other personally identifiable information of Federal judges and
members of their households and immediate families within 72 hours of
receiving a request for removal.\48\ Agencies have no discretion to
refuse a valid request; failure to comply may subject the agency to a
suit for declaratory or injunctive relief.\49\
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\47\ See Daniel Anderl Judicial Security and Privacy Act of
2022, Public Law 117-263, 136 Stat. 3458 (2022) (``Judicial Security
and Privacy Act'').
\48\ Id. secs. 5933-34.
\49\ Id. sec. 5934(f)(1).
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II. Proposed Rules
A. Applicability of Proposed Rules
The Act requires individuals and entities to disclose contributors'
identities in reports or statements filed with the Commission in
certain circumstances. There are no exemptions to these disclosure
requirements in the Act. However, as discussed above, the Supreme Court
and other Federal courts have recognized the need for as-applied
exemptions from compelled disclosure in some circumstances. Consistent
with that precedent, the Commission too has granted as-applied
exemptions in limited circumstances. Thus far, individual contributors'
concerns about the disclosure of their personal information have
generally been considered on an ad hoc basis. The
[[Page 103704]]
Commission now considers whether to establish a procedure to formalize
the submission and consideration of these ad hoc requests. In doing so,
the Commission is not seeking to foreclose or supplant other avenues of
relief, such as recourse to the courts or the Judicial Security and
Privacy Act.
The Commission welcomes comments on the scope and necessity of the
proposed rules. Does the Commission have the authority to draft
regulations to establish a new procedure for addressing as-applied
exemptions? Is a new approach desirable, or should all requests be
addressed through the advisory opinion process and by the courts?
Should the proposed procedure also apply to requests from committees or
organizations that seek to withhold their contributors' information? If
so, should there be different approaches for requests from individual
contributors and requests from committees and organizations?
B. Part 400
1. Proposed 11 CFR 400.1--Scope
Proposed 11 CFR 400.1 provides that part 400 establishes the
procedures for processing requests to modify or redact a contributor's
mailing address, occupation, or employer name in reports or statements
that have been filed with the Commission under 52 U.S.C. 30104 and
30116(a)(8). The Commission seeks comments on three broad questions
that are raised by the scope of the proposed rules: (1) whose
information can be modified or redacted, (2) what information can be
modified or redacted, and (3) what reports or statements can be
modified or redacted.
a. Whose information can be redacted?
The proposed rules would only apply to the modification or
redaction of a contributor's identification information. They do not
extend to other individuals whose personal information may be included
on disclosure reports or other documents made public by the Commission.
For example, the proposed regulations do not apply to the redaction of
a candidate, treasurer, or payee's address. Should the proposed rules
allow for the redaction of any person's information that is in the
documents the Commission makes public?
b. What information can be modified or redacted?
The proposed rules would only apply to a request to modify or
redact a contributor's mailing address, occupation, or employer name;
they do not establish a procedure for modifying or redacting a
contributor's name. This is consistent with the Commission's past
practice. The Commission has only granted requests to withhold
contributors' names pursuant to advisory opinions or court decisions
and has not considered such requests on an ad hoc basis.
The Commission welcomes comments on the scope and necessity of the
proposed rules. Should these rules allow for the modification or
redaction of contributors' names and, if so, should the procedure to
modify or redact names differ from the procedure to modify or redact
other identifying information. If the Commission redacts names under
part 400, should the confidentiality provision at proposed Sec. 400.9
change?
The Commission also welcomes comments on whether a contributor's
occupation and employer name should be included in the new procedure
established by the proposed rules. Are an individual's occupation and
employer too far attenuated from potential concerns to include in the
process? Or should the Commission be able to assess whether there is a
reasonable probability of threats, harassment, or reprisals resulting
from the disclosure of an individual's occupation and employer name
when weighing each request? Further, should the Commission permit
redaction of the contributor's complete mailing address or only the
street name and number of the contributor's mailing address?
c. What reports or statements can be modified or redacted?
