Election law violations.

• Author: Indelicato, Christopher
• Position: Twenty-Seventh Annual Survey of White Collar Crime

1. INTRODUCTION II. CAMPAIGN FINANCE CRIMES A. Introduction 1. History of the Federal Election Campaign Reform Act 2. Introduction of the Bipartisan Campaign Reform Act 3. Free Speech Challenges to FECA/BCRA a. Recent Successful Challenges i. Electioneering Communications ii. Making, and Soliciting Money to Make, Independent Expenditures b. Recent Unsuccessful Challenges i. Disclosure Requirements ii. Coordinated Contributions and Party Expenditure Limits B. FECA/BCRA-Covered Statutes 1. Limitations on Contributions and Expenditures 2. Contributions or Expenditures by National Banks, Corporations, or Labor Organizations 3. Contributions by Government Contractors 4. Contributions and Donations by Foreign Nationals 5. Contributions in Name of Another Prohibited 6. Limitation on Contribution of Currency 7. Fraudulent Misrepresentation of Campaign Authority 8. Soft Money of Political Parties 9. Prohibition on Conversion of Campaign Funds C. General Issues Pertaining to Criminal Prosecution 1. Jurisdiction 2. Criminal Prosecution 3. Sentencing III. ELECTION FRAUD A. Introduction 1. Background 2. Jurisdiction 3. Prosecutorial Initiatives 4. Investigations B. Election Fraud Statutes 1. Voter Interference Statutes a. Conspiracy Against Rights i. Background ii. Scope I. Public Schemes II. Private Schemes iii. Penalties b. Deprivation of Rights Under Color of Law i. Scope ii. Penalties c. Voter Intimidation Statutes i. Intimidation in Voting and Registering I. Background II. Scope III. Penalties ii. Voter Intimidation I. Background II. Scope III. Penalties iii. Federally Protected Activities I. Background II. Scope III. Penalties iv. Troops at Polls I. Scope II. Penalties 2. Voter Fraud Statutes a. False Information in Registering or Voting i. Background ii. Scope I. Furnishing False Information to an Election Official II. Conspiracies to Encourage Illegal Voting III. Commercialization of the Vote iii. Penalties b. Fraudulent Registration or Voting i. Background ii. Scope I. Fraudulent Registration II. Fraudulent Voting iii. Penalties c. Voting More than Once i. Scope ii. Penalties d. False Citizenship Claims to Register or Vote i. Background ii. Scope iii. Penalties e. Voting by Aliens i. Scope ii. Penalties 3. Alternative Avenues of Prosecution a. Travel Act b. Mail Fraud i. Background ii. Theories of Mail Fraud I. Salary Theory II. "Honest Services" Fraud iii. Penalties I. INTRODUCTION

   Congress has the power to enact statutes to prevent and punish election law violations by public officials, candidates, and other political actors. (1) Statutes discussed in this Article may contain overlapping civil, criminal, and administrative penalty provisions. For instance, the Federal Election Commission ("FEC") has jurisdiction to levy civil fines for all Federal Election Campaign Act ("FECA") (2) violations, including those committed "knowingly and willfully." (3) However, only the Department of Justice ("DOJ"), by and through Assistant United States Attorneys in the field, and the Public Integrity Section in Washington, D.C., may prosecute criminal FECA offenses. (4) However, enforcement of some statutes mentioned in this Article is solely within the jurisdiction of the DO J, including election fraud offenses in federal races. (5) This Article focuses on conduct deemed criminal by Congress and prosecutable by the DOJ.

   Election law issues pertaining to how federal campaigns are financed, and who finances them, have recently gained a high profile due to several landmark judicial decisions. (6) Section II discusses these recent opinions and explores campaign finance crimes in general.

   Election fraud involves "substantive irregularit[ies] relating to the voting act--such as bribery, intimidation, or forgery--which ha[ve] the potential to taint the election itself." (7) Section III of this Article examines election fraud offenses. (8)

2. CAMPAIGN FINANCE CRIMES

   1. Introduction

      Campaign finance laws seek to regulate the influence of money on the political process by placing limitations on who may contribute, how much may be contributed and how contributions may be used. (9) These laws are found in the Federal Election Campaign Act of 1971 ("FECA"), (10) as amended by the Bipartisan Campaign Reform Act of 2002 ("BCRA"). (11) Several recent court rulings have brought issues pertaining to campaign finance regulation into the national spotlight. (12)

