Yesterday’s post noted several proposed changes to the Federal Election Commission’s Enforcement Manual that are likely to prove controversial. Yet there are also proposals in that same document that merit serious consideration, if not outright support, from all on the Commission. Here are just some suggestions of proposals that could win bi-partisan support.
- Applying the statute of limitations to claims for equitable relief, such as disgorgement, as well as to monetary penalties.
- Providing clarity on where penalty negotiations will begin by providing a chart like the one at section 18.104.22.168.
- Providing greater clarity on the aggravating and mitigating factors the Commission will consider when deviating from the pre-set formulas.
- Providing Commissioners with information on relevant pending and past matters—both those consistent with the staff recommendation and those that are inconsistent—when presenting a question for a vote.
- Setting expectations for how long it will take staff to process cases at certain stages of the enforcing process.
- Ending the use of admonishments. A reasonable idea, but vulnerable to statutory and due process arguments and consequently, one whose time has probably passed.
- Easing the granting of extensions of time in enforcement and untying the grant of an extension from a tolling of the statute of limitations.
- Regularizing the use of contention language, correcting facts, and limiting admissions clauses in conciliation agreements.
This is far from an exhaustive list, and only serves to highlight that the agency should be able to find common ground on some of the proposed changes to current practices. The search for compromise is frequently difficult, and is especially so at this point in the Commission’s history, when a string of hard and bitter fights have left bruises and a shortage of trust. But the document in front of the Commission is an important one, and the opportunity to cement into place procedural protections that will guide the agency’s practices for years to come is worth the effort.