The other day the FEC proposed, seemingly, the simplest of things:  to offer those charged with violations of law an opportunity to address the decision-maker, the agency, in oral argument.  Of all the policies it recently fashioned for comment, this might have passed as the most unexceptionable.  But the Campaign Legal Center blog promptly displayed a dissenting post from one its attorneys, Paul Ryan, who disapproves of both the agency’s procedural permissiveness and my endorsement of it. 

     Ryan puts forward two complaints:

1) that I am wrong to suggest that, in answering the General Counsel’s recommendation of "probable cause," the oral advocate would truly be engaging with an "adversary," since Ryan believes that the agency and the General Counsel are really "one," judge and prosecutor; and

2)  that oral arguments would be popular with lawyers who, in requesting the opportunity, would only slow the agency’s already sluggish decision-making.

     Ryan is satisfied that no harm results from the denial of this additional—and some say, indispensable—element of due process.  He points out that the Commission cannot impose fines; a defiant respondent can force the matter into court, where real due process would then be on offer.

     Consider first, when considering at all, what Ryan means when he contests the notion that the General Counsel is an adversary.  The FEC must determine whether to conclude that there is "probable cause" to believe that a violation has occurred.  The General Counsel makes a recommendation; by law, the recommendation, set out in a brief, is provided to the respondents for reply.  Reviewing these submissions, the agency then makes a decision.  Now, as Ryan knows, the agency is free to consult with the General Counsel’s office about the two submissions:  to ask questions or seek clarifications, but only from this one "side," which is the side favoring a finding of liability. 

     It is true that the General Counsel is an employee of the agency, chosen by the Commission and serving at its pleasure, but does this make it any less unfair—any less an offense against notions of due process—that one side to an argument has unlimited access to the decision-maker when the other has none?  The statute sets up precisely an adversarial process for these purposes, and only by an act of will is it not seen as such.  It speaks rather loudly to the reform community’s view of the world that it derides, as a clumsy, partisan-dominated put-up job, a statutory scheme that it then praises only to the extent that it affords minimal process to the respondent. 

     Allowing for oral argument in appropriate cases would serve a useful function not mentioned by or of apparent interest to Ryan.  The FEC Commissioners might learn something.  In the more complex cases, where there are genuine questions about the facts or their legal significance, argument might permit a constructive exchange to the benefit of the final decision in the case.  A case well-reviewed at the agency level might produce better decisions, improving either the agency’s chances of prevailing upon appeal or—heaven forbid—the respondent’s odds of defeating claims of liability.

     It makes more sense to reform the agency’s decision-making process, so that it is better and fairer, than to pack respondents off to court in search of a thorough hearing denied to them at the administrative level.  The resources devoted to legal defense are lost to other purposes—most notably, the political purposes that donors provided them for, within the stringent limits imposed by the law.  Dollars spent on legal defense rather than political action are not easily replaced. 

     Few benefit from a flawed agency process.  Few, that is, except those who prize the flaws as the only way to achieve expedition:  the fastest possible resolution of claims. This is Ryan’s wish—speed of disposition.  Without doubt, a truncated process, heavily stacked against the respondent and lacking in procedural protections, does in theory permit the agency to process violations  more on its own terms, more quickly.  This is, of course, the very objective—speed, achieved by cutting procedural corners—that contributes most predictably to shoddy decision-making and unfairness to respondents.

     Reformers wish to have it both ways with this thirst for hasty enforcement.  To curb "circumvention," and in the natural expansion of any bureaucratic regime, the law grows more complicated; but the more complicated law is less rather than more simple to enforce, and the choice for complication is not a choice for "speedy resolution."  The cases that reform advocates wish to see processed speedily are the more complex, the more consequential ones, where the aggressive application of the law invite serious constitutional and other defenses.  Rushing these cases ensures both carelessness—bad decisions—and unfairness to the respondents.

     So the FEC is right to improve its enforcement procedures by adding a fresh measure of due process.  Not much will be lost by trying it, in the pilot program that the agency has proposed, and there is a good bit to be gained, if not the favor of the Campaign Legal Center.  But what could the FEC ever do to win that?

Bob Bauer