FEDERAL ELECTION COMMISSION 

WASHINGTON, D C 20463 

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of 

Brady for Congress and 

W. R. Eissler, Treasurer 

In the Matter of 

Thelma Drake for Congress and 

Robert J. Catron, Treasurer 

1

1 ADR 264/RAD Referral 05L-23 

)

1 I 

1

1 ADR 293/RAD Referral 05L-43 

1 

1 

vIc-~ STATEMENT -c-~~-~AN OF REASONS D~NY-Le OF -Mc-D0N--D- CHAIRMAN -A-NDMICHAEL ~C~o~MM-IssIoNERs- E. TONER, - - - _-

DAVID M. MASON, SCOTT E. THOMAS AND ELLEN L. WEINTRAUB 

Two campaign committees, the Brady for Congress and Thelma Drake for Congress 

committees, were referred to the Commission’s Alternative Dispute Resolution (“ADR”) Office, 

because they had not responded to Reports Analysis Division (“RAD”) inquiries noting that 

occupation and employer information for a substantial number of their individual contributors 

was missing. 

I. THE ADR PROCESS , 

In the course of the ADR process, both committees produced evidence to demonstrate 

that they had complied with the “best efforts” provision of the Federal Election Campaign Act 

(“FECA”), 2 U.S.C. 5 43 1 et seq., and Commission regulations to obtain, maintain and submit 

this information. Id. 5 432(i); 11 C.F.R. 5 104.7. 

The Commission, however, rejected the proposed ADR settlement agreements because 

both agreements contained identical language that could be confbsing as to the Commission’s 

ADR process and the “best efforts” requirements. The agreements suggested the Commission 

prematurely had found a violation of law, and Wher indicated that it would be inappropriate for 

the Commission to make even a preliminary finding where, as here, the committees had failed to 

make “best efforts” showing to RAD. 

The Commission’s ADR process is not initiated based on a conclusion, or even a 

preliminary judgment, that someone has violated the law or Commission regulations. In contrast 

to the Commission’s statutory enforcement process, 2 U.S.C. 5 437g, not even a preliminary 
i -

e 

‘VI 

,“ir 

tn 

!Olfl 

’90 

, 

c$l 

cn 

‘4 

CW 

f\l 

Statement of Reasons -ADR 264 and ADR 293 

Page 2 of 4 

“reason to believe” (“RTB”) finding, id. 5 (a)(2), is made before initiating the ADR process. 

Rather, the ADR process begins after a complaint or an internal Commission review shows 

evidence that someone may have violated the law or Commission regulations, and the matter is 

deemed appropriate for ADR. 

During the ADR process, the parties may agree that a violation did occur, they may 

conclude that one did not occur, or they may settle the matter without any definitive conclusion 

or acknowledgement that a law or regulation was violated. The Commission itself makes no 

determination of whether violations occurred. 

Thus, arguments in the ADR process or statements in ADR agreements about the 

appropriateness of Commission findings or conclusions are simply misplaced. Moreover, 

statements interpreting the law (other than straightforward explanations of black-letter law or 

clearly settled guidance) generally are not usefbl in ADR agreements, because, by the terms of 

the ADR program, ADR agreements cannot be cited as precedent. 

11. BEST EFFORTS 

Because the Brady and Drake committees apparently used “best efforts” to obtain, .- . - --rnainta.in-andsubmit-sontnbutor-information,--the- Gommission-voted-unanimously-to dismiss 

these matters, close the files and send the appropriate letters. The Commission also voted 

unanimously to reject the proposed settlement agreements with Respondents because of the 

language in the proposed agreements that may have caused confusion about what ADR and “best 

efforts” entail. 

FECA requires that political committees report the occupations and employers of 

individuals who contribute more than $200 in a calendar year. See 2 U.S.C.$5 434(b)(3)(A), 

43 1(13)(A), cited in Republican Nat ’1 Comrn. v. FEC, 76 F.3d 400,403 (D.C. Cir. 1996) 

(“RNC’),cert. denied, 519 U. S. 1055 (1997); cJ:RNC,76 F.3d at 403 (holding that neither 

FECA nor any other law requires that contributors disclose this information). FECA then 

provides: ’ 

When the treasurer of a political committee shows that best efforts have been used to 

obtain, maintain, and submit the information required by this Act for the political 

committee, any report or any records of such committee shall be considered in 

compliance with this Act or chapter 95 or chapter 96 of Title 26. 

Id. 5 432(i); see also 11 C.F.R. $ 104.7; see generally RNC, 76 F.3d at 403-04; Lovely v. FEC, 

307 F. Supp.2d 294,299 (D. Mass. 2004). 

The “best efforts” provision “is designed to ‘promote the very gathering of information 

that Buckley [v. Valeo, 424 U.S. 1 (1976),] found to be in the public interest.”’ Advisory Op. 

