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S. 1648 (111th): Federal Election Administration Act of 2009

The text of the bill below is as of Aug 7, 2009 (Introduced).


II

111th CONGRESS

1st Session

S. 1648

IN THE SENATE OF THE UNITED STATES

August 7, 2009

(for himself and Mr. McCain) introduced the following bill; which was read twice and referred to the Committee on Rules and Administration

A BILL

To amend the Federal Election Campaign Act of 1971 to replace the Federal Election Commission with the Federal Election Administration, and for other purposes.

1.

Short title; table of contents

(a)

Short Title

This Act may be cited as the Federal Election Administration Act of 2009.

(b)

Table of Contents

The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—FEDERAL ELECTION ADMINISTRATION

Sec. 101. Establishment of the Federal Election Administration.

Sec. 102. Executive schedule positions.

Sec. 103. GAO examination of enforcement of campaign finance laws by the Department of Justice.

Sec. 104. GAO study and report on appropriate funding levels.

Sec. 105. Conforming amendments.

Sec. 106. Authorization of appropriations.

TITLE II—TRANSITION PROVISIONS

Sec. 201. Transfer of functions of Federal Election Commission.

Sec. 202. Transfer of property, records, and personnel.

Sec. 203. Repeals.

Sec. 204. Conforming amendments.

Sec. 205. Effective date.

I

FEDERAL ELECTION ADMINISTRATION

101.

Establishment of the Federal Election Administration

(a)

In General

Title III of the Federal Election Campaign Act of 1971 (2 U.S.C. 431 et seq.) is amended by adding at the end the following new subtitle:

B

Administrative Provisions

1

ESTABLISHMENT OF THE FEDERAL ELECTION ADMINISTRATION

351.

Establishment of the Federal Election Administration

(a)

In General

There is established the Federal Election Administration (in this Act referred to as the Administration).

(b)

Independent Establishment

The Administration shall be an independent establishment (as defined in section 104 of title 5, United States Code).

(c)

Purpose

The Administration shall administer, seek to obtain compliance with, enforce, and formulate policy in a manner that is consistent with the language and intent of Congress with respect to the following statutes:

(1)

This Act.

(2)

The Presidential Election Campaign Fund Act under chapter 95 of the Internal Revenue Code of 1986.

(3)

The Presidential Primary Matching Payment Account Act under chapter 96 of the Internal Revenue Code of 1986.

(d)

Exclusive Civil Jurisdiction

The Administration shall have exclusive jurisdiction with respect to the civil enforcement of the statutes identified in subsection (c).

(e)

Voting Requirement

All decisions of the Administration with respect to the exercise of its duties and powers under this Act, except those expressly reserved for decision by the Chair, shall be made by a majority vote of its members.

(f)

Meetings and Quorum

(1)

Meetings

The Administration shall meet—

(A)

at least once each month; and

(B)

at the call of the Chair.

(2)

Quorum

A majority of the members of the Administration shall constitute a quorum.

(g)

Seal

The Administration shall procure a proper seal, with such suitable inscriptions and devices as the President shall approve. This seal, to be known as the official seal of the Federal Election Administration, shall be kept and used to verify official documents, under such rules and regulations as the Administration may prescribe. Judicial notice shall be taken of the seal.

(h)

Principal Office

The principal office of the Administration shall be in or near the District of Columbia, but the Administration may meet or exercise any of its powers anywhere in the United States.

352.

Composition of the Federal Election Administration

(a)

In General

The Administration shall be composed of 3 members, 1 of whom shall serve as the Chair of the Administration. No member of the Administration shall—

(1)

be affiliated with the same political party as any other member of the Administration while serving as a member of the Administration; or

(2)

have been affiliated with the same political party as any other member of the Administration at any time during the 5-year period ending on the date on which such individual is nominated to be a member of the Administration.

(b)

Appointment

(1)

In general

Each member of the Administration shall be appointed by the President, by and with the advice and consent of the Senate.

(2)

Chair

The President shall, at the time of nomination of the first 3 members of the Administration, designate 1 of the 3 to serve as the Chair. Any individual appointed to succeed, or to fill the unexpired term of, that member (or any member succeeding that member) shall serve as the Chair.

(3)

Qualifications

(A)

An individual who is appointed under paragraph (1) shall—

(i)

possess demonstrated integrity, independence, and public credibility; and

(ii)

shall have not less than 5 years professional experience in law enforcement, including such experience gained—

(I)

in service as a member of the judiciary;

(II)

as a member or an employee of a Federal, State, or local campaign finance or ethics enforcement agency; or

(III)

as a law enforcement official in a Federal or State enforcement agency or office.

(B)

An individual may not be appointed under paragraph (1) if—

(i)

such individual is serving or has served as a member of the Federal Election Commission subject to a term limit; or

(ii)

at any time during the 4-year period ending on the date of the nomination of such individual, the individual was—

(I)

a candidate, an employee of a candidate, or an attorney for a candidate;

(II)

an elected officeholder, an employee of an elected officeholder, or an attorney for an elected officeholder;

(III)

an officer or employee of a political party or an attorney for a political party; or

(IV)

employed in a position in the executive branch of the Government of a confidential or policy-determining character under Schedule C of subpart C of part 213 of title 5 of the Code of Federal Regulations.

(c)

Term of Office

(1)

In general

(A)

Chair

The Chair of the Administration shall be appointed for a term of 10 years.

(B)

Other members

Subject to subparagraph (C), the 2 members of the Administration other than the Chair shall be appointed for a term of 6 years.

(C)

Initial appointments

Of the members initially appointed under subparagraph (B), 1 member shall be appointed for a term of 3 years.

(2)

Limitation to one term

A member of the Administration may only serve 1 term, except that—

(A)

the individual appointed under subparagraph (B) of paragraph (1) who is appointed for the term described in subparagraph (C) of such paragraph may be appointed to a 6-year term in addition to the term described in such subparagraph; and

(B)

an individual appointed under paragraph (4) to fill the remainder of an unexpired term that has less than 1/2 of the term remaining may be appointed to serve another term.

