FEC adopts new audit and advisory opinion procedures

At today’s FEC meeting, the agency adopted two new rules of agency procedure.  Both of the FEC’s procedural changes will allow members of the regulated community to request in-person hearings before the Commission — the first in advance of Commission adoption of final audit reports that assert violations of the Federal Election Campaign Act or agency regulations, and the second at Commission meeting when issuance of draft advisory opinions are being discussed. A third proposed rule on notice to respondents in non-complaint generated matters was put off until the next meeting.

To listen to an audio file of today’s FEC meeting — split into three parts — click here, here and here [all files are Windows Media Player format; part one is 48:50, part two is 15:39 and part three is 38:15].

The proposed rules stem from a long-running process by which the Commission is updating and revising the agency’s policies, practices and procedures. In January, the FEC accepted public comments and then held hearings on these (and other) proposed agency procedures, and CCP Legal Director Reid Cox submitted comments on behalf of CCP.

CCP’s comments strongly recommended increased opportunities for hearings before the FEC, including for those requesting advisory opinions and those subject to audits.

Indeed, the procedures adopted for hearings, both in the audit and advisory opinion processes, mirror the recommendations that CCP made in its comments to the FEC. For instance, in the audit portion of CCP’s comments, we said:

The main point here is that, because the audit process can taint an audited party in the same way the enforcement process can, the audited party has no lesser interest in having the opportunity to appear before the Commission than that present in the enforcement process. Thus, the Commission should not only provide such a meaningful opportunity to be heard, but should use that process frequently so that all involved ensure the audit matter is completely and fully aired before final decisions are made by the Commission.

And, with respect to allowing requestors to appear before the Commission concerning their advisory opinion requests, our comments stated:

Indeed, since the Office of General Counsel appears before the Commission in the advisory opinion process, it really seems strange that the person requesting the advice, and who has the most knowledge about the facts raised by the request, is excluded from participating in the meeting at which the Commission considers the request. It has not been unusual, during discussion of an advisory opinion, for questions to arise to which requestor’ s counsel, often sitting in the audience, could provide an answer but instead must simply sit silent and frustrated as the Commission proceeds, sometimes on an incorrect or incomplete understanding. To allow an appearance could help prevent such problems while promoting the efficiency and effectiveness of the advisory opinion process.

CCP had encouraged the FEC to allow those who seek advisory opinions to be able to present argument about their views of the how such requests should be resolved. And, although the FEC’s new rules only allow for the requestors to answer questions asked by the Commissioners, this is certainly an improvement over the situation where neither the requestor nor the Commissioners could interact regarding advisory opinion requests at the very meetings where the Commissioners discuss, debate and vote on how to issue agency advice.

Thus, it is encouraging to see the FEC take heed of CCP’s comments and testimony that the Commission should be more open and responsive to those who have matters pending before it, providing not only needed due process but also aiding in the full airing of matters concerning the fundamental liberties of free speech and association.

The FEC proposed rules for audits and advisory opinions can be found here and here, respectively. Both of the measures passed 6-0, and will become effective after being published in the Federal Register.