![](media/image1.png){width="3.70625in" height="0.8680555555555556in"}

May 30, 2003

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

Susan L. Lebeaux

Assistant General Counsel

Federal Election Commission

999 E Street, NW

Washington, D.C. 20463

**Re: Notice 2003-9**

Dear Ms. Lebeaux:

I am writing on behalf of the Campaign Legal Center to provide comment
on the Federal Election Commission's Notice of Public Hearing and
Request for Public Comment Regarding Enforcement Procedures, 68 Fed.
Reg. 23,311 (May 1, 2003) (Notice 2003-9). The Campaign Legal Center is
a non-profit, non-partisan organization established to represent the
public interest in strong enforcement of the nation's campaign finance
laws. Through its legal staff, the organization participates in the
administrative and legal proceedings in which campaign finance and
campaign-related media laws are interpreted and enforced.

Particularly following the enactment of comprehensive Federal campaign
finance reform, it is indeed important to consider the FEC's ability and
willingness to enforce Federal campaign finance law in a coherent and
effective manner. As a practical matter, since the creation of the FEC
pursuant to the Federal Election Campaign Act Amendments of 1974, Pub.
L. No. 93-443, 88 Stat. 1263 (1974), the ability of Federal campaign
finance laws to deliver their intended protection of the Federal
political process from actual or apparent corruption has turned
substantially on the Commission's capacity and desire to implement and
enforce these laws to their full extent. In fact, the FEC's role within
the scheme for enforcing Federal campaign finance law has arguably
increased over the years, as the agency has proved successful in
challenging the standing of those who have, under 2 U.S.C. § 437(g)(8),
filed suit in U.S. District Court for the District of Columbia to
contest its dismissal of complaints.[^1]

The current Notice generally solicits comment on Commission enforcement
procedures and lists specific topics for which public input is
requested. These topics can (for the most part) be characterized as
proposals for additional procedures for the benefit of respondents --
sometimes labeled "due process."[^2]

To assess those specific proposals, it is necessary first to take a
broader look at the Commission's current capacity to fulfill its
critical enforcement mission, given its prevailing structure and
outlook. It is likewise important to put those proposals in perspective,
in terms of what constitute the chief enforcement "problems" facing the
agency.

Unfortunately, the FEC has over the years failed to enforce Federal
campaign finance law adequately, due to a combination of structural
constraints on the enforcement process (codified in law) and, on many
occasions, a lack of will on the part of the Commission. The problems
lie in the following areas:

-   **Deadlocks:** Under the Federal Election Campaign Act of 1971 (as
    amended), there are six Commissioners appointed to the FEC. 2 U.S.C.
    § 437c(a)(1). Commission action to commence a full-fledged
    investigation in response to an externally or internally generated
    complaint, to find probable cause to believe a violation was or is
    about to be committed, to enter into a conciliation agreement, to
    initiate a civil action in court seeking injunctive relief or the
    payment of civil penalties by a violator, and to appeal court
    decisions requires the affirmative vote of four Commissioners. 2
    U.S.C. § 437g(a)(2), (4)(A)(i), (6)(A). This structure has resulted
    in deadlocks (*i.e.*, three-to-three "tie" votes) on important
    enforcement matters, precluding further investigatory or enforcement
    action by the agency.[^3]

-   **Cumbersome Enforcement Process**: The FEC has a cumbersome
    enforcement process. Pursuit of an internally or externally
    generated complaint requires progress through multiple internal
    stages, including the opening of a Matter Under Review, the
    "reason-to-believe stage," "pre-probable-cause conciliation," the
    "probable cause to believe" stage, and "post-probable cause
    conciliation." The completion of this internal Commission process
    does not even enable the agency to impose a civil monetary penalty
    on violators unwilling to conciliate on acceptable terms.[^4]
    Instead, the Commission must then vote again on whether to pursue a
    civil suit in court for an injunction or civil monetary penalties.
    In the event such a suit is authorized, the Commission's Office of
    General Counsel represents it in district and appellate court
    proceedings, which can be lengthy and costly in their own right.