Proposed 11 CFR 400.1 provides that the procedures in part 400
shall apply to the modification or redaction of reports and statements
filed with the Commission under 52 U.S.C. 30104 and 30116(a)(8), which
include all reports filed by political committees, reports of
independent expenditures, statements disclosing electioneering
communications, and reports of conduits and intermediaries. The
Commission intends for the proposed procedure to allow the modification
or redaction of any report or statement that contains a contributor
address, occupation, or employer name and is in the Commission's
possession. Are there reports or statements the Commission omitted that
include contributor identification information? Are there other types
of documents made public by the Commission that include identifying
information? If so, should they be included in the new procedure? Are
there categories of reports or statements that should be excluded from
the proposed procedure?
The proposed rules would also only permit requests for the
modification or redaction of reports already filed with the Commission
and amendments to those reports. Proposed 11 CFR 400.8, discussed
below, provides that once the Commission modifies or redacts a report
pursuant to a request, the filer can incorporate those same changes
into future reports for the next two calendar years without the
requestor submitting a new request.
The Commission seeks comments on whether the new procedure should
allow contributors to ask for their information to be modified or
redacted by the filer in future reports. If so, what limitations should
be placed on the request? Should the filers of the future reports be
required to participate in the request? Should future filers be
required to withhold the information, or should it be discretionary?
How would the filers of future reports be made aware that the
contributor's information can or must be withheld? Following the
Commission's initial approval of a contributor's request for
modification or redaction of information, should filers be responsible
for notifying the Commission about the need for future modifications or
redactions for the same contributor or should the Commission itself
manage tracking of future changes to reports? What are the anticipated
burdens to individual contributors and filers, from various alternative
approaches to the modification or redaction of future reports?
2. Proposed 11 CFR 400.2--Computation of Time
Proposed Sec. 400.2 provides that the time periods established by
part 400 will be computed in accordance with 11 CFR 111.2, which is the
computation of time provision in the Commission's enforcement
regulations. Section 111.2 provides that in computing any period of
time, the day of the act, event, or default from which the designated
period of time begins to run will not be included. The last day of the
period so computed will be included, unless it is a Saturday, a Sunday,
or a legal holiday. When the period of time is less than seven (7)
days, intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation. Whenever the Commission or any person has
the right or is required to do some act within a prescribed period
after the service of any paper by or upon the Commission or such
person, and the paper is served by or upon the Commission or such
person by mail, three (3) days shall be added to the prescribed period.
[[Page 103705]]
3. Proposed 11 CFR 400.3--Requests To Modify or Redact Contributor's
Mailing Address, Occupation, or Employer Name
Proposed Sec. 400.3 establishes that a contributor may request
that the Commission modify or redact their mailing address, occupation,
or employer name from a report or statement filed with the Commission.
The Commission expects such requests will include concerns specific to
the individual contributor. Accordingly, in the Commission's view, the
individual contributor is best suited to provide the information
necessary for the Commission to consider the request. Proposed Sec.
400.5, discussed below, specifies that agents, parents, and guardians
may submit requests on the contributor's behalf. The Commission intends
for proposed Sec. 400.3 to apply to any contributor whose address,
occupation, or employer name is included on any report or statement
made public by the Commission. This section does not consider the
amount of a contribution or the recipient of the contribution.
The Commission seeks comments on this approach. Are there other
individuals or groups that should be able to submit requests through
the new procedure? Should this procedure only be available to
individuals whose contributions were under a specified amount? Should
any other limitations be placed upon the types of information that may
be modified or redacted for a given contributor?
4. Proposed 11 CFR 400.4--Contents of the Request
Proposed Sec. 400.4 describes the contents of a request to modify
or redact contributor information. Paragraph (a) contains the
information that must be included in a request at a minimum. Paragraph
(a)(1) requires the request to provide the requestor's full name,
address, and telephone number. Paragraph (a)(2) requires the request to
identify the information the requestor seeks to modify or redact.
