The Federal Election Commission (“FEC”) is considering a new agency policy requiring the disclosure of exculpatory evidence to respondents in enforcement matters. The Open Meeting Agenda can be found here with links to the various draft proposals. Currently, the FEC does not have a policy requiring the disclosure of exculpatory evidence to respondents in an enforcement matter. This is a necessary agency reform that is long overdue.
I am currently listening to the Commissioners debate the policy proposals and an interesting exchange just took place between Commissioner McGahn and the Office of General Counsel (“OGC”) regarding the briefing procedures at the probable cause phase. 2 U.S.C. sec. 437g(a)(3) requires the OGC to notify the respondent of its recommendation that the Commission find probable cause, including OGC’s brief containing its factual and legal analysis of the matter. Afterwards, the respondent is permitted to file its own brief responding the OGC recommendation and brief. The plain language of the statute contemplates that the respondent will have the last word and that both briefs will be submitted to the Commission for its consideration.
During the debate on this matter, however, the OGC just stated that it may change its recommendation and possibly its factual and legal analysis of the matter after the respondent files its brief. This is troubling since the OGC may submit a different brief that continues to recommend probable cause and either excludes evidence contained in the brief sent to the respondent or includes additional evidence and arguments that were not disclosed to the respondent in the original probable cause brief. If true, this practice does not appear to be consistent with the plain language of the statute and raises serious due process concerns.
Respondents in FEC enforcement matters must be given a meaningful opportunity to respond to the allegations against them. Failure to disclose exculpatory evidence or revising the OGC probable cause recommendation and brief without providing a respondent an opportunity to respond should not happen at an agency charged with administering and enforcing the laws governing political speech and campaigns.