The dust has settled and another campaign is over. Or is it? If you were one of the unlucky ones who had an FEC complaint filed against you, it isn’t over yet. Such complaints, often filed in the heat of battle, must be dealt with properly, and not doing so can prolong what could be a tidy end to a campaign.
In recent articles for Campaigns & Elections, I covered how to deal with the FEC’s Audit Division and the Reports Analysis Division. Now we turn to the more troublesome FEC enforcement process. So, how to respond to an FEC complaint?
1. The Process
The FEC is a bipartisan agency, and per the statute, can have no more than three of its six members be from the same political party. The statute also sets forth a multi-staged enforcement process that has been further developed in regulation and other procedures. The basic process that governs what are called “Matters Under Review” (MURs) includes:
The complaint: That most complaints get dismissed is proof that anyone can file a complaint. They must be under oath, and although they are supposed to have some specificity, often times they are vague and designed to garner headlines. The FEC is supposed to forward the complaint to those named within five days.
The initial response: Responses are due within 15 days of receipt, and extensions of time are routinely sought and granted. After receiving the response, the FEC’s office of the general counsel prepares a report with a recommendation as to how the FEC ought to proceed. In preparing that report, the general counsel has been known to seek additional information, a controversial practice not contemplated by the statute. Often, these questions concern news articles—so be careful what you say to the press, as it can be used against you.
Reason to believe: The FEC then votes on the general counsel’s recommendation. In order for the matter to proceed, four of the six commissioners must vote to find that there is “reason to believe” that a violation has occurred. Otherwise, the matter is dismissed.
Investigation: If the FEC finds “reason to believe,” the general counsel is then authorized to investigate the matter. This could mean depositions, requests for documents, interviews and other forms of discovery. Note that formal discovery requires the approval of at least four commissioners.
Probable cause: After an investigation, the general counsel then presents the results in a report to the commission, and recommends that the commission either find probable cause or close the matter. Prior to that vote, a respondent can request to appear before the commission. Once again, finding probable cause takes the affirmative vote of at least four commissioners.
Conciliation: Under the statute, after a finding of probable cause, the FEC must attempt to settle the matter for at least 30 days, and no more than 60 days. Called “conciliation,” this settlement process can also occur prior to the probable cause stage.
Litigation: Assuming conciliation does not resolve the matter, the commission can vote to pursue a matter in federal court. This also takes the affirmation vote of at least four commissioners.
2. The initial response
Over the years, there have emerged two schools of thought on how to approach the initial response. Some say less is more, and suggest a short response that does not provide much in the way of detail, and that essentially brushes off the complaint as frivolous. The other, more modern school of thought is that the initial response ought to be thoughtful and detailed, so as to maximize the chance that a matter gets dismissed before an investigation.
Certainly, either approach can work in the right case, but recent history teaches that a more complete response tends to have more success. The goal of the response ought to be to provide the FEC with the legal and factual arguments that can support a dismissal. Why? Because under the statute, those who file complaints can sue the FEC in federal court in an effort to have a judge second-guess a commission decision to dismiss a matter.
The response thus becomes an opportunity to help bolster the record in the event of such a suit, and provides individual commissioners with the sorts of information they need to avoid getting reversed in court. Although some are hesitant to invest in a robust response, often times such thinking proves penny-wise but pound-foolish, and in most cases, a respondent would be smart to have a response prepared by an attorney familiar with the nuances of the FEC.
Under the statute, investigations are not to begin until after at least four commissioners agree that there is reason to believe a violation has occurred. But in recent times, the general counsel has occasionally jumped the gun, and has launched pre-reason to believe inquiries that are indistinguishable from an investigation. Whether to respond or not takes some careful thought (a response is not required, and sometimes not responding makes sense), but certainly any response should be thought-out and not dashed off in haste.
Once the commission finds reason to believe, the general counsel is authorized to investigate. Although formal subpoenas require commission approval, the general counsel will use more informal means of discovery such as “voluntary” interviews. Interestingly, the FEC lacks the power to enforce its discovery requests, and must go to federal court to enforce them if challenged. Although most comply, the FEC has had a mixed record of success in court when it comes to enforcing its subpoenas. Regardless of whether or not a subpoena is issued, care must always be used when dealing with those who work for the federal government.
4. Probable Cause
After an investigation, the general counsel recommends whether or not the FEC ought to find probable cause that a violation has occurred. By this point in the case, the areas of disagreement ought to be obvious to all, since the factual record has been developed. However, a respondent can request to appear before the commission to argue against the general counsel’s recommendation, and answer any questions commissioners have. Some cases have been won at the argument stage, and it is wise to take this opportunity seriously and invest in presenting a thoughtful legal presentation.
If the commission finds probable cause, it must try and settle the matter. Usually, the commissioners approve what is called the initial “out the door offer.” This settlement offer is usually prepared by the general counsel, and is based upon various internal penalty calculators. The offer does always match past settlements in other similar cases, and when that happens, this provides an opportunity to possibly negotiate a better deal.
Usually, conciliation negotiations include significant back and forth between the office of general counsel and a respondent, and the more a respondent understands FEC precedent and process, the better. Occasionally, negotiations break down, and a respondent will ask for their final offer to be presented directly to the commission, as a final hope of settlement.
If a matter does not settle, the commissioners must then decide whether or not to pursue the matter in federal court. Although most matters that get to this stage end up in court, the commission has on rare occasion found probable cause, but not pursued the matter in court. Litigation can be costly for a respondent, particularly since the FEC tends to win many of these cases.
However, they have lost some too—such losses usually occur where a respondent disagreed with the commission’s penalty offer, and a federal judge agreed that the FEC’s preferred penalty was too high. Finally, FEC lawsuits are subject to a five year statute of limitations, where the FEC has five years from the date of the alleged violation to sue.
The FEC enforcement process can be long and drawn out, but much of that is by design, and put in place to ensure that those accused of wrongdoing has some basic due process. If confronted with a complaint, it is wise to understand that process and seek out professional help well-versed in such FEC minutia.
Don McGahn is a partner with the law firm Jones Day, and is the former Chairman of the Federal Election Commission. Nothing in this article ought to be construed as legal advice.