Procedural rules for probable cause hearings
On October 25, 2007, the Commission made permanent the pilot program under which respondents in enforcement matters may request a hearing before the Commission considers whether there is probable cause to believe that they violated the Federal Election Campaign Act or the Commission's implementing regulations. The pilot program was initiated on February 16, 2007, for an eight-month trial period. The Commission found that the program was successful, and thus the Commission has now made the program a permanent part of the agency's procedural rules.
Under the permanent rule, any respondent who receives a General Counsel's Brief in the “probable cause to believe” stage of the enforcement process may submit a request for a hearing to the Commission with his or her reply brief. The request should state why the respondent is requesting the hearing and what issues the respondent expects to address. The request for a hearing is optional, and the respondent's decision as to whether to request a hearing will not influence the Commission's decision regarding a probable cause finding.
Within 30 days of receiving the brief, the Commission will notify the respondent whether the Commission has granted the hearing request. The Commission will grant a request for an oral hearing if any two Commissioners conclude that a hearing would help resolve significant legal issues or significant questions about the application of the law to the facts. At the hearing, the respondent, or the respondent's counsel, may directly present his or her arguments to the Commission, and be subject to questions from the Commissioners, General Counsel and Staff Director. Hearings are confidential and closed to the public.
The hearing's format and length are within the Commission's discretion. Third-party witnesses may not testify. Transcripts of the hearings will be recorded and will be available to the respondent as soon as practicable after the hearing. The transcripts will be made public in accordance with the agency's policies on disclosure.
More information about this program was published in the Federal Register on November 19, 2007 (72 FR, 64919), and is available on the Commission's website at http://transition.fec.gov/law/cfr/ej_compilation/2007/notice_2007-21.pdf.