HARMON CURRAN NONPROFIT LAW BLOG

This summer, the Federal Election Commission (FEC) noticed a rulemaking petition that, if adopted, would amend the regulatory definition of “contribution” to include certain “valuable information.” This “valuable information” would be defined as information that:

1. Is not freely available to the public;

2. Is provided to a person regulated by the Federal Election Campaign Act (FECA), at a cost less than the market rate or by a person not hired by the recipient to generate such information;

3. Would cost a non-trivial amount for the recipient to obtain at their own expense; and

4. Is information that would likely have the effect of influencing any election for federal office or that parties or candidate committees have traditionally expended money to obtain.

The proposed definition of “valuable information” also includes two categories of information that would receive special treatment: “Foreign Information” (any information that comes from a source that is prohibited from making contributions under the FECA) and “Compromising Information” (any information that could be used to blackmail or otherwise compromise a candidate for Federal office regardless of source). Any individual who receives either kind of information would be required to notify the Commission in writing within three days. Upon receiving such notice, the Commission would automatically need to launch an investigation and alert the FBI and other law enforcement agencies.

The FEC is accepting public comments on this petition, which can be submitted electronically here, until September 30, 2019. It is unlikely, however, that the FEC will take up consideration of the petition’s merits any time soon after the comment period closes. With the recent departure of former commissioner Matthew S. Petersen, the FEC has only three members, which is one fewer than needed for the Commission to be able to hold meetings and take action. It is anyone’s guess as to when the Commission will regain its quorum.