Rules and Regulations. Interim final rule

Agency: Federal Election Commission
Action: Interim final rule
Citation: FR Doc. 2023-11055 · Notice 2023-09 · 11 CFR 110

Summary

The Commission is removing the regulatory prohibition on knowingly helping or assisting any person in making a contribution in the name of another. The Commission is taking this action to implement the order of the United States District Court in FEC v. Swallow, which enjoined the Commission from enforcing the provision and ordered the Commission to strike it from the Code of Federal Regulations. The Commission is accepting comments on this revision to its regulations and any comments received may be addressed in a subsequent rulemaking document.

Dates

This interim final rule is effective August 5, 2023. Comments must be received on or before June 26, 2023.

Supplementary Information

The Federal Election Campaign Act, 52 U.S.C. 30101-30145 (“FECA”), states that “[n]o person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person.” 52 U.S.C. 30122. The Commission has implemented this provision at 11 CFR 110.4, which states that no person may “[k]nowingly help or assist any person in making a contribution in the name of another.” 11 CFR 110.4(b)(1)(iii). On April 6, 2018, the United States District Court for the District of Utah issued a memorandum decision and order holding that the Commission's regulation at 11 CFR 110.4(b)(1)(iii) was invalid, enjoining the Commission from enforcing that provision, and ordering the Commission to strike the provision from the Code of Federal Regulations. 1 FEC v. Swallow ( Swallow I ), 304 F. Supp. 3d 1113 (D. Utah 2018); FEC v. Swallow ( Swallow II ), No. 2:15-CV-00439 (D. Utah Sept. 20, 2018) (Westlaw) (order granting partial final judgment). To conform its regulation to the court orders in Swallow I and II, the Commission is removing 11 CFR 110.4(b)(1)(iii) and renumbering paragraph (b)(1)(iv) as paragraph (b)(1)(iii). The Commission is accepting comments on this revision and any comments received may be addressed in a subsequent rulemaking document. 1 After adverse decisions, agencies are permitted in certain circumstances to maintain the invalidated interpretation of the statute or regulation in later matters that will come before courts in other jurisdictions. See, e.g., Indep. Petroleum Ass'n v. Babbitt, 92 F.3d 1248, 1261 (D.C. Cir. 1996). Agencies may only decline to accord court rulings nation-wide effect, however, as part of a search for eventual rulings from different Courts of Appeals and the Supreme Court. See, e.g., Va. Soc'y for Human Life, Inc. v. FEC, 263 F.3d 379, 393-94 (4th Cir. 2001) (overturning nationwide injunction against Commission to permit development of the law). In declining to appeal to the Court of Appeals, the Commission chose not to take this path in this case. See Indep. Petroleum Ass'n, 92 F.3d at 1261. The Commission is taking this action without advance notice and comment because it falls under the “good cause” exception of the Administrative Procedure Act (“APA”), 5 U.S.C. 553(b)(B). The revisions are necessary to conform the Commission's regulations to the court's orders. Because this action does not involve any Commission discretion or policy judgments, notice and comment are unnecessary. 5 U.S.C. 553(b)(B), (d)(3). Moreover, because this interim final rule is exempt from the APA's notice and comment procedure under 5 U.S.C. 553(b), the Commission is not required to conduct a regulatory flexibility analysis under 5 U.S.C. 603 or 604. See 5 U.S.C. 601(2), 604(a). List of Subjects in 11 CFR Part 110 Campaign funds, Political committees and parties. For the reasons set out in the preamble, the Federal Election Commission amends 11 CFR chapter I as follows: PART 110—CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS 1. The authority citation for part 110 continues to read as follows: Authority: 52 U.S.C. 30101(8), 30101(9), 30102(c)(2) and (g), 30104(i)(3), 30111(a)(8), 30116, 30118, 30120, 30121, 30122, 30123, 30124, and 36 U.S.C. 510. § 110.4 [Amended] 2. Amend § 110.4 by: a. Adding the word “or” at the end of paragraph (b)(1)(ii); b. Removing paragraph (b)(1)(iii); and c. Redesignating paragraph (b)(1)(iv) as paragraph (b)(1)(iii). Dated: May 18, 2023. On behalf of the Commission. Dara S. Lindenbaum, Chair, Federal Election Commission. [FR Doc. 2023-11055 Filed 5-24-23; 8:45 am]