Way back in the 1970s, the FEC and the Department of Justice signed a Memorandum of Understanding (the “MOU”) outlining how they would manage their concurrent jurisdiction for violations of the Federal Election Campaign Act.  The FEC has civil jurisdiction and the DOJ has criminal jurisdiction.  But over the years, the relationship between the two agencies broke down.  The MOU hasn’t been updated since the 1970s, and attempts a few years ago to revise and renew the MOU failed.  While there have been isolated cases in which the FEC and DOJ have cooperated over the years, there have also been many cases where they did not, especially in recent years.

That may be changing now.  We are seeing a host of signs that the two agencies are once again on speaking terms.  Publicly, the clearest evidence of this trend is reflected in recent hiring decisions by the FEC.  A key example is the agency’s decision to appoint Dan Petalas, a federal prosecutor fresh out of DOJ’s Public Integrity Section (“PIN”), as the FEC’s new head of enforcement.  Petalas’s formal title is Associate General Counsel for Enforcement.  Coming straight from PIN, which has a lead role on federal criminal campaign finance prosecutions, and which includes the Election Crimes Section, Petalas is well-positioned to bridge the gap that emerged over the years between the FEC and DOJ.  The FEC also recently hired Lisa Stevenson, a white collar criminal litigation partner at Washington-DC based Zuckerman Spader, to serve as a special counsel to the FEC’s General Counsel, Tony Herman.  Stevenson brings significant white collar experience to the agency, which will dovetail with Petalas’s background.  These and other factors suggest an emerging détente between the two agencies, and the likelihood of closer cooperation, perhaps on joint FEC/DOJ investigations.

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Photo of Robert Kelner Robert Kelner

Robert Kelner is the chair of Covington’s Election and Political Law Practice Group. Mr. Kelner provides political law compliance advice to a wide range of corporate and political clients.  His compliance practice focuses on federal and state campaign finance, lobbying disclosure, pay to…

Robert Kelner is the chair of Covington’s Election and Political Law Practice Group. Mr. Kelner provides political law compliance advice to a wide range of corporate and political clients.  His compliance practice focuses on federal and state campaign finance, lobbying disclosure, pay to play, and government ethics laws, as well as legal ethics rules.  His expertise includes the Federal Election Campaign Act, Lobbying Disclosure Act, Ethics in Government Act, Foreign Agents Registration Act, and Foreign Corrupt Practices Act.  He is also a leading authority on the arcane rules governing political contributions by municipal securities dealers, investment advisers, hedge funds, and private equity funds.  Mr. Kelner advises Presidential political appointees on the complex process of being vetted and confirmed for such appointments.

In addition, he regularly advises corporations and corporate executives on instituting political law compliance programs.  He conducts compliance training for senior corporate executives and lobbyists.  He has extensive experience conducting corporate internal investigations concerning campaign finance and lobbying law compliance, as well as other corporate compliance matters.  Mr. Kelner regularly defends clients in investigations by the Federal Election Commission, the U.S. Department of Justice, the U.S. House & Senate Ethics Committees, the House Oversight & Government Reform Committee, the House & Senate Judiciary Committees, the House Energy & Commerce Committee and its Subcommittee on Oversight & Investigations, the Senate Finance Committee, the Senate Special Committee on Aging, the Senate Permanent Subcommittee on Investigations, the Senate Health, Education, Labor, and Pensions Committee, and other congressional committees.  He has prepared numerous CEOs and corporate executives for testimony before congressional investigation panels, and he regularly leads the Practicing Law Institute’s training program on congressional investigations for in-house lawyers.  He also defends clients in Lobbying Disclosure Act audits by the GAO and enforcement actions and audits by state election and lobbying enforcement agencies.

Mr. Kelner has appeared as a commentator on political law matters on The PBS News Hour, CNBC, Fox News, and NPR, and he has been quoted in the New York Times, Washington Post, Wall Street Journal, Legal Times, Washington Times, Roll Call, The Hill, Politico, USA Today, Financial Times, and other publications.