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| ![](                                           | **FOLEY & LARDNER** |
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| height="0.3902777777777778in"}                 | Washington Harbour  |
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| May 30, 2003                                   | 3000 K Street,      |
|                                                | N.W., Suite 500     |
| Via Electronic Mail                            |                     |
|                                                | Washington, D.C.    |
|                                                | 20007-5143          |
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|                                                | 202.672.5399 FAX    |
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|                                                | tchell@foleylaw.com |
|                                                | EMAIL               |
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|                                                | CLIENT/MATTER       |
|                                                | NUMBER              |
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|                                                | 999100-0130         |
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| Ms. Susan L. Lebeaux              |                                   |
|                                   |                                   |
| Assistant General Counsel         |                                   |
|                                   |                                   |
| Federal Election Commission       |                                   |
|                                   |                                   |
| 999 E Street, NW                  |                                   |
|                                   |                                   |
| Washington, D.C. 20463            |                                   |
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RE: Notice 2003-9, Comments with Respect to Enforcement Procedures

Dear Ms. Lebeaux:

These comments are submitted in response to the FEC's Notice 2003-09
regarding the enforcement practices and procedures of the Federal
Election Commission ("the Commission").

My thanks to the Commission for offering this opportunity to submit
comments and suggestions on the procedures of the Commission. As someone
who practices in and before the Commission, I definitely appreciate the
opportunity to provide some input on and recommendations for changes to
the Commission's enforcement procedures.

First are some general thoughts and comments, followed by responses and
suggestions related to the Commission's specific questions.

**General Comments.**

**1. Make a principled commitment to due process in the Commission's
enforcement procedures.**

There has been, in my experience, a perceptible disdain displayed and
publicly argued by the Commission and Office of General Counsel toward
the constitutional due process principles of notice and hearing and the
applicability of those principles to the Commission's enforcement
procedures. The OGC has been known to vociferously argue that the
Commission is essentially *exempt* from all but the most rudimentary
requirements of notice and due process.

It is unclear to me why the Commission would *want* to be exempt from
providing ample notice and a fair hearing to all respondents in
enforcement matters.

If the OGC would dedicate itself as diligently to insuring due process
to Respondents as to denying that the Commission is required to do so,
it would create a vastly different environment in which the Commission's
enforcement functions are executed.

**2. Make the enforcement procedures manual publicly available as a
demonstrable step to actively insuring due process.**

A major improvement in the enforcement procedures of the Commission
would be adoption of and adherence to the principle of providing as much
public notice as possible of the *process* by which enforcement matters
are carried out. The Commission could evidence its new-found commitment
to that principle by publishing an enforcement procedures manual.

One of the most troublesome aspects of the Commission's enforcement
procedures is the absence of publicly available written procedures. The
only real information available to Respondents (and Respondents'
counsel) in an enforcement proceeding are the regulations promulgated by
the Commission which do little more than restate the statute. For
respondents new to the Commission's procedures, the information is
scarce and is neither helpful nor informative.

After some years of practice before the Commission, I have come to learn
that there actually does exist a written procedures manual -- which is
available *only* to the Commission and its staff. By definition, then,
it is also known and available to *former* Commission staff. Thus, there
are two classes of Respondents and attorneys appearing before the
Commission: those who have never worked for the Commission and those who
have. Only those who have previously worked for the Commission have
access to the 'secret' procedures manual and the 'inside knowledge' of
the actual procedures utilized by the Commission in enforcement
proceedings.

Even in responding to the Commission's request for comments in this
Notice, it is somewhat difficult to *respond* to this Notice without
access to or knowledge of the Commission's existing procedures contained
in the 'secret' manual. There may be provisions contained in the manual
which already address certain questions posed by the Commission and to
which I am submitting responses. Since I have never seen the manual, it
is impossible for me to know whether the Commission already has certain
policies and procedures in place or whether the Commission is asking for
input as to the creation of whole new provisions of its existing
procedures manual.

I am certain that my input -- and that of others \-- would be more
effective if it were based on greater knowledge and information as to
the Commission's current procedures and policies.

