AGENDA DOCUMENT NO. 11-45
 

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

TO: 

FROM: 

DATE: 

RE: 

MEMORANDUM 

The Commission 

Cynthia L. Bauerltb 

Chair 

\ 

Ellen~. 'Yeintraub cLW 

CommIssIOner VJuly 20,2011 

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AGENDA ITEM
 

For Meeting of 7/aJlI/
 

SUBMITTED LATE 

Policy Statement Extending a Pilot Program for Requesting Consideration of 

Legal Questions by the Commission 

On July 15,2010, the Commission adopted a Pilot Program for Requesting Consideration of 

Legal Questions by the Commission. The Notice for the Pilot states that "After one year, a 

vote will be scheduled on whether the program should continue." 

The proposed Extension ofthe Pilot Program incorporates changes recommended by staff 

including extension ofthe program as a two-year pilot. During the one year pilot, the 

Commission received one request for consideration. Given our limited experience with this 

program, and the several modifications proposed based on that one experience, this draft 

continues the pilot for two additional years so the Commission can consider additional 

experience with the program before making permanent. 

We ask that this document be made public. 

Attachment 
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FEDERAL ELECTION COMMISSION 

[NOTICE 2011-XX] 

Policy Statement Extending a Pilot Program for Requesting Consideration of Legal 

Questions by the Commission 

AGENCY: Federal Election Commission 

ACTION: Agency Policy Statement 

SUMMARY: The Federal Election Commission ("Commission") is extending its 

pilot 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 revising and extending its pilot 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, if the person or entity disagrees with the request based upon a 

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

consideration of the 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 "detennination" for purposes 

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

legal guidance prepared by the Office of General Counsel 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: (l) the 

legal issue is novel, complex, or pertains to an unsettled question oflaw, (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 of the detennination 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,S U.S.C. § 552b(g), and applicable Commission 

regulations, 11 C.F.R. part 2. However, if within 60 business days ofthe 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 of OGC's recommendation 

memorandum and an accompanying vote certification, or ifno 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 of the memoranda. Confidential 

information will be redacted as necessary. 

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

approved, 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. 

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. Pilot Program 

This agency procedure is being extended as a pilot program. The pilot program will 

continue for two years from the time that this revised policy is approved. After two 

years, a vote will be scheduled on whether the program should continue. Four 

affirmative votes will be required to extend or make permanent the program. The 

program will be terminated after that vote if there are not four affirmative votes to 

make the program permanent or to extend it for some time period. In preparation for 

this vote, the OC and OGC will provide recommendations on any procedural issues 

the Commission should address in considering if the program should continue. The 

Commission may terminate or modify this pilot program through additional policy 

statements prior to the twenty-fourth month of the pilot program by an affirmative 

vote of four of its members. 

Cynthia L. Bauerly 

Chair 

Federal Election Commission 

DATED