[Federal Register: December 8, 2008 (Volume 73, Number 236)]
[Notices]
[Page 74494-74500]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de08-56]
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FEDERAL ELECTION COMMISSION
[Notice 2008-13]
Agency Procedures
AGENCY: Federal Election Commission.
[[Page 74495]]
ACTION: Notice of public hearing and request for public comments.
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SUMMARY: The Federal Election Commission is announcing a public hearing
on the policies and procedures of the Federal Election Commission
including but not limited to, policy statements, advisory opinions, and
public information, as well as various elements of the compliance and
enforcement processes such as audits, matters under review, report
analysis, administrative fines, and alternative dispute resolution. The
Commission also seeks comment from the public on the procedures
contained in the Federal Election Campaign Act of 1971, as amended, 2
U.S.C. 431 et. seq. (``FECA'' or ``the Act''), as well as the
Commission's implementing regulations.
DATES: Comments must be received on or before January 5, 2009. A public
hearing will be held on Wednesday, January 14, 2009, from 10 a.m. to 5
p.m. at the Federal Election Commission, 999 E Street, NW., 9th floor
Hearing Room, Washington, DC 20463. Anyone seeking to testify at the
hearing must file written comments by the due date and must include in
the written comments a request to testify.
ADDRESSES: All comments must be in writing, must be addressed to
Stephen Gura, Deputy Associate General Counsel, or Mark Shonkwiler,
Assistant General Counsel, and must be submitted in either e-mail,
facsimile, or paper copy form. Commenters are strongly encouraged to
submit comments by e-mail to ensure timely receipt and consideration.
E-mail comments must be sent to agencypro2008@fec.gov. If e-mail
comments include an attachment, the attachment must be in the Adobe
Acrobat (.pdf) or Microsoft Word (.doc) format. Faxed comments must be
sent to (202) 219-3923, with paper copy follow-up. Paper comments and
paper copy follow-up of faxed comments must be sent to the Federal
Election Commission, 999 E Street, NW., Washington, DC 20463. All
comments must include the full name and postal service address of the
commenter or they will not be considered. The Commission will post
comments on its Web site after the comment period ends.
FOR FURTHER INFORMATION CONTACT: Stephen Gura, Deputy Associate General
Counsel, or Mark Shonkwiler, Assistant General Counsel, Office of
General Counsel, 999 E Street, NW., Washington, DC 20463, (202) 694-
1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION:
Background and Hearing Goals
The Commission is currently reviewing, and seeks public comment on,
its policies, practices and procedures. The Commission will use the
comments received to determine whether its policies, practices or
procedures should be adjusted, and/or whether rulemaking in this area
is advised. The Commission has made no decisions in this area, and may
choose to take no action.
The Commission conducted a similar review of its enforcement
procedures in 2003. See Enforcement Procedures, 68 FR 23311 (May 1,
2003). Comments filed in the 2003 review, as well as a transcript of
the 2003 public hearing, are available on the Commission's Web site at
http://www.fec.gov/law/policy.shtml (see bottom of page). Subsequent to
that review, the Commission formally adopted several new policies,
including a policy on deposition transcripts, a ``fast track'' policy
for sua sponte matters, a policy clarifying treasurer liability, and an
interim disclosure policy for closed enforcement and related files. See
Statement of Policy Regarding Deposition Transcriptions in Nonpublic
Investigations, 68 FR 50688 (Aug. 22, 2003); Statement of Policy
Regarding Self Reporting of Campaign Finance Violations (Sua Sponte
Submissions), 72 FR 16695 (April 5, 2007); Statement of Policy
Regarding Treasurers Subject to Enforcement Proceedings, 70 FR 3
(January 3, 2005); and Statement of Policy Regarding the Disclosure of
Closed Enforcement and Related Files, 68 FR 70426 (Dec. 18, 2003).
These policy statements and supporting documents are available on the
Commission's Web site at http://www.fec.gov/law/policy.shtml.
Additionally, in 2007 the Commission created a new procedure within the
enforcement process that affords respondents the opportunity for an
oral hearing before the Commission at the probable cause stage of a
matter under review. See Enforcement Procedural Rules for Probable
Cause Hearings, 72 FR 64919 (Nov. 19, 2007), available on the
Commission's Web site at http://www.fec.gov/law/cfr/eLcompilation/2007/
notice_2007-21.pdf. The Commission has also adopted several internal
procedural changes, which are mentioned in this notice.
