Rule2024-05830
Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the Enforcement Process
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 20, 2024
Effective
April 19, 2024
Issuing agencies
Federal Election Commission
Abstract
The Federal Election Commission ("Commission" or "FEC") is issuing a Policy Statement to explain generally the ways by which the Commission intends to address Matters Under Review ("Matters" or "MURs") at the initial stage of enforcement proceedings. This Policy Statement supersedes the Commission's prior Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the Enforcement Process, published on Mar. 16, 2007. Under this Statement of Policy, the Commission generally will either dismiss a Matter or find "reason to believe" concerning an alleged violation.
Full Text
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<title>Federal Register, Volume 89 Issue 55 (Wednesday, March 20, 2024)</title>
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[Federal Register Volume 89, Number 55 (Wednesday, March 20, 2024)]
[Rules and Regulations]
[Pages 19729-19730]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-05830]
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FEDERAL ELECTION COMMISSION
11 CFR Part 111
[Notice 2024-08]
Statement of Policy Regarding Commission Action in Matters at the
Initial Stage in the Enforcement Process
AGENCY: Federal Election Commission.
ACTION: Statement of Policy.
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SUMMARY: The Federal Election Commission (``Commission'' or ``FEC'') is
issuing a Policy Statement to explain generally the ways by which the
Commission intends to address Matters Under Review (``Matters'' or
``MURs'') at the initial stage of enforcement proceedings. This Policy
Statement supersedes the Commission's prior Statement of Policy
Regarding Commission Action in Matters at the Initial Stage in the
Enforcement Process, published on Mar. 16, 2007. Under this Statement
of Policy, the Commission generally will either dismiss a Matter or
find ``reason to believe'' concerning an alleged violation.
DATES: The effective date of this Statement of Policy is April 19,
2024.
FOR FURTHER INFORMATION CONTACT: Aaron Rabinowitz, Assistant General
Counsel, Enforcement Division, 1050 First Street NE, Washington, DC
20463, (202) 694-1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION: This Statement of Policy supersedes the
Commission's prior Statement of Policy Regarding Commission Action in
Matters at the Initial Stage of Enforcement. 72 FR 12545 (Mar. 16,
2007) (``Initial Stage Policy'').
The Federal Election Campaign Act of 1971, as amended, 52 U.S.C.
30101-30145. (``FECA'' or ``Act''), vests the Commission with
``exclusive jurisdiction with respect to civil enforcement'' of the Act
and 26 U.S.C. chapters 95 and 96. 52 U.S.C. 30107[euro]. Enforcement
Matters come to the Commission through complaints from the public;
information ascertained in the ordinary course of the Commission's
[[Page 19730]]
supervisory responsibilities, including referrals from the Commission's
Reports Analysis and Audit Divisions; referrals from other government
agencies; and self-reported submissions.
FECA provides that ``upon receiving a complaint'' or upon the basis
of information ascertained in the course of carrying out its
supervisory responsibilities, the Commission ``shall make an
investigation of such alleged violation'' of the Act where the
Commission, with the vote of four members, determines that there is
``reason to believe that a person has committed, or is about to
commit'' a violation of the Act. 52 U.S.C. 30109(a)(2); see also 11 CFR
111.10(f). ``Reason to believe'' findings indicate only that the
Commission found sufficient legal justification to open an
investigation to determine whether a violation of the Act has occurred.
The Act also provides that the Commission may ``vote to dismiss'' a
complaint. 52 U.S.C. 30109(a)(1)-(2), (8). At the initial stage of the
enforcement process, voting to find reason to believe, or to dismiss,
are the only actions contemplated by FECA. The Commission, however, in
both public guidance and agency practice, has adopted at least seven
possible options by which the Commission has resolved Matters: it may
find reason to believe, find no reason to believe, dismiss the
allegation, dismiss pursuant to prosecutorial discretion, dismiss with
admonishment, dismiss with the issuance of a cautionary letter, or
simply close the file without further action. See, e.g., Initial Stage
Policy at 12545-12546. Although these differences were initiated with
the intent of making the Commission's actions more understandable to
the public, they have instead fostered confusion and imposed
unnecessary administrative costs on the Commission's work.
