FEDERAL ELECTION COMMISSION 

WASHINGTON, D C 20463 SEHSITIVE

BEFORE THE FEDERAL ELECTION COMMISSION 

In the Matter of 1

1 ADR 264/RAD Referral 05L-23 

Brady for Congress and 

W. R. Eissler, Treasurer 

1 

1 

In the Matter of 1

1 ADR 293/RAD Referral 05L-43 

Thelma Drake for Congress and 

Robert J. Catron, Treasurer 

1 

1 

STATEMENT OF REASONS OF CHAIRMAN MICHAEL E. TONER, 

VICE CHAIIkMAN DANNY L. McDONALD AND COMMISSIONERS 

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”) Ofice, 

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 confusing 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 further 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. Incontrast 

to the Commission’s statutory enforcement process, 2 U.S.C. 6 437g, not even a preliminary 

I 

I 
Statement of Reasons -ADR 264 and ADR 293 

Page 2 of 4 

“reason to believe” (“RTB”) finding, id. 0 (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 useful in ADR agreements, because, by the terms of 

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

11. BEST EFFORTS 

co 

fib, Because the Brady and Drake committees apparently used “best efforts” to obtain, 4Y) . fir) -- - maintain and submit contributor information, the Commission voted unanimously. to dismiss 

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

(c ’il unanimously to reject the proposed settlement agreements with Respondents because of the 

$3 language in the proposed agreements that may have caused confbsion about what ADR and “best 41)

4 efforts” entail. 

a0 

l%J 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. 05 434@)(3)(A), 

431(13)(A), cited in Republican Nat ‘I Comm.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. 6 432(i); see also 1 1 C.F.R. 6 104.7; 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.com/ao/no/960025.html (visited Dec. 14,2005). 
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Statement 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; cJ: United States v. Hsia, 176 F.3d 517, 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-harbodaffinnative-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. 

$0 434(b)(3)(A), 431(13)(A), cited in RNC, 76 F.3d at 403, and committees unable to obtain 

contributor infomation may assert the “best efforts” safe harbor/affinnative defense. See MC, 

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

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

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

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

proof is on the party asserting the affirmative defense. See Smith v. Sac Couhty, 78 U.S; 139, 

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. Kloess, 25 1 F.3d 94 1,944 (1 lth Cir. 

2001); cj: Hsia, 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 harborlaffirmative 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 FECA’s 

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

’The RNC 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 contnbutions, did not volunteer all the information that FECA requires comttees to disclose. See 

1 1 C F.R 6 104 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, occupabon and 

name of employer for each individual” contributing more than $200 a year -ISinaccurate and rmsleading. The statute 

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

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

in B general sense. See 2 U S.C. 90 434(b)(3), 43 1(13), cited m RNC,76 F.3d at 403. Rather, this means that it was misleading 

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

information about contnbutors. See RNC,76 F.3d at 406. 
e 

Statement of Reasons -ADR 264 and ADR 293 

Page 4 of 4 

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

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

Respondents who do not provide information 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 

?udm/Ir?ddav,,/ 

M. Mason 

m 

Scott E. Thomas 

Commissioner 

Ellen L. Weintraub 

Commissioner 

\