The FECA grants to the Commission ``exclusive jurisdiction with
respect to civil enforcement'' of the provisions of the Act and
Chapters 95 and 96 of Title 26. 2 U.S.C. 437c(b)(1). Enforcement
matters come to the Commission through complaints from the public,
referrals from the Reports Analysis and Audit Divisions, referrals from
other agencies, and sua sponte submissions. Enforcement matters are
generally handled by the Office of General Counsel pursuant to the
procedures set forth in 2 U.S.C. 437g.
During the administrative enforcement process, the Office of
General Counsel reviews and investigates enforcement matters, and makes
recommendations to the Commission regarding the disposition of matters.
Stages of the enforcement process include Reason to Believe (RTB),
probable cause, and conciliation. A full description of the
Commission's administrative enforcement process is available on the
Commission's Web site at http://www.fec.gov/pages/brochures/
complain.shtml.
The Commission brings de novo enforcement suits in U.S. District
Courts when matters are not satisfactorily resolved through the
administrative enforcement process; it also initiates legal actions to
enforce administrative subpoenas during the investigative process.
The Commission also enforces the FECA through its Alternative
Dispute Resolution (ADR) and Administrative Fine programs. The ADR
program was established at the Commission in 2000 to promote compliance
with the law by encouraging settlements outside the traditional
enforcement and litigation processes. ADR results in an expeditious
resolution that allows participants in the program to have an active
role in shaping the settlement, and, as a result, reducing costs for
respondents and the Commission. The Interest-based negotiations focus
the process on respondents' future compliance with the FECA. A full
description of the Commission's ADR program is available on the
Commission's Web site at http://www.fec.gov/pages/brochures/adr.shtml.
The Administrative Fine Program was established by Congress with
the intent of streamlining the enforcement process for violations
involving late and non-filing of reports. The Commission believed that
the addition of this authority (to assess fines for these violations
subject to a reasonable appeal process) would introduce greater
certainty to the regulated community about the consequences of
noncompliance with the Act's filing requirements, lessen costs, and
lead to efficiencies for all parties while maintaining an emphasis on
the Act's disclosure requirements. Since its inception in 2000, the
Commission has made adjustments to its fine schedules
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and the list of acceptable defenses. A full description of the
Commission's Administrative Fine program is available on the
Commission's Web site at http://www.fec.gov/pages/brochures/admin_
fines.shtml.
Additionally, the Commission administers the Act through a review
of all disclosure reports that are filed with the FEC. These reports
are reviewed by the Commission's Reports Analysis Division (RAD) for
compliance with the Act and to ensure that the information reported is
both accurate and complete. When review of a political committee's
disclosure reports reveals that the reports appear not to have met the
threshold requirements for substantial compliance with the requirements
of the Act, the Commission will conduct an audit of the committee to
determine whether the committee complied with the Act's limitations,
prohibitions and disclosure requirements. 2 U.S.C. 438(b). In addition,
the Commission is required by law to audit presidential campaigns and
convention committees that accept public funds.
Finally, the Commission issues additional guidance through advisory
opinions, policy statements and other guidelines.
In the course of addressing its administrative responsibilities,
the Commission periodically reviews its programs. The purpose of this
Notice of Public Hearing is to reexamine the Commission's practices and
procedures, some of which have been in place since the Commission was
founded, and to give the regulated community and representatives of the
public an opportunity to bring before the Commission general comments
and concerns about the agency's policies and procedures regarding
compliance, enforcement, public disclosure, advisory opinions and any
other matter.
The Commission requests those who submit comments to be cognizant
of the fact that statutory requirements, such as confidentiality and
privacy mandates, may be implicated by certain proposals. Thus, the
Commission would appreciate if participants would specify in their
written remarks whether their proposals are compatible with applicable
statutes or would require legislative action.
The Commission specifically seeks comment on issues confronting
counsel who practice before the Commission, complainants and
respondents who directly interact with the FEC, treasurers, witnesses,
other third parties, and the general public. The Commission seeks
general comments on how the FEC's enforcement and other procedures have
facilitated or hindered productive interaction with the agency. The
Commission is not interested in complaints or compliments about
individual FEC employees or matters, but it seeks input on structural,
procedural and policy issues. The Commission also seeks comment about
practices and procedures used by other civil law enforcement agencies
when acting in an enforcement (i.e., non-adjudicative) capacity. For
example, do such agencies provide greater or lesser transparency? What
opportunities exist for presenting or addressing issues, evidence, or
potential claims that might be the basis of a subsequent adjudicative
proceeding? The Commission is also interested in any studies, surveys,
research or other empirical data that might support changes in its
enforcement procedures.
