Federal Election Commission Public Hearing on Agency Practices and Procedures January 14-15, 2009 Wednesday, January 14, 2009 P R O C E E D I N G S current commissioner, Ellen Weintraub. The comments received during the 2003 9th Floor Meeting Room CHAIRMAN WALTHER: Good review were considered by the Commission 999 E Street, N.W. morning. The special session of the and as a result, the Commission adopted a Washington, DC 20463 Federal Election Commission for number of new policies and procedures, Wednesday, January 14 and Thursday some of which are referenced in the COMMISSION MEMBERS: January 15, 2009, will please come to Federal Register Notice for this hearing. order. I'd like to welcome everyone to this We are here today to continue that STEVEN T. WALTHER, Chairman hearing on the Commission's policies, process, asking once again for feedback on MATTHEW S. PETERSEN, Vice practices and procedures. how we have been fulfilling our mission Chairman I'm Steve Walther, Chairman of and more importantly, how we can improve CYNTHIA L. BAUERLY, Commissioner the Commission. I will begin by it going forward. The three basic questions CAROLINE C. HUNTER, Commissioner introducing my colleagues at the table. for which we seek answers are, how can we ELLEN L. WEINTRAUB, Commissioner On my left is Vice Chairman Matt make our process more transparent? How DONALD F. McGAHN II, Commissioner Petersen. On my right is Commissioner can we make it more fair? And how can Cindy Bauerly. Further on the left is we make it more efficient? ALSO PRESENT: Commissioner Caroline Hunter and further This hearing invites comment on on the right is Commissioner Ellen the broadest scope of Commission THOMASENIA P. DUNCAN, General Weintraub, who presided over our hearing activities since its inception over 30 years Counsel in 2003 when she was Chair of the ago. It is fitting that we do this now. The ANN MARIE TERZAKEN, Associate Commission. On the far left, or far right, Commission has the benefit of realizing General Counsel for Enforcement however you want to look at it, is the how helpful a hearing can be from its JOSEPH F. STOLTZ, Acting Staff immediate past chair, Commissioner Don previous experience in 2003. Director McGahn. But much has changed since then. Also sitting with us on the right, With the passage of the Bipartisan WITNESSES: the far right, is General Counsel Tommie Campaign Reform Act, the passage of the JAN WITOLD BARAN, Wiley Rein, LLP Duncan, and on her left is Ann Marie Honest Leadership and Openness in ROBERT F. BAUER, Perkins Coie, LLP Terzaken, from our Office of General Government Act, the advent of new uses of JAMES BOPP, JR., James Madison Center Counsel. And on my far left is Joseph the Internet and new ways of funding for Free Speech Stoltz, who is our Acting Staff Director. campaigns, and the welcome explosion in JOSEPH M. BIRKENSTOCK, Caplin & The issues we are discussing the number of contributors, we must Drysdale today were included in a notice of public constantly look at new ways to ensure our DAVID M. MASON, Former FEC hearing and request for comments mission is being fulfilled. Chairman published in the Federal Register on The fact that we have the most SCOTT E. THOMAS, Dickstein Shapiro, Monday, December 8, 2008. The notice new Commissioners at one time since the LLP; Former FEC Chairman was signed by our immediate past formation of the FEC is further reason to MARC E. ELIAS, Perkins Coie, LLP chairman, Don McGahn, who is a strong take a fresh look at all our operating WILLIAM J. McGINLEY, Patton Boggs, supporter of this initiative. components from A to Z. This is the start LLP The Commission plays a unique of such a process. HANS A.von SPAKOVSKY, Former role in administering and enforcing the In addition to this exercise by Commissioner federal campaign finance laws and is which we hear from the public, I have BRIAN G. SVOBODA, Perkins Coie, LLP considering this review -- conducting this asked Mr. Stoltz and Ms. Duncan to review LAURENCE E. GOLD, Lichtman Trister review to consider issues that require our internal procedures in the areas of their & Ross, PLLC, AFL- CIO reexamination or adaptation of our policies, respective jurisdictions within the agency ROBERT K. KELNER, Covington & practices and procedures. so that we will contemporaneously have Burling, LLP This hearing is the second of its the benefit of our internal expertise on how kind. The Commission conducted a similar to improve this agency. They readily review of its procedures in 2003, although agreed to do so and have already narrower in scope. That particular hearing undertaken to form internal committees to was conducted, as I mentioned, by our accomplish