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May 29, 2003

**[VIA E-MAIL]{.underline}**

Susan L. Lebeaux

Assistant General Counsel

Federal Election Commission

999 E Street NW

Washington, DC 20463

Re: [Notice 2003-9; Enforcement Procedures]{.underline}

Dear Ms. Lebeaux:

FEC Watch, a project of the Center for Responsive Politics (CRP), is
pleased to submit the attached comments on the Notice of Proposed
Rulemaking on Enforcement Procedures, published at 68 *Fed. Reg.* 23311
(May 1, 2003).

Lawrence M. Noble, Executive Director of CRP, requests an opportunity to
testify at the hearing.

![](media/image2.png){width="2.3375in"
height="0.9069444444444444in"}Respectfully submitted,

![](media/image3.png){width="1.8180555555555555in"
height="0.675in"}Lawrence Noble Paul Sanford

Executive Director Director

Center for Responsive Politics FEC Watch

Attachment

**BEFORE THE FEDERAL ELECTION COMMISSION**

**NOTICE 2003-9**

**ENFORCEMENT PROCEDURES**

**Comments of FEC Watch and the Center for Responsive Politics**

**I. Introduction**

FEC Watch and the Center for Responsive Politics submit these comments
in response to the Federal Election Commission\'s Notice entitled
Enforcement Procedures. 68 *Fed. Reg.* 23311 (May 1, 2003). FEC Watch is
a project of the Center For Responsive Politics, a non-partisan,
non-profit research group based in Washington, D.C. that tracks money in
politics and its effect on elections and public policy. FEC Watch\'s
objective is to increase enforcement of the nation\'s campaign finance,
lobbying, and ethics laws. FEC Watch monitors the enforcement activities
of the Federal Election Commission (FEC) and other government entities,
including the Department of Justice and congressional ethics committees,
and encourages these entities to aggressively enforce the law.

**II. Comments**

A review of the Federal Election Commission's enforcement procedures
involves balancing the public's right to timely and effective
enforcement of the nation's campaign finance laws, the rights of
respondents in cases to fair treatment, and the obligation of the FEC to
meet its statutory mandate. Any such discussion must begin with the
obvious fact that for all relevant purposes, the FEC does not have the
power or authority to declare that anyone has violated the law, impose
any penalties or order any remedial action.[^1] This is critical because
"due process is flexible and calls for such procedural protections as
the particular situation demands." *Morrissey v. Brewer,* 408 U.S. 471,
481, 92 S. Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). No matter what
procedural "rights" the FEC decides to give to respondents, at the end
of the day all the FEC will be able to do is either settle a case or
bring the matter to court for a trial *de novo,* where the agency will
have to prove its case from scratch. Nothing the FEC might do to its
enforcement procedures will change this. With this in mind, we offer the
following specific comments.

**A. Designating Respondents in a Complaint**

The Commission should designate a party as a respondent when the agency
has information (whether from the complaint or from information
ascertained in the normal course of carrying out its supervisory
responsibilities) that fairly implicates the party in a possible
violation of the law. Obviously, this is not an exact science and will
require judgment and prosecutorial discretion on the part of the agency.
However, the agency should err on the side of giving notice, which will
allow the party to respond and leave the agency with the option of
pursuing the party or not, as the facts develop.

**B. Confidentiality Advisement**

It is appropriate for the FEC to advise witnesses of the statutory
confidentiality provision (2 U.S.C. 437g(a)(12)). However, as a general
matter, the FEC should not attempt to further "clarify" the provision.
First, in multi-respondent cases the application of the provision may be
less than clear. For example, if a witness tells respondent A about what
he/she learned of the case against respondent B, does respondent B have
a cause of action against the witness? What if respondent A then tells
the press? Given these difficult situations, it is best for the FEC to
give its standard notice and not try to tailor it to each case.

