[Federal Register Volume 73, Number 236 (Monday, December 8, 2008)]
[Notices]
[Pages 74494-74500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28896]


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FEDERAL ELECTION COMMISSION

[Notice 2008-13]


Agency Procedures

AGENCY: Federal Election Commission.

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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 [email protected]. 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