52 U.S.C. § 30108 — Advisory opinions

Page 114 TITLE 52—VOTING AND ELECTIONS § 30108 § 30108. Advisory opinions (a) Requests by persons, candidates, or author- ized committees; subject matter; time for re- sponse (1) Not later than 60 days after the Commis- sion receives from a person a complete written request concerning the application of this Act, chapter 95 or chapter 96 of title 26, or a rule or regulation prescribed by the Commission, with respect to a specific transaction or activity by the person, the Commission shall render a writ- ten advisory opinion relating to such trans- action or activity to the person. (2) 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 request- ing party, the Commission shall render a writ- ten advisory opinion relating to such request no later than 20 days after the Commission receives a complete written request. (b) Procedures applicable to initial proposal of rules or regulations, and advisory opinions Any rule of law which is not stated in this Act or in chapter 95 or chapter 96 of title 26 may be initially proposed by the Commission only as a rule or regulation pursuant to procedures estab- lished in section 30111(d) of this title. No opinion of an advisory nature may be issued by the Com- mission or any of its employees except in ac- cordance with the provisions of this section. (c) Persons entitled to rely upon opinions; scope of protection for good faith reliance (1) Any advisory opinion rendered by the Com- mission under subsection (a) may be relied upon by— (A) any person involved in the specific trans- action or activity with respect to which such advisory opinion is rendered; and (B) any person involved in any specific transaction or activity which is indistinguish- able in all its material aspects from the trans- action or activity with respect to which such advisory opinion is rendered. (2) 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 provi- sions 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 chapter 96 of title 26. (d) Requests made public; submission of written comments by interested public The Commission shall make public any re- quest made under subsection (a) for an advisory opinion. Before rendering an advisory opinion, the Commission shall accept written comments submitted by any interested party within the 10- day period following the date the request is made public. (Pub. L. 92–225, title III, § 308, formerly § 313, as added Pub. L. 93–443, title II, § 208(a), Oct. 15, 1974, 88 Stat. 1283; renumbered § 312 and amended Pub. L. 94–283, title I, §§ 105, 108(a), May 11, 1976, 90 Stat. 481, 482; renumbered § 308 and amended Pub. L. 96–187, title I, §§ 105(4), 107(a), Jan. 8, 1980, 93 Stat. 1354, 1357; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsecs. (a)(1), (b), and (c)(2), means the Federal Election Campaign Act of 1971, as defined by section 30101 of this title. CODIFICATION Section was formerly classified to section 437f of Title 2, The Congress, prior to editorial reclassification and renumbering as this section. Some section numbers referenced in amendment notes below reflect the classi- fication of such sections prior to their editorial reclas- sification to this title. PRIOR PROVISIONS A prior section 308 of Pub. L. 92–225 was classified to section 437b of Title 2, The Congress, prior to repeal by Pub. L. 96–187. Another prior section 308 of Pub. L. 92–225 was classi- fied to section 437a of Title 2, The Congress, prior to re- peal by Pub. L. 94–283. Another prior section 308 of Pub. L. 92–225 was renum- bered section 311, and is classified to section 30111 of this title. AMENDMENTS 1986—Subsecs. (a)(1), (b), (c)(2). Pub. L. 99–514 sub- stituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’, which for purposes of codifica- tion was translated as ‘‘title 26’’ thus requiring no change in text. 1980—Subsec. (a). Pub. L. 96–187, § 107, redesignated existing provisions as par. (1), substituted provisions requiring the Commission to render a written advisory opinion no later than 60 days after receiving a written request concerning the application of this Act, chapters 95 or 96 of title 26, or a rule or regulation for provisions requiring a written advisory opinion within a reason- able time in response to a written request by any indi- vidual holding Federal office, candidate for Federal of- fice, any political committee or the national com- mittee of a political party, provisions requiring pro- mulgation of a rule or regulation pursuant to proce- dures established by section 438(c) of this title, and pro- hibiting issuance of advisory opinions except in accord- ance with the provisions of this section, and added par. (2). Subsec. (b). Pub. L. 96–187, § 107, struck out the par. (1) and (2) designations and substituted provisions re- quiring any rule of law not stated in this Act or chap- ter 95 or 96 of title 26 be initially proposed as a rule or regulation pursuant to the procedures of section 438(d) of this title, and provisions prohibiting issuance of an advisory opinion except in accordance with the provi- sions of this section for provisions holding any person relying upon an advisory opinion free from any sanc- tion provided by this Act or chapter 95 or 96 of title 26, and provisions allowing reliance on an advisory opinion by any person involved in the specific transaction and any person involved in a transaction indistinguishable from the transaction with respect to which such opin- ion was rendered. Subsec. (c). Pub. L. 96–187, § 107, redesignated existing provisions as par. (1), substituted provisions allowing reliance on any advisory opinion by any person in- volved in the specific transaction or activity to which such opinion was rendered and any person involved in a transaction or activity indistinguishable from the transaction with respect to which such opinion was rendered for provisions mandating that any request for an advisory opinion be made public and allowing any interested party to transmit written comments to the Commission prior to the rendering of its opinion, and added par. (2). Page 115 TITLE 52—VOTING AND ELECTIONS § 30109 1 So in original. Probably should be ‘‘clause’’. Subsec. (d). Pub. L. 96–187, § 107, added subsec. (d). 