Electoral College Expenditures

FEDERAL ELECTION COMMISSION

11 CFR Part 9002

[Notice 1995-17]

Electoral College Expenditures

AGEncY: Federal Election Commission.

ACTION: Notice of Disposition of Petition for Rulemaking.

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SUMMARY: The Commission announces its disposition of a Petition for

Rulemaking filed on November 18, 1994, by Anthony F. Essaye and William

Josephson. The petition addressed treatment of a presidential

candidate's receipts or disbursements regarding the Electoral College

process and the process of electing the President and Vice President by

the United States House of Representatives. The

Commission has decided not to initiate a rulemaking on this topic at

this time.

DATES: November 8, 1995.

FOR FURTHER INFORMATION CONtACT: Ms. Susan E. Propper, Assistant

General Counsel, 999 E Street, N.W., Washington, D.C. 20463, (202) 219-

3690 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On November 18, Anthony F. Essaye and

William Josephson filed a petition for rulemaking seeking to clarify

whether a presidential candidate's receipts or disbursements regarding

the Electoral College process and the process of electing the President

and Vice President by the United States House of Representatives are

governed by the Federal Election Campaign Act [``FECA''], 2 U.S.C. 431

et seq., or the Presidential Election Campaign Fund Act [``the Fund

Act''], 26 U.S.C. 9001 et seq. The particular question raised was

whether such disbursements count against publicly funded presidential

candidates' general election expenditure limits established at 2 U.S.C.

441a(b)(1) and (c).

The Commission published a Notice of Availability [``NOA''] on Dec.

8, 1994. 59 F.R. 63274. The Commission received comments from the

Internal Revenue Service and the Republican National Committee in

response to the NOA

raised was

whether such disbursements count against publicly funded presidential

candidates' general election expenditure limits established at 2 U.S.C.

441a(b)(1) and (c).

The Commission published a Notice of Availability [``NOA''] on Dec.

8, 1994. 59 F.R. 63274. The Commission received comments from the

Internal Revenue Service and the Republican National Committee in

response to the NOA.

The NOA stated that the Commission might incorporate the issues

addressed in the rulemaking petition into a larger, then-ongoing

rulemaking regarding the public funding of presidential primary and

general election campaigns. However, the Commission subsequently

decided to address these issues in a separate rulemaking document. 60

F.R. 31854 (June 16, 1995).

One commenter argued that the Commission does not have jurisdiction

over the Electoral College and, therefore, neither the FECA nor the

Fund Act applies to these expenditures. However, the Commission has the

authority, and responsibility, to oversee a publicly funded candidate's

qualified campaign expenses. This includes the responsibility to insure

that any expenditures made to further a candidate's campaign for

election, including those made in connection with the meeting of the

Electoral College, are properly categorized and reported.

Commission regulations at 11 CFR 100.2(a) define ``election'' as

``the process by which individuals . . . seek nomination for election,

or election, to Federal office.'' Under U.S. Const. art. II, sec. 1 and

amend. XII, the meeting of the Electoral College, as well as any

subsequent action by the House of Representatives that might become

necessary to decide a presidential election, are part of that process.

Similarly, under the Fund Act ``qualified campaign expense'' is defined

for purposes of the general election as any expenditure ``[i]ncurred by

the candidate of a political party for the office of President to

further his election to such office.'' 26 U.S.C. 9002(11)(A), 11 CFR

9002.11(a)

Representatives that might become

necessary to decide a presidential election, are part of that process.

Similarly, under the Fund Act ``qualified campaign expense'' is defined

for purposes of the general election as any expenditure ``[i]ncurred by

the candidate of a political party for the office of President to

further his election to such office.'' 26 U.S.C. 9002(11)(A), 11 CFR

9002.11(a). The Commission believes that many expenditures incurred in

connection with the meeting of the Electoral College and/or subsequent

action by the House of Representatives fall within these definitions.

The petition cites the exclusions from the definitions of

``contribution'' and ``expenditure'' at 11 CFR 100.7(b)(20) and

100.8(b)(20) of those disbursements made in connection with election

contests and recounts as one basis for treating Electoral College

expenses as outside the scope of both the FECA and the Fund Act.

However, these exemptions refer to election contests and recounts,

i.e., procedures that may be necessary to determine which candidate

received the greatest number of votes in that state, not to Electoral

College activity.

The petition also argues that, since the Electoral College always

meets more than 30 days after the November general election, the end of

the general election ``expenditure report period'' established at 26

U.S.C. 9002(12), the Fund Act does not apply to expenses incurred in

connection with the Electoral College vote. The Electoral College meets

on the first Monday after the second Wednesday in December, 3 U.S.C. 7;

while the November general election is held on the Tuesday after the

first Monday in November, 3 U.S.C. 1.

In response to this argument, the Commission notes that in most

instances a strategy for dealing with Electoral College concerns will

likely be developed well before the general election, if it appears a

close contest is in the offing, and almost certainly before the end of

the expenditure report period

r general election is held on the Tuesday after the

first Monday in November, 3 U.S.C. 1.

In response to this argument, the Commission notes that in most

instances a strategy for dealing with Electoral College concerns will

likely be developed well before the general election, if it appears a

close contest is in the offing, and almost certainly before the end of

the expenditure report period. The Commission believes that many of

these expenses may appropriately be considered qualified campaign

expenses for purposes of the Fund Act.

Also, the fact that an expense occurs more than 30 days after the

November general election does not in and of itself mean that it is not

covered by the Fund Act. For example, the Commission's regulations at

11 CFR 9004.4(a)(4)(i) permit a candidate to make disbursements for the

purpose of defraying winding down costs for a potentially lengthy

period after the general election.

On the other hand, the Commission recognizes that a potentially

close Electoral College vote and/or subsequent action by the House of

Representatives may generate unanticipated expenses at a time when

campaigns will likely have already spent or budgeted nearly all of

their available general election funds.

This situation has not arisen since the enactment of the FECA and

the Fund Act. It is difficult to anticipate all the potential issues

that should be addressed in a rulemaking of this nature. The Commission

believes the better approach is to deal with these issues on a case by

case basis when and if they arise, rather than trying to promulgate

general rules that may or may not prove appropriate in dealing with

particular circumstances. Therefore, at its open meeting of November 2,

1995, the Commission voted not to initiate a rulemaking at this time on

treatment of a presidential candidate's receipts or disbursements

regarding the Electoral College process and the process of electing the

President and Vice President by the United States House of

Representatives.

ot prove appropriate in dealing with

particular circumstances. Therefore, at its open meeting of November 2,

1995, the Commission voted not to initiate a rulemaking at this time on

treatment of a presidential candidate's receipts or disbursements

regarding the Electoral College process and the process of electing the

President and Vice President by the United States House of

Representatives.

Dated: November 3, 1995.

Lee Ann Elliott,

Vice Chairman.

[FR Doc. 95-27640 Filed 11-7-95; 8:45 am]

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