Federal Election Commission (FEC) Defense Lawyers
Political action committees (PACs) and their owners will be under the microscope during the 2020 campaign season. Here’s what you need to know if you or your PAC is being investigated by the Federal Election Commission (FEC).
The 2020 presidential election is expected to be the most-watched and most-well-funded in American history. While this is good news for political action committees (PACs) that rely on exposure and voter engagement to bring in funding, it also means that PACs and their owners are likely to face unprecedented scrutiny during the campaign season. This includes scrutiny from the Federal Election Commission (FEC), as well as other federal agencies and election campaign watchdogs.
If your committee is under investigation by the FEC or any other federal agency or watchdog – or if you are concerned that your PAC might become the target of a federal investigation – it is important that you engage federal defense counsel promptly. If made public, the investigation could cause significant and irreparable harm to your PAC’s reputation even if the allegations ultimately prove to be unfounded. However, by engaging federal defense counsel to handle the investigation on your committee’s behalf, you can mitigate the risk of this happening, and your defense team can begin working immediately to resolve the investigation without federal charges being filed.
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Oberheiden P.C. | One Firm. Nationwide Defense.
Oberheiden P.C.’s federal defense team represents political action committees, PAC owners, and other individuals and organizations in federal investigations nationwide. We handle federal investigations involving the FEC, U.S. Department of Justice (DOJ), and all other law enforcement agencies; and, while we have succeeded in protecting most of our clients during the investigative stage, we also have a significant success record in federal grand jury proceedings and trials.
Our firm is unique among federal defense law firms in that our team is comprised not only of attorneys, but also former high-ranking federal agents. This includes former Special Agents, Supervisory Special Agents, and Special Agents in Charge with the DOJ’s Office of Inspector General (OIG), the Federal Bureau of Investigation (FBI), the Internal Revenue Service Criminal Investigations Division (IRS-CI), and other agencies. Our former agents’ vast investigative experience allows us to quickly assess our clients’ exposure, and our senior attorneys’ extensive experience in federal cases (including experience as DOJ prosecutors and U.S. Attorneys) allows us to formulate and execute targeted defense strategies quickly and discretely before the FEC and the DOJ decide to pursue charges.
When you engage Oberheiden P.C. to handle your political action committee fraud investigation, your defense team will include:
- Dr. Nick Oberheiden, firm founder and career federal defense attorney
- Lynette S. Byrd, former DOJ prosecutor
- Amanda Marshall, former U.S. Attorney
- Roger Bach, former Special Agent (OIG)
- Chris Quick, former Special Agent (FBI and IRS-CI)
- Kevin Sheridan, former Supervisory Special Agent (FBI)
- Ray Yuen, former Supervisory Special Agent (FBI)
- Gamal Abdel-Hafiz, former Supervisory Special Agent (FBI)
Potential Triggers for FEC (and Other Federal Agency) Investigations Targeting Political Action Committees and PAC Owners
Political action committees that support presidential candidates and other candidates for federal office are subject to a bevy of laws and regulations that fall within the FEC’s jurisdiction. The FEC dutifully enforces these laws and regulations, and PACs that are suspected of committing violations can face swift and intensive scrutiny. Similar to other types of federal law enforcement investigations, investigations targeting PACs and their owners can have a number of potential triggers. These include:
- FEC-initiated investigations arising out of perceived filing deficiencies and other perceived campaign finance law and public corruption violations;
- Whistleblower complaints filed with the FEC and the DOJ by disgruntled former employees, operatives of political opponents, and other individuals;
- Complaints filed by election compliance watchdog organizations; and,
- Investigations launched by the FBI, IRS, and other federal agencies that uncover potential evidence of campaign finance law and fundraising regulation violations.
Potential Civil and Criminal Allegations Against PACs and Their Owners in Federal Investigations
While these investigations can target a multitude of potential statutory and regulatory violations, it has recently come to our attention that the FEC may be devoting a significant portion of its resources during the 2020 election cycle to targeting fundraising-related violations. While most PAC owners and organizers are generally familiar with the FEC’s advertising and disclaimer requirements, a basic understanding of the rules is not enough to avoid facing charges if the FEC conducts a targeted inquiry. In fact, in the absence of a comprehensive compliance program, a less-than-comprehensive understanding of the law can actually do more harm than good, as the authorities will use this to allege that you “should have known” better and failed to take the necessary steps to establish and maintain compliance.
