The Federal Election Commission (FEC) has approved a schedule for six rulemaking proceedings to conform federal election regulations to the new Bipartisan Campaign Finance Reform Act (BCRA). In what FEC Chair David Mason said will be "a very open process," announcements of proposed rules will be released beginning in early May, followed by short public comment periods, public hearings and decisions on final rules to meet deadlines set in the law. Several of these proceedings will involve issues impacting nonprofits, including 501(c)(3) organizations, making nonprofit participation in these rulemakings extremely important. These are:

• Soft money: This will be the first proceeding, beginning with publication of a proposed rule on May 9, with comments due on May 31. Although most of the issues will involve fundraising and expenditures by political parties, the FEC will also address rules for fundraising for nonprofits by candidates or parties and rules on voter registration and get-out-the-vote campaigns by 501(c) organizations and PACs. A public hearing will be held on June 5 and a final rule completed before the June 25 deadline.
• Issues Advocacy: On June 20 proposed rules that ban broadcast communications that identify federal candidates within 60 days of an election or 30 days of a primary will be issued, with comments due July 26. A public hearing will be held on August 7-8, and the final rule is expected in late September. The effective date will be December 22.

The list of issues to be addressed does not include exemptions for nonpartisan broadcasts, such as grassroots lobbying messages or public education announcements. The new law allows the FEC to formulate these exemptions, and the bill's sponsors said they expect action on this issue within 90 days of the effective date of the law (November 6, 2002). We will urge the FEC to add this issue to their plan.

• Coordinated and Independent Expenditures: The proposed rule amending the definition of coordination will be issued June 27, with comments due August 2. These revisions will define when communications with a federal candidate, or their campaign or party may turn an otherwise independent expenditure into an in-kind contribution. Since corporations, including nonprofits, are prohibited from making campaign contributions, the definition of "coordination" could have an enormous impact on the kinds of communications groups have with anyone who is running for federal office. A public hearing is scheduled for August 14-15, with a final rule to be completed by October 2, and taking effect on December 22.

Three other rulemakings will address increases in contribution limits, the "millionaire’s amendment," which increases limits for candidates with opponents using more than a set amount in personal funds, and miscellaneous issues such as disclaimers and personal use of campaign resources. None of these proceedings will begin before August. The FEC’s Office of General Counsel (OGC) noted the large volume of work involved, and said, "The Office has concluded that 90 days and 270 days simply do not permit sufficient time to address in a comprehensive fashion every issue that may arise under the new legislation. Accordingly, OGC envisions that some of the details will need to be deferred until there is more time next year to engage in second round of rulemaking." The long term impact of BCRA will depend on the FEC's approach to these new regulations. Decisions will require a majority of the six member FEC, which is made up of three Democrats and three Republicans. BCRA sponsors asked two Republican members of the Commission, Mason and Bradley Smith, to step down from these proceedings because they assisted Rep. Tom DeLay (R-TX), an opponent of the bill, during the debate in the House. Both have refused to step down, saying they would pursue implementation of the law. Mason qualified his statement by noting he also swore to uphold the Constitution, and in the past has made statements sympathetic to First Amendment-based criticisms of BCRA. The results of court challenges will also affect which portions of the new law survive in the long run, and how they are interpreted. Additional plaintiffs have been added to the challenge filed by Sen. Mitch McConnell (R-KY), including the American Civil Liberties Union and the National Right to Life Committee. The lead attorney for McConnell's challenge said they are considering asking the court for an injunction barring implementation of portions of the law. McConnell's suit claims the soft money ban, broadcast issue advocacy restrictions, contribution disclosure provisions and sections on independent and coordinated expenditures are unconstitutional. The complete text of the FEC rulemaking plan and calendar are on the FEC website.