Paragraph (a)(3) requires the request to identify any published
report(s) that contain the information the requestor is asking the
Commission to modify or redact. Paragraph (a)(4) requires the request
to be sworn to and signed by the requestor and notarized. Under Sec.
400.6, discussed below, the Office of the General Counsel will review
all requests to determine if they have met the requirements in
paragraph (a). If a request does not meet the requirements in paragraph
(a), then no action will be taken on the request other than to notify
the requestor of its deficiencies.
Paragraph (b) contains the information that a request should
include where possible. The Commission will consider these factors when
evaluating the strength of a request. Paragraph (b)(1) provides that
the request should state with particularity the facts that establish a
reasonable probability that the disclosure of each piece of information
the requestor seeks to modify or redact would subject the requestor to
threats, harassment, or reprisals. Paragraph (b)(2) provides that
statements within the request should be based upon the requestor's
personal knowledge. Paragraph (b)(3) provides that the request should
be accompanied by any records supporting the facts alleged if such
records are known, and available, to the requestor. If a request meets
the requirements of paragraph (a) but does not contain all the
information in paragraph (b), it will still be forwarded to the
Commission for review and evaluation, but the Commission may have
insufficient information to grant the request.
Paragraph (c) provides that all statements made in a request are
subject to the statutes governing perjury and to 18 U.S.C. 1001. The
Commission recognizes personal safety concerns will motivate requests
to modify or redact contributor information. To move quickly to
evaluate such requests, the Commission must be able to rely on the
veracity of the statements in each request.
5. Proposed 11 CFR 400.5--Procedure for Submitting a Request
Proposed Sec. 400.5 describes the procedure for submitting a
request for modification or redaction of contributor information.
Requests must be submitted in writing, addressed to the Office of the
General Counsel. Requests can be submitted via U.S. mail or to the
email address designated on the Commission's website to receive such
requests. An authorized agent, parent, or guardian of a contributor may
submit a modification or redaction request, but the agent, parent, or
guardian must disclose the identity of their principal. All requests
must include the information in Sec. 400.4(a). Requests submitted by
an agent still must be sworn to and signed by the requestor, not the
agent.
The Commission seeks comments on whether committees or
organizations should be permitted to act as agents of contributors for
purposes of Sec. 400.5, or whether they should be required to address
such requests through the advisory opinion process or the courts.
6. Proposed 11 CFR 400.6--Initial Request Processing
Proposed Sec. 400.6 sets forth the process that the Office of the
General Counsel will follow upon receipt of a request to modify or
redact contributor information.
Paragraph (a) provides that the Office of the General Counsel will
review the request within five business days to ensure substantial
compliance with the technical requirements of Sec. 400.4(a). If the
request meets the technical requirements, the Office of the General
Counsel will forward it to the Commission for review under Sec. 400.7.
Paragraph (b) provides that if the technical requirements in Sec.
400.4(a) are not met, the Office of the General Counsel will, within
five business days, notify the requestor that no action will be taken
and identify the request's deficiencies.
7. Proposed 11 CFR 400.7--Reasonable Probability Finding; Notification
Proposed Sec. 400.7 describes the process that the Commission will
follow when considering a request for modification or redaction of
contributor information. It also sets forth the notifications that will
follow the Commission's decision.
Paragraph (a) provides that if the Commission, after reviewing the
request and any supporting documentation, determines by an affirmative
vote of four (4) or more of its members that there is a reasonable
probability that the relevant disclosure would subject the requestor to
threats, harassment, or reprisals, the Commission may approve, in whole
or in part, the modification or redaction of the requested information.
The Commission will examine whether the request includes the
information in Sec. 400.4(b) when evaluating the strength of the
request but will maintain the flexibility to consider the totality of
the circumstances as presented in the request and supporting
documentation. The Commission will not undertake an independent
investigation to verify or supplement the information in the request.
However, under Sec. 400.4(c), the statements in the request are
subject to penalties of perjury and to 18 U.S.C. 1001.
