Federal Prosecution 

of Election Offenses

Seventh Edition

May 2007 

(Revised August 2007)

Written by:

Craig C. Donsanto, Director

Election Crimes Branch

Public Integrity Section

and

Nancy L. Simmons

Senior Counsel for Policy

Public Integrity Section
NOTE

This revision of the Seventh Edition of Federal Prosecution of

Election Offenses includes four significant holdings bearing on the

material contained in this book that were handed down between the

date of its initial printing in May 2007 and the date of this revision in

August 2007: 

The Supreme Court’s decision in Federal Election

Commission v. Wisconsin Right to Life, Inc., 551 U.S. ___,

127 S.Ct. 2652 (2007), addressing the constitutionality of the

prohibition against corporate and union “electioneering

communications” that was added to the Federal Election Campaign

Act by the Bipartisan Campaign Reform Act of 2002. 

The Fifth Circuit’s decision in United States v. Ratcliff,

488 F.3d 639 (5th Cir. 2007), addressing the applicability of the

so-called “salary theory” of mail and wire fraud to election matters

involving violations of state campaign finance laws. 

The Eleventh Circuit’s decision in United States v. Knight,

___ F.3d ___ , 2007 WL 1892861 (11th Cir. July 3, 2007), addressing

the intent element of the crime of “voting by aliens” set forth in

18 U.S.C. § 611.

The Seventh Circuit’s decision in United States v. Prude,

489 F.3d 873 (7th Cir. 2007), reporting the first jurisprudence under

the criminal provision of the National Voter Registration Act of 1993,

42 U.S.C. §1973gg-10(2). 

These recent cases are discussed briefly in this revision.

 

Craig C. Donsanto

Nancy L. Simmons
i

August 2007

 TABLE OF CONTENTS

 Page

PREFACE........................................... xiii

CHAPTER ONE: OVERVIEW. ........................ 1

A. INTRODUCTION............................. 1

B. TYPES OF ELECTION CRIMES.. . . . . . . . . . . . . . . . 2

1. Election Fraud. ............................ 2

2. Patronage Crimes. .......................... 3

3. Campaign Financing Crimes. . . . . . . . . . . . . . . . . . 4

4. Civil Rights Crimes. ........................ 5

C. FEDERAL JURISDICTION. . . . . . . . . . . . . . . . . . . . . 5

D. ADVANTAGES OF FEDERAL 

PROSECUTION. ............................. 8

E. FEDERAL ROLE: PROSECUTION,

 NOT INTERVENTION......................... 9

F. EVALUATING AN ELECTION FRAUD

ALLEGATION. ............................. 10

G. INVESTIGATIVE CONSIDERATIONS 

 IN ELECTION FRAUD CASES.. . . . . . . . . . . . . . . . 11

H. EVALUATING A CAMPAIGN 

FINANCING ALLEGATION. . . . . . . . . . . . . . . . . . . 13

I. INVESTIGATIVE CONSIDERATIONS 

IN CAMPAIGN FINANCING CASES.. . . . . . . . . . . 15

J. CONSULTATION REQUIREMENTS 

AND RECOMMENDATIONS. . . . . . . . . . . . . . . . . . 16

1. Consultation Requirements for Election 

Frauds and Patronage Crimes. . . . . . . . . . . . . . . . 17

2. Consultation Requirements for 

Campaign Financing Crimes. . . . . . . . . . . . . . . . . 18
ii

CHAPTER TWO: CORRUPTION OF THE 

ELECTION PROCESS.......................... 21

A. HISTORICAL BACKGROUND.. . . . . . . . . . . . . . . . 21

B. WHAT IS ELECTION FRAUD?. . . . . . . . . . . . . . . . 24

1. In General................................ 24

2. Conduct that Constitutes Federal 

Election Fraud. ........................... 26

3. Conduct that Does Not Constitute 

Federal Election Fraud.. . . . . . . . . . . . . . . . . . . . . 29

4. Conditions Conducive to Election Fraud.. . . . . . . 30

5. Voter Participation Versus Nonvoter 

Participation Cases......................... 31

 (a) Election frauds not involving 

the participation of voters.. . . . . . . . . . . . . . . 31

(b) Election frauds involving the

participation of voters.. . . . . . . . . . . . . . . . . . 32

C. JURISDICTIONAL SUMMARY. . . . . . . . . . . . . . . . 33

1. Statutes Applicable to Nonfederal Elections. . . . . 34

2. Statutes Applicable to Federal Elections. . . . . . . . 36

D. STATUTES................................. 37

1. Conspiracy Against Rights. 

18 U.S.C. § 241. .......................... 37

2. Deprivation of Rights under

Color of Law. 18 U.S.C. § 242. . . . . . . . . . . . . . . 41

3. False Information in, and Payments

for, Registering and Voting.

 42 U.S.C. § 1973i(c). ...................... 41

(a) The basis for federal jurisdiction. . . . . . . . . . 42

(b) False information to an election official.. . . . 44

(c) Commercialization of the vote. . . . . . . . . . . . 47
iii

(d) Conspiracy to cause illegal voting. . . . . . . . . 49

4. Voting More than Once. 

42 U.S.C. § 1973i(e). ...................... 50

5. Voter Intimidation. ........................ 54

(a) Intimidation in voting and 

registering to vote. 

42 U.S.C. § 1973gg-10(1). . . . . . . . . . . . . . . 55

(b) Intimidation of voters. 

18 U.S.C. § 594. ...................... 56

(c) Coercion of political activity. 

18 U.S.C. § 610. ...................... 57

(d) Conspiracy against rights and 

deprivation of constitutional rights.

 18 U.S.C. § 241 and § 242. . . . . . . . . . . . . . . 58

(e) Federally protected activities. 

18 U.S.C. § 245(b)(1)(A). . . . . . . . . . . . . . . . 60

6. Voter Suppression.

18 U.S.C. § 241 and § 242.. . . . . . . . . . . . . . . . . . 61

7. Fraudulent Registration or Voting. 

42 U.S.C. § 1973gg-10(2). . . . . . . . . . . . . . . . . . . 63

(a) Fraudulent registration.

§ 1973gg-10(2)(A). .................... 64

(b) Fraudulent voting. 

§ 1973gg-10(2)(B). .................... 65

8. Voting by Noncitizens. . . . . . . . . . . . . . . . . . . . . . 66

(a) Fraudulent registration and voting 

under the NVRA. 

42 U.S.C. § 1973gg-10(2). . . . . . . . . . . . . . . 67

(b) False claims to register or vote. 

18 U.S.C. § 1015(f). ................... 68

(c) False claims of citizenship.

18 U.S.C. § 911. ...................... 68
iv

(d) Voting by aliens. 18 U.S.C. § 611.. . . . . . . . 69

9. Travel Act. 18 U.S.C. § 1952. . . . . . . . . . . . . . . . 70

10. Mail Fraud. 18 U.S.C. § 1341. . . . . . . . . . . . . . . 72

(a) Background........................... 73

(b) Salary theory of mail fraud.. . . . . . . . . . . . . . 74

(c) “Honest services” fraud. 

18 U.S.C. § 1346. ..................... 77

(d) “Cost-of-election” theory. 

18 U.S.C. § 1341. ..................... 78

11. Troops at Polls. 18 U.S.C. § 592. . . . . . . . . . . . . 79

12. Campaign Dirty Tricks.. . . . . . . . . . . . . . . . . . . . . 80

(a) Election communications and 

solicitations. 2 U.S.C. § 441d. . . . . . . . . . . . 80

(b) Fraudulent misrepresentation. 

2 U.S.C. § 441h. ...................... 80

13. Retention of Federal Election Records. 

42 U.S.C. § 1974. ......................... 81

(a) Legislative purpose and background. . . . . . . 82

(b) The basic requirements of Section 1974. . . . 83

(c) Section 1974 requires document 

preservation, not document generation.. . . . . 84

(d) Originals must be retained. . . . . . . . . . . . . . . 85

(e) Election officials must supervise storage. . . . 85

(f) Retention not required for certain records. . . 86

(g) Retention under Section 1974 

versus retention under the

 National Voter Registration Act.. . . . . . . . . . 86

E. POLICY AND PROCEDURAL 

CONSIDERATIONS. ......................... 87

1. Consultation Requirements. . . . . . . . . . . . . . . . . . 87

2. Urgent Reports and Press Releases. . . . . . . . . . . . 90

3. Federal Seizure of State Election Materials.. . . . . 91
v

4. Noninterference with Elections. . . . . . . . . . . . . . . 91

5. Limitations on Federal Poll Watching. . . . . . . . . . 93

6. Selective Prosecution Issues. . . . . . . . . . . . . . . . . 94

F. SUGGESTIONS FOR SUCCESSFUL ELECTION

FRAUD CASE INVESTIGATIONS.. . . . . . . . . . . . . 94

1. Getting Started. ........................... 95

(a) Publicize your intent to prosecute 

election fraud. ........................ 95

(b) Be aware of the importance of 

voting documentation. . . . . . . . . . . . . . . . . . . 96

(c) Consider the advantages of federal 

prosecution. .......................... 98

(d) Focus on areas vulnerable to 

election fraud. ........................ 99

(e) Develop your investigative 

strategy early.......................... 99

2. The Investigation. ......................... 99

(a) Preliminary investigation. . . . . . . . . . . . . . . 100

(b) Grand jury and FBI full-field 

investigations. ....................... 101

3. Investigating Two Types of 

Election Fraud. .......................... 101

(a) Absentee ballot frauds. . . . . . . . . . . . . . . . . 101

(b) Ballot-box stuffing cases. . . . . . . . . . . . . . . 103

4. A Few Cautions. ......................... 104

5. Conclusion. ............................. 106

CHAPTER THREE: PATRONAGE CRIMES. .......... 107

A. HISTORICAL BACKGROUND.. . . . . . . . . . . . . . . 107

B. STATUTES................................ 109

1. Limitations Based on Federal 

Employment or Workspace. . . . . . . . . . . . . . . . . 109
vi

(a) Solicitation of political contributions. 

18 U.S.C. § 602 . ..................... 109

(b) Making political contributions. 

18 U.S.C. § 603. ..................... 111

(c) Intimidation to secure political 

contributions. 18 U.S.C. § 606. . . . . . . . . . 111

(d) Coercion of political activity. 

18 U.S.C. § 610. ..................... 112

(e) Place of solicitation. 

18 U.S.C. § 607. ..................... 114

2. Limitations Based on Federal 

Programs and Benefits. . . . . . . . . . . . . . . . . . . . . 115

(a) Promise or deprivation of federal 

employment or other benefit for

 political activity. 

18 U.S.C. § 600 and § 601. . . . . . . . . . . . . . 115

(b) Promise of appointment by 

candidate. 18 U.S.C. § 599.. . . . . . . . . . . . . 119

(c) Interference in election by employees of

federal, state, or territorial governments. 

18 U.S.C. § 595. ..................... 119

(d) Coercion by means of relief 

appropriations. 18 U.S.C. § 598. . . . . . . . . 120

(e) Solicitation from persons on relief. 

18 U.S.C. § 604. ..................... 120

(f) Disclosure of names of persons on 

relief. 18 U.S.C. § 605.. . . . . . . . . . . . . . . . 121

3. Permissible Political Activity under the

Hatch Act, as Amended. 

5 U.S.C. § 7323 and § 7324.. . . . . . . . . . . . . . . . 121

C. POLICY AND PROCEDURAL 

CONSIDERATIONS. ........................ 124
vii

CHAPTER FOUR: ELECTION DAY 

PROCEDURES. .............................. 125

CHAPTER FIVE: CAMPAIGN FINANCING 

CRIMES..................................... 133

A. INTRODUCTION........................... 133

B. STATUTORY SCOPE. ...................... 136

1. Types of Statutes. ........................ 136

2. Basic Statutory Definitions. . . . . . . . . . . . . . . . . 137

3. Statutory Presumptions. . . . . . . . . . . . . . . . . . . . 140

C. HISTORICAL BACKGROUND: 

1907 to 2002. .............................. 141

1. Overview. .............................. 141

2. Campaign Financing Laws.. . . . . . . . . . . . . . . . . 142

3. Campaign Reporting Laws.. . . . . . . . . . . . . . . . . 144

4. The Bipartisan Campaign Reform Act 

of 2002. ................................ 145

(a) Headline features of the 2002 

campaign reforms. .................... 146

(b) BCRA’s criminal enforcement 

enhancements. ....................... 148

D. STATUTES................................ 151

1. Introduction. ............................ 151

2. The “Heartland” Provisions of the 

Campaign Financing Laws.. . . . . . . . . . . . . . . . . 151

3. Campaign Financing Crimes. . . . . . . . . . . . . . . . 154

4. Substantive Statutes. . . . . . . . . . . . . . . . . . . . . . . 155

(a) 2 U.S.C. § 441a. Limitations on 

contributions and expenditures.. . . . . . . . . . 155
viii

(b) 2 U.S.C. § 441b. Prohibition on 

contributions and expenditures by 

national banks, corporations, 

and labor organizations.. . . . . . . . . . . . . . . . 159

(c) 2 U.S.C. § 441c. Prohibition on 

contributions by government 

contractors. ......................... 162

(d) 2 U.S.C. § 441d. Attribution of

sponsors of political communications

and solicitations. ..................... 163

(e) 2 U.S.C. § 441e. Prohibition on

contributions, donations, and 

expenditures by foreign nationals.. . . . . . . . 164

(f) 2 U.S.C. § 441f. Prohibition on 

contributions through conduits . . . . . . . . . . 166

(g) 2 U.S.C. § 441g. Limitation on 

contribution of currency. . . . . . . . . . . . . . . . 168

(h) 2 U.S.C. § 441h. Fraudulent 

misrepresentation of campaign authority. . . 169

(i) 2 U.S.C. § 441i. Prohibition against 

soft money of political parties. . . . . . . . . . . 170

(j) 2 U.S.C. § 439a. Prohibition on 

conversion of campaign funds. . . . . . . . . . . 174

(k) 2 U.S.C. § 432, 433, 434. Organization,

recordkeeping, and reporting 

requirements. ........................ 176

E. ENFORCEMENT. .......................... 176

1. Three Types of Enforcement. . . . . . . . . . . . . . . . 176

2. General Observations.. . . . . . . . . . . . . . . . . . . . . 177

3. Criminal Prosecution. . . . . . . . . . . . . . . . . . . . . . 178

(a) Intent............................... 179
ix

(b) Aggregate Value...................... 180

(c) Penalties. ........................... 182

4. Felony Theories for FECA Crimes. . . . . . . . . . . 184

(a) Willfully causing submission of 

false information to the Federal 

Election Commission. 

18 U.S.C. § 1001 and § 2. . . . . . . . . . . . . . . 184

(b) Conspiracy to defraud the United States. 

18 U.S.C. § 371. ..................... 187

5. Public Financing Crimes Relating to

Presidential Campaigns. . . . . . . . . . . . . . . . . . . . 188

6. Violations of State Campaign 

Financing Laws. ......................... 191

(a) Honest services frauds. 

18 U.S.C. § 1346. .................... 191

(b) Mail Fraud. 18 U.S.C. § 1341. . . . . . . . . . . 193

7. Schemes to Divert Campaign Funds. . . . . . . . . . 194

(a) FECA conversion. .................... 195

(b) Deprivation of honest services. . . . . . . . . . . 197

(c) Reporting offenses. . . . . . . . . . . . . . . . . . . . 197

8. Administrative and Civil Enforcement 

by the Federal Election Commission. . . . . . . . . . 198

9. Criteria for Prosecutive Evaluation 

of FECA Violations. ...................... 198

10. Venue for FECA Offenses. . . . . . . . . . . . . . . . . . 199

11. Statute of Limitations for Campaign 

Financing Offenses. ...................... 200

F. POLICY AND PROCEDURAL 

CONSIDERATIONS. ........................ 201

1. Consultation Requirements and 

Recommendations. ....................... 201

2. Investigative Jurisdiction. . . . . . . . . . . . . . . . . . . 202

3. Nonwaiver of the Federal Election 
x

Commission’s Civil Enforcement 

Authority. .............................. 202

4. Dealings with the Federal Election 

Commission. ............................ 203

5. Federal Election Officials as 

Prosecution Witnesses. . . . . . . . . . . . . . . . . . . . . 203

6. Memorandum of Understanding between the

Federal Election Commission and the 

Department of Justice. . . . . . . . . . . . . . . . . . . . . 205

CHAPTER SIX: SENTENCING OF ELECTION 

CRIMES..................................... 207

A. OVERVIEW. .............................. 207

1. Categories of Election Crimes. . . . . . . . . . . . . . . 207

B. CONVICTIONS INVOLVING 

CORRUPTION OF THE 

ELECTORAL PROCESS. .................... 208

C. CONVICTIONS INVOLVING 

VIOLATIONS OF THE FEDERAL 

ELECTION CAMPAIGN ACT . . . . . . . . . . . . . . . . 214

1. Campaign Financing Crimes Before the 

Bipartisan Campaign Reform Act of 2002. . . . . 215

2. Campaign Financing Crimes after the

Bipartisan Campaign Reform Act of 2002. . . . . 218

3. Examples of Application of FECA 

Sentencing Guideline. ..................... 223

Example 1: The Conduit.. . . . . . . . . . . . . . . . . . 224

Example 2: The Typical FECA Crime – 

Laundered Corporate Contributions. . . . . . . . 225

Example 3: Corporate Contributor to Multiple

Candidates through Threats and Coercion. . . 227
xi

Example 4: Fundraiser Possessing 

Special Skill........................... 228

Example 5: Major Political Party Donor 

Seeking a Benefit from the Government. . . . . 229

Example 6: Foreign Agent Who Gives 

Funds from Foreign Government to 

Nonfederal Candidates to Obtain a 

Specific Benefit from the Government. . . . . . 231

D. CONVICTIONS OF CAMPAIGN 

FINANCING VIOLATIONS ADDRESSED 

UNDER ALTERNATIVE THEORIES OF

PROSECUTION. ........................... 232

1. Conspiracy to Disrupt and Impede the 

Federal Election Commission... . . . . . . . . . . . . . 232

2. False Statements to the Federal 

Election Commission . .................... 233

3. Embezzlement of Campaign Funds. . . . . . . . . . . 233

E. OBLIGATION TO REPORT FELONY

CONVICTIONS TO STATE

ELECTION OFFICIALS. ..................... 234

CHAPTER SEVEN: CONCLUSION – WHY 

PROSECUTING ELECTION CRIMES 

IS IMPORTANT. ............................. 237

APPENDIX A: Excerpt from McConnell v. 

Federal Election Commission. ........... 243

APPENDIX B: Department of Justice and 

Federal Election Commission 

Memorandum of Understanding. ........ 259

APPENDIX C: Statutes. ............................. 263
xii

APPENDIX D: Table of Cases. ....................... 319
xiii

PREFACE

Welcome to the Seventh Edition of Federal Prosecution of

Election Offenses, a project that has been in the works for over two

years. This book replaces the Sixth Edition, which was published in

1995, and represents a complete re-write of that last book.

There have been a number of significant developments in the

law dealing with elections and election finance – and, accordingly, in

the Department’s enforcement approach in this area – since we last

wrote on these subjects. 

In 2002, Congress passed the Bipartisan Campaign Reform Act

(BCRA). One of the goals of this legislation was to close major

loopholes involving so-called “soft money” and “issue advocacy” that

had developed since enactment of the original Federal Election

Campaign Act (FECA) in 1971. Another of BCRA’s goals was to

provide enhanced criminal penalties for knowing and willful FECA

violations. Yet another goal was to put in place a strong sentencing

guideline for FECA crimes. The following year the United States

Sentencing Commission obliged, promulgating a sentencing guideline,

U.S.S.G. § 2C1.8, that recommendsimprisonment for most campaign

financing offenses. Subsequent First Amendment challenges to

BCRA’s broad provisions were resoundingly rejected by the Supreme

Court, which upheld the landmark provisions as constitutional anticorruption measures designed to address public corruption and the

appearance of public corruption. McConnell v. Federal Election

Commission, 540 U.S. 93 (2003). 

In addition to these legislative efforts, in 2002 then-Attorney

General John Ashcroft established a Department-wide Ballot Access
xiv

and Voting Integrity Initiative to increase the Department’s efforts and

effectiveness in addressing election crimes and voting rights

violations. As a result of this ongoing Initiative, there has been a

marked increase in nationwide prosecutions and convictions for ballot

fraud and campaign financing fraud. The Department’s objectives in

bringing these cases are two-fold: to convict those who attempt to

corrupt elections, and to protect the integrity of the election process by

deterring others from corrupting future elections. Each of these events

will be discussed fully in this volume.

This is the latest in a series of books on the criminal

enforcement of federal election laws with which we are proud to have

been associated. However, projects this vast could not succeed

without the strong support of our superiors and the dedicated help of

several special colleagues here in the Public Integrity Section.

We would be derelict were we not to recognize with sincere

gratitude the significant contributions that were made to this book

by The Honorable Noel L. Hillman, our Chief from 2002 to 2006,

who is now a federal district judge. Noel’s personal involvement

and support during its drafting reflected his view of this book as a

forceful tool for federal prosecutors and investigators in the pursuit of

crimes that corrupt and subvert our representative form of government.

Our thanks further go to Public Integrity Section Trial Attorney

Richard C. Pilger for his valuable input.

We are also extremely indebted to Forensic Accountant

Christine M. Cartwright for her editorial assistance and tireless

dedication to the formidable task of preparing this book for

publication, as well as to Supervisory Litigation Support Specialist

Danny P. Foster and to Office Support Specialist James E. Wedge for

their work on this project.

Finally, we acknowledge with appreciation the contributions

to the Department’s law enforcement efforts in this area that have been

made over the years by the Assistant United States Attorneys who
xv

have served, some for decades, as District Election Officers, and by

the special agents of the Federal Bureau of Investigation who have

assisted in these cases. We are pleased to recognize the FBI’s

increased enforcement efforts in this area, which led to the Bureau’s

establishment in 2006 of its own Campaign Finance and Ballot Fraud

Initiative with specially trained agents serving as election crime

coordinators in all its Field Offices. The implementation of this

Initiative has been due in large measure to the dedication of

Supervisory Special Agent Michael B. Elliott of the Public Corruption

Unit at FBI Headquarters. 

The materials that are contained between the covers of this

book represent the knowledge of elections, and of election law, that

the two of us have gathered over the cumulative total of sixty years we

have been privileged to serve our country at the United States

Department of Justice. It is our sincere hope that this book will

contribute to the understanding and appreciation of the important legal

and tactical issues and challenges presented by the effective criminal

enforcement of federal election laws.

 

CRAIG C. DONSANTO

NANCY L. SIMMONS

Public Integrity Section

Criminal Division

May 2007
xvi
1

CHAPTER ONE

OVERVIEW

This book was written to help federal prosecutors and

investigators discharge the responsibility of the United States

Department of Justice in attacking corruption of the election process

with all available statutes and theories of prosecution. It addresses

how the Department handles all federal election offenses, other than

those involving civil rights, which are enforced by the Department’s

Civil Rights Division. This Overview summarizes the Department’s

policies, as well as key legal and investigative considerations, related

to the investigation and prosecution of election offenses.

A. INTRODUCTION

In the United States, as in other democratic societies, it is

through the ballot box that the will of the people is translated into

government that serves rather than oppresses. It is through elections

that the government is held accountable to the people and political

conflicts are channeled into peaceful resolutions. And it is through

elections that power is attained and transferred.

Our constitutional system of representative government only

works when the worth of honest ballots is not diluted by invalid

ballots procured by corruption. Asthe Supreme Court stated in a case

upholding federal convictions for ballot box stuffing: “Every voter

in a federal . . . election, . . . whether he votes for a candidate with

little chance of winning or for one with little chance of losing, has a

right under the Constitution to have his vote fairly counted, without
2

its being distorted by fraudulently cast votes.” Anderson v. United

States, 417 U.S. 211, 227 (1974). When the election process is

corrupted, democracy is jeopardized. Accordingly, the effective

prosecution of corruption of the election process is a significant

federal law enforcement priority.

Although corrupt government may exist without election

crime, when election crime exists, public corruption of some form is

also usually present. This is so because virtually all election crime is

driven by a motive to control governmental power for some corrupt

purpose. Election crime cases therefore often provide effective tools

for attacking other forms of public corruption. The task of the federal

prosecutor and investigator is not only to vindicate the fundamental

principle of fair elections by convicting those who corrupt them, but

also to find the motive behind the election fraud and, when possible,

to prosecute those involved in the underlying corruption.

There are several reasons why election crime prosecutions

may present an easier means of obtaining convictions than do other

forms of public corruption:

• Election crimes usually occur largely in public.

• Election crimes often involve many players. For example,

successful voter bribery schemes require numerous voters;

ballot box stuffing requires controlling all the election

officials in a polling location; illegal political contributions

generally involve numerous conduits to disguise the

transaction.

• Election crimes tend to leave paper trails, either in state

voting documentation or in public reports filed by federal

campaigns.

B. TYPES OF ELECTION CRIMES

1. Election Fraud
3

Election fraud usually involves corruption of one of three

processes: the obtaining and marking of ballots, the counting and

certification of election results, or the registration of voters. Election

fraud is generally not common when one party or one faction of a

party dominates the political landscape. Rather, the conditions most

conducive to election fraud are close factional competition within an

electoral jurisdiction for an elected position that matters. Thus, in a

jurisdiction when one party is dominant, election fraud may

nevertheless occur during the primary season, as various party

factions vie for power.

Most election fraud aims at ensuring that important elected

positions are occupied by “friendly” candidates. It occurs most often

when the financial stakes involved in who controls public offices are

great – as is often the case when patronage positions are a major

source of employment, or when illicit activities are being conducted

that require protection from official scrutiny. As noted, election

crimes will typically coincide with other types of corruption.

2. Patronage Crimes

Patronage is a term used to describe the doctrine of “to the

victor go the spoils.” The Supreme Court has held that the firing,

based on partisan considerations, of public employees who occupy

non-confidential and non-policymaking positions violates the First

Amendment. Moreover, an aggressive and pervasive patronage

system can provide a fertile breeding ground for other forms of

corruption. It istherefore important to root out aggravated patronage

abuses wherever they occur.

Patronage crimes are most prevalent when one political

faction or party dominates the political landscape but is also required

to defend its position of power against a credible opposition.

Patronage crimes are also common in jurisdictions where other forms

of public corruption are prevalent and tolerated by the body politic.
4

3. Campaign Financing Crimes

The federal campaign financing laws are embodied within the

Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. §§ 431-

455, as amended, most significantly in 1974, 1976, 1979, and 2002.

The 2002 Amendments to FECA were contained in a

far-reaching piece of legislation called the Bipartisan Campaign

Reform Act (BCRA) (popularly known as the McCain-Feingold bill

after its main Senate sponsors), most of which became effective on

November 6, 2002. As amended by BCRA, FECA applies to

virtually all financial transactions that impact upon, directly or

indirectly, the election of candidates for federal office, that is,

candidates for President or Vice President or for the United States

Senate or House of Representatives. Also as amended by BCRA,

FECA now reaches a wide range of communications aimed at

influencing the public with respect to issues that are closely identified

with federal candidates, referred to in the law as “electioneering

communications.”

FECA contains its own criminal sanctions, which in turn

provide that, to be a crime, a FECA violation must have been

committed knowingly and willfully and, except for campaign

misrepresentations and certain coerced contributions, must have

involved at least $2,000 in a calendar year. 2 U.S.C. § 437g(d). Prior

to BCRA, all FECA crimes were one-year misdemeanors. However,

for FECA crimes that occur on or after November 6, 2002

(when BCRA took effect), those aggregating $25,000 or more

are five-year felonies, and those that involve illegal conduit

contributions and aggregate over $10,000 are two-year felonies.

2 U.S.C. §§ 437g(d)(1)(A), (D). Moreover, all criminal violations of

FECA that occur after January 25, 2003, are subject to a new

sentencing guideline, U.S. Sentencing Guideline § 2C1.8, that the

United States Sentencing Commission promulgated in response to a

specific BCRA directive.
5

FECA violations that either: (1) do not present knowing and

willful violations, e.g., those resulting from negligence or mistake on

the part of the offender as to what the law required or forbade, or

(2) involve sums below the statutory minimums for criminal

prosecution, are handled noncriminally by the Federal Election

Commission (FEC) under the statute’s civil enforcement provisions.

2 U.S.C. § 437g(a).

Finally, FECA violations that result in false information

being provided to the FEC may present violations of 18 U.S.C.

§ 371 (conspiracy to disrupt and impede a federal agency), 18 U.S.C.

§ 1001 (false statements within the jurisdiction of a federal agency),

or 18 U.S.C. § 1505 (obstruction of agency proceedings).

4. Civil Rights Crimes

Schemes to deprive minorities of the right to vote are federal

crimes under the Voting Rights Act of 1965, as amended. 42 U.S.C.

§ 1973j. Discrimination based on a potential voter’s race, or on

ethnic factors or minority language, may also be redressed under such

criminal statutes as 18 U.S.C. §§ 241 and 242. These prosecutions

are handled by Criminal Section of the Civil Rights Division.

In addition to civil rights crimes, federal law provides

noncriminal remedies for any conduct that diminishes an individual’s

voting rights based on racial, ethnic, or language minority factors.

These civil remedies are incorporated within the Voting Rights Act

of 1965, as amended, and other civil rights laws, and they are

enforced by the Voting Section of the Civil Rights Division.

C. FEDERAL JURISDICTION

The federal government asserts jurisdiction over an election

offense to ensure that basic rights of United States citizenship, and a

fundamental process of representative democracy, remain

uncorrupted. An important, Department-wide “Ballot Access and
6

Voting Integrity Initiative” was announced by Attorney General

Ashcroft on October 1, 2002, to combat election crimes and

voting-related civil rights offenses through vigorous enforcement.

Under this Department Initiative, the prosecution of all federal

election crimes represents an important law enforcement objective.

These enhanced enforcement efforts have not only served to protect

a cornerstone of American democracy against corruption and abuse,

they also have helped federal law enforcement attain an investigative

foothold against other criminal activities that election crimes are often

committed to foster or protect.

Election crime cases tend to be long-term prosecutive projects

focusing on individuals with different degrees of culpability. The

ultimate goal is to move up the ladder of culpability to candidates,

political operatives, public officials, and others who attempted to

corrupt, or did corrupt, the public office involved.

Federal jurisdiction over election fraud is easily established in

elections when a federal candidate is on the ballot. The mere listing

of a federal candidate’s name on a ballot is sufficient under most of

the federal statutes used to prosecute voter fraud to satisfy federal

jurisdiction. This generally occurs in what are called “mixed”

elections, when federal and nonfederal candidates are running

simultaneously. In such cases, the federal interest is based on the

presence of a federal candidate, whose election may be tainted, or

appear tainted, by the fraud, a potential effect that Congress has the

constitutional authority to regulate under Article I, Section 2, clause

1; Article I, Section 4, clause 1; Article II, Section 1, clause 2; and the

Seventeenth Amendment.

When there is no federal candidate on the ballot, federal

jurisdiction is harder to attain. Before McNally v. United States,

483 U.S. 350 (1987), the mail fraud statute was often used to achieve

federal jurisdiction over election fraud that occurred in nonfederal

elections. The scheme charged was one to defraud the public of its

intangible “right to a fair election.” However, in McNally, the
7

Supreme Court held that intangible rights, including the intangible

right to a fair election, were not covered by the mail fraud statute.

In response to the McNally decision, Congress passed

18 U.S.C. § 1346. Under Section 1346, the mail fraud statute once

again applies to schemes to defraud persons of their intangible right

to “honest services.” However, because Section 1346 did not clearly

restore mail fraud jurisdiction over local election fraud, this statute

should only be used when the election fraud involved honest services

fraud by a public official, such as a poll official who abuses his or her

office to fraudulentlymanipulate the vote. In the absence of a scheme

involving honest services fraud, prosecutors may also consider the

mail fraud salary theory, discussed in Chapter Two, although this

theory has not been well received by the courts. See United States v.

Turner, 459 F.3d 775 (6th Cir. 2006) (holding both salary theory and

honest services theories inapplicable to election fraud by local

candidate).

In short, the absence of a federal candidate from the ballot can

present federal law enforcement with special challenges in attaining

federal jurisdiction over election crime. Those challenges can

sometimes be met, provided the investigation focuses on identifying

additional facts that are needed to invoke application of the federal

criminal laws that potentially apply to both federal and nonfederal

elections. These generally include election frauds that involve the

necessary participation of public officers, notably election officials

acting “under color of law,” voting by noncitizens, and fraudulently

registering voters.

Federal jurisdiction over campaign financing offenses under

FECA also derives from Congress’s authority to regulate the federal

election process. While a number of the provisions added to FECA

by BCRA address financial activities by state and local parties that

are generic in nature in the sense that they simultaneously benefit

both federal and nonfederal candidates, federal campaign financing

law does not apply to violations of state campaign laws.
8

Most states have enacted laws regulating and requiring

transparency of campaign financing of candidates seeking state or

local office. While violations of these state statutes are not, by

themselves, federal crimes, they may be evidence of other federal

crimes, including Hobbs Act, Travel Act, or honest service offenses.

D. ADVANTAGES OF FEDERAL PROSECUTION

The Constitution confers upon the states primary authority

over the election process. Accordingly, federal law does not directly

address how elections should be conducted. State law historically has

regulated such important activities as the registration of voters, the

qualifications for absentee voting, the type of voting equipment used

to tabulate votes, the selection of election officials, and the

procedures and safeguards for counting ballots.

These factors might suggest that the prosecution of election

crime should be left primarily to local law enforcement. However,

local law enforcement often is not equipped to prosecute election

offenses. Federal law enforcement might be the only enforcement

option available.

Four characteristics of the federal criminal justice system

support the federal prosecution of election crimes despite the primary

role of the states in most facets of election administration:

• Federal grand juries, the secrecy requirements of which

help protect the testimony of witnesses who tend to be

vulnerable to manipulation and intimidation.

• Federal trial juries, which are drawn from a broader

geographic area than are most state juries, and thus lessen

the possibility of local bias.
When election offenses are driven by animus based on race,

1

ethnicity, or language-minority status, the broad protections of the 1965

Voting Rights Act and other civil rights statutes apply. 42 U.S.C.

§§ 1971, 1973, 1973b(f), 1973aa-1a. Such matters are supervised by the

Civil Rights Division.

Of course, U.S. presidential elections are an exception.

2

9

• Resources to handle the labor-intensive investigations

generally required for successful prosecution of election

crime.

• Detachment from local political forces and interests.

E. FEDERAL ROLE: PROSECUTION, 

NOT INTERVENTION

The principal responsibility for overseeing the election

process rests with the states. With the significant exception of

violations of the Voting Rights Act involving denigration of the right

to vote based on race, ethnicity, or language minority status, the

federal government plays a role secondary to that of the states in

election matters. It is the states that have primary authority to ensure 1

that only qualified individuals register and vote, that the polling

process is conducted fairly, and that the candidate who received the

most valid votes is certified as the winner.2

The federal prosecutor’s role in matters involving corruption

of the process by which elections are conducted, on the other hand,

focuses on prosecuting individuals who commit federal crimes in

connection with an election. Deterrence of future similar crimes is an

important objective of such federal prosecutions. However, this

deterrence is achieved by public awareness of the Department’s

prosecutive interest in, and prosecution of, election fraud – not

through interference with the process itself.
 This rule does not apply to covert investigative techniques.

3

10

Because the federal prosecutor’s function in the area of

election fraud is not primarily preventative, any criminal investigation

by the Department must be conducted in a way that minimizes the

likelihood that the investigation itself may become a factor in the

election. The mere fact that a criminal investigation is being

conducted may impact upon the adjudication of election litigation and

contests in state courts. Moreover, the seizure by federal authorities

of documentation generated by the election process may deprive state

election and judicial authorities of critical materials needed to resolve

election disputes, conduct recounts, and certify the ultimate winners.

Accordingly, it is the general policy of the Department not to conduct

overt investigations, including interviews with individual voters, until

after the outcome of the election allegedly affected by the fraud is

certified.3

In addition, the federal prosecutor has no authority to send

FBI Special Agents or Deputy U.S. Marshals to polling places. In

fact, a federal statute makes it a felony for any federal official to send

“armed men” to the vicinity of open polling places. 18 U.S.C. § 592.

In light of these considerations, Department and FBI policy requires

that any investigative action that involves an intrusion by federal

investigators into the area immediately surrounding an open polling

place be approved by the Criminal Division’s Public Integrity

Section.

F. EVALUATING AN ELECTION FRAUD ALLEGATION

In 2002, the Department established a Ballot Access and

Voting Integrity Initiative to spearhead its increased efforts to address

election crimes and voting rights violations. Under the ongoing

Initiative, election crimes are a high law enforcement priority of the

Department.
11

However, not all irregularities in the election process are

appropriate for criminal prosecution. It is, for example, not a federal

crime to transport voters to the polls, or for election officials to make

negligent mistakes in the administration of an election. Many of

these noncriminal lapses are redressed through election contests,

recounts, education programs, or disciplinary action against election

officials whose mistakes are the result of negligence rather than

corruption.

Determining whether an election fraud allegation warrants

federal criminal investigation and possible prosecution requires that

federal prosecutors and investigators answer two basic questions:

(1) Is criminal prosecution the appropriate remedy for the

allegations and facts presented? Criminal prosecution is most

appropriate when the facts demonstrate that the defendant’s objective

was to corrupt the process by which voters were registered, or by

which ballots were obtained, cast, or counted.

(2) Is there potential federal jurisdiction over the conduct?

Answering this question requires determining whether the conduct is

cognizable under the federal criminal statutes that apply to election

crimes. These generally allow for the prosecution of corrupt acts that

occur in elections when the name of a federal candidate appears on

the ballot, that are committed “under color of law,” that involve

voting by noncitizens, that focus on registering to vote, and when the

election fraud is part of a larger public corruption problem reachable

using general anti-corruption statutes, such as 18 U.S.C. §§ 666,

1341, 1346, 1951, and 1952.

G. INVESTIGATIVE CONSIDERATIONS IN ELECTION

FRAUD CASES

When investigating election fraud, three considerations that

are absent from most criminal investigations must be kept in mind:

(1) respect for the primary role of the states in administering the
This non-interference policy assumes there is no evidence 4

that local election administrators seek to retain the election records for a

corrupt purpose or to further an ongoing election fraud scheme.

In cases in which physical custody may interfere unneces5

sarily with local election procedures, law enforcement may still take

reasonable steps to ensure that such records retain their integrity and are

effectively made available to federal law enforcement. Such steps may

include the issuance of a grand jury subpoena, and formal and informal

agreements concerning the custody, control, and integrity of such records.

Accordingly, the Public Integrity Section must be consulted 6

prior to any voter interviews in the preelection or balloting period. U.S.

DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL (USAM) § 9-85.210.

12

voting process, (2) an awareness of the role of the election in the

governmental process, and (3) sensitivity to the exercise of First

Amendment rights in the election context. As a result, there are

limitations on various investigative steps in an election fraud case.

In most cases, election-related documents should not be taken

from the custody of local election administrators until the election to

which they pertain has been certified, and the time for contesting the

election results has expired. This avoids interfering with the 4

governmental processes affected by the election.5

Another limitation affects voter interviews. Election fraud

cases often depend on the testimony of individual voters whose votes

were co-opted in one way or another. But in most cases voters should

not be interviewed, or other voter-related investigation done, until

after the election is over. Such overt investigative steps may chill

legitimate voting activities. They are also likely to be perceived by

voters and candidates as an intrusion into the election. Indeed, the

fact of a federal criminal investigation may itself become an issue in

the election.6
13

Some election frauds implicate a voter who participates in a

voting act attributed to him or her; such cases include vote-buying

schemes, absentee ballot fraud, and the like. Successful prosecution

of those who organize such schemes often requires the cooperation of

either the voter or the person who attempted to corrupt or take

advantage of the voter. Accordingly, federal prosecutors should apply

standard Department policies regarding charging decisions when

contemplating charges against voters who cooperate and testify

truthfully in cases involving organizational voter fraud.

H. EVALUATING A CAMPAIGN FINANCING

ALLEGATION

In general, violations of the Federal Election Campaign Act

become crimes when they satisfy a monetary threshold and are

committed with specific criminal intent. Noncriminal FECA

violations are subject to the exclusive jurisdiction of the Federal

Election Commission (FEC). To determine whether a FECA

violation warrants criminal investigation, the following questions

should be answered:

(1) Does the conduct involve a situation in which the

application of the law to the facts is clear? That is, does it violate one

of the principal prohibitions of FECA, namely, the prohibitions

against: 

• Excessive contributions (2 U.S.C. § 441a);

• Corporate and union contributions and expenditures

(2 U.S.C. § 441b); 

• Contributions from government contractors 

 (2 U.S.C. § 441c);

• Contributions from foreign nationals 

(2 U.S.C. § 441e);
14

• Disguised contributions through conduits

(2 U.S.C. § 441f); 

• Cash contributions (2 U.S.C. § 441g);

• Contributions raised through fraud 

(2 U.S.C. § 441h(b));

• The solicitation or receipt of “soft money” (funds not

raised in compliance with FECA) by national political

parties (2 U.S.C. § 441i); or

• The conversion of campaign funds (2 U.S.C. § 439a).

And, if so:

(2) Was the total monetary amount involved in the violation

at least $2,000? Most FECA violations become crimes when they

aggregate $2,000 or more in a calendar year. Offenses occurring on

or after November 6, 2002, when the Bipartisan Campaign Reform

Act (BCRA) took effect, and which aggregate at least $25,000 (or

$10,000 in the case of conduit violations) are felonies; offenses under

these amounts are misdemeanors. 2 U.S.C. § 437g(d)(1). The

Department interprets the significant enhancements to FECA’s

criminal penalties enacted in 2002 through BCRA as reflecting a

clear congressional intent that all knowing and willful violations

involving sums that aggregate above the statutory minimums for

FECA crimes be considered for prosecution.

(3) Was the violation committed under circumstances

suggesting that the conduct was “knowing and willful?” FECA

violations become potential crimes when they are committed

knowingly and willfully, that is, by an offender who knew what the

law forbade and violated it notwithstanding that knowledge. While

this is at times a difficult element to satisfy, examples of evidence

supporting the element include: (a) an attempt to disguise or conceal
15

financial activity regulated by FECA; (b) status or experience as a

campaign official, professional fundraiser, or lawyer; and (c) efforts

by campaigns to notify donors of applicable campaign finance law

(e.g., donor card warnings).

I. INVESTIGATIVE CONSIDERATIONS IN CAMPAIGN

FINANCING CASES

Campaign financing cases have recently come to occupy an

increasingly significant portion of the investigative and prosecutive

resources that the Justice Department devotes to election crime.

Because criminal FECA violations require proof that the defendant

acted in conscious disregard of a known statutory duty imposed by

the Act, matters investigated as possible criminal FECA violations

generally must fall within one or more of FECA’s heartland

provisions.

If a campaign financing offense violates one of FECA’s

heartland prohibitions and was committed in a manner calculated to

conceal it from the public, the Justice Department also may pursue

the matter as a conspiracy to defraud the United States under

18 U.S.C. § 371, or as a false statement under 18 U.S.C. § 1001. The

advantages of charging FECA offenses that occurred prior to

November 6, 2002 (when BCRA took effect) under these Title

18 provisions include, in addition to the applicable penalty,

availability of the general five-year statute of limitations under

18 U.S.C. § 3282, instead of the special three-year limitations period

in 2 U.S.C. § 455 that applied to FECA crimes committed prior to

BCRA’s effective date.

When investigating a criminal violation of FECA, care must

be taken not to compromise the FEC’s civil and administrative

jurisdiction under 2 U.S.C. § 437g(a). All plea agreements involving

activities that concern FECA violations should therefore contain an

express disclaimer regarding the FEC’s civil enforcement authority.
16

Finally, the public disclosure features of FECA provide

investigators a source of information concerning suspicious

contributions. The FEC maintains public data in a manner that

permits it to be sorted by contributor, date of contribution, amount of

contribution, occupation and employer of contributor, and identity of

donee. Data is also similarly maintained with respect to expenditures.

Therefore, the FEC’s public database of financial transactions can be

particularly useful in the preliminary stage of campaign financing

investigations to evaluate or confirm the likelihood of a FECA

violation. This data can be accessed and sorted at www.fec.gov. An

alternative and particularly user-friendly search capability has also

been made available by an organization called the Center for

Responsive Politics at www.opensecrets.org.

J. CONSULTATION REQUIREMENTS 

AND RECOMMENDATIONS

Justice Department supervision over the enforcement of all

criminal statutes and prosecutive theories involving corruption of the

election process, criminal patronage violations, and campaign

financing crimes is delegated to the Criminal Division’s Public

Integrity Section. This Headquarters’ consultation policy is set

forth in the U.S. DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL

(USAM), Section 9-85.210. In1980, the Election Crimes Branch was

created within the Public Integrity Section to manage this supervisory

responsibility. The Branch is headed by a Director and staffed on a

case-by-case basis with Section prosecutors experienced in handling

the investigation and prosecution of election crimes.

The Department’s consultation requirements for election

crime matters are designed to ensure that national standards are

maintained for the federal prosecution of election crimes, that

investigative resources focus on matters that have prosecutive

potential, and that appropriate deference is given to the FEC’s civil

enforcement responsibilities over campaign financing violations. The

requirements are also intended to help ensure that investigations are
17

pursued in a way that respects both individual voting rights and the

states’ primary responsibility for administering the electoral process.

These requirements are as follows:

1. Consultation Requirements for Election Frauds

 and Patronage Crimes

United States Attorneys’ Offices and FBI field offices may

conduct a preliminary investigation of an alleged election fraud or

patronage crime without consulting the Public Integrity Section. A

preliminary investigation is limited to those investigative steps

necessary to flesh out the complaint in order to determine whether a

federal crime might have occurred, and, if so, whether it might

warrant federal prosecution. However, a preliminary investigation

does not include interviewing voters during the preelection or

balloting periods concerning the circumstances under which they

voted, as such interviews have the potential to interfere with the

election process or inadvertently chill the exercise of an individual’s

voting rights. 

Consultation with the Public Integrity Section is required to:

• expand an election fraud or patronage investigation

beyond a preliminary stage;

• conduct interviews with individual voters during the

preelection period, on election day, or immediately

after the election, concerning the circumstances under

which they voted;

• issue a subpoena or search warrant in connection with

an election fraud or patronage matter;

• present evidence involving an election fraud or

patronage matter to a grand jury;
18

• file a criminal charge involving an election fraud or

patronage offense; or

• present an indictment to a grand jury that charges an

election fraud or patronage offense.

It is also recommended, although not required, that the Public

Integrity Section be consulted with respect to sentencing issues during

any plea negotiations in order to ensure consistency with similar

cases.

2. Consultation Requirements for Campaign Financing

 Crimes

Additional considerations come into play in cases involving

possible campaign financing violations under FECA, notably,

the concurrent jurisdiction of the FEC to conduct parallel civil

proceedings in this area and the resulting need to coordinate criminal

law enforcement with the Commission. Therefore, consultation with

the Public Integrity Section is required to:

• conduct any inquiry or preliminary investigation in a

matter involving a possible campaign financing

offense;

• issue a subpoena or search warrant in connection with

a campaign financing matter;

• present evidence involving a campaign financing

matter to a grand jury;

• file a criminal charge involving a campaign financing

crime; or

• present an indictment to a grand jury that charges a

campaign financing crime.
19

As is the case with election frauds, it also recommended that

the Section be consulted with respect to sentencing matters during

any plea negotiations in order to ensure consistency with similar

cases.

The Public Integrity Section and its Election Crimes Branch

are available to assist United States Attorneys’ Offices and FBI field

offices in handling election crime matters. This assistance includes

evaluating election crime allegations, structuring investigations, and

drafting indictments and other pleadings. The Election Crimes

Branch also serves as the point of contact between the Department of

Justice and the FEC, which share enforcement jurisdiction over

federal campaign financing violations. Finally, Section attorneys are

available to provide operational assistance in election crime

investigations and trials.
20
21

CHAPTER TWO

CORRUPTION OF THE ELECTION

PROCESS

A. HISTORICAL BACKGROUND

Federal concern over the integrity of the franchise has

historically had two distinct areas of focus. The first, to ensure

elections that are free from corruption for the general public, is the

subject of this chapter. The second, to ensure there is no

discrimination against minorities at the ballot box, involves entirely

different constitutional and federal interests, and is supervised by the

Justice Department’s Civil Rights Division.

Federal interest in the integrity of the franchise was first

manifested immediately after the Civil War. Between 1868 and 1870,

Congress passed the Enforcement Acts, which served as the basis for

federal activism in prosecuting corruption of the franchise until most

of them were repealed in the 1890s. See In re Coy, 127 U.S. 731

(1888); Ex parte Yarborough, 110 U.S. 651 (1884); Ex parte Siebold,

100 U.S. 371 (1880).

Many of the Enforcement Acts had broad jurisdictional

predicates that allowed them to be applied to a wide variety of corrupt

election practices as long as a federal candidate was on the ballot. In

Coy, the Supreme Court held that Congress had authority under the

Constitution’s Necessary and Proper Clause to regulate any activity

during a mixed federal/state election that exposed the federal election

to potential harm, whether that harm materialized or not. Coy is still

applicable law. United States v. Carmichael, 685 F.2d 903, 908 (4th

Cir. 1982); United States v. Mason, 673 F.2d 737, 739 (4th Cir.

1982); United States v. Malmay, 671 F.2d 869, 874-75 (5th Cir.

1982); United States v. Bowman, 636 F.2d 1003, 1010 (5th Cir.

1981).
22

After Reconstruction, federal activism in election matters

subsided. The repeal of most of the Enforcement Acts in 1894

eliminated the statutory tools that had encouraged federal activism in

election fraud matters. Two surviving provisions of these Acts, now

embodied in 18 U.S.C. §§ 241 and 242, covered only intentional

deprivations of rights guaranteed directly by the Constitution or

federal law. The courts during this period held that the Constitution

directly conferred a right to vote only for federal officers, and that

conduct aimed at corrupting nonfederal contests was not prosecutable

in federal courts. See United States v. Gradwell, 243 U.S. 476

(1917); Guinn v. United States, 238 U.S. 347 (1915). Federal

attention to election fraud was further limited by case law holding

that primary elections were not part of the official election process,

Newberry v. United States, 256 U.S. 232 (1918), and by cases like

United States v. Bathgate, 246 U.S. 220 (1918), which read the entire

subject of vote buying out of federal criminal law, even when it was

directed at federal contests.

In 1941, the Supreme Court reversed direction, overturning

Newberry. The Court recognized that primary elections are an

integral part of the process by which candidates are elected to office.

United States v. Classic, 313 U.S. 299 (1941). Classic changed the

judicial attitude toward federal intervention in election matters and

ushered in a new period of federal activism. Federal courts now

regard the right to vote in a fairly conducted election as a

constitutionally protected feature of United States citizenship.

Reynolds v. Sims, 377 U.S. 533 (1964).

