The FEC has four primary responsibilities. They are to:

• disclose campaign finance information to the public;
• clarify the law through advisory opinions and regulations;
• enforce the law through investigations, audits and fines; and
• administer the presidential public funding system.

The Commission administers the disclosure of the amounts and sources of monies raised and spent in federal elections. Specifically, the FEC is the recipient of regular disclosure reports filed by federal candidates, PACs, and political party committees, including state and local party monies spent on federal election-related activities and independent expenditure and electioneering communication reports.

The Commission reviews the reports for accuracy and timeliness and makes the reports publicly available online within 48 hours. The financial data is also entered into the FEC's database, and the Commission produces analyses and historical comparisons of campaign finance data at regular intervals and makes this information available to the public. American government scholar Thomas Mann has noted that the United States provides greater and faster disclosure of political contributions and expenditures than any other democracy. [4]

Access to the FEC's database, including scanned images or electronic copies of financial reports, is available at the FEC Public Records Office, which is open to the public, or on the internet.

As part of its efforts to improve disclosure and the efficacy of the law, the Commission also engages in substantial educational outreach intended to promote greater voluntary compliance with federal campaign finance law. This educational outreach includes a toll-free telephone and fax hotline, conferences, roundtable discussions and publications. The FEC also hosts conferences annually where the Commissioners and staff conduct technical workshops on campaign finance laws, including reporting and other compliance matters. Click here for information on these programs.

[4] Thomas Mann, "The FEC: Administering and Enforcing Campaign Finance Law" in Campaign Finance Reform: A Sourcebook, Brookings Institution Press, 2004.

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As is the case with other federal regulatory agencies, the FEC is responsible for interpreting the law and applying its provisions to particular circumstances. The FEC carries out this responsibility primarily by issuing rules to implement provisions of the law and by responding to Advisory Opinion Requests from organizations and individuals who seek guidance on the application of the law to specific activities.

Rulemaking Process

Part of the Commission's responsibilities are to interpret federal election law and promulgate rules for the regulated community through rulemakings. The Commission begins by drafting a proposed rule and publishing a Notice of Proposed Rulemaking in the Federal Register. (These notices are also available on the Commission's website.) A notice includes a request for written comments from the public and regulated entities. Thereafter, the Commission may hold hearings at which members of the public can testify. Further staff drafts usually follow, culminating in a decision by the Commission to issue a new rule or to end or postpone the rulemaking. Individuals and groups may also ask the Commission to initiate a rulemaking by filing a petition that sets forth the proposed rule and the reasons for it.

Rules issued by the FEC may be challenged in court as being "contrary to law." For instance, the congressional sponsors of BCRA have filed suit in federal court against some of the FEC's new regulations, saying that the regulations fail to adequately implement the new law.

Advisory Opinions

The FEC uses an Advisory Opinion process to answer specific questions raised by individuals and organizations who seek guidance on how the law affects their proposed activities. In responding to an advisory opinion request, the Commissioners consider the specific circumstances outlined by the individual or organization making the request. The request for an opinion must be based on an action an individual or organization plans to undertake; the Commission does not issue advisory opinions in response to hypothetical questions or circumstances. The Commission posts advisory opinion requests on its website and provides an opportunity for public comments on the request. The Office of General Counsel (OGC) issues a draft response, which is then debated and voted upon by the Commissioners at a public meeting. The FEC is required to act within 60 days of receipt (absent extensions) of the original inquiry. The requestor may follow the direct guidance of the advisory opinion without risk of later being found to have violated the law. Advisory opinions also serve as precedents for other individuals or organizations in the same circumstances. (Click here for FEC's Advisory Opinions.)

Legislative Recommendations

As part of its annual reporting requirements to Congress, the FEC makes legislative recommendations. Some recommendations seek technical adjustments to the law that would enable the FEC to work more effectively, while others are more policy-oriented (for example, in 2004 the Commission proposed an increase in the amount of money that authorized candidate committees may give to other authorized candidate committees).

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The FEC is charged with enforcing the laws as passed by Congress, as interpreted by the courts and as implemented by the Commission through regulations, advisory opinions, and judicial actions. Failures to comply with the law are handled by the Commission through a complaint process (where the Commission may seek civil, but not criminal, penalties) and an administrative fine program.

Complaint Process

Anyone who believes a violation of federal election laws has occurred may file a complaint with the FEC. A complaint is a statement of the facts relating to the alleged violation of the law and includes any supporting documentation. A complaint initiates an enforcement process called a Matter Under Review or MUR. It must contain the complainant's name and address (no anonymous complaints may be considered), and the complaint must be signed, sworn to and notarized. (See Facts Needed to File a Complaint.)

