Your web browser is not supported You're using Internet Explorer, some features might not work. Please switch to another browser like Chrome, Firefox, or Edge for a better experience.


An official website of the United States government Here's how you know
 **Official websites use .gov**
            
            A **.gov** website belongs to an official government organization in the United States.
 **Secure .gov websites use HTTPS**
            
            A **lock** ( A locked padlock ) or **https://** means you've safely connected to the .gov website. Share sensitive information only on official, secure websites.


Federal Election Commission | United States of America Calendar
           Glossary
          Search
              Search


Menu
      Home
      Campaign finance data
        All data
            Raising
            Spending
            Loans and debts
            Filings and reports
            Candidates
            Committees
            Bulk data
            Campaign finance statistics
        Find elections. Search by state or ZIP code
          Look up contributions from specific individuals
      Help for candidates and committees
        All compliance resources
            Guides
            Forms
            Dates and deadlines
            Trainings
        Learn about electronic filing
          Find and contact your committee's analyst
      Legal resources
        All legal resources
            Advisory opinions
            Enforcement
            Statutes
            Legislation
            Regulations
            Court cases
            Policy and other guidance
        Search across all legal resources
          Search guidance documents
      About
        All about the FEC
            News and announcements
            Commission meetings
            Mission and history
            Leadership and structure
            Reports about the FEC
            Careers
            Working with the FEC
            Contact
        Introduction to campaign finance and elections


- Home
- ›
      FEC Record: Compliance
- ›
      Best efforts defense replaces the extraordinary circumstances defense

FEC Record: ComplianceBest efforts defense replaces the extraordinary circumstances defenseMay 1, 2007 On March 22, 2007, the Commission voted to revise its rules to allow committees to use "best efforts" as a defense for challenges in the Administrative Fines Program (AFP). The "best efforts" defense is effective April 30, 2007. Previously, the only acceptable defenses in these cases were the existence of "factual errors" in the Commission's reason-to-believe finding or certain "extraordinary circumstances" set forth in the regulations. To use best efforts as a defense, respondents must demonstrate that they could not file due to reasonably unforeseen circumstances beyond their control, and that they filed the late report within 24 hours after those circumstances ended. 11 CFR 111.35(c) and (d). Background The final rules respond to the U.S. District Court for the District of Massachusetts' decision in Lovely v. FEC. (See the May 2004 Record.) That case involved a political committee's challenge to an administrative fine the Commission assessed for late filing. The committee argued that it had made "best efforts" to file the report on time and that this constituted a valid and complete defense against the fine. The court concluded that the statutory language at 432(i) requires the Commission to entertain a "best efforts" defense in the administrative fines context, and that it was unclear from the record in the case whether the Commission had considered the committee's "best efforts" defense. The court remanded the case to the Commission for further proceedings.(1) On remand, the Commission determined that the committee had failed to show best efforts, and left the administrative fine in place. Historically, the Commission interpreted the "best efforts" defense as applying only outside of the AFP to a treasurer's attempts to obtain, maintain and disclose the name, address, occupation and employer of donors who contribute more than $200 per year. Now, the Commission has decided to adopt the Lovely court's interpretation of 432(i) and to incorporate a "best efforts" defense into the AFP. In December 2006, the Commission published a Notice of Proposed Rulemaking (NPRM) that set forth proposed rules on the subject. See the January 2007 Record, page 6. The comments received and an audio recording of the March 22 meeting at which the Commission adopted the final rules are available at https://www.fec.gov/updates/march-22-2007-open-meeting/. Final rules To address the concerns raised by the Lovely court and to provide greater clarity regarding permissible grounds for challenging a reason to believe finding, the Commission has amended four aspects of its rules governing the AFP. The revised rules: Clarify the scope of the factual errors defense;Clarify when the Commission determines that no violation has occurred;Explain that the Commission's statement of reasons for its final decision in the AFP matter usually consists of the reasons set forth by the Commission's reviewing officer, as adopted by the Commission; andReplace the "extraordinary circumstances" defense with a defense for committees that demonstrate that they used their "best efforts" to file reports timely. To claim best efforts as a defense, committees must demonstrate that they could not file due to reasonably unforeseen circumstances beyond their control, and they must show that they filed the late report within 24 hours after those circumstances ended. Examples of circumstances that will be considered "reasonably unforeseen" and beyond control of a respondent include a failure of Commission computers or Commission-provided software, a widespread disruption of information transmissions over the Internet (not caused by a failure of the Commission's or committee's computers or Internet service providers) and severe weather or other disaster-related incidents. The regulations also list examples of circumstances that will not be considered as qualifying for the "best efforts" defense, including negligence, illness, inexperience, unavailability of committee staff or treasurer, a failure to know filing dates and a failure to use Commission software properly. These examples are not exhaustive, but illustrate the types of situations that are, and are not, reasonably unforeseen and beyond the respondent's control. The final rule was published in the March 29, 2007, Federal Register (72 FR 14662) and is available on the FEC web site at http://sers.fec.gov/fosers/ and from the FEC Faxline, 202/501-3413.  1)The Lovely case did not involve a challenge to the validity of the administrative fines program rules, and those rules have continued in full force and effect since the district court order. The court stated that the Commission could "refine by regulation what best efforts means in the context of submitting a report." Lovely, 307 F. Supp. 2d at 300.
 Author
          Katherine CarothersSr. Communications Specialist


Related: Explore campaign finance data »


This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


About
          Careers
          Press
          Contact
   Privacy and security policy
          Plain language
          No FEAR Act
          Strategy, budget and performance
 Open government
          Protected Voices
          USA.gov
          Inspector General
          FOIA
 OpenFEC API
          GitHub repository
          Release notes
          FEC.gov status


Federal Election Commission
 The FEC's Twitter page
            The FEC's YouTube page Sign up for FECMail


Hide glossary Glossary Search terms