(3)

Expired terms

An individual may continue to serve as a member of the Administration after the expiration of such individual’s term until the earlier of—

(A)

the date on which such individual’s successor has taken office; or

(B)

1 year following the date on which the term of such member expired.

(4)

Vacancies

An individual appointed upon a vacancy occurring before the expiration of the term for which the individual’s predecessor was appointed shall be appointed only for the unexpired term of the predecessor. Such vacancy shall be filled in the same manner as the original appointment.

(5)

Other activities

An individual may not engage in any other business, vocation, or employment while serving as a member of the Administration.

(d)

Removal

A member of the Administration may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.

353.

Staff director

(a)

In General

There shall be in the Administration a staff director.

(b)

Responsibilities

The staff director—

(1)

shall assist the Administration in its administration and operations;

(2)

shall perform such responsibilities as the Administration shall prescribe; and

(3)

may, with the approval of the Chair—

(A)

appoint and fix the pay of such additional personnel as the staff director considers appropriate without regard to the provisions of title 5, United States Code, governing appointments in the competitive service; and

(B)

procure temporary and intermittent services to the same extent as is authorized by section 3109(b) of title 5, United States Code, but at rates for individuals not to exceed the daily equivalent of the annual rate of basic pay in effect for grade GS–15 of the General Schedule (5 U.S.C. 5332).

(c)

Appointment

The staff director shall be appointed by the Chair, after consultation with the other members of the Administration.

(d)

Other Activities

An individual may not engage in any other business, vocation, or employment while serving as the staff director.

354.

General counsel

(a)

In General

There shall be in the Administration a general counsel.

(b)

Responsibilities

The general counsel shall—

(1)

serve as the chief legal officer of the Administration;

(2)

provide legal assistance to the Administration concerning its programs and policies;

(3)

advise and assist the Administration in carrying out its responsibilities under section 361; and

(4)

represent the Administration in any proceeding in court or before an administrative law judge.

(c)

Appointment

The general counsel shall be appointed by the Chair, subject to approval by majority vote of the members of the Administration.

355.

Inspector general

There shall be in the Administration an inspector general. The inspector general and the office of inspector general shall be subject to the Inspector General Act of 1978 (5 U.S.C. App.).

2

OPERATION OF THE FEDERAL ELECTION ADMINISTRATION

361.

Powers of the Chair and Administration

(a)

Chair

(1)

In general

The Chair shall be the chief administrative officer of the Administration with the authority to administer the Administration and shall, after consultation with the other 2 members of the Administration, have the power to appoint or remove the staff director and to establish the budget of the Administration.

(2)

Other powers

The Chair has the power—

(A)

to the fullest extent practicable, to request the assistance of other agencies and departments of the United States, including the personnel and facilities of such agencies and departments and the heads of such agencies and departments may make available to the Chair such personnel, facilities, and other assistance, with or without reimbursement;

(B)

to appoint, assign, remove, and compensate administrative law judges in accordance with title 5, United States Code;

(C)

to require, by special or general orders, any person to submit, under oath, such written reports and answers to questions as the Chair may prescribe;

(D)

to administer oaths or affirmations;

(E)

to issue and enforce subpoenas in accordance with section 364;

(F)

in any proceeding or investigation, to order testimony to be taken by deposition before any person who is designated by the Chair and has the power to administer oaths and, in such instances, to compel testimony and the production of evidence in the same manner as authorized under subparagraph (E);

(G)

to pay witnesses fees and mileage in accordance with section 364(d); and

(H)

to make independent budget requests to Congress in accordance with section 362.

(b)

Administration

The Administration shall have the power—

(1)

to initiate, defend, or appeal, through the general counsel, any civil action in the name of the Administration to enforce the provisions of this Act and chapters 95 and 96 of the Internal Revenue Code of 1986;

(2)

to assess civil penalties for violations of this Act and chapters 95 and 96 of the Internal Revenue Code of 1986;

(3)

to issue cease-and-desist orders to prevent violations of this Act and chapters 95 and 96 of the Internal Revenue Code of 1986;

(4)

to establish procedures and schedules for agency adjudication that ensure timely enforcement of this Act and chapters 95 and 96 of the Internal Revenue Code of 1986;

(5)

to render advisory opinions under section 363;

(6)

to develop prescribed forms, and to make, amend, and repeal rules, pursuant to section 365;

(7)

to establish procedures for alternative dispute resolution of violations of this Act or of chapters 95 or 96 of the Internal Revenue Code of 1986;

(8)

to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and to report apparent violations to the appropriate law enforcement authorities; and

(9)

to transmit to the President and to Congress not later than June 1 of each year, a report which states in detail the activities of the Administration in carrying out its duties under this Act, and which includes any recommendations for any legislative or other action the Administration considers appropriate.

362.

Independent budget requests and legislative proposals

(a)

Exemption From OMB Oversight

Whenever the Chair submits any budget estimate or request to the President or the Office of Management and Budget, the Chair shall concurrently transmit a copy of such estimate or request to Congress.

(b)

Authority To Make Independent Legislative Recommendations

Whenever the Administration submits any legislative recommendation, testimony, or comments on legislation requested by Congress or by any Member of Congress, to the President or the Office of Management and Budget, the Administration shall concurrently transmit a copy thereof to Congress or to the Member requesting the same. No officer or agency of the United States shall have any authority to require the Administration to submit its legislative recommendations, testimony, or comments on legislation, to any office or agency of the United States for approval, comments, or review, prior to the submission of such recommendations, testimony, or comments to Congress.

363.

Advisory opinions

(a)

Requests for Advisory Opinions

(1)

In general

Not later than 60 days after the Administration receives from a person a complete written request concerning the application of this Act, chapter 95 or 96 of the Internal Revenue Code of 1986, or a rule or regulation prescribed by the Administration, with respect to a specific transaction or activity by the person, the Administration shall render a written advisory opinion relating to such transaction or activity to the person.

(2)

Requests by candidates

If an advisory opinion is requested by a candidate, or any authorized committee of such candidate, during the 60-day period before any election for Federal office involving the requesting party, the Administration shall render a written advisory opinion relating to such request not later than 20 days after the Administration receives a complete written request.