> In practice, despite the FEC's efforts to prioritize its enforcement
> caseload, these procedures are prone to producing considerable delay
> in enforcement responses to cases presenting significant campaign
> finance issues.[^5] As observed by commentators with diverse
> perspectives on the ideal state of Federal campaign finance law and
> the structure and functioning of the Commission itself, this delay
> severely compromises the effectiveness of the agency's enforcement
> mission.[^6]

-   **No Random Audit Authority:** In the late 1970's, Congress removed
    the Commission's authority to conduct random audits of
    campaigns.[^7] Audits of non-presidential campaigns are now
    permitted only "for cause." 2 U.S.C. § 438(b). This is not an
    adequate mechanism for detecting or deterring political committee
    compliance problems, because committees engaged in significant
    violations can avoid audit by filing forms that are timely and
    appear to be in order.[^8]

-   **Inadequate and Unstable Funding:** The FEC's funding is subject to
    the congressional appropriations process. The agency has faced
    budget shortfalls which have compromised its ability to activate and
    process enforcement matters in a timely and effective manner.[^9]

-   **Failure of Will:** Apart from constraints on effective enforcement
    by the FEC stemming from the structure of or authorities or
    resources available to the agency, the Commission has opted not to
    enforce the law in a number of circumstances presenting significant
    campaign finance violations, including (among other examples):

    -   *national party presidential "issue ads":* Through a series of
        3-3 votes effectively rejecting the findings of its General
        Counsel, the Commission failed to treat national party spending
        on electioneering advertisements coordinated with the 1996
        presidential campaigns (financed in part with soft money) as
        subject to the party coordinated expenditure limits. In so
        doing, the Commission departed from Federal campaign finance
        law, rejected its own precedents (subjecting political party
        spending on ads with an "electioneering message" to those
        spending limits, even if the ads did not expressly advocate an
        election result) and denied obvious reality about the conduct in
        question.[^10] This failure to enforce the law resulted in
        similar conduct in the 2000 presidential elections and
        contributed to the rise of soft money "joint fundraising
        committees" (in which Federal candidates used the political
        parties to launder soft money they raised into their own
        races).[^11]

    -   *outside group coordination with parties and candidates:*
        Starting in 1999, the Commission began eviscerating its own
        capacity to enforce the longstanding statutory requirement that
        spending by outside groups in coordination with Federal
        candidates and political parties for the purpose of influencing
        Federal elections be treated as in-kind contributions subject to
        Federal source prohibitions, amount limitations, and reporting
        requirements. 2 U.S.C. § 441a(a)(7)(B). By a 2-4 vote, it
        rejected the recommendation of its General Counsel and failed to
        appeal a 1999 district court decision adopting a novel, narrow
        interpretation of the concept of coordination in a case
        involving massive and systematic coordination by an outside
        group with a presidential campaign and Federal candidates,
        despite the court's invitation for an appeal[^12] and
        indications that the Supreme Court had a more expansive
        perspective on what constitutes coordination.[^13]

> Following its refusal to appeal, the Commission (by a 4-2 vote)
> adopted narrow coordination regulations based on that single
> decision.[^14] This move heralded the demise of two enforcement
> actions initiated previously by the Commission (under its former
> coordination rules which better reflected the statute) and pending at
> the time, concerning massive campaign spending by business and labor
> groups in coordination with the political parties and Federal
> candidates in the 1996 elections. Indeed, though acknowledging that
> labor groups had both access to and the authority to approve or
> disapprove the plans, projects and needs of the DNC with respect to
> "Coordinated Campaign" activity and that there was likewise a strong
> case for a finding of coordination between business groups and
> Republican leaders under the Commission's old regulations, the
> Commission dismissed both cases precisely because of the narrowness of
> its new coordination rules.[^15]

