This file contains archived live captions of the open meeting of the Federal Election Commission held on JUNE 16, 2016.  This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission.

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	>> COMMISSIONER HUNTER:  Enjoyed working with him in all of those capacity  This time he is leaving to go back to the private sector.  He's going to work at the Gober Group and advise people on the other side of the law again.  We'll miss him a lot Troy is what I call a renaissance guy he knows a lot about a lot of different things and I'm really going to miss chatting with him.  Troy I'm going to get your phone number your new phone number.  I've enjoyed chatting with him over a lot of different topics over the years he knows campaign finance law like the back of his hand he worked on National Party and Presidential campaign he served the country in Afghanistan nobly recently and had his first baby about two months ago so he's been through a lot and we have enjoyed having him here I'm going to hiss him very much, thank you, Troy.  
	>> ELLEN WEINTRAUB:  I wanted to add my good wishes to Troy as he goes forth into the private sector.  He's certainly done a lot of great service in the military and here.  And we respect him for it and wish him well once he goes forth and when you said he was advising people on the other side of the law I assume you mean not on the wrong side of the law.
(Chuckles).
	>> COMMISSIONER CAROLINE HUNTER:  No how to deal with this place is what I meant.
	>> COMMISSIONER ELLEN WEINTRAUB:  Troy will keep him on the right side.
	>> COMMISSIONER CAROLINE HUNTER:  Yes he will.
	>> CHAIRMAN MATTHEW PETERSEN:  Let me add my two cents, as well, worked with Troy for the last six years.  Yeah, time flies when you're having fun.  I guess it's -- there's the law, I think it's called Herbert Stein's law that anything that can't last forever won't so I guess Troy's tenure at the FEC couldn't last forever, as well but he's not only been excellent in terms of advising on the law but just an excellent individual in every capacity and it's been a pleasure to work with you on a daily basis over the last six years wish you all the best you'll be greatly missed but look forward to hearing your reports of life on the other side of the dias and certainly wish you the best and Godspeed.  Just a few notes on the agenda.  Going forward.  Draft advisory opinion 2605 Huckabee for President is being held over the deadline for considering that is in early July so we'll pick that up at the next meeting.  On June 30th in order for further discussions to take place also the proposed revisions to forms 3, 3P, 3X, 6 and instructions as well as the FEC email management policy there are still discussions that are ongoing and a few nets to be worked out and we'll be picking those up at the next meeting, as well.  We'll turn next to Item 3 which is the proposed statement of policy regarding public disclosure of closed enforcement files we have a number of documents that have been proposed we have the original memorandum from Commissioner Goodman as well as memorandum from Commissioners Ravel and Weintraub.  And then a further one from Commission Goodman.  This has been on the -- Commissioner Goodman this has been on the agenda over recent weeks but hasn't had a lot of discussion whether or not we'll have any ability to resolve it now, I don't know if that's possible today. 
But I think certainly the process can be furthered by some additional discussion today.  And then we'll see where we stand after that discussion we may still need to be -- a few kinks may still need to be worked out but I think we can identify with some further words on this matter.  Commissioner Goodman.  
	>> LEE GOODMAN:  Yesterday I understand Commissioner Weintraub prefers not to proceed seriatum that whatever we're going to reach is by a document through the whole or through some Robert's Rules procedures people can propose amendments to the document of the whole but seriatum can leave both sides with half a loaf it's better we proceed on a document and continue to work the crafted document what I would like to do I'm not going to call for a vote today I don't know if anyone wants to call for a vote but I would like to get the ball rolling on discussion because I think we have refined it so many times that we are at least to the point of sort of the moving parts if I could just walk through in Document 16-13-A-1, which is verbatim Commissioner Weintraub's last proposal at the last meeting.  And I have red lined.  I know on the blue document it doesn't show up at red but I sent around a red lined document to all the Commissioners in the secretary's office and the general counsel last night so you could see the changes
	>> COMMISSIONER ELLEN WEINTRAUB:  You didn't send it around in a PDF and most of us were gone from the office at that point so we couldn't see the red lines until we got into the office this morning.
	>> LEE GOODMAN:  Because it was PDF.
	>> COMMISSIONER ELLEN WEINTRAUB:  It was not PDF we can't see the changes on phones.
