Federal Election Commission may hamper GOTV efforts

The Federal Election Commission (FEC) has proposed new rules that could make it harder for state and local political parties to pay for voter registration and get-out-the-vote efforts.

In a notice published Thursday, the commission suggested it may broaden the definition of voter registration activity to include anything aimed at "encouraging or assisting potential voters in registering to vote."

The changes could have a major impact on the way state and local parties operate, election law experts say — an impact that could severely limit small political organizations from getting their voters to the polls.

"If the proposed changes are adopted, the biggest losers will be the grass roots at the county parties. When grassroots volunteers participate in the process, they do so at the county parties, not the national or state parties," said William McGinley, a Republican election lawyer at Patton Boggs.

Similarly, GOTV activities may be defined as anything "encouraging or assisting potential voters to vote." Both definitions would be more broad and encompass more efforts than previous definitions, which created distinct loopholes a federal appeals court found unconstitutional.

When a federal candidate is on the ballot, voter registration and GOTV activities must be paid for with federal dollars. But the current definitions cover individualized activities — for example, knocking on a door — while excluding mass communications like automated calls and mass mailings.

The appeals court found those loopholes would have allowed soft money to fund voter outreach efforts. Soft money is banned at the federal level, while many states allow the less-regulated funds to be used in their contests.

"It wouldn't have an impact in national parties because they deal with hard money anyway," said Marc Elias, a Democratic attorney at Perkins Coie. "The real impact here will be on state and local parties and how they fund activities that may not be of interest to the national parties."

On Thursday, the commission voted to start with the new, broader definitions, seeking comment from interested parties before the new rules take effect. The FEC's proposed definitions would cover activities that encourage people to vote, rather than simply activities that actually assist in voting, and they would cover the mass communications the court said current rules overlook.

The new rules will bring more state and local activities into the purview of the Federal Election Commission, according to election law experts. That will make a state or local party's efforts to get out the vote less effective, forcing them to use federal money for activities they once used local funds to execute.

Reform advocates have argued that giving the FEC more control over state and local party funding would eliminate soft money, but McGinley said that notion does not take into account regulators in individual states.

"State and local parties fund their state and local activities with funds regulated by state and local laws," he said. "The state funds are reported to the state and local election agencies. It is not unregulated soft money as falsely alleged by the pro-regulation community."

The FEC will accept comments through early November, with a hearing scheduled for Dec. 16. Elias said he expects the most vociferous comments to come from state political parties that stand to see their voter registration efforts severely curtailed.

"This is going to make it harder on state and local parties, and it's going to make it harder on them because they're gong to use more federal money," Elias said. "The question is, how much harder is it going to be?"