-   *ban on corporate contributions*: By a 2-3 vote (with one
    Commissioner abstaining), the FEC rejected the advice of its General
    Counsel and refused to recommend an appeal of the U.S. Court of
    Appeals for the Fourth Circuit's decision in *Beaumont v. FEC,* 278
    F.3d 261 (4th Cir. 2002), which struck down Federal campaign finance
    law's prohibition on corporate contributions to political candidates
    for a subset of incorporated non-profits.[^16] This was the first
    time in the history of the agency that Commissioners were not
    willing to defend the constitutionality of a statutory contribution
    restriction.[^17] The Commission's failure to appeal flies in the
    face of the fact that Supreme Court precedent rules out any such an
    allowance for corporate political contributions.[^18] Again for the
    first time, the U.S. Solicitor General, Theodore B. Olson, overruled
    the FEC and decided to appeal the *Beaumont* decision, noting in the
    petition for a writ of certiorari that "the question presented is
    undeniably important."[^19]

-   *political committee status:* The FEC failed to appeal the U.S.
    District Court for the District of Columbia's decision in *FEC v.
    GOPAC*, 871 F. Supp. 1466 (D.D.C. 1994), which misinterpreted the
    statute to require that an organization have a major purpose of
    electing particular Federal candidates in order to constitute a
    Federal political committee.[^20]

This combination of congressionally inflicted and self-inflicted
shackles is the chief "enforcement" problem involving the FEC. Clearly,
broad reform of the functioning of the agency -- with a principal
objective of improving enforcement of Federal campaign finance law -- is
in order.[^21]

As previously noted, the current Notice specifically solicits comments
on proposals for additional procedures for the benefit of respondents --
sometimes labeled "due process."

The term "due process" begs the question, however. As a FEC General
Counsel once indicated during a symposium on the Commission's
performance in enforcing Federal campaign finance law, "asking the due
process question is really just opening the discussion and doesn't give
you any answers because in talking about due process you then have to
decide what process is due them, *and that answer . . . depends very
much on what is going on*."[^22]

The prior discussion has emphasized that, in its current configuration,
the FEC does not have the power to find violations or unilaterally
impose sanctions on respondents.[^23] At the end of its lengthy,
multi-stage internal enforcement process, the Commission must then
initiate litigation in Federal court in order to secure the imposition
of civil penalties upon violators unwilling to conciliate on acceptable
terms. During those *de novo* judicial proceedings, the defendant would
in fact receive a full array of procedural rights, including some of the
rights described in the Notice.[^24] Given this prevailing enforcement
structure, enhanced procedural protections for respondents such as
mandated broader and earlier access to the Commission's investigatory
material (*e.g.*, depositions and documents of other respondents and
third parties) during its internal proceedings, rights for respondents
or their counsel to appear and present their positions in person before
the Commission,[^25] and formalized opportunities for the filing of
motions on the merits with the Commission are unnecessary.

In fact, however well-intentioned they may be, a number of the proposals
highlighted in the Notice would exacerbate current problems with the
enforcement process, present opportunities for sophisticated parties to
undermine enforcement, or be counterproductive in other respects.

As previously indicated, delay in "time-to-sanction" has been a
longstanding problem for the FEC, eroding both deterrence and the
Commission's capacity to ensure that violators are adequately punished.
Grafted onto the existing enforcement process, formalized authority for
complainants' and respondents' attorneys to file motions on the merits,
mandated broader and earlier provision of the Commission's investigatory
materials to respondents during its internal proceedings, and rights for
respondents and/or counsel to appear in person before the Commission (in
addition to the existing opportunities for them to present their case
through written submissions) would exacerbate this problem by prolonging
the process and adding to the resource needs of an agency that does not
*currently* receive adequate funding. Again, it bears emphasis that
sophisticated and well-financed violators -- aware of the Commission's
resource constraints and large workload -- would enjoy increased
leverage to diminish or eliminate penalties with the provision of new
opportunities for them to prolong and complicate the enforcement
process. Indeed, as the Notice appears to recognize, some of the
enhanced "due process" protections under consideration are much more
relevant to respondents with considerable resources than to smaller
political actors.[^26]