(b)

Rulemaking Required

Any rule of law which is not stated in this Act or in chapter 95 or 96 of the Internal Revenue Code of 1986 may be initially proposed by the Administration only as a rule or regulation pursuant to procedures established in section 365. No opinion of an advisory nature may be issued by the Administration or any other officer or employee of the Administration except in accordance with the provisions of this section.

(c)

Reliance on Advisory Opinions

(1)

In general

Any advisory opinion rendered by the Administration under subsection (a) may be relied upon by—

(A)

any person involved in the specific transaction or activity with respect to which such advisory opinion is rendered; and

(B)

any person involved in any specific transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which such advisory opinion is rendered.

(2)

Protection from liability

Notwithstanding any other provisions of law, any person who relies upon any provision or finding of an advisory opinion in accordance with the provisions of paragraph (1) and who acts in good faith in accordance with the provisions and findings of such advisory opinion shall not, as a result of any such act, be subject to any sanction provided by this Act or by chapter 95 or 96 of the Internal Revenue Code of 1986.

(d)

Publication of Requests

The Administration shall make public any request made under subsection (a) for an advisory opinion. Before rendering an advisory opinion, the Administration shall accept written comments submitted by any interested party within the 10-day period following the date on which the request is made public.

(e)

Judicial Review

(1)

In general

Any person adversely affected by an advisory opinion rendered by the Administration may obtain judicial review of such advisory opinion by filing a petition in the United States Court of Appeals for the District of Columbia Circuit.

(2)

Scope of review

For purposes of conducting the judicial review described in paragraph (1), the provisions of section 706 of title 5, United States Code, shall apply.

364.

Issuance and enforcement of subpoenas

(a)

Issuance by the Chair

If the Administration is conducting an investigation pursuant to section 371 or 372, the Chair shall, on behalf of the Administration, have the power to require by subpoena the attendance and testimony of witnesses and the production of all documentary evidence relating to the execution of the Administration’s duties.

(b)

Issuance by an Administrative Law Judge

Any administrative law judge presiding over an enforcement action pursuant to section 373 shall have the power to require by subpoena the attendance and testimony of witnesses and the production of all documentary evidence relating to the administrative law judge’s duties.

(c)

Issuance and Enforcement of Subpoenas

(1)

Issuance

Subpoenas issued under subsection (a) or (b) shall bear the signature of the Chair or an administrative law judge, respectively, and shall be served by any person or class of persons designated by the Chair or administrative law judge for that purpose.

(2)

Enforcement

In the case of contumacy or failure to obey a subpoena issued under subsection (a) or (b), the Federal district court for the judicial district in which the subpoenaed person resides, is served, or may be found may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court.

(d)

Witness Allowances and Fees

Section 1821 of title 28, United States Code, shall apply to witnesses requested or subpoenaed to appear at any hearing of the Administration. The per diem and mileage allowances for witnesses shall be paid from funds available to pay the expenses of the Administration.

(e)

Jurisdiction

Subpoenas for witnesses who are required to attend a Federal district court may run into any other district.

365.

Rulemaking authority

(a)

In General

The Administration may, pursuant to the provisions of chapter 5 of title 5, United States Code, prescribe such rules and regulations as the Administration deems necessary to carry out the provisions of this Act and chapters 95 and 96 of the Internal Revenue Code of 1986, including the authority to promulgate rules of practice and procedure for agency adjudications.

(b)

Authority To Promulgate Independent Regulations

Whenever the Administration promulgates any regulation, it shall not be required to submit such regulation for review or approval to the President or the Office of Management and Budget.

(c)

Conduct of Activities

The Administration shall prepare written rules for the conduct of its activities, including procedures for the conduct of enforcement actions under sections 371, 372, and 373.

(d)

Forms

(1)

In general

The Administration shall prescribe forms necessary to implement this Act and chapters 95 and 96 of the Internal Revenue Code of 1986.

(2)

Public protection

Any forms prescribed by the Administration under paragraph (1), and any information-gathering activities of the Administration under this Act, shall not be subject to the provisions of section 3512 of title 44, United States Code.

(e)

Reliance Upon Rules and Regulations

Notwithstanding any other provision of law, any person who relies upon any rule or regulation prescribed by the Administration in accordance with the provisions of this section and who acts in good faith in accordance with such rule or regulation shall not, as a result of such act, be subject to any sanction provided by this Act or by chapter 95 or 96 of the Internal Revenue Code of 1986.

(f)

Consultation With IRS

In prescribing rules, regulations, and forms under this section, the Administration and the Secretary of the Treasury shall consult and work together to promulgate rules, regulations, and forms which are mutually consistent. The Administration shall report to Congress annually on the steps it has taken to comply with this subsection.

(g)

Judicial Review

(1)

In general

Any person adversely affected by a rule, regulation, or form promulgated by the Administration may obtain judicial review of such rule, regulation, or form by filing a petition in the United States Court of Appeals for the District of Columbia Circuit.

(2)

Scope of review

For purposes of conducting the judicial review described in paragraph (1), the provisions of section 706 of title 5, United States Code, shall apply.

(h)

Rule and Regulation Defined

In this Act, the terms rule and regulation mean a provision or series of interrelated provisions stating a single, separable rule of law.

366.

Litigation authority

(a)

In General

Notwithstanding sections 516 and 518 of title 28, United States Code, and section 3106 of title 5, United States Code, the Administration is authorized to bring, appear in, defend against, and appeal any action instituted under this Act or chapter 95 or 96 of the Internal Revenue Code of 1986, in any court either—

(1)

by attorneys employed by the Administration; or

(2)

by counsel whom it may appoint, on a temporary basis as may be necessary for such purpose, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and whose compensation it may fix without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title.

(b)

Compensation of Appointed Counsel

The compensation of counsel appointed on a temporary basis under subsection (a)(2) shall be paid out of any funds otherwise available to pay the compensation of employees of the Administration.

(c)

Independence From Attorney General

In pursuing an action under this section, the Administration may act independently of the Attorney General.

367.

