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U.S. Code as of:
01/3/05
Section 437g. Enforcement
(a) Administrative and judicial practice and procedure
(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 Commission. 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
provisions 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 violation. Before
the Commission conducts any vote on the complaint, other than a
vote to dismiss, any person so notified shall have the opportunity
to demonstrate, in writing, to the Commission 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 complaint under paragraph
(1) or on the basis of information ascertained in the normal course
of carrying out its supervisory responsibilities, determines, by an
affirmative vote of 4 of its members, that it has reason to believe
that a person has committed, or is about to commit, a violation of
this Act or chapter 95 or chapter 96 of title 26, the Commission
shall, through its chairman or vice chairman, notify the person of
the alleged violation. Such notification shall set forth the
factual basis for such alleged violation. The Commission shall make
an investigation of such alleged violation, which may include a
field investigation or audit, in accordance with the provisions of
this section.
(3) The general counsel of the Commission shall notify the
respondent of any recommendation 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 replying to the brief of general counsel. Such briefs
shall be filed with the Secretary of the Commission and shall be
considered by the Commission 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 person has committed, or is about to commit, a violation
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
conference, conciliation, and persuasion, and to enter into a
conciliation agreement with any person involved. Such attempt by
the Commission to correct or prevent such violation may continue
for a period of not more than 90 days. The Commission may not enter
into a conciliation agreement under this clause except pursuant to
an affirmative vote of 4 of its members. A conciliation agreement,
unless violated, is a complete bar to any further action by the
Commission, including the bringing of a civil proceeding 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 person, and no
information derived, in connection with any conciliation attempt by
the Commission under subparagraph (A) may be made public by the
Commission without the written consent of the respondent and the
Commission.
(ii) If a conciliation agreement is agreed upon by the Commission
and the respondent, the Commission shall make public any
conciliation agreement signed by both the Commission and the
respondent. If the Commission makes a determination that a person
has not violated this Act or chapter 95 or chapter 96 of title 26,
the Commission shall make public such determination.
(C)(i) Notwithstanding subparagraph (A), in the case of a
violation of any requirement of section 434(a) of this title, the
Commission may -
(I) find that a person committed such a violation on the basis
of information obtained pursuant to the procedures described in
paragraphs (1) and (2); and
(II) based on such finding, require the person to pay a civil
money penalty in an amount determined under a schedule of
penalties which is established and published by the Commission
and which takes into account the amount of the violation
involved, the existence of previous violations by the person, and
such other factors as the Commission considers appropriate.
(ii) The Commission may not make any determination adverse to a
person under clause (i) until the person has been given written
notice and an opportunity to be heard before the Commission.
(iii) Any person against whom an adverse determination is made
under this subparagraph may obtain a review of such determination
in the district court of the United States for the district in
which the person resides, or transacts business, by filing in such
court (prior to the expiration of the 30-day period which begins on
the date the person receives notification of the determination) a
written petition requesting that the determination be modified or
set aside.
(5)(A) If the Commission believes that a violation of this Act or
of chapter 95 or chapter 96 of title 26 has been committed, a
conciliation agreement entered into by the Commission under
paragraph (4)(A) may include a requirement that the person involved
in such conciliation agreement shall pay a civil penalty which does
not exceed the greater of $5,000 or an amount equal to any
contribution or expenditure involved in such violation.
(B) If the Commission believes that a knowing and willful
violation of this Act or of chapter 95 or chapter 96 of title 26
has been committed, a conciliation agreement entered into by the
Commission under paragraph (4)(A) may require that the person
involved in such conciliation agreement shall pay a civil penalty
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 441f of this
title, 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).
(C) If the Commission by an affirmative vote of 4 of its members,
determines that there is probable cause to believe that a knowing
and willful violation of this Act which is subject to subsection
(d) of this section, or a knowing and willful violation of chapter
95 or chapter 96 of title 26, has occurred or is about to occur, it
may refer such apparent violation to the Attorney General of the
United States without regard to any limitations set forth in
paragraph (4)(A).
(D) In any case in which a person has entered into a conciliation
agreement with the Commission under paragraph (4)(A), the
Commission may institute a civil action for relief under paragraph
(6)(A) if it believes that the person has violated any provision of
such conciliation agreement. For the Commission to obtain relief in
any civil action, the Commission need only establish that the
person has violated, in whole or in part, any requirement of such
conciliation agreement.
(6)(A) If the Commission is unable to correct or prevent any
violation of this Act or of chapter 95 or chapter 96 of title 26,
by the methods specified in paragraph (4), the Commission may, upon
an affirmative vote of 4 of its members, institute a civil action
for relief, including a permanent or temporary injunction,
restraining order, or any other appropriate order (including an
order for a civil penalty which does not exceed the greater of
$5,000 or an amount equal to any contribution or expenditure
involved in such violation) in the district court of the United
States for the district in which the person against whom such
action is brought is found, resides, or transacts business.
(B) In any civil action instituted by the Commission under
subparagraph (A), the court may grant a permanent or temporary
injunction, restraining order, or other order, including a civil
penalty which does not exceed the greater of $5,000 or an amount
equal to any contribution or expenditure involved in such
violation, upon a proper showing that the person involved has
committed, or is about to commit (if the relief sought is a
permanent or temporary injunction or a restraining order), a
violation of this Act or chapter 95 or chapter 96 of title 26.