General Topics for Specific Comments
The Commission welcomes input on any aspect of its policies and
procedures. Among the topics on which the Commission will accept
comment are those below. However, the list is not exhaustive and
comments are encouraged on other issues as well.
I. Enforcement Process
A. Motions Before the Commission
Both complainants' and respondents' attorneys have occasionally
submitted motions for the Commission's consideration, including motions
to dismiss and reconsider. Although neither the FECA nor the
Commission's regulations provide for consideration of such motions, and
the Administrative Procedure Act, 5 U.S.C. 551 et seq. (``APA''), does
not require that agencies entertain such motions in non-adjudicative
proceedings, the Commission has reviewed these motions on a case-by-
case basis. The Commission requests comments on whether its procedures
for consideration of motions should be modified. Should the Commission
entertain motions? If yes, what types of motions should be considered?
What should be the time frame for consideration of motions generally?
Should the motions be served on the Commission Secretary or the General
Counsel? Should the movant be granted an oral hearing before the
Commission? Should there be substantive or procedural requirements that
must be met in order to trigger the Commission's review? Should the
motions be considered even though this would extend the time that a MUR
remains active? Should parties be required to toll the statute of
limitations for periods in which motions are under consideration by the
Commission?
B. Deposition and Document Production Practices
When Commission attorneys take a deponent's sworn testimony at an
enforcement deposition authorized by section 437d(a)(4), only the
deponent and his or her counsel may attend. Under historical practice,
the deponent had the right to review and sign the transcript, but
normally a deponent was not allowed to obtain a copy of, or take notes
on, his or her own transcript until the investigation was complete,
i.e., after all depositions had been taken. On August 22, 2003, the
Commission published its new deposition policy. See Statement of Policy
Regarding Deposition Transcriptions in Nonpublic Investigations, 68 FR
50688 (August 22, 2003), available on the Commission's Web site at
http://www.fec.gov/agendaJagendas2003/notice2003-15/fr68nl63p50688.pdf.
Under this policy, the Commission allows deponents in enforcement
matters to obtain, upon request to the Office of General Counsel, a
copy of the transcript of their own deposition unless, on a case-by-
case basis, the General Counsel concludes and informs the Commission
that it is necessary to the successful completion of the investigation
to withhold the transcript until completion of the investigation.
If the General Counsel decides to recommend that the Commission
find probable cause to believe a respondent has violated the Act, the
Act requires that the General Counsel so notify the respondent, and
provide a brief on the legal and factual issues in the case. The Act
entitles respondents to submit, within 15 days, a brief stating their
position on the factual and legal issues of the case. 2 U.S.C.
437g(a)(3). Although nothing in the FECA requires that documents or
deposition transcripts be provided to respondents at this stage,
respondents are generally provided, upon request, with the documents
and depositions of other respondents and third party witnesses that are
referred to in the General Counsel's brief. Respondents, however, may
deem other information that the Commission does not disclose as
valuable to the respondents' defense. Note that this practice can cause
delay because, upon receiving these documents and depositions,
respondents' counsel often seek an extension of time since counsel must
submit the reply brief within 15 days of receiving the General
Counsel's probable cause brief.
The Commission's practice in providing depositions and documents to
respondents contrasts with the practice of some other civil law
enforcement
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agencies during the investigative stage of their proceedings, in which
the only deposition transcript supplied to the respondent is the
respondent's own deposition. Further, during the pendency of an
investigation, section 6b of the APA, 5 U.S.C. 555(c), grants
investigative agencies the right to deny the request of a witness for
copies of transcripts of his or her own testimony based on ``good
cause,'' in light of concerns that witnesses still to be examined might
be coached. Commercial Capital Corp. v. SEC, 360 F.2d 856, 858 (7th
Cir. 1966). On the other hand, it has been suggested the Commission's
practice contrasts with procedural rights afforded in litigation
matters under the Federal Rules of Civil Procedure, which give
litigants the right to attend the depositions of all persons deposed in
their case and obtain copies of all deposition transcripts.
