an extension of time (to August 11). Moreover, the materials submitted by a committee to the FEC as a part of this informal procedure are considered by the Audit Division in making recommendations to the Commission, and by the Commission as well before making its final determination, even though, again, nothing in the regulations or statutes requires the FEC to allow such submittals. After an initial repayment determination is made, regulations provide for 30 days (and a possible 30 day extension) to make additional submittals in writing in the event that the campaign committee disputes the FEC's initial determination. 11 C.F.R. § 9007.2(c). Any materials submitted under 11 C.F.R. § 9007.2(c) must be considered by the FEC in making its final determination. 11 C.F.R. § 9007.2(d). That final determination must include a statement in writing for the FEC's action, 11 C.F.R. § 9007.2(e), and is, as noted above, reviewable in the Court of Appeals. 26 U.S.C. § 9011(a).
Consequently, the statutory audit procedure furnishes RBC with sufficient input comporting with the requirements of due process. Moreover, should the information in the audit procedure lead toward enforcement of violations under FECA, the law provides for adequate notice of allegations of such violations, see, 2 U.S.C. § 437g(a)(2), and an opportunity to resolve the matter by informal methods of conference and conciliation, 2 U.S.C. § 437g(a)(4)(A)(i), with such conciliation efforts remaining confidential pursuant to 2 U.S.C. § 437g(a)(4)(B)(i). Should the matter not be resolved by informal means, the FEC has the authority to initiate a civil action for relief in an appropriate United States District Court, under 2 U.S.C. § 437g(a)(6), where the campaign committee charged with violations of law would have all the procedural protections normally afforded defendants in civil cases.
RBC also argues that the terms of FECA and PECFA, aside from due process requirements, direct that the audit report in question remain confidential. RBC cites 2 U.S.C. § 437g(a)(4)(B)(i) and § 437(a)(12) for the proposition that FECA prohibits disclosure of information concerning proceedings thereunder. However, these provisions apply only to enforcement proceedings under FECA, and not to the audit and repayment determination process set forth in PECFA. Subsection (a)(4)(B)(i) specifies that no information in connection with a "conciliation attempt" by the FEC under section 437g(a)(4)(A) may be made public without the parties' written consent. Yet the audit process is not a "conciliation attempt" under that statute, but a procedure under PECFA, and as such, the confidentiality provision of subsection (a)(4)(B)(i) does not apply. Federal Election Commission v. Illinois Medical Political Action Committee, 503 F. Supp. 45, 47 (N.D.Ill.1980). Subsection (a)(12), as noted above, requires that "(a)ny notification or investigation made under this section shall not be made public" without the written consent of the parties. Again, however, the audit process is not a "notification or investigation" under section 437g, but a procedure established by PECFA. Moreover, as another court noted, "The legislative history of the provision (section 437g(a)(12) (A)) clearly establishes that it was not meant to conceal the results or the contents of an investigation, but rather that it was meant to avoid adverse speculative publicity during the pendency of an investigation." Federal Election Commission v. Illinois Medical Political Action Committee, supra, at 46, citing H. Conf. Rept. No. 94-1057, 94th Cong., 1st Sess. 50, reprinted in (1976) U.S.Code Cong. & Admin.News 946; 122 Cong. Rec. 8566 (Mar. 30, 1976) (statement of Rep. Hays). As such, these subsections do not support RBC's argument that the final audit report must be made confidential.
RBC also cites a provision of PECFA in reinforcement of its argument that confidentiality is required, which provides that "It shall be unlawful for any individual to disclose any information obtained under the provisions of this chapter except as may be required by law." 26 U.S.C. § 9012(g)(1). RBC argues that, with respect to information obtained in the course of the audit procedure under 26 U.S.C. § 9007, PECFA, at 26 U.S.C. § 9009(a), authorizes disclosure only to Congress, and that such disclosure is limited to the amount of payments required and the reasons therefor. The FEC, however, contends that audit reports are in fact required by law to be made public, pointing to FOIA and section 9009(a) of PECFA.
Certainly, it is difficult to find a mandate of confidentiality in section 9009(a). This section requires the FEC after each election to submit reports to Congress as to financial data of campaign committees receiving funds under PECFA. Nowhere does the statute suggest that Congress is to keep such reports confidential, and since the information that is the subject of these reports to Congress does not involve conciliation efforts or notifications or investigations under section 437g of FECA, neither do the provisions under that section compel Congress to guard the confidentiality of these reports. Indeed, the fact that each report submitted under section 9009(a) is required under that statute to be "printed as a Senate document" compels the conclusion that such reports were intended by Congress to be open to public view. Clearly, section 9009(a) evinces a purpose on the part of Congress to allow taxpayers who chose to direct a portion of their taxes to the Presidential Election Campaign Fund to know exactly how those tax monies are being spent. See, H.Conf.Rept. 92-708, 92d Cong., 2d Sess., 117 Cong.Rec. 44783 (Dec. 4, 1971), reprinted in (1971) U.S.Code Cong. & Admin.News 2077 (concerning requirement of all candidates to furnish periodic expenditure statements that would be made public by the Comptroller General).
Yet the interests protected by PECFA do not stop at the public's right to know how tax monies are distributed, but also embrace a concern for openness and accountability to the public in the operation of Presidential campaigns. The legislative history of PECFA demonstrates that allowing the voting public the opportunity for greater scrutiny of political campaigns was an equally important purpose of the act. Senator Pastore, a leading proponent of the bill that established the act, described the act thus: "... it requires frequent reporting and disclose (sic ) of contributions and expenditures by candidates and their committees so that the electorate may know the source of a candidate's campaign funds and their distribution." 117 Cong.Rec. 41762 (Nov. 17, 1971). As was likewise noted during the same Congressional debates preceding enactment of the act, "the people of this Nation are demanding to know the sources of campaign financing, and they have a right to know from whence comes the "mother's milk of politics.' " Id., at 41767 (remarks of Sen. Bentsen).
Finally, as the FEC points out, the audit report, as a document created by the agency, is subject to mandatory disclosure under FOIA. 5 U.S.C. § 552. Again, no statute specifically exempts audit reports from disclosure under FOIA, and regulations promulgated by the FEC provide that it "will make the fullest possible disclosure of records to the public" including audit reports. See, 11 C.F.R. §§ 4.2, 4.4(a)(14), 3.2(a). As the FEC notes, the proviso "except as may be required by law" in section 9012(g)(1) must be read to incorporate FOIA's disclosure requirements.
In light of the full opportunity for input into the audit process, the protections within FECA and PECFA against premature disclosure of information relating to violations of law, and the availability of judicial review, it is clear that the only interest that could be affected by publication of the report is RBC's concern about its reputation. However, this interest is not sufficient to warrant keeping the audit report in question secret especially when this particular report will not contain information implicating RBC with violations of law. Otherwise, information of this type that Congress has declared to be of important public interest never could be disclosed.
It should not be overlooked that Congress has demonstrated a concerned intent that the acts' purpose of openness not be stultified by unnecessary delay in the publication of the audit reports and their presentation to the electorate for whose benefit their creation was mandated by law. Congress was troubled by the inability of the FEC to make prompt disclosure of the audit reports it prepared following the 1976 election, and it was this concern that ultimately prompted the Commission to adopt new procedures to streamline the audit process. During hearings before the Senate Committee on Rules and Administration, Senator Pell expressed his concern with the delays affecting the audit reports' production thus:
... if (the audit report) is delayed this year and goes on another six months, another year, we are into another campaign before we are through with the ... campaign, so there is no purpose in the whole operation, because nobody is interested in history. And this will become history before we are through.
... the purpose is for the public to know.