FEC: Enforcement Proceedings

Rulemaking Petition on Closed Enforcement Case Disclosures by FEC

With three other reform groups -- the National Voting Rights Institute, the Center for Responsive Politics and Democracy 21 -- the Campaign Legal Center submitted a petition to the FEC, asking it to commence a rulemaking to address the release of materials relating to closed enforcement cases (ranging from election law complaints to investigatory file materials not exempt from disclosure under the Freedom of Information Act).

The petition requests that the FEC "take up the invitation of AFL-CIO v. FEC " and adopt a "tailored" disclosure policy for materials relating to closed enforcement cases, including non-exempt investigatory materials. It emphasizes that disclosure of these materials can serve multiple governmental interests, including the deterrence of violations of federal campaign finance law and promotion of the FEC's public accountability. In light of these governmental interests and a recent ruling by the D.C. Circuit, the petition concludes by indicating that "[t]his 'tailored' disclosure policy can and should provide for broad access to such materials for the public."

In recent litigation between the FEC and the AFL-CIO, the D.C. Circuit invalidated the Commission's longstanding "blanket" policy of releasing all investigatory file materials relating to closed enforcement cases. The court was concerned that indiscriminate release of information by the Commission - particularly information relating to the names of personnel, political strategies and tactics -- could place an unjustified burden on the First Amendment rights of people and groups the agency investigated.

However, the court indicated that the FEC could disclose materials relating to these closed enforcement cases in addition to "determinations" that a person has not violated campaign finance law and conciliation agreements, through a disclosure policy tailored to avoid unnecessary First Amendment burdens.

Click here to view the rulemaking petition submitted by the Legal Center and other reform groups.

Comments of The Campaign Legal Center on FEC Request for Public Comment on its Enforcement Procedures

On May 30th, 2003 the Campaign Legal Center submitted comments on the FEC's Notice requesting public comment on its enforcement procedures. In significant part, the Notice inquired whether the Commission should, for purposes of its internal enforcement process, adopt certain procedures benefiting respondents (those charged with violations of Federal campaign finance law in external complaints filed with the Commission or through internally generated investigations). For example, the Notice inquires whether it should allow respondents and/or their counsel to appear in person before the Commission to present their positions (in addition to their current ability to make their case through multiple written submissions). It also asks whether the Commission should adopt a policy of not releasing closed enforcement matters or filing lawsuits in court against violators during a time period immediately preceding an election.

The Legal Center's comments indicated that assessing the need for, value of, and significance of these proposals required taking a broader look at the Commission's current capacity to fulfill its enforcement mission. On this front, the Legal Center noted significant problems and challenges, ranging from cumbersome, congressionally mandated enforcement procedures that produce significant delays in the resolution of enforcement matters to a failure of will on the part of the Commission to enforce the law properly. Along these lines, the Commission does not currently have the authority (with the exception of its administrative fines program for late and non-filers of reports) to impose sanctions on violators who are unwilling to conciliate on acceptable terms. Only after the end of a multi-stage internal enforcement process may the Commission then initiate a lawsuit in Federal court to secure the imposition of fines against violators (at which point a large array of due process protections are available to defendants). The comments concluded that, given the Commission's limited power under current law and its ongoing struggles with delay, adoption of the procedural enhancements for respondents proposed in the Notice was not advisable at this time. However, were the Commission to be replaced by an adjudicatory agency with the capacity to impose swift and certain penalties for violations, some of these enhancements might be appropriate (though not the proposal for withholding information from voters closely proximate to elections).

Click here to view the Legal Center's comments in their entirety.

FEC Notice of Proposed Rulemaking on Enforcement Procedures

On April 24th 2003, the FEC approved a Notice of Proposed Rulemaking (NPRM)concerning its procedures for enforcing Federal campaign finance law. The Commission generally invited input on structural and policy issues relating to the enforcement process -- including the designation of respondents by the Commission (in addition to those named in a complaint), motions offered before the Commission, the release of deposition transcripts and documents, extensions of time for responses to probable cause briefs, the idea of publishing the Commission's penalty guidelines, the time the Commission takes to process enforcement actions, and tie votes among the Commissioners at the 'reason to believe' stage of investigations. Public comments on this Notice of Proposed Rulemaking are due on May 30. The Commission plans to hold a public hearing on this issue on June 11.

Click here t o view a copy of this NPRM in its entirety.