[Federal Register Volume 72, Number 51 (Friday, March 16, 2007)]
[Rules and Regulations]
[Pages 12545-12546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4868]



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 Rules and Regulations
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  Federal Register / Vol. 72, No. 51 / Friday, March 16, 2007 / Rules 
and Regulations  

[[Page 12545]]



FEDERAL ELECTION COMMISSION

11 CFR Part 111

[Notice 2007-6]


Statement of Policy Regarding Commission Action in Matters at the 
Initial Stage in the Enforcement Process

AGENCY: Federal Election Commission.

ACTION: Statement of Policy.

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SUMMARY: The Federal Election Commission (``Commission'') is issuing a 
Policy Statement to clarify the various ways that the Commission 
addresses Matters Under Review (``MURs'') at the initial stage of 
enforcement proceedings. The Commission may take any of the four 
following actions at this stage: find ``reason to believe,'' 
``dismiss,'' ``dismiss with admonishment,'' and find ``no reason to 
believe.''

DATES: Effective Date: March 16, 2007.

FOR FURTHER INFORMATION CONTACT: Mark Shonkwiler, Assistant General 
Counsel, or Lynn Tran, Attorney, Enforcement Division, Federal Election 
Commission, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or 
(800) 424-9530.

SUPPLEMENTARY INFORMATION: The Federal Election Campaign Act of 1971, 
as amended, 2 U.S.C. 431 et seq. (``FECA'' or ``the Act''), grants 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; information ascertained in the ordinary 
course of the Commission's supervisory responsibilities, including 
referrals from the Commission's Reports Analysis and Audit Divisions; 
referrals from other government agencies; and self-reported 
submissions.
    The FECA provides that ``upon receiving a complaint'' or upon the 
basis of information ascertained in the course of carrying out its 
supervisory responsibilities, the Commission ``shall make an 
investigation of such alleged violation'' of the Act where the 
Commission, with the vote of four members, determines that there is 
``reason to believe that a person has committed, or is about to 
commit'' a violation of the Act. 2 U.S.C. 437g(a)(2); see also 11 CFR 
111.10(f). Commission ``reason to believe'' findings have caused 
confusion in the past because they have been viewed as definitive 
determinations that a respondent violated the Act. In fact, ``reason to 
believe'' findings indicate only that the Commission found sufficient 
legal justification to open an investigation to determine whether a 
violation of the Act has occurred. Indeed, the Commission has 
recommended that Congress modify the FECA to clarify this point. See 
Legislative Recommendations in 2003 and 2004 FEC Annual Reports. Other 
kinds of dispositions at this preliminary stage would also benefit from 
clarification to ensure consistency and promote understanding of the 
Commission's reasons for taking action. Thus, the Commission is issuing 
this policy statement to assist complainants, respondents, and the 
public in understanding the Commission's findings at this stage of the 
enforcement process.
    Generally speaking, at the initial stage in the enforcement 
process, the Commission will take one of the following actions with 
respect to a MUR: (1) Find ``reason to believe'' a respondent has 
violated the Act; (2) dismiss the matter; (3) dismiss the matter with 
admonishment; or (4) find ``no reason to believe'' a respondent has 
violated the Act. This policy statement is intended to clarify the 
circumstances under which the Commission uses each of these 
dispositions.

A. ``Reason To Believe''

    The Act requires that the Commission find ``reason to believe that 
a person has committed, or is about to commit, a violation'' of the Act 
as a predicate to opening an investigation into the alleged violation. 
2 U.S.C. 437g(a)(2). The Commission will find ``reason to believe'' in 
cases where the available evidence in the matter is at least sufficient 
to warrant conducting an investigation, and where the seriousness of 
the alleged violation warrants either further investigation or 
immediate conciliation. A ``reason to believe'' finding will always be 
followed by either an investigation or pre-probable cause conciliation. 
For example:
     A ``reason to believe'' finding followed by an 
investigation would be appropriate when a complaint credibly alleges 
that a significant violation may have occurred, but further 
investigation is required to determine whether a violation in fact 
occurred and, if so, its exact scope.
     A ``reason to believe'' finding followed by conciliation 
would be appropriate when the Commission is certain that a violation 
has occurred and the seriousness of the violation warrants 
conciliation.
    A ``reason to believe'' finding by itself does not establish that 
the law has been violated. When the Commission later accepts a 
conciliation agreement with a respondent, the conciliation agreement 
speaks to the Commission's ultimate conclusions. When the Commission 
does not enter into a conciliation agreement with a respondent, and 
does not file suit, a Statement of Reasons, a Factual and Legal 
Analysis, or a General Counsel's Report may provide further explanation 
of the Commission's conclusions.
    The Commission has previously used the finding ``reason to believe, 
but take no further action'' in cases where the Commission finds that 
there is a basis for investigating the matter or attempting 
conciliation, but the Commission declines to proceed for prudential 
reasons. As discussed below, the Commission believes that resolving 
these matters through dismissal or dismissal with admonishment more 
clearly conveys the Commission's intentions and avoids possible 
confusion about the meaning of a reason to believe finding.

