AGENDA DOCUMENT NO. 11-~
 

FEDERAL ELECfION COMMISSION :011 JUl 2I	 A 1: I2 

Washington, DC 20463 

AGENDA ITEM 

For Meeting of 7-cl /-1/ 

MEMORANDUM 

TO: The Commission SUBMITTED LATE 

FROM: Steven T. Wal'~~
 

Commissioner r)JY
 

DATE:	 July 21,2011 

SUBJECf:	 Policy Statement Regarding a Program for Requesting Consideration of 

Legal Questions by the Commission 

I request that the attached draft Policy Statement Regarding a Program for Requesting 

Consideration ofLegal Questions by the Commission be placed on the agenda for today's 

Open Session. 

Attachment 
FEDERAL ELECTION COMMISSION 

[NOTICE 201 I-XX] 

Policy Statement Regarding a Program for Requesting Consideration of Legal
 

Questions by the Commission
 

AGENCY: Federal Election Commission 

ACTION: Agency Polley Statement 

SUMMARY: The Federal Election Commission ("Commission") is adopting a 

program providing for a means by which persons and entities may have 

a legal question considered by the Commission earlier in both the 

report review process and the audit process. 

DATES: Effective [upon publication in the Federal Register]. 

FOR FURTHER 

INFORMATION 

CONTACT: ______, Assistant General Counsel, or _ 

Attorney, 999 E Street, NW, Washington, DC 20463, (202) 694-1650 

or (800) 424-9530. 

SUPPLEMENTARY 

INFORMATION: 

The Commission is adopting a program providing for a means by which persons and 

entities may have a legal question considered by the Commission earlier in both the 

report review process and the audit process. Specifically, when the Office of 

Compliance ("OC") (which includes the Reports Analysis Division and the Audit 

Division) requests that a person or entity take corrective action during the report 

review or audit process, ifthe person or entity disagrees with the request based upon a 

material dispute on a question oflaw, the person or entity may seek Commission 

consideration ofthe issue pursuant to this procedure. 

I. Procedures 

Within 15 business days of a determination by the Reports Analysis Division or Audit 

Division that a person or entity remains obligated to take corrective action to resolve 

an issue that has arisen during the report review or audit process, the person or entity 
may seek Commission consideration if a material dispute on a question of law exists 

with respect to the recommended corrective action. I A "determination" for purposes 

oftriggering the 15 business days is either: (1) notification to the person or entity of 

legal guidance prepared by the Office of General Counsel ("OGC")at the request of 

the Reports Analysis Division recommending the corrective action; or (2) the end of 

the Committee's Audit Exit Conference response period. 

Any request for consideration by a Committee during the report review process or the 

audit process shall be limited to questions oflaw on material issues, when: (1) the 

legal issue is novel, complex, or pertains to an unsettled question of law, (2) there has 

been intervening legislation, rulemaking, or litigation since the Commission last 

considered the issue, or (3) 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 and why it is subject to 

Commission consideration. It should discuss, when appropriate, prior Commission 

matters raising the same issue, relevant court decisions, and any other analysis of the 

issue that may assist the Commission in its decision-making. The Commission will 

not consider factual disputes under this procedure, and any requests for consideration 

other than on questions of law on material issues will not be granted. 

All requests, including any extension requests, should be directed to the Commission 

Secretary, Federal Election Commission, 999 E Street, NW, Washington, DC 20463, 

and must be received within 15 business days ofthe determination of corrective 

action. Upon receipt of a request, the Commission Secretary shall forward a copy of 

any 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 affinnative votes within five business days of receipt of the 

extension request. Within five business days of notification to the Commissioners of a 

Request for Consideration of a Legal Question, if two or more Commissioners agree 

that the Commission should consider the Request, OGC will prepare a 

recommendation and, within 15 business days thereafter, circulate the 

recommendation in accordance with all applicable Commission directives. 

After the recommendation is circulated for a Commission vote, in the event of an 

objection, the matter shall be automatically placed on the next meeting agenda 

consistent with the Sunshine Act, 5 U.S.C. § 552b(g), and applicable Commission 

regulations, II C.F.R. part 2. However, if within 60 business days of the filing of a 

request for consideration, the Commission has not resolved the issue or provided 

guidance on how to proceed with the matter by the affinnative vote of four or more 

Commissioners, the OC may proceed with the matter. After the 60 business days has 

elapsed, any requestor will be provided a copy ofOGC's recommendation 

memorandum and an accompanying vote certification, or if no such certification 

I Many disputes involving corrective action requests hinge on questions of fact rather than questions oflaw, and 

thus are not appropriate for this procedure. 
exists, a cover page stating the disposition ofthe memoranda. Confidential 

infonnation will be redacted as necessary. 

After the request review process has concluded, or a Final Audit Report has been 

approved, a copy ofthe request for consideration, as well as the recommendation 

memorandum and accompanying vote certification or disposition memorandum, will 

be placed with the Committee's filings or audit documents on the Commission's 

website within 30 days. These materials will also be placed on a Commission 

webpage dedicated to legal questions considered by the Commission under this 

program. 

This procedure is not intended to circumvent or supplant the Advisory Opinion 

process provided under 2 U.S.C. § 437f and 11 C.F.R. part 112. Accordingly, any 

legal issues that qualify for consideration under the Advisory Opinion process are not 

appropriate for consideration under this new procedure. Additionally, this policy 

statement does not supersede the procedures regarding eligibility and entitlement to 

public funds set forth in Commission Directive 24 and 11 C.F.R. 9005.1, 9033.4, 

9033.6 or 9033.10. 

II. Annual Review 

No later than July 1 of each year, the Office ofCompliance and the Office of General 

Counsel shall jointly prepare and distribute to the Commission a written report 

containing a summary of the requests made under the program over the previous year 

and a summary of the Commission's consideration of those requests and any action 

taken thereon. The annual report shall also include the ChiefCompliance Officer's 

and the General Counsel's assessment of whether, and to what extent, the program has 

promoted efficiency and fairness in both the Commission's report review process and 

in the audit process, as well as their recommendations, if any, for modifications to the 

program. 

The Commission may terminate or modify this program through additional policy 

statements at any time by an affinnative vote offour ofits members. 

Cynthia L. Bauerly 

Chair 

Federal Election Commission 

DATED _