December 9, 2013

Last Week at the FEC: Advisory Opinions and Special Election Dates

Holland & Knight Eyes on Washington Blog
Andy Emerson

Last week the Federal Election Commission issued a closeout letter in response to an advisory opinion request from Yamaha Motor Corporation, extended its consideration of a request from Revolution Messaging until January, and adopted an interpretive rule related to the date of special elections in New York. 

Revolution Messaging, LLC

The Commission requested and received an extension until January 31, 2014 for it to issue an Advisory opinion in response to Revolution Messaging, LLC's request regarding whether mobile phone banner advertisements for political committees are exempt from disclaimer requirements based on the small item or impracticability exceptions.

The Commission previously issued two draft advisory opinions on this topic and had requested comments by December 4. Draft A of the AO would find that proposed mobile phone advertisements do not qualify for either exception, but could meet the disclaimer requirements by alternative means, such as on a "landing page" as suggested (but not adopted by the requisite four votes) in AO 2010-19 (Google). Alternatively, Draft B of the AO would find that the "small item" exception applied to because such mobile phone banners are limited in size and length by external technological restrictions.

Yamaha Motor Corporation, U.S.A.

The Commission issued a closeout letter in response to Advisory Opinion Request 2013-19 after deadlocked when voting on a revised version of its Draft B Advisory Opinion issued on November, 26. Draft B would have found that Yamaha's practical exercise of authority over dealerships' ownership, management, and business operations is sufficient to form an affiliation for the purposes of the Federal Election Campaign Act ("FECA") and Commission regulations, allowing the company to solicit executives for contributions to its Separate Segregated Fund ("SSF"), i.e., its Political Action Committee. Commissioners Goodman, Hunter, and Peterson voted to approve, while Commissioners Ravel, Walther, and Weintraub dissented.

Notably, while the focus of this AO request was squarely on the question of affiliation, Commissioner Ravel, Walther, and Weintraub's comments all focused on whether wholly-owned subsidiaries of foreign companies should be allowed to establish SSFs. All three suggested that the FEC should undertake rulemaking regarding that issue in response to the Supreme Court's decision in Citizens United. In response, Commissioners Peterson and Goodman argued that Citizens United specifically did not impact the current prohibition against contributions by foreign persons or entities, and was not implicated in Yamaha's request.

The Date of Political Party Nominations in New York Special Elections

The commission approved a draft interpretive rule that clarifies, for the purposes of FECA, that the date of a special primary election under New York law is the date on which the political party committee votes to nominate the party's candidate for the special general election, not the date on which the certification of that vote is filed.

This Week at the FEC

The Commission is not scheduled to meet again until December 17, when it will hold both an open meeting and an executive session.

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