The ``reasonable probability'' standard in Sec. 400.7(a)
implements the standard that the Supreme Court has used to evaluate as-
applied challenges to the
[[Page 103706]]
Act's disclosure requirements.\50\ The Commission will apply this
standard to each piece of information the contributor seeks to modify
or redact. The proposed rules use the same standard for all requests,
regardless of whether the request seeks to substitute or completely
redact information. The Commission seeks comments on whether the
``reasonable probability'' standard is the appropriate standard for
evaluating requests to modify or redact contributor information. If
not, what would be the appropriate standard?
---------------------------------------------------------------------------
\50\ See Buckley, 424 U.S. at 74; Brown, 459 U.S. at 93-99;
McConnell, 540 U.S. at 199; Citizens United, 558 U.S. at 370.
---------------------------------------------------------------------------
Paragraph (b) provides that the Commission will, within five (5)
business days of voting, notify the requestor of the Commission's
decision.
Paragraph (c) provides that if the request is approved, the
Commission will expeditiously make any approved changes to published
reports. The Commission notes that under proposed Sec. 400.4(a)(3),
the requestor is required to identify the published reports that the
requestor seeks to modify or redact.
Paragraph (d) provides that if changes are made to a disclosure
report filed with the Commission, within five (5) business days after
the changes are made, the Commission will notify the committee or
person who filed the disclosure report that the report was modified
pursuant to part 400. To conserve Commission resources, the proposed
rules do not require the Commission to notify the filer if no changes
are made to their report.
8. Proposed 11 CFR 400.8--Modifications or Redactions in Future
Disclosure Reports
Proposed Sec. 400.8 provides that if the Commission makes
modifications or redactions to a disclosure report pursuant to a
request under part 400, any individuals or entities who are required to
identify the same individual in reports or statements filed with the
Commission may incorporate those modifications or redactions into any
report or statement filed within the next two calendar years, or within
any other period specified by the Commission in its decision approving
the contributor's request.
The Commission recognizes that it would be inefficient and
impractical to require a contributor to submit a new request each time
their information is included in a new report. Additionally, the
factual basis underlying a request for modification or redaction will
likely persist for some time. Thus, proposed Sec. 400.8 establishes
that the changes the Commission makes pursuant to a request under part
400 can be preemptively made to any report or statement filed with the
Commission within the next two calendar years without an additional
request. The Commission will have discretion to adjust this two-year
default on a case-by-case basis. The Commission seeks comments on this
approach. In addition, the Commission seeks comments on whether such
requests must be submitted after a contribution is made, or whether it
would be more appropriate to permit a requestor to file in advance of
making a contribution.
The Commission is proposing a two-calendar year period in Sec.
400.8 as the default because it believes this is a period during which
it could reasonably expect the threats, harassment, and reprisals
identified in a request for modification or redaction to persist.
Additionally, this period helps limit the frequency of requests,
conserving Commission resources and reducing the burden on requestors.
The Commission seeks comments on whether two calendar years is the
appropriate default time period for proposed Sec. 400.8.
Proposed Sec. 400.8 is discretionary. It permits filers to modify
or withhold certain information from future reports but does not
require them to do so. Under proposed Sec. 400.7(d), the Commission
will notify filers if it changes their report(s) pursuant to a
contributor's request. These filers would be on notice that they can,
and for the sake of efficiency should, make these same changes in
future reports in accordance with Sec. 400.8. The Commission seeks
comments as to how it can prevent a requestor's information from being
released in a future report without the filing of a new request. Under
the proposed language, if the contributor makes a contribution to a new
committee or organization, the contributor would be responsible for
notifying that entity that their information can be withheld or
modified pursuant to Sec. 400.8. The Commission seeks comments
concerning the method by which a contributor would demonstrate that his
or her information should be withheld or modified when making a
contribution to a new committee or organization. Is a copy of the
notification to the requestor from the Commission approving the request
sufficient? If not, what evidence of the Commission's decision ought to
be provided?
9. Proposed 11 CFR 400.9--Confidentiality
Proposed Sec. 400.9 establishes that requests, notifications, and
findings made pursuant to part 400 will generally be kept confidential.
