FEC Seeks Comment on Reform Proposals

WASHINGTON -- The Federal Election Commission (FEC/ the Commission) met in open session on Thursday, November 30, 2006, and unanimously approved three draft policy statements and a proposed change to its regulations aimed at improving the transparency of FEC enforcement proceedings, increasing compliance with the law,  and enhancing the opportunities for respondents to provide the Commission with relevant information during enforcement proceedings. 

“All of the current commissioners and FEC staff have been working intensely to improve the Commission’s enforcement process,” said Michael Toner, Chairman of the Commission.  “These bipartisan proposals reflect our willingness to change the Commission’s procedures to be as effective and efficient as possible in enforcing the law,” said Robert Lenhard, Vice Chairman of the Commission.

The issues addressed in the proposals that will now be posted for public comment include an opportunity for probable cause hearings, Commission handling  of self-reported violations, and treasurer’s best efforts to obtain and report information required by the law.  The Commission has made no final decisions regarding these matters and seeks comments on each proposal.

Probable Cause Hearings

The first proposed policy statement would establish an eight month, renewable pilot program that offers probable cause hearings to respondents in enforcement actions.  A hearing would take place only if requested by the respondent(s) and granted by two or more Commissioners.  The program would provide respondents with the opportunity to present oral arguments directly to the Commission and enable the Commission to ask relevant questions before it votes on whether there is probable cause to believe the law had been violated. 

Self-Reported Violations

Commission enforcement cases stem from four sources:  the agency’s monitoring process,  complaints, referrals from other agencies and self-reported violations.  Typically, self-reported matters should be resolved more quickly and on more favorable terms than matters arising by other means.  The second proposed policy statement:

• clarifies the FEC’s policies and procedures regarding self-reported violations of the Act and Commission regulations; and
• announces the availability of a new Fast Track Resolution procedure that will be available under certain conditions.

 The Commission seeks to provide appropriate incentives for respondents to cooperate and assume responsibility for their actions.  As a result, the proposal outlines the criteria the FEC will use when considering whether to reduce the civil penalty that the Commission seeks from a respondent. 

Best Efforts

According to the Act, when the treasurer of a political committee demonstrates that best efforts were used to obtain, maintain and submit information to the Commission,    the committee shall be considered to have complied with Federal law.  In the past, the Commission has considered this section to apply only to a treasurer’s efforts to obtain information regarding the identification of contributors.  The draft policy statement notes that the Commission intends to apply the best efforts standard to all matters involving information and reports that must be obtained, maintained and submitted by the treasurers of political committees. 

The Commission also approved a notice of proposed rulemaking that applies the best efforts defense to the administrative fine program.  Current FEC regulations allow a respondent to challenge an administrative fine on several grounds, including:  factual errors, improper penalty calculation and extraordinary circumstances.  The proposed regulations would clarify the “factual errors” defense and replace extraordinary circumstances with best efforts as a defense for challenging an administrative fine. 

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