In 1973, the use of Section 241 to address election fraud

began to expand. See, e.g., United States v. Anderson, 481 F.2d 685

(4th Cir. 1973), aff’d on other grounds, 417 U.S. 211 (1974). Since

then, this statute has been successfully applied to prosecute certain

types of local election fraud. United States v. Wadena, 152 F.3d 831

(8th Cir. 1998); United States v. Howard, 774 F.2d 838 (7th Cir.
As indicated in the cited cases, Section 241 has been used to 7

prosecute election fraud that affects the vote for federal officials, as well

as vote fraud directed at nonfederal candidatesthat involves the corruption

of public officials – most often election officers – acting under color of

law, i.e., ballot-box stuffing schemes. This latter type of scheme will be

referred to in this book as a “public scheme.” A scheme that does not

involve the necessary participation of corrupt officials acting under color

of law but that affects the tabulation of votes for federal candidates will be

referred to as a “private scheme.”

23

1985); United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985);

United States v. Stollings, 501 F.2d 954 (4th Cir. 1974).7

The mail fraud statute, 18 U.S.C. § 1341, was used successfully for decades to reach local election fraud, under the theory that

such schemes defrauded citizens of their right to fair and honest

elections. United States v. Clapps, 732 F.2d 1148 (3d Cir. 1984);

United States v. States, 488 F.2d 761 (8th Cir. 1973). However, this

mail fraud theory has been barred since 1987, when the Supreme

Court held that Section 1341 did not apply to schemes to defraud

someone of intangible rights (such as the right to honest elections).

McNally v. United States, 483 U.S. 350 (1987). Congress responded

to McNally the following year by enacting a provision that expressly

defined Section 1341 to include schemes to defraud someone of

“honest services.” 18 U.S.C. § 1346. However, Section 1346 may

not have restored use of Section 1341 for most election crimes, unless

they involved the element of “honest services.”

Finally, over the past forty years Congress has enacted new

criminal laws with broad jurisdictional bases to combat false voter

registrations, vote buying, multiple voting, and fraudulent voting in

elections in which a federal candidate is on the ballot. 42 U.S.C.
24

§§ 1973i(c), 1973i(e), 1973gg-10. These statutes rest on Congress’s

power to regulate federal elections (U.S. CONST. art. I, § 4) and on its

power under the Necessary and Proper Clause (U.S. CONST. art. I,

§ 8, cl. 18) to enact laws to protect the federal election process from

the potential of corruption. The federal jurisdictional predicate underlying these statutes is satisfied as long as either the name of a federal

candidate is on the ballot or the fraud involves corruption ofthe voter

registration process in a state where one registers to vote

simultaneously for federal as well as other offices. United States v.

Slone, 411 F.3d 643 (6th Cir. 2005); United States v. McCranie, 169

F.3d 723 (11th Cir. 1999); United States v. Howard, 774 F.2d 838

(7th Cir. 1985); United States v. Olinger, 759 F.2d 1293 (7th Cir.

1985); United States v. Garcia, 719 F.2d 99 (5th Cir. 1983); United

States v. Mason, 673 F.2d 737 (4th Cir. 1982); United States v.

Malmay, 671 F.2d 869 (5th Cir. 1982); United States v. Bowman, 636

F2d 1003 (5th Cir. 1981); United States v. Barker, 514 F.2d 1077

(7th Cir. 1975); United States v. Cianciulli, 482 F. Supp. 585 (E.D.

Pa. 1979).

B. WHAT IS ELECTION FRAUD?

1. In General

Election fraud involves a substantive irregularity relating to

the voting act – such as bribery, intimidation, or forgery – which has

the potential to taint the election itself. During the past century and

a half, Congress and the federal courts have articulated the following

constitutional principles concerning the right to vote in the United

States. Any activity intended to interfere corruptly with any of the

principles indicated below may be actionable as a federal crime:

• All qualified citizens are eligible to vote.

• All qualified voters have the right to have their votes

 counted fairly and honestly.
25

• Invalid ballots dilute the worth of valid ballots, and 

therefore will not be counted.

• Every qualified voter has the right to make a personal

 and independent election decision.

• Qualified voters may opt not to participate in an

election.

• Voting shall not be influenced by bribery or

intimidation.

Simply put, then, election fraud is conduct intended to

corrupt:

• The process by which ballots are obtained, marked, or

tabulated,

• The process by which election results are canvassed

and certified, or

• The process by which voters are registered.

 On the other hand, schemes that involve corruption of other

political processes (i.e., political campaigning, circulation of

nominating petitions, etc.) do not normally serve as the basis for a

federal election crime.
As used throughout this book, the terms “federal election

8

fraud” and “election fraud” mean fraud relating to an election in which a

federal criminal statute applies. As will be discussed below, these terms

are not limited to frauds aimed at corrupting federal elections.

 For purposes of this book, the term “federal election” means

9

an election in which the name of a federal candidate is on the ballot,

regardless of whether there is proof that the fraud caused a vote to be cast

for the federal candidate. A “nonfederal election” is one in which no

federal candidate is on the ballot.

26

2. Conduct that Constitutes Federal Election Fraud8

The following activities provide a basis for federal

prosecution under the statutes referenced in each category:

 • Paying voters for registering to vote, or for voting, in

elections in which a federal candidate is on the ballot

(42 U.S.C. § 1973i(c), 18 U.S.C. § 597), or through the

use of the mails in those states in which vote buying is

a “bribery” offense (18 U.S.C. § 1952), as well as in

federal elections in those states in which purchased 9

registrations or votes are voidable under applicable

state law (42 U.S.C. § 1973gg-10(2)).

• Conspiring to prevent voters from participating in

elections in which a federal candidate is on the ballot,

or when done “under color of law” in any election,

federal or nonfederal (18 U.S.C. §§ 241, 242).

• Voting in federal elections for individuals who do not

personally participate in, and assent to, the voting act

attributed to them, or impersonating voters or casting

ballots in the names of voters who do not vote in

federal elections (42 U.S.C. §§ 1973i(c), 1973i(e),

1973gg-10(2)).
With respect to fraudulent voter registrations, election regi- 10

stration is “unitary” in all 50 states in the sense that a person registers only

once to become eligible to cast ballots for both federal and nonfederal

candidates. Therefore false information given to establish eligibility to

register to vote is actionable federally regardless of the type of election

that motivated the subjects to act. United States v. Cianciulli, 482 F.

Supp. 585 (E.D. Pa. 1979).

27

• Intimidating voters through physical duress in any type

of election (18 U.S.C. § 245(b)(1)(A)), or through

physical or economic threats in connection with their

registering to vote or voting in federal elections

(42 U.S.C. § 1973gg-10(1)), or their vote for a

federal candidate (18 U.S.C. § 594). If the victim is

a federal employee, intimidation in connection

with any election, federal or nonfederal, is prohibited

(18 U.S.C. § 610).

• Malfeasance by election officials acting “under color of

law” by performing such acts as diluting valid ballots

with invalid ones (ballot-box stuffing), rendering false

tabulations of votes, or preventing valid voter

registrations or votes from being given effect in any

election, federal or nonfederal (18 U.S.C. §§ 241, 242),

as well as in elections in which federal candidates are

on the ballot (42 U.S.C. §§ 1973i(c), 1973i(e),

1973gg-10(2)).

• Submitting fictitious names to election officers for

inclusion on voter registration rolls, thereby qualifying

the ostensible voters to vote in federal elections

(42 U.S.C. §§ 1973i(c), 1973gg-10(2)).10

• Knowingly procuring eligibility to vote for federal

office by persons who are not entitled to vote under

applicable state law, notably persons who have
28

committed serious crimes (approximately 40 states)

(42 U.S.C. §§ 1973i(c), 1973gg-10(2)), and persons

who are not United States citizens (currently all

states) (42 U.S.C. §§ 1973i(c), 1973gg-10(2);

18 U.S.C. §§ 1015(f), 611).

• Knowingly making a false claim of United States

citizenship to register to vote or to vote in any election

(18 U.S.C. § 1015(f)), or falsely and willfully claiming

U.S. citizenship for, inter alia, registering or voting in

any election (18 U.S.C. § 911).

• Providing false information concerning a person’s

name, address, or period of residence in a voting

district to establish that person’s eligibility to register

or to vote in a federal election (42 U.S.C. §§ 1973i(c),

1973gg-10(2)).

• Causing the production of voter registrations that

qualify alleged voters to vote for federal candidates, or

the production of ballots in federal elections, that the

actor knows are materially defective under applicable

state law (42 U.S.C. § 1973gg-10(2)).

• Using the mails or interstate wire facilities to obtain

the salary and emoluments of an elected official

through any of the activities mentioned above

(18 U.S.C. §§ 1341, 1343). Until recently, the

Criminal Division believed that the “salary theory” of

mail and wire fraud had at least some potential as a

prosecutive theory that would extend federal criminal

jurisdiction to election fraud schemes, including those

that occurred in nonfederal elections. Although the
 18 U.S.C. § 1346, enacted in response to the Supreme

11

Court’s decision in McNally v. United States, 483 U.S. 350 (1987), may

not have restored use of the mail and wire fraud statutes to all election

fraud schemes because its “intangible rights” concept is confined to

deprivation of “honest services,” a motive not usually found in election

fraud schemes. After the McNally decision the Department began using

the salary theory of mail fraud to address election fraud schemes by

charging that one of the purposes of the scheme was to obtain for the

“favored” candidate the salary and emoluments of an elected position.

This use of the salary theory has met with mixed results. Compare United

States v. Ratcliff, 488 F.3d 639 (5th Cir. 2007), and United States v.

Turner, 459 F.3d 775 (6th Cir. 2006) (rejecting the salary theory of mail

fraud as applied to election fraud schemes), with United States v. Ingber,

Cr. No. 86-1402 (2d Cir. Feb. 4, 1987) (unpublished), quoted in Ingber v.

Enzor, 664 F. Supp. 814, 815-16 (S.D.N.Y. 1987) (habeas opinion), 841

F.2d 450 (2d Cir. 1988) (affirming on retroactivity grounds and not

reaching application of salary theory) and United States v. Webb, 689 F.

Supp. 703 (W.D. Ky. 1988) (accepting salary theory).

29

theory received some initial judicial support, recent

appellate jurisprudence has rejected it.

11

• Ordering, keeping, or having under one’s authority or

control any troops or armed men at any polling place in

any election, federal or nonfederal. The actor must be

an active civilian or military officer or employee of the

United States Government (18 U.S.C. § 592).

3. Conduct that Does Not Constitute 

Federal Election Fraud

Various types of conduct that may adversely affect the

election of a federal candidate may not constitute a federal election

crime, despite what in many instances might be their reprehensible

character. For example, a federal election crime does not normally

involve irregularities relating to: (1) distributing inaccurate campaign

literature, (2) campaigning too close to the polls, (3) engaging in
 Election fraud might occur at the local level in districts 

12

controlled by one political faction in order to affect a contested election

in a larger jurisdiction. For example, a corrupt mayor assured of his own

reelection might nevertheless engage in election fraud for the purpose of

affecting a state-wide election that is perceived to be close. 

30

activities to influence an opponent’s withdrawal from an election, or

(4) failing to comply with state-mandated voting procedures through

the negligence of election officials. Also, “facilitation benefits,” e.g.,

things of value given to voters to make it easier for them to cast a

ballot that are not intended to stimulate or reward the voting act itself,

such as a ride to the polls or a stamp to mail an absentee ballot, do not

ordinarily involve federal crimes.

4. Conditions Conducive to Election Fraud

Most election fraud is aimed at corrupting elections for local

offices, which control or influence patronage positions and

contracting for materials and services. Election fraud schemes are

thus often linked to such other crimes as protection of illegal

activities, corruption of local governmental processes, and patronage

abuses.

Election fraud does not normally occur in jurisdictions where

one political faction enjoys widespread support among the electorate,

because in such a situation it is usually unnecessary or impractical to

resort to election fraud in order to control local public offices.12

Instead, election fraud occurs most frequently when there are fairly

equal political factions, and when the stakes involved in who controls

public offices are weighty – as is often the case when patronage jobs

are a major source of employment, or when illicit activities are being

protected from law enforcement scrutiny. In sum, election fraud is

most likely to occur in electoral jurisdictions where there is close

factional competition for an elected position that matters.
An example of a successfully prosecuted nursing home

13

fraud is United States v. Odom, 736 F.2d 104 (4th Cir. 1984), which

involved a scheme by local law enforcement officials and others to vote

the absentee ballots of mentally incompetent residents.

31

5. Voter Participation Versus Nonvoter 

Participation Cases

As a practical matter, election frauds fall into two basic

categories: those in which individual voters do not participate in the

fraud, and those in which they do. The investigative approach and

prosecutive potential are different for each type of case.

(a) Election frauds not involving

the participation of voters

The first category involves cases when voters do not

participate, in any way, in the voting act attributed to them. These

cases include ballot-box stuffing cases, ghost voting cases, and

“nursing home” frauds. All such matters are potential federal 13

crimes. Proof of these crimes depends largely on evidence generated

by the voting process, or on handwriting exemplars taken from

persons who had access to voting equipment, and thus the opportunity

to misuse it. Some of the more common ways these crimes are

committed include:

 • Placing fictitious names on the voter rolls. This

“deadwood” allows for fraudulent ballots, which

can be used to stuff the ballot box.

 • Casting bogus ballots in the names of persons who

did not vote.
32

 • Obtaining and marking absentee ballots without

the active input of the voters involved. Absentee

ballots are particularly susceptible to fraudulent

abuse because, by definition, they are marked and

cast outside the presence of election officials and 

the structured environment of a polling place.

 • Falsifying vote tallies.

(b) Election frauds involving the participation 

 of voters

The second category of election frauds includes cases in

which the voters do participate, at least to some extent, in the voting

acts attributed to them. Common examples include:

 • Vote-buying schemes;

 • Absentee ballot frauds;

 • Voter intimidation schemes;

 • Migratory-voting (or floating-voter) schemes;

 • Voter “assistance” frauds, in which the wishes of

 the voters are ignored or not sought.

Successful prosecution of these cases usually requires the

cooperation and testimony of the voters whose ballots were corrupted.

This requirement presents several difficulties. An initial problem is

that the voters themselves might be technically guilty of participating

in the scheme. However, because the voters can often be considered

victims, in appropriate cases federal prosecutors should consider

declining to prosecute them in exchange for truthful cooperation

against organizers of such schemes.
33

The second difficulty encountered in cases when voters

participate is that the voter’s presence alone may suggest that he or

she “consented” to the defendant’s conduct (marking the ballot,

taking the ballot, choosing the candidates, etc.). Compare United

States v. Salisbury, 983 F.2d 1369 (6th Cir. 1993) (leaving

unanswered the question whether a voter who signs a ballot envelope

at the defendant’s instruction but is not allowed to choose the

candidates has consented to having the defendant mark the ballot),

with United States v. Cole, 41 F.3d 303 (7th Cir. 1994) (finding that

voters who merely signed ballots subsequently marked by the

defendant were not expressing their own electoral preferences).

While the presence of the ostensible voter when another

marks his or her ballot does not negate whatever crime might be

occurring, it thus may increase the difficulty of proving the crime.

This difficulty is compounded because those who commit this type of

crime generally target vulnerable members of society, such as persons

who are uneducated, socially disadvantaged, or impoverished and

dependent upon government services – precisely the types of people

who are likely targets for manipulation or intimidation. Therefore, in

cases when the voter is present when another person marks his or her

ballot, the evidence should show that the defendant either procured

the voter’s ballot through means that were themselves corrupt (such

as bribery or threats), or that the defendant marked the voter’s ballot

without the voter’s consent or input. United States v. Boards, 10 F.3d

587, 589 (8th Cir. 1993); Cole, 41 F.3d at 308.

C. JURISDICTIONAL SUMMARY

Under the Constitution, the states retain broad jurisdiction

over the elective process. When the federal government enters the

field of elections, it does so to address specific federal interests, such

as: (1) the protection of the voting rights of racial, ethnic, or

language-minorities, a specific constitutional right; (2) the registration

of voters to vote in federal elections; (3) the standardization and

procurement of voting equipment purchased with federal funds;
34

(4) the protection of the federal election process against corruption;

(5) the protection of the voting process from corruption accomplished

under color of law; and (6) the oversight of noncitizen and other

voting by persons ineligible to vote under applicable state law.

Most federal election crime statutes do not apply to all

elections. Several apply only to elections in which federal candidates

are on the ballot, and a few require proof either that the fraud was

intended to influence a federal contest or that a federal contest was

affected by the fraud.

Forfederal jurisdictional purposes, there are two fundamental

types of elections in which federal election crimes may occur: federal

elections, in which the ballot includes the name of one or more

candidates running for federal office; and nonfederal elections, in

which only the names of local or state candidates are on the ballot.

Elections in which the ballot includes the names of both federal and

nonfederal candidates, often referred to as “mixed” elections, are

“federal elections” for the purpose of the federal election crime

statutes.

1. Statutes Applicable to Nonfederal Elections

Several federal criminal statutes apply to purely nonfederal

elections. 

• 42 U.S.C. § 1973i(c) and § 1973gg-10(2)(A), and

18 U.S.C. § 1015(f) – any fraud that is aimed at the

process by which voters are registered, notably

schemes to furnish materially false information to

election registrars;

• 18 U.S.C. §§ 241 and 242 – any scheme that involves

the necessary participation of public officials, usually

election officers or notaries, acting “under color of

law,” which is actionable as a derogation of the “one
Federal prosecutors should also evaluate whether a public 14

scheme involves a deprivation of honest services. 18 U.S.C. §§ 1341,

1343, 1346.

35

person, one vote” principle of the Fourteenth

Amendment, i.e., “public schemes;”14

• 18 U.S.C. § 245(b)(1)(A) – physical threats or reprisals

against candidates, voters, poll watchers, or election

officials;

• 18 U.S.C. § 592 – “armed men” stationed at the polls;

• 18 U.S.C. § 609 – coercion of voting among the

military;

• 18 U.S.C. § 610 – coercion of federal employees for

political activity;

• 18 U.S.C. § 911 – fraudulent assertion of United States

citizenship;

• 18 U.S.C. § 1341 – schemes involving the mails to

corrupt elections that are predicated on the

post-McNally “salary” or “pecuniary loss” theories;

and

• 18 U.S.C. § 1952 – schemes to use the mails in

furtherance of vote-buying activities in states that treat

vote buying as bribery.

The statutes listed above also apply to elections in which a

federal candidate is on the ballot.
The name of a federal candidate on the ballot is sufficient to

15

obtain federal jurisdiction.

36

2. Statutes Applicable to Federal Elections

The following additional statutes apply to federal (including

“mixed”) elections, but not to purely nonfederal elections:

15

 • 18 U.S.C. § 594 – intimidation of voters;

 • 18 U.S.C. § 597 – payments to vote, or to refrain

from voting, for a federal candidate;

• 18 U.S.C. § 608(b) – vote buying and false registration

under the Uniformed and Overseas Citizens Absentee

 Voting Act;

 • 18 U.S.C. § 611 – voting by aliens;

 • 42 U.S.C. § 1973i(c) – payments for registering to vote

 or voting, fraudulent registrations, and conspiracies to

 encourage illegal voting;

 • 42 U.S.C. § 1973i(e) – multiple voting;

 • 42 U.S.C. § 1973gg-10(1) – voter intimidation; and

 • 42 U.S.C. § 1973gg-10(2) – fraudulent voting or

 registering.
 The text of the statutes discussed below is printed in Appen16

dix A. Each statute carries, in addition to the prison term noted, fines

applicable under 18 U.S.C. § 3571.

37

D. STATUTES16

1. Conspiracy Against Rights. 18 U.S.C. § 241

Section 241 makes it unlawful for two or more persons to

“conspire to injure, oppress, threaten, or intimidate any person in any

State, Territory, Commonwealth, Possession, or District in the free

exercise or enjoyment of any right or privilege secured to him by the

Constitution or laws of the United States.” Violations are punishable

by imprisonment for up to ten years or, if death results, by

imprisonment for any term of years or for life, or by a sentence of

death.

The Supreme Court long ago recognized that the right to vote

for federal offices is among the rights secured by Article I, Sections

2 and 4, of the Constitution, and hence is protected by Section 241.

United States v. Classic, 313 U.S. 299 (1941); Ex parte Yarborough,

110 U.S. 651 (1884). Although the statute was enacted just after the

Civil War to address efforts to deprive the newly emancipated slaves

of the basic rights of citizenship, such as the right to vote, it has been

interpreted to include any effort to derogate any right that flows from

the Constitution or from federal law.

Section 241 has been an important statutory tool in election

crime prosecutions. Originally held to apply only to schemes to

corrupt elections for federal office, it has recently been successfully

applied to nonfederal elections as well, provided that state action was

a necessary feature of the fraud. This state action requirement can be

met not only by the participation of poll officials and notaries public,

but by activities of persons who clothe themselves with the

appearance of state authority, e.g., with uniforms, credentials, and

badges. Williams v. United States, 341 U.S. 97 (1951).
38

Section 241 embraces conspiracies to stuff a ballot box with

forged ballots, United States v. Saylor, 322 U.S. 385 (1944); United

States v. Mosley, 238 U.S. 383 (1915); to prevent the official count

of ballots in primary elections, Classic, 313 U.S. 299; to destroy voter

registration applications, United States v. Haynes, 977 F.2d 583 (6th

Cir. 1992) (table) (available at 1992 WL 296782); to destroy ballots,

United States v. Townsley, 843 F.2d 1070 (8th Cir. 1988); United

States v. Morado, 454 F.2d 167 (5th Cir. 1972); to illegally register

voters and cast absentee ballots in their names, United States v.

Weston, 417 F.2d 181 (4th Cir. 1969); to injure, threaten, or

intimidate a voter in the exercise of his right to vote, Wilkins v.

United States, 376 F.2d 552 (5th Cir. 1967); Fields v. United States,

228 F.2d 544 (4th Cir. 1955); to impersonate qualified voters, Crolich

v. United States, 196 F.2d 879 (5th Cir. 1952); to fail to count votes

and to alter votes counted, Ryan v. United States, 99 F.2d 864 (8th

Cir. 1938); Walker v. United States, 93 F.2d 383 (8th Cir. 1937); and

to alter legal ballots, United States v. Powell, 81 F. Supp. 288 (E.D.

Mo. 1948).

Recently, Section 241 was charged, along with telephone

harassment charges under 47 U.S.C. § 223, in a scheme to jam the

telephone lines of two get-out-the-vote services that were perpetrated

to prevent voters from obtaining rides to the polls in the 2002 general

elections. While the defendant was convicted only on the telephone

harassment charges, the district court held that Section 241 applied to

the facts (United States v. Tobin, No. 04-216-01 (SM), 2005 WL

3199672 (D.N.H. Nov. 30, 2005)). The Criminal Division continues

to believe that Section 241 should be considered when addressing

schemes to thwart voting in federal elections. 

Section 241 does not require that the conspiracy be successful,

United States v. Bradberry, 517 F.2d 498 (7th Cir. 1975), nor need

there be proof of an overt act. Williams v. United States, 179 F.2d

644, 649 (5th Cir. 1950), aff’d on other grounds, 341 U.S. 70 (1951);

Morado, 454 F.2d 167. Section 241 reaches conduct affecting the

integrity of the federal election process as a whole, and does not
39

require fraudulent action with respect to any particular voter. United

States v. Nathan, 238 F.2d 401 (7th Cir. 1956).

On the other hand, Section 241 does not reach schemes to

corrupt the balloting process through voter bribery, United States v.

Bathgate, 246 U.S. 220 (1918), even schemes that involve poll

officers to ensure that the bribed voters mark their ballots as they

were paid to do, United States v. McLean, 808 F.2d 1044 (4th Cir.

1987) (noting, however, that Section 241 may apply when vote

buying occurs in conjunction with other corrupt practices, such as

ballot-box stuffing).

Section 241 prohibits only conspiracies to interfere with rights

flowing directly from the Constitution or federal statutes. This

element has led to considerable judicial speculation over the extent

to which the Constitution protects the right to vote for candidates

running for nonfederal offices. Oregon v. Mitchell, 400 U.S. 112

(1970); Reynolds v. Sims, 377 U.S. 533 (1964); Blitz v. United States,

153 U.S. 308 (1894); In re Coy, 127 U.S. 731 (1888); Ex parte

Siebold, 100 U.S. 371 (1880). See also Duncan v. Poythress, 657

F.2d 691 (5th Cir. 1981). While dicta in Reynolds casts the

parameters of the federally protected right to vote in extremely broad

terms, in a ballot fraud case ten years later, the Supreme Court

specifically refused to decide whether the federally secured franchise

extended to nonfederal contests. Anderson v. United States, 417 U.S.

211 (1974).

The use of Section 241 in election fraud cases generally

falls into two types of situations: “public schemes” and “private

schemes.”

A public scheme is one that involves the necessary

participation of a public official acting under the color of law. In

election fraud cases, this public official is usually an election officer

using his office to dilute valid ballots with invalid ballots or to

otherwise corrupt an honest vote tally in derogation of the Equal
40

Protection and Due Process Clauses of the Fourteenth Amendment.

See, e.g., United States v. Haynes, 977 F.2d 583 (6th Cir. 1992)

(table) (available at 1992 WL 296782); United States v. Townsley,

843 F.2d 1070 (8th Cir. 1988); United States v. Howard, 774 F.2d

838 (7th Cir. 1985); United States v. Olinger, 759 F.2d 1293 (7th Cir.

1985); United States v. Stollings, 501 F.2d 954 (4th Cir. 1974);

United States v. Anderson, 481 F.2d 685 (4th Cir. 1973), aff’d on

other grounds, 417 U.S. 211 (1974). Another case involving a public

scheme turned on the necessary participation of a notary public who

falsely notarized forged voter signatures on absentee ballot materials

in an Indian tribal election. United States v. Wadena, 152 F.3d 831

(8th Cir. 1998).

A private scheme is a pattern of conduct that does not involve

the necessary participation of a public official acting under color of

law, but that can be shown to have adversely affected the ability of

qualified voters to vote in elections in which federal candidates were

on the ballot. Examples of private schemes include: (1) voting

fraudulent ballots in mixed elections, and (2) thwarting

get-out-the-vote or ride-to-the-polls activities of political factions or

parties through such methods as jamming telephone lines or

vandalizing motor vehicles.

Public schemes may be prosecuted under Section 241

regardless of the nature of the election, i.e., elections with or without

a federal candidate. On the other hand, private schemes can be

prosecuted under Section 241 only when the objective of the

conspiracy was to corrupt a specific federal contest, or when the

scheme can be shown to have affected, directly or indirectly, the vote

count for a federal candidate, e.g., when fraudulent ballots were cast

for an entire party ticket that included a federal office.
41

2. Deprivation of Rights under Color of Law.

 18 U.S.C. § 242

Section 242, also enacted as a post-Civil War statute, makes

it unlawful for anyone acting under color of law, statute, ordinance,

regulation, or custom to willfully deprive a person of any right,

privilege, or immunity secured or protected by the Constitution or

laws of the United States. Violations are one-year misdemeanors

unless bodily injury occurs, in which case the penalty is ten years,

unless death results, in which case the penalty is imprisonment for

any term of years or for life, or a sentence of death.

Prosecutions under Section 242 need not show the existence

of a conspiracy. However, the defendants must have acted illegally

“under color of law,” i.e., the case must involve a public scheme, as

discussed above. This element does not require that the defendant be

a de jure officer or a government official; it is sufficient if he or she

jointly acted with state agents in committing the offense, United

States v. Price, 383 U.S. 787 (1966), or if his or her actions were

made possible by the fact that they were clothed with the authority of

state law, Williams v. United States, 341 U.S. 97 (1951); United

States v. Classic, 313 U.S. 299 (1941).

Because a Section 242 violation can be a substantive offense

for election fraud conspiracies prosecutable under Section 241, the

cases cited in the discussion of Section 241 that involve public

schemes (i.e., those involving misconduct under color of law) apply

to Section 242.

3. False Information in, and Payments for, Registering 

 and Voting. 42 U.S.C. § 1973i(c)

Section 1973i(c) makes it unlawful, in an election in which a

federal candidate is on the ballot, to knowingly and willfully: (1) give

false information as to name, address, or period of residence for the

purpose of establishing one’s eligibility to register or vote; (2) pay,
The discussion here concerning federal jurisdiction under 17

Section 1973i(c) applies equally to its companion statute, 42 U.S.C.

§ 1973i(e), which addresses multiple voting with a federal jurisdictional

predicate phrased precisely the same way.

42

offer to pay, or accept payment for registering to vote or for voting;

or (3) conspire with another person to vote illegally. Violations are

punishable by imprisonment for up to five years.

(a) The basis for federal jurisdiction17

Congress added Section 1973i(c) to the 1965 Voting Rights

Act to ensure the integrity of the balloting process in the context of

an expanded franchise. In so doing, Congress intended that Section

1973i(c) have a broad reach. In fact, the original version of Section

1973i(c) would have applied to all elections. However, constitutional

concerns were raised during congressional debate on the bill, and

the provision’s scope was narrowed to elections that included

a federal contest. Section 1973i(c) rests on Congress’s power

to regulate federal elections and on the Necessary and Proper

Clause. U.S. CONST. art. I, § 4; art. I, § 8, cl. 18; United States v.

Slone, 411 F.3d 643 (6th Cir. 2005); United States v. McCranie,

169 F.3d 723 (11th Cir. 1999); United States v. Cole, 41 F.3d 303

(7th Cir. 1994); United States v. Malmay, 671 F.2d 869 (5th Cir.

1982); United States v. Carmichael, 685 F.2d 903 (4th Cir. 1982);

United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981); and United

States v. Cianciulli, 482 F. Supp. 585 (E.D. Pa. 1979).

Section 1973i(c) has been held to protect two distinct aspects

of a federal election: the actual results of the election, and the

integrity of the process of electing federal officials. United States v.

Cole, 41 F.3d 303 (7th Cir. 1994). In Cole, the Seventh Circuit held

that federal jurisdiction is satisfied so long as a single federal

candidate is on the ballot – even if the federal candidate is unopposed

– because fraud in a mixed election automatically has an impact on

the integrity of the federal election process. See also United States v.
43

Slone, 411 F.3d 643 (6th Cir. 2005); and United States v. McCranie,

169 F.3d 723 (11th Cir. 1999) (jurisdiction under Section 1973i(c)

satisfied by name of unopposed federal candidate on ballot).

Section 1973i(c) is particularly useful for two reasons: (1) it

eliminates the unresolved issue of the scope of the constitutional right

to vote in matters not involving racial discrimination, and (2) it

eliminates the need to prove that a given pattern of corrupt conduct

had an actual impact on a federal election. It is sufficient under

Section 1973i(c) that a pattern of corrupt conduct took place during

a mixed election; in that situation it is presumed that the fraud will

expose the federal race to potential harm. United States v. Slone,

411 F.3d 643 (6th Cir. 2005); United States v. Cole, 41 F.3d 303 (7th

Cir. 1994); United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985);

United States v. Saenz, 747 F.2d 930 (5th Cir. 1984); United States

v. Garcia, 719 F.2d 99 (5th Cir. 1983); United States v. Carmichael,

685 F.2d 903 (4th Cir. 1982); United States v. Mason, 673 F.2d 737

(4th Cir. 1982); United States v. Malmay, 671 F.2d 869 (5th Cir.

1982); United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981);

United States v. Sayre, 522 F. Supp. 973 (W.D. Mo. 1981); United

States v. Simms, 508 F. Supp. 1179 (W.D. La. 1979).

Cases arising under this statute that involve corruption of the

process by which individuals register, as distinguished from the

circumstances under which they vote, present a different federal

jurisdictional issue that is easily satisfied. This is because voter

registration in every state is “unitary” in the sense that one registers

to vote only once in order to become eligible to vote for all candidates

on the ballot – local, state, and federal. Although a state could choose

to maintain separate registration lists for federal and nonfederal

elections, at the time this book was written, no state had chosen to do

so. Consequently, any corrupt act that affects the voter registration

process and that can be reached under 42 U.S.C. § 1973i(c) satisfies

this federal jurisdictional requirement. An excellent discussion of

this issue is contained in United States v. Cianciulli, 482 F. Supp. 585

(E.D. Pa. 1979).
Such matters may, however, be charged as conspiracies

18

to encourage illegal voting under the conspiracy clause of Section

1973i(c); as citizenship offenses under, inter alia, 18 U.S.C. §§ 911 and

1015(f); or under the broad “false information” provision of 42 U.S.C.

§1973gg-10. These statutes will be discussed below.

44

(b) False information to an election official

The “false information” provision of Section 1973i(c)

prohibits any person from furnishing certain false data to an election

official to establish eligibility to register or vote. The statute applies

to three types of information: name, address, and period of residence

in the voting district. False information concerning other factors

(such as citizenship, felon status, and mental competence) are not

covered by this provision.18

As just discussed, registration to vote is “unitary,” i.e., a

single registration qualifies the applicant to cast ballots for all

elections. Thus, the jurisdictional requirement that the false

information be used to establish eligibility to vote in a federal election

is satisfied automatically whenever a false statement is made to get

one’s name on the registration rolls. United States v. Barker,

514 F.2d 1077 (7th Cir. 1975); Cianciulli, 482 F.Supp. 585.

On the other hand, when the false data is furnished to poll

officials for the purpose of enabling a voter to cast a ballot in a

particular election (as when one voter attempts to impersonate

another), it must be shown that a federal candidate was being voted

upon at the time. In such situations, the evidence should show that

the course of fraudulent conduct could have jeopardized the integrity

of the federal race, or, at a minimum, that the name of a federal

candidate was on the ballot. Carmichael, 685 F.2d 903; Bowman,

636 F.2d 1003. See also In re Coy, 127 U.S. 731 (1888).

In United States v. Boards, 10 F.3d 587 (8th Cir. 1993), the

Eighth Circuit confirmed the broad reach of the “false information”
The Eighth Circuit observed, “[b]ecause only registered 19

voters are eligible to apply for and vote absentee ballots, the use of real

registered voters’ names was essential to the scheme to obtain and

fraudulently vote absentee ballots ....” Id.

45

provision of Section 1973i(c). The defendants in this case, and their

unindicted co-conspirators, had obtained and marked the absentee

ballots of other registered voters by forging the voters’ names on

ballot applications and directing that the ballots be sent to a post

office box without the voters’ knowledge. The district court granted

post-verdict judgments of acquittal as to those counts in which the

defendants’ roles were limited to fraudulently completing an

application for an absentee ballot, based on its conclusions that: 

(1) the statute did not extend to ballot applications, (2) the statute did

not cover giving false information as to the names of real voters (as

opposed to fictitious names), and (3) the defendants could not be

convicted when the ballots were actually voted by an unidentified coconspirator. 

The court of appeals rejected each of these narrow

interpretations of Section 1973i(c). It first held that an application for

a ballot falls within the broad definition of “vote” in the Voting

Rights Act, “because an absentee voter must first apply for an

absentee ballot as a ‘prerequisite to voting.”’ Id. at 589 (quoting

42 U.S.C. § 1973l(c)(1)). The court also held that by using the names

of real registered voters on the applications, the defendants “[gave]

false information as to [their] name[s]” within the meaning of Section

1973i(c). Id. Finally, the court held that one of the defendants,

19

whose role was limited to completing absentee ballot applications for

ballots that others used to fraudulently vote, was liable under

18 U.S.C. § 2 as an aider and abettor.

Subsequently, in United States v. Smith, 231 F.3d 800 (11th

Cir. 2000), the Eleventh Circuit held that each forgery of a voter’s

name on a ballot document or on an application for a ballot
46

constituted a separate offense under the “false information as to

name” clause of Section 1973i(c).

Section 1973i(c)’s false information clause is particularly

useful when the evidence shows that a voter’s signature (name) was

forged on an election-related document, for example: (1) when

signatures on poll lists are forged by election officials who are

stuffing a ballot box, (2) when a voter’s signature on an application

for an absentee ballot is forged, or (3) when bogus voter registration

documents are fabricated in order to get names on voter registries.

Some, but not all, states permit a practice commonly known

as "bounty-hunting,” that is, paying people to collect voter

registrations on a per-registration basis. Where it is allowed, it is not

unusual to find that this method of remuneration provides a motive

for the unscrupulous to forge voter registrations and to enhance the

piecework payments they can receive. While this situation usually

does not result in fraudulent votes actually being cast, it does cause

voter registration offices to become overloaded with the task of

processing large numbers of bogusregistrationsimmediately prior to

an election, when the resources of those offices should be directed at

preparing ballots and staffing polling sites. It also risks overloading

voter rolls with “deadwood” names, which in turn undermines public

confidence in the election process. Thus, even when no fraudulent

votes result from bounty hunting, the fraudulent registrations that

arise from this conduct are not victimless offenses. Federal prosecutors should be cognizant of these circumstances and, when

evidence of fraudulent registrations inspired by bounty hunting is

discovered, should consider prosecuting the individuals submitting

the false registrations, as well as, in appropriate circumstances, the

organizations that employ and pay them, under Section 1973i(c).
The federal criminal code contains another vote-buying

20

statute, 18 U.S.C. § 597, which has a narrower scope and provides for

lesser penalties than Section 1973i(c). Section 597 prohibits making or

offering to make an expenditure to any person to vote or withhold his or

her vote for a federal candidate. Nonwillful violations of Section 597 are

one-year misdemeanors; willful violations are two-year felonies. Sections

597 and 1973i(c) are distinct offenses, since each requires proof of an

element that the other does not. Whalen v. United States, 445 U.S. 684

(1980); Blockburger v. United States, 284 U.S. 299 (1932). Section 597

requires that the payment be made to influence a federal election; Section

1973i(c) requires that the defendant acted “knowingly and willfully.”

47

(c) Commercialization of the vote

The clause of Section 1973i(c) that prohibits “vote buying”

does so in broad terms, covering any payment made or offered to a

would-be voter “for registering to vote or for voting” in an election

when the name of a federal candidate appears on the ballot. Section 20

1973i(c) applies as long as a pattern of vote buying exposes a federal

election to potential corruption, even though it cannot be shown that

the threat materialized.

This aspect of Section 1973i(c), is directed at eliminating

pecuniary considerations from the voting process. United States v.

Garcia, 719 F.2d 99, 102 (5th Cir. 1983); United States v. Mason,

673 F.2d 737, 739 (4th Cir. 1982); United States v. Bowman, 636

F2d. 1003, 1012 (5th Cir. 1981). The statute rests on the premises

that potential voters can choose not to vote; that those who choose to

vote have a right not to have the voting process diluted with ballots

that have been procured through bribery; and that the selection of the

nation’s leaders should not degenerate into a spending contest, with

the victor being the candidate who can pay the most voters. See also

United States v. Blanton, 77 F. Supp. 812, 816 (E.D. Mo. 1948).

The bribe may be anything having monetary value, including

cash, liquor, lottery chances, and welfare benefits such as food

stamps. Garcia, 719 F.2d at 102. However, offering free rides to the
48

polls or providing employees paid leave while they vote are not

prohibited. United States v. Lewin, 467 F.2d 1132 (7th Cir. 1972).

Such things are given to make it easier for people to vote, not to

induce them to do so. This distinction is important. For an offer or

a payment to violate Section 1973i(c), it must have been intended to

induce or reward the voter for engaging in one or more acts necessary

to cast a ballot. Section 1973i(c) does not prohibit offering or giving

things having pecuniary value, such as a ride to the polls or time off

from work, to help individuals who have already made up their minds

to vote do so.

Moreover, payments made for some purpose other than to

induce or reward voting activity, such as remuneration for campaign

work, do not violate this statute. See United States v. Canales

744 F.2d 413 (5th Cir. 1984) (upholding conviction because jury

justified in inferring that payments were for voting, not campaign

work). Similarly, Section 1973i(c) does not apply to payments made

to signature-gatherers for voter registrations such individuals may

obtain. However, such payments become actionable under Section

1973i(c) if they are shared with the person being registered.

Finally, Section 1973i(c) does not require that the offer or

payment be made with a specific intent to influence a federal contest.

It is sufficient that the name of a federal candidate appeared on the

ballot in the election when the payment or offer of payment occurred.

United States v. Slone, 411 F.3d 643 (6th Cir. 2005) (unopposed

Senate candidate on ballot); United States v. McCranie, 169 F.3d 723

(11th Cir. 1999), (payments to vote for county commissioner); United

States v. Cole, 41 F.3d 303 (7th Cir. 1994) (unopposed House

and Senate candidates on ballot); United States v. Daugherty,

952F.2d 969 (8th Cir. 1991) (payments to vote for several local

candidates); United States v. Odom, 858 F.2d 664 (11th Cir. 1988)

(payments to vote for state representative);United States v. Campbell,

845 F.2d 782 (8th Cir. 1988); (payments to benefit a candidate for

county judge); United States v. Garcia, 719 F.2d 99 (5th Cir. 1983)

(food stampsto vote for candidate for county judge); United States v.
False statements involving any fact that is material to regis- 21

tering or voting under state law may also be prosecuted under 42 U.S.C.

§ 1973gg-10, as will be discussed below.

49

Malmay, 671 F.2d 869 (5 th Cir. 1983) (payments to influence votes

for candidates for sheriff and other local offices); United States v.

Carmichael, 685 F.2d 903 (4th Cir. 1982) (payments for sheriff).

United States v. Malmay, 671 F.2d 869 (5th Cir. 1983) (payments to

vote for school board member).

(d) Conspiracy to cause illegal voting

The second clause of Section 1973i(c) criminalizes

conspiracies to encourage “illegal voting.” The phrase “illegal

voting” is not defined in the statute. On its face it encompasses

unlawful conduct in connection with voting. Violations of this

provision are felonies.

The “illegal voting” clause of Section 1973i(c) has potential

application to those who undertake to cause othersto register or vote

in conscious derogation of state or federal laws. Cianciulli,

482 F.Supp. at 616 (noting that this clause would prohibit “vot[ing]

illegally in an improper election district”). For example, all states

require voters to be United States citizens, and most states

disenfranchise people who have been convicted of certain crimes,

who are mentally incompetent, or who possess other disabilities that

may warrant restriction of the right to vote. This provision requires

that the voters participate in the conspiracy.21

The conspiracy provision of Section 1973i(c) applies only to

the statute’s “illegal voting” clause. Olinger, 759 F.2d at 1298-1300.

Conspiracies arising under the other clauses of Section 1973i(c) (i.e.,

those involving vote buying or fraudulent registration) should be

charged under the general federal conspiracy statute, 18 U.S.C. § 371.
50

4. Voting More than Once. 42 U.S.C. § 1973i(e)

Section 1973i(e), enacted as part of the 1975 amendments to

the Voting Rights Act of 1965, makes it a crime to vote “more than

once” in any election in which a federal candidate is on the ballot.

Violations are punishable by imprisonment for up to five years.

The federal jurisdictional basis for this statute is identical to

that for 42 U.S.C. § 1973i(c), which is discussed in detail above.

Section 1973i(e) is most useful as a statutory weapon against

frauds that do not involve the participation of voters in the balloting

acts attributed to them. Examples of such frauds are schemes to cast

ballots in the names of voters who were deceased or absent, United

States v. Olinger, 759 F.2d 1293 (7th Cir. 1985); schemes to exploit

the infirmities of the mentally handicapped by casting ballots in their

names, United States v. Odom, 736 F.2d 104 (4th Cir. 1984); and

schemes to cast absentee ballots in the names of voters who did not

participate in and consent to the marking of their ballots, United

States v. Smith, 231 F.3d 800 (11th Cir. 2000).

Most cases prosecuted under the multiple voting statute have

involved defendants who physically marked ballots outside the

presence of the voters in whose names they were cast – in other

words, without the voters’ participation or knowledge. The statute

may also be applied successfully to schemes when the voters are

present but do not participate in any way, or otherwise consent to the

defendant’s assistance, in the voting process.

However, when the scheme involves “assisting” voters who

are present and who also marginally participate in the process, such

as by signing a ballot document, prosecuting the case under Section

1973i(e) might present difficulties. For instance, in United States v.

Salisbury, 983 F.2d 1369 (6th Cir. 1993), the defendant got voters to

sign their absentee ballot forms, and then instructed them how to

mark their ballots, generally without allowing them to choose the
The Salisbury court noted that in United States v. Hogue,

22

812 F.2d 1568 (11th Cir. 1987), the jury was instructed that illegal voting

under Section 1973i(e) included marking another person’s ballot without

his or her “express or implied consent,” but found that, based on the facts

of Salisbury, the jury should also have been given definitions of “vote”

and “consent.” United States v. Salisbury, 983 F.2d at 1377.

51

candidates – and even in some cases not disclosing the identity of the

candidates on the ballot. In a few cases the defendant also personally

marked others’ ballots. The Sixth Circuit held that the concept “votes

more than once” in Section 1973i(e) was unconstitutionally vague as

applied to these facts. Because the phrase “votes more than once”

was not defined in the statute, the court found the phrase did not

clearly apply when the defendant did not physically mark another’s

ballot. The court further held that, even if the defendant did mark

another’s ballot, it wasn’t clear this was an act of “voting” by the

defendant if the defendant got the ostensible voters to demonstrate

“consent” by signing their names to the accompanying ballot forms.

Id. at 1379.22

In a similar multiple-voting case a year after the Sixth

Circuit’s Salisbury decision, the Seventh Circuit took a different

approach, with the benefit of more detailed jury instructions. United

States v. Cole, 41 F.3d 303 (7th Cir. 1994). In both cases, the

defendants had marked absentee ballots of other persons after getting

the voters to sign their ballot documents. The Seventh Circuit

rejected the Sixth Circuit’s contention that the term “vote” was

unconstitutionally vague, finding that the term was broadly and

adequately defined in the Voting Rights Act itself, 42 U.S.C.

§ 1973l(c)(1), and that this statutory definition was supported by both

the dictionary and the commonly understood meaning of the word.
 “Ordinary people can conclude that the absentee voters were

23

not expressing their wills or preferences, i.e., that Cole was using the

absentee voters’ ballots to vote his will and preferences.” Id. at 308.

52

The Seventh Circuit held that the facts established a clear violation by

the defendant of the multiple voting prohibition in Section 1973i(e).23

In addition to their conflicting holdings, the Salisbury and

Cole opinions differ in their approach to so-called voter “assistance”

cases. Salisbury focused on the issue of voter consent – that is,

whether the voters had, by their conduct, in some way “consented” to

having the defendant mark, or help them mark, their own ballots.

Cole, on the other hand, focused on whether it was the voter or the

defendant who actually expressed candidate preferences.

In a more recent case, the Eleventh Circuit followed the

rationale in Cole with respect to a scheme to obtain and cast ballots

for indigent voters without their knowledge or consent. United States

v. Smith, 231 F.3d 800 (11th Cir. 2000). The court even went so far

as to note that, in its view, a Section 1973i(e) offense could exist

regardless of whether the voter had consented to another’s marking

his ballot. Id. at 819, n. 20. 

While the approach taken in Cole and Smith is, from a

prosecutor’s perspective, preferable to the approach taken in

Salisbury, the latter’s discussion of the issue of possible voter

“consent” remains important, since facts suggesting the possibility of

consent may weaken the evidence of fraud. Taken together, these

three cases suggest the following approach to voter “assistance”

frauds:

• Section 1973i(e) most clearly applies to cases of

“ballot theft.” Examples of such situations are when

the defendant marked the ballots of others without their

input, when voters did not knowingly consent to the
53

defendant’s participation in their voting transactions;

when the voters’ electoral preferences were

disregarded; or when the defendant marked the ballots

of voters who lacked the mental capacity to vote or to

consent to the defendant’s activities.

• Jury instructions for a Section 1973i(e) charge should

amplify the key term “votes more than once” in the

context of the particular case, and specifically define

the terms “vote,” and, when appropriate, “consent” and

“implied consent.” See, e.g., 42 U.S.C. § 1973l(c)(l)

(containing an extremely broad definition of “vote”)

and United States v. Boards, 10 F.3d 587, 589 (8th Cir.

1993) (holding that this definition encompasses

applying for an absentee ballot).

Thus, while the clearest use of Section 1973i(e) is to prosecute

pure ballot forgery schemes, the statute can also apply to other types

of schemes when voters are manipulated, misled, or otherwise

deprived of their votes. See, e.g., Cole, 41 F.3d at 310-311 (witness

believed the defendant was merely registering her to vote, not helping

her vote). Schemes to steal the votes of the elderly, infirm, or

economically disadvantaged may constitute multiple voting,

especially if there is a clear absence of meaningful voter participation.

Because of their vulnerability, these persons are frequent targets of

ballot schemes, and often do not even know that their ballots have

been stolen or their voting choices ignored. Furthermore, if they have

been intimidated, they are generally reluctant to say so.

There is a significant evidentiary difference between voter

intimidation and multiple voting that suggests that the multiple voting

statute may become the preferred charging statute for voter

“assistance” frauds. Voter intimidation requires proof of a difficult

element: the existence of physical or economic intimidation that is

intended by the defendant. In contrast, the key element in a multiple

voting offense is whether the defendant voted the ballot of another
54

person without consulting with that person or taking into account his

or her electoral preferences.

In conclusion, if the facts show manipulation of “vulnerable

victims” as referenced in the sentencing guidelines for the purpose of

obtaining control over the victims’ ballot choices, the use of Section

1973i(e) as a prosecutive theory should be considered.

5. Voter Intimidation

Voter intimidation schemes are the functional opposite of

voter bribery schemes. In the case of voter bribery, voting activity is

stimulated by offering or giving something of value to individuals to

induce them to vote or reward them for having voted. The goal of

voter intimidation, on the other hand, is to deter or influence voting

activity through threats to deprive voters of something they already

have, such as jobs, government benefits, or, in extreme cases, their

personal safety. Another distinction between vote buying and

intimidation is that bribery generates concrete evidence: the payment

itself (generally money). Intimidation, on the other hand, is

amorphous and largely subjective in nature, and lacks such concrete

evidence.

Voter intimidation is an assault against both the individual

and society, warranting prompt and effective redress by the criminal

justice system. Yet a number of factors make it difficult to prosecute.

The intimidation is likely to be both subtle and without witnesses.

Furthermore, voters who have been intimidated are not merely

victims; it is their testimony that proves the crime. These voters must

testify, publicly and in an adversarial proceeding, against the very

person who intimidated them. Obtaining this crucial testimony must

be done carefully and respectfully. Because such offenses often occur

in remote and insular communities, investigators should increase their

efforts to maintain contact with voters, especially after charges are

brought. Prosecutors should consider “locking in” testimony in grand
Federal prosecutors should be mindful of Department re24

sources and policies regarding the rights of victims and the concerns

regarding their use as witnesses, and should consult with the victimwitness coordinator in their office or division.

55

jury sessions even at the risk of creating some negative Jenks

material.24

The crime of voter “intimidation” normally requires evidence

of threats, duress, economic coercion, or some other aggravating

factor that tends to improperly induce conduct on the part of the

victim. If such evidence is lacking, an alternative prosecutive theory

may apply to the facts, such as multiple voting in violation of

42 U.S.C. § 1973i(e). Indeed, in certain cases the concepts of

“intimidation” and “voting more than once” might overlap and even

merge. For example, a scheme that targets the votes of persons who

are mentally handicapped, economically depressed, or socially

vulnerable may involve elements of both crimes. Because of their

vulnerability, these persons are often easily manipulated – without the

need for inducements, threats, or duress. In such cases, the use of

Section 1973i(e) as a prosecutive theory should be considered.

United States v. Odom, 736 F.2d 104 (4th Cir. 1984).