(C) In any civil action for relief instituted by the Commission
under subparagraph (A), if the court determines that the Commission
has established that the person involved in such civil action has
committed a knowing and willful violation of this Act or of chapter
95 or chapter 96 of title 26, the court may impose a civil penalty
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 441f of this
title, 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).
(7) In any action brought under paragraph (5) or (6), subpenas
for witnesses who are required to attend a United States district
court may run into any other district.
(8)(A) Any party aggrieved by an order of the Commission
dismissing a complaint filed by such party under paragraph (1), or
by a failure of the Commission to act on such complaint during the
120-day period beginning on the date the complaint is filed, may
file a petition with the United States District Court for the
District of Columbia.
(B) Any petition under subparagraph (A) shall be filed, in the
case of a dismissal of a complaint by the Commission, within 60
days after the date of the dismissal.
(C) In any proceeding under this paragraph the court may declare
that the dismissal of the complaint or the failure to act is
contrary to law, and may direct the Commission to conform with such
declaration within 30 days, failing which the complainant may
bring, in the name of such complainant, a civil action to remedy
the violation involved in the original complaint.
(9) Any judgment of a district court under this subsection may be
appealed to the court of appeals, and the judgment of the court of
appeals affirming or setting aside, in whole or in part, any such
order of the district court shall be final, subject to review by
the Supreme Court of the United States upon certiorari or
certification as provided in section 1254 of title 28.
(10) Repealed. Pub. L. 98-620, title IV, Sec. 402(1)(A), Nov. 8,
1984, 98 Stat. 3357.
(11) If the Commission determines after an investigation that any
person has violated an order of the court entered in a proceeding
brought under paragraph (6), it may petition the court for an order
to hold such person in civil contempt, but if it believes the
violation to be knowing and willful it may petition the court for
an order to hold such person in criminal contempt.
(12)(A) Any notification or investigation made under this section
shall not be made public by the Commission or by any person without
the written consent of the person receiving such notification or
the person with respect to whom such investigation is made.
(B) Any member or employee of the Commission, or any other
person, who violates the provisions of subparagraph (A) shall be
fined not more than $2,000. Any such member, employee, or other
person who knowingly and willfully violates the provisions of
subparagraph (A) shall be fined not more than $5,000.
(b) Notice to persons not filing required reports prior to
institution of enforcement action; publication of identity of
persons and unfiled reports
Before taking any action under subsection (a) of this section
against any person who has failed to file a report required under
section 434(a)(2)(A)(iii) of this title for the calendar quarter
immediately preceding the election involved, or in accordance with
section 434(a)(2)(A)(i) of this title, the Commission shall notify
the person of such failure to file the required reports. If a
satisfactory response is not received within 4 business days after
the date of notification, the Commission shall, pursuant to section
438(a)(7) of this title, publish before the election the name of
the person and the report or reports such person has failed to
file.
(c) Reports by Attorney General of apparent violations
Whenever the Commission refers an apparent violation to the
Attorney General, the Attorney General shall report to the
Commission any action taken by the Attorney General regarding the
apparent violation. Each report shall be transmitted within 60 days
after the date the Commission refers an apparent violation, and
every 30 days thereafter until the final disposition of the
apparent violation.
(d) Penalties; defenses; mitigation of offenses
(1)(A) Any person who knowingly and willfully commits a violation
of any provision of this Act which involves the making, receiving,
or reporting of any contribution, donation, or expenditure -
(i) aggregating $25,000 or more during a calendar year shall be
fined under title 18, or imprisoned for not more than 5 years, or
both; or
(ii) 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) In the case of a knowing and willful violation of section
441b(b)(3) of this title, the penalties set forth in this
subsection shall apply to a violation involving an amount
aggregating $250 or more during a calendar year. Such violation of
section 441b(b)(3) of this title may incorporate a violation of
section 441c(b), 441f, or 441g of this title.
(C) In the case of a knowing and willful violation of section
441h of this title, the penalties set forth in this subsection
shall apply without regard to whether the making, receiving, or
reporting of a contribution or expenditure of $1,000 or more is
involved.
(D) Any person who knowingly and willfully commits a violation of
section 441f of this title involving an amount aggregating more
than $10,000 during a calendar year shall be -
(i) imprisoned for not more than 2 years if the amount is less
than $25,000 (and subject to imprisonment under subparagraph (A)
if the amount is $25,000 or more);
(ii) fined not less than 300 percent of the amount involved in
the violation and not more than the greater of -
(I) $50,000; or
(II) 1,000 percent of the amount involved in the violation;
or
(iii) both imprisoned under clause (i) and fined under clause
(ii).
(2) In any criminal action brought for a violation of any
provision of this Act or of chapter 95 or chapter 96 of title 26,
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
Commission under subsection (a)(4)(A) of this section which
specifically deals with the act or failure to act constituting such
violation and which is still in effect.
(3) In any criminal action brought for a violation of any
provision of this Act or of chapter 95 or chapter 96 of title 26,
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
Commission under subparagraph (a)(4)(A);
(B) the conciliation agreement is in effect; and
(C) the defendant is, with respect to the violation involved,
in compliance with the conciliation agreement.
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