[Federal Register Volume 74, Number 128 (Tuesday, July 7, 2009)]
[Notices]
[Pages 32160-32162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15869]


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FEDERAL ELECTION COMMISSION

[Notice 2009-11]


Advisory Opinion Procedure

AGENCY: Federal Election Commission.

ACTION: Notice of New Advisory Opinion Procedures and Explanation of 
Existing Procedures.

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SUMMARY: The Commission is establishing a program to allow persons 
requesting an advisory opinion, or their counsel, a limited opportunity 
to appear before the Commission. The purpose of their appearances is to 
answer questions from the Commission at the open meeting during 
consideration of the requestor's draft advisory opinion.

DATES: Effective Date: July 7, 2009.

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Knop, Assistant General 
Counsel, or Mr. Neven F. Stipanovic, Attorney, 999 E Street, NW., 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Federal Election Commission is 
implementing a program allowing persons requesting advisory opinions, 
or their counsel, to answer questions at the open meeting during 
consideration of an advisory opinion draft.

I. Background

    On January 14 and 15, 2009, the Commission held a public hearing on 
possible changes to a number of its policies, practices, and 
procedures, including possible changes to the advisory opinion process. 
Information about the hearing is available on the Commission Web site 
at http://www.fec.gov/law/policy/enforcement/publichearing011409.shtml. 
The Commission received several public comments regarding the advisory 
opinion process. One issue generating significant attention was whether 
advisory opinion requestors, or their counsel, should be allowed to 
appear before the Commission during the advisory opinion process. After 
reviewing the public comments, the Commission has decided to allow 
requestors, or their counsel, to appear at the open meeting during 
consideration of an advisory opinion draft. The specific procedures are 
explained below.

A. Existing Advisory Opinion Procedures

    Any person may request an advisory opinion concerning the 
application of the Federal Election Campaign Act of 1971, as amended 
(the ``Act''), or Commission regulations, to a specific transaction or 
activity by the person.\1\ See 2 U.S.C. 437f; 11 CFR part 112. 
Requestors or their counsel (``Requestors'') must submit their request 
in writing. 11 CFR 112.1. The Commission, in turn, must issue an 
advisory opinion within 60 days of receiving a complete advisory 
opinion request. 2 U.S.C. 437f(a)(1). The 60-day deadline is reduced to 
20 days when a Federal candidate or a candidate's authorized committee 
submits a complete request within 60 days of a Federal election. 2 
U.S.C. 437f(a)(2). At times, the Commission expedites certain highly 
significant, time-sensitive requests and issues these advisory opinions 
within 30 days. See infra Section I(E). Advisory opinions are issued if 
approved by at least four Commissioners.
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    \1\ The Act defines ``person'' as an individual, partnership, 
committee, association, corporation, labor organization, or any 
other organization or group of persons. 2 U.S.C. 431(11).
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    Members of the public have two distinct opportunities to 
participate in the advisory opinion process. First, they may submit 
written comments on the advisory opinion request, which is released to 
the public and posted on the Commission's Web site as soon as it 
becomes complete. 11 CFR 112.2; 112.3. Second, they may submit written 
comments on a draft advisory opinion, which typically is provided to 
the Requestor and made available to the public prior to the Commission 
meeting at which the advisory opinion will be considered.

B. Proposed Revisions to the Advisory Opinion Process

    At the public hearing held on January 14 and 15, 2009, those 
commenters who addressed the advisory opinion process generally agreed 
that the Requestor should be allowed to appear before the Commission 
when the Commission considers the advisory opinion draft. The main 
concern with the existing advisory opinion process was the Requestor's 
inability to respond to Commissioners' questions during the open 
meeting. The commenters noted that when they represented Requestors, 
they sometimes found it frustrating to sit in the audience during the 
open meeting when the Commission was considering their request, with no 
opportunity to respond when Commissioners raised questions. To address 
this concern, the Commission is implementing a new procedure that would 
allow Requestors to appear before the Commission to answer questions at 
the open meeting when the Commission considers the Requestor's draft 
advisory opinion.
    The Commission believes that this procedure will promote 
transparency and fairness, while ensuring that advisory opinions 
continue to be issued in an efficient and timely manner. It would 
permit the Requestors to answer directly Commissioners' questions. 
These appearances may clear up ambiguous or conflicting statements in 
the Requestors' written submissions or allow the Commission to obtain 
additional information where the Requestor's previous discussions with 
Office of General Counsel (``OGC'') attorneys did not provide an 
answer. Allowing Requestors to appear would help ensure that the 
Commission fully considers all significant aspects of the proposed 
transaction or activity before voting on the advisory opinion. 
Appearances by Requestors may also help some Requestors to understand 
better the basis for the Commission's decision.
    Some commenters suggested that the Commission should hold formal 
oral hearings on advisory opinion requests, similar to the probable 
cause hearings the Commission holds in enforcement matters, before it 
considers and votes on draft advisory opinions. See Procedural