The main federal criminal statutes that can apply to voter

intimidation are: 42 U.S.C. § 1973gg-10(1); 18 U.S.C. §§ 241, 242,

245(b)(1)(A), 594, and 610. Each of these statutes is discussed

below.

(a) Intimidation in voting and registering to vote. 

 42 U.S.C. § 1973gg-10(1)

In 1993, Congress enacted the National Voter Registration

Act (NVRA), 42 U.S.C. §§ 1973gg to 1973gg-10. The principal

purpose of this legislation was to require that the states provide

prospective voters with uniform and convenient means by which to
For guidance in determining what constitutes “intimidation” 25

or “coercion” under this statute, see the discussion of 18 U.S.C. § 594

below. Voter “intimidation” accomplished through conduct not covered

by this statute or Section 594 may present violations of the Voting Rights

Act, 42 U.S.C. § 1973i(b), which are enforced by the Civil Rights Division

through noncriminal remedies.

 The jurisdictional element for Section 1973gg-10(1) is “in 26

any election for Federal office.” This is slightly different phraseology

than used in Sections 1973i(c) and i(e), as discussed above. In matters

involving intimidation in connection with voter registration, this

jurisdictional element is currently satisfied in every case because voter

registration is unitary in all 50 states: i.e., one registers to vote only once

to become eligible to vote for federal as well as nonfederal candidates.

However, when the intimidation occurs in connection with voting, the

jurisdictional situation might not be as clear. Absent case law to the

contrary, federal prosecutors should advocate the position that “an election

for Federal office” means any election in which a federal candidate is on

the ballot.

56

register for the federal franchise. In response to concerns that

relaxing registration requirements may lead to an increase in election

fraud, the NVRA also included a new series of election crimes, one

of which prohibits knowingly and willfully intimidating or coercing25

prospective voters in registering to vote, or for voting, in any election

for federal office. 42 U.S.C. § 1973gg-10(1). Violators are subject

26

to imprisonment for up to five years.

(b) Intimidation of voters. 18 U.S.C. § 594

Section 594 prohibits intimidating, threatening, or coercing

anyone, or attempting to do so, for the purpose of interfering with an

individual’s right to vote or not vote in any election held solely or in

part to elect a federal candidate. The statute does not apply to

primaries. Violations are one-year misdemeanors.

The operative words in Section 594 are “intimidates,”

“threatens,” and “coerces.” The scienter element requires proof that
The civil counterparts to Section 594, 42 U.S.C. §§ 1971(b) 27

and 1973i(b), may also be used to combat nonviolent voter intimidation.

See, e.g., United States v. North Carolina Republican Party, No.

91-161-Civ-5F (E.D.N.C., consent decree entered Feb. 27, 1992) (consent

order entered against political organization for mailing postcards to

thousands of minority voters that contained false voting information and

a threat of prosecution).

57

the actor intended to force voters to act against their will by placing

them in fear of losing something of value. The feared loss might be

something tangible, such as money or economic benefits, or

intangible, such as liberty or safety.

Section 594 was enacted as part of the original 1939 Hatch

Act, which aimed at prohibiting the blatant economic coercion used

during the 1930s to force federal employees and recipients of federal

relief benefits to perform political work and to vote for and contribute

to the candidates supported by their supervisors. The congressional

debates on the Hatch Act show that Congress intended Section 594

to apply when persons were placed in fear of losing something of

value for the purpose of extracting involuntary political activities.

84 CONG. REC. 9596-611 (1939). Although the impetus for the

passage of Section 594 was Congress’s concern over the use of

threats of economic loss to induce political activity, the statute also

applies to conduct which interferes, or attempts to interfere, with an

individual’s right to vote by placing him or her in fear of suffering

other kinds of tangible and intangible losses. It thus criminalizes

conduct intended to force prospective voters to vote against their

preferences, or refrain from voting, through activity reasonably

calculated to instill some form of fear.

27

(c) Coercion of political activity. 18 U.S.C. § 610

Section 610 was enacted as part of the 1993 Hatch Act reform

amendments to provide increased protection against political
A similar statute addresses political intimidation within the 28

military. 18 U.S.C. § 609. It prohibits officers of the United States

Armed Forces from misusing military authority to coerce members of the

military to vote for a federal, state, or local candidate. Violations are

five-year felonies. In addition, 18 U.S.C. § 593 makes it a five-year felony

for a member of the military to interfere with a voter in any general or

special election, and 18 U.S.C. § 596 makes it a misdemeanor to poll

members of the armed forces regarding candidate preferences.

58

manipulation of federal employees in the executive branch. It 28

prohibits intimidating or coercing a federal employee to induce or

discourage “any political activity” by the employee. Violators are

subject to imprisonment for up to three years. This statute is

discussed in detail in Chapter Three, which addresses patronage

crimes.

Although the class of persons covered by Section 610 is

limited to federal employees, the conduct covered by this statute is

broad: it reaches political activity that relates to any public office or

election, whether federal, state, or local. The phrase “political

activity” in Section 610 expressly includes, but is not limited to,

“voting or refusing to vote for any candidate or measure,” “making or

refusing to make any political contribution,” and “working or refusing

to work on behalf of any candidate.”

(d) Conspiracy against rights and deprivation of 

 constitutional rights. 18 U.S.C. § 241 and § 242

Section 241 makes it a ten-year felony to “conspire to injure,

oppress, threaten, or intimidate” any person in the free exercise of any

right or privilege secured by the Constitution or laws of the United

States” – including the right to vote. The statute, which is discussed

in detail above, has potential application in two forms of voter

intimidation: a conspiracy to prevent persons whom the subjects

knew were qualified voters from entering or getting to the polls to

vote in an election when a federal candidate is on the ballot, and a
59

conspiracy to misuse state authority to prevent qualified voters from

voting for any candidate in any election.

Section 241 has been successfully used to prosecute

intimidation in connection with political activities. Wilkins v. United

States, 376 F.2d 552 (5th Cir. 1967) (en banc). Wilkins involved both

violence and clear racial animus, and arose out of the shooting of a

participant in the 1965 Selma-to-Montgomery voting rights march.

The marchers had intended to present the Governor of Alabama with

a petition for redress of grievances, including denial of their right to

vote. The Fifth Circuit held that those marching to protest denial of

their voting rights were exercising “an attribute of national

citizenship, guaranteed by the United States,” and that shooting one

of the marchers therefore violated Section 241. Id. at 561.

Section 242 makes it a misdemeanor for any person to act

“under color of any law, statute, ordinance, regulation, or custom,” to

willfully deprive any person in a state, territory, or district of a right

guaranteed by the Constitution or federal law. For all practical

purposes, this statute embodies the substantive offense for a Section

241 conspiracy, and it therefore can apply to voter intimidation.

It is the Criminal Division’s position that Sections 241 and

242 may be used to prosecute schemes to intimidate voters in federal

elections through threats of physical or economic duress, or to prevent

otherwise lawfully qualified voters from getting to the polls in

elections when a federal candidate is on the ballot. Examples of the

latter include intentionally jamming telephone lines to disrupt a

political party’s get-out-the-vote or ride-to-the-polls efforts, and

schemes to vandalize motor vehicles that a political faction or party

intended to use to get voters to the polls.
60

(e) Federally protected activities. 

 18 U.S.C. § 245(b)(1)(A)

The Civil Rights Act of 1968 contained a broad provision that

addresses violence intended to intimidate voting in any election in

this country. 18 U.S.C. § 245(b)(1)(A). This provision applies

without regard to the presence of racial or ethnic factors.

Section 245(b)(1)(A) makes it illegal to use or threaten to use

physical force to intimidate individuals from, among other things,

“voting or qualifying to vote.” It reaches threats to use physical force

against a victim because the victim has exercised his or her franchise,

or to prevent the victim from doing so. Violations are misdemeanors

if no bodily injury results, ten-year felonies if there is bodily injury,

and any term of years, life imprisonment, or death if death results.

Prosecutions under Section 245 require written authorization

by the Attorney General, the Deputy Attorney General, the Associate

Attorney General, or a specially designated Assistant Attorney

General, who must certify that federal prosecution ofthe matter is “in

the public interest and necessary to secure substantial justice.”

§ 245(a)(1). This approval requirement was imposed in response to

federalism issues that many Members of Congress believed were

inherent in a statute giving the federal government prosecutive

jurisdiction over what otherwise would be mere assault and battery

cases. S. REP. NO. 90-721 (1967), reprinted in 1968 U.S.C.C.A.N.

1837-67. In making the required certification, the standard to be

applied is whether the facts of the particular matter are such that the

appropriate state law enforcement authorities should, but either

cannot or will not, effectively enforce the applicable state law,

thereby creating an overriding need for federal intervention. Id. at

1845-48.
 At the time this book was written, the Congress was consid- 29

ering legislation that would specifically criminalize providing false

information to the public and other deceptive practices to suppress

voting in a federal election.

61

6. Voter Suppression. 18 U.S.C. § 241 and § 242 

Voter suppression schemes are designed to ensure the election

of a favored candidate by blocking or impeding voters believed to

oppose that candidate from getting to the polls to cast their ballots.

Examples include providing false information to the public – or a

particular segment of the public – regarding the qualifications to vote,

the consequences of voting in connection with citizenship status, the

dates or qualifications for absentee voting, the date of an election, the

hours for voting, or the correct voting precinct. Another voter

suppression scheme, attempted recently with partial success, involved

impeding access to voting by jamming the telephone lines of entities

offering rides to the polls in order to prevent voters from requesting

needed transportation. This case was successfully prosecuted and is

discussed below. 

Currently there is no federal criminal statute that expressly

prohibits this sort of voter suppression activity. Nevertheless, the 29

conspiracy against rights statute, 18 U.S.C. § 241, has been

successfully used to prosecute conspiracies to destroy valid voter

registrations, United States v. Haynes, 977 F.2d 583 (6th Cir. 1992)

(table) (available at 1992 WL 296782), and to destroy ballots, In re

Coy, 127 U.S. 731 (1888), United States v. Townsley, 843 F.2d 1070

(8th Cir. 1988). The Criminal Division believes that voter supression

conspiracies, such as those described above, are the functional

equivalent of the acts involved in these prosecutions, and that voter

suppression conspiracies can – and should – be pursued under Section

241 where their objective is to deter voting in a federal election (thus

depriving the victim voters of their federally guaranteed right to vote

for federal candidates), or in any election when they involve “state

action” in their execution (thus depriving the victim voters of their
62

rights to due process and equal protection as guaranteed by the

Fourteenth Amendment). As noted above, the substantive crime for

Section 241 conspiracies can be prosecuted under 18 U.S.C. § 242,

deprivation of constitutional rights, where the voter suppression is

carried out “under color of law.” 

This prosecutive theory was recently used in a high-profile

case in New Hampshire. In United States v. Tobin, No. 04-216-01

(SM), 2005 WL 3199672 (D.N.H. Nov. 30, 2005), a senior political

party official was charged with violating Section 241 and with

telephone harassment offenses under 47 U.S.C. § 223 in connection

with a scheme to jam telephone lines for ride-to-the-polls services

offered by the opposing political party and the local fire department

during the 2002 general elections. The object of the conspiracy was

to impede certain voters from getting to the polls in order to influence

what was perceived to have been a very close United States Senate

contest. The defendant challenged the Section 241 charge, claiming

that the statute had never been applied to a voter suppression scheme

such as the one involved in that case and that application of Section

241 to the scheme would therefore deprive him of constitutionally

required notice that his activities were proscribed. The district court

disagreed and upheld the charge, stating: 

[T]he “fair warning” issue turns generally on whether a

person of ordinary intelligence would know that the acts

charged would violate constitutional rights. Or, with

reference to the allegations in the superseding indictment,

whether a person of ordinary intelligence would

understand that participating in an agreement, or

conspiracy, whose purpose is to prevent qualified persons

from freely exercising their right to vote, would violate

Section 241. Plainly, a reasonable person would understand that the right to vote is a right protected by

the Constitution. He or she would also understand that

knowingly joining in a conspiracy with the specific intent
The defendant’s convictions on the telephone harassment 30

charges were reversed on appeal due to error in the jury instructions under

§ 223. United States v. Tobin, 480 F.3d 53 (1st Cir. 2007).

63

to impede or prevent qualified persons from exercising the

right to vote is conduct punishable under Section 241. 

 Id. at *3.30

The Criminal Division believes that the prosecution of voter

suppression schemes represents an important law enforcement

priority, that such schemes should be aggressively investigated, and

that, until Congress enacts a statute specifically criminalizing this

type of conduct, 18 U.S.C. § 241 is the appropriate prosecutive tool

by which to charge provable offenses. 

7. Fraudulent Registration or Voting. 

42 U.S.C. § 1973gg-10(2)

This provision was enacted as part of the National Voter

Registration Act of 1993 (NVRA). As discussed above, Congress

enacted the NVRA to ease voter registration requirements throughout

the country. The major purpose of this legislation was to promote the

exercise of the franchise by replacing diverse state voter registration

requirements with uniform and more convenient registration options,

such as registration bymail, when applying for a driver’s license, and

at various government agencies.

In addition, the NVRA sought to protect the integrity of the

electoral process and the accuracy of the country’s voter registration

rolls. To further these goals, a new criminal statute was enacted that

specifically addressed two common forms of electoral corruption:

intimidation of voters (42 U.S.C. § 1973gg-10(1), discussed above),

and fraudulent registration and voting (42 U.S.C. § 1973gg-10(2)).

Violations are subject to imprisonment for up to five years.
The earlier statutes, 42 U.S.C. §§ 1973i(c) and (e), contain 31

express references to each federal office (Member of the House, Member

of the Senate, President, Vice President, presidential elector) and type of

election (primary, general, special) providing federal jurisdiction. The

revised language seems to have been intended as a less cumbersome

rephrasing of the required federal nexus. 

64

The NVRA’s criminal statute resulted from law enforcement

concerns expressed during congressional debates on the bill. Both

opponents and supporters recognized that relaxing voter registration

requirements was likely to increase election fraud by making it easier

for the unscrupulous to pack voting rolls with fraudulent registrations,

which would facilitate fraudulent ballots. Section 1973gg-10(2) thus

criminalizes submitting voter registrations or ballots that contain

materially false information with knowledge of the falsity. See

United States v. Prude, 489 F.3d 873 (7th Cir. 2007) (affirming

conviction of disenfranchised felon who voted after notice of her

ineligibility).

The constitutional basis of the NVRA is Congress’s broad

power to regulate the election of federal officials. NVRA’s criminal

provision reflects this federal focus, and is limited to conduct that

occurs “in any election for Federal office.” While the phrasing of this

jurisdictional element differs somewhat from the jurisdictional

language used by Congress in earlier election fraud statutes, the

Department believes that it was intended to achieve the same result.31

(a) Fraudulent registration. § 1973gg-10(2)(A)

Subsection 1973gg-10(2)(A) prohibits any person, in an

election for federal office, from defrauding or attempting to defraud

state residents of a fair and an impartially conducted election by

procuring or submitting voter registration applications that the

offender knows are materially false or defective under state law. The
65

scope of the statute is broader than that of the “false information”

provision of Section 1973i(c), discussed above, which is limited to

false information involving only name, address, or period of

residence. The statute applies to any false information that is material

to a registration decision by an election official. For this reason, the

provision is likely to be the statute of preference for most false

registration matters.

For schemes to submit fraudulent registration applications, the

statute’s “Federal Office” jurisdictional element is automatically

satisfied, and hence does not present a problem. This is because

registration to vote is unitary in all states, in the sense that in

registering to vote an individual becomes eligible to vote in all

elections, federal as well as nonfederal.

(b) Fraudulent voting: § 1973gg-10(2)(B)

Subsection 1973gg-10(2)(B) prohibits any person, in an

election for federal office, from defrauding or attempting to defraud

the residents of a state of a fair election through casting or tabulating

ballots that the offender knows are materially false or fraudulent

under state law. Unlike other ballot fraud laws discussed in this

chapter, the focus of this provision is not on any single type of fraud,

but rather on the result of the false information: that is, whether the

ballot generated through the false information was defective and void

under state law. Because of the conceptual breadth of this provision,

it is a useful alternative to general fraud statutes in reaching certain

forms of election corruption, particularly alien and felon voting.

However, the statute’s jurisdictional element, “in any election

for Federal office,” substantially restricts its usefulness for fraudulent

voting (as opposed to fraudulent registration) schemes as it applies

only to elections that include a federal candidate. Thus, its scope is

similar to that of 42 U.S.C. §§ 1973i(c) and (e), and arises from the

fact that fraudulent activity aimed at any race in a mixed election has

the potential to taint the integrity of the federal race.
 U.S. CONST. art. I, § 2 and amend. XVII (electors for

32

Members of the United States House of Representatives and the United

States Senate have the qualifications for electors of the most numerous

branch of the state legislatures); art. II, § 1, cl. 2 (presidential electors

chosen as directed by state legislatures). 

For example, the states are prohibited from depriving

33

“citizens of the United States” of the franchise on account of any of the

following factors: race (amend. XV), gender (amend. XIX), nonpayment

of poll tax (amend. XXIV), age 18 or older (amend. XXVI and 42 U.S.C.

§ 1973bb), residency after 30 days (42 U.S.C. § 1973aa-1), or overseas

residence (42 U.S.C. § 1973ff-1).

66

8. Voting by Noncitizens

Federal law does not expressly require that persons be United

States citizens to vote. Moreover, eligibility to vote is a matter that

the Constitution leaves primarily to the states. At the time this book 32

was written, all states required that prospective voters be United

States citizens.

Historically, the states have regulated both the administrative

and substantive facets of the election process, including how one

registers to vote and who is eligible to do so. Federal requirements,

on the other hand, generally have focused on specific federal interests,

such as protecting the integrity of the federal elective process and the

exercise of fundamental rights to which constitutional protection has

been expressly granted.33

Federal laws do, however, have quite a bit to say about

citizenship and voting. Specifically, in 1993 the federal role in the

election process expanded significantly with the enactment of the

National Voter Registration Act (NVRA). This legislation required,

among other things, that forms used to register persons to vote in

federal elections clearly state “each eligibility requirement (including

citizenship)” and that persons registering to vote in federal elections

affirm that they meet “each eligibility requirement (including
67

citizenship).” 42 U.S.C. §§ 1973gg-3(c)(2)(C), 1973gg-5(a)(6)(A)(i),

1973gg-7(b)(2). Nine years later, Congress passed the Help America

Vote Act of 2002, which reemphasized these requirements in the case

of voters who register to vote via mail by requiring the states to place

a citizenship question on mailed registration forms. 42 U.S.C.

§ 15483(b)(4)(A)(i).

In addition to these federal requirements relating to voter

registration, registering to vote and voting by noncitizens are covered

by four separate federal criminal laws:

(a) Fraudulent registration and voting under the 

 NVRA. 42 U.S.C. § 1973gg-10(2)

The NVRA enacted a new criminal statute that reaches

the knowing and willful submission to election authorities of

false information that is material under state law. 42 U.S.C.

§ 1973gg-10(2). Because all states currently make citizenship a

prerequisite for voting, statements by prospective voters concerning

citizenship status are automatically “material” within the meaning of

this statute. Therefore, any false statement concerning an applicant’s

citizenship status that is made on a registration form submitted to

election authorities can involve a violation of this statute. Such

violations are felonies subject to imprisonment for up to five years.

For jurisdictional purposes, the statute requires that the fraud

be “in any election for Federal office.” As discussed above, voter

registration in every state is unitary in the sense that an individual

registers to vote only once for all elective offices – local, state, and

federal. Thus the jurisdictional element of Section 1973gg-10(2) is

satisfied whenever a false statement concerning citizenship status is

made on a voter registration form.

The use of the word “willful” suggests Section 1973gg-10(2)

may be a specific intent offense. This means federal prosecutors may

have to prove that the offender was aware that citizenship is a
68

requirement for voting, and that the registrant did not possess United

States citizenship. In most instances, proof of the first element is

relatively easy because, since 1993 when the NVRA was enacted, the

citizenship requirement must be stated on the voter registration form,

and the form requires that the voter check a box indicating that he or

she is a citizen. 

(b) False claimsto register or vote. 18 U.S.C. § 1015(f)

Section 1015(f) was enacted in 1996 to provide an additional

criminal prohibition addressing the participation of noncitizens in the

voting process. This statute makes it an offense for an individual to

make a false statement or claim that he or she is a citizen of the

United States in order to register or to vote. Unlike all other statutes

addressing alien voting, Section 1015(f) expressly applies to all

elections – federal, state, and local – as well as to initiatives, recalls,

and referenda.

Jurisdictionally, Section 1015(f) rests on Congress’s power

over nationality (U.S. CONST. art. I, § 8, cl. 4) rather than on the

Election Clause (U.S. CONST. art. I, § 4, cl. 1), which provides the

basis for its broad reach.

Violations of Section 1015(f) are felonies, punishable by

imprisonment for up to five years.

(c) False claims of citizenship. 18 U.S.C. § 911

Section 911 prohibits the knowing and willful false assertion

of United States citizenship by a noncitizen. See, e.g., United States

v. Franklin, 188 F.2d 182 (7th Cir. 1951); Fotie v. United States,

137 F.2d 831 (8th Cir. 1943). Violations of Section 911 are

punishable by up to three years of imprisonment.

As noted, all states require United States citizenship as a

prerequisite for voting. Historically, however, some states have not
69

implemented the prerequisite through voter registration forms that

clearly alerted prospective registrants that only citizens may vote.

Under the NVRA, all states must now make this citizenship

requirement clear, and prospective registrants must sign applications

under penalty of perjury attesting that they meet this requirement.

Therefore, falsely attesting to citizenship in any state is now more

likely to be demonstrably willful, and therefore cognizable under

Section 911.

Section 911 requires proof that the offender was aware he was

not a United States citizen, and that he was falsely claiming to be a

citizen. Violations of Section 911 are felonies, punishable by up to

three years of imprisonment.

(d) Voting by aliens. 18 U.S.C. § 611

Section 611 is a relatively new statute that creates an

additional crime for voting by persons who are not United States

citizens. It applies to voting by noncitizens in an election when a

federal candidate is on the ballot, except when noncitizens are

authorized to vote by state or local law for nonfederal candidates or

issues, and the ballot is formatted in a way that the noncitizen has the

opportunity to vote solely for these nonfederal candidates or issues.

Unlike Section 1015(f), Section 611 is directed at the act of voting,

rather than the act of lying. 

Also unlike Section 1015(f), Section 611 states a general

intent offense, i.e., the offender must have known that he or she was

not a citizen and that the act he or she performed was an act of voting.

However, it is not necessary to prove that the offender knew that

voting by noncitizens was illegal. As thus interpreted, Section 611

has been held to conform to constitutional standards. United States

v. Knight, F.3d , 2007 WL 1892861 (11th Cir. July 3, 2007).

Violations of Section 611 are misdemeanors, punishable by

up to one year of imprisonment.
70

9. Travel Act. 18 U.S.C. § 1952

The Travel Act, 18 U.S.C. § 1952, prohibits interstate travel,

the interstate use of any other facility (such as a telephone), and any

use of the mails to further specified “unlawful activity,” including

bribery in violation of state or federal law. Violations are punishable

by imprisonment for up to five years. This statute is useful in election

crime matters because it applies to vote-buying offenses that occur in

states where vote buying is a “bribery” offense, regardless of the type

of election involved.

The predicate bribery under state law need not be common

law bribery. The Travel Act applies as long as the conduct is

classified as a “bribery” offense under applicable state law. Perrin v.

United States, 444 U.S. 37 (1979). In addition, the Travel Act has

been held to incorporate state crimes regardless of whether they are

classified as felonies or misdemeanors. United States v. Polizzi,

500 F.2d 856, 873 (9th Cir. 1974); United States v. Karigiannis,

430 F.2d 148, 150 (7th Cir. 1970).

The first task in determining whether the Travel Act has

potential application to a vote-buying scheme is to examine the law

of the state where the vote-buying occurred to determine if it either:

(1) is classified as a bribery offense, or (2) describes the offense of

paying voters for voting in a way that requires proof of a quid pro

quo, i.e., that a voter be paid in consideration for his or her vote for

one or more candidates. If the state offense meets either of these

criteria, the Travel Act potentially applies.

In the past, Travel Act prosecutions have customarily rested

on predicate acts of interstate travel or the use of interstate facilities.

Since election fraud is a local crime, interstate predicate acts

are rarely present, and the Travel Act has not been used to

prosecute election crime. However, in United States v. Riccardelli,

794 F.2d 829 (2d Cir. 1986), the Second Circuit held that the Act’s

mail predicate was satisfied by proof of an intrastate mailing.
71

In reaching this conclusion, the court conducted an exhaustive

analysis of the Travel Act’s legislative history and Congress’s

authority to regulate the mails. The Sixth Circuit subsequently

reached a contrary result, holding that the Travel Act’s mail predicate

required an interstate mailing. United States v. Barry, 888 F.2d 1092

(6th Cir. 1989). In 1990 Congress resolved this conflict by adopting

the Riccardelli holding in an amendment to the Travel Act, expressly

extending federal jurisdiction to any use of the mails in furtherance

of a state predicate offense.

Thus, the Travel Act should be considered as a vehicle to

prosecute vote-buying schemes in which the mails were used in those

states where vote buying is statutorily defined as bribery. This theory

is one of the few available that do not require a federal candidate on

the ballot.

As with the mail fraud statute, each use of the mails in

furtherance of the bribery scheme is a separate offense. United States

v. Jabara, 644 F.2d 574 (6th Cir. 1981). The defendant need not

actually have done the mailing, so long as it was a reasonably

foreseeable consequence of his or her activities. United States v.

Kelley, 395 F.2d 727 (2d Cir.1968). Nor need the mailing have in

itself constituted the illegal activity, as long as it promoted it in some

way. United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981);

United States v. Barbieri, 614 F.2d 715 (10th Cir. 1980); United

States v. Peskin, 527 F.2d 71 (7th Cir. 1975); United States v.

Wechsler, 392 F.2d 344 (4th Cir. 1968).

An unusual feature of the Travel Act is that it requires an

overt act subsequent to the jurisdictional event charged in the

indictment. Thus, if a Travel Act charge is predicated on a use of the

mails, the government must allege and prove that the defendant

subsequently acted to further the underlying unlawful activity. The

subsequent overt act need not be unlawful in itself; this element has

been generally held to be satisfied by the commission of a legal act as
 The federal wire fraud statute, 18 U.S.C. § 1343, is essen34

tially identical to the mail fraud statute, except for its jurisdictional

element, and, accordingly has potential application to election fraud

schemes that are furthered by interstate wires.

72

long as the act facilitated the unlawful activity. See, e.g., United

States v. Davis, 780 F.2d 838 (10th Cir. 1985).

The Travel Act is particularly useful in voter bribery cases in

nonfederal elections that involve the mailing of absentee ballot

materials. Such matters usually involve a defendant who offers

voters compensation for voting, followed by the voter applying for,

obtaining, and ultimately casting an absentee ballot. Each voting

transaction can involve as many as four separate mailings: (1) when

the absentee ballot application is sent to the voter, (2) when the

completed application is sent to the local election board, (3) when the

absentee ballot is sent to the voter, and (4) when the voter sends the

completed ballot back to the election authority for tabulation.

Because the mailing must be in furtherance of the scheme,

therefore, care should be taken to ensure that the voting transaction

in question was corrupted by a bribe before the mailing that is

charged. If, for example, the voter was not led to believe that he or

she would be paid for voting until after applying for, and receiving,

an absentee ballot package, then the only mailing affected by bribery

would be the transmission of the ballot package to the election

authority; the Travel Act charge is best predicated on this final

mailing, with some other subsequent overt act charged.

10. Mail Fraud. 18 U.S.C. § 1341

The federal mail fraud statute prohibits use of the United

States mails, or a private or commercial interstate carrier, to further

a “scheme or artifice to defraud.” 18 U.S.C. § 1341. Violations are 34

punishable by imprisonment for up to twenty years.
73

At present, the most viable means of addressing election

crime under the mail fraud statute is the “salary theory,” which, as

will be discussed below, has received only limited – and in a recent

case hostile – treatment by the courts. Under this approach, the

pecuniary benefits of elective office are charged as the object of the

scheme.

 (a) Background

Until McNally v. United States, 483 U.S. 350 (1987), the mail

fraud statute was frequently and successfully used to attain federal

jurisdiction over schemes to corrupt local elections. Because its

jurisdictional basis is the broad power of Congress to regulate the

mails, Section 1341 was used to address corruption of the voting

process in purely local or state elections. See Badders v. United

States, 240 U.S. 391, 392 (1916) (the overt act of putting a letter in

a United States post office is a matter Congress may regulate).

Courts had broadly interpreted the “scheme or artifice to

defraud” element of Section 1341 to include nearly any effort to

procure, cast, or tabulate ballots illegally under state law. The theory

was that citizens were entitled to fair and honest elections, and a

scheme to corrupt an election defrauded them of this right. United

States v. Girdner, 754 F.2d 877, 880 (10th Cir. 1985) (scheme to cast

votes for ineligible voters); United States v. Clapps, 732 F.2d 1148,

1152-53 (3d Cir. 1984) (scheme to usurp absentee ballots of elderly

voters); United States v. States, 488 F.2d 761, 766 (8th Cir. 1973)

(scheme to submit fraudulent absentee ballots). The mail fraud

statute was even held to reach schemes to deprive the public of

information required under state campaign finance disclosure statutes.

United States v. Buckley, 689 F.2d 893, 897-98 (9th Cir. 1982);

United States v. Curry, 681 F.2d 406, 411 (5th Cir. 1982).

The jurisdictional mailing element of Section 1341, moreover,

usually posed no substantial obstacle in election fraud cases. The

Second Circuit may have adopted the most expansive position,
74

holding in an unpublished opinion that the mail fraud statute applied

to any fraudulent election practice resulting in postal delivery of a

certificate of election to the winning candidate. United States v.

Ingber, Cr. No. 86-1402 (2d Cir. Feb. 4, 1987) (unpublished), quoted

in Ingber v. Enzor, 664 F. Supp. 814, 815-16 (S.D.N.Y. 1987)

(habeas opinion). As most states mail such notices to victorious

candidates, this theory would have allowed federal jurisdiction over

election fraud by victorious politicians, both federal and nonfederal.

However, in McNally, the Supreme Court substantially

restricted the utility of the mail fraud statute to combat election

crimes. McNally held that “scheme to defraud” does not encompass

schemes to deprive the public of intangible rights, such as the rights

to good government and fair elections, but is limited to schemes to

deprive others of property rights. 

In 1988, Congress enacted 18 U.S.C. § 1346 in response to the

McNally decision. Unfortunately, by its express terms, Section 1346

only applies to schemes to deprive another of the “intangible right of

honest services,” a concept that does not easily fit schemes to defraud

the public of a fair election or of information required to be disclosed

under federal or state campaign financing laws. 

However, even a narrow definition of honest services fraud

does not entirely foreclose use of the mail fraud statute to address

election fraud. If a pecuniary interest – such as money or salary – is

sought through the scheme, the mail fraud statute still applies. See

McNally, 483 U.S. at 360 (noting that the jury was not charged on a

money or property theory).

 (b) Salary theory of mail fraud

Schemes to obtain salaried positions by falsely representing

one’s credentials to a hiring authority remain prosecutable under the

mail fraud statute after McNally. The objective of such “salary

schemes” is to obtain pecuniary items by fraud; such schemes are
Another district court has upheld application of Section

35

1341 to a commercial bribery scheme to pay salary to a dishonest

procurement officer. United States v. Johns, 742 F. Supp. 196, 204-06,

212-13 (E.D. Pa. 1990) (collecting cases in an extended discussion of the

salary theory). The Third Circuit, however, reversed Johns’s mail fraud

convictions with a cursory, unpublished order that held, enigmatically, that

the “convictions for mail fraud must be reversed inasmuch as the evidence

was insufficient, as a matter of law, to establish that appellant had

defrauded his employer of money paid to him as salary.” United States v.

Johns, 972 F.2d 1333 (3d Cir. 1991) (table) (available at 1991 U.S. App.

LEXIS 18586).

75

therefore clearly within the scope of the common law concepts of

fraud to which McNally sought to restrict the mail fraud statute. See

United States v. Granberry, 908 F.2d 278, 280 (8th Cir. 1990)

(scheme to obtain employment by falsifying application); United

States v. Doherty, 867 F.2d 47, 54-57 (1st Cir. 1989) (scheme to rig

police promotion exam); United States v. Walters, 711 F. Supp. 1435,

1442-46 (N.D. Ill. 1989) (scheme to obtain scholarships through false

information), rev’d on other grounds, 913 F.2d 388 (7th Cir. 1990);

United States v. Ferrara, 701 F. Supp. 39 (E.D.N.Y. 1988) (scheme

to obtain hospital salaries by falsifying medical training), aff’d,

868 F.2d 1268 (2d Cir. 1988); United States v. Thomas, 686 F. Supp.

1078, 1083-85 (M.D. Pa. 1988) (scheme to rig police entrance exam),

aff’d, 866 F.2d 1414 (3d Cir. 1988) (table); United States v. Cooper,

677 F. Supp. 778, 781-82 (D. Del. 1988) (wire fraud scheme to obtain

pay for person not performing work).35

This theory of post-McNally mail fraud has potential

application to some election fraud schemes, since most elected offices

in the United States carry with them a salary and various emoluments

that have monetary value. The criterion by which candidates for

elected positions are selected by the public is who obtained the most

valid votes. Thus, schemes to obtain salaried elected positions

through procuring and tabulating invalid ballots may be capable of

being charged as traditional common law frauds: i.e., schemes to

obtain the salary of the office in question by concealing from the
76

public authority responsible for counting votes and certifying winners

material facts about the critical issue of which candidate received the

most valid votes. 

In addition, election fraud schemes can present related issues

concerning the quality and value of the public officer hired thereby.

The Supreme Court observed in McNally that deceit concerning the

quality and value of a commodity or service remains within the scope

of the mail fraud statute:

We note that as the action comes to us, there

was no charge and that the jury was not

required to find that the Commonwealth itself

was defrauded of any money or property. It

was not charged that in the absence of the

alleged scheme the Commonwealth would

have paid a lower premium or secured better

insurance.

McNally, 483 U.S. at 360 (emphasis added). Election fraud schemes

involve an aspect of material concealment insofar as the “value” of

the services the public is paying for are concerned: the public “hired”

the candidate because it was falsely led to believe this candidate

received the most valid votes, and consequently received services

from a qualified individual that were thus of lower value.

The “salary theory” of post-McNally mail fraud has been

applied to election frauds in only a few cases to date, and with mixed

results. Compare United States v. Walker, 97 F.3d 253 (8th Cir.

1996) (mail fraud convictions affirmed under both salary theory and

intangible right to honest services theory arising from scheme to

secretly finance local candidate, when issue of applicability of salary

theory not challenged), United States v. Schermerhorn, 713 F. Supp.

88 (S.D.N.Y. 1989) (scheme to conceal that state senate candidate

was being financed by organized crime in violation of state campaign

financing laws held actionable under the salary theory), aff’d, 906
77

F.2d 66 (2d Cir. 1990), Ingber v. Enzor, 841 F.2d 450 (2d Cir. 1988)

(post-McNally habeas relief appropriate for pre-McNally mail fraud

defendant convicted of securing election to salaried township position

through illegal ballots, when the reviewing court could not determine

whether jury’s verdict rested on salary theory or on alternative

intangible rights theory), and United States v. Webb, 689 F. Supp. 703

(W.D. Ky. 1988) (tax dollars paid to a public official elected by fraud

are a loss to the citizens, who did not receive the benefit of the

bargain), with United States v. Ratcliff, (salary theory of mail fraud

held inapplicable to election fraud schemes), 488 F.3d 639 (5th Cir.

2007), United States v. Turner, 459 F. 3d 775 (6th Cir. 2006) (same),

and United States v. George, No. CR86-0123, 1987 WL48848 (W.D.

Ky. 1987) (same).

 

(c) “Honest services” fraud. 18 U.S.C. § 1346

As summarized above, prior to McNally nearly all the circuits

had held that a scheme to defraud the public of a fair and impartial

election was one of the “intangible rights” schemes covered by the

mail and wire fraud statutes. McNally repudiated this theory in an

opinion that not only rejected the intangible rights theory of mail and

wire fraud, but did so by citing several election fraud cases as

examples of the kinds of fraud the Court found outside these criminal

laws.

The following year, Congress responded to McNally by

enacting 18 U.S.C. § 1346, which defined “scheme or artifice to

defraud” to include “the intangible right of honest services.”

However, this language did not clearly restore the use of these

statutes to election frauds. This is because Section 1346 encompasses

only schemes to deprive a victim of the intangible right of “honest

services,” and most voter fraud schemes do not appear to involve
An exception is frauds involving corrupt election officials, 36

which deprive the body politic of their “honest services.”

78

such an objective. Moreover, jurisprudence in the arena of public

36

corruption has generally confined Section 1346 to schemes involving

traditional forms of corruption that involve a clear breach of the

fiduciary duty of “honest services” owed by a public official to the

body politic, e.g., bribery, extortion, embezzlement, theft, conflicts of

interest, and, in some instances, gratuities. See, e.g., United States v.

Panarella, 277 F.3d 678 (3d Cir. 2002); United States v. Sawyer,

329 F.3d 31 (1st Cir. 2001); United States v. Bloom, 149 F.3d 649

(7th Cir. 1998); United States v. Brumley, 116 F.3d 728 (5th Cir.

1997) (en banc). See also United States v. Grubb, 11 F.3d 426 (4th

Cir. 1993) (upholding multi-count convictions of a state judge,

including honest services mail fraud, arising from a scheme to extort

$10,000 donation from a candidate); United States v. D’Alessio,

822 F.Supp. 1134 (D.N.J. 1993) (dismissing indictment due to

ambiguity regarding applicability of local gift rule but recognizing

candidate’s duty of honesty to contributors and the public). Federal

prosecutors should consult the Public Integrity Section before using

Section 1346 in the context of election fraud.

The application of the “honest services” theory of mail and

wire fraud to election fraud schemes was expressly rejected by the

Sixth Circuit in United States v. Turner, 459 F.3d 775 (6th Cir. 2006).

(d) “Cost-of-election” theory. 18 U.S.C. § 1341

One case, United States v. DeFries, 43 F.3d 707 (D.C. Cir.

1995), has held that a scheme to cast fraudulent ballots in a labor

union election, which had the effect of tainting the entire election,

was a scheme to defraud the election authority charged with running

the election of the costs involved.
79

DeFries was not a traditional election fraud prosecution.

Rather, it involved corruption of a union election when supporters of

one candidate for union office cast fraudulent ballots for that

candidate. When the scheme was uncovered, the United States

Department of Labor ordered that a new election be held, thereby

causing the union to incur an actual pecuniary loss. The D.C. Circuit

held that the relationship between that pecuniary loss and the voter

fraud scheme was sufficient to satisfy the requirements of McNally.

This theory of prosecution has potential validity primarily

when the mail and wire fraud statutes are needed to federalize voter

frauds involving the counting of illegal ballots in nonfederal

elections, particularly when the fraud has led to a successful election

contest and the election authority has been ordered to hold a new

election, thereby incurring additional costs.

11. Troops at Polls. 18 U.S.C. § 592

This statute makes it unlawful for anyone in the military or

federal civil service to station troops or “armed men” at the polls in

a general or special election (but not a primary), except when

necessary “to repel armed enemies of the United States.” Violations

are punishable by imprisonment for up to five years and

disqualification from any federal office.

Section 592 prohibits the use of official authority to order

armed personnel to the polls; it does not reach the troops who respond

to those orders. The effect of this statute is to prohibit FBI Special

Agents from conducting investigations within the polls on election

day, and Deputy U.S. Marshals from being stationed at open polls, as

both are required to carry their weapons while on duty.

This statute applies only to agents of the United States

Government. It does not prohibit state or local law enforcement

agencies from sending police officers to quell disturbances at polling
80

places, nor does it preempt state laws that require police officers to be

stationed in polling places.

12. Campaign Dirty Tricks

Two federal statutes, both of which are part of the Federal

Election Campaign Act (FECA), specifically address campaign

tactics and practices: 2 U.S.C. §§ 441d and 441h. As is the case

with all other FECA provisions, violations of these two statutes are

subject to both civil and criminal penalties, 2 U.S.C. §§ 437g(a) and

437g(d) respectively. These penalties will be discussed in Chapter

Five.

 (a) Election communications and solicitations. 

 2 U.S.C. § 441d

Section 441d provides that whenever a person or political

committee makes certain types of election-related disbursements, an

expenditure for the purpose of financing a public communication

advocating the election or defeat of a clearly identified federal

candidate, or a solicitation for the purpose of influencing the election

of a federal candidate, the communication must contain an attribution

clause identifying the candidate, committee, or person who authorized

and/or paid for the communication. The content of the attribution, as

well as its size and location in the advertisement are described in the

statute.

This Section has potential application to unattributed false,

inflammatory, or scurrilous campaign literature that calls for the

election or defeat of a federal candidate.

 (b) Fraudulent misrepresentation. 2 U.S.C. § 441h

Section 441h prohibits fraudulently representing one’s

authority to speak for a federal candidate or political party. As a
81

result of the 2002 Bipartisan Campaign Reform Act (BCRA), the

provision contains two specific prohibitions:

• Section 441h(a) forbids a federal candidate or an

agent of a federal candidate from misrepresenting

his or her authority to speak, write, or otherwise

act for any other federal candidate or political

party in a matter which is damaging to that other

candidate or political party. For example, Section

441h(a) would prohibit an agent of federal

candidate A from issuing a statement that was

purportedly written by federal candidate B and

which concerned a matter which was damaging to

candidate B.

• Section 441h(b) forbids any person from fraudulently representing his or her authority to solicit

contributions on behalf of a federal candidate or

political party. This provision was added by

BCRA and became effective on November 6,

2002. For example, this provision would prohibit

any person from raising money by claiming that

he orshe represented federal candidate A when in

fact the person had no such authority.

13. Retention of Federal Election Records.

 42 U.S.C. § 1974

The detection, investigation, and proof of election crimes –

and in many instances Voting Rights Act violations – often depend

on documentation generated during the voter registration, voting,

tabulation, and election certification processes. In recognition of this

fact, and the length of time it can take for credible evidence

suggesting election fraud or voting rights violations to develop,

Congress enacted Section 1974 to require that documentation

generated in connection with the voting and registration process be
Election administrators, document custodians, or other per- 37

sons who willfully violate Section 1974 or Section 1974a are subject to

imprisonment for up to one year.

Indeed, the federal courts have recognized that the purpose

38

of this federal document retention requirement is to protect the right to

vote by facilitating the investigation of illegal election practices. Kennedy

v. Lynd, 306 F.2d 222 (5th Cir. 1962).

82

retained for twenty-two months if it pertained to an election that

included a federal candidate. Absent this statute, the disposition of

election documentation would be subject solely to state law, which in

virtually all states permits its destruction within a few months after

the election is certified.

Section 1974 provides for criminal misdemeanor penalties for

any election officer who willfully fails to retain records covered by

the statute. Section 1974a provides similar criminal penalties for

election officers or other persons who willfully steal, destroy, or alter

covered records. In addition to these criminal penalties, the reach 37

of this statute to specific categories of election documentation is

critical to both prosecutors and election administrators, who must

often resolve election disputes and answer challenges to the fairness

of elections.

38

For this reason, a detailed discussion of Section 1974 and its

application to particular types of election documentation generated in

the current age of electronic voting will be presented here.

(a) Legislative purpose and background

The voting process generates voluminous documents and

records, ranging from voter registration forms and absentee ballot

applications to ballots and tallyreports. If election fraud occurs, these

records often play an important role in the detection and prosecution

of the crime. Documentation generated by the election process also
83

plays an equally important role in the detection, investigation, and

prosecution of federal civil rights violations.

State laws generally require that voting documents be retained

for sixty to ninety days. Those relatively brief periods are usually

insufficient to make certain that voting records will be preserved until

more subtle forms of federal civil rights abuses and election crimes

have been detected.

In 1960, Congress enacted a federal requirement that extended

the document retention period for elections when federal candidates

were on the ballot to twenty-two months after the election. Pub. L.

86-449, Title III, § 301, 74 Stat. 88; 42 U.S.C. §§ 1974-1974e. As

noted above, this documentation retention requirement is backed-up

with criminal misdemeanor penalties that apply to election officers or

other persons who willfully destroy covered election records before

the expiration of the federal retention period.

The retention requirements of Section 1974 are aimed

specifically at election administrators. In a parochial sense, these

laws place criminally sanctionable duties on election officials.

However, in a broader sense, this federal retention law assists election

administrators in performing the tasks of managing elections and

determining winners of elective contests. It does this by requiring

election managers to focus appropriate attention on the types of

election records under their supervision and control that may be

needed to resolve challenges to the election process, and by requiring

that they take appropriate steps to ensure that those records will be

preserved intact until such time as they may become needed to

resolve legitimate questions that frequently arise involving the

election process. 

(b) The basic requirements of Section 1974

Section 1974 requires that election administrators preserve for

twenty-two months “all records and papers” that come into their
84

possession relating to any “application, registration, payment of poll

tax, or other act requisite to voting.” This retention requirement

applies to all elections in which a candidate for federal office was on

the ballot, that is, a candidate for the United States Senate, the United

States House of Representatives, President or Vice President of the

United States, or presidential elector. Retention and disposition of

records in elections with no federal candidate on the ballot are

governed by state law. Section 1974 does not apply to records

generated in connection with purely local or state elections.

However, Section 1974 does apply to all records generated in

connection with the process of registering voters and maintaining

current electoral rolls. This is because voter registration in virtually

all United States jurisdictions is “unitary” in the sense that a potential

voter registers only once to become eligible to vote for both local and

federal candidates. See United States v. Cianciulli, 482 F.Supp. 585

(E.D. Pa. 1979). Thus, registration records must be preserved as long

as the voter registration to which they pertain is considered an

“active” one under local law and practice, and those records cannot

be disposed of until the expiration of twenty-two months following

the date on which the registration ceased to be “active.”

This statute must be interpreted in keeping with its

congressional objective: under Section 1974, all documents and

records that may be relevant to the detection or prosecution of federal

civil rights or election crimes must be maintained if the documents or

records were generated in connection with an election that included

one or more federal candidates.

(c) Section 1974 requires document preservation,

not document generation

Section 1974 does not require that states or localities produce

records in the course of their election processes. However, if a state

or locality chooses to create a record that pertains to voting, this
85

statute requires that record be retained if it relates to voting in an

election covered by the statute.

(d) Originals must be retained

Section 1974 further requires that the original documents be

retained, even in those jurisdictions that have the capability to reduce

original records to digitized replicas. This is because handwriting

analysis may be difficult to perform on digitized reproductions of

signatures, and because the legislative purpose advanced by this

statute is to preserve election records for their evidentiary value in

criminal and civil rights lawsuits. Therefore, in states and localities

that employ new digitization technology to archive election forms that

were originally manually subscribed by voters, Section 1974 requires

that the originals be maintained for the requisite twenty-two month

period.

(e) Election officials must supervise storage

Section 1974 requires that covered election documentation be

retained either physically by election officials themselves, or under

their direct administrative supervision. This is because the document

retention requirements of this federal law place the retention and

safekeeping duties squarely on the shoulders of election officers, and

Section 1974 does not contemplate that this responsibility be shifted

to other government agencies or officers.

An electoral jurisdiction may validly determine that election

records subject to Section 1974 would most efficiently be kept under

the physical supervision of government officers other than election

officers (e.g., motor vehicle departments and social service

administrators). This is particularly likely to occur following the

enactment in 1993 of the National Voter Registration Act, which for

the first time in many states authorizes government agencies other

than election offices to play a substantive role in the voter registration

process.
86

If an electoral jurisdiction makes such a determination,

Section 1974 requires that administrative procedures be in place

giving election officers ultimate management authority over the

retention and security of those election records. Those administrative

procedures should ensure that election officers retain ultimate

responsibility for the retention and security of covered election

records, that they also retain the right to physically access and dispose

of them, and that the terms and conditions of storage conform to the

retention requirements of the statute.

(f) Retention not required for certain records

Documentation generated in the course of elections held solely

for local or state candidates, for bond issues, initiatives, referenda and

the like, is not covered by Section 1974 and may be disposed of

within the usually shorter time periods provided under state election

laws. However, if there is a federal candidate on the ballot in the

election, the federal retention requirement of twenty-two months

applies.

(g) Retention under Section 1974 versus retention

 under the National Voter Registration Act

The retention requirements of Section 1974 interface

significantly with somewhat similar retention requirements of the

National Voter Registration Act, 42 U.S.C. § 1973gg-6(i). However,

there are four major differences between these two provisions:

• Section 1974 applies to all records generated by

the election process, while Section 1973gg-6(i)

applies only to registration records generated

under the NVRA.

• Section 1974's retention period is twenty-two

months while Section 1973gg-6(i)’s retention

period is two years.
87

• Section 1973gg-6(i) requires that, with certain

exceptions, covered records also must be made

available to the public for inspection for two

years.

• Violations of Section 1974 are subject to criminal

sanctions, while violations of Section 1973gg-6(i)

are subject only to noncriminal remedies.

E. POLICY AND PROCEDURAL CONSIDERATIONS

Election-related allegations range from minor infractions,

such as campaigning too close to the polls, to sophisticated criminal

enterprises aimed at ensuring the election of corrupt public officials.

Such matters present obvious and wide disparities in their adverse

social consequences. As the Department has long strived to achieve

a nationally consistent response to electoral fraud, it is important that

federal investigators and prosecutors avail themselves of the expertise

and institutional knowledge that the Public Integrity Section

possesses in this sensitive area of law enforcement.

1. Consultation Requirements

The Department of Justice has a long-standing consultation

policy for election crime investigations involving violations of the

statutes discussed in this chapter. The policy is set forth in Section

9-85.210 ofthe U.S.DEP’T OF JUSTICE,UNITED STATES ATTORNEYS’

MANUAL (USAM). The purposes of the consultation policy are to

assist federal prosecutors and investigators in determining whether

there is a sufficient factual legal basis to commence a federal criminal

investigation, and, if so, to ensure that the investigation is timed in a

manner that does not interfere with the adjudication of the election

itself.

Upon receipt of an election fraud allegation, a United States

Attorney’s Office may, if the Office considers it warranted, request
For purposes of election crime matters, a “preliminary 

39

investigation” includes those investigative steps necessary to flesh out the

complaint in order to determine whether a federal crime may have

occurred, and, if so, whether federal prosecution of that offense is

appropriate. It generally involves an FBI interview of the complainant and

follow-up on investigative leads arising from the interview. See, in this

connection, the FBI’s Manual of Investigative Operations and Guidelines,

§ 56-9.2.

In connection with election crime matters, a “full-field” FBI 40

investigation is, essentially, anything beyond a preliminary investigation.

It is typically a broad-based investigation that often accompanies a grand

jury investigation. Its purpose is to develop sufficient evidence of federal

crimes to support federal charges.

88

the FBI to conduct a preliminary investigation. Consultation with the

Public Integrity Section is not required at this initial stage, although

it is always welcome.