Availability of reports

(a)

In General

The Administration shall—

(1)

prepare, publish, and furnish to all persons required to file reports and statements under this Act a manual recommending uniform methods of bookkeeping and reporting;

(2)

develop a filing, coding, and cross-indexing system consistent with the purposes of this Act;

(3)

within 48 hours after the time of the receipt by the Administration of reports and statements filed with the Administration, make them available for public inspection, and copying, at the expense of the person requesting such copying, except that any information copied from such reports or statements may not be sold or used by any person for the purpose of soliciting contributions or for commercial purposes, other than using the name and address of any political committee to solicit contributions from such committee;

(4)

keep such designations, reports, and statements for a period of 10 years from the date of receipt and maintain computerized records of such designations, reports, and statements thereafter;

(5)
(A)

compile and maintain a cumulative index of designations, reports, and statements filed under this Act, publish the index at regular intervals, and make the index available for purchase directly or by mail;

(B)

compile, maintain, and revise a separate cumulative index of reports and statements filed by multicandidate committees, including in such index a list of multicandidate committees; and

(C)

compile and maintain a list of multicandidate committees, which shall be revised and made available monthly;

(6)

prepare and publish periodically lists of authorized committees which fail to file reports as required by this Act; and

(7)

serve as a national clearinghouse for the compilation of information and review of procedures with respect to the administration of Federal elections.

(b)

Pseudonyms

For purposes of subsection (a)(3), a political committee may submit 10 pseudonyms on each report filed in order to protect against the illegal use of names and addresses of contributors, but only if such committee attaches a list of such pseudonyms to the appropriate report. The Administration shall exclude these lists from the public record.

(c)

Contracts

The Administration may enter into contracts for the purpose of performing the duties described in subsection (a).

(d)

Availability of Reports

Reports or other information described in subsection (a) shall be available to the public, except that—

(1)

copies shall be made available without cost, upon request, to agencies and branches of the Federal Government; and

(2)

information made available as a result of the application of paragraph (7) of such subsection shall be made available to the public only upon the payment of the cost thereof.

368.

Audits and field examinations

(a)

In General

The Administration may, in accordance with the provisions of this section, conduct audits and field investigations of any political committee required to file a report under section 304.

(b)

Priority

All audits and field investigations concerning the verification for, and receipt and use of, any payments received by a candidate or committee under chapter 95 or 96 of the Internal Revenue Code of 1986 shall be given priority.

(c)

Audits and Field Examinations Where Thresholds Not Met

(1)

Internal review

The Administration shall conduct an internal review of reports filed by selected committees to determine if the reports filed by a particular committee meet the threshold requirements for substantial compliance with the Act. Such thresholds for compliance shall be established by the Administration.

(2)

Audits and field examinations

The Administration may vote to conduct an audit and field investigation of any committee which it determines under paragraph (1) does not meet the threshold requirements established by the Administration. Such audits shall be commenced within 30 days of such vote, except that any audit under the provisions of this subsection of an authorized committee of a candidate shall be commenced within 6 months of the election for which such committee is authorized.

(d)

Random Audits

(1)

In general

In addition to any audits conducted under subsection (c), the Administration may, subject to paragraph (2), conduct audits of any committee selected at random to ensure compliance with this Act. The selection of any committee under this paragraph shall be based on standards and procedures adopted by the Administration, except that in any calendar year such audits may be initiated against no more than 3 percent of all authorized candidate campaign committees.

(2)

Applicable rules

(A)

In general

If the Administration selects a committee for audit under paragraph (1), the Administration shall promptly notify the committee of the selection and commence the audit within 30 days of the selection.

(B)

Special rules for authorized committees

If the committee selected under paragraph (1) is an authorized committee of a candidate, the audit—

(i)

shall be commenced and actively undertaken within 6 months of the election for which the committee is authorized; and

(ii)

may examine compliance with this Act only with respect to that election.

(3)

Exception

This subsection shall not apply to an authorized committee of a candidate for President or Vice President subject to audit under section 9007 or 9038 of the Internal Revenue Code of 1986.

369.

Congressional oversight

Nothing in this Act shall be construed to limit, restrict, or diminish any investigatory, informational, oversight, supervisory, or disciplinary authority or function of Congress or any committee of Congress with respect to elections for Federal office.

3

ENFORCEMENT

371.

Initiation of enforcement actions by Administration

(a)

In General

The Administration may initiate a civil enforcement action under section 373 if, after conducting an investigation, the Administration finds reasonable grounds to believe that a violation of this Act or of chapter 95 or 96 of the Internal Revenue Code of 1986 has occurred or is about to occur.

(b)

Basis for Findings

The Administration may make a finding under subsection (a) based on any information available to the Administration, including the filing of a complaint under section 372.

(c)

Notice and Opportunity To Demonstrate No Violation

Prior to initiating an enforcement action under subsection (a), the Administration shall give any person under investigation notice and the opportunity to demonstrate that there are no reasonable grounds to believe a violation has occurred or is about to occur, but the Administration’s decision on such matter shall not be subject to judicial review.

372.

Complaint to initiate enforcement action

(a)

Filing of Complaint

(1)

In general

Any person may file a complaint with the Administration alleging a violation of this Act or of chapter 95 or 96 of the Internal Revenue Code of 1986.

(2)

Technical requirements

A complaint filed under paragraph (1) shall be—

(A)

in writing, signed, and sworn to by the person filing such complaint;

(B)

notarized; and

(C)

made under penalty of perjury and subject to the provisions of section 1001 of title 18, United States Code.

(3)

Action by the administration

Subject to paragraph (4), based on the allegations in a complaint filed under paragraph (1), and such investigations the Administration deems necessary and appropriate, the Administration may—

(A)

initiate a civil enforcement action under section 373 if the Administration finds reasonable grounds to believe a violation has occurred or is about to occur; or

(B)

dismiss the complaint.

(4)

Prohibition of anonymous complaints

The Commission may not conduct any investigation or take any other action under this section solely on the basis of a complaint of a person whose identity is not disclosed to the Administration.

(5)

Recovery of costs

Any person who has filed a complaint under paragraph (1) shall be entitled to recover from the Administration up to $1,000 of the costs incurred in preparing and filing the complaint if, based on the complaint, the Administration—

(A)

makes a finding under section 373(a) that a person has violated (or is about to violate) the Act; or

(B)

enters into a conciliation agreement with a person under section 373(c).