The Commission should adopt and publish an enforcement procedures manual
which is available to *all* Respondents, their counsel and the general
public. There is no plausible reason for maintaining a 'secret'
procedures manual and, in fact, the failure to properly promulgate and
publish the procedures raises serious constitutional concerns.

Other federal agencies have developed and publish manuals outlining
their procedures which are available to litigants and respondents
subject to the agencies' enforcement proceedings.

There can be no downside for the Commission to make certain that due
process is afforded to every respondent brought within the ambit of the
Commission's enforcement authority.

**3. Confidentiality is to *protect* not to punish respondents.** Part
of the problem in making the procedures manual available to respondents
and the public is the Commission's perversion over the years of the
statutory requirement of 'confidentiality'. Confidentiality is supposed
to *protect* the Respondent -- not disable his/her/its ability to mount
a defense in an enforcement matter. The Commission has seemingly lost
sight of the purpose of confidentiality imposed on Commission
proceedings by the statute. Confidentiality is for the purpose of
[protecting]{.underline} a respondent from public revelation of
information that would harm the respondent during a pending
investigation. The Commission has turned the concept of confidentiality
on its head --denying information to respondents necessary for
his/her/its defense while failing to take steps to protect
confidentiality of facts and circumstances of specific cases and
Respondents particularly at the conclusion of an investigation in which
the Respondent prevails.

The Commission should restore the statutory principle of confidentiality
as being for the purpose of *protecting* rather than punishing
respondents. Once that decision is made, other important decisions
regarding the enforcement procedures will follow logically.

**4. The Commission should more specifically define the roles,
responsibilities -- and legal liability -- of candidates, treasurers,
volunteer fundraisers, paid staff members, vendors and 'agents' of
political committees.** Citizens who become involved with political
committees are largely unaware of the potential legal liability
associated with their involvement in federal campaigns and federally
registered committees. Particularly with regard to campaigns for federal
office, the people who participate are largely *not* seasoned political
veterans or political professionals.

With the changes in the statute under BCRA and, in particular, with the
increase in potential civil and criminal liability, the Commission
should specifically delineate the responsibilities and exposure of the
differing roles within a political committee.

The role of the treasurer is especially important for the Commission to
more fully and completely explain. Besides signing the FEC reports, what
potential personal exposure does the treasurer for violations of the
law? Often, the treasurer is a local volunteer with no actual knowledge
of the law and often no actual knowledge of the contents of the FEC
reports or their contents. If a vendor is responsible for mistakes or
malfeasance, who is ultimately responsible for the violation of law and
what legal liability is visited upon the candidate or the treasurer?

The enforcement procedures must begin with a clear statement of who is
responsible for which compliance role and the penalties for violation by
each player of each separate role to insure overall compliance.

**Specific Responses to Questions Posed by Notice:**

**1. Designation of respondents and witnesses in an investigation.**
There are a number of problems in the Commission's practices involving
the designation of witnesses and respondents in an enforcement
proceeding. As indicated in the Notice, many complainants do not
designate every potential respondent, or even the most appropriate
respondent. Other complaints may designate organizations such as
committees, corporations or labor unions as respondents in a complaint,
but the Commission then argues that the person from the entity is a
'witness' rather than the personification of the named respondent.

The Commission should establish in its procedures manual the steps it
follows with regard to identifying additional respondents not named in a
complaint by the complaining party. The criteria for naming additional
respondents should be *different* from the criteria for naming
witnesses. Additional respondents in an enforcement proceeding should
only be those whose identities are discovered during the investigation
and for whom there is 'reason to believe' have committed violations of
the law. When the criteria is met for naming additional respondents,
they should be provided ample notice of the overall complaint, the
identity of the other respondents named in the complaint and any
additional facts which may not have been specified in the complaint but
which have given rise to the Commission's decision to subsequently name
them as additional respondents. Again, the operative principle is
*notice*. It is not helpful to simply provide a copy of a complaint in
which the initial complaining party failed to name or identify the
additional respondent and then to be advised that "you have fifteen days
to respond."