Paragraph (a) provides that except as provided in proposed Sec.
400.7(d), which describes the notification that is sent to committees
when their reports have been modified under part 400, no request
submitted to the Commission, nor any notification sent by the
Commission, nor any findings made by the Commission, will be made
public by the Commission without the written consent of the requestor.
Paragraph (b) establishes that nothing in part 400 shall be construed
to prevent the introduction of evidence in the courts of the United
States which could properly be introduced pursuant to the Federal Rules
of Evidence or Federal Rules of Civil Procedure. The Commission seeks
comments concerning appropriate mechanisms by which the Commission may
preserve the confidentiality of potentially at-risk requestors while
maintaining appropriate transparency as to the Commission's actions
regarding redaction and modification requests. The Commission also
seeks comments on whether the proposed procedures in part 400 should
apply to requests from committees or other organizations to redact or
withhold their contributors' identification information, or whether
such requests should be addressed through the advisory opinion process
and the courts.
Additionally, the proposed rules do not provide for the redaction
or modification of a contributor's name pursuant to a request under
part 400. A person viewing a disclosure report will be able to see the
names of the individuals whose addresses, occupations, or employers'
names have been modified or redacted pursuant to part 400.
The Commission seeks comments on whether and how it should keep the
requests, notifications, and findings made pursuant to proposed part
400 confidential.
C. Best Efforts Regulations
The Commission's ``best efforts'' regulations at 11 CFR 104.7
specify the actions that treasurers must take to demonstrate they have
exercised best efforts to obtain and report the ``identification'' of
each person whose contribution(s) they are required to disclose.\51\
The ``best efforts'' regulations describe the steps a committee must
take to collect, obtain, and report a contributor's required
identification information when the contributor does not include such
information with their contribution.
[[Page 103707]]
Among other requirements, the ``best efforts'' regulations provide that
a committee must make at least one request for the missing information
within 30 days of receipt of the contribution.\52\ Additionally, if the
contributor does not respond to the follow-up request, the committee
must still disclose the information if it is in its records from the
same two-year election cycle.\53\
---------------------------------------------------------------------------
\51\ 11 CFR 104.7(b).
\52\ Id. Sec. 104.7(b)(2).
\53\ Id. Sec. 104.7(b)(3).
---------------------------------------------------------------------------
The Commission is proposing to amend Sec. 104.7 to accommodate
proposed Sec. 400.8, which describes the circumstances in which a
committee may withhold identification information from a disclosure
report under part 400. Under proposed Sec. 400.8, if the Commission
modifies or redacts a disclosure report under proposed part 400, a
committee may incorporate those modifications or redactions into any
report within the next two calendar years, or within any other period
specified by the Commission in its decision approving the contributor's
request.
If a committee is excused from providing missing identification
information under proposed Sec. 400.8 because a contributor's request
to redact such information has been granted, the committee should not
be required to solicit the same information from the contributor or
disclose the information from its records. Accordingly, the proposed
amendments to Sec. 104.7 clarify that a committee does not have to
take such steps if they are excused from providing the identification
information pursuant to proposed Sec. 400.8.
1. Amendment to 11 CFR 104.7(b)(2)
Current 11 CFR 104.7(b)(2) provides that for each contribution
received aggregating in excess of $200 per calendar year (or per
election cycle, in the case of an authorized committee) that lacks
required contributor information, such as the contributor's full name,
mailing address, occupation or name of employer, the treasurer must
make at least one effort after the receipt of the contribution to
obtain the missing information. The Commission proposes to amend Sec.
104.7(b)(2) to clarify that it does not apply if the committee is
excused from providing the information pursuant to 11 CFR 400.8.
2. Amendment to 11 CFR 104.7(b)(3)
Current 11 CFR 104.7(b)(3) provides that if a contributor does not
include the required identification information with their
contribution, the treasurer must still report the information if it is
in the political committee's possession, or in its connected
organization's possession, including information in contributor
records, fundraising records and previously filed reports, in the same
two-year election cycle. The Commission proposes to amend Sec.