If the results of the preliminary investigation suggest that 39

further investigation is warranted, the United States Attorney’s Office

should contact the Public Integrity Section. Specifically, consultation

with the Section, and with higher-level Department officials in the

event agreement is not reached is required for all grand jury and “fullfield” investigations of election fraud. Consultation with Public 40

Integrity is also required prior to filing any complaint or information,

or prior to requesting a grand jury to act upon a proposed indictment,

that charges any of the election fraud offenses discussed in this

chapter.

In practice, consultation typically proceeds as follows:

• The results of the preliminary investigation are

submitted to FBI Headquarters and the Public Integrity

Section, together with the recommendation of the

United States Attorney’s Office as to whether further
89

investigation is warranted. At this point, if the matter

has merit, it is discussed informally between the

Section and the Assistant United States Attorney

responsible for the matter, and, on occasion, between

the Section and the FBI.

• The Public Integrity Section may suggest that

additional investigation be conducted before

determining whether a full-field or grand jury

investigation is warranted. The Section may also

request a preliminary investigation of a matter that has

been declined by a United States Attorney’s Office.

• If the Public Integrity Section agrees that a full-field

investigation and/or grand jury investigation of an

election fraud allegation is warranted, a communication, in the form of an e-mail confirming this

determination, is generally sent by the Section to the

Assistant United States Attorney. At this stage, the

Public IntegritySection also notifies FBI Headquarters

that it has approved the initiation of a full-field or

grand jury investigation of the matter. There is usually

a discussion at this point of whether the United States

Attorney’s Office is able to make a commitment to

prosecute any case that the investigation may generate,

and, if not, whether the Public Integrity Section will

handle the matter either jointly with the United States

Attorney’s Office or by itself.

• The initiation of any grand jury process in the matter,

including the issuance of subpoenas for election

documentation, requires prior consultation with the

Public Integrity Section. This consultation is often

done by phone, especially if speed is considered

necessary to preserve voting documentation. As a rule,
90

the Public Integrity Section will approve use of a grand

jury at the time it approves a full-field investigation.

• Once this consultation has occurred, the United States

Attorney’s Office investigates the matter as it deems

appropriate. While further consultation is not required

until the charging stage, the Section welcomes

questions and consultations regarding ongoing

investigations.

• All indictments charging election fraud must be

discussed with the Public Integrity Section before

submission to the grand jury, as well as all informations and criminal complaints.

• While acceptance of a plea agreement does not require

consultation, this is encouraged in order to ensure that

the plea agreement is consistent with those negotiated

in similar cases elsewhere and with other department

policies applicable with plea agreements. In addition,

it is recommended that the Section be consulted in the

case of pre-indictment pleas, although not required.

2. Urgent Reports and Press Releases

A United States Attorney’s Office that is conducting an

election fraud investigation should also submit urgent reports through

the Executive Office for United States Attorneys at each critical stage

of the investigation and ensuing prosecution. In addition, the filing

of criminal charges should be accompanied by a press release that has

been approved, when appropriate, by the Department’s Office of

Public Affairs.
 An exception to this rule might be warranted if the facts 41

indicate that the election officials are involved in an ongoing election

fraud scheme. 

91

3. Federal Seizure of State Election Materials

Federal custody of election materials is normally obtained by

grand jury subpoena. In taking custody of election documents,

election officials should not be deprived of documents necessary to

tally and recount the ballots and to certify the election results.

41

Accordingly, copies in lieu of originals should be accepted until the

state’s need for the documentation expires. Originals may eventually

be necessary for handwriting and other forensic analysis and for

evidentiary purposes.

4. Noninterference with Elections

The Justice Department’s goals in the area of election crime

are to prosecute those who violate federal criminal law and, through

such prosecutions, to deter corruption of future elections. The

Department does not have a role in determining which candidate won

a particular election, or whether another election should be held

because of the impact of the alleged fraud on the election. In most

instances, these issues are for the candidates to litigate in the courts

or to advocate before their legislative bodies or election boards.

Although civil rights actions under 42 U.S.C. § 1983 may be brought

by private citizens to redress election irregularities, the federal

prosecutor has no role in such suits.

In investigating an election fraud matter, federal law

enforcement personnel should carefully evaluate whether an

investigative step under consideration has the potential to affect the

election itself. Starting a public criminal investigation of alleged

election fraud before the election to which the allegations pertain has

been concluded runs the obvious risk of chilling legitimate voting and

campaign activities. It also runs the significant risk of interjecting the
92

investigation itself as an issue, both in the campaign and in the

adjudication of any ensuing election contest.

Accordingly, overt criminal investigative measures should not

ordinarily be taken in matters involving alleged fraud in the manner

in which votes were cast or counted until the election in question has

been concluded, its results certified, and all recounts and election

contests concluded. Not only does such investigative restraint avoid

interjecting the federal government into election campaigns, the

voting process, and the adjudication of ensuing recounts and election

contest litigation, but it also ensures that evidence developed during

any election litigation is available to investigators, thereby

minimizing the need to duplicate investigative efforts. Many election

fraud issues are developed to the standards of factual predication for

a federal criminal investigation during post-election litigation. 

The Department views any voter interviews in the pre-election

and balloting periods, other than interviews of a complainant and any

witnesses he or she may identify, as beyond a preliminary

investigation. A United States Attorney’s Office considering such

interviews must therefore first consult with the Public Integrity

Section. USAM 9-85.210. This consultation is also necessary before

any investigation is undertaken near the polls while voting is in

progress.

The policy discussed above does not apply to covert

investigative techniques, nor does it apply to investigations or

prosecutions of federal crimes other than those that focus on the

manner in which votes were cast or counted. However, if there is any

doubt about whether the policy may apply, we recommend that the

Public Integrity Section be consulted. 

Exceptions to this general rule of course exist. For example,

one exception may be appropriate when undercover techniques are

justified and the Department’s guidelines for undercover operations

have been met. Another exception may apply when it is possible to
In such cases, the Civil Rights Division’s Voting Section

42

determines if there is a risk that voting by minorities will be impeded in a

location specially covered by the Voting Rights Act. If so, the Voting

Section will ask that the location be certified for “federal observers.” Such

observers are sent to view conduct at the polls and report back through the

Voting Section; they have no role in the detection of election crimes not

involving racial animus.

93

both complete an investigation and file criminal charges against an

offender prior to the period immediately before an election. All such

exceptions require consultation with the Public Integrity Section, as

they involve action beyond a preliminary investigation.

5. Limitations on Federal Poll Watching

 

Federal agents may not be stationed at open polling places,

except in cases of discrimination covered by the Voting Rights Act,

or as part of the Civil Rights Division’s oversight obligations with

respect to the election system mandates enacted by the Help America

Vote Act.42

Control of polling places is governed by state laws that

regulate who is authorized to be inside a polling place. Many of these

laws have criminal penalties. Most states provide that no one except

voters, election administrators, and perhaps party representatives may

serve as poll watchers, or even approach closer than fifty to one

hundred feet from an open poll. Except in Illinois, state poll access

statutes do not contemplate that federal agents serve as poll watchers

or otherwise enter areas when polling is taking place. Therefore,

other than as specifically provided by the Voting Rights Act and other

civil rights laws, there is no statutory basis for federal personnel to

serve as poll watchers.

In fact, federal law provides criminal penalties for any federal

official who sends “armed men” to open polling locations. 18 U.S.C.

§ 592. Accordingly, the FBI’s Manual of Investigative Operations
94

and Guidelines, at § 56-8(6), provides that investigations in the

vicinity of open polls must first be approved by the Justice

Department.

6. Selective Prosecution Issues

The prosecution of certain types of electoral corruption can

occasionally present sensitive issues of selective prosecution. A

definitive analysis of the law in this area, in the context of a voter

fraud case, is contained in United States v. Smith, 231 F.3d 800 (11th

Cir. 2000).

F. SUGGESTIONS FOR SUCCESSFUL ELECTION

FRAUD CASE INVESTIGATIONS

Most of the general principles and procedures that govern

federal criminal investigations apply to the investigation of election

crimes. This section will discuss those investigative issues and

tactics that are unique to election fraud cases.

Election fraud prosecutions are usually fairly easy to present,

and the Department’s conviction rate has been quite good. These

prosecutions have proven to be a fast and effective method of

combating election corruption. Moreover, because the motive for

most election fraud is to corrupt the public office sought by those

committing the fraud, these cases also provide an avenue to address

other serious forms of public corruption.

If properly managed, election fraud cases are generally well

received by the public. Favorable public reaction is likely to generate

additional investigative leads in this sensitive area of criminal law

enforcement.
95

1. Getting Started

Several basic steps underlie most successful election fraud

investigations.

(a) Publicize your intent to prosecute election fraud

Most complaints that lead to prosecutable election fraud cases

come from participants in the political process, such as voters,

candidates, campaign workers, and poll officials. However, in places

where election fraud has been entrenched, there is often widespread

tolerance of election abuses among local law enforcement authorities.

This frequently leads to public cynicism, which must be overcome if

productive complaints are to be generated. The following steps can

help:

• Hold press conferences before important elections

 and announce that prosecution of election fraud is

 a federal law enforcement priority. 

• Ensure that Assistant United States Attorneys and

FBI Special Agents are accessible to the public

during and immediately after important elections

by publicizing the telephone numbers through

which the public can reach them.

 

• Contact local election administrators (registrars,

county and town clerks, boards of election, etc.)

and high-level state officials (the State Attorney

General’s Office, Secretary of State) to enlist their

support in detecting and reporting election abuses.

These people are generally dedicated public

servants who want to eliminate criminal election

abuses. They are also the custodians of important

records generated during the voting process.
96

(b) Be aware of the importance of voting

 documentation

The voting process generates voluminous documentary

evidence. Federal law requires that all voting documentation relating

to an election that includes a federal contest be retained for at least

twenty-two months after the election. 42 U.S.C. § 1974. The 1993

National Voter Registration Act extended this period to two years

for voter registration records generated under the Act. 42 U.S.C.

§ 1973gg-6(i). Because the federal retention periods are significantly

longer than normally required by state law, it is important to contact

all election administrators in the district at the beginning of a ballot

fraud investigation to be certain that they are aware of these federal

requirements.

Voting documentation includes voter registration cards,

absentee ballot applications, absentee ballot envelopes, tally sheets,

poll lists, and ballots. These materials are particularly important to

successful election crime investigations, since they contain

information that helps identify fraudulent voting transactions and

potential defendants. For example:

• Most states require persons seeking to vote to

provide personal information to election registrars, and to furnish a handwriting specimen for

comparison with the voter’s signature on the

registration form. These data can be used to

determine the authenticity of specific voting

transactions.

• In many states, voters must sign a poll list before

casting their ballots on election day. The validity

of a particular voting transaction can be

determined by comparing a voter’s signature at

the polls to the signature on his or her registration

card. Persons responsible for casting fraudulent
97

votes may be identified by comparing the poll list

signatures of known fraudulent voting transactions

to exemplars taken from suspects.

• States generally require voters to apply for

absentee ballots in writing. They also customarily

require an absentee voter to sign an oath

(generally on the ballot envelope) attesting to the

authenticity of the vote. These signatures can be

used to identify fraudulent voting transactions and

might also help identify potential defendants.

• Election officials are generally required to

maintain logs of absentee applications received

and approved, and of ballots issued, returned, and

challenged. Once a few fraudulent voting transactions have been identified, this information can

be used to identify the subjects with whom the

voters involved dealt, and to locate other voters

who also dealt with the same subjects.

• Election day tally sheets normally contain the

handwritten certification of the poll officials who

prepared them, and in many states these officials

are required to execute an oath attesting to the

authenticity and accuracy of the returns. These

documents may corroborate the identities of those

persons with official access to the tally sheets.

• Many states require voters who ask for help in

voting at the polls to execute affidavits identifying

the person they wish to accompany them into the

voting booth. This information can be used to

identify patterns of voter intimidation and voter

bribery.
98

(c) Consider the advantages of federal prosecution

Although the states have principal responsibility for

administering the election process, many state law enforcement

authorities are not well equipped to act effectively against ballot

fraud. State and local prosecutors should be advised of the federal

interest in prosecuting election fraud, and of the following factors that

favor federal prosecution of this type of case:

• Resources: Election fraud investigations usually

require a fairly large manpower commitment,

which the federal government is normally better

able to marshal than are local law enforcement

authorities.

• Grand jury: The development of election crime

cases requires an effective grand jury process

through which testimony can be secured from the

vulnerable witnesses who are frequently

encountered in these cases, and through which

necessary documentation can be secured.

• Broadly drawn venires: Election fraud is usually

best tried by juries that are not drawn from the

immediate location where the alleged fraud

occurred. Federal venires are normally drawn

from wider geographic areas than are state or local

venires.

• Political detachment: State and local prosecutors

are usually more closely linked to local politics

than are federal prosecutors. Federal prosecution

of election crime may therefore be viewed by the

public and the media as more impartial.
99

(d) Focus on areas vulnerable to election fraud

Election crime is most apt to occur in jurisdictions where

there is substantial conflict among political factions, where voters are

fairly equally distributed among factions, where local officials wield

substantial power, and where there is a high degree of voter apathy.

Jurisdictions meeting these criteria should be identified, and

complaints coming from them given special attention in allocating

investigative resources.

(e) Develop your investigative strategy early

The typical election fraud scheme involves many levels of

participants performing a variety of tasks on behalf of political

operatives. For example, vote-buying schemes usually have “haulers”

who take voters to the polls and pay them; “lieutenants” or “bankers”

who obtain and distribute the money to the haulers; “captains” who

coordinate the activities of the haulers; and “checkers” who

accompany the voters into the voting booth to assure that they vote

“correctly.”

It is important to attempt at an early stage to identify as many

of the participants in the scheme as possible and to assess their

relative culpability. It is also helpful to identify the likely motive

behind the scheme. An investigative strategy can then be developed

which targets low-level participants for the purpose of encouraging

them to be witnesses against more highly placed participants in the

election scheme. These less culpable participants might also provide

evidence and leads regarding the illegal activity or scheme motivating

the election fraud.

2. The Investigation

Election fraud investigations fall into two stages: a preliminary investigation, followed by a grand jury investigation along with

an FBI full-field investigation. Preliminary investigations are usually
100

initiated by the United States Attorney’s Office or FBI office

that received the complaint. Consultation with the Public Integrity

Section is required before grand jury and FBI full-field investigations

are initiated. FBI participation must also be approved by FBI

Headquarters.

(a) Preliminary investigation

A preliminary investigation typically involves interviewing

the complainant, then conducting a sufficient investigation to:

• Identify the crime allegedly committed;

• Determine whether that crime is prosecutable

under federal law;

• Evaluate the need for federal intervention as a

function of – 

< the extent to which the crime may have

impacted adversely on a federal election,

< the extent to which the crime corrupted

the registration or voting process, and

< the desire and capability of local law

enforcement officials to handle the case;

• Identify persons who may have participated in the

scheme; and

• Identify, if possible, a few specific fraudulent

voting transactions.

Afterthe results of the preliminary investigation are reviewed

by the United States Attorney’s Office, they are forwarded to the
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Public Integrity Section and FBI Headquarters, along with the United

States Attorney’s recommendation as to whether further investigation

is warranted. At this point, the matter will usually be discussed

between attorneys in the Public Integrity Section and the United

States Attorney’s Office handling the matter. After this consultation,

a grand jury and/or full-field investigation will be initiated in

appropriate cases.

(b) Grand jury and FBI full-field investigations

The purposes of grand jury and FBI full-field investigations

are to develop sufficient evidence against specific subjects to support

criminal charges. These investigations are often time- consuming and

labor-intensive, and generally involve obtaining and examining many

election documents. Investigative approaches for two common types

of election fraud are discussed below.

3. Investigating Two Types of Election Fraud

The most frequently encountered election frauds are absentee

ballot fraud and ballot-box stuffing. Strategies for investigating these

frauds are similar, but not identical.

(a) Absentee ballot frauds

Absentee ballot frauds involve the corruption of absentee

voting transactions through such means as bribery, forgery,

intimidation, and voter impersonation. Investigating these frauds

involves identifying specific fraudulent voting transactions,

interviewing voters who were corrupted or defrauded, using these

persons as witnesses to prosecute those who corrupted or defrauded

them, and flipping those defendants to make cases against

higher-level targets. The typical investigative approach is to:

• Subpoena relevant absentee ballot documentation.

This documentation includes applications for
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absentee ballots; absentee ballots; envelopes in

which ballots are placed (usually called a

“privacy” or an “oath” envelope); outer envelopes

forwarding ballots for tabulation (usually called a

“mailer”); logs kept by election officials of

applications issued, applications received, ballots

issued, ballots returned, and ballots challenged;

and the permanent voter registration cards for the

voters ostensibly involved.

• Analyze election documents. 

Ballot applications and oath envelopes generally

contain three key items that often reveal

questionable voting transactions: the voter’s

purported signature, signatures of witnesses or

notaries, and the address where the ballot package

was sent. Examples of significant data are

common notaries and witnesses; mismatches of

voters’ signatures on absentee ballot applications,

ballot envelopes, or registration cards; and

applications directed to be sent to addresses other

than the addresses of the voters.

• Identify similar transactions. 

If the preliminary investigation identifies specific

questionable voting transactions, the document

analysis should be directed at identifying voting

transactions having similar characteristics, such as

the same handwriting, witnesses, or addresses to

which absentee ballot packages were sent.

• Interview voters allegedly involved. 

After identifying questionable voting transactions,

the voters whose names appear on the documents

should be interviewed to determine whether they

voted, and if so, under what circumstances (for
These very factors, on the other hand, demonstrate to the 43

jury the susceptibility of these persons to manipulation, which is often

important evidence in the case.

103

example, whether they were paid, intimidated, or

not consulted).

• Compare handwriting exemplars of subjects.

Handwriting exemplars of persons suspected of

forging absentee ballot documents should be

obtained and compared with the handwriting on

those questioned documents.

• Develop multiple witnesses. 

Voters involved in fraudulent voting transactions

are usually poorly educated, often intimidated by

defendants and courtrooms, and generally may not

make strong witnesses. Successful prosecution 43

of this type of case normally requires the

testimony of several voter-witnesses against each

defendant.

(b) Ballot-box stuffing cases

These cases involve the insertion into ballot boxes of invalid,

fraudulent, or otherwise illegal ballots. All ballot-box stuffing

schemes necessarily involve poll officials, since access to voting

documents is essential to this type of fraud and is controlled by state

law. Ballot-box stuffing investigations seek to identify fraudulent

voting transactions and to link specific poll officials to them. The

general investigative methodology is to:

• Subpoena election documents: 

Obtain and examine the poll lists or other

documentation that voters sign when entering the
 Successful prosecution of those schemes may require the 44

cooperation of a poll official or other “insider.”

104

polls; the registration cards for voters residing in

the target precinct, any paper or punch card

ballots, and any tally sheets prepared by the poll

officials reporting the election results.

 • Examine election documents. 

Examine poll lists for similar handwriting, giving

special attention to names entered at times when

voting activity was slow (such as mid-morning

and early afternoon) and shortly before the polls

closed.

 • Compare voters’ signatures. 

Compare signatures on the poll list with corresponding permanent registration cards to identify

voters who may not have cast the ballots

attributed to them.

 

• Take handwriting exemplars. 

Take exemplars from each poll official having

access to the ballot box, and then compare them

with questionable signatures of alleged voters.

• Interview voters. 

Interview the voters whose ballots were used in

the scheme to determine whether they voted at the

polls, and, if so, under what circumstances.44

4. A Few Cautions

Election fraud investigations raise a number of issues not

normally encountered in other criminal investigations. Federal
105

prosecutors and investigators should keep the following principles in

mind:

• Respect the integrity of the polls. 

All states define by statute those persons entitled to be

inside the polls during an election. Most state poll

access laws do not permit federal law enforcement

officials access to open polling places. Asking federal

investigators to enter open polls risks violating the

sovereignty that the states have in this area, and might

lead to confrontations among poll officials, local

police, and federal agents. It also risks violating a

federal statute that prohibits sending armed federal

agents to the polls. 18 U.S.C. § 592.

• Noninterference with the voting process. 

States use many types of documentation in conducting

elections (such as registration cards, voter lists, poll

books, and voting machines), and in tabulating and

certifying the results (such as ballots, tally sheets, and

absentee voting materials). Subpoenas for such

documentation should be timed, and compliance

procedures developed, so as not to deprive election

officials of records they need to tabulate votes and

certify election returns.

• Need for probable cause before opening sealed ballots.

Absentee ballots might come into the possession of

federal officials while still sealed in the envelopes

bearing the names of the voters who ostensibly marked

them. Also, a few states provide for some types of

paper ballots to be numbered in a way that corresponds

with the order of signatures on a poll list. In either

situation, marked ballots can be attributed to individual

voters. This is particularly useful in cases involving

suspected fraud in the marking or alteration of the
106

ballot document itself. However, since voted ballots

are documents in which individuals have an

expectation of privacy, sealed ballots should not be

opened without satisfying the Fourth Amendment’s

probable cause standard. Accordingly, a search warrant should be obtained before taking investigative

steps that would result in linking individual ballots to

the voters who allegedly cast them. Alternatively, if

the individuals whose names appear on the sealed

ballot envelopes deny that they voted, these individuals

may be asked if they are willing to open the ballot

envelopes ostensibly “voted” by them.

5. Conclusion

Election fraud cases can be successful and uncomplicated.

However, prosecutors and investigators should use great care to avoid

the pitfalls peculiar to these types of cases. Close consultation with

the Public Integrity Section and its Election Crimes Branch, although

not required after grand jury and FBI full-field investigations have

been approved, can help avoid those pitfalls, develop effective

investigative and legal strategies, and increase the likelihood of

prosecutive success. 
107

CHAPTER THREE

PATRONAGE CRIMES

A. HISTORICAL BACKGROUND

Federal jurisdiction over patronage crimes is usually attained

by virtue of the federal funds involved in a government job or benefit

that is used to induce or reward partisan activity by government

employees. Over the past century, Congress has enacted, at roughly

fifty-year intervals, three landmark pieces of legislation in this area.

Until the Hatch Act reform amendments of 1993, most federal

laws dealing with patronage abuses of government personnel and

programs derived from either the 1883 Pendleton Civil Service Act

or the 1939 Hatch Act. The Pendleton Act aimed at dismantling the

partisan “spoils system” that existed in the executive branch of the

federal government at the time; it created a merit civil service, and

enacted the Civil Service Commission to ensure nonpartisan federal

employment. The Act also contained four criminal provisions

designed to protect federal employees against political manipulation.

These provisions, now codified at 18 U.S.C. §§ 602, 603, 606, and

607, prohibit political shakedowns of federal employees, political

activity in federal workspace, and politically motivated threats and

reprisals against federal employees.

In 1907, President Theodore Roosevelt promulgated an

executive order, known as Civil Service Rule No. 1, that prohibited

most active campaigning and electioneering by merit civil servants.

Over the next thirty years, the Civil Service Commission decided

approximately 2,000 administrative cases involving alleged violations

of this executive order, and in the process defined the scope of

permissible political activities.
108

In 1939, the Hatch Act codified this ban on active partisan

campaigning by executive branch employees, and incorporated those

Civil Service Commission rules that defined permissible and

impermissible activities. 5 U.S.C. § 7324 (repealed 1993). The

Hatch Act also provided criminal penalties for various forms of

political abuses in the administration of federal law, policies, and

programs; these criminal provisions are now codified at 18 U.S.C.

§§ 595, 598, 600, 601, 604, and 605.

In 1993, Congress enacted its third major piece of civil service

legislation, which significantly reduced the scope of the 1939 Hatch

Act ban on political activities. 5 U.S.C. §§ 7321-7326. The 1993

Hatch Act amendments permit all federal employees in the executive

branch (other than those working in specified law enforcement or

national security agencies) to engage in overt partisan activity,

including the solicitation of political contributions from colleagues

under certain circumstances. Although the amendments included a

new anti-patronage provision, the overall goal was to remove the

statutory shield, deemed no longer necessary, that had separated

partisan politics and federal employment for over half a century.

Current federal law limits patronage practices and partisan

political considerations in the federal civil service and in the

administration of federal laws and programs. In extreme cases,

patronage abuses may constitute a conspiracy to defraud the United

States in the operation of a federally funded program. See, e.g.,

United States v. Pintar, 630 F.2d 1270 (8th Cir. 1980); Langer v.

United States, 76 F.2d 817 (8th Cir. 1935). The Supreme Court,

through a line of cases dating back to the 1970s, has held that

personnel decisions involving the award, termination, or modification

of employment conditions of ministerial positions in the public sector

cannot be made solely on the basis of partisan association or partisan

loyalty. To do so violates the First Amendment rights of public

employees or those seeking such positions. Rutan v. Republican

Party of Illinois, 497 U.S. 62 (1990); Branti v. Finkel, 445 U.S. 507

(1980); Elrod v. Burns, 427 U.S. 347 (1976). On the other hand, the
109

Court recognized that partisan considerations may constitutionally

play a part in personnel decisions involving public employees who

occupy policymaking positions or positions involving confidential

relationships to senior public officers, when partisan loyalty is a

reasonably necessary element of the job. Id. The distinction between

ministerial public positions and those that involve policy formulation

is difficult, and has, in the past, been left by the courts largely to a

case-by-case analysis. Nevertheless, the distinction is important in

assessing the scope and purpose of federal criminal laws addressing

illegal patronage. 

B. STATUTES

The text of the criminal statutes discussed in this section is

printed in Appendix C. Each of these statutes carries, in addition to

the prison term noted, fines under 18 U.S.C. § 3571.

1. Limitations Based on Federal Employment or

Workspace

(a) Solicitation of political contributions:

 18 U.S.C. § 602 

Section 602 prohibits a United States Senator or

Representative, a candidate for Congress, officer or employee of the

United States, or person receiving compensation for services from the

United States Treasury, from knowingly soliciting any contribution

from any other such officer, employee, or person, except as permitted

under the 1993 Hatch Act amendments. The statute applies only to

contributions made to influence a federal election. Violations are

punishable by imprisonment for up to three years.

Section 602 has been interpreted by the courts as

criminalizing aggravated forms of political “shakedowns.” United

States v. Wurzbach, 280 U.S. 396, 398 (1930) (statute prohibits

exerting “pressure for money for political purpose”); Ex parte Curtis,
110

106 U.S. 371, 374 (1882) (statute protects federal employees against

political “extractions through fear of personal loss”). See also Brehm

v. United States, 196 F.2d 769 (D.C. Cir. 1952); and United States v.

Burleson, 127 F. Supp. 400 (E.D. Tenn. 1954).

The Criminal Division has interpreted Section 602 as not

prohibiting a federal employee’s solicitation of voluntary political

contributions from other nonsubordinate federal employees.

However, because of the potential for coercion, express or implied,

that inheres in the supervisor-subordinate relationship, contributions

solicited from a subordinate are not considered “voluntary.” The

1993 Hatch Act amendments reflect this interpretation; both the

criminal and civil codes, as amended, expressly prohibit the

solicitation of subordinates, while allowing certain solicitations of

colleagues. The 1993 law further amended Sections 602 to exempt

the soliciting activities authorized by the new civil Hatch Act

provisions, 5 U.S.C. §§ 7323 and 7324.

All officers and employees of the executive, judicial, or

legislative branches of the federal government are within the class

reached by Section 602. The statute does not reach persons who are

paid with federal funds that have lost their “federal” character, such

as state or local government employees or persons paid under federal

grants. However, 18 U.S.C. §§ 600 and 601 may cover such persons.

The Federal Election Campaign Act Amendments of 1979

limited Section 602 in two respects. First, the word “knowingly” was

added to clarify that the solicitor must have been aware of the federal

status of the person solicited. Second, the critical term “contribution”

in Section 602 was linked to the definition of this term in FECA,

at 2 U.S.C. § 431(8), which restricts “contributions” to financial

activities intended to influence a federal election.
This prohibition was also added by the 1993 law to the new

45

civil Hatch Act provision. 5 U.S.C. § 7323(a). 

111

(b) Making political contributions: 18 U.S.C. § 603

Section 603, like Section 602, reaches only contributions

made to influence federal elections. The statute prohibits any officer

or employee of the United States, or a person receiving compensation

for services from money derived from the United States Treasury,

from giving a contribution to any other such officer, employee, or

person, or to any United States Senator or Representative, if the

person receiving the contribution is the donor’s “employer or

employing authority.” Although modified by the 1993 Hatch Act

amendments, Section 603's basic prohibition against political

donations between subordinates and supervisors was retained.45

Section 603 applies to all congressional staff and White House

employees, as well as to civil service personnel. Violations are

punishable by imprisonment for up to three years.

The Department of Justice Office of Legal Counsel has

interpreted Section 603 as not reaching voluntary contributions made

by rank-and-file employees of the executive branch of the

government to campaign committees authorized by an incumbent

President or Vice President, provided that such donations are given

in compliance with the provisions of the 1993 Hatch Act reform

amendments (i.e., voluntarily and while the donor is off duty, not in

a federal office space, and not in uniform or in a government-owned

vehicle).

(c) Intimidation to secure political contributions: 

 18 U.S.C. § 606

Section 606 makes it unlawful for a United States Senator,

United States Representative, or federal officer or employee to

discharge, demote, or promote another federal officer or employee, or
112

to threaten or promise to do so, for making or failing to make “any

contribution of money or other valuable thing for any political

purpose.” Violations are punishable by imprisonment for up to three

years.

Section 606 encompasses coerced donations of anything of

value (including services) from federal employees to a candidate for

any elective office – federal, state, or local. This statute should be

used in lieu of Section 602 whenever a federal employee is actively

threatened with an adverse change to his or her conditions of

employment to induce a political contribution. This is also addressed

in the discussion of 18 U.S.C. § 610 below.

In the Criminal Division’s view, Section 606 was not intended

to prohibit the consideration of political factors (such as ideology) in

the hiring, firing, or assignment of the small category of federal

employees who perform policymaking or confidential duties for the

President or Members of Congress. In the executive branch, these

senior officials either hold jobs on Schedule C of the excepted

service, which by law may be offered or terminated on the basis of

such factors, or hold direct presidential appointments and by statute

serve at the President’s pleasure. Section 606 does, however, protect

all federal officials, including senior policymakers, from being forced

by job-related threats or reprisals to donate to political candidates or

causes.

(d) Coercion of political activity: 18 U.S.C. § 610

Section 610 is a relatively new anti-intimidation statute

enacted as part of the 1993 Hatch Act amendments to provide

additional protections against political manipulation of the federal

workforce.

The statute makes it a crime to intimidate, threaten, command,

or coerce any employee of the executive branch in order to induce the
See also the voter intimidation statute enacted by the 1993 46

National Voter Registration Act, 42 U.S.C. § 1973gg-10(1), discussed in

Chapter Two.

113

victim to engage or not engage in any political activity. The statute

46

also prohibits attempts. It applies to all elections – federal, state, and

local. Violations of Section 610 are punishable by imprisonment for

up to three years.

Section 610 expressly includes within the broad phrase “any

political activity” any conduct that relates to voting, to contributing,

or to campaigning. Specifically, Section 610 provides that “any

political activity” includes, but is not limited to: (1) voting or not

voting for any candidate in any election; (2) making or refusing to

make any political contribution; and (3) working or refusing to work

on behalf of any candidate. The statute thus encompasses

intimidation directed at inducing any form of political action.

The statute complements 18 U.S.C. § 606, which addresses

coerced political donations from employees in any of the three

branches of the federal government. Section 610 covers a broader

range of conduct, while Section 606 protects a larger class of

employees.

The inclusion of Section 610 in the 1993 Hatch Act

amendments was in recognition of widely held concerns, both in

Congress and in federal law enforcement agencies, that any lessening

of the Hatch Act’s prohibition on political activities may have the

unintended effect of increasing the risk of political coercion and

manipulation of federal employees. See 139 CONG. REC. H6817

(daily ed. Sept. 21, 1993).
114

(e) Place of solicitation: 18 U.S.C. § 607

Section 607 makes it unlawful for anyone to solicit or receive

a political donation in any room, area, or building where federal

employees are engaged in official duties. The prohibition covers

political solicitations that are delivered bymail, as well as those made

in person. United States v. Thayer, 209 U.S. 39 (1908). Violations

are punishable by imprisonment for up to three years.

The Bipartisan Campaign Reform Act of 2002 clarified an

ambiguity concerning the reach of this statute to solicitations and

receipts of political donations that were not intended to influence

federal elections, i.e., donations to benefit nonfederal candidates and

the nonfederal activities of political parties and other organizations.

Under the revised text, which became effective November 6, 2002,

Section 607 reaches the solicitation and receipt of all political funds

within areas where federal personnel are engaged in official duties.

Section 607 covers all three branches of the federal

government. However, it specifically exempts any contribution for

a Member of Congress received by the Member’s congressional staff

in his or her federal office, provided that there had been no request for

the contribution to be delivered to the office, and provided further

that the contribution is quickly forwarded to the Member’s campaign

committee. 

Violations of Section 607 require proof that the defendant was

actively aware of the federal character of the place where the

solicitation took place or was directed. The employment status of the

parties to the solicitation is immaterial; it is the employment status of

the persons who routinely occupy the area where the solicitation

occurs that determines whether Section 607 applies.

Prosecutable violations of Section 607 may arise from

solicitations that can be characterized as “shakedowns” of federal

personnel. Thus, Section 607 reaches solicitations by nonfederal
115

employees, filling a void not covered by Section 602, and also

reaches shakedowns of congressional employees, who are not covered

by the anti-intimidation prohibition contained in Section 610, that

was enacted as part of the 1993 Hatch Act reforms.

When federal premises are leased or rented to candidates in

accordance with General Services Administration regulations, the

premises are not considered “federal” for the purposes of this statute.

The same holds true for United States Postal Service post office

boxes. Thus, under appropriate circumstances, political events may

be held in leased or rented portions of federal premises, and political

contributions may be sent to and accepted in United States post office

boxes.

Most matters that have arisen under Section 607 have

involved computer-generated direct mail campaigns in which

solicitation letters are inadvertently sent to prohibited areas. Such

matters are unlikely to warrant prosecution. Instead, the Criminal

Division usually advises the person or entity involved of the existence

of the prohibition in Section 607, and requests that the mailing lists

be purged of addresses that appear to belong to the federal

government. A systematic refusal or failure to comply with formal

warnings of this kind can serve as a basis for prosecution.

2. Limitations Based on Federal Programs and Benefits

(a) Promise or deprivation of federal employment

 or other benefit for political activity: 

18 U.S.C. § 600 and § 601

Section 600 makes it unlawful for anyone to promise any

employment, position, contract, or other benefit derived in whole or

in part from an Act of Congress, as consideration, favor, or reward for

past or future political activity, including support for or opposition to

any candidate or political party in any election. The statute applies to

all candidates – federal, state, and local.
Section 601 has a parallel provision in 18 U.S.C. § 665(b), 47

which covers programs under the Comprehensive Employment and

Training Act.

116

Section 601 makes it unlawful for any person knowingly to

cause or attempt to cause any other person to make a contribution on

behalf of any candidate or political party by depriving or threatening

to deprive the other person of employment or benefits made possible

in whole or in part by an Act of Congress. The statute defines

“contribution” as encompassing anything of value, including services.

Like Section 600, it applies to contributions at federal, state, and local

levels.

Violations of these statutes are one-year misdemeanors.

Although in 1976 Congress increased the fines under Sections

600 and 601 from $1,000 to $10,000, fines under these statutes

are actually governed by the general criminal fine structure in

18 U.S.C. § 3571.

Sections 600 and 601 are the two principal statutes providing

federal jurisdiction over situations when corrupt public officials use

government-funded jobs or programs to advance a partisan political

agenda rather than to serve the public interest. Both statutes reach

employment and benefits that are funded by Congress in whole or in

part. The statutes are not restricted to federal jobs, although Section

601 specifically covers threats to terminate federal employment.47

Sections 600 and 601 thus protect a broader class of employees than

Section 610, which is restricted to federal employees in the executive

branch. In addition, there is no minimum amount of federal funds

that must be involved in the employment or benefit on which the

corrupt demand focuses to trigger a violation.

The principal distinction between Sections 600 and 601 is

whether the coerced political activity is demanded as a condition

precedent to obtaining a publicly funded job or benefit (Section 600),
117

or occurs in the form of a threat to terminate a federal benefit or job

the victim already possesses (Section 601). Section 601 requires

proof that the motive for the adverse job action was political and not

inadequate performance or some other job-related factor; it is a lesser

included offense of Section 606 when the threatened employee is a

federal civil servant.

As with Section 606, the Criminal Division believes that

Sections 600 and 601 were not intended to reach the consideration of

political factors in the hiring or termination of the small category of

senior public employees who perform policymaking or confidential

duties for elected officials of federal, state, or local governments.

With respect to such employees, a degree of political loyalty may be

considered a necessary aspect of competent performance. Compare

Connick v. Myers, 461 U.S. 138, 148-49 (1983) (upholding dismissal

of an allegedly disruptive assistant district attorney), with Rutan

v. Republican Party of Illinois, 497 U.S. 62 (1990) (patronage

promotions and hirings of rank-and-file public employees violate

rights of speech and association); Branti v. Finkel, 445 U.S. 507,

517-19 (1980) (public employees may not be discharged based solely

on their political beliefs unless party affiliation is an appropriate

requirement for effective performance); and Elrod v. Burns, 427 U.S.

347, 367 (1976) (patronage dismissals of nonpolicymaking public

employees violate the First and Fourteenth Amendments).

Although Sections 600 and 601 are misdemeanors, there

are alternative felony theories of prosecution that may be applicable

to conduct implicating these statutes. Such theories include:

• The Travel Act, 18 U.S.C. § 1952, in states having

statutes that broadly define bribery and extortion.

• Honest services mail fraud, 18 U.S.C. §§ 1341 and

1346, to the extent that the patronage scheme results in

the breach of a public official’s fiduciary duty of

honesty.
118

• Conspiracy to defraud the United States, 18 U.S.C.

§ 371, to the extent that the evidence shows a

conspiracy to defraud the public of the fair and

impartial administration of a federal grant or program.

• Bribery concerning federally funded programs,

18 U.S.C. § 666. However, the Third Circuit has held

Section 666 inapplicable to a scheme to demand

nonpecuniary political services from public employees.

United States v. Cicco, 938 F.2d 441 (3d Cir. 1991).

The Cicco case illustrates the use of alternative theories to

prosecute local public officials for corrupt patronage abuses.

Unfortunately, the case also illustrates the difficulties involved in

prosecuting patronage crimes under current law. Although the jury

convicted the defendants under both Section 601 and Section 666, the

two convictions were ultimately reversed on appeal.

In Cicco, local public officials demanded political services

from part-time public employees, and when the employees refused to

perform the services, the employees were denied permanent

employment. The patronage scheme was charged under Section 601,

and also under Sections 666, 1341, 1346, and 1952. All four

prosecutive theories went to the jury, which convicted the defendants

on the Sections 601 and 666 counts. In the defendants’ first appeal,

the Third Circuit reversed the Section 666 convictions, holding that

Congress did not intend this statute to apply to the extortion of

political activity rather than money. Id. In a subsequent appeal, the

Third Circuit held that Section 601 does not apply if there are no

express threats or specific promises made to induce political services

from public employees. United States v. Cicco, 10 F.3d 980 (3d Cir.

1993).
119

(b) Promise of appointment by candidate: 

 18 U.S.C. § 599

This statute prohibits a candidate for federal office from

promising appointments “to any public or private position or

employment” in return for “support in his candidacy.” It is one of the

few federal criminal laws specifically addressing campaign-related

activity by candidates. It is a class statute that applies only to

misconduct by federal candidates. Willful violations are two-year

felonies; nonwillful violations are misdemeanors.

Section 599 has potential application when one candidate

attempts to secure an opponent’s withdrawal, or to elicit the

opponent’s endorsement, by offering the opponent a public or private

job. See also 18 U.S.C. § 600, discussed above. It also applies to

offers of jobs by federal candidates to others to secure endorsements.

While Section 599 does not reach offers or payments of money to

secure withdrawal or endorsements, if the payment was not reported

accurately, such matters may be prosecutable as a reporting violation

of FECA under 2 U.S.C. §§ 434(b) and 437g(d).

(c) Interference in election by employees of federal,

state, or territorial governments: 18 U.S.C. § 595

Section 595 was enacted as part of the original 1939 Hatch

Act. The statute prohibits any public officer or employee, in connection with an activity financed wholly or in part by the United States,

from using his or her official authority to interfere with or affect the

nomination or election of a candidate for federal office. This statute

is aimed at the misuse of official authority. It does not prohibit
However, such political activities must be consistent with 48

the Hatch Act restrictions on political activity, as amended by the 1993

Hatch Act amendments, which will be discussed later in this chapter.

120

normal campaign activities by federal, state, or local employees.48

Violations are one-year misdemeanors.

Section 595 applies to all public officials, whether elected or

appointed, federal or nonfederal. For example, an appointed

policymaking government official who bases a specific governmental

decision on an intent to influence the vote for or against an identified

federal candidate violates Section 595. The nexus between the

official action and an intent to influence must be clear to establish a

violation of this statute.

(d) Coercion by means of relief appropriations: 

 18 U.S.C. § 598 

Section 598 prohibits the use of funds appropriated by

Congress for relief or public works projects to interfere with, restrain,

or coerce any person in the exercise of his or her right to vote in any

election. Violations are one-year misdemeanors.

(e) Solicitation from persons on relief: 

 18 U.S.C. § 604

Section 604 makes it unlawful for any person to solicit or

receive contributions for any political purpose from any person

known to be entitled to, or receiving compensation, employment, or

other benefit provided for or made possible by an Act of Congress

appropriating funds for relief purposes. Violations are one-year

misdemeanors.
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(f) Disclosure of names of persons on relief: 

 18 U.S.C. § 605

Section 605 prohibits the furnishing or disclosure, for any

political purpose, to a candidate, committee, or campaign manager,

of any list of persons receiving compensation, employment, or

benefits made possible by any Act of Congress appropriating funds

for relief purposes. It also makes unlawful the receipt of any such list

for political purposes. Violations are one-year misdemeanors.

3. Permissible Political Activity under the Hatch Act, as

 Amended: 5 U.S.C. § 7323 and § 7324

Although the 1939 Hatch Act consisted mostly of criminal

provisions, it became widely known as a result of its one civil

provision, which limited active partisan politicking by executive

branch employees. 5 U.S.C. § 7324(a)(2) (repealed). This restriction

on overt politicking lasted over fifty years, during which it was

challenged on both constitutional and public policy grounds.

The constitutional challenges were unsuccessful. Civil Service

Commission v. Letter Carriers, 413 U.S. 548 (1973); United Public

Workers v. Mitchell, 330 U.S. 75 (1947). The public policy

challenges were successful in part, and ultimately led to the 1993

Hatch Act reforms, which substantively changed the Hatch Act

politicking restrictions.

The 1993 legislation lifted the original ban on taking “an

active part in political management or in political campaigns” for

most employees of the executive branch. However, it continued the

ban for employees of the following law enforcement and intelligence

agencies:

Federal Election Commission

Federal Bureau of Investigation

Secret Service

Central Intelligence Agency
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National Security Council

National Security Agency

Defense Intelligence Agency

Merit Systems Protection Board

Office of Special Counsel

Office of Criminal Investigation of the Internal Revenue

 Service

Office of Investigative Programs of the United States

 Customs Service

Office of Law Enforcement of the Bureau of Alcohol,

 Tobacco, and Firearms

National Geospatial-Intelligence Agency

Office of the Director of National Intelligence.

5 U.S.C. § 7323(b)(2)(B)(i). The ban is also retained for

career members of the Senior Executive Service, 5 U.S.C.

§ 7323(b)(2)(B)(ii), and for employees of the Criminal Division of

the Department of Justice, 5 U.S.C. § 7323(b)(3).

With the foregoing exceptions, federal employees are now

permitted to hold positions in political party organizations; however,

they are still precluded from becoming partisan candidates in

elections to public office. 5 U.S.C. § 7323(a)(3). In addition,

although solicitations of the general public are still barred, the new

law permits, under certain circumstances, employees who are

members of a union or employee organization to solicit fellow

members for contributions to the organization’s political committee.

§ 7323(a)(2). 5 C.F.R. Part 734.

A violation of the Hatch Act’s politicking ban is not a federal

crime; it is a personnel infraction. The statute is enforced by the

United States Office of Special Counsel and by the Merit Systems

Protection Board. 5 U.S.C. §§ 1204 and 1212.

Active partisan campaigning in violation of the Hatch Act can

lead to termination from federal employment, or thirty days’
123

suspension if the Merit Systems Protection Board recommends a

lesser penalty. 5 U.S.C. § 7326.

The partisan activity currently prohibited for employees of the

specifically designated law enforcement agencies listed above is

taking “an active part in political management or in political

campaigns.” Both the amended and original statutes expressly

define this phrase to include those acts of “political campaigning”

that were prohibited by the Civil Service Commission prior to

July 19, 1940, the date the original Hatch Act went into effect.

5 U.S.C. § 7323(b)(4); 5 U.S.C. § 7324(a)(2) (repealed 1993);

5 C.F.R. §§ 733.121 – 733.124.

Although a subject of some unfortunate confusion, the Hatch

Act ban was never intended to apply to an employee’s expression of

personal opinion, whether given privately or publicly, on political

candidates and issues. This basic right of expression was recognized

in the original 1939 Hatch Act, former 5 U.S.C. § 7324(a)(2). It was

reaffirmed by two appellate decisions, which reversed Hatch Act

enforcement actions based on an employee’s public expression of

political opinion. See Biller v. Merit Systems Protection Board, 863

F.2d 1079 (2d Cir. 1988); Blaylock v. Merit Systems Protection

Board, 851 F.2d 1348 (11th Cir. 1988). Finally, the principle was

restated in the 1993 Hatch Act amendments. 5 U.S.C. § 7323(c)

(employees retain the right to express their opinions on political

candidates and issues). Thus, employees in designated law

enforcement agencies who remain covered by the Hatch Act

politicking ban retain the right to express their personal political

views.

All inquiries concerning possible violations of the Hatch Act

politicking ban should be directed to the Office of Special Counsel,

1120 Vermont Avenue, N.W., Washington, D.C. 20419

(202/653-8971).
124

C. POLICY AND PROCEDURAL CONSIDERATIONS

United States Attorneys’ Offices must consult the Public

Integrity Section before instituting grand jury proceedings, filing an

information, or seeking an indictment that charges patronage crimes.

USAM § 9-85.210. As with election fraud matters, these consultation

requirements are intended to assist federal prosecutors in this area and

to ensure nationwide uniformity in the enforcement of these criminal

patronage statutes.
125

CHAPTER FOUR

ELECTION DAY PROCEDURES

This chapter summarizes the Election Day Program that the

Department of Justice implements for the federal general elections.

Although this program has been in effect since 1970, it has taken on

added dimensions and importance since the creation of the

Department’s Ballot Access and Voting Integrity Initiative in 2002.

The Election Day Program is also implemented on a narrower

geographic basis in connection with other significant elections when

the Department determines that the need exists. 

There is a substantial federal interest in ensuring that

complaints of election abuses that are made during elections are

reviewed carefully and that appropriate action is taken promptly.

This review allows the Department to determine whether the alleged

facts warrant a criminal investigation, and, if so, of what nature

and scope. Accordingly, for the past 35 years the Department has

implemented an Election Day Program for those elections in which

the federal interest is greatest, namely, the federal general elections

that occur in November of even-numbered years. During these

elections, the entire United States House of Representatives and

one-third of the United States Senate are elected, along with,

every four years, the President and Vice President. In addition, some

federal anti-corruption statutes reach conduct occurring in state and

local elections. On a case-by-case basis, the Election Day Program

may be expanded to include nonfederal elections when adequate

predication exists to suggest a possible violation of federal criminal

law.

The Election Day Program calls upon the Department’s 93

United States Attorneys to designate one or more senior Assistant

United States Attorneys (AUSAs) to serve a two-year term as District

Election Officer (DEO) for his or her district. These AUSAs are
126

provided training and guidance by the Department in the areas

of election crimes and voting rights violations. Since 2002, the

Department’s Criminal Division and Civil Rights Division have

conducted annual training conferences for the DEOs prior to the

November general elections.

On October 8, 2002, the Department held the first of its

Voting Integrity annual conferences for federal prosecutors from

around the country on combating election fraud and voting rights

abuses. These annual conferences have become an important part of

the Department’s Ballot Access and Voting Integrity Initiative. In his

remarks to attendees at the 2002 conference, the Attorney General

provided a succinct statement of the significant public policy reasons

behind both the new Initiative and the Department’s Election Day

Program:

The strength of our democracy demands that we fulfill

the rights of both ballot access and ballot integrity –

to guarantee to every citizen, in accordance with the

law, the right to vote, and to every voter the right to

be counted.

So we come together today to renew our democratic

compact with the American people. We gather here,

in this Great Hall of Justice, to begin a new ethic of

enforcement of our voting rights.

On October 1st [2002], I issued a Directive to all

United States Attorneys announcing a

Department-wide Voting Access and Integrity

Initiative.

* * *

We have created this precedent-setting Voting Access

and Integrity Initiative for two reasons: first, to
127

enhance our ability to deter discrimination and

election fraud, and second, to prosecute violators

vigorously whenever and wherever these offenses

occur.

• Our goal is to work cooperatively with civil

rights leaders and state and local election

officials to prevent election offenses and to

bring violators to justice.

• Our means are a national mobilization of the

resources of the Department of Justice.

• And our message is clear and unequivocal: 

the Department of Justice will investigate and

prosecute voting rights and election fraud

offenses.

* * *

I have asked each U.S. Attorney and FBI Special

Agent in Charge to meet with state officials who

handle election violations in each district, in order

to underscore the Department’s commitment to

preventing – and, if necessary, investigating and

prosecuting – election fraud and voting rights

offenses. I am also asking U.S. Attorneys, Election

Officers and FBI officials to explore ways in which

the Department can work more closely with state and

local election and law enforcement authorities to

deter and detect discrimination, prevent electoral

corruption, and bring violators to justice.

* * *
128

This is our compact with the American people. Our

role is to train, to educate and ultimately to enforce –

when and if the laws are violated. Our pledge is to

ensure justice for all American voters.

As the Attorney General explained in the above-quoted

remarks, the Election Day Program is designed to coordinate

Department responses to election-related allegations among the

United States Attorneys’ Offices, FBI field offices, and Justice

Department prosecutors in Washington, D.C. The Program also

alerts the public to the Department’s commitment to prosecuting

election fraud.

Three important principles apply to the Election Day Program:

• First, as with all election crime matters, the Election

Day Program emphasizes the detection, evaluation, and

prosecution of crimes. As a general rule, except for the

activities covered by the federal voting rights laws, the

Department does not have authority to directly intercede in the election process itself.

• Second, except in matters involving alleged

discrimination in the franchise that are covered by the

civil rights statutes, the Justice Department generally

has not heretofore placed observers inside open polling

stations, even though there might be a reasonable basis

for believing that criminal activity will occur there.

This arises in part from respect for state laws

governing who may be inside open polls, and in part

from 18 U.S.C. § 592, which prohibits federal officials

from stationing armed men at places where elections

are in progress. However, there is no federal statutory

bar against sending unarmed federal personnel, such as

Assistant United States Attorneys, into open polling

places as long as their presence is either allowed by
129

state law or permitted by local election administrators.

Federal prosecutors and investigators are encouraged

to consider this option in appropriate circumstances, in

consultation with the Public Integrity Section.

