Best efforts defense replaces the extraordinary circumstances defense

On March 22, 2007, the Commission voted to revise its rules to allow committees to use "best efforts" as a defense for challenges in the Administrative Fines Program (AFP). The "best efforts" defense is effective April 30, 2007. Previously, the only acceptable defenses in these cases were the existence of "factual errors" in the Commission's reason-to-believe finding or certain "extraordinary circumstances" set forth in the regulations. To use best efforts as a defense, respondents must demonstrate that they could not file due to reasonably unforeseen circumstances beyond their control, and that they filed the late report within 24 hours after those circumstances ended. 11 CFR 111.35(c) and (d).

Background

The final rules respond to the U.S. District Court for the District of Massachusetts' decision in Lovely v. FEC. (See the May 2004 Record.) That case involved a political committee's challenge to an administrative fine the Commission assessed for late filing. The committee argued that it had made "best efforts" to file the report on time and that this constituted a valid and complete defense against the fine. The court concluded that the statutory language at 432(i) requires the Commission to entertain a "best efforts" defense in the administrative fines context, and that it was unclear from the record in the case whether the Commission had considered the committee's "best efforts" defense. The court remanded the case to the Commission for further proceedings.(1) On remand, the Commission determined that the committee had failed to show best efforts, and left the administrative fine in place.

Historically, the Commission interpreted the "best efforts" defense as applying only outside of the AFP to a treasurer's attempts to obtain, maintain and disclose the name, address, occupation and employer of donors who contribute more than $200 per year. Now, the Commission has decided to adopt the Lovely court's interpretation of 432(i) and to incorporate a "best efforts" defense into the AFP.

In December 2006, the Commission published a Notice of Proposed Rulemaking (NPRM) that set forth proposed rules on the subject. See the January 2007 Record, page 6. The comments received and an audio recording of the March 22 meeting at which the Commission adopted the final rules are available at https://www.fec.gov/updates/march-22-2007-open-meeting/.

Final rules

To address the concerns raised by the Lovely court and to provide greater clarity regarding permissible grounds for challenging a reason to believe finding, the Commission has amended four aspects of its rules governing the AFP. The revised rules:

• Clarify the scope of the factual errors defense;
• Clarify when the Commission determines that no violation has occurred;
• Explain that the Commission's statement of reasons for its final decision in the AFP matter usually consists of the reasons set forth by the Commission's reviewing officer, as adopted by the Commission; and
• Replace the "extraordinary circumstances" defense with a defense for committees that demonstrate that they used their "best efforts" to file reports timely.

To claim best efforts as a defense, committees must demonstrate that they could not file due to reasonably unforeseen circumstances beyond their control, and they must show that they filed the late report within 24 hours after those circumstances ended. Examples of circumstances that will be considered "reasonably unforeseen" and beyond control of a respondent include a failure of Commission computers or Commission-provided software, a widespread disruption of information transmissions over the Internet (not caused by a failure of the Commission's or committee's computers or Internet service providers) and severe weather or other disaster-related incidents. The regulations also list examples of circumstances that will not be considered as qualifying for the "best efforts" defense, including negligence, illness, inexperience, unavailability of committee staff or treasurer, a failure to know filing dates and a failure to use Commission software properly. These examples are not exhaustive, but illustrate the types of situations that are, and are not, reasonably unforeseen and beyond the respondent's control.

The final rule was published in the March 29, 2007, Federal Register (72 FR 14662) and is available on the FEC web site at http://sers.fec.gov/fosers/ and from the FEC Faxline, 202/501-3413.

1) The Lovely case did not involve a challenge to the validity of the administrative fines program rules, and those rules have continued in full force and effect since the district court order. The court stated that the Commission could "refine by regulation what best efforts means in the context of submitting a report." Lovely, 307 F. Supp. 2d at 300.