(b)

Notice and Opportunity To Demonstrate No Violation

Prior to initiating an enforcement action under subsection (a)(3)(A), the Administration shall give any person named in a complaint notice and an opportunity to demonstrate that there are no reasonable grounds to believe a violation described in such subsection has occurred or is about to occur, but the Administration’s determination under subsection (a)(3) shall not be subject to judicial review in an action brought by such person.

(c)

Failure by the Administration To Take Timely Action

(1)

In general

If the Administration—

(A)

dismisses a complaint filed under subsection (a); or

(B)

fails to initiate a civil enforcement action under section 373 within 180 days of the filing of such a complaint, the person filing the complaint under subsection (a) may seek judicial review of the Administration’s dismissal, or failure to act, in Federal district court in the District of Columbia or in the district in which such person resides.

(2)

Scope of review

The court shall review the Administration’s dismissal of the complaint or failure to act in accordance with the provisions of section 706 of title 5, United States Code.

(3)

Court orders

The court may order the Administration to initiate an enforcement action or to conduct a further investigation of the complaint within a time set by the court.

373.

Civil enforcement actions

(a)

In General

The Administration shall have the authority to impose a civil monetary penalty under section 375, issue a cease-and-desist order under section 376, or do both, if the Administration finds, by an order made on the record after notice and an opportunity for hearing before an administrative law judge pursuant to subchapter II of chapter 5 of title 5, United States Code, that a person has violated (or, in the case of a cease-and-desist order, has violated or is about to violate) this Act or chapter 95 or 96 of the Internal Revenue Code of 1986. The general counsel shall represent the Administration in any proceeding before an administrative law judge.

(b)

Notice and Request for Hearing

(1)

Notice

If the Administration finds under section 371 or 372 that there are reasonable grounds to believe a violation has occurred or is about to occur, the Administration shall serve written notice of the charges on each respondent, and shall conduct such further investigation as the Administration deems necessary and appropriate.

(2)

Request for hearing

Each respondent shall have an opportunity to request, prior to the date that is 30 days after the date on which the notice is received, a hearing on the charges before an administrative law judge.

(3)

Effect of failure to request a hearing

If no hearing is requested, the Administration shall make a finding on the charges, and shall issue whatever relief the Administration deems appropriate under sections 375 and 376.

(c)

Conciliation

(1)

Procedures for entering into conciliation agreements

(A)

In general

If the respondent requests a hearing under subsection (b)(2), the Administration shall attempt, for a period that does not exceed 60 days (or 15 days if the hearing is requested within 60 days of an election), to correct or prevent such violation by informal methods of conference, conciliation, and persuasion, and to enter into a conciliation agreement with the respondent. In the case of a hearing that is requested at a time other than within 60 days of an election, the period for conciliation shall not be less than 30 days unless an agreement is reached before then.

(B)

Inclusion of civil monetary penalties

A conciliation agreement may include a requirement that the person involved in such conciliation shall pay a civil monetary penalty that does not exceed the amounts set forth in subsection (a) of section 375 or, in the case of a knowing and willful violation, the amounts set forth in subsection (b) of such section. The conciliation agreement may also include the requirement that the person involved consent to the terms of a cease-and-desist order, as provided in section 376.

(C)

Representation by general counsel

The general counsel shall represent the Administration in any negotiations for a conciliation agreement and any such conciliation agreement shall be subject to the approval of the Administration.

(D)

Bar to further action

A conciliation agreement, unless violated, is a complete bar to any further action by the Administration.

(2)

Confidentiality

No action by the Administration or any other person, and no information derived in connection with any conciliation attempt by the Administration may be made public by the Administration, without the written consent of the respondent, except that if a conciliation agreement is agreed upon and signed by the Administration and the respondent, the Administration shall make such agreement public.

(3)

Violation of conciliation agreement

In any case in which a person has entered into a conciliation agreement with the Administration under paragraph (1), the Administration may institute a civil action for relief if the Administration believes the person has violated any provision of such conciliation agreement. Such civil action shall be brought in the Federal district court for the district in which the respondent resides or has its principal place of business, or for the District of Columbia. Such court shall have jurisdiction to issue any relief appropriate under sections 375 and 376. For the Administration to obtain relief in any such action, the Administration need only establish that the person has violated, in whole or in part, any requirement of such conciliation agreement.

(d)

Hearing

At the request of any respondent, a hearing on the charges served under subsection (b)(1) shall be conducted before an administrative law judge, who shall make such findings of fact and conclusions of law as the administrative law judge deems appropriate. The administrative law judge shall also have the authority to impose a civil monetary penalty on the respondent, issue a cease-and-desist order, or both. The decision of the administrative law judge shall constitute final agency action unless an appeal is taken under subsection (e).

(e)

Appeal to Administration

(1)

Right to appeal

The general counsel and each respondent shall each have a right to appeal to the Administration from any final determination made by an administrative law judge.

(2)

Review of alj determinations

In the event of an appeal under paragraph (1), the Administration shall review the determination of the administrative law judge to determine whether—

(A)

a finding of material fact is not supported by substantial evidence;

(B)

a conclusion of law is erroneous;

(C)

the determination of the administrative law judge is contrary to law or to the duly promulgated rules or decisions of the Administration;

(D)

a prejudicial error of procedure was committed; or

(E)

the decision or the relief ordered is otherwise arbitrary, capricious, or an abuse of discretion.

(3)

Final agency action

The decision of the Administration shall constitute final agency action.

(f)

Judicial Review

(1)

In general

Any party aggrieved by a final agency action and who has exhausted all administrative remedies, including requesting a hearing before an administrative law judge and appealing an adverse decision of an administrative law judge to the Administration, may obtain judicial review of such action in the United States Court of Appeals for any circuit wherein such person resides or has its principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit.

(2)

Scope of review

For purposes of conducting the judicial review described in paragraph (1), the provisions of section 706 of title 5, United States Code, shall apply.

(3)

Petition for judicial review

To obtain judicial review under paragraph (1), an aggrieved party described in such paragraph shall file a petition with the court during the 30-day period beginning on the date on which the order was issued. A copy of such petition shall be transmitted forthwith by the clerk of the court to the Administration, and thereupon the Administration shall file in the court the record upon which the order complained of was entered, as provided in section 2112 of title 28, United States Code.

