The FEC has said it will not release regulations or guidance that could impact the remainder of this year's campaign. While it is possible that some pending court decisions could be handed down in time to have an impact on this year's campaign activity (e.g., Van Hollen v. FEC), the current FEC campaign finance rules will apply without Commission interference. However, the FEC noted at a recent conference that the post-Citizens United final regulation could be released by the end of the year. These rules will clarify disclosure obligations, which were upheld by the Supreme Court.
On December 12, the FEC will hold a public hearing to examine several issues related to the Commission's enforcement process, including the FEC enforcement and compliance practices documents that were publicly released in May.
Text Message Contributions
In June, the FEC issued an Advisory Opinion determining that campaign contributions may be made via text message, provided the contribution amount is between $10 and $50 per number, per candidate or committee, and per billing cycle (AO 2012-17). The FEC recently approved four other Advisory Opinions regarding text message contributions, clarifying outstanding issues and expanding on the rules for using this new contribution method.
In AO 2012-26, the FEC clarified that the political committee that receives the text contribution, rather than the wireless carrier, is responsible for determining the eligibility of the contributor. The FEC also held that commercially-negotiated discounts may be passed on to committees and that committee eligibility criteria may be established to protect the commercial viability of a vendor's program. This AO was requested by the same organizations that requested AO 2012-17.
In AO 2012-28, requested by CTIA - The Wireless Association, the FEC held that wireless service providers are not responsible for: (1) determining the eligibility of a contributor; (2) ensuring compliance with the $50 monthly limit on contributions; or (3) ensuring compliance with recordkeeping obligations for contributions in excess of $200 per year. The FEC also provided leeway to wireless carriers by noting that, while deviations from normal business practices could constitute an in-kind contribution, "[e]ach wireless service provider determines the rate it will charge to process" text message contributions based on its own criteria. The AO also permits wireless service providers for commercial reasons, to accept proposals from some political committees, while denying others. On August 23, CTIA released guidelines for federal political campaign contributions via text message.
AO 2012-30, requested by Revolution Messaging, sought permission to process text message contributions in excess of $50 per billing cycle and $200 per calendar year or election cycle and for multiple federal political committees to share a common premium short code (i.e., the number to which your contribution is texted). On September 4, the FEC held that the proposal to accept contributions in excess of $50/$200 complies with applicable recordkeeping and reporting requirements because Revolution Messaging will obtain the name and address of contributors and work with the recipient political committee to obtain the contributor's occupation and employer as necessary. The use of shared premium short codes to process contributions also will be permitted.
On September 20, the FEC approved AO 2012-31, which was requested by AT&T. AT&T noted that text message campaign contributions do not share the same commercial characteristics inherent in other transactions conducted by the carrier. Thus, AT&T would be creating a new service offering and would likely charge a substantially smaller fee for text contributions. The FEC held that this smaller fee would not result in an in-kind contribution to the recipient political committee. AT&T had been the only major wireless service provider that was not processing text message contributions. This AO paves the way for the company to permit subscribers to make such contributions.
Both the Obama and Romney campaigns have begun accepting text contributions. Other federal candidates may utilize this new contribution method this year as well.
FEC Filing Dates
The election year brings with it additional reporting obligations for political action committees (PACs). The pre-election reports, covering campaign activity from October 1 through October 17 are due October 25. Post-election reports covering activity from October 18 through November 26 are due December 6. The following are the remaining filing deadlines for 2012 PAC activity:
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Political committees that make independent expenditures during 2012 are required to disclose this activity at any time up to and including the 20th day before an election (i.e., October 18) each time the expenditures aggregate $10,000 or more. This disclosure is required within 48 hours. Committees that make independent expenditures aggregating $1,000 or more during the last 20 days of, and up to 24 hours before, an election (i.e., between October 18 and November 4) must disclose this activity within 24 hours. Entities that make disbursements for electioneering communications in 2012 that aggregate $10,000 or more must disclose this activity within 24 hours of public distribution of the communications.
Future FEC Meeting Dates
The following are upcoming dates for FEC open meetings and closed executive sessions for the remainder of 2012:
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