[[Page 32161]]

Rules for Probable Cause Hearings, 72 FR 64919 (Nov. 19, 2007). The 
Commission believes that a broader opportunity for an oral presentation 
is not needed and would prove unworkable within the short statutory 
deadlines for issuing advisory opinions. These 60- and 20-day statutory 
deadlines preclude more extensive oral hearings at an earlier point in 
the process. The Commission would have to devote significant resources 
to arranging and preparing for oral presentations, thereby reducing the 
already limited time available for drafting and considering opinions 
responding to advisory opinion requests. While extensions may be 
arranged if necessary, as the Commission has done in the past, allowing 
extensions on a regular basis could undermine the statutory directive 
to issue advisory opinions within 60 or 20 days. Furthermore, because 
Requestors already have multiple opportunities to participate in the 
advisory opinion process, an additional oral hearing would not 
significantly benefit them or the advisory opinion process.
    One commenter at the public hearing suggested that third-party 
commenters in the advisory opinion process should be allowed to appear 
before the Commission; other commenters disagreed. The Act specifically 
provides that the Commission shall issue an advisory opinion ``with 
respect to a specific transaction or activity by the person'' who 
submitted the request. 2 U.S.C. 437f(a)(1). Accordingly, under the new 
program, third-party commenters would not be allowed to make oral 
presentations. Requestors would be permitted to appear only for the 
limited purpose of addressing questions raised by the Commission. 
Commenters already have an opportunity to submit written comments on 
the request, as well as on the draft advisory opinion. Moreover, 
arranging an oral hearing within the 60- or 20-day statutory deadlines 
for all interested parties who wish to testify would be inefficient and 
impractical.
    Another issue raised at the public hearing was whether the 
Commission should transcribe oral presentations if it allowed 
Requestors to appear. The Commission currently does not transcribe open 
meetings, and the Commission does not intend to change this practice 
when Requestors or their counsel make an appearance, for two reasons. 
First, the transcripts would be an expense to the Commission while 
offering little added benefit to the Requestor. Second, the Commission 
already has podcasts of its open meetings available on the Commission 
Web site.

C. Notice of Intent To Appear Before the Commission

    Requestors wishing to appear before the Commission to answer 
questions regarding their advisory opinion request shall have the 
opportunity to do so. Requestors must submit a written notice to the 
Commission in advance indicating that they will be available to respond 
to questions at the open meeting at which the advisory opinion request 
is to be considered. The notice must be received by the Office of the 
Commission Secretary (``OCS'') by e-mail, hand delivery, or fax no 
later than 48 hours prior to the scheduled open meeting. Requestors are 
responsible for ensuring that OCS timely receives the notice. In the 
event any advisory opinion draft response is not made available to the 
public and to the Requestor within one week (3 days for requests under 
the 20-day expedited procedure) prior to the Commission open meeting at 
which the advisory opinion request is to be considered, the Requestor 
shall have an automatic right to appear before the Commission, and no 
advance notice shall be required. See infra Section I(E).
    The opportunity to appear before the Commission does not guarantee 
that Requestor will be able to address the Commission if no 
Commissioners have any questions of the Requestor. These appearances 
are voluntary, and no adverse inferences will be drawn if Requestors do 
not appear.

D. Open Meeting Procedures

    Requestors who appear before the Commission shall take a seat at 
the witness table during consideration of their advisory opinion and 
respond to any questions Commissioners may have. Requestors who are 
unable to appear physically at an open meeting may participate 
remotely, subject to the Commission's technical capabilities. To ensure 
availability, Requestors wishing to participate remotely are advised to 
notify the OCS when they submit their notice of intent to appear.
    Requestors' appearance is limited to answering Commissioners' 
questions; it is not an opportunity for Requestors to make extended 
oral presentations. The Commissioners, the General Counsel, and the 
Staff Director may ask Requestors questions appropriate or relevant to 
answering the advisory opinion request at hand. Commissioners also may 
ask the General Counsel and the Staff Director questions pertaining to 
the request. Any factual representations made at the open meeting will 
be considered definitive in the formulation of a final advisory 
opinion.