374.

Notification of nonfilers

(a)

Notification

Before taking any action under section 373 against any person who has failed to file a report required under section 304(a)(2)(A)(iii) for the calendar quarter immediately preceding the election involved, or in accordance with section 304(a)(2)(A)(i), the Administration shall notify the person of such failure to file the required reports.

(b)

Opportunity for Response

If a satisfactory response is not received within 4 business days after the date of notification, the Administration shall, pursuant to section 367(a)(6), publish before the election the name of the person and the report or reports such person has failed to file.

375.

Civil monetary penalties

(a)

In General

Any person who violates this Act, or chapter 95 or 96 of the Internal Revenue Code of 1986, shall be liable to the United States for a civil monetary penalty for each violation which does not exceed the greater of $5,000 or an amount equal to any contribution or expenditure involved in such violation. Such penalty shall be imposed by the Administration pursuant to section 373.

(b)

Knowing and Willful Violations

Any person who commits a knowing and willful violation of this Act, or of chapter 95 or 96 of the Internal Revenue Code of 1986, shall be liable to the United States for a civil monetary penalty for each violation which does not exceed the greater of $10,000 or an amount equal to 200 percent of any contribution or expenditure involved in such violation (or, in the case of a violation of section 320, which is not less than 300 percent of the amount involved in the violation and is not more than the greater of $50,000 or 1,000 percent of the amount involved in the violation). Such penalty shall be imposed by the Administration pursuant to section 373.

(c)

Determination of Civil Monetary Penalty

In determining the amount of a civil monetary penalty under this section with respect to a violation described in this section, the Administration or an administrative law judge shall take into account the nature, circumstances, extent, and gravity of the violation and, with respect to the violator, any prior violation, the degree of culpability, and such other matters as justice may require.

(d)

Referral to Attorney General

(1)

In general

If the Administration determines that a knowing and willful violation of this Act which is subject to section 379, or a knowing and willful violation of chapter 95 or 96 of the Internal Revenue Code of 1986, has occurred or is about to occur, the Administration may refer such apparent violation to the Attorney General without regard to any limitations set forth under section 373.

(2)

Reporting by the attorney general

Whenever the Administration refers an apparent violation to the Attorney General, the Attorney General shall report to the Administration any action taken by the Attorney General regarding the apparent violation. Each report shall be transmitted within 60 days after the date the Administration refers an apparent violation, and every 30 days thereafter until the final disposition of the apparent violation.

376.

Cease-and-desist orders

(a)

In General

If the Administration finds, after notice and opportunity for hearing under section 373, that any person is violating, has violated, or is about to violate any provision of this Act, or chapter 95 or 96 of the Internal Revenue Code of 1986, or any rule or regulation thereunder, the Administration may publish any findings and enter an order requiring such person, or any other person that is, was, or would be a cause of the violation due to an act or omission the person knew or should have known would contribute to such violation, to cease and desist from committing or causing such violation and any future violation of the same provision, rule, or regulation. Such order may, in addition to requiring a person to cease and desist from committing or causing a violation, require such person to comply (or to take steps to effect compliance) with such provision, rule, or regulation, upon such terms and conditions and within such time as the Administration may specify in such order.

(b)

Temporary Order

Whenever the Administration determines that an alleged violation or threatened violation specified in the notice initiating a civil enforcement action under section 373, or the continuation thereof, is likely to result in violation of this Act, or of chapter 95 or 96 of the Internal Revenue Code of 1986, and substantial harm to the public interest, the Administration may apply to the Federal district court for the district in which the respondent resides or has its principal place of business, in which the alleged or threatened violation occurred or is about to occur, or for the District of Columbia, for a temporary restraining order or a preliminary injunction requiring the respondent to cease and desist from the violation or threatened violation and to take such action to prevent the violation or threatened violation. The Administration may apply for such order without regard to any limitation under section 373.

377.

Collection

If any person fails to pay an assessment of a civil penalty—

(1)

after the order making the assessment has become a final order and such person has not timely filed a petition for judicial review of the order in accordance with section 373(f)(3) or if the order of the Administration is upheld after judicial review; or

(2)

after a court in an action brought under section 373(c)(3) has entered a final judgment no longer subject to appeal in favor of the Administration, the Attorney General shall recover the amount assessed (plus interest at currently prevailing rates from the date of the expiration of the 30-day period referred to in section 373(f)(3) or the date of such final judgment, as the case may be) in an action brought in any appropriate district court of the United States. In such an action, the validity, amount, and appropriateness of such penalty shall not be subject to review.

378.

Confidentiality

(a)

Prior to a Finding of Reasonable Grounds

Any proceedings conducted by the Administration prior to a finding that there are reasonable grounds to believe a violation of the law has occurred or is about to occur, including any investigation pursuant to section 371 or pursuant to a complaint filed under section 372, shall be confidential and none of the Administration’s records concerning the complaint shall be made public, except that the person filing a complaint pursuant to section 372 is permitted to make such complaint public.

(b)

After a Finding of Reasonable Grounds

Except as provided in subsection (d), if the Administration makes a finding pursuant to section 371 or 372 that there are reasonable grounds to believe that a violation of law has occurred or is about to occur—

(1)

the finding of the Administration as well as any complaint filed under section 372, any notice of charges, and any answer or similar documents filed with the Administration shall be made public; and

(2)

all proceedings conducted before an administrative law judge under section 373, and all documents used during such proceedings, shall be made public.

(c)

After Dismissal of a Complaint or Conclusion of Proceedings Following a Finding of Reasonable Grounds

Subject to subsection (d), following the Administration’s dismissal of a complaint filed under section 372 or the termination of proceedings following a finding of reasonable grounds under section 371 or 372, the Administration shall, not later than the date that is 30 days after such dismissal or termination, make public—

(1)

the complaint, any notice of charges, and any answer or similar documents filed with the Administration (unless such information has already been made public under subsection (b)(1));

(2)

any order setting forth the Administration’s final action on the complaint;

(3)

any findings made by the Administration in relation to the action; and

(4)

all documentary materials and testimony constituting the record on which the Administration relied in taking its actions.

