Prosecuting Conduit Campaign Contributions - Hard Times for Soft Money
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abstract
In recent years, there have been several high-profile prosecutions for violations of the Federal Election Campaign Act, involving contributions nominally by one individual but funded or reimbursed by another individual deemed to be the true contributor. Prosecutions of these conduit contribution cases have been surprising in at least three significant respects. First, the prosecutions have been based on violations of FECAs reporting requirements and may not have involved any violations of the substantive prohibitions or limitations of contributions. Second, the defendants were the donors rather than campaign officials who actually filed reports with FECA. Third, the cases were prosecuted as felonies under general criminal statutes rather than FECAs misdemeanor penalties for making contributions under a false name. The article analyzes the prosecutions and advances three independent arguments for the elimination or limitation of felony prosecutions for conduit campaign contributions. First, Supreme Court mens rea jurisprudence suggests that felony prosecutions regarding this specific behavior should, at a minimum, require a showing that the defendant was aware of the prohibition she is charged with violating. There are strong reasons for not relying on prosecutorial discretion in determining whether to prosecute a particular violation as a felony or as a misdemeanor. Second, the passage of the specific misdemeanor provisions in FECA strongly suggests that Congress preempted the application of general criminal statutes for false statements, mail fraud, or conspiracy to defraud. The preemption argument has been rejected by the courts based on incomplete analysis. This argument also introduces the concept of greater included offense. Third, criminal felony (and possibly misdemeanor) prosecutions of campaign contributions under a false name constitute a serious infringement of First Amendment rights of political speech and association. The Supreme Courts decision in Buckley v. Valeo does not justify infringing on First Amendment rights in the specific context of conduit contributions. These concerns justify rethinking our approach to prosecutions related in federal election campaign law. Proponents of campaign regulation may be concerned about weakening enforcement, but enforcement is unlikely to be hampered substantially.