Furthermore, the proposal that the Commission withhold releasing to the
public closed enforcement matters, or initiating lawsuits to enforce
Federal campaign finance law, for some period immediately preceding an
election is objectionable on multiple grounds. Refraining from filing
suit during this time period would only add to existing incentives for
political actors to commit violations perceived to be to their electoral
benefit, for the "bad news" of a Commission lawsuit would then never
emerge during the most important time period for a candidate or
political party. The Commission has no statutory authority to withhold
such information from voters, who might very well (and properly)
consider a candidate's compliance with the law to be relevant to their
electoral choices. In terms of releasing documents or filing suits, the
agency should instead proceed in the normal course of business during
this time period -- the best route to insulating it from charges of
political favoritism.

The objections we have raised to proposals contained in the Notice are
not necessarily a flat rejection of these ideas for all times, however.
Some of these proposals for enhanced procedural rights for respondents
would be appropriate were the Commission replaced by an adjudicatory
agency with the capacity to impose certain and timely sanctions for
violations (a result clearly requiring the enactment of legislation by
Congress).[^27] Pending that outcome, we counsel against their adoption,
as they are not required and would entail costs that outweigh any
benefits. In general, mindful of the everyday problems it faces in
securing compliance and accountability, the Commission should not act to
further compromise its current (already compromised) ability to enforce
the law.

We appreciate this opportunity to provide comments on this rulemaking.

Sincerely,

*/s/ Glen Shor*

Glen Shor

FEC Program Director

The Campaign Legal Center

1101 Connecticut Avenue, NW

Suite 330

Washington, D.C. 20036

\(202\) 736-2200

<gshor@campaignlegalcenter.org>

[^1]: *See, e.g., Judicial Watch v. FEC*, 180 F.3d 277 (D.C. Cir. 1999).
    Additionally, the potential for holding the FEC accountable for
    failing to enforce Federal campaign finance law has recently been
    diminished by the D.C. District Court's unfortunate decision in
    *AFL-CIO v. FEC*, 177 F.Supp.2d 48 (D.D.C. 2001), invalidating the
    Commission's longstanding practice of making enforcement files
    public at the termination of a case. *See generally* Brief of Amici
    Curiae The Campaign and Media Legal Center et al., *FEC v. AFL-CIO*,
    No. 02-5069 (D.C. Cir. filed Feb. 15, 2002), *available at*
    <http://www.campaignlegalcenter.org/cases-52.html> (last visited May
    29, 2003).

[^2]: Many of the specific topic areas mentioned in the Notice are also
    raised in a law journal article written by FEC Commissioner Bradley
    Smith and Stephen Hoersting, in a discussion of what they term "due
    process protections." *See* Bradley A. Smith and Stephen M.
    Hoersting, *A Toothless Anaconda: Innovation, Impotence and
    Overenforcement at the Federal Election Commission*, 1 [Elect. L.
    J.]{.smallcaps} 145, 155-58 (2002).

[^3]: These deadlocks have often occurred along partisan lines. *See*
    [Project FEC, No Bark, No Bite, No Point: The Case for Closing the
    Federal Election Commission and Establishing a New System for
    Enforcing the Nation's Campaign Finance Laws 9-11
    (2002).]{.smallcaps}

[^4]: *See* Lawrence M. Noble, *in* 1202 [PLI/Corp 975, 987-93
    (2000).]{.smallcaps} In 1999, Congress authorized a small exception
    to the FEC's inability to impose civil monetary penalties,
    permitting the imposition of administrative fines for certain
    reporting violations. *See* 2 U.S.C. § 437g(a)(4)(C).

[^5]: *See* Commissioner Scott E. Thomas and Jeffrey Bowman, *Obstacles
    to Effective Enforcement of the Federal Election Campaign Act*, 52
    [Admin. L. Rev.]{.smallcaps} 575, 584-590 (2000).

