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FEC Enforcement Process Called ‘Burdensome’

The Federal Election Commission will take a hard look at itself today when the campaign watchdog agency conducts a hearing on its enforcement procedures.

Lawyers from all sides of the enforcement process — from those who represent party committees to those who work for public interest groups — plan to testify on a variety of topics, and more than a dozen groups and individuals recently weighed in on the debate with written comments. The day-long hearing begins at 10 a.m.

“Among attorneys who practice before the Commission, there is a long-held belief that, even if their client is ultimately exonerated, the process of dealing with the Commission’s enforcement process is burdensome,” Republican National Committee counsels Thomas Josefiak and Charles Spies wrote in a lengthy letter to the FEC.

They suggest a number of changes, including naming fewer initial respondents in enforcement cases rather than the expansive lists that are currently compiled, clarifying the FEC’s confidentiality requirement for witnesses, and considering allowing motions in limited circumstances in proceedings.

Similarly, the California Political Attorneys Association remarked in written comments that the FEC should “provide more ‘process’ to respondents in enforcement proceedings than at present.”

Among the group’s suggestions are that the FEC should exercise more discretion in naming respondents in a case, that it allow limited waivers of confidentiality to allow respondents in cases to facilitate their own defenses, and that individuals be allowed to file motions to dismiss and motions to reconsider certain determinations by the FEC.

The CPAA also suggested that the commission adopt guidelines, similar to court rules, to cover the subject of requesting or granting extensions of time in cases and that parties to an enforcement matter or their lawyers be allowed in some circumstances to appear before the FEC at the end stage of cases.

Glen Shor, the FEC program director for the Campaign Legal Center, described the FEC’s enforcement process as “cumbersome” and prone to delays by its very nature.

“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,” Shor wrote.

However, Shor rejected most of the proposals contained in the FEC’s original notice of rulemaking, arguing they would “exacerbate current problems with the enforcement process, present opportunities for sophisticated parties to undermine enforcement or be counterproductive in other respects.”

Like Shor, Democratic election lawyer Bob Bauer also commented on the problem of timeliness at the FEC.

“This is actually a blessing for those respondents who are immune to the pain and anxiety of uncertainty,” Bauer wrote. “It is true that the innocent sleep easier when they expect a quick resolution of a matter. On the other hand, the guilty usually sleep very well during dormant investigations.”

Nonetheless, he suggested that timeliness is an internal issue for the FEC and will require “candid self-examination of the problem.”

In addition to the slowness of the enforcement process, the National Voting Rights Institute concluded that the agency’s confidentiality requirement — which mandates that the FEC keep confidential all details related to an enforcement matter — “undermines public confidence” that the FEC is doing its job.

Currently, the NVRI is serving as lead counsel for a group that is suing the FEC for its inaction on a complaint filed against the leadership political action committee of current Attorney General John Ashcroft during his 2000 Senate campaign.