B. Dismissal and Dismissal With Admonishment

    Under Heckler v. Chaney, 470 U.S. 821 (1985), the Commission has 
broad discretion to determine how to proceed with respect to complaints 
or referrals. The Commission has exercised its prosecutorial discretion 
under Heckler to dismiss matters that do not merit the additional 
expenditure of Commission

[[Page 12546]]

resources.\1\ As with other actions taken by the Commission, dismissal 
of a matter requires the vote of at least four Commissioners.
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    \1\ The FECA and Commission regulations also recognize the 
Commission's authority to dismiss enforcement matters. See 2 U.S.C. 
437g(a)(1); 11 CFR 111.6(b) and 111.7(b).
---------------------------------------------------------------------------

    Pursuant to the exercise of its prosecutorial discretion, the 
Commission will dismiss a matter when the matter does not merit further 
use of Commission resources, due to factors such as the small amount or 
significance of the alleged violation, the vagueness or weakness of the 
evidence, or likely difficulties with an investigation, or when the 
Commission lacks majority support for proceeding with a matter for 
other reasons. For example, a dismissal would be appropriate when:
     The seriousness of the alleged conduct is not sufficient 
to justify the likely cost and difficulty of an investigation to 
determine whether a violation in fact occurred; or
     The evidence is sufficient to support a ``reason to 
believe'' finding, but the violation is minor.
    The Commission may also dismiss when, based on the complaint, 
response, and publicly available information, the Commission concludes 
that a violation of the Act did or very probably did occur, but the 
size or significance of the apparent violation is not sufficient to 
warrant further pursuit by the Commission. In this latter circumstance, 
the Commission will send a letter admonishing the respondent. For 
example, a dismissal with admonishment would be appropriate when:
     A respondent admits to a violation, but the amount of the 
violation is not sufficient to warrant any monetary penalty; or
     A complaint convincingly alleges a violation, but the 
significance of the violation is not sufficient to warrant further 
pursuit by the Commission.

C. ``No Reason To Believe''

    The Commission will make a determination of ``no reason to 
believe'' a violation has occurred when the available information does 
not provide a basis for proceeding with the matter. The Commission 
finds ``no reason to believe'' when the complaint, any response filed 
by the respondent, and any publicly available information, when taken 
together, fail to give rise to a reasonable inference that a violation 
has occurred, or even if the allegations were true, would not 
constitute a violation of the law. For example, a ``no reason to 
believe'' finding would be appropriate when:
     A violation has been alleged, but the respondent's 
response or other evidence convincingly demonstrates that no violation 
has occurred;
     A complaint alleges a violation but is either not credible 
or is so vague that an investigation would be effectively impossible; 
or
     A complaint fails to describe a violation of the Act.
    If the Commission, with the vote of at least four Commissioners, 
finds that there is ``no reason to believe'' a violation has occurred 
or is about to occur with respect to the allegations in the complaint, 
the Commission will close the file and respondents and the complainant 
will be notified.

D. Conclusion

    This policy enunciates and describes the Commission's standards for 
actions at the point of determining whether or not to open an 
investigation or to enter into conciliation with respondents prior to a 
finding of probable cause to believe. The policy does not confer any 
rights on any person and does not in any way limit the right of the 
Commission to evaluate every case individually on its own facts and 
circumstances.
    This notice represents a general statement of policy announcing the 
general course of action that the Commission intends to follow. This 
policy statement does not constitute an agency regulation requiring 
notice of proposed rulemaking, opportunities for public participation, 
prior publication, and delay effective under 5 U.S.C. 553 of the 
Administrative Procedures Act (``APA''). As such, it does not bind the 
Commission or any member of the general public. The provisions of the 
Regulatory Flexibility Act, 5 U.S.C. 605(b), which apply when notice 
and comment are required by the APA or another statute, are not 
applicable.

    Dated: March 7, 2007.
Robert D. Lenhard,
Chairman, Federal Election Commission.
 [FR Doc. E7-4868 Filed 3-15-07; 8:45 am]
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