1976—Subsec. (a). Pub. L. 94–283, § 108(a), added na- tional committees of political parties to the enumera- tion of persons and political bodies authorized to re- quest advisory opinions, substituted the application of general rules of law as stated in the Act or in chapter 95 or 96 of title 26 or as prescribed by rules or regula- tions of the Commission to specific factual situations for the resolution of the question of whether or not any specific transaction or activity by an individual, can- didate, or political committee would constitute a viola- tion of the Act as the subject matter of advisory opin- ions, and inserted requirement that rules or regula- tions forming the basis for rules of law be rules or regu- lations proposed pursuant to section 438(c) of this title and that advisory opinions be issued only in accordance with the provisions of this section. Subsec. (b). Pub. L. 94–283, § 108(a), designated exist- ing provisions as par. (1), substituted provisions that any person who relies upon any finding or provision of an advisory opinion in accordance with the provisions of paragraph (2) and who acts in good faith in accord- ance with the provisions and findings of the advisory opinion shall not, as a result of that act, be subject to any sanctions provided by the Act or by chapter 95 or 96 of title 26 for provisions that any person with respect to whom an advisory opinion was rendered under sub- section (a) who acted in good faith in accordance with the provisions and findings of an advisory opinion would be presumed to be in compliance with the Act, and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–187 effective Jan. 8, 1980, see section 301(a) of Pub. L. 96–187, set out as a note under section 30101 of this title. EFFECTIVE DATE Section effective Jan. 1, 1975, see section 410(a) of Pub. L. 93–443, set out as an Effective Date of 1974 Amendment note under section 30101 of this title. CONFORMANCE OF ADVISORY OPINIONS ISSUED PRIOR TO MAY 11, 1976, TO REQUIREMENTS IMPOSED UNDER 1976 AMENDMENTS Pub. L. 94–283, title I, § 108(b), May 11, 1976, 90 Stat. 482, provided that the Commission would, no later than 90 days after May 11, 1976, conform the advisory opin- ions issued before that date to the requirements estab- lished by subsec. (a) of this section, and subsec. (b) of this section would apply to all advisory opinions issued before May 11, 1976, as conformed to meet the require- ments of subsec. (a) of this section. § 30109. Enforcement (a) Administrative and judicial practice and pro- cedure (1) Any person who believes a violation of this Act or of chapter 95 or chapter 96 of title 26 has occurred, may file a complaint with the Com- mission. Such complaint shall be in writing, signed and sworn to by the person filing such complaint, shall be notarized, and shall be made under penalty of perjury and subject to the pro- visions of section 1001 of title 18. Within 5 days after receipt of a complaint, the Commission shall notify, in writing, any person alleged in the complaint to have committed such a viola- tion. Before the Commission conducts any vote on the complaint, other than a vote to dismiss, any person so notified shall have the oppor- tunity to demonstrate, in writing, to the Com- mission within 15 days after notification that no action should be taken against such person on the basis of the complaint. 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 Commission. (2) If the Commission, upon receiving a com- plaint under paragraph (1) or on the basis of in- formation ascertained in the normal course of carrying out its supervisory responsibilities, de- termines, by an affirmative vote of 4 of its mem- bers, that it has reason to believe that a person has committed, or is about to commit, a viola- tion of this Act or chapter 95 or chapter 96 of title 26, the Commission shall, through its chair- man or vice chairman, notify the person of the alleged violation. Such notification shall set forth the factual basis for such alleged viola- tion. The Commission shall make an investiga- tion of such alleged violation, which may in- clude a field investigation or audit, in accord- ance with the provisions of this section. (3) The general counsel of the Commission shall notify the respondent of any recommenda- tion to the Commission by the general counsel to proceed to a vote on probable cause pursuant to paragraph (4)(A)(i). With such notification, the general counsel shall include a brief stating the position of the general counsel on the legal and factual issues of the case. Within 15 days of receipt of such brief, respondent may submit a brief stating the position of such respondent on the legal and factual issues of the case, and re- plying to the brief of general counsel. Such briefs shall be filed with the Secretary of the Commission and shall be considered by the Com- mission before proceeding under paragraph (4). (4)(A)(i) Except as provided in clauses 1 (ii) and subparagraph (C), if the Commission determines, by an affirmative vote of 4 of its members, that there is probable cause to believe that any per- son has committed, or is about to commit, a vio- lation of this Act or of chapter 95 or chapter 96 of title 26, the Commission shall attempt, for a period of at least 30 days, to correct or prevent such violation by informal methods of con- ference, conciliation, and persuasion, and to enter into a conciliation agreement with any person involved. Such attempt by the Commis- sion to correct or prevent such violation may continue for a period of not more than 90 days. The Commission may not enter into a concilia- tion agreement under this clause except pursu- ant to an affirmative vote of 4 of its members. A conciliation agreement, unless violated, is a complete bar to any further action by the Com- mission, including the bringing of a civil pro- ceeding under paragraph (6)(A). (ii) If any determination of the Commission under clause (i) occurs during the 45-day period immediately preceding any election, then the Commission shall attempt, for a period of at least 15 days, to correct or prevent the violation involved by the methods specified in clause (i). (B)(i) No action by the Commission or any per- son, and no information derived, in connection with any conciliation attempt by the Commis- sion under subparagraph (A) may be made public by the Commission without the written consent of the respondent and the Commission.