Subject to subsection (d), the affirmative disclosure requirement of this subsection is without prejudice to the right of any person to request and obtain records relating to an investigation under section 552 of title 5, United States Code.
(d)

Confidentiality of Records and Proceedings Otherwise Subject to Disclosure

(1)

In general

The Administration shall issue regulations providing for the protection of information the disclosure of which under subsection (b) or (c) would impair any person’s constitutionally protected right of privacy, freedom of speech, or freedom of association. The Administration shall also issue regulations addressing the application of exemptions from disclosure contained in section 552 of title 5, United States Code, to records comprising the Administration’s investigative files. Such regulations shall consider the need to protect any person’s constitutionally protected rights to privacy, freedom of speech, and freedom of association, as well as the need to make information about the Administration’s activities and decisions widely accessible to the public.

(2)

Petition to maintain confidentiality

(A)

In general

Any person who would be adversely affected by any disclosure of information about the person made pursuant to subsection (b) or (c), or by the conduct in public of a hearing or other proceeding conducted pursuant to section 373, shall have the right to petition the Administration to maintain the confidentiality of such information or such proceeding on the ground that such information falls within the scope of any exemption from disclosure contained in section 552 of title 5, United States Code, or is prohibited from disclosure under the Administration’s regulations, the Constitution, or any other provision of law. Upon the receipt of such petition, the Administration shall make a prompt determination whether the information should be kept confidential, and shall withhold such information from disclosure pending this determination. The Administration shall notify the petitioner in writing of the determination.

(B)

Regulations

The Administration shall prescribe regulations governing the consideration of petitions under this paragraph. Such regulations shall provide for public notice of the pendancy of any petition filed under subparagraph (A) and the right of any interested party to respond to or comment on such petition.

(e)

Penalties

Any member or employee of the Administration, or any other person, who violates the provisions of this section shall be fined not more than $2,000. Any such member, employee, or other person who knowingly and willfully violates the provisions of this section shall be fined not more than $5,000.

379.

Criminal penalties

(a)

Knowing and Willful Violations

Any person who knowingly and willfully commits a violation of any provision of this Act that involves the making, receiving, or reporting of any contribution, donation, or expenditure—

(1)

aggregating $25,000 or more during a calendar year shall be fined under title 18, United States Code, or imprisoned for not more than 5 years, or both; or

(2)

aggregating $2,000 or more (but less than $25,000) during a calendar year shall be fined under such title, or imprisoned for not more than 1 year, or both.

(b)

Contributions or Expenditures by National Banks, Corporations, or Labor Organizations

In the case of a knowing and willful violation of section 316(b)(3), the penalties set forth in subsection (a) shall apply to each violation involving an amount aggregating $250 or more during a calendar year. Such a violation of section 316(b)(3) may incorporate a violation of section 317(a), 320, or 321.

(c)

Fraudulent Misrepresentation of Campaign Authority

In the case of a knowing and willful violation of section 322, the penalties set forth in subsection (a) shall apply without regard to whether the making, receiving, or reporting of a contribution or expenditure of $1,000 or more is involved.

(d)

Prohibition of Contributions in Name of Another

Any person who knowingly and willfully commits a violation of section 320 involving an amount aggregating more than $10,000 during a calendar year shall be—

(1)

imprisoned for not more than 2 years if the amount is less than $25,000 and subject to imprisonment under subsection (a) if the amount is $25,000 or more;

(2)

fined not less than 300 percent of the amount involved in the violation and not more than the greater of—

(A)

$50,000; or

(B)

1,000 percent of the amount involved in the violation; or

(3)

both imprisoned as provided under paragraph (1) and fined as provided under paragraph (2).

(e)

Effect of Conciliation Agreements

(1)

Evidence of lack of knowledge and intent

In any criminal action brought for a violation of any provision of this Act or of chapter 95 or 96 of the Internal Revenue Code of 1986, any defendant may evidence their lack of knowledge or intent to commit the alleged violation by introducing as evidence a conciliation agreement entered into between the defendant and the Administration under section 373(c)(1) which specifically deals with the act or failure to act constituting such violation and which is still in effect.

(2)

Consideration by courts

In any criminal action brought for a violation of any provision of this Act or of chapter 95 or 96 of the Internal Revenue Code of 1986, the court before which such action is brought shall take into account, in weighing the seriousness of the violation and in considering the appropriateness of the penalty to be imposed if the defendant is found guilty, whether—

(A)

the specific act or failure to act which constitutes the violation for which the action was brought is the subject of a conciliation agreement entered into between the defendant and the Administration under section 373(c)(1);

(B)

the conciliation agreement is in effect; and

(C)

the defendant is, with respect to the violation involved, in compliance with the conciliation agreement.

380.

Period of limitations

No person shall be prosecuted, tried, or punished for any violation of this Act, unless the indictment is found or the information is instituted within 5 years after the date of the violation.

381.

Authorization of appropriations

For each fiscal year, there are authorized to be appropriated to the Administration such sums as may be necessary for the purpose of carrying out its functions under this Act and under chapters 95 and 96 of the Internal Revenue Code of 1986.

.

102.

Executive schedule positions

(a)

Executive Schedule Level III Position

Section 5314 of title 5, United States Code, is amended by adding at the end the following:

Chair, Federal Election Administration.

.

(b)

Executive Schedule Level IV Positions

Section 5315 of title 5, United States Code, is amended by adding at the end the following:

Members (other than the Chair), Federal Election Administration.

Staff Director, Federal Election Administration.

Inspector General, Federal Election Administration.

.

(c)

Executive Schedule Level V Position

Section 5316 of title 5, United States Code, is amended by adding at the end the following:

General Counsel, Federal Election Administration.

.

103.

GAO examination of enforcement of campaign finance laws by the Department of Justice

(a)

Examination

The Comptroller General of the United States shall conduct a thorough examination of the enforcement of the criminal provisions of the Federal Election Campaign Act of 1971 (2 U.S.C. 431 et seq.) and chapters 95 and 96 of the Internal Revenue Code of 1986 by the Attorney General.