	>> LEE GOODMAN:  Okay.  Well here they are since we're not going to -- you'll have a chance to see the red lines.  So what -- I thought what I would do is walk through the moving parts here.  And answer any questions that any Commissioner may have.  And then we can work offline.  I would hope that we could possibly bring this to a head at the next public meeting and decide whether we're going to expand the categories or stay with the old policy if we can't come to agreement we can always stay -- we have a policy and we can stay with that.  But if I could, I'll just start with this document on Page -- all of the text you see was Commissioner Weintraub's text and policy.  Until we get to Page 3.  Item -- 
	(Connection lost) No. 1, complaints.  And I just put by item I'll try not to be so tedious.  Clarify.  The second issue is I have -- when the Commission -- then they become complaints and they should be made public on the same basis of actual complaints.  But for 40 years the Commission has not made public those where the Commission did not proceed to open a matter or complaint.  The last time I proposed this, I should tell you, my informal discussions with Commissioners indicated that there were four votes opposed to changing that policy.  
	So I have taken this back to where I think there's a majority of the Commission.  And made clear that we would only make those public where the Commission actually opens the matter under review.  As you know just this week we had a group of them.  We opened some.  Those will be made public.  Those internal referrals.  We declined to open some  Some on the recommendation of the Office of the General Counsel those should not be made public to unfairly stigmatize something that something unthwarted occurred where the Commission didn't see fit to open the matter.  No. 3 is response.  And I have included there including supplements to a response.  It seems logical if you're going to make a response public, you should also make the supplements to a response  And that will also inform something I have proposed to strike later, which is the correspondence between OGC and people preRTB.  Because what those do is they effectively supplement a response.  So without that language proved the subsequent language in No. 12 proved problematic for some Commissioners I think we can take that concern away just by a generic term or a simplified term to the supplements to a response.  No. 6 I simply broke out factual and legal analyses from what was No. 4 is now No. 5 notification of reasonable belief findings.  
	Not all notifications have reason of belief findings.  Some make -- inform someone that there was no finding of reason to believe.  And so some factual and legal analyses inform people that there is no reason to believe.  So I thought it would be clearer to break those out into two separate categories.  No. 9 was merely a clarification.  Statements of reasons are issued by one or more Commissioners.  I wanted to give the dignity if there is a statement of reason by one Commissioner that that would be made public, as well.  But I believe -- I don't believe there would be any misunderstanding or dispute about that.  
	No. 10 is an issue that I think we're going to have to probably continue to discuss.  There is a historical practice within the Commission that where a Commissioner proposed a factual and legal analysis, that failed to garner four votes, Commissioners have been free to issue a statement of reasons and attach that factual and legal analysis to their statement of reasons and many Commissioners on the Commission here today have done that.  And the certifications will show a vote on a factual and legal analysis that failed.  But if you cannot make that factual and legal analysis public, then there is a certification with no edification or explanation for what people voted on  I don't think we have to make all of them public.  But where it is important to a Commissioner to explain their vote where there were a series of votes, I believe one Commissioner should have the ability to say here was a factual and legal analysis that memorialized my position.  It did not garner four votes.  That explains why I voted the way I did in this vote certification.  
	I would consider taking this out since it's conditional upon the request of any Commissioner.  We could craft other language in the text somewhere that preserves this right in generic terms without putting it in a list of those that are automatically made public.  But in other words we could have text that says where one or more or three or more Commissioners agree, other documents may be made public, as well, something generic like that.  Skipping down then to No. 15.  
	The Office of General Counsel often sends us memoranda and reports that effectively supplement the first general counsel's reports and other reports in Item No. 4 above.  And they inform the Commission, the Commission relies on those.  And so it is my -- and there is agreement to make those public in Commissioner Weintraub's proposal.  I think the Commission ought to consider, however, the limitation of that it must be circulated through the Office of Secretary before it's made public.  I think we ought to consider that.  What it leaves is there's the public route and then there's the secretive route.  I can -- right now there's no policy guiding what will be circulated through the Secretary and what won't.  So if there's to be a public route and a secret route we ought to have at least better -- a better definition of the circumstances under which they will be routed and won't be.  No. 16 errata memorandum  Since we are making general counsel's reports and memoranda public to edify the public record to assist people in understanding the machinations and contemplations of the Commission, lawyers regularly look at first general counsel reports to define the law.  If there is a fundamental error in a first general counsel's report, that justifies an errata to amend it later on, I would hate to leave something erroneous out there on the public record with a private or secretive errata sheet that corrects it that no one has access to.  And Dan, we can continue conversation about this, maybe there are different types of erratas some of which correct a legal -- we have one of those recently, I think it was in WSPAN where the Office of General Counsel issued an errata clarifying a point of law that would be important to people trying to comply with the LLC rules that the Commission considered there. 