      1. History of the Federal Election Campaign Reform Act

         Campaign finance regulation in the United States began over a century ago with the Tillman Act of 1907, (13) and was followed by the Federal Corrupt Practices Act of 1925 and, after World War II, the Taft-Hartley Act. (14) Over the next few decades, the Supreme Court decided several high-profile campaign finance cases pertaining to the influence of unions. (15) In 1971, Congress enacted the Federal Election Campaign Reform Act, a landmark piece of legislation incorporating much of the Court's jurisprudence from the previous quarter-century. (16) FECA was subsequently amended in 1974, creating the Federal Election Commission ("FEC"). (17)

         The 1974 amendments were challenged in the seminal case Buckley v. Valeo. (18) In Buckley, the Supreme Court upheld FECA limits on contributions but struck down those concerning expenditures. (19) Additionally, the Court distinguished expenditures that were not truly independent, such as those made in coordination with a candidate or a candidate's committee, from "independent expenditures," holding the former category to also be subject to contribution limits. (20) Congress amended FECA again in 1976, in part in response to Buckley. (21) The FECA saw its last major change for the next quarter-century with the 1979 amendments. (22)

      2. Introduction of the Bipartisan Campaign Reform Act

         The next major amendments to FECA took place in 2002 with the Bipartisan Campaign Reform Act ("BCRA"). (23) Congress's intent in passing this legislation was to plug loopholes in FECA and enhance the punishment for FECA criminal violations. (24) The new features of the BCRA included three "headline features" (25): (1) a ban on "soft money" (26); (2) new regulations on "electioneering communications" (27); and (3) new contribution limits. (28) However, only those provisions involving the "making, receiving, or reporting" of a "contribution, donation, or expenditure" trigger FECA's criminal penalties. (29)

      3. Free Speech Challenges to FECA/BCRA

         In Buckley, the Court definitively held that "contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities" (30); however, the Court also recognized the compelling "governmental interest in preventing corruption and the appearance of corruption" in election campaigns. (31) The Court explained that "[t]o the extent that large contributions are given to secure a political quid pro quo ... the integrity of our system of representative democracy is undermined." (32)

         The Court has historically "afforded stronger protection to expenditures (33) by citizens and groups ... than it has provided to their contributions (34) to candidates or parties" because of a greater risk of quid pro quo corruption, (35) or appearance of such thereof.

         a. Recent Successful Challenges

         i. Electioneering Communications

         "Electioneering communications" (36) are usually considered "disbursements," a distinction which is significant because of the fact that FECA's criminal provisions only cover violations involving "a 'contribution, donation, or expenditure."' (37) However, under the BCRA, electioneering communications that are coordinated with a candidate or party committee are considered contributions to, and expenditures by candidates. (38) Additionally, those communications funded by corporations or labors unions are deemed expenditures, which, under [section] 203 of the BCRA, are illegal if made from the general treasury funds of these entities. (39)

         In McConnell v. FEC, the Court upheld the BCRA's constitutionality and most of its provisions. (40) The Court rejected a facial challenge to the BCRA's prohibition on the use of corporate and labor organization treasury funds to pay for electioneering communications to the extent that these "issue ads" were broadcast during the 30- and 60-day periods preceding federal primary and general elections, respectively, and were the "functional equivalent of express advocacy." (41) However, the Court revisited the "issue ads" provision again in FEC v. Wisconsin Right to Life in 2007, striking it down on an as-applied basis. (42) The Court held that the prohibition was unconstitutional as applied to communications capable of a reasonable interpretation other than an "appeal to vote for or against a specific federal candidate." (43) Thus, if a communication can be so interpreted it is not considered an expenditure by an entity, and thus does not fall under the criminal provision of the FECA. (44)

         ii. Making, and Soliciting Money to Make, Independent Expenditures

         FEC regulations promulgated under the authority of the BCRA (45) limiting the ability of "527" groups (non-profit organizations engaged in political activities) to make and solicit money to make independent expenditures have been declared facially unconstitutional violations of the First Amendment. (46) EMILY's List, a non-profit group unaffiliated with a candidate, party, or for-profit corporation, challenged the BCRA provisions limiting how much money a non-profit entity can raise and spend. (47) The U.S. Court of Appeals for the District of Columbia Circuit noted that the "core corruption that Government may permissibly target with campaign finance regulation 'is the financial quid pro quo: dollars for political favors,'" which is implicated by contributions to candidates. (48) The court held that "[d]onations to and spending by a non-profit cannot corrupt a candidate or officeholder" without more particularized evidence of such corruption. (49) The fact...