[^6]: *See* Kenneth A. Gross and Ki P. Hong, *The Criminal and Civil
    Enforcement of Campaign Finance Laws*, 10 [Stan. L. & Pol'y Rev.
    51]{.smallcaps}, 52 (1998) ("Second, the statutory enforcement
    scheme under FECA makes it difficult for the Commission to deter
    violations. Third, the FEC uses an open-ended process which results
    in an investigation phase without any limits; cases eventually
    become stale and the FEC's limited resources give out.") (citations
    omitted); Kenneth A. Gross, *The Enforcement of Campaign Finance
    Rules: A System in Search of Reform*, 9 [Yale L. & Pol'y
    Rev.]{.smallcaps} 279, 286-87 (1991) ("The lack of deterrent force
    under FECA can be traced in great part to its cumbersome multi-stage
    enforcement process, under which many matters are not resolved in a
    timely manner. As a result, continuing violations may give the
    respondent an unfair advantage in the election. Delayed civil
    penalties create little deterrent effect, as many view a civil
    penalty imposed after a successful campaign as a small price to pay
    for winning the election."); Todd Lochner, *Overdeterrence,
    Underdeterrence, and a (Half-Hearted) Call for a Scarlet Letter
    Approach to Deterring Campaign Finance Violations*, 2 [Election L.
    J.]{.smallcaps} 23, 29-30 (2003) ("There are compelling reasons to
    believe, however, that the FEC has a serious problem with
    underdeterrence . . . the time lag between detection of a possible
    infraction and the punishment imposed . . . is quite large. Indeed,
    it is extremely unlikely that a fine will be imposed until after the
    election in which the infraction occurred. To its credit, the FEC
    has implemented programs that may greatly reduce its "time to
    sanction" on the more straightforward and usually less serious types
    of infractions. But it is precisely the more serious types of
    offenses that are least likely to be treated expeditiously. This
    creates incentives for candidates and campaigns to violate the law
    now in the hopes of winning the election and paying the fine
    later.") (citations omitted); [Project FEC]{.smallcaps}, *supra*
    note 3, at 13-14 ("The structural problems of the FEC are compounded
    by the extraordinarily cumbersome enforcement procedures built into
    the statute . . . Respondents who are the subject of investigations
    by the agency are granted elaborate opportunities to contest agency
    action at multiple stages of the enforcement process. This
    invariably slows agency enforcement actions to such an extent that
    cases often languish for years before final agency decisions are
    made."); Michael W. Carroll, Note, *When Congress Just Says No:
    Deterrence Theory and the Inadequate Enforcement of the Federal
    Election Campaign Act*, 84 [Geo. L. J.]{.smallcaps} 551, 578 (1996)
    ("Even after a violation is detected, the enforcement process can be
    very slow. A respondent has little incentive to cooperate with the
    FEC. Respondents can and do use their ability to prolong settlement
    either to force the FEC to drop the case or to reduce the magnitude
    of the penalty.") (citations omitted); Colloquium, *Federal Election
    Commission Panel Discussion: Problems and Possibilities*, 8 [Admin.
    L. J. Am. U.]{.smallcaps} 223, 232 (1994) (remarks of Lawrence
    Noble, then-General Counsel of the Federal Election Commission)
    ("Mainly what I was referring to, using that example, was those who
    believe that, unless the FEC can act before the election, it is
    useless. The argument is that violating the law has become the cost
    of doing business. I can tell you in many cases this is true.").

[^7]: *See* Gross, *The Enforcement of Campaign Finance Rules*, *supra*
    note 6, at 290.

[^8]: *See* Gross, *The Enforcement of Campaign Finance Rules*, *supra*
    note 6, at 290-91.