One difficulty with the FEC's enforcement process is that it is cumbersome and lengthy. Current FEC Commissioner Scott Thomas has stated that the "procedural requirements and their attendant time allowances make it difficult—if not impossible—for the Commission to resolve a complaint in the same election cycle in which it is filed."[5] any complaints take four or five years to resolve, and others are dismissed without investigation by the FEC because of a lack of resources. As noted above, controversial partisan matters can result in a 3-3 deadlock at the Commission level, resulting in no further action.

The FEC enforcement process works as follows:

1. First, a complaint is filed (or a complaint is generated internally by the FEC based on its own findings or referrals from the Department of Justice). Once a complaint is received and accepted by the OGC (basic complaint criteria must be met), a copy is sent to the person or group accused of violating the law, and they are given an opportunity to respond. A complaint can be made public by the person or organization filing it, but FEC investigations of complaints and all correspondence in the matter is confidential until the Commission concludes its review.

2. Second, the complaint is reviewed by the OGC and rated for importance according to standards within the Enforcement Priority System. Standards include "the intrinsic seriousness of the alleged violation, the apparent impact the alleged violation had on the electoral process, the topicality of the activity, and the development of the law and subject matter."

3. Third, because of limitations on resources and funds, only some of the complaints filed are investigated by FEC staff. Other complaints, considered stale or less significant, are simply closed without any action. Active cases are analyzed by the General Counsel, who prepares a first report to the Commission that defines the legal and factual issues and recommends to the Commissioners whether or not there is "reason to believe" that a violation of federal law has occurred. If no reason to believe is found (by a vote of at least four commissioners), the case is dismissed. If the commissioners agree (again, by a majority vote) that there is "reason to believe," the OGC is authorized to pursue an investigation.

4. The FEC can issue subpoenas for testimony and documents. Based on their findings, the Office of General Counsel will produce a second report that advises whether the Commission should find "probable cause to believe" that a violation of federal campaign finance law has occurred or not. If probable cause is found, the respondent has 15 days to reply to the counsel's assessment, and then both the counsel's probable cause report and the reply brief are reviewed by the commissioners. As always, four votes are necessary to either dismiss the case or find probable cause to believe. If the Commission deadlocks on the case by a 3-3 vote (as it sometimes does in controversial matters), the case is closed without action and the complainant is so notified.

5. If the Commission concludes that there is probable cause to believe, the FEC must attempt to resolve the issue through "informal methods of conference, conciliation, and persuasion." This negotiating process usually results in a signed Conciliation Agreement between the FEC and the violator(s). Conciliation agreements typically involve an admission of wrongdoing by the respondent, and the payment of a civil monetary penalty. In cases where no conciliation agreement is reached, the Commission can file a civil lawsuit against the respondent in federal court, requesting that the court find a violation and impose a civil penalty.

There are two opportunities for judicial review of the complaint process. First, any complainant may petition the U.S. District Court for the District of Columbia to review the agency's failure to act if a complaint is not resolved 120 days after the filing of the complaint. (Click here for a case study on FEC enforcement action being mandated by the courts.) Second, once the complaint is formally closed by the Commission, the complainant may file suit in federal court arguing that the Commission's resolution of the matter was "arbitrary and capricious" and wrong as a matter of law. (Click here for a case study on the FEC being prodded into action by the courts.) In order to succeed in bringing such a court challenge, the complainant must demonstrate "constitutional standing" (that he or she is personally injured by the Commission's action or inaction, including being deprived of information which should be available to the public).

Campaign finance law requires that the FEC keep enforcement matters confidential until they have ended. Once a complaint has been closed, the documents involved in that complaint, including those received through subpoena, are made available for public review. Some of these documents have recently been posted online.

Administrative Fine Program

The Administrative Fine Program (or "traffic ticket" system, as it is often called) was started in July 2000 in order to better assure the timeliness of reports filed with the Commission. The program allows the FEC to assess civil penalties on candidates or political committees that fail to report on time, fail to report at all, or fail to report properly. This program takes into account how late the report is, the relative election-sensitivity of the report, and past violations. The fines are on an automatic schedule.

[5] Project FEC, "No Bark, No Bite, No Point," issued by Democracy 21, 2002.

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The presidential public funding system is detailed in the previous chapter. Principally, the FEC certifies that the qualified candidates have met the eligibility requirements, authorizes payments to candidates and the political parties, and audits campaign accounts of publicly funded presidential primary and general election candidates.

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