1996-25, 1996 WL 536547, at *2 (Fed. Election Comm’n Sept. 12, 1996) (quoting RNC, 76 F.3d 

at 408), available at http://ao.nictusa~co1n/ao/no/960025 .html (visited Dec. 14,2005). 

I 
Statemknt of Reasons -ADR 264 and ADR 293 

Page 3 of 4 

As the RNC court held, the provision “essentially offers an optional safe harbor or 

affirmative defense for political committees unable to secure the identifying information ... .” . 

76 F.3d at 409; cf United States v. Hsza, 176 F.3d 5 17, 524‘(D.C. Cir. 1999), cert. denied, 528 

U.S. 1136 (2000).’ It “requires committees to use their best efforts to gather the information and 

then report to the Commission whatever information [contributors] choose to provide.” RNC, 76 

F.3d at 406.2 

The RNC court also held, in the same paragraph as the safe-harbor/affirmative-defense 

holding, that “the ‘best efforts’ regulation does not compel political committees to do anything, 

and there is no penalty for violation of the ‘best efforts’ regulation.” 76 F.3d at 409. This is 

accurate in the sense that FECA requires disclosure of, for example, the occupations and 

employers of individuals who contribute more than $200 in a calendar year, see 2 U.S.C. 

$9 434(b)(3)(A), 431(13)(A), cited zn RNC,76 F.3d at 403, and committees unable to obtain 

contributor information may assert the “best efforts” safe harborlaffirmative defense. See RNC, 

76 F.3d at 409 (noting that the safe harbodaffirmative defense is “optional”). While there is no 

penalty for not asserting a safe harbodaffirmative defense, there may be a penalty for not 

disclosing information about contributions. See generaZZy 2 U.S.C. 0 437g(a)(5)-(6). 

With this in mind, those asserting an affirmative defense should recall that the burden of 

--proof-is on the -part-y-asserting the-affimative.defense;--See -Smzth--v.- SacGounty;-78-US;-1-39; - - ---. 

147 (1870) (holding that “a defendant is bound to prove all the facts necessary to constitute a 

defence”). The same is true of a safe harbor when it functions as an affirmative defense rather 

than as an element of the offense. See United States v. KZoess, 25 1 F.3d 94 1 ,944 (11 th Cir. 

2001); cf Hsza, 176 F.3d at 524 (calling the “best efforts” provision a “safe harbor,” and 

contrasting the provision of an affirmative defense with the modification of FECA’s substantive 

reporting requirements). Thus, the burden is on respondents to prove “best efforts.” See 2 

U.S.C. 432(i). This safe harbodaffirmative defense applies when “the treasurer of a political 

committee shows that best efforts have been used ....” Id. It is not up to the Commission to 

prove that respondents have not used “best efforts.” See id. 

Because the burden of proving “best efforts” is on respondents, they should demonstrate 

“best efforts” as soon as the Commission inquires about missing contributor information. Thus, 

‘The effect of this provision, which Congress passed after Buckley, see generally RNC, 76 F 3d at 403, is to make FECA3 

disclosure requirements “less stringent than the absolute disclosure requirements upheld in Buckley ” Id at 409. 

2TheRNC court made this point in striking down a former Commission regulation The regulation required that political 

committees include a particular statement when soliciting contributions in writing, and when following up with particular 

contributors who, in making contributions, did not volunteer all the information that FECA requires committees to disclose See 

1 1 C F R 0 104.7(b)(1)-(2) (1 993), quoted in RNC, 76 F.3d at 404 The court held that the 

required language -that “federal law requires political committees to report the name, mailing address, occupation and 

name of employer for each individual” contributing more than $200 a year -is inaccurate and misleading The statute 

does not require political committees to report the information for “each” donor. 

RNC,76 F 3d at 406 (brackets omitted) This does not mean that political committees are not required to report the information 

in a general sense See 2 U S C $0 434(b)(3), 43 1(13), cited m RNC,76 F 3d at 403. Rather, this means that it was msleading 

to require political committees to tell contributors, without mentioning “best efforts,” that committees must report particular 

information about contributors See RNC, 76 F 3d at 406 
statem.int of Reasons -ADR 264 and ADR 293 

Page 4 of 4 

for example, when RAD analysts inquire about missing contributor information, committees 

either should provide that information or explain their “best efforts” to obtain the information. 

Respondents who do not provide infomation at this stage potentially subject themselves to 

enforcement actions, including findings of reason to believe, and even probable cause to believe, 

that a violation of FECA has occurred. See 2 U.S.C. 5 437g(a)(2)-(4). 

January 5,2006 

Michael E. Toner Danny L. Mcbonald 

Chairman Vice Chairman 

David 

2wdmflw& 

M. Mason 

m 

Scott E. Thomas 

-.- --Commissioner - .-- Commissioner 

Ellen L. Weintraub 

Commissioner