AGENDA DOCUMENT NO. 11-53
 

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FEDERAL ELECTION COMMISSION 

Washington, DC 20463 ZOlI -' ,'. II: 08 

AGENDA ITEM 

MEMORANDUM For Meeting of -3 -2.2-11 

TO:	 The Commission 

FROM:	 Steven T. waltr~ Commissioner \)J

DATE:	 September 6, 2011 

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

the Office of General Counsel 

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

Cause Briefs by the Office of General Counsel be made available to the public and placed 

on the agenda for the September 22, 2011, Open Session. 

Attachment 
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FEDERAL ELECTION COMMISSION
 

11 CFR Part 111
 

[NOTICE 2011-XX]
 

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: , Assistant General Counsel, or 

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

1650 or (800) 424-9530. 

SUPPLEMENTARY 

INFORMATION: 

I. Background. 

In the enforcement process various issues have arisen regarding certain procedural 

aspects of the proceedings. One such issue that has arisen is what procedure should be 

followed, and perhaps formally established and adopted, 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. 
Following the investigation by OGC ofthe matters for which the Commission has 

determined there is reason to believe that a violation has occurred or is about to occur, 

both the FECA, 2 U.S.C. 437g(a)(3), and the Commission's regulations, 11 CFR 111.16, 

require OGC to make a recommendation to the Commission on whether or not to find 

probable cause 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 ofthe Probable Cause Brief is also 

provided to each respondent. 11 CFR 111.16(b). The Probable Cause Brief is a formal 

OGC recommendation and not merely a statement of intent to make such a 

recommendation, which must comport with the disclosure aspects ofthe separate 

procedure adopted by the Commission on June 2,2011, requiring a balanced approach to 

the presentation, including not only facts and/or law that tend to support, but also those 

that do not tend to support, a particular recommendation. See Agency Procedure for 

Disclosure of Documents and Information in the Enforcement Process, 76 Fed. Reg. 

34986 (Jun. 15,2011). 

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

opportunity to file, within 15 days, a responding brief (Responding Brief) to OGC's 

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

adopted by the Commission in 2007, respondents may, as part of their Responding Brief, 

request an oral 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 ofthe law to the facts. 

Following the filing of the Responding Brief, and, ifthere is a Probable Cause 

hearing, following the hearing, OGC must then advise the Commission, by a written 

notice, as to whether OGC intends to proceed with its recommendation or to withdraw 

the recommendation from Commission consideration. 11 CFR 111.16(d). 

The issues that have arisen at this stage of the enforcement process are as follows: 

(a) whether aGC should provide a copy ofits written notice to the respondent; (b) if 

OGC's written notice is accompanied by any further argument, statements or marshalling 

of facts, or replies to all or any of the arguments contained in the Responding Brief, and, 

if a Probable Cause hearing was conducted, those occurring at the hearing, whether the 

respondent should also receive a copy of OGC's further statement containing the 

arguments replying to the Respondent's Brief and/or hearing; and (c) whether in such 

instance in subparagraph (b), the respondent should have an opportunity to reply. 

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

of General Counsel 

The Commission hereby adopts the following procedure with respect to the issues 

discussed above: 

1.	 The written notice required under 11 CFR 111.16(d) to be given to the 

Commission by aGC following the respondent's Responding Brief (and if 

there was a Probable Cause hearing, following the hearing) shall 

contemporaneously be provided to the respondent. 

2.	 If, in addition to the written notice, aGC provides information in writing 

that replies to, or argues facts or law in response to, the respondent's 

Responding Brief, or arising out of the Probable Cause hearing, if any, 

such document shall be contemporaneously provided to the respondent 

when it is submitted by aGC to the Commission. 

3.	 If the written notice and additional arguments by aGC contains new facts 

or new legal arguments not contained in the aGC Probable Cause Brief, 

and/or the Probable Cause hearing, if any, a respondent may submit a 

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

written request must be submitted to the Secretary of the Commission 

within 5 business days of the respondent's receipt of the written notice 

from aGc. 

4.	 Within 5 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 

aGC in the written notice. If the Commission approves the request, the 

Commission shall notify the respondent and shall provide the respondent 

with a date by which the respondent must file its reply. Any request that is 

not approved by the Commission within 5 business days of the 

Commission's receipt of the request shall be deemed denied. 

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 discretion and will exercise it as 

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

considers. Consequently, this procedure does not bind the Commission or any member 

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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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