FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

Statement of Commissioner Ellen L. Weintraub 

Seeking Public Comment on the Commission’s Proposed Procedures for 

Disclosure of Documents in the Enforcement Process 

I welcome efforts to formalize the Commission’s practice regarding the production of 

exculpatory evidence in the enforcement process and share my colleagues’ goal of providing 

fairness to respondents. 

The Commission has put forward two proposals for public comment. Agenda Document 

11-23A is similar to policies in place at other civil enforcement agencies and would apply the 

teachings of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny on disclosure of 

exculpatory evidence. Agenda Document 11-23 would provide broader and earlier disclosure 

not just of exculpatory evidence, but of all relevant, non-privileged documents in the 

Commission’s possession. I am particularly interested in receiving comments on the following 

issues. 

Concerns Involving Multiple Respondents

In matters involving multiple respondents, how should the Commission balance the 

interest in providing respondents with exculpatory evidence against the confidentiality 

requirements imposed by the FECA? See 2 U.S.C. § 437g(a)(3) and 2 U.S.C. § 437g(a)(4)(B)(i). 

The Act provides: “Any notification or investigation made under this section shall not be 

made public by the Commission or any person without the written consent of the person 

receiving such notification or the person with respect to whom such investigation is made.” 2 

U.S.C. § 437g(a)(12)(A). See also 2 U.S.C. § 437g(a)(4)(B)(i) (requiring confidentiality of 

Commission actions and information derived during conciliation). Is it appropriate for the 

Commission routinely to ask respondents to waive the statutory confidentiality provisions? (See

Agenda Document 11-23 at 12-13.) 

Does 2 U.S.C. § 437g(a)(12)(A) permit the Commission to disclose documents relating to 

the investigation of one respondent to another respondent if the former declines to consent? 

Does the answer to this question change depending upon whether the respondent who receives 

the documents signs a non-disclosure agreement? Would such a non-disclosure agreement 

satisfy section 437g(a)(12) in all instances? 

1 
How do past court decisions addressing the confidentiality provisions, such as In re: 

Sealed Case, 237 F.3d 657 (D.C. Cir. 2001) and AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 

2003), affect the Commission’s proposals? 

Should non-disclosure agreements be required in all cases, rather than left to case-by-case 

decisions by the Commission? (See Agenda Document 11-23 at 12-13.) 

Should the policy require the Commission to redact documents to protect privacy 

concerns (e.g., if bank account or social security numbers appear on any documents to be 

produced)? 

Should the Commission consider whether the various respondents are allied or adverse to 

each other in interest? For example, should the Commission disclose documents to one 

respondent that were obtained from another if the two are known to be involved in civil litigation 

against one another? Should the Commission take into account whether the documents were 

submitted voluntarily or compelled by a Commission subpoena? 

Enforcement Concerns

Do the proposals provide necessary exculpatory and mitigating information to 

respondents without unduly complicating or undermining the enforcement of the Federal 

Election Campaign Act? 

In applying the Brady doctrine, the Supreme Court has repeatedly found that even 

criminal defendants are not entitled to view the entire investigative file. See, e.g., Kyles v.

Whitley, 514 U.S. 419, 437 (1995) (“[w]e have never held that the Constitution demands an open 

file policy (however such a policy might work out in practice)”); Pennsylvania v. Ritchie, 480 

U.S. 39, 59 (1987) (“A defendant’s right to discover exculpatory evidence does not include the 

unsupervised authority to search through the Commonwealth’s files.”); Illinois v. Moore, 408 

U.S. 786, 795 (1972) (holding that there is “no constitutional requirement that the prosecution 

make a complete and detailed accounting to the defense of all police investigatory work on a 

case”). How should the Commission tailor its own exculpatory evidence practice in light of 

these cases? 

In considering whether to adopt an exculpatory evidence policy, other investigative 

agencies have considered such concerns as the agencies’ ability to conduct investigations 

effectively and efficiently, prevent the disclosure of confidential information, avoid the 

opportunity for collusion or intimidation among witnesses or parties, prevent the source of 

complaints and informants from dwindling, and prevent harming a parallel investigation or 

proceeding by another agency. How should such concerns inform the Commission’s disclosure 

policy? 

Should the Commission require tolling agreements as a matter of course if respondents 

challenge a decision to withhold or disclose a particular document or category of documents? 

2 
3 

What will be the impact on conciliation of restricting the Commission’s ability to 

continue formal investigation while engaging in conciliation and at the same time producing 

existing investigative records to respondents? 

The Commission intends to discuss the proposals again at the next scheduled Open 

Meeting on May 26, 2011. Comments are due by 5:00pm on May 23, 2011 and may be sent to: 

documentdisclosure@fec.gov. The proposals and audio of the discussion the Open Meeting of 

May 5, 2011 are available at: http://www.fec.gov/agenda/2011/agenda20110505.shtml .