(b)

Report

Not later than 1 year after the date of enactment of this Act, the Comptroller General shall submit to the Attorney General and Congress a report on the examination conducted under subsection (a) together with recommendations on how the Attorney General may improve the enforcement of the criminal provisions of the Federal Election Campaign Act of 1971 (2 U.S.C. 431 et seq.) and chapters 95 and 96 of the Internal Revenue Code of 1986, including recommendations on the resources that the Attorney General would require to effectively enforce such criminal provisions.

104.

GAO study and report on appropriate funding levels

(a)

Study

The Comptroller General of the United States shall conduct an ongoing study on the level of funding that constitutes an adequate level of resources for the Federal Election Administration to competently execute the responsibilities imposed on the Administration by this Act.

(b)

Report

Not later than 1 year after the date of enactment of this Act, and once every 2 years thereafter, the Comptroller General shall submit to the Director of the Office of Management and Budget and Congress a report on the study conducted under subsection (a) together with recommendations for such legislation and administrative action as the Comptroller General determines to be appropriate.

105.

Conforming amendments

(a)

Independent Agency

Section 104 of title 5, United States Code, is amended—

(1)

in paragraph (1), by striking and after the semicolon;

(2)

in paragraph (2), by striking the period and inserting ; and; and

(3)

by adding at the end the following new paragraph:

(3)

the Federal Election Administration.

.

(b)

Coverage Under Inspector General Act

Section 8G(a)(2) of the Inspector General Act of 1978 (5 U.S.C. App.) is amended by striking Federal Election Commission and inserting Federal Election Administration.

(c)

Coverage of Personnel Under Hatch Act

Section 7323(b) of title 5, United States Code, is amended—

(1)

in paragraph (1), by striking Federal Election Commission and inserting Federal Election Administration; and

(2)

in paragraph (2)(B)(i)(I), by striking Federal Election Commission and inserting Federal Election Administration.

(d)

Exclusion From Senior Executive Service

Section 3132(a)(1)(C) of title 5, United States Code, is amended by striking Federal Election Commission and inserting Federal Election Administration.

(e)

Subtitle A

Title III of the Federal Election Campaign Act of 1971 (2 U.S.C. 431 et seq.) is amended by inserting before section 301 the following:

A

General Provisions

.

II

TRANSITION PROVISIONS

201.

Transfer of functions of Federal Election Commission

There are transferred to the Federal Election Administration established under section 351 of the Federal Election Campaign Act of 1971 (as added by section 101) all functions that the Federal Election Commission exercised before the date described in section 205(a).

202.

Transfer of property, records, and personnel

(a)

Property and Records

The contracts, liabilities, records, property, and other assets and interests of, or made available in connection with, the offices and functions of the Federal Election Commission which are transferred by this title are transferred to the Federal Election Administration.

(b)

Personnel

The personnel employed in connection with the offices and functions of the Federal Election Commission which are transferred by this title are transferred to the Federal Election Administration.

203.

Repeals

The following provisions of the Federal Election Campaign Act of 1971 are repealed:

(1)

Section 306 (2 U.S.C. 437c).

(2)

Section 307 (2 U.S.C. 437d).

(3)

Section 308 (2 U.S.C. 437f).

(4)

Section 309 (2 U.S.C. 437g).

(5)

Section 310 (2 U.S.C. 437h).

(6)

Section 311 (2 U.S.C. 438).

(7)

Section 314 (2 U.S.C. 439c).

(8)

Section 406 (2 U.S.C. 455).

204.

Conforming amendments

(a)

Title III of the Federal Election Campaign Act of 1971 (2 U.S.C. 431 et seq.) is amended—

(1)

in section 301, by striking paragraph (10) and inserting the following:

(10)

The term Administration means the Federal Election Administration.

;

(2)

by striking Federal Election Commission and inserting Administration each place it appears; and

(3)

by striking Commission and inserting Administration each place it appears.

(b)

Section 3502(1)(B) of title 44, United States Code, is amended by striking Federal Election Commission and inserting Federal Election Administration.

(c)

Section 207(j)(7)(B)(i) of title 18, United States Code, is amended by striking the Federal Election Commission by a former officer or employee of the Federal Election Commission and inserting the Federal Election Administration by a former officer or employee of the Federal Election Commission or the Federal Election Administration.

(d)

Section 103 of the Ethics in Government Act of 1978 (5 U.S.C. App.) is amended—

(1)

in subsection (e), by striking the Federal Election Commission and inserting the Federal Election Administration; and

(2)

in subsection (k), by striking the Federal Election Commission and inserting the Federal Election Administration.

(e)
(1)

Section 9002(3) of the Internal Revenue Code of 1986 is amended to read as follows:

(3)

The term Administration means the Federal Election Administration established under section 351 of the Federal Election Campaign Act of 1971.

.

(2)

Chapter 95 of the Internal Revenue Code of 1986 is amended by striking Commission and inserting Administration each place it appears.

(f)
(1)

Section 9032(3) of the Internal Revenue Code of 1986 is amended to read as follows:

(3)

The term Administration means the Federal Election Administration established under section 351 of the Federal Election Campaign Act of 1971.

.

(2)

Chapter 96 of the Internal Revenue Code of 1986 is amended by striking Commission and inserting Administration each place it appears.

(g)

Section 3(c) of the Voting Accessibility for the Elderly and Handicapped Act (42 U.S.C. 1973ee–1(c)) is amended—

(1)

in paragraph (1)—

(A)

by striking Federal Election Commission and inserting Federal Election Administration; and

(B)

by striking Commission and inserting Administration; and

(2)

in paragraph (2), by striking Federal Election Commission and inserting Federal Election Administration.

(h)

Section 6(9) of the Lobbying Disclosure Act 1995 (2 U.S.C. 1605(9)) is amended by striking the Federal Election Commission and inserting the Federal Election Administration.

205.

Effective date

(a)

In General

This title and the amendments made by this title shall take effect on the date that is 6 months after the date of enactment of this Act.

(b)

Termination of the Federal Election Commission

Notwithstanding any other provision of, or amendment made by, this Act, the members of the Federal Election Commission shall be removed from office on the date described in subsection (a).