• Third, the Department does not intercede on behalf of

private litigants in civil election contests. Such matters

are private in nature, and are customarily redressed

through election contests under state law or civil rights

suits under 42 U.S.C. § 1983.

The following is a general summary of the Election Day

Program implemented by the Department and its District Election

Officers on election day:

Before significant elections –

• The Justice Department issues a press release

emphasizing the federal interests in prosecuting

election crime and protecting voting rights.

• Similar press releases are then issued throughout the

country by each United States Attorney. The telephone

number of each AUSA serving as a District Election

Officer is publicized locally, as well as the telephone

numbers of the local offices of the FBI. Citizens are

encouraged to bring complaints of possible election

fraud to the attention of these law enforcement

officials.

• Each United States Attorney and District Election

Officer is encouraged to meet with the state and,

if possible, local officials responsible for the

administration of the election process and the

prosecution of crimes against that process. The purpose of these meetings is to convey federal interest in
130

assuming an appropriate law enforcement role with

respect to electoral corruption, and to make federal

assets and personnel available to assist the states in

such matters.

On election day –

• In each district, the District Election Officer receives

and handles election fraud allegations.

• FBI Special Agents are made available in each district

to receive election-related complaints from all sources.

• If warranted, the District Election Officer or United

States Attorney may request the FBI to interview a

person who alleges that an election crime has occurred.

However, care must be taken to ensure that the

interview does not affect the election itself. To avoid

this potential danger, overt investigation of electionrelated allegations, other than taking statements from

complaining witnesses, ordinarily occurs after the

election is over.

• In Washington, prosecutors in the Criminal Division’s

Public Integrity Section are available as long as

polls remain open, to provide advice to United

States Attorneys, District Election Officers, and FBI

personnel. Special attention is given to preserving

evidence that may lose its integrity with the passage of

time.

• Under certain circumstances, FBI Headquarters may

authorize its agents to conduct covert operations

before, during, or after the election upon request of the

Public Integrity Section. However, such operations

must be predicated on preexisting evidence that
131

observable or otherwise detectable illegal activities

(such as vote buying) are likely to occur in that

election. Such requests require particularly close

review because of the risk of chilling legitimate voting

activity, especially covert operations near or around

polling places. Therefore, requestsfor authorization to

use such techniques should be addressed to the Public

Integrity Section as far before the election as is

feasible.

After the election –

• A United States Attorney’s Office may request the FBI

to conduct a preliminary investigation into election

fraud allegations that the Office believes warrant

further inquiry.

• The Public Integrity Section may also request a

preliminary investigation into any election-related

allegations.

• The results of each preliminary investigation are

reviewed by attorneys in the United States Attorney’s

Office and in the Public Integrity Section. These

offices then consult to determine which matters may

warrant a grand jury and full-field investigation.

• The United States Attorney’s Office, with the assistance of the FBI, conducts whatever additional investigation that Office deems appropriate.

• At the conclusion of the investigation, the United

States Attorney’s Office discusses any proposed

federal charges with the Public Integrity Section. After

this consultation, the United States Attorney’s Office

prosecutes those charges.
132

• On its own or in collaboration with the U.S. Attorneys’

Offices, the Public Integrity Section also investigates

and prosecutes election crimes.
133

CHAPTER FIVE

CAMPAIGN FINANCING CRIMES

A. INTRODUCTION

The objective of campaign financing laws is to regulate the

influence of money on politics. These laws serve to fill a gap in the

coverage of federal laws addressing corrupt payments to federal

officials that are disguised as campaign contributions. Since the

United States and most of the states choose to finance most political

campaigns through private contributions rather than public funding,

campaign contributions are a necessary feature of political life.

Without private contributions to political committees, political

discourse would be impeded. Thus, the Supreme Court has held that

when corrupt payments masquerade as campaign contributions, they

violate federal corruption laws only if they can be shown to have been

exchanged on a quid pro quo basis for a specific official act.

McCormick v. United States, 500 U.S. 257 (1991); Evans v. United

States, 504 U.S. 255 (1992). Campaign financing and disclosure laws

fill this void by addressing situations when corrupt payments

disguised as contributions are given and received on less than a quid

pro quo basis.

There is no arguing that money and honest politics are a

difficult mix. Large contributions to political campaigns expose the

processes of governance to undue influence that grows with the size

of the contribution. While they may not buy specific official acts,

they surely can and do buy access to politicians and political parties.

Moreover, certain sources of political funding present a greater risk

of corruption than others. Almost everyone agrees that it is important

to have access to accurate information about who campaign donors

are and how much they contribute. 
Violations of state campaign financing laws may, however,

49

suggest the presence of federal corruption offenses. Consideration should

be given to whether the alleged conduct may constitute, for example,

possible mail, wire, or honest services fraud (18 U.S.C. §§ 1341, 1343,

1346); extortion under the Hobbs Act (18 U.S.C. § 1951); or federal

program bribery (18 U.S.C. § 666). It is also important to note that those

who violate state campaign financing laws might also engage in similar

schemes at the federal level.

134

 The nation’s campaign financing laws are designed to address

the interplay between money and politics. Their principal objective

is to minimize as much as possible the corruptive influence of money

in politics. They do this by limiting the size of contributions that

individuals may contribute; by prohibiting contributions from entities

such as corporations, unions, and banks, whose potential corrupting

influence on democratic government has been historically

demonstrated; and by imposing rigid disclosure requirements on those

who participate in the federal campaign financing process.

Transparency in campaign financing has also become a pillar of

international standards for democratic elections.

In addition to the federal government, all the states have

campaign financing laws. These vary from state to state, and in many

instances they vary significantly from those at the federal level.

Because this book is written for federal prosecutors and investigators,

its focus is on the federal laws that govern this subject. In addition,

because the power of the federal government in the area of campaign

financing is limited primarily to regulating the financing of federal

candidates, Burroughs v. United States, 290 U.S. 534 (1934), the

focus of this chapter is further limited to federal laws that address the

flow of money intended to influence election of candidates for federal

office, that is, the Office of President, Vice President, or Member of

Congress.49

Criminal violations of federal campaign financing laws

require proof that the conduct was committed “knowingly and
 Violations of these laws that are committed with lesser

50

intent – including all violations committed negligently or because the

offender did not understand the application of the law to his or her conduct

– are not federal crimes. They are subject to civil and administrative

enforcement by the Federal Election Commission.

In light of ongoing regulatory rulemaking and possible 51

statutory changes to the federal campaign financing laws, prosecutors and

investigators who encounter a possible violation of these laws should

consult the Director of the Election Crimes Branch of the Public Integrity

Section. 

135

willfully.” In the context of a regulatory scheme such as is 50

involved here, these words of specific criminal intent require proof

that the offender was aware of what the law required, and that he or

she violated that law notwithstanding that knowledge, i.e., that the

offender acted in conscious disregard of a known statutory duty or

prohibition. United States v. Curran, 20 F.3d 560 (3rd Cir. 1994);

National Right to Work Committee v. Federal Election Commission,

716 F.2d 1401 (D.C. Cir. 1983); AFL-CIO v. Federal Election

Commission, 628 F.2d 97 (D.C. Cir. 1980). See also Ratzlaf v.

United States, 510 U.S. 135 (1994) (“willful” violation of malum

prohibitum regulatory statute prohibiting the structuring of financial

transactions to avoid currency reporting requirements requires proof

that defendant was aware of the duty violated and violated that duty

not withstanding that knowledge).

Such an elevated scienter element requires at the very least

that there is clear application of the law to the facts in question.

When there is doubt concerning whether the law applies to the facts

of a particular matter, the offender is more likely to have an intent

defense. Consequently, this chapter will not attempt to cover the

entire scope of the federal campaign financing laws. Rather, it will

focus on the features of these laws that are well defined and

commonly understood by persons who participate in the modern

federal campaign financing process.51
136

B. STATUTORY SCOPE

1. Types of Statutes

There are fourmain types offederal campaign financing laws:

• Laws that limit the amount of contributions;

• Laws that prohibit contributions and expenditures by

persons and entities whose participation in the federal

election process has been deemed by Congress to

present a sufficient potential for corruption as to

warrant outright prohibition;

• Transparency laws that place before the voting public

pertinent facts concerning the raising and spending of

campaign funds; and

• Public funding laws, which, at the time this book was

written, apply only to the campaigns of candidates

seeking election to the Presidency.

The federal statute that regulates the financing of federal

campaigns and ensures campaign transparency is the Federal Election

Campaign Act of 1971, as amended (FECA or the Act). 2 U.S.C.

§§ 431 - 455. The Act was amended significantly in 1974, 1976,

1979, and most recently in 2002. The 2002 amendments were

contained in the Bipartisan Campaign Reform Act (BCRA).

Two federal statutes address public funding for presidential

campaigns: the Presidential Primary Matching Payment Account

Act, 26 U.S.C. §§ 9031 - 9042, which provides for federal matching

payments for presidential primary campaigns; and the Presidential

Election Campaign Fund Act, 26 U.S.C. §§ 9001 - 9012, which

provides for full federal funding for presidential general election

campaigns.
137

As noted above, FECA limits the amounts that may be

contributed to candidates and political committees and also prohibits

contributions from certain sources altogether. Two terms have arisen

as a result of these limits and prohibitions, “hard money” and “soft

money,” which are used to describe generically the two main

categories of political funds raised and spent in connection with

federal campaigns. Although not defined by the Act, they are used

frequently and have commonly accepted meanings:

• “Hard money” refers to funds that were raised in

accordance with the Act’s limits and prohibitions.

Hard money (sometimes referred to as “federal

funds”) may be used to influence federal elections.

• “Soft money” refers to funds that were not raised in

compliance with the Act’s limits and prohibitions. As

such, soft money (sometimes referred to as

“nonfederal funds”) may only be used to pay for

activities that do not influence federal elections, i.e.,

activities that FECA does not reach. Since the

passage of BCRA in 2002, national political parties

and their agents are prohibited from raising or

spending soft money. 2 U.S.C. § 441i.

2. Basic Statutory Definitions

FECA defines the basic terms that apply to the Act’s

substantive provisions. Because these terms are critical to a general

understanding of the Act, it is important to identify them at the outset.

These basic definitions are codified at 2 U.S.C. § 431. The most

important of these definitions are: 

• “election” – a general, special, primary, or runoff

election, or a convention or caucus held to nominate a

candidate. § 431(1).
138

• “candidate” – an individual who seeks nomination or

election to federal office and has received contributions

aggregating over $5,000 or has made expenditures

aggregating over $5,000 or authorized such

contributions or expenditures by another. § 431(2).

• “federal office” – the office of President or Vice

President of the United States, United States Senator,

United States Representative, or Delegate or Resident

Commissioner to the United States House of

Representatives. § 431(3).

• “political committee” – any committee or other group

of persons that receives contributions or makes

expenditures aggregating over $1,000 in a calendar

year. § 431(4).

• “contribution” – in general, any gift, loan, or anything

else having pecuniary value that is made for the

purpose of influencing the nomination or election of a

federal candidate. § 431(8). 

• “expenditure” – in general, any purchase, payment, or

anything else having pecuniary value that is made for

the purpose of influencing the nomination or election

of a federal candidate. § 431(9). In the context of

public communications, the definition has been

judicially limited to disbursements for communications

that contain “magic words of express advocacy,” such

as “elect,” “defeat,” or “vote for,” or that otherwise

clearly call for elective action for or against a clearly

identified federal candidate. Federal Election

Commission v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238, 247-249 (1986); Buckley v. Valeo,

424 U.S. 1, 44 n. 52 (1976).
139

In addition, as amended by BCRA, FECA also contains two

broad definitions that extend the Act’s coverage to reach previously

unregulated political communications and activities. These definitions are:

• “Electioneering communication” – a public communication made through the media within certain periods

before a federal election that “refers to” a clearly

identified federal candidate and, in the case of a

candidate for the United States House or Senate,

is targeted to the relevant electorate. 2 U.S.C.

§ 434(f)(3). Because these communications do not

contain words of “express advocacy,” they are

generally not “expenditures,” unless, as discussed

below, a provision of the Act expressly deems them

such. However, if they exceed $10,000 in a calendar

year, they must be reported. § 434(f)(4).

• “federal election activity” – activity by state or local

political party committees that simultaneously

benefits federal and nonfederal candidates, such

as get-out-the-vote and voter registration drives.

§ 431(20). As discussed below, these activities can no

longer be paid for with “soft money,” but must be paid

for with funds raised in compliance with the Act.

2 U.S.C. § 441i.

With two exceptions relating to electioneering communications, the noun describing the payment for these newly covered

election-related activities is “disbursement” – not “expenditure” or

“contribution.” This distinction is critical. As will be discussed

below, conduct involving “disbursements” is not covered by FECA’s

criminal penalties. 
140

3. Statutory Presumptions

Under certain circumstances, an unregulated activity will

become subject to the Act because of its connection with a federal

candidate or political committee. The following definitions reflect

the statutory presumptions that result in coverage – or additional

coverage – under the Act: 

• “coordinated expenditure” – an expenditure that is

made “in cooperation, consultation, or concert with, or

at the made “in cooperation, consultation, or concert

with, or at the request or suggestion of” a federal

candidate or an agent of a federal candidate. Such an

expenditure is deemed to be a “contribution” to the

candidate – and, as such, subject to the Act’s limits and

prohibitions. 2 U.S.C. § 441a(a)(7)(B)(i). 

• “electioneering communication”– as set forth above,

this term includes broadcast communications within

certain periods before primary and general elections

that refer to a clearly identified federal candidate. In

general, payments for these communications are not

“expenditures” because they do not expressly advocate

a candidate’s election or defeat. However, there are

two exceptions to this rule:

(a) If the electioneering communication is coordinated

with a federal candidate or an agent of the candidate, the costs of the

communication are deemed to be a “contribution” to the candidate –

and thus subject to the Act’s limits – as well as an “expenditure” by

the candidate. 2 U.S.C. § 441a(a)(7)(C).

(b) If the electioneering communication is made by a

corporation or union, it is deemed to be an “expenditure” – and thus

prohibited. 2 U.S.C. §§ 441b(b)(2), 441b(C).
141

Thus, a coordinated expenditure is deemed a “contribution”

that is subject to the Act’s limits and prohibitions, and an

electioneering communication made by a corporation or union is

deemed an “expenditure” that is prohibited by the Act.

C. HISTORICAL BACKGROUND: 1907 to 2002

1. Overview

The history of campaign finance regulation in the United

States began a century ago. It represents a gradual recognition by the

public and by its elected representatives in Congress that the flow of

money to politicians and political organizations induces corruption,

and reflects a corresponding gradual evolution of legislative

responses to this threat.

The Federal Election Campaign Act of 1971, as amended,

(FECA or the Act) 2 U.S.C. §§ 431 - 455, assembles in one place the

federal laws that regulate the financing of federal political campaigns.

In 2002, after over two decades of unsuccessful legislative efforts, the

Act was amended to close large loopholes that had allowed a

significant portion of political activity relating to federal campaigns

to fall outside the Act’s coverage. The 2002 amendments are part of

broad legislative reforms contained in the Bipartisan Campaign

Reform Act (BCRA).

With two exceptions, FECA applies only to financial activity

intended to influence the campaigns of candidates running for federal

office (the Senate, House of Representatives, Presidency, or Vice

Presidency). It contains two basic types of regulation: (1) campaign

financing statutes, which regulate the sources and amounts of funds

given or spent to influence a federal election; and (2) campaign

reporting statutes, which require disclosure by federal candidates and

political committees of the sources and recipients of their campaign

funds. These two types of statutes are discussed next.
142

2. Campaign Financing Laws

Campaign financing statutes limit, or prohibit outright,

contributions from certain sources in the interest of deterring

corruption and the appearance of corruption of the election process.

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990);

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978);

Buckley v. Valeo, 424 U.S. 1 (1976).

The first federal campaign financing statute was the Tillman

Act of 1907, which prohibited corporations from making

contributions to federal candidates. The 1925 Federal Corrupt

Practices Act provided additional campaign financing limitations

relating to federal elections. Emergency legislation during World

War II prohibited labor organizations from making contributions or

expenditures in connection with federal elections, a ban that was later

made permanent through the Taft-Hartley Act. In 1948, government

contractors were added as prohibited sources of federal campaign

funds. Between 1948 and 1972, the Supreme Court defined the

parameters of many of these laws. Pipefitters Local 562 v. United

States, 407 U.S. 385 (1972); United States v. Automobile Workers,

352 U.S. 567 (1957); United States v. C.I.O., 335 U.S. 106 (1948).

These decisions were incorporated into the original 1971

FECA. The 1974 amendments to the Act enacted limits on political

contributions and expenditures, added a strict liability criminal

misdemeanor penalty, and created the Federal Election Commission

(FEC), a separate federal agency authorized to interpret the Act and

to provide civil and administrative penalties for violations. In 1976,

these limits, and the FEC’s structure as a quasi-legislative agency,

were subjected to rigorous constitutional scrutiny by the Supreme

Court in Buckley. The Court upheld the Act’s limits on contributions,

but overturned its expenditure limits as unconstitutional

infringements on First Amendment speech. The Court also held that

the FEC’s organizational structure, under which the majority of the
143

Commission’s members were appointed by Congress, violated the

Appointments Clause of the Constitution.

These constitutional defects were corrected by the 1976 FECA

amendments, which also transferred nine criminal statutes dealing

with campaign financing from the criminal code (where they were

formerly codified as 18 U.S.C. §§ 608 and 610-617) to FECA (where

they are codified at 2 U.S.C. §§ 441a - 441h). The 1976 amendments

also recreated the FEC as an independent agencywithin the executive

branch with exclusive civil enforcement jurisdiction over all FECA

violations, and created a new criminal misdemeanor penalty for

violations aggregating $1,000 that were committed “knowingly and

willfully.”

The 1979 FECA amendments increased the monetary

threshold for a criminal FECA violation from $1,000 to $2,000. They

also reaffirmed the two-tiered, overlapping enforcement approach

to campaign finance violations: all FECA violations, whether committed knowingly and willfully, negligently, or when the application

of the law to the facts was not clear, were to be subject to civil and

administrative sanctions assessed by the newly created Federal

Election Commission. In addition, violations involving knowing and

willful conduct together with aggregate sums above a monetary

minimum were to be subject to criminal misdemeanor penalties

enforced by the Justice Department. 

Soon after the 1979 amendments took effect, substantial

loopholes developed in the Act’s coverage of financial activities

relating to federal elections. The most significant of these were the

emergence of so-called “soft money” disbursements and “issue ads.”

The “soft money” loophole arose from the fact that FECA

generally applied only to financial activities for the purpose of

influencing a federal election. This meant that financial activity

ostensibly directed at other purposes,such as issue advocacy or partybuilding activities that simultaneously benefitted both federal and
144

nonfederal candidates, was viewed by the FEC as outside the reach

of the law.

The “issue ad” loophole arose from a footnote in Buckley, in

which the Supreme Court construed the critical FECA term

“expenditure,” in the context of public communications, to apply only

to financial activity that was aimed at the general public and

contained words expressly advocating the election or defeat of a

clearly identified federal candidate, such as “vote for,” “defeat,” or

“elect.” 424 U.S. at 44, n. 52.

In 2002, Congress enacted broad campaign financing reforms

as part of the Bipartisan Campaign Reform Act. In addition to

plugging the well-publicized soft money and issue ad loopholes,

BCRA provided significant enhancements to the criminal penalties

for FECA crimes. This landmark campaign financing legislation will

be discussed below.

3. Campaign Reporting Laws

The first attempt at requiring federal candidates to disclose the

identities of their campaign contributors was the 1925 Federal

Corrupt Practices Act. However, this statute was both imprecise and

riddled with exceptions. It was replaced in 1971 with the first FECA,

which closed many of these loopholes.

Until the Federal Election Commission was created in 1974,

the only enforcement remedy for violations of these disclosure laws

was criminal prosecution, and the Act’s criminal penalty was a strict

liability misdemeanor. 2 U.S.C. § 441 (repealed). For a variety of

reasons, such as the frequent absence of aggravating factors, few

violations were pursued criminally. Nevertheless, several of the

Watergate cases were successfully prosecuted under FECA because

the facts demonstrated that inaccurate reporting was a result of

purposeful deceit and flouting of the law. E.g., United States v.

Finance Committee to Re-Elect the President, 507 F.2d 1194 (D.C.
145

Cir. 1974) (affirming conviction of former President Nixon’s

reelection committee for FECA reporting violations).

The 1976 amendments repealed the Act’s strict liability

criminal penalty and replaced it with a two-tiered system of sanctions

for all FECA violations, including reporting violations: (1) all FECA

violations were subject to civil and administrative sanctions enforced

by the FEC; and (2) FECA violations that aggregated $2,000 or more

and involved knowing and willful conduct were also subject to

criminal misdemeanor penalties enforced by the Justice Department.

As with FECA’s campaign financing laws, criminal violations

of its reporting features were subject to the Act’s special three-year

statute of limitations. 2 U.S.C. § 455 (repealed 2002). However,

because Title 18 statutes generally had a five-year statute of

limitations, as well as felony penalties, the Justice Department

successfully utilized several of these felony offenses in the late 1980s

and 1990s to address aggravated FECA reporting violations. These

prosecutive theories involved false statements reachable under

18 U.S.C. § 1001 and the “conspiracy to defraud” prong of 18 U.S.C.

§ 371. United States v. Hsia, 176 F.3d 517 (D.C. Cir. 1999); United

States v. Curran, 20 F.3d 560 (3d Cir. 1994); United States v.

Hopkins, 916 F.2d 207 (5th Cir. 1990). Both theories are still valid

today, and will be discussed below.

We turn now to a discussion ofthe 2002 campaign legislation.

4. The Bipartisan Campaign Reform Act of 2002

In 2002, Congress enacted the Bipartisan Campaign Reform

Act (BCRA), which finally addressed most of the lapses in FECA’s

coverage. The following year, the Supreme Court upheld most of

these reforms. McConnell v. Federal Election Commission, 540 U.S.
Excerpts of the Supreme Court’s summary of the historical 52

development of the federal campaign financing laws and the lapses in their

coverage that were addressed by BCRA are contained in Appendix A.

146

93 (2003). Many of BCRA’s reforms are of little concern to federal 52

prosecutors and investigators, either because they address activities

that do not involve a “contribution,” “donation,” or “expenditure” –

to which the Act’s criminal penalties are expressly limited – or

because they concern issues that are subject to evolving regulation

when the application of the law to the facts is not entirely clear.

BCRA contained three “headline” features that had been the

focus of the national debate over campaign finance reform during the

years leading up to its enactment. More importantly, it also contained

several less publicized – yet for federal prosecutors far more

significant – enhancements to the criminal enforcement penalties

applicable to criminal violations of the Act. Many of these

enhancements had been law enforcement priorities of the Criminal

Division for over a quarter century. The headline features and

criminal enforcement enhancements are summarized below.

 (a) Headline features of the 2002 campaign reforms

 i. Soft money ban

 

BCRA’s principal headline feature was its soft money ban,

which is codified at 2 U.S.C. § 441i. This statute eliminates the

ability of national political party committees, and in most cases state

and local party committees, to maintain separate accounts for money

that does not comply with FECA’s limitations and source prohibitions

(“soft money”), and to use these unregulated funds for activities such

as voter registration, get-out-the-vote drives, and “issue ads” that fall

short of expressly advocating the election or defeat of a federal

candidate. Under Section 441i, virtually all funds raised and spent

by: (1) candidates for federal office; (2) national party committees,
147

such as the Democratic and Republican National Committees; and (3)

agents of federal candidates or national party committees must be

raised in accordance with FECA’s limitations and prohibitions, i.e.,

the funds must be “hard money.”

 ii. Electioneering communications

The second headline feature of BCRA is the regulation of

“electioneering communications” under FECA. This feature is

designed to reach so-called “issue ads” (e.g., communications that

suggest support for a federal candidate but do not contain words of

express advocacy, such as “vote for” or “elect.”

As explained above, the term “electioneering communication”

applies only to a communication disseminated through the broadcast

media, not through the print media or the Internet. The term includes

any broadcast communication that refers to a clearly identified federal

candidate; that is made either 30 days before a primary or 60 days

before a general election; and, in the case of a House or Senate

candidate, is targeted to the relevant electorate. § 434(f)(3)(A). 

Payments for an “electioneering communication” are

generally “disbursements,” not “expenditures.” This distinction is

important, as “disbursements” are not covered by FECA’s criminal

penalty, which is confined to violations that involve a “contribution,

donation, or expenditure.” § 437g(d)(1). Therefore most violations

of this provision fall exclusively within the civil enforcement

jurisdiction of the Federal Election Commission. However, there are

two exceptions to this rule:

• “Coordinated electioneering communications.”

Electioneering communications that are coordinated with a candidate

or party committee are deemed a “contribution” to the candidate or

committee with whom or which they are coordinated, as well as an

“expenditure” by that candidate or committee. § 441a(a)(7)(C).

Because the statutory presumption transforms what otherwise would
148

be a “disbursement” into a “contribution” and an “expenditure,” these

communications can be reached by the Act’s criminal penalty.

 • “Corporate and union electioneering communications.”

The definition of “expenditure” in the FECA statute prohibiting

corporations and unions from making an “expenditure” in connection

with federal elections has been expanded to include an

“electioneering communication.” § 441b(b)(2). Therefore, if

corporate or union funds are used to make such a communication the

violation is covered by the Act’s criminal penalty.

However, the Supreme Court recently held that the Act’s

prohibition on “electioneering communications” was unconstitutional

as applied to a corporate communication that was capable of a

reasonable interpretation other than an appeal to vote for or against

a specific federal candidate. Federal Election Commission

v. Wisconsin Right to Life, Inc., 551 U.S. , 127 S.Ct. 2652 (2007).

Consequently, evaluation of a potential criminal case involving such

a communication requires careful reading of the text and context of

the communication.

 iii. New contribution limits

 

BCRA’s final headline feature is the increased amounts that

individuals may contribute to federal candidates, political parties, and

political committees. These limits had not been raised since their

original enactment in 1974, despite the considerable inflation that had

occurred since then. The new limits are codified at 2 U.S.C. § 441a,

and will be discussed below.

(b) BCRA’s criminal enforcement enhancements

The BCRA reforms that are of most interest to federal

prosecutors and investigators are the significant enhancements to the

penalties for criminal violations of FECA’s substantive provisions.

Specifically, BCRA:
Congress also mandated that the guideline include a number

53

of aggravating factors as enhancements, such as the amount involved in

the offense, whether the offense involved foreign funds, and whether it

was motivated by a desire to gain a specific advantage from the

government. BCRA, § 314(b)(2).

149

 • Repealed the special three-year statute of limitations that had governed FECA crimes since 1974,

and replaced it with the traditional five-year

limitations period that applies to most other

federal crimes under 18 U.S.C. § 3282. 

2 U.S.C. § 455(a).

• Created a five-year felony offense for FECA

violations aggregating $25,000 or more during a

calendar year. 2 U.S.C. § 437g(d)(1)(A)(i).

• Created a two-year felony offense for violations of

the FECA prohibition against conduit contributions (2 U.S.C. § 441f) that aggregate over

$10,000 in a calendar year. 

2 U.S.C. § 437g(d)(1)(D)(i).

• Directed the United States Sentencing

Commission to promulgate a guideline expressly

covering FECA crimes. On January 25, 2003, 53

the Sentencing Commission promulgated the new

guideline on an emergency basis, and it became

effective for conduct taking place after that date.

U.S.S.G. § 2C1.8. This new guideline is

discussed in detail in Chapter Six.

• Clarified that FECA’s ban on contributions from

foreign nationals (2 U.S.C. §441e) applies to

donations to nonfederal candidates as well as to

contributions to federal candidates, thereby
Fraudulently soliciting political funds can also present 54

violations of the mail or wire fraud statutes, 18 U.S.C. §§ 1341 or 1343.

However, prosecuting fraudulent campaign solicitations under FECA’s

Section 441h usually results in a better sentencing calculation, and is thus

the preferred approach to this sort of fraud.

150

codifying United States v. Kanchanalak, 192 F.3d

1037 (D.C. Cir. 1999).

• Expanded the FECA provision that forbids agents

of one federal candidate from falsely representing

that they have authority to speak for another

federal candidate on a matter that is damaging to

the other candidate (2 U.S.C. § 441h) to include a

separate prohibition against misrepresentations by

anyone for the purpose of soliciting contributions.

2 U.S.C. § 441h(b).54

• Expanded the law that forbids the solicitation or

receipt in federal buildings of contributions for

federal elections (18 U.S.C. § 607) to include

donations for nonfederal elections. 

18 U.S.C. § 607(a)(1).

• Provided additional criteria for what constitutes

“coordination” between interest groups and candidates or political parties, and thus transforms the

value of activities done on their behalf into an

“in-kind contribution” to the candidate or political

party. 2 U.S.C. § 441a(a)(7).
151

D. STATUTES

1. Introduction

This section will present a discussion of those substantive

provisions of the Federal Election Campaign Act that are of principal

interest to federal prosecutors and investigators. We do not attempt

to present a thorough discussion of the entire FECA, or of all issues

that might arise under the Act. The intricacy of this regulatory statute

and the scope of its criminal provision confines the Justice

Department’s criminal jurisdiction to violations that are committed

“knowingly and willfully,” that is, by subjects who knew what the

law required and who violated it notwithstanding that knowledge.

2 U.S.C. § 437g(d)(1); National Right to Work Committee v. Federal

Election Commission, 716 F.2d 1401 (D.C. Cir. 1983); AFL-CIO v.

Federal Election Commission, 628 F.2d 97 (D.C. Cir. 1980). In light

of the limitation of FECA’s criminal provision to offenders who flout

a known statutory duty or prohibition, any situation when the

application of the law to the facts is unclear does not easily produce

a prosecutable FECA crime. 

In view of the above considerations, the discussion that

follows is confined to those substantive provisions of FECA that are

clear, generally well-known, and enforceable through the Act’s

criminal penalties; i.e., knowing and willful violations that involve

“the making, receiving, or reporting of any contribution, donation or

expenditure” that falls in FECA’s “heartland.”

2. The “Heartland” Provisions of the Campaign

Financing Laws

In general, to warrant criminal prosecution, a FECA violation

should involve one of FECA’s substantive, or “heartland,” provisions.

These provisions, and the principles underlying them, are:
152

• Limits on amount of contributions 

Large political contributions lead to perceived and

actual corruption of public officials. The Act therefore

has quantitative limits on the amounts that contributors

can give to candidates seeking federal office and to

political committees supporting federal candidates.

2 U.S.C. § 441a(a).

• Ban on contributions and expenditures by corporations

and unions 

Financial political activism bycorporations and unions

can distort, and potentially corrupt, election results and

issues. To avoid these adverse effects, and to protect

shareholders and minority members from having their

shared capital used for political purposes they may not

support, unions and corporations may not make

contributions or expenditures in connection with

federal elections. 2 U.S.C. § 441b.

• Ban on contributions from federal contractors 

Persons and entities that are signatories on contracts to

provide equipment, services, or supplies to the United

States Government, or are negotiating for such

contracts, should notseek to influence federal officials

through political donations. They therefore may not

make contributions or expenditures to influence the

election of federal candidates. 2 U.S.C. § 441c.

• Ban on contributions from foreign nationals

American elections should be shielded against foreign

influence. Accordingly, persons who are not citizens

of the United States or lawfullyadmitted for permanent

residence may not make contributions or expenditures

in connection with any United States election, whether

at the federal, state, or local level. 2 U.S.C. § 441e.
153

• Ban on disguised and cash contributions

To prevent circumvention of the Act’s limits and

prohibitions, and to ensure accurate public disclosure

of all significant campaign data, contributions may not

be laundered through conduits to conceal the true

source of the funds. 2 U.S.C. § 441f. In addition, cash

contributions over $100 to a federal candidate’s

campaign are prohibited. 2 U.S.C. § 441g.

• Transparency 

FECA is a “sunshine” statute as well as a regulatory

and anti-corruption statute. The Act reflects

Congress’s belief that the public has a right to know

which individuals and organizations support which

federal candidates and in what amounts, so that voters

can make informed decisions at the polls. Federal

candidates and political committees supporting federal

candidates are therefore required to register with the

FEC, and to designate a treasurer who must file

periodic reports with the FEC detailing all

contributions received and expenditures made that

aggregate over $200 in a calendar year. 2 U.S.C.

§§ 432, 433, 434.

• Ban on use or direction of “soft money” by political

parties 

To avoid circumvention of FECA’s limits and

prohibitions, national party committees must finance

all their activities with “hard money,” that is, funds

raised in accordance with the Act, and may not solicit,

spend, or direct to other sources “soft money.” In

addition, state and local party committees must use

hard money for “federal election activity,” including

voter registration and get-out-the vote drives, and

public communications that refer to and support or

oppose a federal candidate. 2 U.S.C. § 441i.
This anti-embezzlement provision does not apply to thefts 55

from political committees that are not authorized candidate committees.

However, such matters may be prosecuted as mail, wire, or honest services

fraud under 18 U.S.C. §§ 1341, 1343, or 1346.

The exceptions are fraudulent campaign representations and 56

fraudulent solicitations, which have no criminal monetary threshold.

2 U.S.C. §§ 441h(a), 441h(b). 

154

• Theft from candidate’s political committee 

No person may convert funds contributed to a federal

candidate to his or her personal use. 

55

2 U.S.C. § 439a.

3. Campaign Financing Crimes

As noted above, FECA has its own internal criminal penalty.

2 U.S.C. § 437g(d). Section 437g(d) provides that a violation of

FECA is a federal crime if it is committed “knowingly and willfully”

and, with two exceptions, if it meets certain monetary thresholds. 56

Specifically, if the violation involves the making, receiving, or

reporting of a “contribution, donation, or expenditure” that:

• aggregates $2,000 or more in a calendar year, it is a

one-year misdemeanor, § 437g(d)(1)(A)(ii);

• aggregates $25,000 or more in a calendar year, the

violation is a five-year felony, §§ 437g(d)(1)(A)(i),

437g(d)(1)(D)(i); or

• aggregates over $10,000 in a calendar year and

involves illegal conduit contributions, the violation is

a two-year felony, § 437g(d)(1)(D)(i).

We now turn to a discussion of the Act’s provisions.
155

4. Substantive Statutes

(a) 2 U.S.C. § 441a. Limitations on contributions

 and expenditures

Section 441a sets quantitative limits on the amounts

individuals, political committees, and other entities may contribute to

federal candidates and political committees. § 441a(a). It also limits

expenditures by party committees and presidential candidates who

accept federal funding. §§ 441a(b), 441a(d).

As noted above, “contribution” is generally defined as a gift

of anything of value for the purpose of influencing a federal election.

§ 431(8). In addition, the term includes expenditures that are

made in “cooperation, consultation, or concert with, or at the

request or suggestion of” a candidate, a person authorized to act on

behalf of a candidate, or a national, state, or local party committee.

§ 441a(a)(7)(B). An “expenditure” is a disbursement made for the

purpose of influencing a federal election. § 431(9).

The distinction between a contribution and an expenditure has

constitutional significance. Contributions are made by one person or

entity to another to enable the recipient of the funds to engage in

political speech of the recipient’s choosing, while expenditures are

made directly by the owner of the funds for political speech chosen

by the owner of the funds. Thus, contributions are indirect political

speech, and as such may constitutionally be subject to more stringent

regulation than expenditures, which are direct political speech.

Buckley v. Valeo, 424 U.S. 1, 13-59 (1976).

Section 441a contains three sets of contribution limits:
Certain limits may also be subject to increase due to the 57

application of one of FECA’s so-called “millionaire” provisions.

§§ 441a(i), 441a-1. 

At the time this book was written, there were six national 58

party committees: the Republican National Committee, the Democratic

National Committee, the National Republican Senatorial Committee, the

Democratic Senatorial Campaign Committee, the National Republican

Congressional Committee, and the Democratic Congressional Campaign

Committee. 11 C.F.R. § 110.1(c)(2). 

156

First, subject to a cost-of-living escalation provision discussed

below, under Subsection 441a(a)(1), contributions from “persons” 57

(individuals, associations, and committees) may not exceed:

• $2,000 to a federal candidate with respect to any

election (primary and general elections are treated

as separate elections for the purpose of Section

441a);

• $25,000 in a calendar year to a national party

committee;58

• $10,000 in a calendar year to a state party

committee; or

• $5,000 in a calendar year to any other political

committee.

Second, under Subsection 441a(a)(2), contributions from

“multi-candidate political committees” (political committees

registered for six months with the FEC that have received

contributions from over fifty persons and that support at least five

federal candidates) may not exceed:

• $5,000 to a federal candidate per election;
BCRA also authorized annual increases in the Act’s limits 

59

on expenditures by candidates and party committees. § 441a(c)(1)(B).

157

• $15,000 in a calendar year to a national party

committee; or

• $5,000 in a calendar year to any other political

committee.

Third, under Subsection 441a(a)(3), individuals are subject to

aggregate two-year contribution limits. During the period beginning

January 1st of an odd-numbered year and ending December 31st of

the following even-numbered year, individuals may not contribute in

the aggregate more than:

• $37,500 to federal candidates; and

• $57,000 to all other political committees, of which

no more than $37,500 may be contributed to

political committees that are not national party

committees.

The above limits do not apply to transfers between the

national, state, district, and local committees of the same political

party. § 441a(a)(4). However, contributions to a candidate from

political committees that are subject to common control (e.g.,

committees affiliated with several locals of the same union, or

committees affiliated with subsidiaries of the same corporation) are

treated as though they were from a single political committee.

§ 441a(a)(5).

Finally, as a result of BCRA, the limits on contributions from

persons are adjusted for inflation every two years. § 441a(c)(1)(C).59

The increases are announced in odd-numbered years and are effective
Thus, for example, for the 2005-2006 election cycle the 60

quantitative limits on contributions from individuals are as follows:

$2,100 per election to a federal candidate; $26,700 per year to national

party committees; $37,300 per six-year election cycle to national party

senate campaigns; $40,000 per two-year election cycle to all federal

candidates; and $61,400 per two-year election cycle to all other political

committees. 

.

 

158

for the two-year election cycle beginning with the day after the last

general election.60

A candidate’s expenditures can constitutionally be limited

only if the candidate elects to participate in a public funding program.

Buckley v. Valeo, 424 U.S. 1, 54-59 (1976); 2 U.S.C. § 441a(b). At

present, only presidential candidates have the option of receiving

federal funds for their campaigns; hence, these are the only candidates

who may be subject to expenditure limits. There are, moreover, no

limits on expenditures by a person that are made independently of the

candidate being benefitted thereby. However, if such “independent

expenditures” exceed certain monetary thresholds, they must be

reported to the FEC. § 434(g).

There are also no limits on the amount of personal funds that

a federal candidate may use in his or her campaign. Under Buckley

v. Valeo, 424 U.S. 1 (1976), this use of personal funds represents an

“expenditure” that cannot be constitutionally limited. 

The contribution limits discussed above have been repeatedly

upheld against First Amendment challenges, and there is no question

today that they are constitutionally valid. McConnell v. Federal

Election Commission, 540 U.S. 93 (2003); Buckley v. Valeo,

424 U.S. 1 (1976); see also Nixon v. Shrink Missouri PAC, 528 U.S.

377 (2000) (upholding similar state contribution limits).
 This statute is one of two FECA prohibitions that extend to 61

nonfederal elections. The other is 2 U.S.C. § 441e, which prohibits

foreign nationals from making contributions to nonfederal as well as

federal elections.

159

Generally, cases prosecuted under Section 441a involve

excessive contributions that are effected either surreptitiously (such

as through conduits) or in the furtherance of some other felonious

objective (such as a bribe that is disguised as a contribution to a

candidate). 

(b) 2 U.S.C. § 441b. Prohibition on contributions 

 and expenditures by national banks,

 corporations, and labor organizations

Section 441b was designed primarily to protect the integrity

of the election process against potential corruption resulting from the

influx of vast aggregates of corporate and union wealth. Cort v. Ash,

422 U.S. 66 (1975); see also First National Bank of Boston v.

Bellotti, 435 U.S. 765 (1978) (§ 441b addresses problem of

corruption of elected representatives through creation of political

debts) (dictum). The statute contains two broad prohibitions, one

limited to federal elections, and one that encompasses all elections.

First, Section 441b prohibits any state-chartered corporation,

or any labor organization, from making a contribution or expenditure

in connection with any federal election.

Second, the statute prohibits a national bank or a federally

chartered corporation from making a contribution or expenditure in

connection with any election – federal, state, or local.61

In addition, Section 441b makes it unlawful for any officer of

a corporation, labor organization, or national bank to consent to a

prohibited contribution or expenditure; and for any candidate,

political committee, or other person knowingly to accept such a
160

prohibited contribution. The statute does not restrict contributions or

expenditures from the personal resources of corporate or union

officials, provided, of course, that the value of the funds given are not

reimbursed or otherwise passed back to a corporate or a union fisc.

 

The heart of the statute is its ban on the use of corporate

treasury funds or of monies required as a condition for membership

in a labor organization for contribution to federal campaigns, or for

“active electioneering” in connection with federal campaigns. United

States v. Pipefitters Local 562, 434 F.2d 1116 (8th Cir. 1970), rev’d

on other grounds, 407 U.S. 385 (1972); United States v. Automobile

Workers, 352 U.S. 567 (1957).

In 1972, the Supreme Court held that Section 441b’s

predecessor (18 U.S.C. § 610) did not bar corporations or unions

from using their treasury funds to establish and operate “separate

segregated funds” – commonly known as “affiliated political action

committees,” or PACs – provided the PACs confined their solicitation activities to raising voluntary contributions from corporate

employees or union members, respectively. Pipefitters, 407 U.S. at

409. Also, the statute does not apply to the use of corporate or union

funds to finance communications, on any subject, between labor

unions and their membership or between corporations and their

stockholders. Automobile Workers, 352 U.S. 567 (1957). Nor does

it apply to nonpartisan expenditures, or to the costs of publishing

statements of editorial opinion in newspapers of general public

distribution that are owned by corporations or unions. United States

v. C.I.O., 335 U.S. 106 (1948).

The constitutionality of Section 441b has been frequently

challenged, for the most part without success, and it is now well

established that the Section’s prohibitions on corporate and union

political activity do not violate the First Amendment. Austin v.

Michigan Chamber of Commerce, 494 U.S. 652 (1990); Federal

Election Commission v. National Right To Work Committee, 459 U.S.

197 (1982); Athens Lumber Co. v. Federal Election Commission,
“Electioneering communication” includes any broadcast or

62

satellite communication which “refers to” a clearly identified federal

candidate; is made 30 days before a primary or 60 days before a general

or runoff election; and, in the case of a candidate for the United States

Senate or United States House of Representatives, is targeted to the

relevant electorate. 2 U.S.C. § 434(f)(3)(A)(i). 

161

718 F.2d 363 (11th Cir. 1983); United States v. Boyle, 482 F.2d 755

(D.C. Cir. 1973). Although the statute treats corporations and unions

somewhat differently because of their fundamentally different

structures and compositions, this does not offend the Constitution’s

Equal Protection Clause. Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990); International Association of Machinists v.

Federal Election Commission, 678 F.2d 1092 (D.C. Cir. 1982), aff’d,

459 U.S. 983 (1982).

The statute has been held not to apply to a limited class of

nonprofit corporations established solely to promote issues. Federal

Election Commission v. Massachusetts Citizens for Life, 479 U.S.

238 (1986). See also First National Bank of Boston v. Bellotti,

435 U.S. 765 (1978) (holding unconstitutional a state statute

prohibiting corporate expenditures for referenda and noting that the

federal prohibition in § 441b does not apply to referenda).

Prior to the enactment of the 2002 campaign reforms, Section

441b applied only to the use of corporate or union funds to expressly

advocate the election or defeat of a clearly identified federal

candidate. BCRA expanded the statute to reach “electioneering

communications” as well. As discussed previously, this term has a

broad reach and may include many forms of issue advocacy. But 62

see FEC v. Wisconsin Right to Life, Inc., 551 U.S. ___,

127 S.Ct. 2652 (2007) (holding prohibition unconstitutional as

applied to communication focusing on issue rather than candidate’s

election.)
162

As with all other FECA violations, to reach the level of a

Section 441b criminal violation, the act had to have been committed

“knowingly and willfully.” Absent direct evidence of such criminal

intent, a prosecution under Section 441b will most likely be

successful when funds were diverted from a corporate or union

treasury and laundered in some fashion to a candidate.

(c) 2 U.S.C. § 441c. Prohibition on contributions 

 by government contractors

Section 441c prohibits any person who is a signatory to, or

who is negotiating for, a contract to furnish material, equipment,

services, or supplies to the United States Government, from making

or promising to make a contribution “for any political purpose.” It

has been construed by the FEC to reach only contributions for the

purpose of influencing the nomination or election of candidates for

federal office. 11 C.F.R. § 115.2(a). The statute applies to all types

of businesses, including sole proprietorships, partnerships, and

corporations, and reaches gifts made from such entities’ business or

partnership assets. With respect to partnerships, however, the FEC

has determined that Section 441c does not prohibit donations made

from the personal assets of the partners, provided of course, that the

value of such contributions is not reimbursed from, or otherwise

passed back to, partnership assets. 11 C.F.R. § 115.4.

The statute applies only to business entities that have

negotiated or are negotiating for a contract with a department or

agency of the United States. Thus, the statute does not reach those

who have contracts with nonfederal agencies to perform work under

a federal program or grant. Nor does it reach persons who provide

services to third-party beneficiaries under federal programs that

require the signing of agreements with the federal government, such

as physicians performing services for patients under Medicare.

Finally, officers and stockholders of incorporated government

contractors are not usually covered by Section 441c, because the
163

government contract is usually with the corporate entity, not its

officers. However, individual corporate officers may be covered by

Section 441c if they are individually liable on the government

contract.

The same statutory exemptions that apply to Section 441b also

apply to Section 441c. Thus, government contractors may make

nonpartisan expenditures, may establish and administer affiliated

PACs, and may communicate with their officers and stockholders

on political matters. In addition, Section 441c does not reach

electioneering communications. Therefore, government contractors

who are not incorporated (and thus not subject to Section 441b) are

allowed to make electioneering communications.

(d) 2 U.S.C. § 441d. Attribution of sponsors of

 political communications and solicitations

Section 441d requires that certain political communications

include the identity of the person or entity responsible for

the communication. Prior to enactment of BCRA in 2002, the

statute was limited to two types of political communications:

(1) communications “expressly advocating the election or defeat” of

a clearly identified federal candidate, and (2) communications

soliciting contributions to a federal candidate or political committee.

BCRA added two more types of communications requiring this

attribution: (1) general advertisements by political committees, and

(2) “electioneering communications” by any person, that is,

communications to a targeted electorate within certain periods before

primary and general elections that refer to a federal candidate.

Section 441d does not cover anonymous communications that

leave to inference the identity of a particular candidate. The FEC,

acting pursuant to its advisory opinion authority under 2 U.S.C.

§ 437f, has excluded several categories of campaign advocacy (such

as bumper stickers and skywriting) from the reach of this law.

11 C.F.R. § 110.11(a)(2).
 The other is 2 U.S.C. § 441b, discussed above, which bars

63

national banks and federal corporations from making a contribution in

connection with an election to any political office.

164

Although BCRA expanded the scope of Section 441d, only

violations involving the two communications originally covered by

the statute are subject to prosecution, namely, communications that

expressly advocate a federal candidate’s election or defeat, and

communications that solicit contributions. Funds expended for such

communications are “expenditures” under the Act, and are therefore

subject to its criminal provision, § 437g(d)(1). Electioneering communications and general political advertising by political committees,

on the other hand, generally involve “disbursements,” which are not

reachable by the Act’s criminal provision.

(e) 2 U.S.C. § 441e. Prohibition on contributions,

 donations, and expenditures by foreign nationals

Section 441e prohibits contributions and donations by foreign

nationals to all United States elections, whether federal, state, or

local. It is one of the two federal campaign financing statutes that

reach activities directed at both federal and nonfederal elections.

63

Prior to the enactment of the Bipartisan Campaign Reform

Act, the statute prohibited a foreign national from making, directly or

through any other person, a contribution “in connection with an

election to any political office.” United States v. Kanchanalak, 192

F.3d 1037 (D.C. Cir. 1999) (statute reaches contributions “in

connection with any federal, state, or local election”). The statute

also prohibited any person from knowingly soliciting or accepting a

contribution from a foreign national.

BCRA retained the prohibitions of Section 441e against

contributions made by or accepted from foreign nationals in

connection with any United States election, and expanded the statute

to prohibit four additional types of political activity by foreign
 Although not defined in the Act, a “donation” is a political 64

gift that is not a “contribution” – a term that is confined to federal

campaigns. Hence a “donation” is a political gift that is given to a

candidate for state or local office or to a political committee in connection

with a state or local election.

Persons who rely in good faith on an FEC advisory opinion

65

are immune from sanctions under FECA, including criminal prosecution.

§ 437f(c)(2). 

165

nationals: expenditures, independent expenditures, contributions to

any political party, and electioneering communications. In addition,

BCRA added the term “donation” to Section 441e’s prohibition (as

well as to the Act’s criminal provision), to leave no doubt that

political donations to state and local candidates are covered by its

prohibition. All types of Section 441e violations are subject to 64

prosecution except those involving electioneering communications,

which are defined for purposes of Section 441e as “disbursements”

and therefore are not covered by the Act’s criminal penalty. 

The term “foreign national” means: (1) a “foreign principal”

within the meaning oftheForeign Agents Registration Act, 22 U.S.C.

§ 611, and (2) any person who is not a citizen of the United States, or

a national of the United States who is not lawfully admitted for

permanent residence. § 441e(b). A “foreign principal” includes a

foreign government, a foreign political party, and a corporation

organized under the laws of a foreign country. None of these entities

may make contributions or donations to any candidate or political

party in the United States.

Through its regulations, advisory opinions, and civil

enforcement actions, the FEC has addressed the application of

Section 441e to contributions by domestic subsidiaries of foreign

corporations. The Commission has determined that a domestic

65

subsidiary that is chartered under the laws of any state or United

States territory, and has its principal place of business in the United

States, is not a foreign principal – even though all of its capital stock
166

may be owned by foreign individuals or entities. The FEC has,

however, concluded that Section 441e prohibits contributions by a

domestic subsidiary if the parent foreign corporation provides funding

for the contribution, or if individual foreign nationals are involved in

any way in making the contribution. In 1991, the FEC rejected

proposed rulemaking that would have expanded the scope of Section

441e to include domestic subsidiaries of foreign-owned entities.

In response to a congressional directive in BCRA, the United

States Sentencing Commission promulgated a new sentencing

guideline for FECA offenses, U.S.S.G. § 2C1.8 (eff. January 25,

2003). The guideline provides significant enhancements for FECA

violations involving a foreign national or foreign government.

§ 2C1.8(b)(2). The guideline is discussed in Chapter Six.

(f) 2 U.S.C. § 441f. Prohibition on contributions

 through conduits

Section 441f makes it unlawful for any person to make a

contribution in the name of another, or for any person to permit his or

her name to be used to make such a contribution. The statute also

prohibits any person from knowingly accepting a contribution made

by one person in the name of another.