While the statutory confidentially provision is read to mainly serve the
interest of respondents, the FEC has a separate interest in
confidentiality that stems from its role as a law enforcement agency.
During an investigation, the FEC has an interest in trying to lessen the
opportunity for witnesses and respondents to coordinate or tailor their
testimony. While there are limits to how far the agency can go in
ensuring the integrity of its investigation, it should not volunteer
information that will undermine its law enforcement role. To this end,
we strongly recommend that the FEC seek advice and input from other law
enforcement agencies that have faced similar issues.[^2]

**C. Motions Before the Commission**

The question of how to deal with motions is one that must be answered in
the context of the agency's lack of adjudicatory authority. Since the
agency's findings of "Reason to Believe" or "Probable Cause to Believe"
are not adjudications, there is little reason to allow motions that seek
to reverse those decisions. The statute already provides respondents
with several opportunities to respond to allegations and further
opportunities will only delay the process. Each finding merely triggers
a move to the next step and is based on the facts and circumstances
known to the Commission at the time the finding was made. Since the
findings do not carry with them any sanctions or requirements, the
agency should continue to move forward and not revisit each finding
through the filing of motions.

The only possible exception might be where there is a procedural defect
in a finding that is brought to the Commission's attention by a
respondent. For example, should the Commission fail to properly notify a
respondent of a complaint before moving to Reason to Believe, the agency
could consider a motion reconsider the finding. However, this should be
limited to procedural defects and the regulations should provide a set
time limit on the filing of such motions. At the same time, the
regulation should also make clear that motions based on a disagreement
with the law or facts upon which the finding was made will not be
entertained.

**D. Depositions and Document Production Practices**

Again, the FEC's practices regarding the making of depositions available
to witnesses and respondents must be viewed in light of the
non-adjudicatory nature of the process. All the finding of RTB does is
to trigger an investigation. While the respondent does have certain
statutory rights, the FEC also has certain rights and powers as a law
enforcement agency conducting an investigation. One of these rights is
to keep what it learns in its investigation confidential so as to not
allow respondents and witnesses to coordinate testimony, destroy
evidence or otherwise undermine the investigation. There is no reason
for the agency to prematurely disclose any of its investigatory material
to respondents while the case is being investigated. Where disclosure is
made during an investigation, it should be based on an analysis of what
will most help the agency do its job.

Once the FEC gets to the probable cause to believe stage, the question
gets just slightly more complicated. Again, regardless of what access
the FEC gives respondents to the FEC investigatory file, the agency will
still have to prove its case *de novo* in court. Therefore, there is no
reason for the agency to artificially and prematurely apply the Federal
Rules of Civil Procedure.

However, the agency (and public) often benefits from the respondent
being able to respond to specific evidence ascertained during the
investigation. Therefore, release of the relevant depositions and
evidence may have some benefit. The FEC should establish a minimum base
line of what will be released (e.g. respondents own testimony and
testimony directly related to the allegations in question) and deal with
other situations on a case-by-case basis. We also urge the FEC to
inquire about the practices of other law enforcement agencies in this
regard.

**E. Extensions of Time**

The first request for an extension of time to respond to a probable
cause brief should be granted for good cause shown on the agreement that
the statute of limitations will be tolled. Further extensions should
only be granted for extraordinary reasons.

**F. Appearances before the Commission**

The Commission should not provide hearings at which respondents or their
counsel may appear prior to a finding of probable cause to believe a
violation has occurred. Not only does the statute not provide for such
hearings, but also there is no obligation to provide such hearings under
the APA, nor is one required by Due Process. Since the agency cannot
adjudicate, hearings would only serve to delay cases, without providing
the public with any benefit in terms of effective enforcement of the
law.

Moreover, as a practical matter, hearings would be difficult, if not
impossible to manage. Arguably, hearings are most effective when they
aid a fact finder. Putting aside the fact that the Commission is not a
"fact-finder," it is not equipped to take testimony, cross-examine
witnesses, nor even subpoena witnesses for a trial-like hearing.

Even if the Commission were to limit the hearing to mainly legal issues,
the hearing would only serve to slow down the process. Looking at the
time and effort put into hearings provided to publicly financed
candidates facing a repayment, it is difficult to see how the Commission
would manage hearings in enforcement cases. To be sure, once the
Commission announced it would hold hearings, most lawyers representing
clients in enforcement cases would be extremely reluctant to let pass
the opportunity to appear before the Commission, especially where there
is little downside, since nothing the Commission decides leads to any
sanction and they will always have the opportunity to reargue the matter
in court. This would lead to an immediate backlog of cases awaiting a
hearing. Moreover, it would raise the costs of enforcement cases to
respondents and the agency and would leave those who do not have access
to, or cannot afford, experienced campaign finance lawyers at a distinct
disadvantage. (Imagine the situation where only respondent A can afford
to be represented at a hearing, where his or her counsel uses the
opportunity to put the blame for the violation squarely on
non-represented respondent B.)