The Commission seeks comment on whether counsel should have access
to all documents prior to having to respond to a recommendation by the
Office of General Counsel. Should deposition transcripts of the
respondent, other respondents, and witnesses be released, and if so,
when and to whom should they be released? Should respondents be allowed
full access to the depositions of all other respondents, including
those with the same and those with competing interests? At what point
in the enforcement process should this occur? Would full access to the
deposition transcripts of all other respondents increase the likelihood
of a public disclosure in violation of 2 U.S.C. 437g(a)(12)? Would such
release itself violate 2 U.S.C. 437g(a)(12)? If full access were to be
granted prior to the probable cause stage, would it compromise the
effectiveness of the Commission's investigations? Should respondents or
respondent's counsel be allowed to attend depositions of other
respondents or witnesses, including those with the same and those with
competing interests? If so, under what circumstances? Again, would such
access be consistent with 2 U.S.C. 437g(a)(12)?
Similarly, the Commission seeks comment on whether all relevant
documents required to be disclosed in civil litigation pursuant to
Federal Rule of Civil Procedure 26(a) should be provided with the
probable cause brief. Is the Rule 26(a) model appropriate for a
proceeding that is investigative, rather than adversarial? Would it be
practical (or, in cases with multiple respondents, legal) to do so in
cases involving voluminous records and multiple respondents? Who should
bear the costs of copying documents and ordering deposition transcripts
from court reporters? Would providing all such materials and allowing
time for their review further delay the submission of responsive
briefs? Would doing so compromise investigations? Would doing so
compromise the Commission's ability to obtain and share information
with other governmental agencies? Should this be done on a case-by-case
basis? Would some standard other than Rule 26(a) of the Federal Rules
of Civil Procedure provide a more workable standard?
The Commission seeks comment on these or other approaches to
balancing its need to conduct effective investigations with the
interests of respondents seeking to support their positions before the
Commission.
C. Extensions of Time
Respondents have 15 days to respond to the General Counsel's
probable cause brief. 2 U.S.C. 437g(a)(3). Although the Commission does
not have any regulations addressing whether and under what
circumstances an extension of this 15 day deadline is warranted, the
Office of the General Counsel typically will grant an extension upon a
showing of good cause. Should the Commission provide more explicit
guidance regarding when an extension is warranted? If so, under what
circumstances, if any, should extensions of time be granted to
respondents to respond to the probable cause brief? Are there
particular situations in which extensions of time should be denied? If
extensions were granted, should they be contingent on respondents'
agreements to toll the statute of limitations for the extension period?
D. Appearance Before the Commission
Under FECA, respondents are currently permitted to present their
position through written submissions in response to the complaint and
the General Counsel's probable cause brief, and generally they may do
so at the RTB stage pursuant to Commission practice. The Commission
also allows oral presentations prior to voting on a recommendation by
the General Counsel to find probable cause. See Enforcement Procedural
Rules for Probable Cause Hearings, 72 FR 64919 (Nov. 19, 2007),
available on the Commission's Web site at http://www.fec.gov/law/cfr/
eLcompilation/2007/notice_2007-21.pdf. Has the opportunity for oral
presentation been helpful? Can the process be improved and, if so, how?
Has the opportunity to appear in person before the Commission at the
probable cause stage changed respondents' interest in conciliating at
an earlier stage, and if so, how?
The Commission also seeks comment on whether respondents should be
entitled to appear before the Commission, either pro se or through
counsel, at other times such as when the Commission is considering
motions (see I-A, above), audit reports that state violations of law,
or prior to finding RTB. If so, should appearances be limited to
certain types of hearings and cases? If so, what should be the limiting
criteria? What should be the scope and form of the personal appearance?
Should the Commission be permitted to draw an adverse inference if
respondents decline to answer certain questions or do not fully answer
them? Allowing counsel to appear would add an additional procedural
right, but could also lengthen the enforcement process. How would this
additional step be balanced with the timeliness of completing a MUR? Is
the Commission justified in prolonging the process? Would this
complicate the process or add unnecessary time constraints? Would it
place respondents with limited resources, or those located far from
Washington, at a comparative disadvantage, and if so, is this a valid
reason to restrict personal appearances for all respondents? In cases
involving multiple respondents, how would the Commission protect the
confidentiality of other respondents also wishing to appear? The
Commission would also benefit from hearing about whether other civil
law enforcement agencies provide for personal appearances before agency
decision-makers.
