The Commission has approved a new agency procedure to formalize certain agency practices in the enforcement process. See 2 U.S.C. § 437g(a); 11 CFR 111.16.
Under the Federal Election Campaign Act (the Act) and Commission regulations, the Office of General Counsel (OGC) is required to make a written recommendation to the Commission about whether to find probable cause to believe that a violation has occurred or is about to occur. 2 U.S.C. § 437g(a)(3); 11 CFR 111.16(a). The OGC recommendation is supported by a Probable Cause Brief, which is provided to each respondent. 11 CFR 111.16(b). The respondent then may file a Reply Brief within 15 days of receiving OGC’s Probable Cause Brief, and may request a Probable Cause Hearing before the Commission. See 11 CFR 111.16. After reviewing the respondent’s brief, OGC must advise the Commission in writing as to whether it intends to proceed with its recommendation or to withdraw the recommendation from Commission consideration. 11 CFR 111.16(d).
However, the Act and Commission regulations do not address whether OGC must provide a copy of the written recommendation, or OGC Notice, to the respondent; what information the OGC Notice may contain; and whether the respondent should have an opportunity to reply to the OGC Notice.
Under the new agency procedures, the OGC Notice provided to the Commission will be provided to the respondent at the same time. The OGC Notice may include information that replies to, or argues facts or law in response to, the respondent’s Reply Brief, or that arises out of a Probable Cause Hearing. If the OGC Notice contains new facts or new legal arguments raised by OGC and not contained in the Probable Cause Brief, or raised at a Probable Cause Hearing, the respondent may submit a written request to address the new points raised by OGC within five business days of the respondent’s receipt of the OGC Notice.
Within five business days of receipt of a written request from a respondent, the Commission may, by four affirmative votes, allow the respondent to address in writing the new points raised by the OGC Notice and will provide the respondent with a date by which the Supplemental Reply Brief must be filed. Any request that is not approved by the Commission within five business days of the Commission’s receipt of the request shall be deemed denied without further action by the Commission.
The new procedure takes effect October 28, 2011. The complete notice of this procedure was published in the October 13, 2011, Federal Register (76 FR 63570).