	No. 17.  This is another area like the factual and legal analyses that fail.  That I think the Commission should consider  If not in this policy, in a narrative that leaves the possibility open that if three or more and what I suggest is three or more Commissioners, where they have considered a document on the -- that was part of the administrative record and it influenced their thinking, the respondents, the complainants and the public have a right to know now we have litigated this issue and lost.  So I think we need to make some provision for making these public whether or not it's in the automatic policy of what goes public or whether or not there's a sentence later in the text that doesn't preclude the possibility of this on a case-by-case, I would consider that type of language, as well.  Old No. 12 is struck.  I've discussed how that could be -- the concept that -- I originally wrote No. 12 last year.  That was in one of my original proposals.  It got picked up by Commissioner Ravel in a later proposal and Commissioner Weintraub, it's in yours.  That caused some concern of some people about how highly prescriptively it was written.  And whether or not it actually implicitly endorsed a practice that's largely been abandoned here in the agency so rather than pick that fight, I propose that we subsume it in the supplements to responses in No. 3.  However, I do have alternative language that's more generic than this that may satisfy everybody.  And that language was in my proposal, which just says correspondence, other than a complaint or a response to a complaint, exchange between the Commission and the respondent discussing the substance of alleged violations and related factual and evidentiary information and the point being it's correspondence that augments the complaint and response process without going into preRTB findings and investigations which have proved to be somewhat problematic and controversial in the agency. 

	The remainder, as you see, remains the same.  However, some of those changes implicated changes in what will not be placed on the public record.  
	And principally the memoranda that are withdrawn and the errata memoranda.  I might add that on No. 4 -- so we're turning now to Page 5.  I didn't catch it  Mr.ÊConan informed me this morning, for the first time we will be saying that we are as a matter of policy not going to be making public, documents related to debt settlement plans.  We regularly -- where the Commission does not approve the debt settlement plan or the administrative determination.  We regularly do make one document public in all of those cases and that's the notice to the respondent that the debt settlement plan hasn't been approved or termination haven't been approved so we probably need an exception for those notice letters I wouldn't recommend that we actually change the practice of the Commission there.  
	Turning then down to the bottom of Page 5, I've been informed that I just sort of misfired in an edit at the bottom of Page 5 under Alternative Dispute Resolutions by the time they get matters, they are already open in the agency.  And therefore, I would strike that proposed edit at the bottom of Page 5 and the top of Page 6.  Moving down on Page 6, No. 8, settlement agreement.  It said negotiated settlement agreements  Even settlement agreements that aren't executed.  No. 8 on Page 6.  This is merely a technical clarification.  I think what we intend is the final executed settlement agreement we made public and I think that had more precision than just a negotiated settlement agreement.  
	I made other technical changes you'll see throughout.  Under the administrative functions section, I actually considered breaking this into a separate policy.  Leave enforcement records as the subject of one policy and the administrative functions as a separate policy.  Not that I oppose them.  Just because they are different petals of fish they are different genres of documents and we make so many administrative documents public already on our Web site, hundreds of categories, that it seemed odd to single these out for a major policy.  I didn't want to disrupt the harmony that we were moving toward agreement so I left it and just tried to incorporate that thought by saying well at least this is a non-exclusive list of administrative documents that will be made public.  I don't think there was any magic to these.  Some of these are already on our Web site.  Many of these are.  Case closing processing statistics, for example, there's a chart already on our Web site about that.  Now, the final changes come at the bottom of Page 7.  And they are of two different kinds.  The next to last sentence says in all matters the Commission may, as required or as otherwise appropriate, redact information that is exempt from disclosure under the FEC, the principles set forth by the Court of Appeals in AFCIO and the FOIA and the reason for that change was the language proposed was the Commission will continue, will redact.  FOIA exceptions are largely discretionary and I don't want to by publish we Federal Register today email a blanket determination for all -- we will redact all FOIA exceptions just leave it as appropriate and of course some redactions are required under the FECA or the principles set forth in AFCIO. 