[^9]: *See* [Project FEC]{.smallcaps}, *supra* note 3, at 20-22;
    Commissioner Scott E. Thomas, *Statement of Reasons*, Pre-MUR 395
    (College Republican National Committee), at fn. 12 (FEC Nov. 9,
    2001). The former General Counsel of the FEC has fairly recently
    observed that the agency is "very far away from having sufficient
    resources to enforce the old law, let alone the new law." Peter H.
    Stone, *Under Fire*, [Nat. Journal,]{.smallcaps} May 18, 2002. Given
    the cumbersome enforcement process, large workload, and budget
    constraints facing the FEC, violators have a greater ability
    (compared to those in proceedings with some other campaign finance
    enforcement agencies) to leverage prospects for delay and protracted
    litigation into smaller or no penalties during the conciliation
    stages. *See* Todd Lochner and Bruce E. Cain, *The Enforcement
    Blues: Formal and Informal Sanctions for Campaign Finance
    Violations*, 52 [Admin. L. Rev.]{.smallcaps} 629, 648-49 (2000).

[^10]: *See* Hon. Scott E. Thomas, *Beyond Silly -- What the Courts and
    the FEC Have Done to Congressional Reform Attempts*, 1331
    [PLI/Corp]{.smallcaps} 663, 679-83 (2002); Letter from Ann McBride,
    President, Common Cause, to the Honorable Janet Reno, Attorney
    General of the United States (Oct. 28, 1997), *available at*
    <http://www.commoncause.org/publications/102897_letter.htm>
    (relating President Clinton's own characterization of the
    arrangement in question).

[^11]: *See generally* Commissioner Scott E. Thomas, *Statement of
    Reasons*, MUR 4994 (FEC Dec. 19, 2001).

[^12]: *See FEC v. Christian Coalition*, 52 F.Supp.2d 45, 98 (D.D.C.
    1999) ("\[T\]his Court is of the opinion that this Order in relation
    to Counts I, II, and III involves controlling questions of law as to
    which there is substantial group for difference of opinion and that
    an immediate appeal from the order may materially advance the
    ultimate termination of the litigation.").

[^13]: *See Buckley v. Valeo,* 424 U.S. 1, 46 (1976) (contrasting
    "controlled or coordinated expenditures" with expenditures made
    "totally independently" of a candidate and his or her campaign);
    *Colorado* *Republican Federal Campaign Committee v. FEC*, 518 U.S.
    604, 614 (1996) (disputing argument that party had "coordinated"
    advertisement with its candidates, noting that the advertising
    campaign "was developed by the Colorado Party independently and not
    pursuant to any general or particular understanding with a
    candidate").

[^14]: General Public Political Communications Coordinated with
    Candidates and Party Committees; Independent Expenditures, 65 Fed.
    Reg. 76,138 (Dec. 6, 2000).

[^15]: *See* [Project FEC]{.smallcaps}, *supra* note 3, at 104-05. The
    Bipartisan Campaign Reform Act rescinded the FEC's narrow
    coordination rules adopted in the wake of the *Christian Coalition*
    district court decision and required the agency to promulgate new
    rules that fully encompassed the statutory standard of 2 U.S.C. §
    441a(a)(7)(B) and did not require the presence of "agreement" or
    "formal collaboration" in all instances for there to be a finding of
    coordination. Bipartisan Campaign Reform Act of 2002, Pub. L. No.
    107-155, § 214(b)&(c), 116 Stat. 81 (2002). Nonetheless, the
    Commission proceeded to issue new coordination rules permitting
    Federal candidates to coordinate extensively with outside groups on
    the latter's expenditure of soft money even for certain
    election-year campaign advertisements benefiting those candidates.
    *See* 11 C.F.R. § 109.21 (2003); First Amended Complaint for
    Declaratory and Injunctive Relief at 39-42, *Shays v. FEC*, No.
    02-1984 (D.D.C. filed Oct. 8, 2002), *available at*
    <http://www.campaignlegalcenter.org/cases-27.html> (last visited May
    29, 2003).

[^16]: *See* Kenneth P. Doyle, *Corporate Contributions; Solicitor
    General Weighs Appeal in Case Involving Campaign Money for
    Non-Profits*, [BNA Money & Politics Report,]{.smallcaps} Aug. 27,
    2002.

[^17]: Hon. Scott E. Thomas, *Beyond Silly*, *supra* note 10, at 672.