The conduit statute is one of FECA’s most frequently violated

prohibitions. This is because it prohibits conduct that is often used

by perpetrators to disguise other campaign financing violations, such

as contributions over the Act’s limits in violation of Section 441a, or

from prohibited sources in violation of Section 441b or Section 441e.

Section 441f violations occur when a person gives money to

straw donors, or conduits, for the purpose of having the conduits pass

the funds on to a specific federal candidate as their own contributions.

The motive is typically to preserve the true donor’s anonymity and

aggregate contribution amount, as the ostensible contributions will be

reported publicly as having been made by the straw donors. A
167

common type of conduit scheme involves a corporate official who

instructs the corporation’s employees to make contributions to a

federal candidate, and then reimburses the employees from corporate

funds generally through fictitious bonuses or pay raises. In so doing,

illegal corporate funds are laundered to the candidate in violation of

both Sections 441f and 441b.

As discussed previously, to be subject to prosecution as a

FECA crime, the act must be knowing and willful. Laundering

campaign contributions through straw donors is persuasive evidence

of the Act’s willful intent element (conscious defiance of the law).

See AFL-CIO v. Federal Election Commission, 628 F.2d 97, 101

(D.C. Cir. 1980) (willful violation requires knowing, conscious, and

deliberate flaunting of the Act).

As noted above, the 2002 Bipartisan Campaign Reform Act

included enhanced criminal penalties for FECA crimes. In

formulating these new penalties, Congress gave particular attention

to conduit schemes, and determined that they should be subject to a

separate felony penalty with a lower monetary floor than the general

felony provision contained in BCRA for FECA offenses.

Specifically, conduit crimes aggregating over $10,000 in a calendar

year are now punishable as felonies, and subject to two

years of imprisonment and mandatory minimum fines. 2 U.S.C.

§ 437g(d)(1)(1)(D). Conduit crimes aggregating $25,000 or more

are subject to FECA’s other new felony provision, and are fiveyear felonies. 2 U.S.C. § 437g(d)(1)(A)(ii). Finally, conduit crimes

aggregating between $2,000 and $10,000 are one-year misdemeanors.

2 U.S.C. § 437g(d)(1)(A)(i). 

As will be discussed below, conduit violations also may be

prosecuted under the federal conspiracy and false statement statutes,

18 U.S.C. §§ 371 and 1001. The courts have held that the use of

conduits to disguise illegal contributions to federal candidates is

evidence of an intent to interfere with the accurate reporting of

campaign contributions, an intent to defraud the FEC, and an intent
168

to cause false information to be conveyed to the FEC. United States

v. Hsia, 176 F.3d 517 (D.C. Cir. 1999). See also United States v.

Hopkins, 916 F.2d 207, 213-15 (5th Cir. 1990) (upholding Section

1001 conviction for filing false statements on disclosure reports

required by the Ethics in Government Act).

Conduit schemes often involve multi-district activity, and

therefore the question of where a contribution is “made” or

“received” within the meaning of Section 441f can present venue

questions. For a discussion of such venue issues, see United States

v. Passodelis, 615 F.2d 975 (3d Cir. 1980) (reversing a conviction

under Section 441f’s predecessor, 18 U.S.C. § 614, on venue

grounds). For a discussion of statute of limitations issues that also

can arise in such cases, see United States v. Hankin, 607 F.2d 611

(3d Cir. 1979) (reversing a conviction under 18 U.S.C. § 614 on

statute of limitations grounds).

(g) 2 U.S.C. § 441g. Limitation on contribution of

 currency

Section 441g makes it unlawful for any person to contribute

more than $100 in United States or foreign currency to the campaign

of a federal candidate. The limitation is cumulative, and applies to

the candidate’s entire campaign, including the primary and general

election. The limitation differs from, and is in addition to, the

contribution limitations in Section 441a.

The statute does not expressly address receiving cash for

political purposes, but campaign agents who knowingly solicit or

receive cash in violation of Section 441g may be liable as aiders and

abettors under 18 U.S.C. § 2.
 Violations of Section 441h(b) involving fraudulent fund- 66

raising that are accomplished through the use of the mails or interstate

wires may also be prosecuted as fraud offenses under 18 U.S.C. § 1341 or

§ 1343.

169

(h) 2 U.S.C. § 441h. Fraudulent misrepresentation

 of campaign authority

As a result of the 2002 Bipartisan Campaign Reform Act,

Section 441h now prohibits two discrete types of fraudulent

misrepresentations in connection with federal campaigns: certain

campaign “dirty tricks,” and fraudulent fundraising. Specifically: 

• Section 441h(a) prohibits federal candidates and

their agents from fraudulently misrepresenting

that they have authority to speak or act for another

federal candidate or political party on a matter that

is damaging to the other candidate or political

party. The statute also prohibits conspiracies to

misrepresent campaign authority to damage an

opponent.

• Section 441h(b), enacted by BCRA, prohibits

any person from fraudulently misrepresenting,

or conspiring with another to fraudulently

misrepresent, that he or she is acting for a federal

candidate or political party for the purpose of

soliciting contributions or donations.

66

Unlike all other FECA violations, violations of Section 441h

may be prosecuted without regard to the sum of money involved.

§ 437g(d)(1)(C). Violations that involve amounts under $25,000 are

one-yearmisdemeanors and violations involving $25,000 or more are

five-year felonies. § 437g(d)(1)(A).
 At the time this book was written, the following six com67

mittees were included in this prohibition: the Republican National

Committee, the Democratic National Committee, the National Republican

Senatorial Committee, the Democratic Senatorial Campaign Committee,

the National Republican Congressional Committee, and the Democratic

Congressional Campaign Committee. 11 C.F.R. § 110.1(c)(2).

170

(i) 2 U.S.C. § 441i. Prohibition against soft money

 of political parties

Section 441i was also added to FECA by BCRA, and

represents perhaps the single most significant achievement of that

round of campaign financing reforms. This statute was designed to

eliminate unregulated “soft money” from the federal election

campaign process. Many of its potential areas of application to

specific facts are continuing subjects for clarification by the FEC

through its rule-making, advisory opinions, and civil enforcement

actions.

Nevertheless, the so-called “soft money ban” codified in

Section 441i has several clear features that are enforceable through

FECA’s criminal penalty. Specifically:

i. Section 441i(a)

Section 441i(a) provides that a “national committee of a

political party (including a national congressional campaign

committee of a political party),” an agent of such a national

committee, and any entity that is established, financed, or controlled

by such a national committee, may not “solicit, receive, or direct to

another person” any “contribution, donation, or transfer of funds,” or

spend any funds, that are not subject to the limits and prohibitions of

FECA. Such funds would include contributions that exceed the 67

Act’s quantitative limitations in violation of Section 441a;

contributions from prohibited sources, such as corporations, labor

organizations, banks, or government contractors in violation of
171

Section 441b, Section 441c, or Section 441e; and contributions

laundered through conduits or in cash in violation of Section 441f or

Section 441g.

Stated differently, national committees of political parties and

their agents may only solicit, receive, or direct funds that comply with

the limitations and prohibitions of FECA, that is, “hard money.” Any

act of solicitation, receipt, or direction of “soft money” funds by a

national party committee, its agents, or an entity it controls violates

Section 441i(a).

Of particular significance here is the statute’s inclusion of the

verb “direct.” It would be, for example, a violation of Section 441i(a)

if an agent of a national party committee suggested to a wealthy

contributor that instead of giving soft money to the national party

(which is no longer permissible), the contributor give the funds to a

state or local component of the national party committee. It would

also be a violation of Section 441i(a) if the agent suggested that a

prohibited funding source such as a corporation or a labor

organization give to a recipient that is not covered by FECA, such as

a candidate for nonfederal office.

 ii. Section 441i(b)

Section 441i(b) prohibits state and local committees, as well

as their officers and agents, from “expending or disbursing” funds

that have not been raised in accordance with the limitations and

prohibitions of FECA on “federal election activity.” This new term

was enacted by BCRA and is defined broadly to include any activity

that benefits both federal and nonfederal candidates. § 431(20).

Examples of “federal election activity” include get-out-the-vote

efforts, voter registration drives, and generic public communications

that simultaneously benefit a political party’s federal and nonfederal

candidates, such as, “vote for the Democratic [Republican] Party.”
172

Prior to BCRA, the Federal Election Commission permitted

“generic” expenses such as those noted above to be allocated between

federal and nonfederal candidates, requiring that only the portion of

their cost that was attributed to the promotion of federal candidates

be paid from “hard money.” This allocation process proved to be

both weak and unenforceable. By enacting Section 441, Congress

rejected the FEC’s allocation rules, and plugged this loophole by

statutorily deeming all such “generic” activities by state and local

party committees to be entirely “federal” in nature, thus requiring that

they be financed entirely from “hard money,” i.e., money raised in

compliance with FECA. The following year, the Supreme Court

upheld this extension of FECA’s coverage as a constitutional

legislative effort to avoid circumvention of the Act. McConnell v.

Federal Election Commission, 540 U.S. 93 (2003). Thus, if an agent

of a state political party committee knowingly and willfully uses “soft

money” to pay for “generic” party advertisements, the agent would be

in violation of 441i(b).

Section 441i(b) does not cover state and local political party

communications that refer entirely to nonfederal candidates. The

statute also does not apply to expenditures or disbursements for

generic get-out-the-vote or voter registration drives that are paid from

a special fund that the Act permits state and local party committees

to maintain. These special accounts – called “Levin” accounts after

the Senator who sponsored this provision – may raise up to $10,000

from individual contributors, provided that national party committees,

state party committees acting jointly, and, with narrow exceptions,

federal candidates and officeholders are not involved in the

solicitation of such funds. §§ 441i(b)(2)(C), 441i(e)(3).

 iii. Section 441i(d)

Section 441i(d) prohibits any national, state, or local

committee of a political party, as well as agents thereof, from

“soliciting, making, or directing” any contribution or donation to any

organization that is exempt from federal taxation under the provisions
173

of 26 U.S.C. § 501 or § 527, if said tax-exempt organizations have

made expenditures or disbursements to fund “federal election

activities.” Again, these include primarily “generic” expenses such

as paying for get-out-the-vote or voter registration drives, or public

communications that benefit simultaneously both federal and

nonfederal candidates. This far-reaching prohibition was also upheld

in McConnell as a necessary measure to prevent evasion of the ban on

the use of soft money in federal campaigns – the principal focus of

Section 441i.

 iv. Section 441i(e)

Finally, Section 441i(e) addresses what are commonly known

as “leadership PACs.” Prior to BCRA, these PACs were established

and controlled by a federal candidate or officeholder to raise funds for

candidates at the federal, state, and local levels in the expectation that

such activities would also enhance the candidate’s or officeholder’s

own political power. Specifically, Section 441i(e) provides that a

federal candidate or officeholder, or an entity controlled by such a

person, may not “solicit, receive, direct, transfer, or spend” funds

raised in violation of FECA’s limitations and prohibitions in

connection with the election of any candidate for federal, state, or

local elective office. § 441i(e)(1). The statute contains an exception

for a federal candidate or officeholder who is also running

simultaneously for a state or local office, which permits the candidate

to solicit, receive, or spend “soft money”on behalf of his or her

nonfederal election campaign, provided that the transactions are

permitted under state law. § 441i(e)(2). As noted above, in

McConnell the Supreme Court upheld this broad limitation against

various constitutional challenges, finding it necessary to prevent

circumvention of the statute’s prohibition on the use of soft money by

federal candidates and officials to influence federal elections.

Knowing and willful violations of Section 441i that aggregate

$2,000 or more in a calendar year are one-year misdemeanors; those
174

aggregating $25,000 or more in a calendar year are five-year felonies.

§ 437g(d)(1)(A).

(j) 2 U.S.C. § 439a. Prohibition on conversion of

 campaign funds

Section 439a regulates the use of funds contributed to federal

candidates and officeholders. Over the years the statute has gone

through a number of substantive changes, most of which have

focused on the use of campaign funds to defray the personal expenses

of federal candidates and officeholders.

As originally enacted, Section 439a provided that funds

contributed to a federal candidate in excess of amounts needed for

campaign expenditures, and funds donated to a federal officeholder,

could be used: (1) to defray the candidate’s expenses in connection

with his or her official duties, (2) for contributions to charities, (3) for

transfers to political parties, or (4) for any other “lawful purpose.”

However, it was unclear whether “lawful purpose” included the use

of campaign funds for personal purposes. In 1980, the statute was

amended to state expressly that such funds may not be converted by

any federal candidate, federal official, or other person to any

“personal use.” However, the term “personal use” was not defined.

In 2002, Congress completely revised Section 439a as part of

BCRA’s broad campaign reforms, and, in the process, clarified

exactly what it meant by a prohibited conversion to an individual’s

“personal use.” The current statute applies to all contributions to a

federal candidate – not just “excess” contributions – and is composed

of two provisions:

• Section 439a(a) sets forth the permissible uses of

contributed funds. It retains three previously

permissible uses – for duties as an officeholder,

contributions to charities, and transfers to political

parties. In addition, Congress added another
175

permissible use relating to election campaigns:

“for otherwise authorized expenditures in

connection with the campaign for Federal office

of the candidate.” § 439a(a)(1). The former

category, “for any other lawful purpose,” was

deleted.

• Section 439a(b) contains the statutory prohibition:

a contribution to a federal candidate may not be

“converted by any person to personal use.”

§ 439a(b)(1). The provision further provides that

a contribution shall be considered to be converted

to personal use if it is used to fulfill any

“commitment, obligation, or expense of a person

that would exist irrespective of the candidate’s

election campaign.” § 439a(b)(2). Finally,

Section 439a(b)(2) lists nine specific examples of

prohibited personal uses of campaign funds, such

as mortgage payments, clothing expenses,

vacations, and noncampaign-related car expenses.

Section 439a now reflects Congress’s clear intent to bar

completely the conversion of campaign funds for personal purposes.

Although the statute is limited to funds contributed to federal

candidates and their authorized committees, conversion of

contributions to other political committees can be addressed under

Title 18 fraud statutes. For example, if the conversion was by a

campaign official, the conduct can be prosecuted as an honest

services mail fraud under 18 U.S.C. §§ 1341 and 1346, as a scheme

to deprive the campaign of the honest services of the campaign

official; if the theft was by someone other than a campaign official,

the matter can generally be reachable under the mail or wire fraud

statutes, 18 U.S.C. § 1341 or § 1343.

In addition to prosecuting embezzlement and conversion of

campaign funds under Section 439a or the fraud statutes, this conduct
176

can also be prosecuted under the false statements statute, 18 U.S.C.

§ 1001, for willfully causing another to submit false information to

the FEC regarding the use of the funds. 

(k) 2 U.S.C. §§ 432, 433, and 434. Organization,

 recordkeeping, and reporting requirements

In brief, FECA requires federal candidates and political

committees supporting federal candidates to file with the FEC a

statement of organization and periodic reports of receipts and

disbursements. §§ 433, 434(a). The reports are made available to the

public, and must identify, among other things, persons contributing

over $200 in a calendar year. § 434(b)(3)(A). The Act also requires

that persons making independent expenditures (as distinct from

contributions) in excess of $250 to elect or to defeat a federal

candidate must file reports with the FEC. § 434(c).

Most campaign records must be maintained for three years,

including records reflecting the identity of all contributors giving in

excess of $50. §§ 432(c), 432(d). In addition, persons who collect,

receive, or otherwise handle contributions to a federal candidate from

other persons are required to forward these contributions to the

candidate’s campaign treasurer within ten days, along with the name

and address of any person who contributed over $50 to the candidate.

§ 432(b).

E. ENFORCEMENT

1. Three Types of Enforcement

Federal campaign financing violations are subject to three

types of enforcement:

• Criminal prosecution by the Justice Department as

felonies, either under FECA, as amended by BCRA

(i.e., after November 5, 2002); under other federal
177

criminal statutes addressing frauds and false

statements, such as 18 U.S.C. §§ 371, 1001, 1341,

1343, and 1346; or under Title 26 statutes if the matter

involves a publicly funded presidential campaign;

• Criminal prosecution by the Justice Department as

FECA misdemeanors (before November 6, 2002, or if

the amount of the violation does not reach the

post-BCRA felony thresholds); and

• Civil enforcement proceedings by the Federal Election

 Commission.

2. General Observations

Criminal prosecution under FECA can be pursued before civil

and administrative remedies are exhausted. §§ 437g(a), 437g(d);

United States v. International Union of Operating Engineers,

638 F.2d 1161 (9th Cir. 1979); United States v. Tonry, 433 F. Supp.

620 (E.D. La. 1977); United States v. Jackson, 433 F. Supp. 239

(W.D. N.Y. 1977), aff’d, 586 F.2d 832 (2d Cir. 1978).

Before the 1976 FECA amendments, all FECA violations

were subject to prosecution under a misdemeanor provision that

applied regardless of the amount of funds involved, and that, on

its face, required no criminal intent. 2 U.S.C. § 441 (1972 Supp.)

(repealed). In affirming convictions under the 1971 FECA’s

reporting provisions, one appellate court held, however, that criminal

violations required proof of “knowing” conduct, that is, knowledge

of operable facts. United States v. FinanceCommittee to Re-Elect the

President, 507 F.2d 1194, 1197-98 (D.C. Cir. 1974) (finding the

defendant’s secret transactions “clear indicators of guilty intent”).

The 1976 FECA amendments transferred all of the campaign

financing statutes that were in Title 18 to FECA, and also created a

statutory dichotomy between nonwillful violations involving any
178

amount, and knowing and willful violations involving $2,000 or more

within a calendar year. The former were expressly made subject to

the exclusive civil jurisdiction of the Federal Election Commission.

2 U.S.C. §§ 437g(a), 437d(e). The latter were made subject to both

civil enforcement proceedings by the FEC and criminal prosecution

by the Justice Department. 2 U.S.C. §§ 437g(a)(5)(B), 437g(d).

The 2002 FECA amendments augmented the Act’s criminal

misdemeanor penalty by enacting two felony penalties for FECA

crimes: knowing and willful violations aggregating $25,000 or more

in a calendar year are now five-year felonies, and violations involving

conduits that exceed $10,000 in a calendar year are two-year felonies.

§§ 437g(d)(1)(A)(i), 437g(d)(1)(D)(i).

The FEC pursues FECA violations under the statutory scheme

set forth in Section 437g(a). In brief, civil penalties can be imposed

through a “conciliation” process, which is roughly equivalent to an

administrative guilty plea with a stipulated penalty agreed upon by the

FEC and the respondent; civil penalties can also be imposed through

a civil suit brought by the FEC in federal district court. Civil

sanctions range from “cease and desist” agreements (in which the

respondent agrees not to commit a similar violation in the future) to

relatively substantial fines. The size of the civil fine depends both on

the amount involved in the violation and the degree of knowledge

and intent of the respondent. §§ 437g(a)(5), (6). The FEC possesses

subpoena power and the power to administer oaths, §§ 437d(a)(3) and

437d(a)(2), powers that it has been using with increasing frequency

in recent years.

3. Criminal Prosecution

As noted above, FECA has an internal criminal penalty

provision, Section 437g(d). In order for a FECA violation to be a

federal crime, Section 437g(d) generally requires that two elements

be satisfied: the violation must have been committed “knowingly

and willfully,” and, with certain exceptions, the amount involved in
179

the violation must aggregate $2,000 or more in a calendar year.

Moreover, a single pattern of illegal conduct can often involve several

FECA offenses, which may have different monetary thresholds. An

example would be corporate contributions in violation of Section

441b that are laundered through conduits in violation of Section 441f.

Prosecutions under the Act thus present three factual issues: intent,

aggregate value, and applicable penalties. These topics are discussed

next.

(a) Intent

For a FECA violation to have been committed “knowingly

and willfully,” the offender must have known what the law forbade

or required and violated that statutory prohibition or duty

notwithstanding that knowledge. United States v. Finance Committee

to Re-Elect the President, 507 F.2d 1194, 1197-1198 (D.C. Cir.

1974); see also National Right to Work Committee v. Federal

Election Commission, 716 F.2d 1401, 1403 (D.C. Cir. 1983) and

AFL-CIO v. Federal Election Commission, 628 F.2d 97, 101 (D.C.

Cir. 1980) (knowing and willful FECA violation requires “knowing,

conscious, and deliberate flaunting” of the Act).

Examples of evidence that has been used to prove that FECA

violations were committed knowingly and willfully include: 

• The use of surreptitious means, such as cash,

conduits, or false documentation, to conceal the

violation;

• Making a prohibited “in-kind” contribution by

paying directly for goods or services provided to

a recipient political committee;

• Proof that the offender is active in political fundraising and is personallywell-versed in the federal

campaign financing laws (such as offenders who
180

can be shown to be professional lobbyists or

fundraisers);

• Proof that the substantive FECA violation took

place as part of another felonious end (such as the

use of corporate funds to pay a bribe to a public

official in violation of 18 U.S.C. § 201, with the

bribe disguised as an ostensible campaign

contribution to the official’s campaign committee); and 

• Proof that the donor received information about

FECA prohibitions and requirements directly from

a candidate, political committee, or campaign,

e.g., through the use and execution of what are

called “donor cards.”

Four provisions of FECA address acts that are malum in se,

that is, inherently wrongful conduct from which willful intent to

violate the law can be inferred from mere proof that the prohibited

act was committed. These exceptional provisions are the Act’s prohibitions against: conversion of campaign funds (§ 439a); misrepresentation of campaign authorityto damage an opponent’s campaign

(§ 441h(a)); fraudulent solicitations (§ 441h(b)); and certain coerced

contributions by corporations and unions (§ 441b(b)(3)(A)).

(b) Aggregate value

Prior to November 6, 2002, when BCRA’s changes went into

effect, all violations of FECA’s substantive prohibitions that were

committed knowingly and willfully were, with two exceptions,

federal misdemeanors only if they involved conduct “aggregating”

$2,000 or more in a calendar year. 2 U.S.C. § 437g(d)(2000).

The exceptions to this $2,000 requirement were violations of the

prohibition in Section 441b(b) against the use by corporate or union

PACs of coerced contributions, and violations of the prohibition in
181

Section 441h against fraudulent misrepresentation of campaign

authority to damage another candidate or political party. 

In determining the aggregate value of a FECA violation, the

customary practice has been to include the overall “value” of a series

of violations that are committed by, and attributed to, a given

offender. For example, a $50,000 illegal corporate contribution

within a given calendar year that was illegally passed through 50

individuals serving as conduits would have an aggregate value of

$50,000.

BCRA retained the $2,000 jurisdictional threshold for FECA

misdemeanors, as well as its two exceptions noted above. It also

added a third exception to this monetary floor for violations of the

new prohibition against misrepresentation of campaign authority to

solicit contributions for a candidate or political party. 2 U.S.C.

§ 441h(b).

In addition, BCRA added two new monetary thresholds for

FECA crimes that occur after November 5, 2002 (when BCRA took

effect):

• All FECA violations “aggregating” $25,000 or

more in a calendar year are five-year felonies,

2 U.S.C. § 437g(d)(1)(A)(i); and

• Violations of FECA’s prohibition against the use

of conduit contributions (2 U.S.C. § 441f)

“aggregating” over $10,000 in a calendar year are

two-year felonies, 2 U.S.C. § 437g(d)(1)(D)(i).

Thus, if within the same calendar year an offender knowingly

and willfully contributes $24,000 in illegal corporate funds through

12 conduits to make the transactions appear legal, that offender

commits a felony violation of Section 441f, since the aggregate value

of the conduit violation exceeds $10,000. The offender also commits
Federal prosecutors should also consider whether any 

68

conduct before November 6, 2002, may still be prosecuted under criminal

statutes subject to a five-year statute of limitations, such as 18 U.S.C.

§§ 1001 and 371. Such statutes also apply, of course, to conduct after

BCRA’s effective date.

182

a misdemeanor violation of the corporate contribution prohibition in

Section 441b, since the violation aggregates more than $2,000, but

less than $25,000.

(c) Penalties

When this book was written, most FECA crimes prior to

BCRA had expired under the special three-year statute of limitations

that governed FECA offenses. Therefore, we do not focus on the

penalties that previously applied to FECA crimes that took place

before November 6, 2002, other than to note that such offenses were

all misdemeanors subject to one year of imprisonment and a fine of

the greater of (i) 300% of the aggregate value involved in the offense,

or (ii) the appropriate fine under 18 U.S.C. § 3571 (i.e., $100,000 for

each offense committed by an individual and $200,00 for each

offense committed by an organization).68

For FECA offenses that take place after November 5, 2002,

the following criminal penalties apply:

• All FECA violations that aggregate $25,000 or

more in a calendar year are felonies subject to

imprisonment for five years and, except for

conduit violations, fines imposed pursuant to 18

U.S.C. § 3571 (up to $250,000 for each offense by

an individual and up to $500,000 for each offense

by an organization). 2 U.S.C. § 437g(d)(1)(A)(i).

• Conduit violations (2 U.S.C. § 441f) that

aggregate more than $10,000 in a calendar year
183

are felonies: those aggregating under $25,000

are two-year felonies, and those aggregating

$25,000 or more are five-year felonies.

2 U.S.C. § 437g (d)(1)(D)(i). In addition, these

offenses are subject to a mandatoryminimum fine

of 300% of the amount involved in the violation,

and a maximum fine that is the greater of either

$50,000, or 1,000% of the aggregate value

involved in the offense, or the amount provided

for in 18 U.S.C. § 3571. 

 2 U.S.C. § 437g(d)(1)(D)(ii). 

• Fraudulent misrepresentations of campaign

authority to damage an opponent or to solicit

funds (2 U.S.C. § 441h) involving less than

$25,000 in a calendar year are misdemeanors

subject to one year of imprisonment and fines

imposed pursuant to 18 U.S.C. § 3571 (up to

$100,000 for each offense by an individual and up

to $200,000 for each offense by an organization).

2 U.S.C. § 437g(d)(1)(C). 

• Violations of the prohibition against the use of

coerced contributions by corporations and unions

(2 U.S.C. § 441b(b)(3)(A)) that aggregate $250 or

more in a calendar year are subject to one year of

imprisonment and fines imposed pursuant to

18 U.S.C. § 3571. 2 U.S.C. § 437g(d)(1)(B).

• Violations of all other FECA provisions that

aggregate $2,000 or more in a calendar year are

misdemeanors subject to one year of imprisonment and fines imposed pursuant to 18 U.S.C.

§ 3571. 2 U.S.C. § 437g(d)(1)(A)(ii).
184

Of course, the actual penalties imposed for these offenses are

subject to the guidance provided in the FECA sentencing guideline,

U.S.S.G. § 2C1.8.

4. Felony Theories for FECA Crimes

Prior to BCRA, when all FECA crimes were misdemeanors

and subject to a special three-year statute of limitations, prosecuting

aggravated campaign financing violations as Title 18 felonies offered

strategic advantages. For example, such cases were governed by the

general five-year criminal statute of limitations contained in

18 U.S.C. § 3282. Also, the sentencing calculus was usually harsher

for violations of Title 18 offenses than for FECA crimes. Finally,

conviction of a felony carried more serious collateral consequences.

The theories of prosecution developed prior to BCRA for

these purposes utilized the federal conspiracy and false statements

statutes, 18 U.S.C. §§ 371 and 1001. As discussed below, these

theories remain viable charging options for FECA crimes.

(a) Willfully causing submission of false 

information to the Federal Election

Commission. 18 U.S.C. § 1001 and § 2. 

Each political committee that seeks to influence a federal

election is required to have a treasurer who is required to file periodic

reports with the FEC of contributions to and expenditures by the

committee, including the identity of all persons contributing over

$200 in a calendar year. 2 U.S.C. §§ 432(a), 434(a), 434(b)(3)(A).

In addition, persons receiving a contribution to a political committee

must forward it to the treasurer, along with the identity of all donors

contributing over $50. 2 U.S.C. § 432(b). The treasurer’s reports

thus include information from individuals who have forwarded

contributions to the committee.
185

A treasurer who submits information concerning contributions

or expenditures to the FEC, knowing the information to be false,

violates 18 U.S.C. § 1001. A person involved in a transaction

reportable under FECA who attempts to disguise it, or misrepresents

its source, purpose, or amount, “willfully causes” the treasurer of the

recipient committee to furnish false information concerning the

transaction to the FEC in violation of l8 U.S.C. §§ 2(b) and 1001.

This information is “material” to the “jurisdiction” of the FEC in that

it impacts adversely upon the Commission’s statutory duties to make

public an accurate account of financial transactions done for the

purpose of influencing a federal election (2 U.S.C. § 438(a)(4)), and,

in situations when the concealed fact itself constitutes a violation of

FECA, to enforce the law (§§ 437d(a)(6), 437d(a)(9), 437g(a)(5)).

The application of Section 1001 to campaign financing

violations follows from United States v. Hansen, 772 F.2d 940 (D.C.

Cir. 1985). In this case, Congressman Hansen had been indicted and

convicted under Section 1001 for filing false reports with the House

Committee on Standards of Official Conduct under the 1978 Ethics

in Government Act (EIGA). Like a portion of FECA, EIGA is

essentially a disclosure statute; it applies to federal officeholders and

candidates, while FECA applies to persons seeking federal office.

Also like FECA, EIGA has an internal penalty that provides for

nonfelony sanctions. The D.C. Circuit rejected the contention that,

by enacting EIGA, Congress had repealed by implication existing

felony sanctions for false reports by public officials; the court held

that the civil penalty in EIGA and the felony penalty under Section

1001 “produce a natural progression in penalties,” and that “those

who lie on their [EIGA] forms” violate Section 1001. Hansen,

772 F.2d at 945.

The use of Section 1001, in conjunction with Section 2(b), to

prosecute those who willfully cause the treasurer of a political
186

committee to submit materially false data to the FEC has been upheld

by every court that has decided the issue. United States v. Hsia,

176 F.3d 517 (D.C. Cir. 1999); United States v. Kanchanalak,

192 F.3d 1037 (D.C. Cir. 1999); United States v. Curran, 20 F.3d 560

(3d Cir. 1994); United States v. Hopkins, 916 F.2d 207 (5 Cir. th

1990). See also United States v. Gabriel, 125 F.3d 89 (2d Cir. 1997)

(dicta) (analyzing the interrelationship between Section 1001 and

FECA). 

In Curran, the Third Circuit adopted a restrictive view of this

theory of prosecution, and required proof that the offender had

knowledge of the underlying FECA requirement or prohibition

involved in the violation, similar to the type of proof needed

for a conviction under FECA’s criminal provision. However, the

remainder of the circuits that have addressed this issue have rejected

Curran’s narrow reading of the law and have applied to Section 1001

prosecutions involving false FEC filings the same elements that apply

in other Section 1001/Section 2 cases. United States v. Hsia,

176 F.3d 517; see also United States v. Gabriel, 125 F.3d 89. These

elements are:

• the defendant caused another to make a statement

that was false; 

• the false statement concerned a matter that was

within the jurisdiction of the Federal Election

Commission; that is, the false statement related to

a fact that the Federal Election Campaign Act

required to be accurately reported; 

• the false statement was material to the FEC, that

is, it had the natural tendency to influence the

FEC in the performance of its official duties; and
187

• the defendant acted knowingly and willfully; that

is, the defendant intended to cause the recipient

of political contributions to record false statements concerning their source. However, the

government does not have to prove that the

defendant was aware ofthe statutory requirements

and prohibitions of FECA, that he purposefully

violated the Act, or that he was aware of the

federal agency’s interest in the matter falsified.

Proof that the defendant “acted deliberately and

with knowledge that the representation was false”

is sufficient. United States v. Hopkins, 916 F.2d

at 214.

(b) Conspiracy to defraud the United States.

 18 U.S.C. § 371

The “conspiracy to defraud” approach to FECA crimes is

based on Hammerschmidt v. United States, 265 U.S. 182 (1924),

which held that a conspiracy to defraud the United States under

Section 371 includes a conspiracy “to interfere with or obstruct one

of [the federal government’s] lawful governmental functions by

deceit, craft, or trickery, or at least by means that are dishonest.” Id.

at 188. See also Dennis v. United States, 384 U.S. 855, 861 (1966);

Haas v. Henkel, 216 U.S. 462, 469 (1910).

This conspiracy theory, as applied to the functioning of

the FEC, is as follows: the FEC, an agency of the United States, has

the principal statutory duties of enforcing FECA’s campaign

financing prohibitions and disclosure requirements and providing the

public with accurate information regarding the source and use of

contributions to federal candidates and expenditures supporting

federal candidates. 2 U.S.C. §§ 437c, 437d. To perform these duties
188

the FEC must receive accurate information from the candidates and

political committees that are required to file reports under the Act.

A scheme to infuse patently illegal funds into a federal campaign,

such as by using conduits or other means calculated to conceal the

illegal source of the contribution, thus disrupts and impedes the FEC

in the performance of its statutory duties.

As previously stated, prosecution under FECA’s criminal

provision requires proof that the defendant was aware of the

substantive FECA requirement he or she violated, and that he or she

violated it notwithstanding this active awareness of wrongdoing.

National Right to Work Committee v. Federal Election Commission,

716 F.2d 1401 (D.C. Cir. 1983); AFL-CIO v. Federal Election

Commission, 628 F. 2d 97 (D.C. Cir. 1980). However, when the

conduct is charged under Section 371, the proof must also show that

the defendant intended to disrupt and impede the lawful functioning

of the FEC. Indeed, the crux of a Section 371 FECA case is an intent

on the part of the defendant to thwart the FEC. That is a higher

factual burden than is required under 18 U.S.C. § 1001 in all but the

Third Circuit, and is arguably a greater factual burden than is required

by Section 437g(d).

The use of Section 371 in this manner has been approved by

the Third and Fifth Circuits. United States v. Curran, 20 F.3d 560

(3d Cir. 1994); United States v. Hopkins, 916 F.2d 207 (5th Cir.

1990).

5. Public Financing Crimes Relating to Presidential

 Campaigns

The anti-fraud provisions of the Presidential Primary

Matching Payment Account Act, 26 U.S.C. §§ 9031-9042, and the

Presidential Election Campaign Fund Act, 26 U.S.C. §§ 9001-9012,
189

are five-year felonies and can be used to prosecute aggravated

campaign financing schemes involving presidential campaigns.

26 U.S.C. §§ 9012, 9042.

These statutes were enacted after the Supreme Court struck

down the 1974 FECA’s limits on campaign expenditures by federal

candidates as violative of free speech. Buckley v. Valeo, 424 U.S. 1

(1976). The statutes tie eligibility for federal funds to voluntary

adherence to campaign expenditure limits by participating candidates.

Thus, presidential candidates are given a choice between making

unlimited campaign expenditures or accepting public funds for their

campaigns in return for agreeing to abide by campaign expenditure

limits.

The “matching payment” statute applies to the presidential

primary campaign. It provides that, once certain statutory qualifications are met, a presidential candidate is entitled to receive

matching payments (for contributions up to $250 from individual

donors) from the United States Treasury for his or her campaign, up

to half of the applicable total campaign spending limit. 26 U.S.C.

§ 9034(b). Presidential candidates who choose to accept primary

campaign matching funds are subject to FECA’s campaign

expenditure limits. 2 U.S.C. § 441a(b).

The general election funding statute allows a candidate who

has been nominated by a major party (i.e., the Republican Party or the

Democratic Party) or by a qualifying minor or new party for the

Presidency to receive all of his or her campaign funds from the

United States Treasury. 26 U.S.C. § 9004(a)(1). Presidential

candidates who choose to accept this federal grant are subject to the

campaign expenditure limits in 2 U.S.C. § 441a(b), and are also for

the most part prohibited from accepting any private contributions in
190

connection with the general election phase of their campaigns.

26 U.S.C. §§ 9003, 9012.

Both public financing statutes contain bookkeeping and

reporting requirements, and also require that each campaign receiving

federal funds submit to a post-election audit by the FEC. 26 U.S.C.

§§ 9033, 9003. Participating candidates must also agree to pay back

all funds which the FEC determines were not used for campaign

purposes, or which were spent in excess of the expenditure limit,

were not matchable, or were otherwise illegal. 26 U.S.C. §§ 9038,

9007.

Each of these statutes contains its own criminal provision for,

among other things, providing false information to the FEC to obtain

public funds, which is punishable by imprisonment for up to five

years and a fine under 18 U.S.C. § 3571. 26 U.S.C. §§ 9042(c),

9012(d). Prosecutors considering false statement charges in

connection with conduct violating one of these public funding laws

thus have the choice of using either the public funding statute that

specifically addresses the conduct or the general false statements

statute, 18 U.S.C. § 1001. See United States v. Curran, 20 F.3d 560

(3rd Cir. 1994) (affirming Section 1001 charge for election law

offense); United States v. Hopkins, 916 F.2d 207 (5th Cir.1990)

(same); see also United States v. Woodward, 469 U.S. 105 (1985)

(affirming Section 1001 charge for currency reporting offense).

The administration and civil enforcement of these grant

programs are within the FEC’s sole jurisdiction. However, since

these are federal funding programs, with federal candidates as the

beneficiaries, if there is evidence of an intent to defraud the United

States in the implementation of these programs, criminal prosecution

is warranted and should be pursued.
United States v. Clapps, 732 F.2d 1148 (3rd Cir. 1984); 69

United States v. States, 488 F.2d 761 (8th Cir. 1973). 

191

6. Violations of State Campaign Financing Laws

All states have campaign financing laws. Like their federal

counterpart, these state laws prohibit contributions from certain

sources, in some instances they limit the amounts that can be given

to state and local candidates, and in most instances they impose

transparency requirements on state and local candidates and political

committees that are engaged in influencing state and local elections.

Federal law does not directly criminalize violations of state

campaign financing laws. Federal prosecutors should consider,

however, whether the underlying conduct violates federal criminal

law. 

Two federal fraud statutes (18 U.S.C. §§ 1341 and 1346) have

been used in the recent past to reach certain violations of state

campaign financing laws. These are discussed below. 

(a) 18 U.S.C. § 1346. Honest services frauds

In McNally v. United States, 483 U.S. 350 (1987), the

Supreme Court ruled that a scheme to defraud citizens of the honest

services of a public official was not, in itself and in the absence of a

proven pecuniary loss, a violation of the mail fraud statute, 18 U.S.C.

§ 1341. The Court in fact cited as examples several election fraud

cases it believed did not present violations of the mail fraud statute in

which the lower appellate courts had held that the mail fraud statute

was applicable to schemes to deprive others of fair elections.

69
192

Prior to McNally, two circuits had held that the “intangible

rights” theory of mail and wire fraud also reached schemes to deprive

the inhabitants of a state of information that was required to be

accurately disclosed under state campaign financing and lobbying

disclosure laws. United States v. Curry, 681 F.2d 406 (5th Cir.

1982); United States v. Buckley, 689 F.2d 893 (9th Cir. 1982).

In response to the McNally decision, Congress passed

18 U.S.C. § 1346 the following year. Section 1346 defines a “scheme

or artifice to defraud” for purposes of the mail and wire fraud statutes

to include a scheme to deprive another of “the intangible right of

honest services.” 

The appellate jurisprudence that has emerged since 1988

concerning the application of Section 1346 to the relationship

between public officials and the people establishes that the statute

was intended to reach traditional types of public corruption (e.g.,

bribery, extortion, aggravated conflicts of interest, thefts,

embezzlements, and some gratuities when the conduct violates state

laws). See, e.g., United States v. Brumley, 116 F.3d 728 (5th Cir.

1997); United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997);

United States v. Sawyer, 85 F.3d 713, 723-24 (1st Cir. 1996); United

States v. Bryan, 58 F.3d 933, 939-43 (4th Cir. 1995); United States

v. Waymer, 55 F.3d 564, 568 (11th Cir. 1995).

A few courts have suggested that Section 1346 may extend

beyond traditional corruption to reach schemes to violate state

campaign financing laws. See United States v. Walker, 97 F.3d 253

(8th Cir. 1996) (upholding mail fraud convictions under salary and

intangible rights theories in a scheme to ensure a local candidate’s

election by secretly financing a straw candidate when application of

the statute was not challenged); United States v. Grubb, 11 F.3d 426

(4th Cir. 1993) (upholding mail fraud convictions arising from a
The federal wire fraud statute, 18 U.S.C. § 1343, is essen70

tially identical to the mail fraud statute, except for its jurisdictional

element, and thus has potential application to election fraud schemes that

are furthered by interstate wires. 

193

secret bribe payment to a local candidate). However, in United States

v. Turner, 459 F.3d 775 (6th Cir. 2006), the Sixth Circuit held that

candidates do not owe a fiduciary duty of honest services to the

public in the sense that holders of public office do, and that 18 U.S.C.

§ 1346 does not apply to schemes by candidates for public office to

violate state campaign financing laws.

In view of the Turner decision, federal prosecutors

considering using Section 1346 to reach schemes involving voter

fraud or state campaign financing violations should consult with the

Public Integrity Section.

(b) 18 U.S.C. § 1341. Mail fraud

The federal mail fraud statute prohibits the use of the mails to

further a “scheme or artifice to defraud.” 18 U.S.C. §1341. As 70

discussed above, the Supreme Court ruled in 1987 that these words

were confined to schemes to obtain money or property.

A prosecutive theory that has been used with modest success

permits a scheme to corrupt an election to be prosecuted as a “scheme

to obtain money and property” when the scheme involves, as one of

its motives, obtaining for the favored candidate an elected office that

carries with it a salary and emoluments that have pecuniary value.

The crux of this so-called “salary theory” of pecuniary fraud is that

the perpetrators obtained for the favored candidate materially

defective ballots that were void; that they intended to conceal the

defective nature of the ballots in question from the election
194

authorities charged with counting the votes and certifying the winner

of the election; and that, since in a democracy the principal

qualification for attaining elective office is that thewinning candidate

received the most valid votes, such a scheme had as one of its

objectives obtaining the office – along with its pecuniary emoluments

– for the favored candidate.

One reported decision has taken this theory of prosecution a

step further and applied it to a scheme by a candidate for the New

York State Senate to conceal from hisstate campaign finance reports

that the candidate was required to file under state law the material fact

that his campaign was being financed by individuals who were

publicly known to have been associated with organized crime.

United States v. Schermerhorn, 713 F. Supp. 88 (S.D. N.Y. 1989).

See also United States v. Walker, 97 F.3d 253 (8 th Cir. 1996)

(leaving undisturbed unchallenged mail fraud convictions involving

false state campaign filings based on salary and honest services

theories). However, as noted above, in Turner the Sixth Circuit

analyzed the underpinnings of the “salary theory” of mail and wire

fraud in the context of a vote-buying case involving false state

campaign reports and concluded that the theory does not apply to

schemes involving voting or campaign financing. As with situations

involving the use of Section 1346 in the context of election fraud or

financing schemes, in view of Turner, federal prosecutors anticipating

using the salary theory in such situations should consult with the

Public Integrity Section.

7. Schemes to Divert Campaign Funds

Recent years have seen a dramatic rise in the number of cases

in which candidates and campaign fiduciaries steal money that has

been contributed to a candidate or political committee for the purpose
195

of electing the candidate or the candidates supported by the political

committee. These situations warrant aggressive federal enforcement.

Campaign fund diversion cases generally fall into three factual

scenarios:

• Diversion by a candidate or campaign agent of

incoming contributions to the candidate or committee

before the contributions are deposited;

• Embezzlement by a campaign agent or other person of

contributions to a candidate or committee that have

been deposited into the campaign’s account; and

• Establishment of a fictitious political organization for

the purpose of raising funds to be converted to personal

use.

The first two scenarios include theft of contributions to a

candidate. These cases are usually prosecuted as FECA crimes under

2 U.S.C. § 439a, or as mail or honest services frauds under 18 U.S.C.

§§ 1341 and 1346. Embezzlement of funds contributed to political

committees may be prosecuted as mail or honest services fraud. In

addition, all three scenarios may be prosecuted as reporting offenses

under 2 U.S.C. § 434 or as false statements under 18 U.S.C. § 1001.

These theories are discussed below.

(a) FECA conversion 

FECA regulates the use of funds contributed to a federal

candidate in 2 U.S.C. § 439a. Section 439a(b) prohibits the
 The statute lists a number of items that would be a pro71

hibited “personal use,” such as home mortgages, clothing, or any “expense

of a person that would have existed irrespective of the candidate’s election

campaign or individual’s duties as a holder of Federal office.” § 439a(b).

196

conversion “by any person to personal use” of funds that were 71

contributed to a federal candidate, and further provides that such

funds may only be used:

• to support the candidate’s campaign for federal

office;

• to defray the candidate’s expenses as a holder of

federal office;

• to make contributions to charitable organizations

that are exempt from federal taxation under

26 U.S.C. § 501(c)(3); and

• to make transfers – without limit – to national,

state, or local committees of a political party.

Violations of Section 439a are subject to the penalties

described above for criminal FECA violations. If the violations took

place after January 25, 2003, they are also subject to the advisory

effect of U.S.S.G. § 2C1.8. E.g., United States v. Taff, 400 F. Supp.

2d 1270 (D. Kan. 2005) (rejecting motion to dismiss indictment

charging § 439a based on candidate’s temporary use of campaign

funds for house closing).
Copies of these charges, to which the defendants pled guilty,

72

can be obtained from the Public Integrity Section. 

Several significant false reporting cases were prosecuted 73

during the early days of FECA, before the FEC was created. E.g., United

States v. Finance Committee to Re-elect the President, 507 F.2d 1194

(D.C. Cir. 1974) (upholding convictions for willful failure to report a

$200,000 cash contribution). 

197

(b) Deprivation of honest services

Officials and fiscal agents of a candidate’s campaign or any

other political committee owe a fiduciary duty to the committee they

serve, and they breach that fiduciary duty if they convert contributions

entrusted to them to their personal use. If the scheme is furthered by

use of the mails or interstate wires, it may be charged as mail or wire

fraud. Examples of campaign embezzlement cases are United States

v. Thomas,Cr. No. 05-0423 (D.D.C., information filed November 30,

2005); United States v. Bracewell, Cr. No. 91-57-N (M.D. Ala.,

superseding indictment filed May 9, 1991); and United States v.

Karlsen, Cr. No. 89-353 (D. Az., indictment filed Oct. 18, 1989).72

(c) Reporting offenses

The conversion of campaign funds is generally accompanied

by concealment of the embezzlement on reports filed with the FEC

pursuant to 2 U.S.C. § 434(b). In those situations, concealment of the

embezzlement can be addressed through 18 U.S.C. § 1001, as

discussed above, as well as under FECA’s Section 434.73
198

8. Administrative and Civil Enforcement by the

 Federal Election Commission

The Federal Election Commission has exclusive authority to

enforce FECA’s noncriminal penalties. 2 U.S.C. §§ 437g(a)(5),

437d(e). In addition, the Commission has statutory authority to

interpret the statute through regulations and advisory opinions, and its

opinion should be given deference. 2 U.S.C. §§ 437c(b)(1),

437d(a)(7), 437d(a)(8), 437d(e), 437f; Federal Election Commission

v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37

(1981).

All FECA violations, including those committed knowingly

and willfully, are subject to administrative and civil sanctions

enforced by the FEC. The FEC has the power to levy fines through

its enforcement procedures, and to seek civil penalties in court, but it

cannot prosecute FECA offenses.

FECA violations that are committed knowingly and willfully

and involve aggregate values that satisfy the monetary thresholds in

the Act’s criminal provision, 2 U.S.C. § 437g(d), are also federal

crimes. These cases are prosecuted by the Department of Justice.

9. Criteria for Prosecutive Evaluation of 

FECA Violations

As discussed above, BCRA significantly enhanced the

criminal penalties for knowing and willful violations of the Federal

Election Campaign Act. BCRA did so in response to identified

anti-social consequences, namely, corruption and the appearance of

corruption arising from FECA violations, and their adverse effect on

the proper functioning of American democracy. These issues are

addressed comprehensively in the excerpts from the Supreme Court’s
199

decision in McConnell v. Federal Election Commission, 540 U.S. 93

(2003) that are contained in Appendix A.

In view of the enhanced criminal penalties for FECA crimes

and the legislative history supporting their enactment, it is the Justice

Department’s position that all knowing and willful FECA violations

that exceed the applicable jurisdictional floor specified in the Act’s

criminal provision should be considered for federal prosecution under

one or more of the prosecutive theories presented above.

10. Venue for FECA Offenses

The campaign financing statutes focus on the “making” and

“receiving” of contributions and expenditures, and venue generally

lies where a prohibited transaction was made or received. While this

presents no problems in cases involving intradistrict transactions, an

appeals court has interpreted “making a contribution” so narrowly

that serious difficulties may be encountered in establishing a

centralized venue over multi-district FECA violations. United States

v. Passodelis, 615 F.2d 975 (3d Cir. 1980).

In Passodelis, a campaign fundraiser had been convicted

under 2 U.S.C. §§ 441a and 441f predecessor statutes for making

excessive contributions to a presidential candidate through conduits

in four states. Venue was laid in the district where the political

committee to which these donations were given had its offices and

bank accounts. The court of appeals held that cases against the

donors had to be brought in the district where the donors “made” the

prohibited donations, and that this concept did not encompass the

district where the donee deposited the funds. Prosecutors facing

similar fact situations should contact the Public Integrity Section to

discuss potential venue problems.
200

In United States v. Chestnut, 533 F.2d 40 (2d Cir. 1976), the

Second Circuit held that the act of “receiving” a prohibited

contribution or expenditure encompassed the donee’s acceptance of

it. Therefore, multi-district acceptance, or “donee,” cases may be

brought in the district where the donee accepted the donation.

Venue for reporting offenses lies generally where the

inaccurate report was prepared, dispatched, or received by the FEC.

The FEC’s offices are in the District of Columbia.

11. Statute of Limitations for Campaign

 Financing Offenses

Prior to the enactment of BCRA, the statute of limitations for

prosecuting campaign financing violations under FECA’s

misdemeanor provision was three years. 2 U.S.C. § 455 (2001). This

brief statute of limitations period presented substantial law

enforcement problems. E.g., United States v. Hankin, 607 F.2d 611

(3d Cir. 1979) (proof that contribution was deposited within the

limitations period held not sufficient when other acts related to

making the contribution occurred outside the period); United States

v. Curran, 20 F.3d 560 (3d Cir. 1994) (noting that conduct charged

under Title 18 would have supported FECA misdemeanor charge that

was barred by the Act’s three-year statute of limitations).

BCRA amended Section 455 and extended FECA’s criminal

statute of limitations to five years, the same as the general statute of

limitations for most federal crimes. 18 U.S.C. § 3282. The five-year

limitations period also governs the prosecution of conduct based on

FECA violations that is prosecuted under 18 U.S.C. § 371 or § 1001.

Id. This five-year period also applies to FECA-based crimes charged

as frauds under the public financing provisions governing presidential

campaigns. 26 U.S.C. §§ 9012(c), 9042(b).
201

F. POLICY AND PROCEDURAL CONSIDERATIONS

1. Consultation Requirements and Recommendations

For the past three decades, the Public Integrity Section has

coordinated the Department’s law enforcement efforts over campaign

financing crimes with United States Attorneys’ Offices. The Section

has two main goals in this area: to provide prompt and accurate

guidance regarding the prosecutive potential of campaign financing

allegations, and to assist the United States Attorneys’ Offices and the

FBI in bringing effective criminal penalties to bear when warranted.