E. Improving Transparency and Timeliness of Advisory Opinion Procedures 
and Opportunity for Comment

    In an effort to streamline the advisory opinion request process and 
to improve transparency and meaningful opportunity for public comment 
and Commission consideration of such comments, the Commission 
informally has implemented several procedures and proposes additional 
procedures, explained below.
Commission Self-Imposed Deadline for Draft Responses
    In 1993, the Commission announced pilot procedures that would 
result in advisory opinion drafts to be made public for comment as soon 
as they are circulated to the Commission, and generally no later than 
close of business on the Thursday preceding the Commission's next open 
meeting at which the advisory opinion request is to be considered 
(generally the following Thursday). See Revision to Advisory Opinion 
Comment Procedure, 58 FR 62259 (Nov. 26, 1993). The timetable was to 
remain in effect for all advisory opinion requests received until May 
31, 1994 and did not apply to expedited requests under 2 U.S.C. 
437f(a)(2) and 11 CFR 112.4(b). See infra.
    In this same spirit, for all advisory opinion requests subject to 
the 60-day deadline, the Commission will provide at least one draft 
response to the Requestor and the public no later than one week prior 
to the Commission open meeting at which the advisory opinion will be 
considered. This timetable will provide Requestors adequate time to 
decide whether to submit a notice to the Commission to appear at the 
meeting, as well as provide the public meaningful opportunity to submit 
comments on the draft and for the Commission to properly consider any 
such comments. For requests subject to the 20-day deadline, see infra, 
this timetable shall be shortened to provide a draft response no later 
than three business days prior to the open meeting at which the 
advisory opinion will be considered.
    The Commission notes that, prior to the open meeting, additional 
advisory opinion draft responses may be produced after the initial 
draft(s) is released publicly. The Commission will make available to 
the public and to Requestors any and all additional draft responses as 
soon as possible. In the event any draft response is not released 
publicly until after the one-week/three-day deadlines, Requestors shall 
have an

[[Page 32162]]

automatic right to be heard at the meeting (limited to answering the 
Commissioners' questions, if any). See supra Section I(C).
    The timetable described above is in addition to the existing 10-day 
deadline for accepting written public comments following the date the 
advisory opinion request is made public. See 2 U.S.C. 437f(d).
Expansion of 20-Day Expedited Process in Section 112.4(b) to Other 
Requestors
    The Commission has an expedited procedure provided for in 2 U.S.C. 
437f(a)(2) and implemented in 11 CFR 112.4(b) for certain advisory 
opinions. This expedited procedure is currently limited to any 
candidate or candidate's authorized committee that: (1) Submits a 
request within 60 calendar days preceding the date of an election for 
Federal office; (2) presents a specific transaction or activity related 
to the election; and (3) explains in the request the electoral 
connection. The Commission recognizes that this procedure does not 
apply to other entities or individuals, and in recognition of this will 
attempt to apply an expedited schedule to any entity or individual who, 
within 60 calendar days preceding the date of an election for Federal 
office, submits an advisory opinion request pertaining to a proposed 
public communication referencing a clearly identified Federal 
candidate.
    The Commission notes that this new practice with respect to 
election-sensitive requests is in addition to the Commission's current, 
informal practice of expediting certain highly significant time-
sensitive requests (whether or not relating to an upcoming election). 
The Commission endeavors to issue advisory opinions within 30 days 
under this general expedited process.
Withdrawal of Advisory Opinion Requests
    A Requestor may withdraw an advisory opinion request at any time 
prior to the Commission vote on the request. Such withdrawal may be 
done in writing or on the record in the event a Requestor appears 
before the Commission.
Summary of Advisory Opinion Timetable
    The following is a summary of the advisory opinion timetable, as 
modified by this program:
    (1) Requestor submits advisory opinion request.
    (2) Within 10 days of the submission of the request, OGC determines 
whether the request is ``complete'' and ``qualified.''
    (3) The Commission shall provide 10 days for accepting written 
public comments on the advisory opinion request after the request is 
released to the public.
    (4) One week prior to the open meeting at which the advisory 
opinion is to be considered (three days for expedited requests), the 
Commission will provide at least one draft response to the Requestor 
and the public for comment.
    (5) Requestor may submit a notice indicating that they will be 
available to respond to questions from the Commission no later than 48 
hours prior to the open meeting at which the advisory opinion is to be 
considered.
    (6) In the event subsequent advisory opinion draft responses are 
made available to the public and Requestor after one week (or three 
days for 20-day expedited requests) prior to the open meeting at which 
the advisory opinion is to be considered, the Requestor shall have an 
automatic right to appear before the Commission.

II. Program Implementation

    The new procedures for Requestors to appear before the Commission 
described in Sections I(B) through (D), supra, shall be in effect 
immediately upon the publication of this notice. The Commission will 
evaluate the new procedures and consider whether the procedures should, 
by an affirmative four votes of the Commission, be discontinued or 
modified. After one calendar year, the program will continue as a pilot 
program until such time that the Commission either terminates it by an 
affirmative four votes or makes it permanent by an affirmative four 
votes.

    Dated: June 30, 2009.

    On behalf of the Commission,
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. E9-15869 Filed 7-6-09; 8:45 am]
BILLING CODE 6715-01-P