[^18]: *See* Brief of Amici Curiae Public Citizen et al., *FEC v.
    Beaumont*, No. 02-403 (S.Ct. filed Sept. 12, 2002), *available at*
    <http://www.campaignlegalcenter.org/cases-58.html> (last visited May
    29, 2003).

[^19]: *See* Solicitor General (on behalf of Petitioner FEC), Petition
    for a Writ of Certiorari at 14, *Beaumont v. FEC*, No. 02-403 (S.Ct.
    filed Sept. 12, 2002), *available at*
    <http://www.usdoj.gov/osg/briefs/2002/2pet/7pet/2002-0403.pet.aa.html>;
    Kenneth P. Doyle, *Corporate Contributions; Overruling FEC, Justice
    Department Asks Supreme Court to Review Case on Nonprofits*, [BNA
    Money & Politics Report]{.smallcaps}, Sept. 17, 2002. The U.S.
    Supreme Court ultimately decided to hear the case (oral argument
    occurred on March 25, 2003).

[^20]: *See* Vice Chairman John Warren McGarry, Commissioner Danny Lee
    McDonald, and Commissioner Scott E. Thomas, *Statement for the
    Record in FEC v. GOPAC* (FEC Mar. 21, 1996). There were in fact
    three votes to appeal in this case (with two votes opposed and one
    vacancy), one vote short of the four-vote majority required to
    authorize an appeal. *See id.*

[^21]: *See, e.g.,* [Project FEC]{.smallcaps}, *supra* note 3, at 33-46.

[^22]: Symposium, *Campaign Finance Enforcement: A Comparative View*, 11
    [J.L. & Pol.]{.smallcaps} 1, 28 (1995) (remarks of Lawrence Noble)
    (emphasis added). This assessment is well-founded in judicial
    precedent. *See Mathews v. Eldredge*, 424 U.S. 319, 334 (1976)
    ("\[D\]ue process, unlike some legal rules, is not a technical
    conception with a fixed content unrelated to time, place and
    circumstances . . . (D)ue process is flexible and calls for such
    procedural protections as the particular situation demands.")
    (internal quotations and citations omitted).

[^23]: The sole exceptions to this rule are the administrative fines
    program, which deals only with the minor, "cut-and-dry" issues of
    whether reports are late or not filed, and the audit process for
    publicly financed presidential candidates (which appear to be
    outside the scope of this rulemaking).

[^24]: For instance, the Commission mentions in the Notice that the
    Federal Rules of Civil Procedure give litigants the right to attend
    the depositions of all persons deposed in their case and obtain
    copies of all deposition transcripts (in contrast with the practice
    during internal Commission proceedings, which does not give
    respondents the right to attend other depositions and provides some,
    but not necessarily complete, access to the documents and deposition
    transcripts of other respondents and third-party witnesses).
    Enforcement Procedures, 68 Fed. Reg. 23,311, 23,313 (May 1, 2003).
    The rights provided under the Federal Rules of Civil Procedure would
    certainly attach in the event the Commission pursued its enforcement
    action to the only stage at which it may force the imposition of
    sanctions -- *i.e.*, a *de novo* judicial proceeding under 2 U.S.C.
    § 437g(a)(6).

[^25]: As indicated in the Notice, respondents are already permitted to
    present their position to the Commission in numerous ways -- such as
    "through written submissions in response to the complaint and the
    General Counsel's probable cause brief, and . . . at the
    reason-to-believe stage pursuant to Commission practice."
    Enforcement Procedures, 68 Fed. Reg. at 23,313 (May 1, 2003).

[^26]: The Notice correctly notes the prospect that respondents with
    limited resources may not benefit from the ability to make a
    personal appearance before the Commission to the same extent as
    those with more substantial resources. Enforcement Procedures, 68
    Fed. Reg. at 23,313.

[^27]: *See, e.g.,* [Project FEC]{.smallcaps}, *supra* note 3, at 33-46.
    We do note, however, that even under a restructured and strengthened
    Federal campaign finance law enforcement agency, the proposal for
    withholding information from voters would not be justified.