E. Releasing Documents or Filing Suit Before an Election
While an enforcement matter is pending, the matter remains
confidential pursuant to 2 U.S.C. 437g(a)(4)(B). The Commission's
regulation at 11 CFR 5.4 mandates that files be publicly released
within 30 days of notification to the respondents that the matter is
closed. Once an enforcement matter is closed, the Commission's practice
is to publicly release documents related to the matter in the normal
course of business, even if this occurs immediately prior to, or
following, an election that may involve one of the respondents in the
matter. Upon resolution of an enforcement matter, the Commission could
not deny a Freedom of Information Act, 5 U.S.C. 552 et. seq., request
for disclosure of conciliation agreements or other dispositions simply
because of the proximity of an upcoming election. Furthermore, the FECA
provides for expedited conciliation immediately
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prior to an election, which allows voters to consider a Commission
determination that a campaign has not violated the FECA as alleged in a
complaint, or alternatively, that a campaign has accepted
responsibility for an election law violation. 2 U.S.C.
437g(a)(4)(A)(ii).
On the other hand, the Commission is sensitive to the fact that
releasing documents, reports, or filing suit before an election, even
when it occurs in the normal course of business, may influence election
results. The Commission seeks comment on whether consideration of an
upcoming election should or should not be considered when releasing
documents. In particular, should the Commission adopt a policy of not
releasing outcomes of cases for a specific period immediately preceding
an election? If so, should that policy apply only to violations from a
previous cycle? Would such a policy invite respondents to employ
dilatory tactics for the apparent purpose of keeping information
confidential until the election is over? Should the same considerations
apply when the Commission has completed the administrative process and
is prepared to file an enforcement action in federal court? What if the
statute of limitations is due to run before or shortly after the
election? Would the policy expose the Commission to criticism that it
was withholding from voters information that it would normally make
public precisely when that information is arguably of greatest interest
to the electorate?
F. Timeliness
From the end of fiscal year 2003 to the end of fiscal year 2007 the
Commission improved the overall processing time for Enforcement matters
by 64%, while at the same time doubling the number of matters it closes
on a yearly basis. Nonetheless, it has still been criticized in some
quarters for lack of timeliness. Are there specific practices or
procedures that the Commission could implement, consistent with the
FECA and the APA, which could reduce the time it takes to process MURs?
Does the agency have too few staff assigned to handle its workload? Can
the Commission afford respondents with more procedural rights without
sacrificing its goal of conducting timely investigations? Should
respondents be afforded more process than is required by the FECA or
the APA when the likely result will be longer proceedings? How should a
respondent's timeliness in responding to discovery requests and
subpoenas and orders, or the lack thereof, be weighed in the balance?
Has any particular stage of the enforcement procedure been a source of
timeliness problems?
G. Prioritization
The Commission has adopted an Enforcement Priority System to focus
resources on cases that most warrant enforcement action. Should the
Commission give lesser or greater priority to cases that require
complex investigations and/or raise issues where there is little
consensus about the application of the law--such as coordination,
qualified non-profit corporation status, and express advocacy/issue ad
analysis? Since cases involving these issues often involve large
amounts of spending, and hence large potential violations, should these
be the cases given high priority? If not, what cases should be given
high priority?
H. Memorandum of Understanding With the Department of Justice
The Commission for years has divided responsibility for the
enforcement of FECA with the Department of Justice. A 1977 Memorandum
of Understanding contemplates that the Department of Justice should
handle ``significant and substantial knowing and willful'' violations,
and that where the Commission learns of a probable, significant and
substantial violation, it will endeavor to expeditiously investigate
the matter and refer it promptly to the Department upon a finding of
probable cause. Is this still a valid demarcation of responsibility?
Does anything in BCRA suggest a different approach would be
appropriate?
I. Settlements and Penalties
Settlements and penalties are a sensitive and difficult area for
both the Commission and the public. It is vitally important that
settlements and penalties are equitable and appropriate. The Commission
seeks comment on any systematic settlement or penalty issues that have
arisen in the Commission's enforcement of the FECA. How can these
issues be resolved? The Commission seeks comment on several issues in
particular. Has the Commission's practice of approving proposed
conciliation agreements as opening settlement offers been helpful in
facilitating discussions? Have the civil penalties accurately reflected
the underlying issues? Are admonishments allowed by the statute? Are
admonishments a civil penalty? Is it appropriate to base penalties and
disgorgements on extrapolations of violations in a sample to the entire
universe of funds in question? Is the public aware of how the FEC
calculates fines and other penalties? Should the Commission provide
this information to the public? Specifically, do other agencies make
public their methodology for determining the agency's opening offer in
settlement negotiations, which is the purpose for which the
Commission's guidelines are used? If the Commission were to publish
those guidelines, would they be applicable without exception or with
only a few specified exceptions? Should the Commission retain its
discretion and flexibility to depart from its guidelines in instances
when it feels that fairness or public policy requires another result?
