Commission adopts procedural rules for advisory opinions
The Commission has established a pilot program allowing persons requesting advisory opinions, or their counsel, to answer questions at an open meeting of the Commission where the draft advisory opinion is considered. The new program took effect on July 7, 2009. 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.
On January 14-15, 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. 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 public comments, 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.
Current advisory opinion procedures
At present, any person may request an advisory opinion concerning the application of the Federal Election Campaign Act (the Act) or Commission regulations to a specific transaction or activity by the person. Requestors or their counsel must submit their request in writing. The Commission, in turn, must issue an advisory opinion within 60 days of receiving a complete advisory opinion request. 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. At times, the Commission expedites certain highly significant, time-sensitive requests and issues these advisory opinions within 30 days. Advisory opinions are issued if approved by at least four Commissioners.
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 website as soon as it becomes complete. 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.
Notice of intent and open meeting procedures
Under this new program, requestors wishing to appear before the Commission must submit a written notice of intent 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 that an 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.
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 cannot 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.
Under the procedures established by the Commission, requestors are limited to answering Commissioners' questions. 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.
Under the new procedures, 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, 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. This timetable is in addition to the existing 10-day deadline for accepting written public comments following the date the advisory opinion request is made public.
Also, the Commission has decided to expand the 20-day expedited process provided for certain advisory opinions. This expedited procedure is currently limited to any candidate or candidate's authorized committee that:
- Submits a request within 60 calendar days preceding the date of an election for federal office;
- Presents a specific transaction or activity related to the election; and
- Explains in the request the electoral connection.
In order to be more inclusive, the Commission 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. 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.
After one calendar year, 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.
The full text of the Commission action is available at https://transition.fec.gov/law/policy/enforcement/publichearing011409.shtml.