Not all FECA violations are federal crimes, either because

they lack the requisite criminal intent or because they do not meet the

applicable monetary floor for FECA crimes. Early consultation with

the Public Integrity Section assists the Department, the United States

Attorneys’ Offices, and the FBI by ensuring that investigative and

prosecutorial resources are focused on FECA violations only when

appropriate.

Accordingly, the Department requires that the Public Integrity

Section be consulted before beginning any criminal investigation,

including a preliminary investigation, of a matter involving possible

violations of FECA. USAM § 9-85.210. This consultation is also

required before any investigation of campaign financing activities

under one of the Title 18 felony theories discussed above, as these

prosecutive theories are based on FECA violations. Id. The Public

Integrity Section also recommends that the Section be consulted

before commencing an investigation of possible violations of the

public funding programs in Title 26.

Facts reflecting possible noncriminal FECA violations, which

are either reported to the Justice Department or generated during an
202

investigation of other offenses, should be brought to the attention of

the Public Integrity Section, which will forward them to the FEC.

2. Investigative Jurisdiction

Criminal investigations of possible FECA violations, as well

as violations of 26 U.S.C. §§ 9012 and 9042, are conducted by the

FBI and other federal law enforcement agencies. Civil investigations

are conducted by the FEC. The FEC is authorized by statute to

conduct a civil inquiry parallel to an active criminal investigation

involving the same matter. 2 U.S.C. §§ 437d (a)(9), 437d(e). Parallel

proceedings present unique challenges to federal prosecutors and

investigators. In these cases the Public Integrity Section should be

consulted to ensure that any procedures or agreements regarding

parallel proceedings are followed. 

3. Nonwaiver of the Federal Election Commission’s

 Civil Enforcement Authority

The FEC’s enforcement jurisdiction over noncriminal FECA

violations cannot be compromised or waived by the Department of

Justice. 2 U.S.C. §§ 437d(a)(6), 437d(e). Accordingly, plea

agreements with defendants who have possible noncriminal exposure

for FECA violations must contain a specific disclaimer to the effect

that the Department of Justice is not waiving the civil enforcement

jurisdiction of the FEC, such as the following:

Nothing in this agreement waives or limits in any

way the authority of the Federal Election

Commission to seek civil penalties or other

administrative remedies for violations of the Federal

Election Campaign Act pursuant to Section 437g(a)

of Title 2, United States Code.
203

4. Dealings with the Federal Election Commission

As discussed above, the FEC and the Justice Department have

overlapping enforcement responsibilities over willful and aggravated

violations of FECA. At the same time, the FEC is an independent

executive agency responsible for the oversight and civil enforcement

of the federal campaign financing laws. The Commission’s independent authority requires that the Department respect the FEC’s

enforcement efforts. Over time, the Public Integrity Section has

developed good relationships with the FEC and itsstaff, and can help

prosecutors and agents quickly obtain the information they need from

the FEC. The FEC’s Public Records Division has long been a helpful

resource in developing campaign financing cases. 

The United States Attorneys’ Offices and the FBI should,

whenever possible, route inquires to the FEC through the Public

Integrity Section. Doing this avoids confusion and increases the

likelihood of a cooperative response from the Commission. It also

helps to ensure that the good working relationship between the two

agencies is maintained. The Section has also had success in recent

years in working with the FEC to ensure that the Commission’s civil

enforcement responsibilities do not interfere with the Department’s

overlapping criminal jurisdiction. On occasion the FEC has voluntarily delayed moving forward with its own proceedings in order to

avoid potential adverse effects on a pending criminal investigation.

5. Federal Election Commission Officials as 

 Prosecution Witnesses

The prosecution of criminal cases involving FECA violations

generally requires testimony from expert witnesses and document

custodians from the FEC. In light of the new felony penalties for

FECA crimes enacted by BCRA and the continued utility of FECA
This is a departure from the usual practice of relying on oral 74

or written requests for trial testimony from federal government personnel.

204

fraud cases under the Hopkins and Hsia theories, it is likely that the

number of FECA criminal cases will continue to grow, as will the

Department’s need for such witnesses.

In order to utilize 18 U.S.C. §§ 371 or 1001 in a felony fraud

under FECA, the prosecutor must prove that the filings on which the

case is based were false to a point that they had the potential to

mislead or disrupt the FEC’s ability to discharge its statutory

responsibilities. AUSAs seeking FEC witnesses should contact the

Public Integrity Section, which will arrange for an FEC official who

possesses the requisite expertise to testify to these issues. The FEC

has advised that requests for FEC staff to appear as prosecution trial

witnesses should be made by subpoena.74

In 1991, the Justice Department’s Justice Management

Division (JMD) concluded that the travel and subsistence expenses

of FEC staff who testify for the prosecution at FECA-based criminal

trials are to be borne by the Department. Therefore, before a subpoena is served on an FEC employee to testify as a trial witness, the

AUSA handling the case should prepare a JMD expert witness form

(OBD 47) providing information about the case and the FEC

employee’s role in it. This form is then to be submitted to JMD,

which will generate a financial commitment form to accompany the

trial subpoena when it is served on the prospective FEC witness.
205

6. Memorandum of Understanding between 

 the Federal Election Commission and the 

 the Department of Justice

In 1977, the FEC and the Department of Justice entered into

a Memorandum of Understanding relating to their respective law

enforcement jurisdiction and responsibilities. 43 FED. REG. 5441

(1978). The text of the 1977 Memorandum of Understanding is

contained in Appendix B.

However, in light ofthe significant statutory enhancements to

the Department’s ability to prosecute FECA crimes that were

contained in the 2002 Bipartisan Campaign Reform Act, the 1977

Memorandum no longer reflects current congressional intent or

Department policy. The Department and the FEC have begun

negotiations for an updated Memorandum of Understanding.

.
206
207

CHAPTER SIX

SENTENCING OF ELECTION CRIMES

A. OVERVIEW

This chapter discusses the sentencing of election crimes

pursuant to the United States Sentencing Guidelines promulgated by

the United States Sentencing Commission. U. S. SENTENCING

GUIDELINES MANUAL (U.S.S.G. or sentencing guidelines). 

 

1. Categories of Election Crimes

Forsentencing purposes, election crimes are divided into four

categories:

(1) Offenses involving corruption of the electoral process.

This type of offense is governed by U.S.S.G. § 2H2.1.

(2) Offenses that violate the Federal Election Campaign

Act (FECA). Campaign financing offenses that occur after January

25, 2003, are governed by U.S.S.G. § 2C1.8, a new guideline that was

promulgated by the United States Sentencing Commission in

response to a congressional mandate in the Bipartisan Campaign

Reform Act of 2002 (BCRA). Prior to January 25, 2003, there was

no guideline, or analogous guideline, that applied to FECA offenses

and therefore FECA crimes were sentenced pursuant to U.S.S.G.

§ 2X5.1. 
208

(3) Campaign financing offenses addressed by alternative

theories of prosecution. Certain campaign financing crimes also may

be prosecuted under Title 18 statutes, such as 18 U.S.C. § 371

(conspiracy), § 1001 (false statements), § 1341 (mail fraud), § 1343

(wire fraud), and § 1346 (honest services fraud). Conspiracy and

fraud offenses are governed by U.S.S.G. § 2C1.1. False statement

offenses that occur after January 25, 2003, are governed by the new

FECA guideline pursuant to the cross-reference for fraudulent

statements in U.S.S.G. § 2B1.1(c)(3). In the case of false statements

offenses occurring before this date, federal prosecutors should argue

that the FECA guideline should be considered as a relevant

sentencing factor pursuant to 18 U.S.C. § 3553(a). 

(4) Patronage offenses. To date, there has been no jurisprudence addressing the application of the sentencing guidelines to

patronage offenses. Some of these crimes (e.g., 18 U.S.C. §§ 600,

601) may be governed by the fraud guideline, U.S.S.G. § 2B1.1.

Others (e.g., 18 U.S.C. §§ 602, 606, 610) may be governed by the

robbery and extortion guideline, U.S.S.G. § 2B3.1. A few do not

appear to be governed by any guideline, and thus would be handled

for sentencing purposes under U.S.S.G. § 2X5.1. 

B. CONVICTIONS INVOLVING CORRUPTION OF

THE ELECTORAL PROCESS 

 

The guideline that governs sentencing for convictions that

involve corruption of the electoral process is U.S.S.G. § 2H2.1. By

its terms, this guideline applies to corruption of the electoral process

regardless ofthe type ofscheme involved orfederal statute it violates.

The guideline provides for three alternative base offense levels (18,

12, or 6) depending upon the nature of the conduct involved in the

offense. Specifically, Section 2H2.1 reads as follows: 
209

§2H2.1. Obstructing an Election or Registration

 (a) Base Offense Level (Apply the greatest):

(1) 18, if the obstruction occurred by use of

force or threat of force against person(s) or

property; or

 (2) 12, if the obstruction occurred by forgery,

fraud, theft, bribery, deceit, or other means,

except as provided in (3) below; or

(3) 6, if the defendant (A) solicited, demanded,

accepted, or agreed to accept anything of value

to vote, refrain from voting, vote for or against

a particular candidate, or register to vote,

(B) gave false information to establish

eligibility to vote, or (C) voted more than once

in a federal election.

Most election frauds involve offenders who have schemed,

either by themselves or with others, to cause numerous illegal ballots

to be cast through such methods as forgery, fraud, bribery, voter

impersonation, multiple voting, or ballot-box stuffing. Such conduct

falls within U.S.S.G. § 2H2.1(a)(2) and calls for a base offense level

of twelve. Relevant conduct, as defined in U.S.S.G. § 1B1.3(a),

should be considered in selecting the appropriate base offense level.

Three circuits have approved sentencing calculations under

this guideline: 

In United States v. Smith, 231 F.3d 800 (11th Cir. 2000), the

Eleventh Circuit discussed the application of Section 2H2.1(a)(2) to
210

a voter fraud scheme involving a deputy voter registrar and a political

activist. The defendants were charged and convicted of multiple

voting (i.e.,marking ballots in the names of voters without the voters’

knowledge) in violation of 42 U.S.C. § 1973i(e), and forging voters’

names on applications for absentee ballots and on ballots in violation

of 42 U.S.C. § 1973i(c). The Eleventh Circuit approved the

following guideline calculations made bythe district court: (1) a base

offense level of twelve for both defendants; (2) a two-level

enhancement for the deputy registrar for abuse of a position of public

trust under U.S.S.G. § 3B1.3; (3) a four-level enhancement for both

defendants based on the court’s finding that each was an “organizer

or leader of criminal activity that involved five or more participants”

under U.S.S.G. § 3B1.1(a); and (4) a two-level enhancement for the

political activist for obstructing justice based on evidence that the

defendant influenced a witness to give a false affidavit concerning

material facts. 

United States v. Cole, 41 F.3d 303 (7th Cir. 1994), also

involved a deputy voter registrar who was convicted of multiple

voting in violation of 42 U.S.C. § 1973i(e). Proof at trial established

that the defendant applied for and marked absentee ballots for several

voters without their knowledge and consent, and that he threatened

one of these voters to dissuade him from cooperating in the ensuing

criminal investigation. The district judge assigned a base offense

level of twelve to the offense under Section 2H2.1(a)(2), and applied

enhancements for the leadership role in a conspiracy involving five

or more participants under Section 3B1.1(a) (four levels), abuse of a

position of public trust under Section 3B1.3 (two levels), and

obstruction of justice under Section 3C1.1 (two levels), for a total

offense level of twenty. The defendant was sentenced to forty-six

months of imprisonment. The Seventh Circuit held that the district

judge’s sentencing analysis was accurate. 
211

In United States v. Haynes, 977 F.2d 583, WL 296782 (6th

Cir. 1992) (table), the defendants, party officials authorized to register

voters, were convicted of conspiracy against rights and deprivation of

constitutional rights in violation of 18 U.S.C. §§ 241 and 242 by

destroying over 150 voter registration applications. Starting with a

base level of twelve, they received upward adjustments of two levels

for abuse of a position of trust, and five levels for multiple counts,

resulting in a total offense level of nineteen. The trial court imposed

sentences of thirty months of imprisonment. The Sixth Circuit

upheld these sentences with the exception of a two-level reduction for

the less culpable defendant. 

Other election fraud convictions have resulted in similar

calculations under the sentencing guidelines. E.g., United States v.

Slone, 411 F.3d 643 (6th Cir. 2005) (affirming defendant’s conviction

for vote buying in violation of 42 U.S.C. § 1973i(c) and sentence of

fifteen months’ imprisonment calculated on a base offense level of

twelve under § 2H2.1(a)(2), plus a two-level enhancement for

obstructing justice under § 3C1.1(b) for lying to the FBI);

United States v. Sparkman, Cr. No. 99-30 (E.D. Ky. July 12, 2000)

(sentencing proceeding) (following conviction for vote buying in

violation of 42 U.S.C. § 1973i(c) and lying to the FBI in violation of

18 U.S.C. § 1001, sentence of twenty-four months’ imprisonment

calculated on a base offense level of twelve under § 2H2.1(a)(2), a

three-level enhancement for leadership role under § 3B1.1(b), and

two-level enhancement for obstruction of justice under § 3C1.1(b),

for a total offense level of seventeen); United States v. Boards, Cr.

No. LR-92-183 (E.D. Ark. Sept. 12, 1994) (sentencing proceeding)

(following convictions for conspiracy and providing false information

under § 1973i(c); total offense level of eight; prison term of thirteen

months imposed), 10 F.3d 587 (8th Cir. 1993) (reversing trial court’s

judgments of acquittal on several counts and affirming other

convictions); United States v. Salisbury, Cr. No. 2-90-197 (S.D. Ohio
212

Oct. 8, 1991) (sentencing proceeding) (conviction for multiple voting

in violation of 42 U.S.C. § 1973i(e); total offense level of fourteen;

prison term of eighteen months imposed), rev'd on other grounds,

983 F.2d 1369 (6th Cir. 1993) (statute unconstitutionally vague as

applied to defendant's conduct). 

The Smith and Cole cases illustrate several issues prosecutors

are likely to face in this area. First, all the defendants received

four-level enhancements for their role in the offenses. In Cole, the

defendant had contended that the fifteen voters involved were victims

of the conspiracy, not "participants" within the meaning of Section

3B1.1. The court agreed with the government that, regardless of

whether the voters were participants or outsiders, the criminal activity

was “otherwise extensive" within the meaning of Section 3B1.1(a).

In addition, both district courts found that a deputy voter registrar

occupied a position of trust, requiring a two-level increase under

Section 3B1.3. The Sixth Circuit also approved this upward

adjustment in Haynes. 

The Smith case presented another important sentencing issue.

The defendants argued that the offense was essentially a “multiple

voting” crime, and the appropriate base level for “multiple voting”

was six under Section 2H2.1(a)(3) rather than twelve under Section

2H2.1(a)(2). Their argument was based on the fact that the words

“multiple voting” appear in Section 2H2.1(a)(3). The Eleventh

Circuit held that despite this specific reference, Section 2H2.1(a)(3)

was intended to apply only to isolated instances of electoral fraud

(e.g., one person voting twice), and that Subsection (a)(2), not (a)(3),

governed all vote fraud schemes that entailed the casting of several

corrupt ballots:
213

 We agree with the district court that the appropriate

base offense level was 12, as provided in Section

2H2.1(a)(2). The language of (a)(2) applies in any case

 in which a forgery, fraud, theft, bribery, deceit or other

 means are used to effect the vote of another person, or

the vote another person was entitled to cast. By

contrast, the language of (a)(3) addresses an individual

who acts unlawfully only with respect to his own vote, or

votes more than once in his own name. The offenses for

which Smith and Tyree were convicted involved the votes

of other individuals, in particular, the forging of other

voters’ names on applications for absentee ballot and

affidavits of absentee voters. The district court did not

 err in applying a base offense level of 12. 

Smith, 231 F.3d at 817-18.

In summary, certain factors that are often involved in election

frauds will increase recommended sentences under the sentencing

guidelines:

• A defendant who occupies a leadership or supervisory

role in an election fraud scheme may receive an

additional two to four levels under Section 3B1.1.

• A defendant who abuses a position of public or private

trust (such as a public official who uses his or her

office to facilitate election fraud, or a private individual

who fraudulently marks and submits ballots entrusted

to him or her by voters) will receive two additional

offense levels under Section 3B1.3. U.S.S.G. § 2H2.1,

cmt. background (1998).
214

• If individual voters are viewed as vulnerable victims,

separate substantive counts under Section 2H2.1

generally cannot be grouped under Section 3D1.2, so

that counts involving multiple voters may result in

increases of up to an additional five levels.

• Obstruction may add increased levels under Section

3C1.1. See Slone, 411 F.3d 643 (lying to the FBI);

Cole, 41 F.3d 303 (threatening a witness);

• If the election fraud involved “corrupting a public

official," an upward departure may be warranted under

Chapter Five, Part K (Departures). U.S.S.G. § 2H2.1,

cmt. n.1 (1998).

Thus, even for defendants without a criminal history, the

guidelines' upward adjustments generally raise the base offense level

for election fraud to a point where the imposition of significant prison

terms is recommended.

C. CONVICTIONS INVOLVING VIOLATIONS OF

THE FEDERAL ELECTION CAMPAIGN ACT

For the purpose of sentencing criminal violations of the

Federal Election Campaign Act (FECA), the date January 25, 2003

is significant as this is the date that a new sentencing guideline for

FECA offenses took effect: U.S.S.G. § 2C1.8. The FECA guideline

was the result of a mandate to the United States Sentencing

Commission contained in the Bipartisan Campaign Reform Act of

2002 (BCRA). Sentencing of FECA offenses occurring after January

2003 are handled under the FECA guideline; sentencing of FECA

crimes occurring prior to this date are treated under criteria, discussed

below, that the Department had established prior to BCRA. 
215

1. Campaign Financing Crimes Before the 

 Bipartisan Campaign Reform Act of 2002 

Prior to BCRA, knowing and willful violations of FECA that

met certain monetary thresholds were one-year misdemeanors.

2 U.S.C. § 437g(d)(1)(A) (2001). As noted above, no sentencing

guideline addressed or was analogous to these campaign financing

offenses. 

For FECA crimes that had reached the sentencing stage

between 1996 and January 2003, the Public Integrity Section had

encouraged federal prosecutors to take the position that former

U.S.S.G. § 2F1.1 (Theft, Fraud) (now § 2B1.1) did not govern FECA

crimes, and therefore U.S.S.G. § 2X5.1 (Other Offenses) applied to

FECA convictions. This position has been accepted in most of the

cases in which it was advanced, although almost all of these

dispositions have been negotiated plea agreements presented to the

courts under Federal Rule of Criminal Procedure 11(c)(1)(C). 

The reasoning behind this pre-BCRA sentencing position was

as follows:

(1) There was no sentencing guideline for FECA crimes.

(2) FECA’s criminal provision was a classic example of

a regulatory offense that the guidelines were not

designed to address. U.S.S.G. Preamble, Chapter

One, Part A(6) 2001.

 (3) A FECA offense, namely, a knowing and willful

 violation of a regulatory statute, was significantly

different from a fraud offense designed to gain an

advantage from another through deceit, which falls
216

 under U.S.S.G. § 2F1.1 (now § 2B1.1), and therefore

Section 2F1.1 did not govern FECA offenses.

(4) There was no analogous guideline for FECA offenses.

(5) Therefore, U.S.S.G. § 2X5.1 directed the sentencing

court to examine the factors set forth in 18 U.S.C.

§ 3553(a) to determine the appropriate sentence.

In light of the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), holding that the federal sentencing

guidelines are advisory only, federal prosecutors should argue that the

FECA guideline is an appropriate sentencing factor under Section

3553(a) for FECA crimes occurring before the guideline’s effective

date.

Prior to the enactment of BCRA, FECA crimes were oneyear misdemeanors. As such, they were viewed primarily as fiscal

offenses, for which significant fiscal penalties were seen as the

appropriate remedy to serve the law enforcement objectives set forth

in Section 3553(a). Moreover, when Congress had carefully crafted

fiscal penalties forregulatory offenses, as it had done with pre-BCRA

violations of FECA, the Department considered it appropriate under

Section 3553(a) for the court to consult that penalty structure when

determining an appropriate criminal sanction. The penalty structure

that governed FECA violations before BCRA provided that the size

of the fiscal component of the penalty would be determined in part by

the amount involved in the violation and by the mens rea with which

the offender acted. Specifically: 

• Nonwillful or negligent FECA violations were subject

to civil enforcement action by the Federal Election
217

Commission (FEC) and civil penalties equal to the

amount involved in the violation or $5,000, whichever

was greater. 2 U.S.C. § 437g(a)(5)(A)(2001).

• All knowing and willful FECA violations were subject

to FEC enforcement and civil penalties of twice the

amount involved in the violation or $10,000,

whichever was greater. 2 U.S.C. § 437g(a)(5)(B)

(2001). 

• Knowing and willful FECA violations that involved

$2,000 or more in a calendar year were also subject to

criminal prosecution by the Justice Department. Until

passage of the Crime Control Act of 1984, conviction

subjected an offender to a criminal fine of three times

the amount involved in the violation or $25,000,

whichever was greater. 2 U.S.C. § 437g(d). 

• Finally, the 1984 Crime Control Act – enacted eight

years after FECA’s penalty provision – provided that

the criminal fine for an individual violation of a Class

A misdemeanor, such as a FECA offense, was the

amount specified in the underlying statute or $100,000,

whichever was greater (18 U.S.C. § 3571 (b)(5)), while

the criminal fine for an institutional violation of a

Class A misdemeanor was the amount provided for in

the underlying statute or $200,000, whichever was

greater (18 U.S.C. § 3571(c)(5)). 

This system of ascending sanctions, coupled with the repeated

statutory command that the monetary sanction at each level should be

the greater of the various sums provided, suggested that the

appropriate penalties for a FECA conviction should be, for an

individual defendant, $100,000 per count under 18 U.S.C.
218

§ 3571(b)(5), and, for a corporate defendant, $200,000 per count

under 18 U.S.C. § 3571(c)(5). 

2. Campaign Financing Crimes After the 

 Bipartisan Campaign Reform Act of 2002

The 2002 Bipartisan Campaign Reform Act created two new

felony offenses for knowing and willful violations of FECA. BCRA

also increased the statute of limitations for FECA crimes from three

to five years. Finally, BCRA directed the Sentencing Commission to

promulgate a sentencing guideline that specifically addressed FECA

crimes, and instructed the Commission to take into account certain

aggravating conduct in formulating sentencing enhancements to this

new guideline. The guideline, U.S.S.G. § 2C1.8, became effective on

a temporary basis on January 25, 2003, and became permanent on

November 1, 2003. 

The FECA guideline reads as follows: 

§ 2C1.8. Making, Receiving, or Failing to Report a

 Contribution, Donation, or Expenditure in

 Violation of the Federal Election Campaign

 Act; Fraudulently Misrepresenting 

 Campaign Authority; Soliciting or

Receiving a Donation in Connection with

an Election While on Certain Federal

 Property

(a) Base Offense Level: 8

(b) Specific Offense Characteristics
219

(1) If the value of the illegal transactions

exceeded $5,000, increase by the

number of levels from the table in

§ 2B1.1 (Theft, Property Destruction,

and Fraud) corresponding to that

amount.

(2) (Apply the greater) If the offense

involved, directly or indirectly, an

illegal transaction made by or received

from —

 (A) a foreign national, increase by 2

levels; or 

 (B) a government of a foreign country,

increase by 4 levels. 

(3) If (A) the offense involved the

contribution, donation, solicitation,

expenditure, disbursement, or receipt

of governmental funds; or (B) the

defendant committed the offense for

the purpose of obtaining a specific,

identifiable non-monetary Federal

benefit, increase by 2 levels.

(4) If the defendant engaged in 30 or more

illegal transactions, increase by 2

levels. 

(5) If the offense involved a contribution,

donation, solicitation, or expenditure
220

made or obt ained through

intimidation, threat of pecuniary or

other harm, or coercion, increase by 4

levels.

(c) Cross Reference

(1) If the offense involved a bribe or

gratuity, apply § 2C1.1 (Offering,

Giving, Soliciting, or Receiving a

Bribe; Extortion Under Color of

Official Right; Fraud Involving the

Deprivation of the Intangible Right to

Honest Services of Public Officials;

Conspiracy to Defraud by Interference

with Governmental Functions) or

§ 2C1.2 (Offering, Giving, Soliciting,

or Receiving a Gratuity), as

appropriate, if the resulting offense

level is greater than the offense level

determined above.

Commentary

Statutory Provisions: 2 U.S.C. §§ 437g(d)(1), 439a, 441a, 441a-1,

441b, 441c, 441d, 441e, 441f, 441g, 441h(a), 441i, 441k; 18 U.S.C.

§ 607. For additional provision(s), see Statutory Index (Appendix A).

Application Notes:

1. Definitions.—For purposes of this guideline:
221

"Foreign national" has the meaning given that term in section

319(b) of the Federal Election Campaign Act of 1971, 2 U.S.C.

§ 441e(b).

"Government of a foreign country" has the meaning given that

term in section 1(e) of the Foreign Agents Registration Act of

1938 (22 U.S.C. § 611(e)).

"Governmental funds" means money, assets, or property, of the

United States Government, of a State government, or of a local

government, including any branch, subdivision, department,

agency, or other component of any such government. "State"

means any of the fifty States, the District of Columbia, the

Commonwealth of Puerto Rico, the United States Virgin Islands,

Guam, the Northern Mariana Islands, or American Samoa.

"Local government" means the government of a political

subdivision of a State.

"Illegal transaction" means (A) any contribution, donation,

solicitation, or expenditure of money or anything of value, or

any other conduct, prohibited by the Federal Election Campaign

Act of 1971, 2 U.S.C. § 431 et seq; (B) any contribution,

donation, solicitation, or expenditure of money or anything of

value made in excess of the amount of such contribution,

donation, solicitation, or expenditure that may be made under

such Act; and (C) in the case of a violation of 18 U.S.C. § 607,

any solicitation or receipt of money or anything of value under

that section. The terms "contribution" and "expenditure" have

the meaning given those terms in section 301(8) and (9) of the

Federal Election Campaign Act of 1971 (2 U.S.C. § 431(8) and

(9)), respectively.
222

2. Application of Subsection (b)(3)(B).—Subsection (b)(3)(B)

provides an enhancement for a defendant who commits the

offense for the purpose of achieving a specific, identifiable nonmonetary Federal benefit that does not rise to the level of a bribe

or a gratuity. Subsection (b)(3)(B) is not intended to apply to

offenses under this guideline in which the defendant’s only

motivation for commission of the offense is generally to achieve

increased visibility with, or heightened access to, public

officials. Rather, subsection (b)(3)(B) is intended to apply to

defendants who commit the offense to obtain a specific,

identifiable non-monetary Federal benefit, such as a

Presidential pardon or information proprietary to the

government.

3. Application of Subsection (b)(4).—Subsection (b)(4) shall apply

if the defendant engaged in any combination of 30 or more

illegal transactions during the course of the offense, whether or

not the illegal transactions resulted in a conviction for such

conduct. 

4. Departure Provision.—In a case in which the defendant’s

conduct was part of a systematic or pervasive corruption of a

governmental function, process, or office that may cause loss of

public confidence in government, an upward departure may be

warranted.

* * *

In addition, the Sentencing Commission amended Section

3D1.2(d) regarding closely related counts to include Section 2C1.8,

and amended Section 5E1.2 to incorporate FECA’s mandatory

minimum fining provisions and maximum fining range under
223

2 U.S.C. § 437g(d)(1)(D) for conduit crimes that violate 2 U.S.C.

§ 441f.

Finally, in commenting on the new guideline, the Sentencing

Commission recognized that there might be cases in which the

defendant has entered into a conciliation agreement with the FEC.

The Commission stated that the existence of such a conciliation

agreement, and the extent of compliance with it, are appropriate

factors for a sentencing court to consider in determining at what point

within the applicable fine guideline range to sentence the defendant.

However, the Commission also stated that these factors are not

appropriate when the defendant began negotiations toward a

conciliation agreement after becoming aware of a criminal

investigation.

In addition to sentencing issues, a criminal disposition for a

FECA offense might present an opportunity for the defendant to

obtain a concurrent settlement from the FEC of his or her civil

liability for FECA violations through what is known as a “global”

plea agreement. If during plea negotiations the defendant indicates

a desire to settle his or her civil FECA liability as well, the

Department can assist in forwarding this request to the FEC. The

normal procedure is for the AUSA to contact the Public Integrity

Section, which will forward the defendant’s request and proposed

civil settlement to the FEC for its consideration.

3. Examples of Application of FECA Sentencing Guideline

The following six examples illustrate how the Department

believes the guideline for campaign financing crimes would work

for various FECA financing crimes. Each scenario assumes
 As readers know, the majority of federal prosecutions result 75

in pleas of guilty, which generally result in a reduction of two or three

levels in the defendant’s total offense level under § 3E1.1 for acceptance

of responsibility. We have not included calculations based on guilty pleas.

A two- or three-level reduction in total offense level, especially at higher

total levels, may result in a significant reduction in the recommended term

of imprisonment. 

 The offense is a Class A misdemeanor, 18 U.S.C. 

76

§ 3558(a)(6), to which the guidelines apply. U.S.S.G. § 1B1.2(a).

224

conviction after trial. We have also assumed that the defendant 75

falls under Criminal History Category I. 

 Example 1: 

 THE CONDUIT

Factual Scenario: The defendant permitted his name to be

used by another person to make a contribution of $4,000 to a

federal candidate ($2,000 for the primary and $2,000 for the

general election) in violation of 2 U.S.C. § 441f. The funds

used to make the contribution came from the other person.

The aggregate value of the conduit violations is $4,000.

Because the aggregate violation is at least $2,000 but does not

exceed $10,000, it is a misdemeanor under 2 U.S.C.

§ 437g(d)(1)(A)(ii).76

Total Offense Level: 8

Base Offense Level under § 2C1.8(a): 8

Enhancement under § 2B1.1 for value not exceeding 

$5,000: 0

Enhancement for number of illegal transactions under

§ 2C1.8(b)(4) (two conduit contributions of $2,000

each): 0
225

 Recommended Sentence: 

(1) Incarceration: 0 to 6 months in Zone A.

(2) Fine: A minimum fine of $1,000 and a statutory

maximum fine of $100,000, calculated as follows:

(a) Guideline fine: The maximum fine for a Class A

misdemeanor under 18 U.S.C. § 3571(b)(5) is

$100,000. However, the applicable guideline fine

under U.S.S.G. § 5E1.2(c)(3) for an offense level

of 8 would be a minimum of $1,000 and a

maximum of $10,000. A fine above $10,000 for

this offense would require an upward departure

under § 5K2.0.

(b) FECA mandatory fine: Not applicable. The

offense of conviction involves two violations of

2 U.S.C. § 441f, totaling $4,000. Since the

violations do not exceed $10,000, this is a

misdemeanor that is subject to the penalty

provisions of 2 U.S.C. § 438(g)(d)(1)(A)(ii) and

18 U.S.C. § 3571(b)(5). Because this is a

misdemeanor, the mandatory minimum and the

discretionary maximum fining provisions

applicable to felony conduit violations under

2 U.S.C. § 437(g)(d)(1)(D)(i) do not apply.

 Example 2: 

 THE TYPICAL FECA CRIME – 

 LAUNDERED CORPORATE CONTRIBUTIONS

Factual Scenario: A corporate CEO contributes $50,000 in

corporate funds to a federal candidate in violation of 2 U.S.C.

§ 441b by laundering the money through thirteen conduits in

violation of § 441f, twelve of whom gave $4,000, and one of

whom gave $2,000. The defendant’s motive was to fulfill a
226

pledge. The conduct results in one § 441b felony violation

under § 437g(d)(1)(A)(i) with an aggregate value of $50,000,

and one § 441f felony violation under § 437g(d)(1)(D)(i)

involving the thirteen conduit transactions. The combined

aggregate value of the defendant’s illegal conduct is $50,000.

The conduct would be charged in two counts: one violation

of § 441b charged under § 437g(d)(1)(A)(i), and thirteen

violations of § 441f aggregated together as one offense

charged under § 437g(d)(1)(D)(i). 

Total Offense Level: 14

Base Offense Level under § 2C1.8(a): 8

Enhancement for value between $30,000 and $70,000

under § 2B1.1(b)(1)(D): 6

Enhancement for number of illegal transactions under 

§ 2C1.8(b)(4) (fourteen violations – one § 441b

corporate contribution crime and thirteen § 441f

conduit crimes): 0

Recommended Sentence:

(1) Incarceration: 15 to 21 months in Zone D

(2) Fine: Between $154,000 and $540,000. Since there

are two counts of conviction, the total fine would be

the fine on each count added together, calculated as

follows: 

(a) § 441b count (corporate contribution). Based on

an offense level of 14, the guideline range for a fine

under this count is $4,000 to $40,000. U.S.S.G.

§ 5E1.2(c)(3).

(b) § 441f count (conduit contributions). By statute,

the fine imposed under this count would be a

minimum fine of $150,000 (300% of aggregate

violative amount) and a maximum fine of $500,000
227

(1,000% of aggregate violative amount). 2 U.S.C.

§ 437g(d)(1)(D). Since these are higher fines than

those permitted under U.S.S.G. § 5E1.2(c)(3), they

prevail. Id. § 5E1.2(c)(4). (c) Total

combined fine: 

 (i) minimum: $4,000 + $150,000 = 

 $154,000 

 (ii) maximum: $40,000 + $500,000 = 

 $540,000

 Example 3: 

 CORPORATE CONTRIBUTOR TO MULTIPLE

 CANDIDATES THROUGH THREATS AND COERCION

Factual Scenario: The defendant is an individual who controls

two corporations. The defendant gives $50,000 in corporate

funds to fifty federal candidates in $1,000 amounts by

laundering them through fifty corporate senior management

personnel, and passes the cost of these contributions back to

the two corporations. The defendant makes clear to senior

management that their success in his companies depends on

their participation in the scheme. The defendant’s motive is

ideological – all the recipients represent causes in which he

believes. The aggregate value involved in the defendant’s

conduct is $50,000. The conduct would be charged in two

counts: one felony violation of Section 441b charged under

§ 437g(d)(1)(A)(i), and fifty violations of Section 441f

aggregated together as one felony offense charged under

§ 437g(d)(1)(D)(i). 

Total offense level: 20

 Base Offense Level under § 2C1.8(a): 8

Enhancements for aggregate value of offense between
228

$30,000 and $70,000 under § 2B1.1(b)(1)(D): 6

Enhancements for number of illegal transactions

under § 2C1.8(b)(4) (Fifty-two offenses – two 

§ 441b corporate contribution offenses and fifty 

§ 441f conduit offenses): 2

Enhancement for intimidation and threats under 

§ 2C1.8(b)(5): 4

Recommended Sentence:

(1) Incarceration: 33 to 41 months in Zone D

(2) Fine: Because the nature ofthe conduct would result

in convictions under both the criminal penalty

applicable to conduit violations of FECA

(§ 437g(d)(1)(D)), and the criminal penalty

applicable to nonconduit violations of FECA

(§ 437g(d)(1)(A)), the statutory minimum and

maximum penalties for conduit convictions will

apply and result in enhanced fines. See Example

2 for an illustration of such a computation. 

 Example 4: 

 FUNDRAISER POSSESSING SPECIAL SKILL

Factual Scenario: The defendant is a professional federal

fundraiser who has attended several training courses

sponsored by the Federal Election Commission and is

therefore intimately familiar with the requirements and

prohibitions of the Federal Election Campaign Act. The

fundraiser has been retained by a federal candidate. He

approaches a wealthy donor who he knows has given the

candidate the maximum amount permitted by FECA, and

suggests that the donor make a further contribution by
There were no conduit offenses involved in this example.

77

Therefore the mandatory minimum fine and maximum fining range under

Section 437g(d)(1)(D) do not apply.

229

permitting the candidate and his staffers to use the donor’s

personal jet for campaign purposes and without billing

the campaign for its use. The ensuing illegal “in-kind”

contribution is valued at $225,000, for which the fundraiser

is liable as an aider and abettor. The aggregate value of the

offense is $225,000, consisting of one felony violation

of 2 U.S.C. § 441(a)(1)(A), charged under Section

437g(d)(1)(A)(i) and 18 U.S.C. § 2.

Total Offense Level: 22

Base Offense Level under § 2C1.8(a): 8

Enhancement for value between $200,000 and $400,000

under § 2B1.1(b)(1)(D): 12 

Enhancement for number of transactions under

§ 2C1.8(b)(4) (one § 441a violation): 0

Enhancement for use of special skill under § 3B1.3: 2

Recommended Sentence:

 (1) Incarceration: 41 to 51 months in Zone D.

(2) Fine: between $7,500 and $75,000, calculated under

§ 5B1.2(c)(3).77

 Example 5: 

 MAJOR POLITICAL PARTY DONOR 

 SEEKING A BENEFIT FROM THE GOVERNMENT 

Factual Scenario: A wealthy individual wishes to contribute

$250,000 to a national political party committee in order to

win political influence to obtain a pardon for his best friend.
230

Under FECA, as amended by the Bipartisan Campaign

Reform Act, individuals may give only $25,000 per year to

national political party committees, and national political

party committees cannot accept soft money. The individual

therefore donates the remaining $225,000 to the national party

committee by giving the committee the benefit of his personal

jet to fly committee staffers around the country, at a value

of $225,000, in violation of 2 U.S.C. § 441a(a)(1)(B). The

aggregate value of the offense is $225,000 charged under

Section 437g(d)(1)(A)(i).

Total Offense Level: 22

Base Offense Level under § 2C1.8(a): 8

Enhancement for value between $200,000 and $400,000

under § 2B1.1(b)(1)(G): 12

Enhancement for number of illegal transactions under 

§ 2C1.8(b)(4) (one $225,000 excessive contribution 

to a national party committee): 0

Enhancement for intent to obtain a specific nonmonetary

federal benefit from the government under 

§ 2C1.8(b)(3): 2 

Recommended Sentence:

(1) Incarceration: 41 to 51 months in Zone D. 

(2) Fine: Between $10,000 and $100,000, pursuant to

§ 5E1.2(c)(3).
Although in BCRA Congress made clear that the prohibition

78

in Section 441e on contributions from foreign nationals also reached

donations to candidates for nonfederal office, BCRA did not extend

Section 441f to encompass conduit donations to nonfederal candidates.

231

 Example 6: 

 FOREIGN AGENT WHO GIVES FUNDS FROM

 FOREIGN GOVERNMENT

 TO NONFEDERAL CANDIDATES TO OBTAIN

 A SPECIFIC BENEFIT FROM THE GOVERNMENT 

Factual Scenario: The defendant is an agent of a foreign

government that is currently seeking United States diplomatic

recognition of its annexation of neighboring territory it

occupied during a recent military action. In the hopes of

garnering political support for this cause, the defendant is

given $250,000 by his foreign government principal, which he

then gives in $50,000 increments to five candidates seeking

governorships of five large states within the United States that

impose no limits on political contributions. To conceal his

identity, the defendant launders the funds through five

individuals who have names that are ethnically identifiable

with his foreign government principal, but who have resident

alien status under U.S. law. The defendant’s conduct results

in five violations of 2 U.S.C. § 441e having an aggregate

value of $250,000, charged together as one felony violation of

Section 437g(d)(1)(A)(i).78

Total Offense Level: 26

Base Offense Level: 8

Enhancements for aggregate value of offense between

$200,000 and $400,000 under § 2B1.1(b)(1)(G): 12

Enhancements for foreign government source: 4

Enhancements for number of illegal transactions
232

(five § 441e offenses): 0

Enhancement for intent to achieve a nonmonetary benefit

from the Government: 2

Recommended Sentence: 

(1) Incarceration: 63 to 78 months in Zone D. (This

sentence would be capped at 60 months, the

maximum term permitted under Section

437g(d)(1)(A)).

(2) Fine: $17,500 to $175,000, calculated under Section

5E1.2(c)(3).

D. CONVICTIONS OF CAMPAIGN FINANCING

VIOLATIONS ADDRESSED UNDER ALTERNATIVE

THEORIES OF PROSECUTION

1. Conspiracy to Disrupt and Impede the Federal 

 Election Commission

A scheme involving two or more participants designed in part

to thwart the statutory duties of the Federal Election Commission to

enforce FECA’s reporting requirements and prohibitions and to

provide the public with accurate data regarding the financial activities

by federal candidates and entities supporting them can be prosecuted

as a conspiracy under 18 U.S.C. § 371. The object of such a

conspiracy would be to disrupt and to impede the FEC’s ability to

enforce FECA’s requirements and prohibitions, and its statutory duty

to make available to the public accurate information regarding

contributions and expenditures made to influence the election of

federal candidates. 

Such offenses are governed by U.S.S.G. § 2C1.7. This

guideline carries a base offense level of ten and has an eight-level

enhancement if the conduct involved an elected official or high-level
233

public policymaker. § 2C1.7(b)(1)(B). In addition, if the defendant's

conduct involved "pervasive corruption of a governmental function,

process, or office that may cause loss of public confidence in

government," an upward departure may be warranted. § 2C1.7, cmt.

n.1.

2. False Statements to the Federal Election Commission

Many types of campaign financing crimes may also be

charged as willfully causing false statements to be made to a federal

agency under 18 U.S.C. § 1001(a)(2). Such false statement offenses

occurring after January 25, 2003, are governed by the new FECA

guideline, U.S.S.G. § 2C1.8, pursuant to the cross-reference in

U.S.S.G. § 2B1.1(c)(3) for false statements. For false statement

offenses occurring before this date, federal prosecutors should argue

that the new guideline should be considered as a relevant sentencing

factor pursuant to 18 U.S.C. § 3553(a). 

3. Embezzlement of Campaign Funds

On occasion, treasurers and other agents of candidates or

political committees, and at times even candidates, convert campaign

contributions to their personal use. If the conversion involves funds

from a candidate’s committee, it is prohibited by FECA. 2 U.S.C.

§ 439a. However, until the enactment of the 2002 Bipartisan

Campaign Reform Act, all FECA crimes were one-year

misdemeanors. Moreover, if the embezzlement is from a political

committee that is not a candidate’s committee, the FECA prohibition

in Section 439a does not apply. Therefore, campaign embezzlements

were commonly prosecuted under the mail fraud statute, either as a

scheme to obtain money or property by deceit (18 U.S.C. § 1341), or

as a scheme to deprive a political committee and its contributors of

the fiduciary duty of honest services (18 U.S.C. §§ 1341, 1346), or

both. 
234

As a result of BCRA, Section 439a crimes aggregating

$25,000 or more are now felonies and for sentencing purposes fall

under the FECA guideline § 2C1.8. This is the preferred approach if

the victim is a candidate’s committee and the amount embezzled is

at least $25,000.

For embezzlements from political committees that are not

candidate committees, and for embezzlements from candidate

committees involving amounts under $25,000, the mail and wire

fraud statutes continue to be useful alternatives. Violations of

Sections 1341 and 1343 are governed by the fraud guideline, U.S.S.G.

§ 2B1.1, which carries a base offense level of 6 with possible

enhancements under the fraud loss table, § 2B1.1(b)(1).

Embezzlement schemes that involve the deprivation of “honest

services” as defined in 18 U.S.C. § 1346 also fall under the fraud

guideline. 

Finally, a campaign embezzlement can be addressed under the

false statements statute, 18 U.S.C. § 1001, and 18 U.S.C. § 2 (willfully causing an offense). This is because the embezzlement is

concealed from the committee’s treasurer, who is required to file

detailed reports with the FEC regarding the committee’s receipts and

disbursements. 2 U.S.C. § 434(b). Thus, a person who embezzles

contributions from a committee willfully causes the committee’s

treasurer to submit false information to the FEC regarding the actual

use of the funds, in violation of both the reporting requirements of

FECA and 18 U.S.C. § 1001. False statements involving FECA

violations fall under the FECA guideline, U.S.S.G. § 2C1.8. 

E. OBLIGATION TO REPORT FELONY CONVICTIONS

TO STATE ELECTION OFFICIALS

The National Voter Registration Act of 1993 requires United

States Attorneys’ Offices to send a written notice whenever a
235

defendant is convicted of a felony to the chief state election official

in the state where the defendant resides. 42 U.S.C. § 1973gg-6(g).

The notice must include basic information regarding the defendant,

the court, the offense, and the sentence. 42 U.S.C. § 1973gg-6(g)(2).

In addition, if the conviction is overturned, the election official must

be sent written notice of the vacation of conviction. § 1973gg-6(g)(4).

This information is important to election authorities who

determine a person’s eligibility to vote. You may identify the

appropriate state election official using the website www.nased.org.
236
The Big Sandy News, Eastern Kentucky’s oldest newspaper

79

and the most widely circulated non-daily in Kentucky, was established in

1885 in Louisa, Kentucky.

237

CHAPTER SEVEN

CONCLUSION

WHY PROSECUTING ELECTION CRIMES

IS IMPORTANT

We conclude this book with an editorial printed in the March

19, 2004 edition of Big Sandy News, Eastern Kentucky, concerning

a series of election fraud prosecutions in a rural jurisdiction in the

Appalachian Mountains of Eastern Kentucky. The editorial

comments on the sentencing of the County Judge-Executive of Knott

County and a campaign worker for vote buying. It appears here with

the permission of The Big Sandy News, whose late Publisher and

Editor, Scott Perry, led a strong charge against public corruption and

took a proactive role in this difficult and ongoing fight.79

In Kentucky, county judge-executives are the chief operating

officers of county government, and, as such, occupy a position of

substantial power. The jury’s conviction of Knott County JudgeExecutive Donnie Newsome was the culmination of a series of votebuying cases that were jointly prosecuted by the United States

Attorney’s Office for the Eastern District of Kentucky and the Public

Integrity Section during 2003 and early 2004. The charges arose from

a scheme to pay individuals for voting in the 1998 Kentucky federal

primary in violation of 42 U.S.C. § 1973i(c). The investigation
The sentencing judge stated that had it not been for the 80

prosecution’s recommendation for a downward departure, he was prepared

to sentence Newsome to five years of imprisonment.

238

ultimately resulted in the indictment of 17 defendants. Thirteen of the

defendants were convicted, three were acquitted, and one defendant’s

case was dismissed on a motion to dismiss made by the government.

Subsequent to his conviction, Judge-Executive Newsome

cooperated with the government and received a sentence reduction

recommendation under U.S.S.G. § 5K1.1. On March 16, 2004, he

was sentenced to serve 26 months in prison. 

80

 

The following editorial, reprinted here in its entirety, presents

a concise and eloquent statement of why the investigation and

prosecution of electoral corruption are important law enforcement

priorities of the Justice Department. 

Vote fraud sentencing sad, encouraging

– by Susan Allen

Tuesday's sentencing in federal court of Knott County

Judge-Executive Donnie Newsome and campaign worker

Willard Smith on vote buying charges was both a sad and

encouraging day for Eastern Kentucky.

Sad the people of Knott County were effectively robbed of

their voting rights by Newsome and others dolling out cash

to buy a public office.

Sad that, as Federal Judge Danny C. Reeves pointed out,

some people in Knott and other counties think that
239

elections are supposed to be bought and the only reason to

go to the polls is to get their pay off.

Sad those seeking public office in Knott County, and most

assuredly in other counties, target poor, handicapped,

addicted and uneducated voters to carry out their scheme

to secure public office and a hefty paycheck.

Sad that voters in Knott and other counties have been

reduced by years and years of political corruption to truly

believing that selling their vote is not wrong, it's the norm.

Sad that Eastern Kentuckians have pretty much been left

to the mercy of the political machines which serve as

dictators of their lives, from their home towns all the way

to Frankfort.

Sad that generations sacrificed their lives and their

children's lives to the political bosses for mere bones from

their local leaders while now their kids are dying from

drug overdoses which, we strongly suspect, are directly

tied to the years of iniquity and demoralization.

Sad that even today some elected officials continue the

abuse and either refuse or can't comprehend the impact of

their past and current atrocities against their own people.

Sad that Judge Reeves could see and completely

understand during just a one week trial the utter

hopelessness and apathy in the area people feel regarding

the so-called democratic process.
240

Sad that our state lawmakers have piddled away their time

during this legislative session on petty political issues

without even proposing laws that would bar convicted

felons, especially vote buyers from retaining their offices

while appealing their verdicts.

Sad that Donnie Newsome continues to rule Knott County

from a jail cell.

Tuesday's events were encouraging in that prosecutors

[AUSA E.D. Ky.] Tom Self and [Public Integrity Section

Trial Attorney] Richard Pilger were willing to fight the

hard battle forthe people of Knott County, which hopefully

will lead to at least a grassroots effort for people to take

back their towns.

Encouraging that some light has been shed on the

workings of the dark political underworld which might

shock the good people of Eastern Kentucky into action, at

least for their children's future.

Encouraging that what might be perceived as a baby step

with Newsome's conviction could finally lead to that giant

step Eastern Kentuckians must surely be ready to take to

recapture control of their own destinies.

Encouraging that federal authorities have pledged to

continue the fight they have started to restore to the people

the right to govern themselves without dealing with a

stacked deck.

Encouraging that Judge Reeves and prosecutors did see

that the Knott Countians who sold their votes, in some
241

cases for food, were victims of Newsome's plot and didn't

need to be punished further.

Encouraging that there's some branch of government, in

this case on the federal level, not shy about taking on

political power houses, knowing the obstacles in their way

will be many.

Encouraging that Newsome's lips have loosened regarding

others involved in similar schemes to buy public office,

even though we suspect it has nothing to do with righting

the wrongs, only a self-serving move to spend less days

behind bars. 

Encouraging that maybe, for once, we are not in this fight

alone and have a place to turn to for help when we are

willing to stand up to the machine.

The feds have helped us take that first step toward getting

back what is rightfully ours which has been traded away

by others in the past in back room deals. Not only do they

need our help, WE need our help.

This time, let's not let ourselves down.
242
The text presented here has been edited for conciseness. For 81

example, all footnotes have been omitted, as have other court citations,

extended recitations of legislative citations, and quotations from lower

court decisions that have little direct bearing on the Court’s ultimate

rulings on the legal and constitutional issues involved. Interested readers

may wish to consult the full decision for the entire content of the Court’s

discussion.

243

APPENDIX A

EXCERPT FROM McCONNELL

v. FEDERAL ELECTION COMMISSION

In 2003, the Supreme Court presented a concise history of the

federal campaign financing laws contained in the Federal Election

Campaign Act of 1971, as amended, 2 U.S.C. §§ 431 - 455 (FECA).

It did so in the context of upholding the constitutionality of the vast

majority of new restrictions that were added to these laws in 2002 by

the Bipartisan Campaign Reform Act (BCRA) to close large gaps in

statutory coverage that had emerged over the past three decades since

FECA’s original enactment. McConnell v. Federal Election

Commission, 540 U.S. 93 (2003). Set forth below are pertinent

excerpts from the Supreme Court’s discussion of our country’s

regulation of campaign financing and the events that led up to

enactment of BCRA in 2002. 540 U.S. at 115-132.81

* * *

More than a century ago the “sober-minded Elihu Root”

advocated legislation that would prohibit political contributions by corporations in order to prevent “ ‘the great

aggregations of wealth, from using their corporate funds,

directly or indirectly,’ ” to elect legislators who would “‘vote

for their protection and the advancement of their

interests as against those of the public.’ ” United States v.

