Final rules for definition of Federal Election Activity (2010)

On August 26, 2010, the Commission approved final rules revising the regulations at 11 CFR 100.24 regarding Federal Election Activity (FEA). The final rules modify the definitions of “voter registration activity” and “get-out-the-vote-activity” (GOTV activity) and make other changes in response to the decision of the U.S. Court of Appeals for the District of Columbia in Shays v.FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III Appeal”).

Scope

Under the new definitions, voter registration and GOTV activities that urge, encourage or assist potential voters in registering to vote or voting must be paid for with federal funds or with a combination of federal and Levin funds regardless of whether the message is delivered individually or to a group of people via mass communication. However, the Commission created exceptions to the new definitions for:

• Brief, incidental exhortations to register to vote or to vote;
• GOTV and voter identification activities conducted solely in connection with a nonfederal election; and
• Certain de minimis activities.

Definition of “voter registration activity”

In compliance with the court of appeals’ decision in Shays III Appeal, the Commission revised the definition of “voter registration activity” to cover activities that assist, encourage or urge potential voters to register to vote. The revised definition lists the following activities as voter registration activity:

• Encouraging or urging potential voters to register to vote, whether by mail, email, in person, by telephone or by any other means;
• Preparing and distributing information about registration and voting;
• Distributing voter registration forms or instructions to potential voters;
• Answering questions about or assisting potential voters in completing or filing voter registration forms;
• Submitting or delivering a completed voter registration form on behalf of a potential voter;
• Offering or arranging to transport, or actually transporting, potential voters to a board of elections or county clerk’s office for them to fill out voter registration forms; or
• Any other activity that assists potential voters to register to vote.

The Commission provided two examples of voter registration activity falling under the new definition:

• Sending a mass mailing of voter registration forms; and
• Submitting completed voter registration forms to the appropriate state or local office handling voter registration.

The Commission emphasized that the new definition is a comprehensive list of activities designed to cover all means of contacting potential voters to assist, encourage or urge them to register to vote, regardless of the means used to deliver the message. However, consistent with the Shays III Appeal decision, the Commission carved out an exception to the new definition for brief, incidental exhortations to register to vote (discussed below).

Definition of “GOTV activity”

The Commission also revised the definition of “GOTV activity” to comply with the court of appeals’ decision in Shays III Appeal. The new definition covers activities that assist, encourage or urge potential voters to vote. The revised definition identifies the following activities as GOTV activity:

• Encouraging or urging potential voters to vote;
• Informing potential voters about the hours and location of polling places, or about early voting or voting by absentee ballot;
• Offering or arranging to transport voters to the polls, as well as actually transporting voters to the polls; and
• All activities that assist potential voters in voting.

The Commission provided two examples of GOTV activities falling under the new definition:

• Driving a sound truck through a neighborhood that plays a message urging listeners to “Vote next Tuesday at the Main Street community center”; and
• Making telephone calls (including robocalls) reminding the recipient of the times during which the polls are open on election day.

The Commission emphasized that the new definition is a comprehensive list of activities designed to cover all means of contacting potential voters to assist, encourage or urge them to vote. However, consistent with the Shays III Appeal decision, the Commission carved out an exception to the new definition for brief, incidental exhortations to vote (discussed below).

Brief, incidental exhortation

The Commission created a new exception to the definitions of voter registration activity and GOTV activity that allows for a brief exhortation to register to vote or to vote, so long as the exhortation is incidental to a communication, activity or event. The exception applies to brief, incidental exhortations regardless of the forum or medium in which they are made. Also, the exception does not inoculate speeches or events that otherwise would meet the definition of voter registration activity or GOTV activity, but is intended to ensure that communications that would not otherwise be voter registration activity or GOTV activity do not become so merely because they include a brief, incidental exhortation to register to vote or to vote.

To qualify for the exception, the exhortation must be both brief and incidental. For example, exhortations to register to vote or to vote that consume several minutes of a speech, or that occupy a large amount of space on a mailer, are not brief and will not qualify for the exception. Also, a message in a mailer that stated only “Register to Vote by October 1st!” or “Vote on Election Day!” with no other text would not be incidental and would not qualify for the exception from the definition of GOTV activity. Additional examples of exhortations that would qualify for the exception are provided in the final rules.

Voter identification and GOTV activity solely in connection with a nonfederal election

In an attempt to better distinguish between voter identification and GOTV activities that are FEA, and those activities that do not affect elections in which a federal candidate appears on the ballot, the Commission created new exceptions to 11 CFR 100.24(c) for activities exclusively in connection with nonfederal elections. Under the new provisions, FEA does not include any amount expended or disbursed by a state, district or local party committee for:

• Voter identification that is conducted solely in connection with a nonfederal election held on a date no federal election is held, and which is not used in a subsequent election in which a federal candidate is on the ballot; 100.24(c)(5); and
• Certain GOTV activity that is conducted solely in connection with a nonfederal election held on a date on which no federal election is held. 100.24(c)(6).

Activities involving de minimis costs

Finally, mindful of the administrative complexities that state, district and local party committees and associations of state and local candidates would face in tracking nominal, incidental costs, the Commission carved out an exception for de minimis costs associated with certain enumerated activities. The Commission excluded the following activities from the FEA funding restrictions:

• On the website of a party committee or association of state or local candidates, posting a hyperlink to a state or local election board’s web page containing information on voting or registering to vote;
• On the website of a party committee or association of state or local candidates, enabling visitors to download a voter registration form or absentee ballot application;
• On the website of a party committee or association of state or local candidates, providing information about voting dates and/ or polling locations and hours of operation; and
• Placing voter registration forms or absentee ballot applications obtained from the board of elections at the office of a party committee or association of state or local candidates.

The Commission emphasized that the exception is only for the specific activities listed and that costs associated with activities not on the list, no matter how small the amount or how closely related the activities, do not qualify for the exception. In addition, amounts incurred for the enumerated activities that are not de minimis do not qualify for the exception.

Additional information

The final rules were published in the Federal Register on September 10, 2010, and take effect on December 1, 2010. The Federal Register notice is available on the Commission’s website.