Would such guidelines minimize or even eliminate negotiations over what
constitutes an appropriate penalty? Have fines and other penalties been
consistent? How much consistency is required under the APA, equal
protection and due process? Are there other directives or guidelines
that should be publicly available, pertaining to enforcement
procedures?
J. Designating Respondents in a Complaint
When the Commission last conducted a public review of its
enforcement procedures in 2003, one of the topics that generated the
most comments was with regard to designating respondents in a
complaint. As a result of those comments, the Commission established
two new practices. First, the Office of General Counsel modified how it
identified respondents upon the initial review of an external
complaint. Specifically, the Office of General Counsel used to notify
any party mentioned in a complaint, or attachment to a complaint, where
they could be inferred to have violated a provision of the FECA.
Following the 2003 public review, the Office of General Counsel
curtailed its notification practice to include only those parties that
were either specifically identified by the complaint to have violated
the FECA or were shown to have a clear nexus to the alleged violation
in a complaint. Second, in instances where the Office of General
Counsel identifies additional respondents at a later stage in the
enforcement process, OGC now sends the potential respondent a ``pre-RTB
letter'' notifying them of OGC's intention to recommend that the
Commission find reason to believe a violation occurred, setting forth
the factual basis for the recommendation, and inviting the potential
respondent to respond to OGC prior to making its recommendation to the
Commission. Have these two procedural changes
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effectively addressed the due process issues raised in 2003 about
designating respondents in a complaint? Are pre-RTB letters useful to
the enforcement process? Are they consistent with the statute? Should
OGC provide potential respondents with a copy of the complaint or, in
sua sponte matters, a copy of the sua sponte submission? Would the
provision of these documents to someone who has not yet been named as a
respondent violate 2 U.S.C. 437g(a)(12)?
II. Other Programs
A. Alternative Dispute Resolution
Has the ADR program been helpful? If so, in what ways has the
program been helpful? Should it be expanded? Should the referral
policies the Commission currently uses be modified so that the ADR
program can handle more cases? If so, what cases are most appropriate
for ADR? Should a respondent be able to request participation in the
ADR program?
What are the perceived advantages or disadvantages of the ADR
process compared to the regular enforcement process? What can be done
to ensure uniformity of treatment of respondents between the ADR
program and the traditional enforcement process? Is the Commission
doing an adequate job of ensuring that civil penalties agreed to in ADR
are actually paid by respondents and that other agreed upon remedial
actions (such as annual internal audits or attendance at an FEC
conference) are completed?
Currently, in most instances penalties and other remedial actions
are negotiated independently of the Office of General Counsel. What are
the perceived advantages or disadvantages of the ADR negotiations being
independent of the Office of General Counsel? If the ADR program were
to negotiate in coordination with the Office of General Counsel, would
that provide a disincentive for respondents to disclose confidential
information for fear that the information would be available to the
Office of General Counsel in the event that ADR does not result in a
successful resolution of the matter?
What else can the Commission do to improve the ADR process?
B. Administrative Fines
Has the Administrative Fine program improved consistency of civil
penalty amounts? Are the schedules of the administrative fines
published in the Commission's regulations (11 CFR 111.43 and 111.44)
useful?
What else can the Commission do to improve the Administrative Fine
process?
C. Reports Analysis
All persons and entities who file disclosure reports with the
Commission must interact with the RAD. All reports filed with the
Commission are reviewed by RAD. The RAD will attempt to acquire
information through a Request for Additional Information (RFAI) if an
error, omission, need for additional clarification, or prohibited
activity is discovered in the course of reviewing a report. Are the
RFAI's clear and understandable? Do RFAI's provide sufficient time to
respond? Should the times vary based on the nature of the request? Are
RFAI's consistent in the information they seek? Some RFAI's seek
information which is not required by the report. Is this practice
consistent with the law?