In federal campaign finance and advertising fraud investigations, some examples of potential allegations include:
1. Misleading Photos and Quotes
There are strict rules regarding when PACs can make use of candidates’ names and likenesses. Such advertisements are generally viewed as misleading at best, and they will frequently trigger allegations of intentional fraud (i.e. trying to solicit contributions by creating a false impression that the committee has been endorsed by the candidate whose image is being used). When a PAC is not affiliated with a candidate, using his or her name and likeness without a license can also create liability exposure in civil litigation.
While there are ways that PACs can promote their efforts to support particular candidates lawfully, any transgressions in this regard have the potential to trigger an investigation and potentially give rise to other questions about the PAC’s compliance efforts (or lack thereof) as well.
2. Inadequate Advertising Disclaimers
All PACs are subject to advertising disclaimer requirements. This is true whether a PAC is (i) authorized and financed by a political campaign, (ii) authorized but not financed by the campaign, or (iii) neither authorized nor financed by the campaign. There are special requirements for print, television, and radio advertisements; and, while not all advertising materials need to contain disclaimers, many do.
Here, too, noncompliance is likely to lead to a host of additional questions; and, once again, simply facing allegations during an election cycle can be devastating for a PAC. At Oberheiden P.C., we have the knowledge and strategic defense skills required to prevent questions of compliance from transforming into allegations of campaign finance fraud.
3. False or Misleading Claims of Authorization or Endorsement
Having a political campaign’s authorization or a political candidate’s endorsement can be huge for any political action committee. But, falsely claiming to have authorization or an endorsement (or falsely implying the existence of an authorization or endorsement) can have severe legal ramifications. For PACs accused of making false or misleading statements about their affiliation with candidates for federal office, it will often be necessary to prove that the FEC’s interpretation of the PAC’s advertising materials is misguided and/or does not support an inference of intent to defraud potential donors.
4. Failure to Disclose (or Misrepresentation of) Use of Contributions
Another area where political action committees and PAC owners can run into trouble with the FEC is with their federally-mandated financial disclosures. While failure to file the necessary disclosure forms is one way that PACs can get the FEC’s attention, incomplete and misleading disclosures – particularly regarding the use of donors’ funds – are common triggers for federal investigations targeting PACs and their owners as well.
5. Campaign Finance and Advertising Law Violations at Live Events
Many campaign finance and advertising law investigations target allegations of false, misleading, and otherwise fraudulent claims made during live fundraising events. In today’s world, anything said at this type of event has the potential to be recorded and sent to the FEC (or posted on social media), and video recordings of statutory and regulatory violations can be used as evidence in civil and criminal cases. As a result, these events are not the “wild west” they once were, and PAC organizers and owners must be extremely careful to avoid saying anything in public that could be used to substantiate charges of campaign finance or political contribution fraud.
Potential Penalties for Campaign Finance and PAC Advertising Law Violations
The laws that protect the integrity of the United States’ federal election system are broad, and they include provisions for severe civil and criminal sanctions. Political action committees and PAC owners targeted by the FEC and other federal agencies can face a plethora of allegations, and each of these allegations can potentially support multiple civil or criminal charges – and in many cases multiple counts of each individual charge. In civil cases, penalties can include fines and loss of FEC registration. In criminal cases, the financial penalties can be even more severe, and PAC owners and organizers can face years or decades in federal prison.
Contact the Federal Defense Team at Oberheiden P.C.
Is your political action committee facing scrutiny from the FEC, the DOJ, or another federal agency? Are you concerned about the possible consequences of a federal campaign finance law or political advertising law investigation? To speak with a senior member of Oberheiden P.C.’s federal defense team in confidence, call 214-692-2171 or request a free and confidential assessment online now.