104.7(b)(2) to clarify that it does not apply if the committee is
excused from providing the information pursuant to 11 CFR 400.8.
D. Reporting Provisions
1. Amendment to 11 CFR 104.3(a)(4)
Current 11 CFR 104.3(a)(4) provides that all political committees
must report identifying information (including mailing address,
occupation, and the name of their employer) of all contributors whose
contributions aggregate more than $200 per calendar year. The
Commission proposes to amend Sec. 104.3(a)(4) to clarify that it does
not apply if the committee is excused from providing the information
pursuant to 11 CFR 400.8.
2. Amendment to 11 CFR 104.20(c)(8) Through (10)
Current 11 CFR 104.20(c)(8) through (10) provide that all
statements of electioneering communications must disclose the name and
address of each person of $1,000 or more, aggregating since the first
day of the preceding calendar year. The Commission proposes to amend 11
CFR 104.20(c)(8) through (10) to clarify that persons filing statements
of electioneering communication do not have to disclose an individual's
address if the person is excused from providing the information
pursuant to 11 CFR 400.8.
3. Amendment to 11 CFR 110.6(c)(1)(iv)(A)
Current 11 CFR 110.6(c)(1)(iv)(A) provides that all intermediaries
or conduits must report the name and mailing address of each
contributor, and for each earmarked contribution in excess of $200, the
contributor's occupation and employer name. The Commission proposes to
amend 11 CFR 110.6(c)(1)(iv)(A) to clarify that intermediaries and
conduits do not have to disclose a contributor's mailing address if
they are excused from providing the information pursuant to 11 CFR
400.8.
* * * * *
The Commission seeks comments on whether any other regulations
would be affected by the proposed rules.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory
Flexibility Act)
The Commission certifies that the proposed rules, if adopted, would
not have a significant impact on a substantial number of small
entities. The proposed rules would not impose any new recordkeeping,
reporting, or financial obligations on reporting entities; in fact, the
proposed rules would relieve the reporting obligations of certain
reporting entities. Additionally, the majority of the proposed
regulations target Commission actions and the streamlined, articulated
proposed procedures would apply only to individuals and not to any
small entities. Therefore, the attached proposed rules, if promulgated,
will not have a significant impact on a substantial number of small
entities.
List of Subjects
11 CFR Part 104
Campaign funds, Political committees and parties, Reporting and
recordkeeping requirements.
11 CFR Part 110
Campaign funds, Political committees and parties.
11 CFR Part 400
Personally identifiable information, Privacy, Reporting and
recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Election
Commission proposes to amend 11 CFR chapter I as set forth below:
PART 104--REPORTS BY POLITICAL COMMITTEES AND OTHER PERSONS (52
U.S.C. 30104)
0
1. The authority citation for part 104 continues to read as follows:
Authority: 52 U.S.C. 30101(1), 30101(8), 30101(9), 30102(g) and
(i), 30104, 30111(a)(8) and (b), 30114, 30116, 36 U.S.C. 510.
0
2. In Sec. 104.3, revise paragraph (a)(4) introductory text to read as
follows:
Sec. 104.3 Contents of reports (52 U.S.C. 30104(b), 30114).
(a) * * *
(4) Itemization of receipts for all political committees including
authorized and unauthorized committees. The identification (as defined
at 11 CFR 100.12) of each contributor, unless the committee is excused
from providing the information pursuant to 11 CFR 400.8, and the
aggregate year-to-date (or aggregate election-cycle-to-date, in the
case of an authorized committee) total for such
[[Page 103708]]
contributor in each of the following categories shall be reported.
* * * * *
0
3. In Sec. 104.7, revise the first sentence of paragraph (b)(2) and
paragraph (b)(3) to read as follows:
Sec. 104.7 Best efforts (52 U.S.C. 30102(i)).