Accordingly, the Commission is issuing this policy to apprise
complainants, respondents, and the public of its decision to simplify
voting options at the initial stage of the enforcement process.
Generally speaking, at the initial stage in the enforcement process,
the Commission will take one of the following actions with respect to a
MUR: (1) find ``reason to believe'' or (2) dismiss.
A. ``Reason To Believe''
The Act requires that the Commission find ``reason to believe that
a person has committed, or is about to commit, a violation'' of the Act
as a predicate to opening an investigation into the alleged violation.
52 U.S.C. 30109(a)(2). The Commission will find ``reason to believe''
where the available evidence in the Matter is at least sufficient to
warrant conducting an investigation, and where the seriousness of the
alleged violation warrants either further investigation or immediate
conciliation. A ``reason to believe'' finding will always be followed
by either an investigation or pre-probable cause conciliation.
For example:
<bullet> A ``reason to believe'' finding followed by an
investigation would be appropriate when a complaint credibly alleges
that a significant violation may have occurred, but further
investigation is required to determine whether a violation in fact
occurred and, if so, its exact scope.
<bullet> A ``reason to believe'' finding followed by conciliation
would be appropriate when the Commission is certain that a violation
has occurred, and the seriousness of the violation warrants
conciliation.
A ``reason to believe'' finding by itself does not establish that
the law has been violated. When the Commission later accepts a
conciliation agreement with a respondent, the conciliation agreement
speaks to the Commission's ultimate conclusions. When the Commission
does not enter into a conciliation agreement with a respondent, and
does not file suit, a Statement of Reasons, a Factual and Legal
Analysis, or a General Counsel's Report may provide further explanation
of the Commission's conclusions.
B. ``Vote To Dismiss''
The Act also provides that the Commission may ``vote to dismiss'' a
MUR, either before or after respondents are notified. 52 U.S.C.
30109(a)(1).
The Commission's rationale for voting to dismiss may vary from case
to case. It may be exercising its prosecutorial discretion under
Heckler v. Chaney, 470 U.S. 821 (1985) to dismiss Matters that do not
merit the additional expenditure of Commission resources.
Alternatively, the Commission may dismiss because the complaint, any
response filed by the respondent, and other available information, when
taken together, fail to give rise to a reasonable inference that a
violation has occurred.
Examples where a dismissal would be appropriate include, but are
not limited to, situations where:
<bullet> A violation has been alleged, but the respondent's
response or other evidence convincingly demonstrates that no violation
has occurred;
<bullet> A complaint alleges a violation that is either not
credible or is so vague that an investigation would be effectively
impossible;
<bullet> A complaint fails to describe a violation of the Act;
<bullet> The seriousness of the alleged conduct is not sufficient
to justify the likely cost and difficulty of an investigation to
determine whether a violation in fact occurred;
<bullet> The available information is sufficient to support a
``reason to believe'' finding, but the violation is minor;
<bullet> A respondent admits to a violation, but the amount of the
violation is not sufficient to warrant any monetary penalty; or
<bullet> A complaint convincingly alleges a violation, but the
significance of the violation is not sufficient to warrant further
pursuit by the Commission.
When the Commission votes to dismiss, a Statement of Reasons, a
Factual and Legal Analysis, or a General Counsel's Report may provide
further explanation of the Commission's conclusions.
C. Conclusion
This policy enunciates and describes the Commission's standards for
actions at the point of determining whether to open an investigation or
to enter into conciliation with respondents prior to a finding of
probable cause to believe. The policy does not confer any rights on any
person and does not in any way limit the right of the Commission to
evaluate every case individually on its own facts and circumstances.
This notice represents a general statement of policy announcing the
general course of action that the Commission intends to follow. This
policy statement does not constitute an agency regulation requiring
notice of proposed rulemaking, opportunities for public participation,
prior publication, and delay effective under 5 U.S.C. 553 of the
Administrative Procedures Act (``APA''). As such, it does not bind the
Commission or any member of the general public. 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.
Dated: March 14, 2024.
On behalf of the Commission,
Sean J. Cooksey,
Chairman, Federal Election Commission.
[FR Doc. 2024-05830 Filed 3-19-24; 8:45 am]
BILLING CODE P
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