So I was just trying to leave open our discussion to act principally under FOIA exceptions.  And finally, the last sentence, in appropriate cases implicating the law enforcement privilege, the Commission reserves the right to serve privilege to withhold an entire document I have preserved that sentence from my prior proposal at the request of the general counsel who thought that was important to preserve.  So that -- those are the changes that I think are the moving parts.  And I'll be happy to answer any questions or hear any reaction and we can continue to work offline between now and the next meeting.
	>> CHAIRMAN MATTHEW PETERSEN:  Commissioner Weintraub.
	>> COMMISSIONER ELLEN WEINTRAUB:  Thank you, Mr.ÊChairman.  Thank you Commissioner Goodman.  I appreciate the feedback.  As you know, we've been eagerly awaiting it.  And I think there are still large areas of agreement.  We're probably not going to agree on everything at the end of the day.  But as I said when -- I saw this document for the first time last night when I checked my email at 9:30 last night and it was on my phone and I couldn't see the changes and I didn't really understand what it was.  I took a quick look at it this morning and I think there's, again, some things we're going to agree on and some things we're going to disagree on.  But I think there are large areas of agreement.  And I'm hopeful that by the next meeting, we can hone it down to something that everybody is pretty comfortable with.  Probably no one is going to get everything they want out of this document  But I think there are as I said vast proportions of this document that are probably agreeable to all sides  And we'll just have to work on the pieces that are more controversial.  And I'm looking forward to working with you and discussing it with my colleagues and hearing from OGC on it when we have all had a little bit more time to process it.  But thank you.  
	>> CHAIRMAN MATTHEW PETERSEN:  Are there any -- is there any further discussion or comments?  If not, then we will pick this back up in a couple of weeks on June 30th.  And hopefully by that time, we will be in a position to move forward on that.  
	We'll turn now to Item 4 on our agenda, which is discussion of regulation 201602 and final draft for the civil money penalty inflation adjustments we have we have Esther Gyory and Neven Stipanovic of the Office of General Counsel to give a presentation good morning and when you're ready please proceed with the presentation
	>> ESTHER GYORY:  Good morning, thank you very much the draft interim final rules in document 16-23-A would adjust the penalties for inflation in compliance with the Federal civil penalties inflation adjustment act improvements act of 2015 that act requires the Commission to make a one-time catchup through an interim if I am rule to be effective no later than August 1st, 2016.  And to make annual adjustments thereafter.  The act sets out new formulas for making inflation adjustments.  
	We would also ask authority to make any technical and conforming amendments to the document as we prepare it for publication in the Federal Register.  Thank you.  I would be happy to address any questions.
	>> CHAIRMAN MATTHEW PETERSEN:  Thank you for that presentation.  Do we have any question of counsel regarding this document?  I just have just a couple of quick -- questions and comments.  So under the act that was passed by Congress, this is a mandatory rulemaking that each agency has to undertake in order to implement these adjustments by July 1st was the date of the -- the publication deadline.  August 1st is the effective deadline.  And from what I understand there's a 30-day comment window after publication.
	>> There is a period for comment.  Yeah, we have included it from the time that it would be published 30 days after.
	>> CHAIRMAN MATTHEW PETERSEN:  Okay.  To the extent that one wants to weigh in on the adjustments that are made through this rulemaking then they have that opportunity to do so.  But I don't have any other questions on this.  Are there any other comments?  Do we have a motion?  
	>> VICE CHAIR STEVEN WALTHER:  Mr.ÊChairman I move the approval of the regulation 2016-02 draft interim final.
	>> CHAIRMAN MATTHEW PETERSEN:  Any discussion if not all those indicate by saying aye.
(Chorus of ayes).
	>> CHAIRMAN MATTHEW PETERSEN:  That vote carries by a vote of 6-0.  Thank you Ms.ÊGyory that includes our consideration of this agenda.  Are there any administrative matters that need to be addressed
	>> There are none.
	>> CHAIRMAN MATTHEW PETERSEN:  This meeting is adjourned.  And we have a continuation of our executive session, which we will pick up.  Let's try to -- what time do we have right now?  Let's plan on being back by 11:30. 


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This is being provided in a rough-draft format.  Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.  
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