* * * * *
(b) * * *
(2) For each contribution received aggregating in excess of $200
per calendar year (or per election cycle, in the case of an authorized
committee) which lacks required contributor information, such as the
contributor's full name, mailing address, occupation or name of
employer, the treasurer makes at least one effort after the receipt of
the contribution to obtain the missing information, unless the
committee is excused from providing the information pursuant to 11 CFR
400.8. * * *
(3) The treasurer reports all contributor information not provided
by the contributor, but in the political committee's possession, or in
its connected organization's possession, regarding contributor
identifications, including information in contributor records,
fundraising records and previously filed reports, in the same two-year
election cycle in accordance with 11 CFR 104.3, unless the committee is
excused from providing the information pursuant to 11 CFR 400.8; and
* * * * *
0
4. In Sec. 104.20, revise paragraphs (c)(8) through (10) to read as
follows:
Sec. 104.20 Reporting electioneering communications (52 U.S.C. 30104
(f)).
* * * * *
(c) * * *
(8) If the disbursements were paid exclusively from a segregated
bank account consisting of funds provided solely by persons other than
national banks, corporations organized by authority of any law of
Congress, or foreign nationals as defined in 11 CFR 110.20(a)(3), the
name and address of each donor who donated an amount aggregating $1,000
or more to the segregated bank account, aggregating since the first day
of the preceding calendar year, unless the person filing the statement
is excused from providing the donor's information pursuant to 11 CFR
400.8.
(9) If the disbursements were not paid exclusively from a
segregated bank account described in paragraph (c)(7) of this section
and were not made by a corporation or labor organization, the name and
address of each donor who donated an amount aggregating $1,000 or more
to the person making the disbursement, aggregating since the first day
of the preceding calendar year, unless the person filing the statement
is excused from providing the donor's information pursuant to 11 CFR
400.8.
(10) If the disbursements were made by a corporation or labor
organization and were not paid exclusively from a segregated bank
account described in paragraph (c)(7) of this section, the name and
address of each person who made a donation aggregating $1,000 or more
to the corporation or labor organization, aggregating since the first
day of the preceding calendar year, which was made for the purpose of
furthering electioneering communications, unless the corporation or
labor organization is excused from providing the person's information
pursuant to 11 CFR 400.8.
* * * * *
PART 110-CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS
0
5. The authority citation for part 110 continues to read as follows:
Authority: 52 U.S.C. 30101(8), 30101(9), 30102(c)(2) and (g),
30104(i)(3), 30111(a)(8), 30116, 30118, 30120, 30121, 30122, 30123,
30124, and 36 U.S.C. 510.
0
6. In Sec. 110.6, revise paragraph (c)(1)(iv)(A) to read as follows:
Sec. 110.6 Earmarked contributions 52 U.S.C. 30116(a)(8)).
* * * * *
(c) * * *
(1) * * *
(iv) * * *
(A) The name and mailing address of each contributor and, for each
earmarked contribution in excess of $200, the contributor's occupation
and the name of his or her employer, unless the conduit or intermediary
is excused from providing the information pursuant to 11 CFR 400.8;
* * * * *
0
7. Add subchapter D consisting of part 400 to read as follows:
SUBCHAPTER D--MODIFICATION AND REDACTION OF CONTRIBUTOR INFORMATION
PART 400--REQUESTS TO MODIFY OR REDACT INDIVIDUAL'S MAILING
ADDRESS, OCCUPATION, OR EMPLOYER NAME
Sec.
400.1 Scope.
400.2 Computation of time.
400.3 Requests to modify or redact contributor's mailing address,
occupation, or employer name.
400.4 Contents of the request.
400.5 Procedure for submitting a request.
400.6 Initial request processing.
400.7 Reasonable probability finding; notification.
400.8 Modifications or redactions in future disclosure reports.
400.9 Confidentiality.
Authority: 52 U.S.C. 30102(i), 30101(8), 30101(9), 30102(g) and
(i), 30104, 30111(a)(8), 30107(a)(8).
Sec. 400.1 Scope.
The regulations in this part provide procedures for processing
requests to modify or redact a contributor's mailing address,
occupation, or employer name in reports or statements that have been
filed with the Federal Election Commission (Commission) under 52 U.S.C.