If a potential violation is discovered and the committee fails to
take corrective action or provide clarifying information to adequately
address the issue, the committee may be referred for enforcement or
audit. Has the Commission appeared to have been consistent in its
approach to RAD referrals? What steps could the Commission take to
increase transparency and improve the RAD referral procedure?
What else can the Commission do to improve the RAD's processes?
D. Audits
While presidential campaigns that accept matching funds are audited
automatically, other committees are only audited based on Commission
procedures that set audit priorities. The committee has the opportunity
to respond confidentially to the Interim Audit Report/Preliminary Audit
Report, and changes from the IAR/PAR in the Final Audit Report can
result from information provided by the audited committee in that
response. These final audit reports are made public. This process
raises several questions upon which the Commission seeks comment. Is it
sufficiently clear to the general public how the Commission decides to
audit a particular committee? If not, should more information be made
public? If it should, what information should be made public? Is it
possible to release the specified information without providing
committees a road map on how to violate the law just enough to avoid
being audited? Does the selection of committees for audit have the
appearance of being done in a neutral manner? What can be done to
improve public confidence in the neutrality, fairness and relevancy of
the audit selection process? What is the significance of an audit
finding that a violation of law has occurred? Does such a finding in an
audit report constitute ``enforcement?'' What is the public perception
of such a finding? Does such a finding have immediate punitive and
other adverse consequences for the committee, including candidate
committees?
Are committees being given sufficient opportunity to be heard by
the Commission, particularly prior to the release of audit reports
reaching legal conclusions that the committee violated the law? If not,
what is the best way to ensure that committees have appropriate and
full due process before the Commission? Should audited committees be
allowed to file a written brief in response to the audit report? Should
audited committees be allowed to have a hearing before the Commission?
Should this hearing be at the time of the interim audit report, the
final audit report, or both? Please note as well that many of the
questions raised in Part I.D., pertaining to appearances before the
Commission in the enforcement process, apply as well to the question of
appearances in audits.
What else can the Commission do to improve the audit process?
III. Advisory Opinions and Policy Statements
A. Advisory Opinions
Currently, advisory opinion requests are submitted in writing and
posted on the Commission Web site for comment. Typically, one or more
draft opinions are proposed and posted on the Web site for comment and
the Commission adopts one of the draft opinions or an amended version
of one of the drafts. As part of this process, should the requestor be
permitted to appear before the Commission before or at the time the
Commission considers a request? Should commenters get a similar
opportunity? How would allowing requestors or commenters to appear
before the Commission affect the statutory requirement that the
Commission render an opinion within sixty days of a complete written
request? If the Commission were to allow requestors to appear, should
they be required to waive the sixty day time period? Given the
statutory reference to ``written comments,'' would a legislative change
be required to permit requestors or commenters to appear before the
Commission?
Furthermore, have advisory opinion requests generally been resolved
in a timely manner? Have requesters
[[Page 74500]]
experienced a time lag between the time they file a request with the
Commission and when the request is deemed submitted for the purpose of
beginning the 60-day clock? How can the Commission improve on rendering
advisory opinions promptly?
What else can the Commission do to improve the advisory opinion
process?
B. Policy Statements and Other Guidelines
In recent years the Commission has issued a number of policy
statements, which are available on the Commission's Web site at http://
www.fec.gov/law/policy.shtml. Have these statements helped increase the
transparency of the Commission's practices and procedures? How can the
transparency of the Commission's practices and procedures be improved?
Are there substantive or procedural flaws in any of these policy
statements that the Commission should address or revise? Should any of
these policy statements be embodied in regulations to provide better
clarity and access to the public? Are there additional policy
statements that the Commission should consider issuing? If so, what
Commission practices and procedures should be addressed in the policy
statements? Should policy statements, directives and guidelines be
placed on the Web site?
What other policy statements could the Commission issue that would
be helpful to the public?
IV. Other Issues
As noted above, the Commission welcomes comments on other issues
relevant to these enforcement policies and procedures, including any
comments concerning how the FEC might increase the fairness,
substantive and procedural due process, efficiency and effectiveness of
the Commission.
On behalf of the Commission.
Dated: December 2, 2008.
Donald F. McGahn II,
Chairman, Federal Election Commission.
[FR Doc. E8-28896 Filed 12-5-08; 8:45 am]
BILLING CODE 6715-01-P