On November 2, 2023, the Commission approved a directive which sets forth how the Office of General Counsel (OGC) conducts investigations following a reason-to-believe (RTB) finding in an enforcement matter.
Upon recommending RTB, OGC must either recommend pre-probable cause conciliation or a post-RTB investigation. When OGC recommends an investigation, the First General Counsel’s Report will include a proposed course of that investigation. Following the receipt of the response from the subjects of the finding (respondents), within two weeks, OGC will submit a complete investigative plan, which must be approved by a vote of four or more Commissioners to proceed. The investigative plan will contain, at a minimum:
- An overview of the investigation;
- Information sought by OGC;
- The length of time OGC believes the investigation will require;
- Each identified respondent subject to the investigation;
- Each witness, category of witnesses and category of documents to be consulted; and
- The proposed discovery methods OGC plans to use during the investigation.
Once an investigative plan has been approved, OGC will provide updates to the Commission throughout the investigative progress on either a monthly or quarterly basis, depending on the estimated length of the investigation. As the investigation proceeds and new information is discovered, OGC may need to revise or expand upon what the Commission authorized. If so, OGC will submit a revised investigative plan for Commissioners to approve by 48-hour no objection ballot, except in exigent circumstances where OGC determines that a shorter timeframe for the ballot is necessary.
The directive states that all compulsory processes will be conducted by subpoena or order, each request for which will be circulated for Commission approval on a 48-hour no-objection ballot. Upon approval of a subpoena, OGC will provide the intended recipient with written notice that the Commission has authorized the issuance of a subpoena or order. This notice will inform the recipients that they have two weeks to voluntarily agree to either appear or to provide the requested information voluntarily, and that OGC may proceed with issuing the subpoena or order following the two-week period. In the relevant 48-hour no objection ballot or by approval of four or more affirmative votes at an executive session, upon OGC’s recommendation, the Commission may waive the requirement for a two-week waiting period prior to delivery of a subpoena or order to a recipient.
All investigative plans created under this directive, including the initial plan attached to the First General Counsel's Report, further plans expanding the scope of the investigation and their accompanying memos, and the status reports relating to the investigations, will not be included the public file upon the conclusion of the enforcement matter, unless there are four affirmative votes of the Commission to do otherwise. These investigative plans will not be considered "supplements" under the FEC's disclosure policy. The new directive will remain in force until June 30, 2025, subject to renewal by the Commission.