Consideration of legal questions by the Commission (2011)
On July 21, 2011, the Commission made permanent a program established in 2010 to provide a means for early review of legal questions arising during the report review and audit processes. See 76 Fed. Reg. 45798 (August 1, 2011). The now-permanent program became effective on August 1, 2011.
Procedures
Under this 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 business days of a Reports Analysis Division or Audit Division determination that the persons or entities are obligated to take the corrective action.
Requests for consideration of legal questions during the report review or audit processes are limited to questions of law on material issues. 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; or
- The request to take corrective action 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, why it is subject to Commission consideration, 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. Upon receipt, the Commission Secretary will forward a copy of the request to each Commissioner, the General Counsel and the Staff Director.
Any request for an extension of time to file will be considered on a case-by-case basis and will only be granted if good cause is shown, and the Commission approves the extension request by four affirmative votes within five business days of the extension request. Within five business days of notification to the Commissioners, if two or more Commissioners agree that the Commission shall consider the issue, the Office of General Counsel (OGC) will prepare a recommendation. Within 15 business days, OGC shall circulate that recommendation for Commission action.
In the event of an objection by any Commissioner, the matter shall be automatically placed on the next meeting agenda. If, within 60 business 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 (the OC, which includes the Reports Analysis Division and the Audit Division) may proceed with the matter. After 60 business days, the Commission will provide any requestor a copy of OGC’s recommendation and either an accompanying vote certification or a cover page stating the disposition of the recommendation.
After the report review or audit process has concluded, a copy of the request for consideration, as well as the recommendation memorandum and accompanying vote certification or disposition memorandum, will be placed on the public record within 30 days.
This program does not circumvent or supplement the Advisory Opinion process. Legal questions that qualify for consideration as an Advisory Opinion are not appropriate under these procedures. Further, this program does not supersede the procedures for eligibility and entitlement to public funds.
Annual review
By July 1 of each year, the OC and OGC will jointly prepare and distribute to the Commission a written report that summarizes the requests made under the program during the previous year, as well as the Commission’s consideration of those requests and resulting actions taken. This report will also include an assessment by those offices of whether, and to what extent, the program has promoted efficiency and fairness in the report review and audit processes. In addition, the report will include the OC and OGC’s recommendations, if any, for modifications to the program.
Finally, the Commission may terminate or modify this program through additional policy statements at any time upon an affirmative vote of four of its members.
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