Another issue that should be addressed in the enforcement procedures
manual is the ability of a corporation, committee or labor organization
named as a respondent in an enforcement proceeding to designate its
corporate representative for purposes of the proceeding. The criteria
should be set forth in the enforcement manual in a manner similar to the
federal rules of civil procedure in which a corporation designates such
a representative. That designation should be specifically defined and
outlined by the Commission to protect the rights and responsibilities of
the entity *through its designated corporate representative*.

The Commission has argued that a corporate respondent's representative
is really a 'witness' who can be subpoenaed and deposed separately from
the corporation. A corporation, labor union or committee should be able
to name a designated representative who, for all practical purposes, is
the responsible party insofar as providing information and responses to
the Commission during an investigation and is the personification *for
all purposes* of the artificial entity.

**2. Confidentiality.** As indicated above, the Commission has perverted
the notion of confidentiality.

[Communications with witnesses.]{.underline} Respondents should be
advised that the provisions of confidentiality are for their protection
and should they choose to discuss the facts and issues related to an FEC
enforcement matter, that is their choice. It is not the Commission's job
to keep respondents from discussing their own matters -- it is the
Commission's responsibility NOT to discuss the proceedings with third
parties other than the respondent. For purposes of conducting an
investigation, the Commission should have a standard declaration
provided to third party witnesses, which advises the witness that the
Commission is not at liberty to discuss anything related to the matter
under review, that the Commission is conducting the interview for
purposes of ascertaining facts and that the witness should be mindful of
the Commission's responsibility to protect respondents in an enforcement
proceeding from improper or premature revelation of facts related to the
matter.

It is not the Commission's responsibility to advise witnesses that
he/she is precluded from discussing the matter with respondents in the
event the respondent contacts the witness directly. In fact, the
Commission should NOT so advise witnesses.

[Notice of adverse witness / opportunity to cross-examine]{.underline}.
The procedures manual should also provide a specific process whereby
respondents are given [notice]{.underline} of adverse witnesses, advised
of their opportunity to cross-examine such witnesses and/or to present
rebuttal witnesses or information during the course of an investigation.
The Commission's practice of not only failing to give respondents the
opportunity to cross-examine adverse witnesses but failing even to
provide copies of testimony on which it relies to find probable cause of
a violation of law is abominable and is suggestive of star chamber
tactics.

**3. Motions Before the Commission.** The Commission should establish a
procedure whereby motions submitted to the Commission are heard and
decided entirely on the papers submitted by [both]{.underline} OGC and
Respondents -- or else an opportunity afforded movants' counsel to be
heard. The practice of allowing the OGC to appear and argue its position
on motions filed by respondents without the opportunity for opposing
counsel to do likewise is wholly inappropriate.

The procedures manual could specify a motion docket and practice, what
motions would be entertained and at what point in the proceedings -- but
in no event should the practice continue whereby *only* the OGC is
allowed to argue motions before the Commission.

With respect to 'tolling the statute of limitations' for any period in
which motions are filed and pending, the answer is no. Absent the
statute of limitations, the Commission has no pressure or incentive to
timely process an investigation. A continuing problem with enforcement
proceedings is the length of time between filing of a complaint and its
ultimate disposition. A respondent should not have to choose between
filing procedural motions deemed necessary and appropriate to advance
the rights of a respondent and tolling the statute of limitations which
are time sensitive precisely because of the length of time of the
investigation. Penalizing respondents for the Commission's delay in
conducting investigations is not appropriate.

**4. Deposition and Document Production Practices.** The Commission has
very odd rules governing depositions which should be revised and brought
into line with normal deposition practice. The current 'rules' are
beyond comprehension.

Respondents should have the opportunity to attend and cross-examine both
fact and expert witnesses in an investigation, particularly if the
deponent is a witness whose testimony is adverse to a respondent.
Witness lists notifying the respondent of the sworn testimony the
Commission intends to take should be provided to respondents with the
opportunity to be present to cross-examine such witnesses.

