Now that the general election Federal Election Activity (FEA) time periods have begun, party committees may want to review the definitions of “voter registration activity” and “get-out-the-vote-activity” (GOTV), which were revised in 2010. This article answers common questions about those revised regulations. For more information about FEA, please consult the Campaign Guide for Political Party Committees.
How did the voter registration activity and GOTV definitions change under the revised rules?
In response to the decision in Shays v. FEC (Shays III Appeal), the Commission expanded the definitions of voter registration and GOTV activities to cover activities that urge, encourage or assist potential voters in registering to vote or in voting regardless of whether the message is delivered individually or to a group of people via mass communication. The Commission also created exceptions 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 for certain de minimis activities.
Under the revised rules, voter registration activity means:
- Encouraging or urging potential voters to register to vote, whether by mail, (including direct mail), e-mail, in person, by telephone (including pre-recorded telephone calls, phone banks and messaging such as SMS and MMS), 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 how to complete or file a voter registration form, or assisting potential voters in completing or filing such 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. 100.24(a)(2).
GOTV activity means:
- Encouraging or urging potential voters to vote, whether by mail (including direct mail), e-mail, in person, by telephone (including pre-recorded telephone calls, phone banks and messaging such as SMS and MMS), or by any other means;
- Informing potential voters, whether by mail (including direct mail), e-mail, in person, by telephone (including pre-recorded telephone calls, phone banks and messaging such as SMS and MMS), or by any other means, about the hours or location of polling places, or about early voting or voting by absentee ballot;
- Offering or arranging to transport, or actually transporting, voters to the polls;
- Any other activity that assists potential voters in voting. 100.24(a)(3).
The Commission carved out exceptions to both of these definitions for brief exhortations to register to vote or to vote, so long as the exhortations are incidental to a communication, activity or event. 100.24(a)(2)(ii). Exhortations must be both brief and incidental to qualify for the exception.
Can you give examples of activities that qualify for the “brief and incidental exhortation” exemption?
Under the revised rules, a phone call for a state party committee fundraiser that provides recipients with information about the event, solicits donations and concludes by reminding the listener, “Don’t forget to register to vote,” would qualify for the exemption because the exhortation to register to vote is both brief and incidental. Also, a mailer praising the public service record of a mayoral candidate and/or discussing the candidate’s platform that concludes by reminding the recipients to “Vote [for mayoral candidate] in November!” would qualify for the exemption because the exhortation to vote is both brief and incidental.
Our local party committee would like to send out two mailers during the FEA time periods: 1) a mailer with a call to register to vote that occupies a large amount of space on the mailer and 2) a GOTV mailer that simply states “Vote on Election Day!” Would either mailer qualify for the exemption?
No. An exhortation to register to vote that occupies a large amount of space on a mailer would not qualify for the exception because the exhortation would not be brief. Also, a message that simply states “Vote on Election Day!” without any other text is not incidental and would not qualify for the exemption. Remember, to qualify for the exemption, the exhortation must be brief and incidental.
Our state party committee posts voter registration forms on our website for downloading. Is this considered FEA?
No. In addition to the FEA exceptions listed in 100.24(c), the following activities by a state or local party committee are not considered FEA under the revised regulations:
- De minimis costs associated with posting a hyperlink on the party’s webpage to a state or local election board’s webpage containing information on voting or registering to vote; enabling visitors to download a voter registration form or absentee ballot application; posting information on the party’s website about voting dates and/or polling locations and hours of operation; or placing voter registration forms or absentee ballot applications obtained from the board of elections at the office of a party committee.
- GOTV activity conducted solely in connection with a nonfederal election held on a date on which no federal election is held, as long as any communication made as part of such activity refers exclusively to nonfederal candidates participating in the nonfederal election, if the nonfederal candidates are not also federal candidates; ballot referenda or initiatives scheduled for the date of the nonfederal election; or the date, polling hours, and locations of the nonfederal election. 100.24(c).
Where can I get more information about FEA?
For more information about the revisions discussed in this article, please see the Final Rules on the Definition of Federal Election Activity, 75 FR 55257 (Sept 10, 2010). The Campaign Guide for Political Party Committees [PDF] also provides detailed information about FEA as well as instructions for reporting FEA. All of the FEA time periods for each state are available on the FEC’s website at https://transition.fec.gov/info/ElectionDate/. For further information, please contact the FEC’s Information Division at 1-800-424-9530 (press 6) or email firstname.lastname@example.org.