a complete review of our 1 Federal Election Commission: Public Hearing on Agency Practices and Procedures (January 14-15, 2009) procedures. This will be done in time for are those of the Commissioners and the that proceeding, and there is an element of consideration as part of this proceeding. Commissioners alone, not those of the familiarity. We appreciate all of the people staff. They operate at the direction of the I remember there was a topic of who took the time and effort to comment Commissioners and we take total how respondents should be designated and particularly those of you who are responsibility for our operation. I ask your when a complaint is received, whether the appearing here today as witnesses to give comments today will take that into complaint should be distributed to anybody us the benefit of your expertise and consideration. whose name was mentioned in the experience. We are aware the timing of I would like to describe briefly the complaint at all or whether they ought to be this initiative has been inconvenient for format we will be following today and a little more focused. Of course, as a result some and appreciate very much the time tomorrow. We expect a total of 16 of those hearings, the Commission did you have taken to be here today. It will witnesses who have been divided into six adopt a new procedure focusing on who make a difference. panels. Each panel will have five to ten would be receiving a copy of the In consideration of the issues of minutes to make an opening statement. We complaint. hardship and inconvenience, and to be have a light system at the witness table to Also six years ago, we talked assured we will be able to receive input help keep track of your time, but we will about whether there ought to be from those who were unable to participate not use it unless our internal discipline opportunities for hearings before this because of the holidays, I am asking for a breaks down. agency, particularly with respect to re-opening of the time for written comment The balance of the time is probable cause proceedings and the until midnight Wednesday, February 18, reserved for questioning by the Commission, in my opinion, wisely 2009. This will allow the commenters to Commissioners, our General Counsel and decided to experiment with that and has have the benefit of the written comments our staff director. It is our hope that the adopted procedures for opportunities for received so far and an opportunity to panelists will have roughly an equal probable cause hearings. review the transcript of these proceedings, amount of time to provide their views. We A third topic that was discussed which should be on our website by January have a busy day ahead of us and appreciate six years ago was whether to allow motions 30. everyone's cooperation in helping us stay and if so, under what circumstances, and I So without objection from my on schedule. see that that topic is covered again in the colleagues, I will ask the Office of General And with that, once again, I'd like Federal Notice for this hearing. As we Counsel to prepare a notice to that effect to to welcome you. Thanks for being here. urged the Commission then and urge again be placed in the Federal Register as soon as I'd like to introduce our first panel, today, there ought to be opportunities for possible. Jan Baran, Robert Bauer and James Bopp, motions to be filed before the agency. We have already received pointed Jr. Again, thanks for being here. We will Finally, even six years ago, we criticism and strong suggestions in written begin alphabetically with Mr. Baran. had discussions about access to the comments that precede this hearing and we MR. BARAN: Thank you, Mr. depositions and document production in the will hear more of the same today, as we Chairman, and good morning, course of investigations and allowing should, and we ask that no quarter be Commissioners and Counsel and Mr. respondents to have access to the material given. We also accept favorable comment Stoltz, who I remember from my brief that the Counsel’s office would be relying whenever possible. I note that some was tenure here at the Commission back in the on for any recommendations for probable given, for which we express appreciation. Stone Age. It's always been an honor to cause. However, as we go forward today, have worked at the Commission, There has been progress in that let me note at the outset my view, one that I particularly in the formative stages of the area. I know that there's more access to am confident is shared by all the agency. deposition transcripts today than there was Commissioners. We have the benefit of I would like to acknowledge the then.