If the deponent is the commission's 'expert witness', the respondent
should also receive in advance the curriculum vitae of the expert, and
respondent should not only be given the opportunity to attend and
cross-examine the commission's 'expert' , but should also have the
opportunity to present his/her/its own expert to insure balance in the
record presented to the Commission on probable cause.

The deponent should be given the opportunity to read his/her deposition
transcript prior to signing the deposition.

One specific problem is that of the fifteen (15) days for response. The
Commission may have taken *years* to develop its factual record -- but
Respondents are given only fifteen (15) days in which to respond to a
proposed finding of probably cause. Recognizing that the fifteen day
period is statutory, the Commission should be mindful of the difficulty
of assembling a factual response in fifteen days to a matter that may
well have been pending for several months or years with no word from the
Commission as to the matter's status.

The Commission should establish a preliminary step prior to the 'Notice
of Probable Cause' at which time the OGC would make available
[all]{.underline} evidence assembled to date, including exculpatory
evidence and information. This intermediate step before the Notice of
Probable Cause should be followed by sufficient time in which the
respondent can assemble a record to counter the Commission's
investigative record. This procedure could result in more expeditious
resolution through conciliation if the respondent has access to the
totality of the evidence supporting the probable cause finding which the
Commission has collected during its investigation.

In the event that presentation of the factual record does not result in
pre-probable cause conciliation, the Notice of Probable Cause should
then be accompanied by the [factual record]{.underline} on which the OGC
relies for its proposed finding -- with the sworn testimony and other
facts and evidence supporting the proposed finding. As with a motion for
summary judgment, the facts relied upon by the OGC should be
*uncontroverted* and the respondent should have the opportunity to
*controvert* the facts submitted by OGC through its own evidence.

The ultimate presentation to the Commission of proposed probable cause
findings should be either the briefs with no separate presentation by
OGC to the Commission or, in the alternative, a hearing with the
opportunity for respondents' counsel to also be heard in defense against
the probable cause finding. The practice of *only* allowing the OGC to
appear to argue its recommendation is not appropriate.

**5. Extensions of Time.** As indicated above, most enforcement matters
involve not hearing from the Commission for months or years and then
receiving a notice requiring a fifteen day response from date of
receipt. There is little justification for denying an extension of time
to respond when the Commission affords itself the luxury of unlimited
time to address submissions by respondents and witnesses. Denying
respondents a fraction of the time the Commission staff utilizes is
hardly fair to respondents and their counsel. There should be no hard
rules governing the granting of extensions of time -- if anything, the
Commission should apportion time to respondents in proportion to the
time spent by Commission staff since the last contact respondents
received from the Commission. Example: If the Commission hasn't
contacted the respondent in two years, the Commission should grant to
respondents a percentage of that time for response. The "hurry up and
wait" approach should be changed.

**6. Appearance before Commission.** Essentially, the Commission should
allow Respondents to choose to appear either individually or through
counsel. The Commission need not authorize both, but it should establish
through its procedures manual the opportunity for respondents to be
heard one way or the other. The present practice of not allowing either
is unacceptable particularly in light of the presence of OGC to argue
against whatever respondents or their counsel may have submitted to the
Commission.

**7. Release of Documents.** There are two points at issue here: one is
the release of documents at the conclusion of an enforcement proceeding,
which is presently pending before the DC Circuit Court of Appeals. I do
not believe that the Commission should release to the public the
documents and records obtained through an investigation. Period. This is
a further evidence of the Commission's perversion of the statutory
requirement of confidentiality I discussed above. The only persons
harmed by the Commission's interpretation and practice regarding
confidentiality are respondents --the very persons intended by Congress
to be protected by the requirement of confidentiality.

The Commission should adopt a regulation, policy and practice of *not*
releasing information and materials obtained during the course of an
investigation -- and should take the position that the normal FOIA rules
may not be applicable due to the specific confidentiality provisions
imposed on the Commission by Congress. Were that rule to be adopted, the
remainder of this question is rendered essentially moot.

