The Federal Election Commission is preparing to issue for comment a series of proposed policy or enforcement initiatives.  These will be discussed at its public meeting this coming Thursday.  One has already been posted:  it would establish a policy governing the circumstances in which a political committee may plead an affirmative defense of "best efforts" in a case involving late-filed reporting.  Some of the others may hold still broader interest, with wide implications for the enforcement of the law:  1) a policy to set the terms of "sua sponte submissions," which are self-reported violations brought to the Commissions in the hope of a more favorable disposition; and 2) a policy by which the Commission would test a right to oral argument before the Commission in certain enforcement cases.

     This is what the Commission, in its press release, has to say about "sua sponte submissions":

Self-reported matters, when accompanied by full cooperation, may be resolved more quickly and on more favorable terms than matters arising through complaints, referrals from other government agencies, or referrals from the Commission’s Audit or Reports Analysis Divisions.

     Some within the regulated community are unsure that this is indeed the case.  For some time, it has been far from clear that self-reporting results in either expedited treatment or "more favorable terms" than ordinary enforcement cases initiated by third-party complaint or independent action by the agency.  Agency lawyers would insist, in negotiations, that these benefits were available, but no systematic study of outcomes—and certainly few of the reported experiences of respondents—provided much validation for this suggestion.  If the Commission is now prepared to clarify the ways in which this might be true, this will be most welcome.  The Commission suggests that this is its goal:  "The proposed policy describes the remedial steps that may be taken by a candidate or political committee, along with circumstances that would guide the Commission’s decisions about mitigating potential civil penalties."

     The FEC bar could not fail to be excited by the suggestion that some oral argument, in some enforcement cases, might be under consideration.  For many years, counsel have noted the absence of any direct contact with the agency in enforcement matters.  The arguments are presented on paper, in cases large and small.  By contrast, the Office of General Counsel, effectively the respondent’s adversary who prepares the case for enforcement action, including the probable cause determination to which the respondent is entitled to reply, has a free run of the agency.  In other words, one "party" can consult at will with the Commissioners; the other not at all.  All cases are treated this way, both the regulatory equivalent of "fender benders" and matters with the potential of large fines or "knowing and willful" liability findings. 

      With the discussion beginning this Thursday, the FEC is taking (potentially) a major step toward constructive and long overdue reform of its enforcement process.

Bob Bauer