30104 and 30116(a)(8).
Sec. 400.2 Computation of time.
The time periods established by this part will be computed in
accordance with 11 CFR 111.2.
Sec. 400.3 Requests to modify or redact contributor's mailing
address, occupation, or employer name.
A contributor may request that the Commission modify or redact
their mailing address, occupation, or employer name from a report or
statement that has been filed with the Commission.
Sec. 400.4 Contents of the request.
(a) A request to modify or redact a contributor's mailing address,
occupation, or employer name must comply with the following:
(1) It must provide the full name, address, and telephone number of
the requestor;
(2) It must identify the information that the requestor seeks to
modify or redact;
(3) It must identify any published report(s) that contain the
information the requestor is asking the Commission to modify or redact;
and
(4) The contents of the request must be sworn to and signed by the
requestor and notarized.
(b) A request to modify or redact a contributor's mailing address,
occupation, or employer name should conform to the following:
(1) It should state with particularity the facts that establish
that there is a reasonable probability that the disclosure of each
piece of information the requestor seeks to modify or redact would
subject the contributor to threats, harassments, or reprisals;
(2) Statements within the request should be based upon the
requestor's personal knowledge; and
(3) It should be accompanied by any records supporting the facts
alleged if such records are known, and available to, the requestor.
[[Page 103709]]
(c) All statements made in a request are subject to the statutes
governing perjury and to 18 U.S.C. 1001.
Sec. 400.5 Procedure for submitting a request.
A request must be submitted in writing, either by U.S. mail or the
email address designated on the Commission's website, addressed to the
Office of the General Counsel. An authorized agent or parent or
guardian of a contributor may submit a modification or redaction
request, but the agent or parent or guardian must disclose the identity
of their principal.
Sec. 400.6 Initial request processing.
(a) Upon receipt of a request, the Office of the General Counsel
will, within five (5) business days, review the request for substantial
compliance with the technical requirements of Sec. 400.4(a).
(b) If the request does not comply with the technical requirements
of Sec. 400.4(a), the Office of the General Counsel will, within five
(5) business days, notify the requestor that no action will be taken on
the basis of the request and specify the deficiencies of the request.
Sec. 400.7 Reasonable probability finding; notification.
(a) If the Commission, after reviewing the request and any
supporting documentation, determines by an affirmative vote of four (4)
or more of its members that there is a reasonable probability that the
relevant disclosure would subject the contributor to threats,
harassments, or reprisals, the Commission may approve, in whole or in
part, the modification or redaction of the requested information.
(b) The Commission will, within five (5) business days of voting,
notify the requestor of the Commission's decision.
(c) If the request is approved, the Commission will expeditiously
effect any approved changes to the reports published by the Commission.
(d) If changes are made to a disclosure report filed with the
Commission, within five (5) business days after the changes are made,
the Commission will notify the committee or person who filed the
disclosure report that the report was modified pursuant to this part.
Sec. 400.8 Modifications or redactions in future disclosure reports.
If the Commission makes modifications or redactions to a disclosure
report pursuant to a request from a contributor under this part, any
individuals or entities who are required to identify the same
contributor in reports or statements filed with the Commission may
incorporate those modifications or redactions into any report or
statement filed within the next two calendar years, or within any other
period specified by the Commission in its decision approving the
contributor's request.
Sec. 400.9 Confidentiality.
(a) Except as provided in Sec. 400.7(d), no request submitted to
the Commission, nor any notification sent by the Commission, nor any
findings made by the Commission, will be made public by the Commission
without the written consent of the requestor.
(b) Nothing in this part shall be construed to prevent the
introduction of evidence in the courts of the United States which could
properly be introduced pursuant to the Federal Rules of Evidence or
Federal Rules of Civil Procedure.
Dated: December 12, 2024.
On behalf of the Commission.
Sean J. Cooksey,
Chairman, Federal Election Commission.
[FR Doc. 2024-29989 Filed 12-18-24; 8:45 am]
BILLING CODE P
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