Election law violations.

• Author: Bell, Amelia
• Position: 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 b. Deprivation of Rights Under Color of Law c. Voter Intimidation Statutes i. Intimidation in Voting and Registering ii. Voter Intimidation iii. Federally Protected Activities iv. Troops at Polls 2. Voter Fraud Statutes a. False Information in Registering or Voting b. Fraudulent Registration or Voting c. Voting More than Once d. False Citizenship Claims to Register or Vote e. Voting by Aliens f. State Voter Laws i. State Laws Requiring Identification to Register to Vote ii. State Laws Requiring Photo Identification to Vote (1). Pending and Recently Enacted State Legislation (2). Challenges to Voter ID Laws (3). Action by DOJ iii. Shelby County v. Holder and Implication for State Voting Laws 3. Alternative Avenues of Prosecution a. Travel Act b. Mail Fraud i. Theories of Mail Fraud (1). Salary Theory (2). "Honest Services" Fraud I. INTRODUCTION

   Congress has the power to enact statutes to prevent and punish federal election law violations committed 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 violations of the Federal Election Campaign Act ("FECA"), (2) 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) Moreover, enforcement of some statutes mentioned in this Article, including election fraud offenses in federal races, is solely within the jurisdiction of the DOJ. (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 irregularities" including bribery, intimidation, or forgery which have 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) Many of 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 campaign finance regulation under these statutes 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 the Taft-Hartley Act of 1947. (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 that incorporated much of the Court's jurisprudence from the previous quarter-century. (16) FECA was subsequently amended in 1974 to create 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 FECA limits on 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 only the former category subject to contribution limits. (20) Congress amended FECA again in 1976, partly in response to Buckley. (21) FECA saw its last major change for the next quarter-century with the 1979 amendments, which reset monetary thresholds for criminal violations. (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 passed the BCRA to plug loopholes in FECA and enhance punishments for criminal FECA violations. (24) The BCRA featured three major provisions: (25) (1) a ban on "soft money," (26) (2) new regulations on "electioneering communications" (27) including "issue ads" that support candidates without using express language such as "vote for" or "elect," (28) and (3) increased contribution limits. (29) The BCRA also included several significant enhancements and additions to FECA's criminal penalties, such as a five-year felony offense for violations aggregating $25,000 or more (30) and a two-year felony offense for conduit contribution violations aggregating $10,000 or more. (31) The BCRA also repealed FECA's three-year statute of limitations and replaced it with the traditional five-year period used for most other federal crimes. (32)

      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"; (33) however, the Court also recognized the compelling "governmental interest in preventing corruption and the appearance of corruption" in election campaigns. (34) 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." (35) In that vein, the Court has historically "afforded stronger protection to expenditures (36) by citizens and groups ... than it has provided to their contributions (37) to candidates or parties" because of a greater risk of quid pro quo corruption, (38) or the appearance of corruption.

         a. Recent Successful Challenges

         i. Electioneering Communications

         "Electioneering communications" (39) are usually considered "disbursements," a significant distinction because FECA's criminal provisions only cover violations involving a "contribution, donation, or expenditure." (40) However, under the BCRA, electioneering communications that are coordinated with a candidate or party committee are considered contributions to and expenditures by candidates. (41) Additionally, those communications funded by corporations or labor unions are deemed expenditures, which, under [section] 203 of the BCRA, are illegal if made from those entities' general treasury funds. (42)

         In McConnell v. FEC, the Court upheld the BCRA's constitutionality and most of its provisions. (43) 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." (44) In 2007, however, the Court revisited the "issue ads" provision again in FEC v. Wisconsin Right to Life, striking it down on an as-applied basis. (45) The Court held that the prohibition was unconstitutional as applied to communications that were capable of being reasonably interpreted as other than an "appeal to vote for or against a specific federal candidate." (46) Thus, if a communication can be so interpreted, it is not considered an expenditure by an entity, and thus would not fall under the criminal provisions of FEC A. (47)

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

         The D.C. Circuit has held that the FEC regulations promulgated under the authority of the BCRA48 that limit the ability of "527" groups (non-profit organizations engaged in political activities) to make and solicit money to make independent expenditures are unconstitutional under the First Amendment. (49) These non-profit "527" groups, organized and operated primarily to accept contributions and spend to influence elections, enjoy tax exempt status on contributions they receive, allowing them to direct more money to their political causes. (50) EMILY's List, a non-profit group unaffiliated with a candidate, party, or for-profit corporation, challenged the BCRA provisions that limit how much money a non-profit entity may raise and spend. (51) The D.C. Circuit noted that the "core corruption that Government may permissibly target with campaign finance regulation 'is the financial quid pro...