AGENDA DOCUMENT NO. 09-48 ....·CL\\'L...~J

,:-;rR!\L EL(CT I',. 

'~caMM\SSION

FEDERAL ELECTION COMMISSION SECRETARIM 

Washington, DC 20463 

100Q JUl \5 P 5: 34 

MEMORANDUM AGE N0' AITEt,t 

TO: The Commission For Meeting of: () 1- J~,-o q \ 

FROM: Steven T. Walth\~

Chainnan ~\ SUBMJIl'tD LATE 

DATE: July 15, 2009 

RE: Modification of Agency Procedure for Probable Cause Hearings 

Attached is a proposed modification of agency procedure for probable cause hearings. 

I have asked to place this draft on the agenda for July 16, 2009. 

Attachment 
------ ------

FEDERAL ELECTION COMMISSION 

2 [Notice 2009-XX] 

3 Modification of Agency Procedure for Probable Cause Hearings 

4 AGENCY: 

5 ACTION: 

6 SUMMARY: 

7 

8 

9 DATES: 

10 

11 

12 

13 

FOR FURTHER 

INFORMATION 

CONTACT: 

14 

15 

Federal Election Commission 

Notice of Modification of Agency Procedure 

The Commission is modifying its procedures to provide that the 

Commissioners may ask questions of the General Counsel and the 

Staff Director, and their staff, during probable cause hearings. 

The modified hearing procedures will be in effect immediately upon 

publication in the FEDERAL REGISTER. 

, Assistant General Counsel, or

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

or (800) 424-9530. 

16 SUPPLEMENTARY INFORMATION: The Federal Election Commission is modifying its 

17 procedures to provide that Commissioners may ask questions ofthe General Counsel and the 

18 Staff Director, and their staff, during probable cause hearings. 

19 I. Background 

120 On October 25,2007, the Commission adopted an agency procedure that made 

I

121 permanent a program that allows respondent in enforcement proceedings under the Federal 

Election Campaign Act ("FECA"), to have a hearing before the Commission prior to the 

f: Commission's consideration of the General Counsel's recommendation on whether to find 

14 probable cause to believe that a violation has occurred. See Procedural Rules for Probable Cause 
Hearings, 72 FR 64919 (Nov. 19, 2007) ("PC Hearing Procedures"). In PC Hearing Procedures, 

2 the Commission indicated that during probable cause hearings, "[r]espondents (or their counsel) 

3 will have the opportunity to present their arguments, and Commissioners, the General Counsel, 

4 and the Staff Director will have the opportunity to pose questions to the respondent, or 

5 respondent's counsel, if represented." PC Hearing Procedures at 64920. The PC Hearing 

6 Procedures did not specifically address whether Commissioners could pose questions to the 

7 General Counsel and the Staff Director during probable cause hearings. 

8 On June 25,2009, based in part upon its experience with the probable cause hearing 

9 program, the Commission adopted a new agency procedure providing committees that are 

10 audited by the Commission, pursuant to the FECA, with the opportunity to have a hearing before 

11 the Commission prior to the Commission's adoption of a Final Audit Report. See Procedural 

12 Rules for Audit Hearings, 74 FR 33140 (July 10,2009) ("Audit Hearing Procedures"). In Audit 

13 Hearing Procedures, the Commission indicated that during audit hearings, "Commissioners will 

14 have the opportunity to pose questions to the audited committee, and Commissioners may ask 

15 questions designed to elicit clarification from the Office of General Counselor Office of the 

16 Staff Director." Audit Hearing Procedures at 33142. 

17 II. Modification of Agency Procedures for Probable Cause Hearings 

18 Consistent with the recently adopted agency procedures for audit hearings, the 

19 Commission is modifying its procedures for probable cause hearings to specifically provide that 

20 Commissioners may ask questions during probable cause hearings designed to elicit clarification 

21 from the Office of General Counselor Office of the Staff Director. The Commission is not 

22 making any other changes to its procedures for probable cause hearings. 

23 

2 
III. Conclusion 

2 This notice modifies an agency practice or procedure. This notice does not constitute an 

3 agency regulation requiring notice of proposed rulemaking, opportunities for public comment, 

4 prior publication, and delay effective under 5 U.S.c. § 553 ofthe Administrative Procedures Act 

5 ("APA"). The provisions of the Regulatory Flexibility Act, 5 U.S.c. § 605(b), which apply 

6 when notice and comment are required by the APA or another statute, are not applicable. 

7 

8 On behalf ofthe Commission, 

9 

10 

11 

12 

13 

14 

15 

16 

17 

DATED: 

BILLING CODE: 6715-01-P 

_ 

Steven T. Walther 

Chairman 

Federal Election Commission 

3