AGENDA DOCUMENT NO. 11-53-A 

FEDERAL ELECTION COMMISSION 

Washington, DC 20463 I: 31 

AGENDA ITEM 

For Meeting of \()-lo-I.L 

MEMORANDUM 

TO: The Commission SUBMITTED LATE 

FROM: Steven T. Walther 

Commissioner 

DATE: October 5, 2011 

SUBJECT:	 Agency Procedure Following the Submission of Probable Cause Briefs by 

the Office of General Counsel 

I request that the attached revised draft Agency Procedure Following the Submission of 

Probable Cause Briefs by the Office of General Counsel be placed on the agenda for the 

October 6, 2011, Open Session. 

Attachment 
REVISED
 

FEDERAL ELECTION COMMISSION
 

11 CFR Part 111
 

[NOTICE 20ll-XXI
 

Agency Procedure Following the Submission 

of Probable Cause Briefs 

By the Office of General Counsel 

AGENCY: Federal Election Commission 

ACTION: Notice of Agency Procedure 

SUMMARY: The Federal Election Commission (Commission) is establishing an 

agency procedure to formalize the agency's practice in the latter 

stages of Probable Cause process in enforcement matters brought 

under the Federal Election Campaign Act of 1971, as amended 

(FECA). 

DATES:	 Effective [15 days from the date of publication in the Federal 

Register]. 

FOR FURTHER 

INFORMATION 

CONTACT:	 Kathleen Guith, Acting Associate General Counsel, or Joshua 

Smith, Attorney, 999 E Street, NW, Washington, DC 20463, (202) 

694-1650 or (800) 424-9530. 

SUPPLEMENTARY 

INFORMATION: 

I. Background. 

The Federal Election Commission (Commission) is establishing an agency 

procedure to formalize the agency's practice in the latter stages of the Probable Cause 

process when, pursuant to 11 CFR 111.16(d) of the Commission's regulations, the Office 

of General Counsel (OGC) advises the Commission in writing as to whether or not it 

intends to proceed with a Probable Cause recommendation. 

In matters that proceed beyond the stage in which the Commission has determined 

there is reason to believe that a violation has occurred or is about to occur, and after the 

completion of any investigation, both the FECA, 2 U.S.C. 437g(a)(3), and the 
Commission's regulations, 11 CFR 111.16(a), require aGC to make a recommendation 

to the Commission on whether or not to find probable cause to believe that a violation has 

occurred or is about to occur. 

When aGC makes its recommendation on whether or not the Commission should 

find probable cause, such recommendation is accompanied by a brief (Probable Cause 

Brief) supporting the recommendation. A copy of the Probable Cause Brief is provided 

to each respondent. 11 CFR 111.16(b). . The Probable Cause Brief must comport with 

the disclosure procedures adopted by the Commission on June 2, 2011. See Agency 

Procedure for Disclosure of Documents and Information in the Enforcement Process, 76 

Fed. Reg. 34986 (Jun. 15,2011). 

ance the Probable Cause Brief is received by a respondent, the respondent has the 

opportunity to file, within 15 days, a brief (Reply Brief) responding to the Probable 

Cause Brief. 11 CFR 111.16(c). Additionally, pursuant to a procedural rule adopted by 

the Commission in 2007, a respondent may, as part of the Reply Brief, request a probable 

cause hearing (Probable Cause Hearing) before the Commission. See Procedural Rules 

for Probable Cause Hearings, 72 Fed. Reg. 64919 (Nov. 19, 2007). The Commission will 

grant a request for a Probable Cause Hearing if any two Commissioners agree that a 

hearing would help resolve significant or novel legal issues, or significant questions 

about the application of the law to the facts. 

Following the filing of the Reply Brief and the Probable Cause Hearing, if there is 

one, aGC must, pursuant to 11 CFR 111.16(d), then advise the Commission, by a written 

notice (aGC Notice), as to whether aGC intends to proceed with its recommendation or 

to withdraw the recommendation from Commission consideration. 

The Commission hereby adopts the following procedures with respect to the 

following issues: (a) whether or not aGC must provide a copy of the aGC Notice to the 

respondent and (b) if the aGC Notice contains any new argument, statement, or facts, or 

contains new replies to all or any of the arguments contained in the Reply Brief, and, if a 

Probable Cause Hearing was conducted, those occurring at the hearing, whether the 

respondent should have an opportunity to reply. 

II.	 Procedure Following the Submission Of Probable Cause Briefs By the Office 

of General Counsel 

1.	 The aGC Notice provided to the Commission by aGC following the 

Reply Brief (or if there was a Probable Cause Hearing, following the 

hearing), see 11 CFR 111.16(d), shall contemporaneously be provided to 

the respondent. 

2.	 The aGC Notice may include information that replies to, or argues facts 

or law in response to, the respondent's Reply Brief, or arising out of the 

Probable Cause Hearing, if any. 

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3.	 If the aGC Notice contains new facts or new legal arguments raised by 

aGC and not contained in the Probable Cause Brief, or raised at the 

Probable Cause Hearing, if any, the respondent may submit a written 

request to address the new points raised by aGc. Any such written 

request must specify the new points that the respondent seeks to address 

and must be submitted to the Secretary of the Commission within five 

business days of the respondent's receipt of the aGC Notice 

4.	 Within five business days of receipt of a written request from a 

respondent, the Commission may, in its sole discretion, exercised by four 

affirmative votes, allow the respondent to address in writing the new 

points raised by the aGC Notice. If the Commission approves the request, 

the Commission shall provide the respondent with a date by which the 

Supplemental Reply Briefmust be filed, which shall in no event exceed 10 

calendar days from notification to the respondent of the Commission's 

approval. Where necessary, the Commission reserves the right to request 

from a Respondent an agreement tolling any deadline, including any 

statutory or other deadline found in II CFR part III. Any request that is 

not approved by the Commission within five business days of the 

Commission's receipt of the request shall be deemed denied without 

further action by the Commission. 

5.	 All requests and Supplemental Reply Briefs should be directed to the 

Commission Secretary via email (secretary@fec.gov) or fax (202-208­

3333). Upon receipt of a request, the Commission Secretary shall forward 

the request or brief to each Commissioner and the General Counsel. 

Absent good cause, to be determined at the sole discretion of the 

Commission, exercised by four affirmative votes, late requests will not be 

accepted. 

IX. Conclusion. 

Failure to adhere to this procedure does not create a jurisdictional bar for the 

Commission to pursue all remedies to correct or prevent a violation of the Act. 

This notice establishes agency practices or procedures. This procedure sets forth 

the Commission's intentions concerning the exercise of its discretion in its enforcement 

program. However, the Commission retains that sole discretion and mayor may not 

exercise it as appropriate with respect to the facts and circumstances of each enforcement 

matter it considers, with or without notice. Consequently, this procedure does not bind 

the Commission or any member of the general public, nor does it create any rights for 

respondents or third parties. As such, this notice does not constitute an agency regulation 

requiring notice of proposed rulemaking, opportunities for public participation, prior 

publication, and delay of effective date under 5 U.S.C. 553 of the Administrative 

Procedure Act (APA). The provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), 

which apply when notice and comment are required by the APA or another statute, are 

not applicable. 

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