The electoral process is fundamental to our democracy; and, in recent years, concerns about the sanctity of our elections have come into sharp focus. With more money flowing into political races than ever before, with some candidates and politicians seeming to brush up against the edge of what is lawful at every turn, and with the media bringing political fights into Americans’ living rooms year-round, the U.S. Federal Election Commission (FEC) has no choice but to be extremely active in its law enforcement efforts.
To gather the information it needs in order to enforce our nation’s election laws, the FEC utilizes a number of different investigative tools. One of these tools is the FEC subpoena. The FEC has the power to issue subpoenas in connection with investigations targeting donors, campaign committees, candidates, elected officials, and others, and individuals and organizations that receive FEC subpoenas have no choice but to immediately shift their focus to providing a compliant response.
Federal Political Law Attorneys for FEC Subpoena Defense
At Oberheiden P.C., we provide representation for individuals and organizations facing FEC investigations nationwide. We represent clients in matters involving all types of alleged election law violations, including matters involving:
- Campaign finance
- Corporate compliance
- Non-profit compliance and other tax-related issues
- Redistricting efforts
- Political ethics
Our firm is comprised entirely of senior attorneys and former federal law enforcement agents who offer centuries of combined experience in federal civil and criminal investigations—and many of whom personally have decades of prior experience working for the federal government. We have extensive experience advising clients in FEC and other federal agency investigations; and, if you have been served with an FEC subpoena, we can help you resolve the inquiry as quickly and discretely as possible.
Facing an FEC Investigation
Regardless of your role in the U.S. political system, facing an FEC investigation is a matter that needs to be taken seriously; and, if you have received an FEC subpoena, you need to focus your efforts on complying with the subpoena while also protecting yourself (and your political organization, if applicable), from unnecessary consequences. There are a number of potential reasons why you or your political organization may be under FEC scrutiny, and understanding the impetus for the FEC’s investigation is one of the first steps toward making informed decisions about how you respond to your subpoena.
Potential triggers for FEC investigations targeting campaign finance violations and other matters of election law non-compliance include:
- Agency Referrals – In many cases, FEC investigations are triggered by referrals from other federal agencies. This includes, but is not limited to, referrals from the U.S. Department of Justice, the Federal Bureau of Investigation (FBI), and the Internal Revenue Service (IRS). If you have received an FEC subpoena in connection with an investigation triggered by an agency referral, you will need to ensure that your defense strategy comprehensively addresses all of the allegations that are at issue.
- Citizen Complaints – The FEC also conducts investigations as the result of citizen complaints, and these complaints are becoming increasingly common. If the FEC receives a citizen complaint and is able to sufficiently verify the allegations being set forth, then it may launch a formal investigation focused on gathering the evidence required to support civil or criminal charges. Similar to agency referrals (and FEC audits and self-reported violations, as discussed below), if the FEC issues a subpoena following a citizen complaint, by the time the subpoena is issued the FEC will already have substantial evidence in support of the allegations it is targeting.
- FEC Audits – As the FEC explains, “[t]he agency’s monitoring process may detect potential violations through a review of a committee’s reports or through a Commission audit.” If an inquiry originating with the FEC uncovers evidence of federal election law violations, then the audit may transition into a formal investigation, and the FEC may issue subpoenas in order to compel testimony or the production of documents from the target of the investigation as well as likely witnesses.
- Self–Reporting – Many people wrongly assume that self-reporting violations to the federal government provides insulation against investigation and prosecution. While self-reporting can limit your exposure in some circumstances, voluntarily disclosing statutory or regulatory violations to the FEC is a risky matter that needs to be handled carefully by experienced federal defense counsel. If you self-report an election law violation to the FEC without ensuring that you have adequate protection, your self-report could lead to an investigation and a subpoena (or multiple subpoenas) demanding testimony and documentation.
While discerning the trigger for your FEC investigation is important, regardless of the trigger, you need to give your subpoena the time and attention it demands. If you have received a subpoena ad testificandum, preparing your testimony will take time; and, if you have received a subpoena duces tecum, you will need to ensure that you fully comply with the subpoena will also preserving your privilege against self-incrimination and the attorney-client privilege. In many cases, FEC subpoenas duces tecum will be extraordinarily broad, and preparing a compliant response will be a substantial endeavor that requires the work of a team of carefully-selected internal personnel as well as highly-experienced outside federal defense counsel.
Responding to an FEC Subpoena
If you have received an FEC subpoena, are you required to respond? If so, how should you respond? What should you do if you do not have responsive information in your custody or control? What if you have too many records and cannot comply with an FEC subpoena by its stipulated deadline?
These are all extremely important questions, and yet they only just scratch the surface of what you need to know when responding to a subpoena from the U.S. Federal Election Commission. The steps involved in responding to an FEC subpoena include:
1. Assessing Your Compliance Burden
First, you must carefully review the subpoena with the assistance of your legal counsel in order to determine the scope of your compliance burden. Are you being asked to provide testimony, documents, or both? What issues does the subpoena cover; and, what, in turn, does this mean in terms of the volume of information or documents you must begin preparing to provide? The compliance burden associated with receiving an FEC subpoena will often be substantial, and preparing your response could be a time-intensive process that will take you right up to your response deadline.
2. Preparing Your Testimony and/or Assembling Your Response
Once you have a clear understanding of your compliance burden, then you can begin preparing your testimony or assembling the documents that you will provide to the FEC in response to its subpoena (or both). In order to ensure that your response adheres to the subpoena’s requirements, you will need to work closely with your (or your organization’s) legal counsel throughout this process.
3. Protecting Privileged Information, Records, and Communications
When preparing your response, it is imperative that you preserve the attorney-client privilege. If you provide testimony or records that contain privileged communications, then you or your organization could lose the privilege entirely for purposes of the FEC’s investigation. Likewise, when responding to an FEC subpoena, you need to be absolutely certain that the testimony and documents you provide do not encompass self-incriminating information.
4. Evaluating the Risks Posed by the FEC’s Investigation
Based on the allegations at issue and the facts on the ground, what are the risks posed by the FEC’s investigation? Are you simply being asked to provide information as a witness? Or, is the FEC seeking evidence in support of civil or criminal charges against you or your organization? While these are very different scenarios, both require a tactful approach in order to ensure that you are able to move on from the FEC’s investigation without adverse consequences.
5. Developing an Overall Defense Strategy
If there is a risk that you or your organization could be targeted for civil or criminal election law violations, you will need to work with your legal counsel to develop a comprehensive defense strategy. This strategy should address all possible allegations and target each individual element of each alleged offense.
6. Coming Into Compliance (if Necessary)
If there are issues that need to be addressed in terms of political law compliance, then you will need to address these issues proactively—before you are asked to do so by the FEC. With our attorneys’ experience as both compliance and defense counsel, we are able to help donors, candidates, elected officials, campaign committees, and other entities efficiently establish compliance with all pertinent federal laws and regulations.
7. Interacting with the FEC
Finally, with all necessary preparations completed, your legal counsel can engage with the FEC on your behalf. At Oberheiden P.C., our attorneys can seek to reduce the scope of your compliance burdens as necessary and to the extent possible, and we can represent you or your organization in all matters pertaining to the FEC’s investigation.
Speak with a Federal Political Law Attorney about Your FEC Subpoena
If you have received an FEC subpoena, you do not have time to waste. To discuss your subpoena with one of our senior federal political law attorneys in confidence, call 888-680-1745 or tell us how you would like to be contacted online now.