On February 14, 2023, the Commission held a public hearing on audit procedures for committees that do not receive public funds. The Commission received six written comments and five witnesses testified at the hearing.
On January 9, 2023, the Commission published a notice of public hearing and request for public comments in the Federal Register (88. Fed. Reg. 1228). When a non-publicly-funded political committee’s disclosure reports indicate it appears not to have met the threshold requirements for substantial compliance with the requirements of the Federal Election Campaign Act (the Act), the Commission may conduct an audit of the committee. The Commission is reexamining its policies and procedures for conducting these audits and asked the regulated community and representatives of the public to provide feedback on the audit process.
In the request for public comments, the Commission particularly sought input from committees that have participated in the audit process, and their counsel, on how the Commission’s audit policies and procedures have facilitated or hindered committees’ productive interaction with the agency and substantial compliance with the Act.
The five witnesses who testified at the hearing were Brian Svoboda and Antoinette Fuoto of Perkins Coie, Erin Tibe of Sandler Reiff, Lorenzo Holloway of the Holloway Law Firm, and Adav Noti of the Campaign Legal Center.
Brian Svoboda led off the panel with opening remarks describing the audit process “from cradle to grave” from a committee’s perspective. He noted that the sequencing of various stages of the process and the short deadlines involved create limitations, especially if audit findings involve legal or factual issues that require additional information to be gathered.
Erin Tibe said she believes that the current audit process provides an appropriate balance between the need to conduct a thorough review of the committee’s activities while providing ample opportunity for an audited committee to provide factual and legal information and responses to the Commission. However, she noted that the current procedures require audited committees to dispute factual and legal issues continuously throughout the audit process. She encouraged the Commission to decide legal issues early in the process to conserve valuable time and resources for both the Commission and the audited committees.
Lorenzo Holloway recommended similar changes. He suggested the Commission move the opportunity to request both legal consideration and an audit hearing to the interim audit report stage so the Commission can gather factual information and hear legal arguments from the committees earlier in the process. This would ensure that the Commission can make the necessary decisions to allow the audit to proceed more efficiently for the remainder of the process.
Adav Noti began his testimony by arguing that changes to the audit process should be geared toward ensuring voters’ statutory right to timely and accurate information regarding the financing of campaigns, rather than improving the experience for committees being audited. He noted his belief that there is no statutory authority for the confidentiality rule that the Commission currently applies to the audit process.
Following the opening remarks, discussion ensued with questions posed of the witnesses by the Commissioners. Much of the discussion focused on timeframes and sequencing of the process by which the Commission considers factual and legal matters raised within the audit process.
The testimony at the hearing, along with the submitted public comments, will help inform the Commission as it considers potential changes to the audit program, including steps to streamline and simplify the process. The Commission last made substantial changes to its audit processes and procedures over a decade ago.