If the Commission believes that the process should become adjudicatory,
it should ask Congress to amend the statute to recreate the FEC as an
adjudicatory agency, with the full powers that accompany such a
structure. Otherwise, the Commission should not further burden the
process by giving respondents opportunities that neither the law nor
sound public policy require.

**G. Releasing Documents or Filing Suit Before an Election**

Under no circumstances should the Commission adopt a policy that would
require the agency to intentionally withhold information from the
public, or refrain from filing suit, because of an upcoming election.
The reality is that just as the release of information may impact the
voters, the withholding of information impacts the voters in that they
are deprived of information to which they have a right. Likewise, for
each candidate grateful for the agency hiding the results of an
enforcement action from the public until after an election, an opposing
candidate will be angry and frustrated that the voters were not given
the facts before they went to the polls.

The Commission should never take into account the political
ramifications of the release of information or the filing of a suit. To
begin to do so will sink the FEC into an impossible political swamp and
further undermine the agency's role as a non-partisan enforcement
agency.

**H. Public Release of Directives and Guidelines**

The FEC should consult with other agencies about the release of civil
penalty guidelines. However, the release of such guidelines would appear
counter-productive as long as the agency is negotiating civil penalties,
rather than imposing them.

Other directives and internal procedures should be released if they come
under any of the exemptions provided by the Freedom of Information Act.

**I. Timeliness**

Timeliness in the enforcement process has been a problem since the early
days of the Commission. While speeding up the enforcement process should
be a goal of any changes in the procedures, it should be remembered that
effective law enforcement may take time. Artificial time barriers only
mean that the agency will have to forgo investigating complex factual
cases. Moreover, such barriers encourage delay on the part of
respondents.

One of the major barriers to speedier enforcement is a lack of
resources. Congressional hostility to effective enforcement of the law
is evidenced by the historic reluctance to provide sufficient funding to
the agency (and, too often, the agency's reluctance to request
sufficient funding). In this regard, it would be interesting and
informative for the FEC to review and compare the length of time taken
and the resources used by other law enforcement entities investigating
and prosecuting complex cases. For example, a look at Department of
Justice's and special prosecutors' use of resources and time in various
investigations of campaign finance matters in recent years may put the
FEC experience and needs in context.

**J. Prioritization**

The Enforcement Prioritization System has been an effective tool in
allowing the FEC to manage its caseload. However, the prioritization
system should not be used as a method by which the agency avoids
difficult or controversial issues. The mix of cases should always
include ones with complex and difficult issues, even where there is
little consensus about the application of the law. The public
resolution, or lack of resolution, of these cases will allow the public
and Congress to judge the ability of the agency to do its job.

**K. Memorandum of Understanding with the Department of Justice**

Given the recent changes in the law brought about by the Bipartisan
Campaign Reform Act of 2002, the FEC and Department of Justice should
revisit the Memorandum of Understanding signed in 1977.

**L. Dealing with 3-3 Votes at "Reason to Believe" Stage**

The Commission should ask Congress to amend the statute to allow an
investigation to proceed on the vote of three Commissioners where the
general counsel has recommended such an investigation.

**III. Conclusion**

FEC Watch and the Center for Responsive Politics hope that these
comments are useful to the Commission as it considers changes to its
Enforcement Procedures. As indicated in our cover memo, Lawrence Noble
would like to testify at the hearing.

[^1]: The Notice does not appear to address the audit process for public
    financed presidential campaigns or the administrative fine programs,
    both of which do involve elements of adjudication.

[^2]: The Notice asks for information on what other law enforcement
    agencies do. We urge the FEC to directly contact other law
    enforcement agencies on a staff to staff basis. It is in that
    context that the FEC will best get the unvarnished view of what
    works and does not work from the perspective of those assigned to
    enforce the law.