**8. Public Release of Directives and Guidelines.** It is difficult to
answer such a question since I am not aware of or familiar with the
Commission's penalty guidelines and directives. Perhaps one solution to
easing the backlog would be to bifurcate the 'fault' and 'penalty'
phases of an investigation -- such that respondents would be more
willing to expedite the investigation stage if they had more knowledge
and information about potential penalties. In light of BCRA's more
stringent civil and criminal penalties, it would seem that now is an
appropriate time to make these policies public as part of streamlining,
expediting and making more transparent the entire enforcement process.

**9. Timeliness.** I would recommend the appointment of a task force to
study this issue, which should include both Commission staff and
practitioners representing respondents. While the Commission has made an
effort to expedite the investigation and resolution of enforcement
matters, that has not yielded the result of timely resolution of matters
under review.

The Commission should also examine a process whereby respondents would
be advised upon request of the status of pending matters. Now, if a
respondent files a response with the Commission, it may be years before
any additional word is forthcoming from the Commission. But the reasons
for the delay are not known or knowable to a practitioner -- which makes
it difficult to make a recommendation on this subject when it is
impossible from my perspective to figure out what is causing these
lengthy delays.

It is not sufficient to say that the reason for lengthy delays is 'not
enough staff'. Everyone is busy. The first response from government
agencies is always, 'we need to hire more people'. That may be true --
but I am unwilling to echo that as the primary solution when the problem
has yet to be identified.

**10. Prioritization.** Perhaps the Commission should establish a
two-tier system of review with special training and expertise invested
in certain staff teams who can be focused on enforcement of the *most*
fundamental principles of the law -- expedited to be decided prior to an
election. It would also be helpful if staff members charged with
enforcement had practical experience in campaigns. Too often, there is
such a total absence of knowledge and information on the part of the
investigating staff about how campaigns and elections really work that
it hinders the Commission staff's ability to sort through facts to
determine real vs. imagined and serious vs. minor violations of law.

All violations are not equal. All complaints are not equal. Some
violations are more egregious and systemic than others. The Commission
should weigh the investment of Commission resources and time devoted to
incredibly minor issues as opposed to seeking to enforce the major
components and principles of the law.

As with many agencies, the Commission is much better at identifying the
tiniest addition or subtraction error in a report submitted to the FEC
\-\-- rather than identifying systemic or wholesale flaunting or
violation of the major principles of the law.

People with no practical knowledge or experience in the regulated
'industry' often cannot distinguish the real vs the imaginary. The
Commission should make an ongoing effort to change both the experience
and perceptions on the part of the enforcement staff.

**11. Memorandum of Understanding with Department of Justice.** Because
of the increased criminal penalties in BCRA, it would seem appropriate
for the Commission and the Department of Justice to review and update
the 1977 MOU to insure that it is properly reflective of the
requirements of law in 2003. It would be useful to publish the MOU on
the FEC website as part of the ongoing effort to give notice to the
public of *all* the procedures of the Commission.

**12. Tie Votes on Reason to Believe.** As I read and understand the
law, I believe that Congress has provided by statute that absent a
fourth vote for any action, the Commission is not statutorily entitled
to proceed. There is nothing in the statute that confers on the Office
of General Counsel the ability to cast the tie-breaking vote when the
Commission cannot achieve majority support for an action and to suggest
otherwise is outside the scope of the Commission's statutory authority.

Finally, I request permission to testify before the Commission at its
June 11, 2003 public hearing regarding this notice. I can be reached as
follows:

Cleta Mitchell, Esq.

Foley & Lardner

3000 K Street, NW

Washington, D.C. 20007

\(202\) 295-4081

\(202\) 672-5399 (fax)

cmitchell@foleylaw.com

Again, my thanks to the Commission for conducted this review and for the
opportunity to submit comments. I look forward to appearing before the
Commission at the public hearing in June.

Sincerely,\
\
**/s/ Cleta Mitchell, Esq.**

Cleta Mitchell, Esq.

Attorney at Law