[Federal Register Volume 89, Number 55 (Wednesday, March 20, 2024)]
[Rules and Regulations]
[Pages 19729-19730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05830]


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FEDERAL ELECTION COMMISSION

11 CFR Part 111

[Notice 2024-08]


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'' or ``FEC'') is 
issuing a Policy Statement to explain generally the ways by which the 
Commission intends to address Matters Under Review (``Matters'' or 
``MURs'') at the initial stage of enforcement proceedings. This Policy 
Statement supersedes the Commission's prior Statement of Policy 
Regarding Commission Action in Matters at the Initial Stage in the 
Enforcement Process, published on Mar. 16, 2007. Under this Statement 
of Policy, the Commission generally will either dismiss a Matter or 
find ``reason to believe'' concerning an alleged violation.

DATES: The effective date of this Statement of Policy is April 19, 
2024.

FOR FURTHER INFORMATION CONTACT: Aaron Rabinowitz, Assistant General 
Counsel, Enforcement Division, 1050 First Street NE, Washington, DC 
20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: This Statement of Policy supersedes the 
Commission's prior Statement of Policy Regarding Commission Action in 
Matters at the Initial Stage of Enforcement. 72 FR 12545 (Mar. 16, 
2007) (``Initial Stage Policy'').
    The Federal Election Campaign Act of 1971, as amended, 52 U.S.C. 
30101-30145. (``FECA'' or ``Act''), vests the Commission with 
``exclusive jurisdiction with respect to civil enforcement'' of the Act 
and 26 U.S.C. chapters 95 and 96. 52 U.S.C. 30107[euro]. Enforcement 
Matters come to the Commission through complaints from the public; 
information ascertained in the ordinary course of the Commission's

[[Page 19730]]

supervisory responsibilities, including referrals from the Commission's 
Reports Analysis and Audit Divisions; referrals from other government 
agencies; and self-reported submissions.
    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. 52 U.S.C. 30109(a)(2); see also 11 CFR 
111.10(f). ``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.
    The Act also provides that the Commission may ``vote to dismiss'' a 
complaint. 52 U.S.C. 30109(a)(1)-(2), (8). At the initial stage of the 
enforcement process, voting to find reason to believe, or to dismiss, 
are the only actions contemplated by FECA. The Commission, however, in 
both public guidance and agency practice, has adopted at least seven 
possible options by which the Commission has resolved Matters: it may 
find reason to believe, find no reason to believe, dismiss the 
allegation, dismiss pursuant to prosecutorial discretion, dismiss with 
admonishment, dismiss with the issuance of a cautionary letter, or 
simply close the file without further action. See, e.g., Initial Stage 
Policy at 12545-12546. Although these differences were initiated with 
the intent of making the Commission's actions more understandable to 
the public, they have instead fostered confusion and imposed 
unnecessary administrative costs on the Commission's work.
    Accordingly, the Commission is issuing this policy to apprise 
complainants, respondents, and the public of its decision to simplify 
voting options at the initial 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'' or (2) dismiss.

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. 
52 U.S.C. 30109(a)(2). The Commission will find ``reason to believe'' 
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.

B. ``Vote To Dismiss''

    The Act also provides that the Commission may ``vote to dismiss'' a 
MUR, either before or after respondents are notified. 52 U.S.C. 
30109(a)(1).
    The Commission's rationale for voting to dismiss may vary from case 
to case. It may be exercising its prosecutorial discretion under 
Heckler v. Chaney, 470 U.S. 821 (1985) to dismiss Matters that do not 
merit the additional expenditure of Commission resources. 
Alternatively, the Commission may dismiss because the complaint, any 
response filed by the respondent, and other available information, when 
taken together, fail to give rise to a reasonable inference that a 
violation has occurred.
    Examples where a dismissal would be appropriate include, but are 
not limited to, situations where:
     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 that is either not 
credible or is so vague that an investigation would be effectively 
impossible;
     A complaint fails to describe a violation of the Act;
     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;
     The available information is sufficient to support a 
``reason to believe'' finding, but the violation is minor;
     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.
    When the Commission votes to dismiss, a Statement of Reasons, a 
Factual and Legal Analysis, or a General Counsel's Report may provide 
further explanation of the Commission's conclusions.

C. Conclusion

    This policy enunciates and describes the Commission's standards for 
actions at the point of determining whether 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 14, 2024.

    On behalf of the Commission,
Sean J. Cooksey,
Chairman, Federal Election Commission.
[FR Doc. 2024-05830 Filed 3-19-24; 8:45 am]
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