The Commission has issued a new agency procedure to provide notification to respondents of enforcement proceedings based on information ascertained by the Commission in the normal course of carrying out its supervisory responsibilities (i.e., non-complaint generated matters). See 2 U.S.C. §437g.
Under the Federal Election Campaign Act (the Act), in matters generated by complaints, the Commission may take no action other than to dismiss the complaint until respondents have at least 15 days after notification of the complaint’s allegations to answer those allegations. See 2 U.S.C. §437g(a)(1). However, the statute does not provide respondents the same opportunity to answer allegations in non-complaint generated matters.
This agency procedure is intended to provide respondents in non-complaint generated enforcement matters with notice of the basis of the allegations and an opportunity to respond. Regarding matters arising from a referral from the Commission’s Reports Analysis Division or Audit Division (internal referrals), respondents will be notified of the referral within five days of receipt of the referral by the FEC’s Office of General Counsel (OGC). The notice will contain a copy of the referral document and a cover letter setting forth the basis of the referral and potential violations of the Act and/or Commission regulations that arise based upon the referral. The respondent will then be given an opportunity to demonstrate that no action should be taken based on the referral, by submitting, within 15 days from receipt of the referral document and cover letter, a written explanation of why the Commission should take no action. The Commission will not take any action, or make any reason-to-believe (RTB) finding against a respondent based on an internal referral, unless it has considered such response or unless no such response has been served upon the Commission within 15 days.
Under current Commission practice, non-complaint generated matters based on referrals from the U.S. Department of Justice or any other law enforcement or governmental agency (external referrals) are also deemed to be matters based on information ascertained in the normal course of carrying out its supervisory responsibilities. Under the new procedures, if OGC intends to initiate an enforcement proceeding based on an external referral, notice of the referral will be provided to respondents in the same manner as an internal referral. However, where immediate notification to a respondent of an external referral is deemed inappropriate, OGC will notify the Commission of the referral within 5 days of receipt of the referral from the governmental agency. In cases where, due to law enforcement purposes, the referral document may not be provided to a respondent, OGC will provide the respondent with a letter containing sufficient information regarding the facts and allegations to afford the respondent an opportunity to demonstrate that no action should be taken. Absent exercise of the Commission’s discretion (by the affirmative vote of four Commissioners), OGC will not proceed with an enforcement proceeding based on an external referral until the referral or substitute informational letter is provided to the respondent.
The new procedure took effect August 4, 2009. The complete notice of this procedure was published in the August 4, 2009, Federal Register (74 FR 38617).