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Federal Election Commission FEDERAL ELECTION COMMISSION PUBLIC HEARING ON ENFORCEMENT PROCEDURES 10:01 a.m. Thursday, June 11, 2003 9th Floor Hearing Room 999 E Street, N.W. Washington, D.C. 20463 2 A T T E N D E E S Commission Members Present: Ellen L. Weintraub, Chair Bradley A. Smith, Vice Chairman David M. Mason, Commissioner Danny Lee McDonald, Commissioner Scott E. Thomas, Commissioner Michael E. Toner, Commissioner General Counsel's Office Present: Lawrence H. Norton, General Counsel James A. Kahl, Deputy General Counsel Rhonda J. Vosdingh, Associate General Counsel Staff Present: James A. Pehrkon, Staff Director Roberta J. Costa, Deputy Staff Director 3 C O N T E N T S PAGE Opening Statements Chair Weintraub 4 Vice Chairman Smith 8 Commissioner Thomas 12 Commissioner Toner 16 Commissioner McDonald 19 Commissioner Mason 21 Cleta Mitchell Foley & Lardner) 22 Jan Witold Baran 26 Robert F. Bauer and Marc Elias (Perkins Coie) 29/33 LUNCH James Bopp, Jr. (James Madison Center for Free Speech) 113 Donald F. McGahn II 116 Lawrence Noble (Center for Responsive Politics) 121 BREAK William J. Olson (Free Speech Coalition and Conservative Defense and Education Fund) 196 Charles R. Spies (Republican National Committee) 201 Joseph Sandler and Neil Reiff (Sandler, Reiff and Young, PC) 204 4 P R O C E E D I N G S CHAIR WEINTRAUB: Good morning. This Special Session of the Federal Election Commission for Wednesday, June 11th, 2003, will please come to order. I'd like to welcome everyone to the Commission's hearing on enforcement procedures. The issues we are discussing today were included in a Notice of Public Hearing and Request for Public Comments on Enforcement Procedures, published on May 1st, 2003, in the Federal Register. The Commission is currently examining its enforcement practices and procedures to determine whether internal directives or practices should be adjusted, and we're also considering whether a rulemaking in this area is advisable. I'd like to briefly describe the format for the testimony today. Each witness will have five minutes to make a presentation, and we are going to be using lights. You get a green light when you start, a yellow light at four-and-a-half minutes, and after five minutes the red light goes on, and the floor opens up underneath you, and we do have, well, maybe not, but we do have a long day, and we would appreciate everyone's cooperation in trying to not make it into a long night, as well. We are going to have questions from all of the Commissioners, and the General Counsel and the staff director after the witnesses have an opportunity to make their opening statements. Each Commissioner will also get 5 five minutes on the same light system, and I have rigged the floors underneath their chairs here. No, I haven't. [Laughter.] CHAIR WEINTRAUB: We are going to see three panels of three to four witnesses today. The first panel will begin at 10:15 and run till noon. We'll take a 1-hour lunch break, have another panel from 1:00 to 2:45, and the third panel will testify from 3:00 to 4:45. So it is going to be a very long day. We appreciate the willingness of the commenters to assist in this effort by giving us their views on these issues, and we want to thank particularly the witnesses who have taken the time today to give us the benefit of their experience and expertise in this area. When I came to the Commission six months ago, switching over from being one of the regulated to being one of the regulators, I noticed that there was an occasional disconnect between the way the agency perceived itself and the way the outside world perceived the agency. Of course, there are disconnects between the way various sectors in the outside perceive what the agency is doing and what direction it ought to be moving in. One of our commenters has been quoted as describing the investigatory process here as akin to having bright lights shining on you and being interrogated by the Shining Path guerrillas. 6 Then, there are other commenters who appear to disagree with that analysis, but appear also to think that maybe that is what we should be doing. [Laughter.] CHAIR WEINTRAUB: That was never my experience or my bias that that's or my bias that that's what we should be doing, and I think there was some trepidation, internally perhaps, that we were opening ourselves up to having people come in here today and throw tomatoes at us all day long. I am pleased to note that I don't see a single produce bag anywhere in the room, but I have authorized the Staff Director to confiscate any that I missed. [Laughter.] CHAIR WEINTRAUB: I actually am, on a more serious note, very pleased with the tenor of the comments that we've received, which have been very constructive and very positive. It was not our intention to open this up to allow people to come in and kvetch about their least-favorite attorney in the office, and I am gratified that the commenters perceived where we were going with this and have given us a lot of positive, constructive, process-oriented comments. We won't take all of them. We'll listen to them all. We'll consider them all. We obviously won't follow them all. In fact, we couldn't follow them all because some of them contradict with others. 7 But I do think that, for the agency, there is nothing but upside in our engaging in a dialogue with the regulated community, and the reform community, those who have been out there for years following very closely what the agency does, I think have a lot to offer us in terms of their experience and their perspective on how we could do our job better, and that's really our goal here is to, as my daughter would say, "Make us the best FEC that we can be." I want to thank, again, all of the participants, all of the commenters, all of the people who have submitted written comments and all the people who have agreed to come here and testify and subject themselves to our questioning today. I particularly want to thank the General Counsel for his cooperation and participation in this agreement to spend this entire day doing this, today, on his birthday. I want to thank all of my colleagues for their willingness-- COMMISSIONER McDONALD: He'll be more than one year older after this. [Laughter.] CHAIR WEINTRAUB: I want to thank all of my colleagues for engaging in this introspective exercise, and I particularly want to acknowledge the efforts of the Vice Chairman in pushing to get this on the agenda. I am very pleased to be able to convene this hearing, and I am looking forward to a very interesting day. 8 I now turn it over to the Vice Chairman, who I know also has an opening statement. VICE CHAIRMAN SMITH: Well, thank you, Madam Chair. Thank you for your comments, and I share many of your thoughts, particularly about the willingness of the General Counsel and the Counsel's Office to engage in this type of self-examination and review, which always does carry some possibility of the brickbats being thrown in. I think you forgot to congratulate the security guards on the no fruit that you were commenting about. [Laughter.] VICE CHAIRMAN SMITH: I do want to note that I think that if the mere appearance of corruption can cause citizens to lose confidence in government, then surely the appearance of unfairness or unequal administration of the law can cause citizens to lose confidence in government. And a sense that the process is fair and understandable is essential if the public is to have confidence in and support for the law. In 1983, the Chairman of the American Bar Association Section of Administrative Law testified before a congressional committee that the FEC's enforcement process was unduly prolonged and could be criticized as "operating in a `star chamber' style," going on to note that those who are investigated are not clearly apprised of what it is that they are alleged to have done, and they are never given the 9 opportunity to plead their cases in the way that most of us, as lawyers, are accustomed to, by addressing the decisionmakers. There were several other issues raised, and I think we may hear about some this morning. But 20 years later, virtually all of those procedures that sparked those criticisms remain in place at the FEC and have not been examined in any comprehensive manner that would allow for public input. So I think today's hearing is an important first step in reviewing these enforcement procedures for the first time, literally, in decades. An agency such as ours is always going to be subject to criticism, and it's to be expected that there will be friction between the regulators and the regulated, but this can't simply be an excuse to avoid any kind of change. Lawyers with whom I speak who do not practice before us are regularly shocked by some of the procedures that are operative at this agency. Similarly, I note that a substantial majority of those commenting have urged the Commission to substantially strengthen the due process protections of those brought before the Commission. Three commenters defend the status quo basically on the grounds that the Constitution does not require such added protections, but the Constitution sets only minimum standards that people have a right to demand 10 from their government, and it never sets the most that government can or should do.
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