Policy statement establishes pilot program for requesting consideration of legal questions

On July 1, 2010, the Commission adopted a pilot program to provide a means for early review of legal questions arising during the report review and audit processes.

Under the pilot program, persons or entities involved in the report review or audit processes that are obligated to take corrective action may request consideration of the corrective action by the Commission if a material dispute on a question of law exists. The persons or entities may seek Commission consideration within 15 days of a Reports Analysis Division or Audit Division determination that the persons or entities are obligated to take corrective action.

The Commission will not consider factual disputes under this procedure, and any requests for consideration, other than material disputes on questions of law, will not be granted. The Commission classifies a matter as a material dispute when:

• The legal issue is novel, complex or pertains to an unsettled question of law;
• There has been intervening legislation, rulemaking or litigation since the Commission last considered the issue;
• The request is contrary to or otherwise inconsistent with prior Commission matters dealing with the same issue.

The request must specify the question of law at issue and why it is subject to Commission consideration. The request may also include a discussion of prior Commission matters raising the same issue, relevant court decisions and any other analysis of the issue that may assist the Commission in decision-making. All requests for Commission consideration of legal questions should be directed to the Commission Secretary, Federal Election Commission, 999 E Street, NW, Washington, DC 20463. [Editor's note: Current address as of March 2018: 1050 First Street, NE, Washington, DC 20463.] The Commission Secretary will forward a copy of the request to each Commissioner, the General Counsel and the Staff Director. Within five business days of notification to the Commissioners, if two or more Commissioners agree that the issue should be considered, the Office of General Counsel (OGC) will prepare a recommendation. OGC will circulate the recommendation for a Commission vote within 15 business days. In the event of an objection by any Commissioner, the matter shall be automatically placed on the next meeting agenda.

If, within 60 days of filing the request for consideration, the Commission cannot resolve the issue or provide guidance on how to proceed by an affirmative vote of four or more Commissioners, the Office of Compliance may proceed with the matter.

This pilot program does not circumvent or supplant the advisory opinion process. Legal questions that qualify for consideration as an advisory opinion are not appropriate for the pilot program. Further, the pilot program does not supersede the procedures for eligibility and entitlement to public funds.

The program took effect on July 20, 2010, and will last for one year, at which point the Commission will vote on whether to continue with the program.

The Federal Register notice describing the program is available on the Commission's website.