Automobile Workers, 352 U.S. 567, 571 (1957) (quoting E.
244

Root, Addresses on Government and Citizenship 143 (R.

Bacon & J. Scott eds.1916))....

[T]he first [campaign financing] enactment responded to

President Theodore Roosevelt’s call for legislation

forbidding all contributions by corporations “ ‘to any

political committee or for any political purpose.’ ” Ibid.

...The resulting 1907 statute completely banned corporate

contributions of “money... in connection with” any federal

election. Tillman Act, ch. 420, 34 Stat. 864. Congress

soon amended the statute to require the public disclosure

of certain contributions and expenditures and to place

“maximum limits on the amounts that congressional

candidates could spend in seeking nomination and

election.” Automobile Workers, supra, at 575-576.

In 1925 Congress [enacted the Federal Corrupt Practices

Act, which] extended the prohibition of “contributions”

“to include ‘anything of value,’ and made acceptance of a

corporate contribution as well as the giving of such a

contribution a crime.” Federal Election Comm’n v.

National Right to Work Comm., 459 U.S. 197, 209 (1982).

During the debates preceding that amendment, a leading

Senator characterized “ ‘the apparent hold on political

parties which business interests and certain organizations

seek and sometimes obtain by reason of liberal campaign

contributions’ ” as “ ‘one of the great political evils of the

time.’ ” Automobile Workers, supra, at 576 (quoting 65

Cong. Rec. 9507-9508 (1924)). We upheld the amended

statute against a constitutional challenge, observing that

“[t]he power of Congress to protect the election of

President and Vice President from corruption being clear,

the choice of means to that end presents a question
245

primarily addressed to the judgment of Congress.”

Burroughs v. United States, 290 U.S. 534, 547 (1934). 

Congress’ historical concern with the “political

potentialities of wealth” and their “untoward consequences

for the democratic process,” Automobile Workers, supra,

at 577-578, has long reached beyond corporate money.

During and shortly after World War II, Congress reacted to

the “enormous financial outlays” made by some unions in

connection with national elections. 352 U.S., at 579.

Congress first restricted union contributions in the Hatch

Act, 18 U.S.C. § 610, and it later prohibited “union

contributions in connection with federal elections ...

altogether.” National Right to Work, supra, at 209 (citing

War Labor Disputes Act (Smith-Connally Anti-Strike Act),

ch. 144, § 9, 57 Stat. 167). Congress subsequently

extended that prohibition to cover unions’ election-related

expenditures as well as contributions, and it broadened the

coverage of federal campaigns to include both primary and

general elections. Labor Management Relations Act, 1947

(Taft-Hartley Act), 61 Stat. 136. See Automobile Workers,

supra, at 578-584. During the consideration of those

measures, legislators repeatedly voiced their concerns

regarding the pernicious influence of large campaign

contributions. As we noted in a unanimous opinion

recalling this history, Congress’ “careful legislative

adjustment of the federal electoral laws, in a ‘cautious

advance, step by step,’ to account for the particular legal

and economic attributes of corporations and labor

organizations warrants considerable deference.” National

Right to Work, supra, at 209....

In early 1972 Congress continued its steady improvement

of the national election laws by enacting FECA. As first
246

enacted, that statute required disclosure of all contributions

exceeding $100 and of expenditures by candidates and

political committees that spent more than $1,000 per year.

Id., at 11-19. It also prohibited contributions made in the

name of another person, id., at 19, and by Government

contractors, id., at 10. The law ratified the earlier

prohibition on the use of corporate and union general

treasuryfunds for political contributions and expenditures,

but it expressly permitted corporations and unions to

establish and administer separate segregated funds

(commonly known as political action committees, or

PACs) for election-related contributions and expenditures.

Id., at 12-13. See Pipefitters v. United States, 407 U.S.

385, 409-410 (1972).

As the 1972 presidential elections made clear, however,

FECA’s passage did not deter unseemly fundraising and

campaign practices. Evidence of those practices persuaded

Congress to enact the Federal Election Campaign Act

Amendments of 1974. Reviewing a constitutional

challenge to the amendments, the Court of Appeals for the

District of Columbia Circuit described them as “by far the

most comprehensive ... reform legislation [ever] passed by

Congress concerning the election of the President, VicePresident and Members of Congress.” Buckley v. Valeo,

519 F.2d 821, 831 (C.A.D.C.1975) (en banc) (per curiam).

The 1974 amendments closed the loophole that had

allowed candidates to use an unlimited number of political

committees for fundraising purposes and thereby to

circumvent the limits on individual committees’ receipts

and disbursements. They also limited individual political

contributions to any single candidate to $1,000 per

election, with an overall annual limitation of $25,000 by
247

any contributor; imposed ceilings on spending by

candidates and political parties for national conventions;

required reporting and public disclosure of contributions

and expenditures exceeding certain limits; and established

the Federal Election Commission (FEC) to administer and

enforce the legislation. Id., at 831-834.

TheCourt of Appeals upheld the 1974 amendments almost

in their entirety. It concluded that the clear and compelling

interest in preserving the integrity of the electoral process

provided a sufficient basis for sustaining the substantive

provisions of the Act. The court’s opinion relied heavily

on findings that large contributions facilitated access to

public officials and described methods of evading the

contribution limits that had enabled contributors of

massive sums to avoid disclosure.... Id., at 837-841.

The Court of Appeals upheld the provisions establishing

contribution and expenditure limitations on the theory that

they should be viewed as regulations of conduct rather than

speech. Id., at 840-841. This Court, however, concluded

that each set of limitationsraised serious--though different

--concerns under the First Amendment. Buckley v. Valeo,

424 U.S. 1, 14-23 (1976) (per curiam). We treated the

limitations on candidate and individual expenditures as

direct restraints on speech, but we observed that the

contribution limitations, in contrast, imposed only “a

marginal restriction upon the contributor’s ability to

engage in free communication.” Id., at 20-2. Considering

the “deeply disturbing examples” of corruption related to

candidate contributions discussed in the Court of Appeals’

opinion, we determined that limiting contributions served

an interest in protecting “the integrity of our system of

representative democracy.” Id., at 26-27. In the end, the
248

Act’s primary purpose--“to limit the actuality and

appearance of corruption resulting from large individual

financial contributions”--provided a constitutionally

sufficient justification for the $1,000 contribution

limitation.” Id., at 26.

We prefaced our analysis of the $1,000 limitation on

expenditures by observing that it broadly encompassed

every expenditure “ ‘relative to a clearly identified

candidate.’ ” Id., at 39 (quoting 18 U.S.C. § 608(e)(1)

(1970 ed., Supp. IV)). To avoid vagueness concerns we

construed that phrase to apply only to “communications

that in express terms advocate the election or defeat of a

clearly identified candidate for federal office.” 424 U.S.,

at 42-44. We concluded, however, that as so narrowed, the

provision would not provide effective protection against

the dangers of quid pro quo arrangements, because persons

and groups could eschew expenditures that expressly

advocated the election or defeat of a clearly identified

candidate while remaining “free to spend as much as they

want to promote the candidate and his views.” Id., at 45.

We also rejected the argument that the expenditure limits

were necessary to prevent attempts to circumvent the Act’s

contribution limits, because FECA already treated

expenditures controlled by or coordinated with the

candidate as contributions, and we were not persuaded that

independent expenditures posed the same risk of real or

apparent corruption as coordinated expenditures. Id., at

46-47. We therefore held that Congress’ interest in

preventing real or apparent corruption was inadequate to

justify the heavy burdens on the freedoms of expression

and association that the expenditure limits imposed.
249

We upheld all of the disclosure and reporting requirements

in the Act that were challenged on appeal to this Court

after finding that they vindicated three important interests:

providing the electorate with relevant information about

the candidates and their supporters; deterring actual

corruption and discouraging the use of money for improper

purposes; and facilitating enforcement of the prohibitions

in the Act. Id., at 66-68. In order to avoid an overbreadth

problem, however, we placed the same narrowing

construction on the term “expenditure” in the disclosure

context that we had adopted in the context of the

expenditure limitations. Thus, we construed the reporting

requirement for persons making expenditures of more than

$100 in a year “to reach only funds used for

communications that expressly advocate the election or

defeat of a clearly identified candidate.” Id., at 80.

Our opinion in Buckley addressed issues that primarily

related to contributions and expenditures by individuals,

since none of the parties challenged the prohibition on

contributions by corporations and labor unions. We noted,

however, that the statute authorized the use of corporate

and union resources to form and administer segregated

funds that could be used for political purposes. Id., at

28-29, n. 31; see also n. 3, supra.

Three important developments in the years after our

decision in Buckley persuaded Congress that further

legislation was necessary to regulate the role that

corporations, unions, and wealthy contributors play in the

electoral process. As a preface to our discussion of the

specific provisions of BCRA, we comment briefly on the

increased importance of “soft money,” the proliferation of

“issue ads,” and the disturbing findings of a Senate
250

investigation into campaign practices related to the 1996

federal elections.

Soft Money

Under FECA, “contributions” must be made with funds

that are subject to the Act’s disclosure requirements and

source and amount limitations. Such funds are known as

“federal” or “hard” money. FECA defines the term

“contribution,” however, to include only the gift or

advance of anything of value “made by any person for the

purpose of influencing any election for Federal office.”

2 U.S.C. § 431(8)(A)(i) (emphasis added). Donations made

solely for the purpose of influencing state or local elections

are therefore unaffected by FECA’s requirements and

prohibitions. As a result, prior to the enactment of BCRA,

federal law permitted corporations and unions, as well as

individuals who had already made the maximum

permissible contributions to federal candidates, to

contribute “nonfederal money”--also known as “soft

money”--to political parties for activities intended to

influence state or local elections. 

Shortly after Buckley was decided, questions arose

concerning the treatment of contributions intended to

influence both federal and state elections. Although a

literal reading of FECA’s definition of “contribution”

would have required such activities to be funded with hard

money, the FEC ruled that political parties could

fund mixed-purpose activities -- including get-out-the-vote

drives and generic party advertising--in part with soft

money. In 1995 the FEC concluded that the parties could

also use soft money to defray the costs of “legislative

advocacy media advertisements,” even if the ads
251

mentioned the name of a federal candidate, so long as they

did not expressly advocate the candidate’s election or

defeat. FEC Advisory Op. 1995-25.

[Footnote 7:] ... In 1990 the FEC ... promulgat[ed]

fixed allocation rates. 11 CFR § 106.5 (1991).

The regulations required the Republican National

Committee (RNC) and Democratic National

Committee (DNC) to pay for at least 60% of

mixed-purpose activities (65% in presidential

election years) with funds from their federal

accounts. § 106.5(b)(2). By contrast, the regulations required state and local committees to

allocate similar expenditures based on the ratio of

federal to nonfederal offices on the State’s ballot,

§ 106.5(d)(1), which in practice meant that they

could expend a substantially greater proportion of

soft money than national parties to fund

mixed-purpose activities affecting both federal and

state elections.

As the permissible uses of soft money expanded, the

amount of soft money raised and spent by the national

political parties increased exponentially. Of the two major

parties’ total spending, soft money accounted for 5%

($21.6 million) in 1984, 11% ($45 million) in 1988, 16%

($80 million) in 1992, 30% ($272 million) in 1996, and

42% ($498 million) in 2000. The national parties

transferred large amounts of their soft money to the state

parties, which were allowed to use a larger percentage of

soft money to finance mixed-purpose activities under FEC

rules. In the year 2000, for example, the national parties

diverted $280 million--more than half of their soft money--

to state parties....
252

Not only were such soft-money contributions often

designed to gain access to federal candidates, but they were

in many cases solicited by the candidates themselves.

Candidates often directed potential donors to party

committees and tax-exempt organizations that could

legally accept soft money. For example, a federal

legislator running for reelection solicited soft money from

a supporter by advising him that even though he had

already “ ‘contributed the legal maximum’ ” to the

campaign committee, he could still make an additional

contribution to a joint program supporting federal, state,

and local candidates of his party. Such solicitations were

not uncommon.

The solicitation, transfer, and use of soft money thus

enabled parties and candidates to circumvent FECA’s

limitations on the source and amount of contributions in

connection with federal elections.

Issue Advertising

In Buckley we construed FECA’s disclosure and reporting

requirements, as well as its expenditure limitations, “to

reach only funds used for communications that expressly

advocate the election or defeat of a clearly identified

candidate.” 424 U.S., at 80. As a result of that strict

reading of the statute, the use or omission of “magic

words” such as “Elect John Smith” or “Vote Against Jane

Doe” marked a bright statutory line separating “express

advocacy” from “issue advocacy.” See id., at 44, n. 52.

Express advocacy was subject to FECA’s limitations and

could be financed only using hard money. The political

parties, in other words, could not use soft money to

sponsor ads that used any magic words, and corporations
253

and unions could not fund such ads out of their general

treasuries. So-called issue ads, on the other hand, not only

could be financed with soft money, but could be aired

without disclosing the identity of, or any other information

about, their sponsors.

While the distinction between “issue” and express

advocacy seemed neat in theory, the two categories of

advertisements proved functionally identical in important

respects. Both were used to advocate the election or defeat

of clearly identified federal candidates, even though the

so-called issue ads eschewed the use of magic words.

Little difference existed, for example, between an ad that

urged viewers to “vote against Jane Doe” and one that

condemned Jane Doe’s record on a particular issue before

exhorting viewers to “call Jane Doe and tell her what you

think.” Indeed, campaign professionals testified that the

most effective campaign ads, like the most effective

commercials for products such as Coca-Cola, should, and

did, avoid the use of the magic words. Moreover, the

conclusion that such ads were specifically intended to

affect election results was confirmed by the fact that

almost all of them aired in the 60 days immediately

preceding a federal election. Corporations and unions

spent hundreds of millions of dollars of their general funds

to pay for these ads, and those expenditures, like

soft-money donations to the political parties, were

unregulated under FECA. Indeed, the ads were attractive

to organizations and candidates precisely because they

were beyond FECA’s reach, enabling candidates and their

parties to work closely with friendly interest groups to

sponsor so-called issue ads when the candidates

themselves were running out of money....
254

Because FECA’s disclosure requirements did not apply to

so-called issue ads, sponsors of such ads often used

misleading names to conceal their identity. “Citizens for

Better Medicare,” for instance, was not a grassroots

organization of citizens, as its name might suggest, but was

instead a platform for an association of drug

manufacturers. And “Republicans for Clean Air,” which

ran ads in the 2000 Republican Presidential primary, was

actually an organization consisting of just two

individuals--brothers who together spent $25 million on

ads supporting their favored candidate.

While the public may not have been fully informed

about the sponsorship of so-called issue ads, the record

indicates that candidates and officeholders often were. A

former Senator confirmed that candidates and officials

knew who their friends were and “sometimes suggest[ed]

that corporations orindividuals make donations to interest 

groups that run ‘issue ads.’ ” As with soft-money

contributions, political parties and candidates used the

availability of so-called issue ads to circumvent FECA’s

limitations, asking donors who contributed their permitted

quota of hard money to give money to nonprofit

corporations to spend on “issue” advocacy.

Senate Committee Investigation

In 1998 the Senate Committee on Governmental Affairs

issued a six-volume report summarizing the results of an

extensive investigation into the campaign practices in the

1996 federal elections. The report gave particular attention

to the effect of soft money on the American political

system, including elected officials’ practice of granting

special access in return for political contributions.
255

The committee’s principal findings relating to Democratic

Party fundraising were set forth in the majority’s report,

while the minority report primarily described Republican

practices. The two reports reached consensus, however, on

certain central propositions. They agreed that the “soft

money loophole” had led to a “meltdown” of the campaign

finance system that had been intended “to keep corporate,

union and large individual contributions from influencing

the electoral process.” One Senator stated that “the

hearings provided overwhelming evidence that the twin

loopholes of soft money and bogus issue advertising have

virtually destroyed our campaign finance laws, leaving us

with little more than a pile of legal rubble.”

The report was critical of both parties’ methods of raising

soft money, as well as their use of those funds. It

concluded that both parties promised and provided special

access to candidates and senior Government officials in

exchange for large soft-money contributions. The

committee majority described the White House coffees that

rewarded major donors with access to President Clinton,

and the courtesies extended to an international

businessman named Roger Tamraz, who candidly

acknowledged that his donations of about $300,000 to the

DNC and to state parties were motivated by his interest in

gaining the Federal Government’s support for an oil-line

project in the Caucasus. The minority described the

promotional materials used by the RNC’s two principal

donor programs, “Team 100” and the “Republican Eagles,”

which promised “special access to high-ranking

Republican elected officials, including governors, senators,

and representatives.” One fundraising letter recited that

the chairman of the RNC had personally escorted a donor

on appointments that “ ‘turned out to be very significant in
256

legislation affecting public utility holding companies’ ”

and made the donor “ ‘a hero in his industry.’ ”

In 1996 both parties began to use large amounts of soft

money to pay for issue advertising designed to influence

federal elections. The committee found such ads highly

problematic for two reasons. Since they accomplished the

same purposes as express advocacy (which could lawfully

be funded only with hard money), the ads enabled unions,

corporations, and wealthy contributors to circumvent

protections that FECA was intended to provide. Moreover,

though ostensibly independent of the candidates, the ads

were often actually coordinated with, and controlled by,

the campaigns. The ads thus provided a means for evading

FECA’s candidate contribution limits.

The report also emphasized the role of state and local

parties. While the FEC’s allocation regime permitted

national parties to use soft money to pay for up to 40% of

the costs of both generic voter activities and issue

advertising, they allowed state and local parties to use

larger percentages of soft money for those purposes. For

that reason, national parties often made substantial

transfers of soft money to “state and local political parties

for ‘generic voter activities’ that in fact ultimately

benefit[ed] federal candidates because the funds for all

practical purposes remain[ed] under the control of the

national committees.” The report concluded that “[t]he use

of such soft money thus allow[ed] more corporate, union

treasury, and large contributions from wealthy individuals

into the system.”

The report discussed potential reforms, including a ban on

soft money at the national and state party levels and
257

restrictions on sham issue advocacy by nonparty groups.

The majority expressed the view that a ban on the raising

of soft money by national party committees would

effectively address the use of union and corporate general

treasury funds in the federal political process only if it

required that candidate-specific ads be funded with hard

money. The minority similarly recommended the

elimination of soft-money contributions to political parties

from individuals, corporations, and unions, as well as

“reforms addressing candidate advertisements

masquerading as issue ads.”

* * *

The findings contained in the 1998 report by the Senate

Committee on Governmental Affairs were the basis for the

Bipartisan Campaign Reform Act passed four years later.
258
259

APPENDIX B

DEPARTMENT OF JUSTICE

FEDERAL ELECTION COMMISSION

MEMORANDUM OF UNDERSTANDING

The following is intended to serve as a guide for the Department

of Justice (hereinafter referred to as the "Department") and the Federal

Election Commission (hereinafter referred to as the "Commission") in

the discharge of their respective statutory responsibilities under the

Federal Election Campaign Act and Chapters 95 and 96 of the Internal

Revenue Code:

(1) The Department recognizes the Federal Election Commission's

exclusive jurisdiction in civil matters brought to the Commission's

attention involving violations of the Federal Election Campaign Act

and Chapters 95 and 96 of the Internal Revenue Code. It is agreed that

Congress intended to centralize civil enforcement of the Federal

Election Campaign Act in the Federal Election Commission by

conferring on the Commission a broad range of powers and

dispositional alternatives for handling nonwillful or unaggravated

violations of these provisions.

(2) The Commission and the Department mutually recognize that

all violations of the Federal Election Campaign Act and the antifraud

provisions of Chapters 95 and 96 of the Internal Revenue Code, even

those committed knowingly and wilfully, may not be proper subjects

for prosecution as crimes under 2 U.S.C. 441; [now § 437g(d)],

26 U.S.C. 9012 or 26 U.S.C. 9042. For the most beneficial and

effective enforcement of the Federal Election Campaign Act and the

antifraud provisions of Chapters 95 and 96 of the Internal Revenue

Code, those knowing and wilful violations which are significant and

substantial and which may be described as aggravated in the intent in
260

which they were committed, or in the monetary amount involved

should be referred by the Commission to the Department for criminal

prosecution review. With this framework, numerous factors will

frequently affect the determination of referrals, including the repetitive

nature of the acts, the existence of a practice or pattern, prior notice,

and the extent of the conduct in terms of geographic area, persons, and

monetary amounts among many other proper considerations.

(3) Where the Commission discovers or learns of a probable

significant and substantial violation, it will endeavor to expeditiously

investigate and find whether clear and compelling evidence exists to

determine probable cause to believe the violation was knowing and

wilful. If the determination of probable cause is made, the

Commission shall refer the case to the Department promptly.

(4) Where information comes to the attention of the Department

indicating a probable violation of Title 2, the Department will apprise

the Commission of such information at the earliest opportunity.

 Where the Department determines that evidence of a probable

violation of Title 2 amounts to a significant and substantial knowing

and wilful violation, the Department will continue its investigation to

prosecution when appropriate and necessary to its prosecutorial duties

and functions, and will endeavorto make available to the Commission

evidence developed during the course of its investigation subject to

restricting law. Where the alleged violation warrants the impaneling

of a grand jury, information obtained during the course of the grand

jury proceedings will not be disclosed to the Commission, pursuant to

Rule 6 of the Federal Rules of Criminal Procedure.

Where the Department determines that evidence of a probable

violation of title 2 does not amount to a significant and substantial

knowing and wilful violation (as described in paragraph 2 hereof), the

Department will refer the matter to the Commission as promptly as
261

possible for its consideration of the wide range of appropriate

remedies available to the Commission.

(5) This memorandum of understanding controls only the

relationship between the Commission and the Department. It is not

intended to confer any procedural or substantive rights on any person

in any matter before the Department, the Commission or any court or

agency of Government.

Dated: December 5, 1977.

For the United States Department of Justice.

 BENJAMIN R. CIVILETTI,

 Assistant Attorney General,

 Criminal Division

Dated: December 8, 1977.

For the Federal Election Commission.

WILLIAM C. OLDAKER,

 General Counsel
262
263

 APPENDIX C

STATUTES

A. EXCERPTS FROM TITLE 2, UNITED STATES CODE

§ 431. Definitions

 When used in this Act:

 (1) Election. The term "election" means– 

 (A) a general, special, primary, or runoff election;

 (B) a convention or caucus of a political party which has

authority to nominate a candidate;

 (C) a primary election held for the selection of delegates to a

national nominating convention of a political party; and

 (D) a primary election held for the expression of a

 preference for the nomination of individuals for election to the

 office of President. 

 (2) Candidate. The term "candidate" means an individual who

seeks nomination for election, or election, to Federal office, and for

purposes of this paragraph, an individual shall be deemed to seek

nomination for election, or election– 

 (A) if such individual has received contributions aggregating

 in excess of $5,000 or has made expenditures aggregating in

 excess of $5,000; or

 (B) if such individual has given his or her consent to another

 person to receive contributions or make expenditures on behalf

 of such individual and if such person has received such

 contributions aggregating in excess of $5,000 or has made such

 expenditures aggregating in excess of $5,000.

 (3) Federal office. The term "Federal office" means the office

of President or Vice President, or of Senator or Representative in, or

Delegate or Resident Commissioner to, the Congress.

(4) Political committee. The term "political committee" means–

 (A) any committee, club, association, or other group of
264

 persons which receives contributions aggregating in excess of

 $1,000 during a calendar year or which makes expenditures

 aggregating in excess of $1,000 during a calendar year; or

 (B) any separate segregated fund established under the

 provisions of section 441b(b) of this title; or

 (C) any local committee of a political party which receives

 contributions aggregating in excess of $5,000 during a calendar

 year, or makes payments exempted from the definition of

 contribution or expenditure as defined in paragraphs (8) and (9)

 aggregating in excess of $5,000 during a calendar year, or

 makes contributions aggregating in excess of $1,000 during a

 calendar year or makes expenditures aggregating in excess of

 $1,000 during a calendar year.

* * * * * 

 (8)(A) Contribution. The term "contribution" includes– 

 (i) any gift, subscription, loan, advance, or deposit of

 money or anything of value made by any person for the

 purpose of influencing any election for Federal office; or

 (ii) the payment by any person of compensation for the

 personal services of another person which are rendered to a

 political committee without charge for any purpose.

* * * * * 

 (9)(A) Expenditure. The term "expenditure" includes– 

 (i) any purchase, payment, distribution, loan, advance,

 deposit, or gift of money or anything of value, made by any

 person for the purpose of influencing any election for

 Federal office; and

 (ii) a written contract, promise, or agreement to make

 an expenditure.

* * * * * 

(11) Person. The term "person" includes an individual,

partnership, committee, association, corporation, labor organization,

or any other organization or group of persons, but such term
265

does not include the Federal Government or any authority of the

Federal Government.

* * * * * 

 (14) National committee. The term "national committee"

means the organization which, by virtue of the bylaws of a political

party, is responsible for the day-to-day operation of such political

party at the national level, as determined by the Commission.

 (15) State committee. The term "State committee" means the

organization which, by virtue of the bylaws of a political party, is

responsible for the day-to-day operation of such political party at the

State level, as determined by the Commission.

 (16) Political party. The term "political party" means an

association, committee, or organization which nominates a

candidate for election to any Federal office whose name appears

on the election ballot as the candidate of such association,

committee, or organization.

 (17) Independent expenditure. The term "independent

expenditure" means an expenditure by a person– 

 (A) expressly advocating the election or defeat of a clearly

identified candidate; and

(B) that is not made in concert or cooperation with or at the

 request or suggestion of such candidate, the candidate's

 authorized political committee, or their agents, or a political

 party committee or its agents.

* * * * * 

 (20) Federal election activity

 (A) In general. The term "Federal election activity"

means– 

 (i) voter registration activity during the period that

 begins on the date that is 120 days before the date a

 regularly scheduled Federal election is held and ends on

 the date of the election;

 (ii) voter identification, get-out-the-vote activity, or
266

 generic campaign activity conducted in connection with

 an election in which a candidate for Federal office

 appears on the ballot (regardless of whether a candidate

 for State or local office also appears on the ballot).

 (iii) a public communication that refers to a clearly

 identified candidate for Federal office (regardless of

 whether a candidate for State or local office is also

 mentioned or identified) and that promotes or supports a

 candidate for that office, or attacks or opposes a

 candidate for that office (regardless of whether the

 communication expressly advocates a vote for or against

 a candidate); or

 (iv) services provided during any month by an

 employee of a State, district, or local committee of a

 political party who spends more than 25 percent of that

 individual's compensated time during that month on

 activities in connection with a Federal election.

* * * * * 

 (21) Generic campaign activity. The term "generic campaign

activity" means a campaign activity that promotes a political party

and does not promote a candidate or non-Federal candidate.

 (22) Public communication. The term "public communication"

means a communication by means of any broadcast, cable, or

satellite communication, newspaper, magazine, outdoor advertising

facility, mass mailing, or telephone bank to the general public, or

any other form of general public political advertising.

 * * * * * 

§ 432. Organization of political committees

 (a) Treasurer; vacancy; official authorizations

Every political committee shall have a treasurer. No

contribution or expenditure shall be accepted or made by or on

behalf of a political committee during any period in which the office
267

of treasurer is vacant. No expenditure shall be made for or on

behalf of a political committee without the authorization of the

treasurer or his or her designated agent.

 (b) Account of contributions; segregated funds

 (1) Every person who receives a contribution for an

 authorized political committee shall, no later than 10 days after

 receiving such contribution, forward to the treasurer such

 contribution, and if the amount of the contribution is in excess

 of $50 the name and address of the person making the

 contribution and the date of receipt.

 (2) Every person who receives a contribution for a political

 committee which is not an authorized committee shall– 

 (A) if the amount of the contribution is $50 or less,

 forward to the treasurer such contribution no later than 30

 days after receiving the contribution; and

 (B) if the amount of the contribution is in excess of

 $50, forward to the treasurer such contribution, the name

 and address of the person making the contribution, and the

 date of receipt of the contribution, no later than 10 days

 after receiving the contribution.

 (3) All funds of a political committee shall be segregated

 from, and may not be commingled with, the personal funds of

 any individual.

 (c) Recordkeeping

 The treasurer of a political committee shall keep an account

of– 

 (1) all contributions received by or on behalf of such

 political committee;

 (2) the name and address of any person who makes any

contribution in excess of $50, together with the date and amount

of such contribution by any person;

 (3) the identification of any person who makes a
268

 contribution or contributions aggregating more than $200

during a calendar year, together with the date and amount of any

such contribution;

 (4) the identification of any political committee which 

makes a contribution, together with the date and amount of any

such contribution; and

 (5) the name and address of every person to whom any

disbursement is made, the date, amount, and purpose of the

disbursement, and the name of the candidate and the office

sought by the candidate, if any, for whom the disbursement was

made, including a receipt, invoice, or canceled check for each

disbursement in excess of $200.

* * * * *

 (e) Principal and additional campaign committees;

 designations, status of candidate, authorized 

 committees, etc.

 (1) Each candidate for Federal office (other than the nominee

 for the office of Vice President) shall designate in writing a

 political committee in accordance with paragraph (3) to serve as

 the principal campaign committee of such candidate. Such

 designation shall be made no later than 15 days after becoming

 a candidate. A candidate may designate additional political

 committees in accordance with paragraph (3) to serve as

 authorized committees of such candidate. Such designation

 shall be in writing and filed with the principal campaign

 committee of such candidate in accordance with subsection (f)

 (1) of this section.

 (2) Any candidate described in paragraph (1) who receives a

 contribution, or any loan for use in connection with the

 campaign of such candidate for election, or makes a

 disbursement in connection with such campaign, shall be

 considered, for purposes of this Act, as having received the

 contribution or loan, or as having made the disbursement, as the

 case may be, as an agent of the authorized committee or
269

 committees of such candidate.

 (3)(A) No political committee which supports or has

 supported more than one candidate may be designated as an

 authorized committee, except that–

 (i) the candidate for the office of President nominated

 by a political party may designate the national 

 committee of such political party as a principal 

 campaign committee, but only if that national committee

 maintains separate books of account with respect to its

 function as a principal campaign committee; and

 (ii) candidates may designate a political committee

established solely for the purpose of joint fundraising

by such candidates as an authorized committee.

 (B) As used in this section, the term "support" does not

 include a contribution by any authorized committee in

 amounts of $2,000 or less to an authorized committee of

 any other candidate.

(4) The name of each authorized committee shall include the

name of the candidate who authorized such committee under

paragraph (1). In the case of any political committee which is not

an authorized committee, such political committee shall not include

the name of any candidate in its name.

 (5) The name of any separate segregated fund established

pursuant to section 441b(b) of this title shall include the name of its

connected organization.

 (f) Filing with and receipt of designations, statements, 

 and reports by principal campaign committee

(1) Notwithstanding any other provision of this Act, each

designation, statement, or report of receipts or disbursements made

by an authorized committee of a candidate shall be filed with the

candidate’s principal campaign committee.

(2) Each principal campaign committee shall receive all

designations, statements, and reports required to be filed with it
270

under paragraph (1) and shall compile and file such designations,

statements, and reports in accordance with this Act.

* * * * *

§ 434. Reporting requirements

 (a) Receipts and disbursements by treasurers of political

 committees; filing requirements

 (1) Each treasurer of a political committee shall file reports

 of receipts and disbursements in accordance with the provisions

 of this subsection. The treasurer shall sign each such report.

* * * * * 

 (b) Contents of reports

 Each report under this section shall disclose– 

 (1) the amount of cash on hand at the beginning of the

 reporting period;

 (2) for the reporting period and the calendar year (or election

 cycle, in the case of an authorized committee of a candidate for

 Federal office), the total amount of all receipts, and the total

 amount of all receipts in the following categories:

 (A) contributions from persons other than political

 committees;

 (B) for an authorized committee, contributions from the

 candidate....

* * * * * 

 (3) the identification of each– 

 (A) person (other than a political committee) who makes

 a contribution to the reporting committee during the

 reporting period, whose contribution or contributions have

 an aggregate amount or value in excess of $200 within

 the calendar year (or election cycle, in the case of an

 authorized committee of a candidate for Federal office),

 or in any lesser amount if the reporting committee should

 so elect, together with the date and amount of any such

 contribution;

* * * * * 
271

 (4) for the reporting period and the calendar year (or election

cycle, in the case of an authorized committee of a candidate for

Federal office), the total amount of all disbursements, and all

disbursements in the following categories:

 (A) expenditures made to meet candidate or committee

operating expenses;

* * * * * 

 (6)(A) for an authorized committee, the name and address of 

 each person who has received any disbursement not

 disclosed under paragraph (5) in an aggregate amount or

 value in excess of $200 within the calendar year (or

 election cycle, in the case of an authorized committee of a

 candidate for Federal office), together with the date and

 amount of any such disbursement;

 (B) for any other political committee, the name and

 address of each– 

* * * * *

 (v) person who has received any disbursement not

 otherwise disclosed in this paragraph or paragraph (5) in

 an aggregate amount or value in excess of $200 within

 the calendar year (or election cycle, in the case of an

 authorized committee of a candidate for Federal office),

 from the reporting committee within the reporting

 period, together with the date, amount, and purpose of

 any such disbursement;

* * * * * 

(f) Disclosure of electioneering communications

(1) Statement required 

Every person who makes a disbursement for the direct

 costs of producing and airing electioneering communications in

 an aggregate amount in excess of $10,000 during any calendar

 year shall, within 24 hours of each disclosure date, file with the

 Commission a statement containing the information described in

 paragraph (2).
272

 (2) Contents of statement

Each statement required to be filed under this subsection

 shall be made under penalty of perjury and shall contain the

 following information:

 (A) The identification of the person making the

 disbursement, of any person sharing or exercising direction

 or control over the activities of such person, and of the

 custodian of the books and accounts of the person making

 the disbursement.

 (B) The principal place of business of the person making

 the disbursement, if an individual.

(C) The amount of each disbursement of more than

 $200 during the period covered by the statement and the

 identification of the person to whom the disbursement was

 made.

(D) The elections to which the electioneering

 communications pertain and the names (if known) of the

 candidates identified or to be identified.

 (E) If the disbursements were paid out of a segregated

 bank account which consists of funds contributed solely by

 individuals who are United States citizens or nationals or

 lawfully admitted for permanent residence (as defined in

section 1101(a)(20) of Title 8) directly to this account for

 electioneering communications, the names and addresses of

 all contributors who contributed an aggregate amount of

 $1,000 or more to that account during the period beginning

 on the first day of the preceding calendar year and ending

 on the disclosure date. Nothing in this subparagraph is to

 be construed as a prohibition on the use of funds in such a

 segregated account for a purpose other than electioneering

communications.

 (F) If the disbursements were paid out of funds not

described in subparagraph (E), the names and addresses of

all contributors who contributed an aggregate amount of
273

$1,000 or more to the person making the disbursement

during the period beginning on the first day of the preceding

calendar year and ending on the disclosure date.

 (3) Electioneering communication

For purposes of this subsection– 

 (A) In general

 (i) The term "electioneering communication" means

 any broadcast, cable, or satellite communication which– 

 (i) refers to a clearly identified candidate for

 Federal office;

 (II) is made within– 

 (aa) 60 days before a general, special, or

 runoff election for the office sought by the

 candidate; or

(bb) 30 days before a primary or preference

 election, or a convention or caucus of a

 political party that has authority to nominate a

 candidate, for the office sought by the

 candidate; and

 (III) in the case of a communication which

 refers to a candidate for an office other than

 President or Vice President, is targeted to the

 relevant electorate.

* * * * *

§ 437g. Enforcement

* * * * *

 (d) Penalties; defenses; mitigation of offenses

 (1)(A) Any person who knowingly and willfully commits a

 violation of any provision of this act which involves the

 making, receiving, or reporting of any contribution,

 donation, or expenditure 

 (i) aggregating $25,000 or more during a calendar
274

 year shall be fined under Title18, or imprisoned for not

 more than 5 years, or both; or

 (ii) aggregating $2,000 or more (but less than

$25,000) during a calendar year shall be fined under

such title, or imprisoned for not more than 1 year, or

both.

 (B) In the case of a knowing and willful violation of

 section 441b(b)(3) of this title, the penalties set forth in this

 subsection shall apply to a violation involving an amount

 aggregating $250 or more during a calendar year. Such

 violation of section 441b(b)(3) of this title may incorporate

 a violation of section 441c(b), 441f, or 441g of this title.

 (C) In the case of a knowing and willful violation of

 section 441h of this title, the penalties set forth in this

 subsection shall apply without regard to whether the

 making, receiving, or reporting of a contribution or

 expenditure of $1,000 or more is involved.

 (D) Any person who knowingly and willfully commits a

 violation of section 441f of this title involving an amount

 aggregating more than $10,000 during a calendar year shall

 be

 (i) imprisoned for not more than 2 years if the

 amount is less than $25,000 (and subject to

 imprisonment under subparagraph (A) if the amount is

 $25,000 or more);

 (ii) fined not less than 300 percent of the amount

 involved in the violation and not more than the greater

 of–

 (i) $50,000; or

 (II) 1,000 percent of the amount involved in the

violation; or

 (iii) both imprisoned under clause (i) and fined

under clause (ii).
275

 (2) In any criminal action brought for a violation of any

provision of this Act or of chapter 95 or chapter 96 of Title 26, any

defendant may evidence their lack of knowledge or intent to

commit the alleged violation by introducing as evidence a

conciliation agreement entered into between the defendant and the

Commission under subsection (a)(4)(A) of this section which

specifically deals with the act or failure to act constituting such

violation and which is still in effect.

 (3) In any criminal action brought for a violation of any

provision of this Act or of chapter 95 or chapter 96 of Title 26, the

court before which such action is brought shall take into account, in

weighing the seriousness of the violation and in considering the

appropriateness of the penalty to be imposed if the defendant is

found guilty, whether– 

 (A) the specific act or failure to act which constitutes the

 violation for which the action was brought is the subject of

 a conciliation agreement entered into between the

 defendant and the Commission under subparagraph

 (a)(4)(A);

 (B) the conciliation agreement is in effect; and

 (C) the defendant is, with respect to the violation

 involved, in compliance with the conciliation agreement.

§ 439a. Use of contributed amounts for certain purposes

 (a) Permitted uses

 A contribution accepted by a candidate, and any other

 donation received by an individual as support for activities of

 the individual as a holder of Federal office, may be used by the 

 candidate or individual– 

 (1) for otherwise authorized expenditures in connection with

 the campaign for Federal office of the candidate or individual;

 (2) for ordinary and necessary expenses incurred in

 connection with duties of the individual as a holder of Federal
276

 office;

 (3) for contributions to an organization described in section

 170(c) of Title 26;

 (4) for transfers, without limitation, to a national, State, or

 local committee of a political party;

 (5) for donations to State and local candidates subject to the

 provisions of State law; or

 (6) for any other lawful purpose unless prohibited by

 subsection (b) of this section.

 (b) Prohibited use

 (1) In general 

 A contribution or donation described in subsection (a)

 of this section shall not be converted by any person to

 personal use.

(2) Conversion

 For the purposes of paragraph (1), a contribution or

 donation shall be considered to be converted to personal

 use if the contribution or amount is used to fulfill any

 commitment, obligation, or expense of a person that would

 exist irrespective of the candidate's election campaign or

 individual's duties as a holder of Federal office, including–

(A) a home mortgage, rent, or utility payment;

(B) a clothing purchase;

(C) a noncampaign-related automobile expense;

(D) a country club membership;

(E) a vacation or other noncampaign-related trip;

(F) a household food item;

(G) a tuition payment;

(H) admission to a sporting event, concert, theater, or

 other form of entertainment not associated with an election

 campaign; and

(i) dues, fees, and other payments to a health club or

 recreational facility.
277

§ 441a. Limitations on contributions and expenditures

 (a) Dollar limits on contributions

 (1) Except as provided in subsection (i) of this section and

 section 441a-1 of this title, no person shall make contributions–

 (A) to any candidate and his authorized political

 committees with respect to any election for Federal office

 which, in the aggregate, exceed $2,000;

 (B) to the political committees established and

 maintained by a national political party, which are not the

 authorized political committees of any candidate, in any

 calendar year which, in the aggregate, exceed $25,000;

 (C) to any other political committee (other than a

 committee described in subparagraph (D)) in any calendar

 year which, in the aggregate, exceed $5,000; or

 (D) to a political committee established and maintained

 by a State committee of a political party in any calendar

 year which, in the aggregate, exceed $10,000.

 (2) No multicandidate political committee shall make

 contributions– 

 (A) to any candidate and his authorized political

 committees with respect to any election for Federal office

 which, in the aggregate, exceed $5,000;

 (B) to the political committees established and

 maintained by a national political party, which are not the

 authorized political committees of any candidate, in any

 calendar year, which, in the aggregate, exceed $15,000; or

 (C) to any other political committee in any calendar year

 which, in the aggregate, exceed $5,000.

(3) During the period which begins on January 1 of an

 odd-numbered year and ends on December 31 of the next

 even-numbered year, no individual may make contributions

 aggregating more than– 

 (A) $37,500, in the case of contributions to candidates
278

 and the authorized committees of candidates;

 (B) $57,500, in the case of any other contributions, of

 which not more than $37,500 may be attributable to

 contributions to political committees which are not political

 committees of national political parties.

(4) The limitations on contributions contained in paragraphs

 (1) and (2) do not apply to transfers between and among

 political committees which are national, State, district, or

 local committees (including any subordinate committee

 thereof) of the same political party for purposes of paragraph

 (2), the term "multicandidate political committee" means a

 political committee which has been registered under section

433 of this title for a period of not less than 6 months, which

has received contributions from more than 50 persons, and,

candidates for Federal office.

 (5) For purposes of the limitations provided by paragraph (1)

and paragraph (2), all contributions made by political

committees established or financed or maintained or controlled

by any corporation, labor organization, or any other person,

including any parent, subsidiary, branch, division, department,

or local unit of such corporation, labor organization, or any

other person, or by any group of such persons, shall be

considered to have been made by a single political committee,

except that (A) nothing in this sentence shall limit transfers

between political committees of funds raised through joint fund

raising efforts; (B) for purposes of the limitations provided by

paragraph (1) and paragraph (2) all contributions made by a

single political committee established or financed or maintained

or controlled by a national committee of a political party and by

a single political committee established or financed or

maintained or controlled by the State committee of a political

party shall not be considered to have been made by a single

political committee; and (C) nothing in this section shall limit

the transfer of funds between the principal campaign
279

committee of a candidate seeking nomination or election to a

Federal office and the principal campaign committee of that

candidate for nomination or election to another Federal office if

(i) such transfer is not made when the candidate is actively

seeking nomination or election to both such offices; (ii) the

limitations contained in this Act on contributions by persons are

not exceeded by such transfer; and (iii) the candidate has not

elected to receive any funds under chapter 95 or chapter 96 of

Title 26. In any case in which a corporation and any of its

subsidiaries, branches, divisions, departments, or local units, or

a labor organization and any of its subsidiaries, branches,

divisions, departments, or local units establish or finance or

maintain or control more than one separate segregated fund, all

such separate segregated funds shall be treated as a single

separate segregated fund for purposes of the limitations

provided by paragraph (1) and paragraph (2).

 (6) The limitations on contributions to a candidate imposed

by paragraphs (1) and (2) of this subsection shall apply

separately with respect to each election, except that all elections

held in any calendar year for the office of President of the

United States (except a general election for such office) shall be

considered to be one election.

 (7) For purposes of this subsection--

 (A) contributions to a named candidate made to any

political committee authorized by such candidate to

accept contributions on his behalf shall be considered to

be contributions made to such candidate;

 (B)(i) expenditures made by any person in cooperation,

 consultation, or concert, with, or at the request or

 suggestion of, a candidate, his authorized political

 committees, or their agents, shall be considered to be a

 contribution to such candidate;

 (ii) expenditures made by any person (other than a

 candidate or candidate's authorized committee) in
280

 cooperation, consultation, or concert with, or at the

 request or suggestion of, a national, State, or local

 committee of a political party, shall be considered to be

 contributions made to such party committee; and

 (iii) the financing by any person of the dissemination,

 distribution, or republication, in whole or in part, of any

 broadcast or any written, graphic, or other form of

 campaign materials prepared by the candidate, his

 campaign committees, or their authorized agents shall

 be considered to be an expenditure for purposes of this

 paragraph; and 

 (C) if– 

 (i) any person makes, or contracts to make, any

 disbursement for any electioneering communication

 (within the meaning of section 434(f)(3) of this title);

 and

 (ii) such disbursement is coordinated with a

 candidate or an authorized committee of such candidate,

 a Federal, State, or local political party or committee

 thereof, or an agent or official of any such candidate,

 party, or committee; such disbursement or contracting

 shall be treated as a contribution to the candidate

 supported by the electioneering communication or that

 candidate's party and as an expenditure by that candidate

 or that candidate's party; and

 (D) contributions made to or for the benefit of any

 candidate nominated by a political party for election to the

 office of Vice President of the United States shall be

 considered to be contributions made to or for the benefit

 of the candidate of such party for election to the office of

 President of the United States (except a general election for

such office) shall be considered to be one election.
281

 (8) For purposes of the limitations imposed by this section,

 all contributions made by a person, either directly or indirectly,

on behalf of a particular candidate, including contributions

which are in any way earmarked or otherwise directed through

 an intermediary or conduit to such candidate, shall be treated 

as contributions from such person to such candidate. The

intermediary or conduit shall report the original source and the

intended recipient of such contribution to the Commission and

to the intended recipient.

* * * * * 

 (f) Prohibited contributions and expenditures

No candidate or political committee shall knowingly accept

any contribution or make any expenditure in violation of the

provisions of this section. No officer or employee of a political

committee shall knowingly accept a contribution made for the

benefit or use of a candidate, or knowingly make any expenditure

on behalf of a candidate, in violation of any limitation imposed on

contributions and expenditures under this section.

§ 441b. Contributions or expenditures by national banks,

 corporations, or labor organizations

 (a) It is unlawful for any national bank, or any corporation

organized by authority of any law of Congress, to make a

contribution or expenditure in connection with any election to any

political office, or in connection with any primary election or

political convention or caucus held to select candidates for any

political office, or for any corporation whatever, or any labor

organization, to make a contribution or expenditure in connection

with any election at which presidential and vice presidential electors

or a Senator or Representative in, or a Delegate or Resident

Commissioner to, Congress are to be voted for, or in connection

with any primary election or political convention or caucus held to

select candidates for any of the foregoing offices, or for any
282

candidate, political committee, or other person knowingly to accept

or receive any contribution prohibited by this section, or any officer

or any director of any corporation or any national bank or any

officer of any labor organization to consent to any contribution or

expenditure by the corporation, national bank, or labor organization,

as the case may be, prohibited by this section.

 (b)(1) For the purposes of this section the term "labor

 organization" means any organization of any kind, or any

 agency or employee representation committee or plan, in which

 employees participate and which exists for the purpose, in

 whole or in part, of dealing with employers concerning

 grievances, labor disputes, wages, rates of pay, hours of

 employment, or conditions of work.

(2) For purposes of this section and section 79l(h) of Title 15,

 the term "contribution or expenditure" includes a contribution

 or expenditure, as those terms are defined in section 431 of this

 title, and also includes any direct or indirect payment,

 distribution, loan, advance, deposit, or gift of money, or any

 services, or anything of value (except a loan of money by a

 national or State bank made in accordance with the applicable

 banking laws and regulations and in the ordinary course of

 business) to any candidate, campaign committee, or political

 party or organization, in connection with any election to any of

 the offices referred to in this section or for any applicable

 electioneering communication, but shall not include (A)

 communications by a corporation to its stockholders and

 executive or administrative personnel and their families or by a

 labor organization to its members and their families on any

 subject; (B) nonpartisan registration and get-out-the-vote

 campaigns by a corporation aimed at its stockholders and

 executive or administrative personnel and their families, or by a

 labor organization aimed at its members and their families; and

 (C) the establishment, administration, and solicitation of

 contributions to a separate segregated fund to be utilized for
283

 political purposes by a corporation, labor organization,

 membership organization, cooperative, or corporation without

 capital stock.

(3) It shall be unlawful– 

 (A) for such a fund to make a contribution or expenditure

by utilizing money or anything of value secured by physical

force, job discrimination, financial reprisals, or the threat of

force, job discrimination, or financial reprisal; or by dues,

fees, or other moneys required as a condition of membership

in a labor organization or as a condition of employment, or

 by moneys obtained in any commercial transaction;

(B) for any person soliciting an employee for a

contribution to such a fund to fail to inform such employee

of the political purposes of such fund at the time of such

solicitation; and

 (C) for any person soliciting an employee for a

contribution to such a fund to fail to inform such employee,

 at the time of such solicitation, of his right to refuse to so

contribute without any reprisal.

(4)(A) Except as provided in subparagraphs (B), (C), and (D),

it shall be unlawful– 

 (i) for a corporation, or a separate segregated fund

 established by a corporation, to solicit contributions to

 such a fund from any person other than its stockholders

 and their families and its executive or administrative

 personnel and their families, and

 (ii) for a labor organization, or a separate segregated

 fund established by a labor organization, to solicit

 contributions to such a fund from any person other than

 its members and their families.

 (B) It shall not be unlawful under this section for a

corporation, a labor organization, or a separate segregated

 fund established by such corporation or such labor
284

organization, to make 2 written solicitations for 

contributions during the calendar year from any stockholder,

executive or administrative personnel, or employee of a

 corporation or the families of such persons. A solicitation

 under this subparagraph may be made only by mail

 addressed to stockholders, executive or administrative

personnel, or employees at their residence and shall be so

designed that the corporation, labor organization, or separate

segregated fund conducting such solicitation cannot

determine who makes a contribution of $50 or less as a

result of such solicitation and who does not make such

a contribution.

 (C) This paragraph shall not prevent a membership

organization, cooperative, or corporation without capital

stock, or a separate segregated fund established by a

membership organization, cooperative, or corporation

 without capital stock, from soliciting contributions to such a

fund from members of such organization, cooperative,

or corporation without capital stock.

 (D) This paragraph shall not prevent a trade association or

a separate segregated fund established by a trade association

from soliciting contributions from the stockholders and

executive or administrative personnel of the member

corporations of such trade association and the families of

such stockholders or personnel to the extent that such

solicitation of such stockholders and personnel, and their

families, has been separately and specifically approved by

the member corporation involved, and such member

corporation does not approve any such solicitation by more

than one such trade association in any calendar year.

 (c) Rules relating to electioneering communications

(1) Applicable electioneering communication

For purposes of this section, the term "applicable

 electioneering communication" means an electioneering
285

 communication (within the meaning of section 434(f)(3) of this

 title) which is made by any entity described in subsection (a) of

 this section or by any other person using funds donated by an

 entity described in subsection (a) of this section.

 (2) Exception

 Notwithstanding paragraph (1), the term "applicable

 electioneering communication" does not include a

 communication by a section 501(c)(4) organization or a

 political organization (as defined in section 527(e)(1) of

 Title 26) made under section 434(f)(2)(E) or (F) of this title if

 the communication is paid for exclusively by funds provided

 directly by individuals who are United States citizens or

 nationals or lawfully admitted for permanent residence (as

 defined in section 1101(a)(20) of Title 8). For purposes of the

 preceding sentence, the term "provided directly by individuals"

 does not include funds the source of which is an entity

 described in subsection (a) of this section.

* * * * *

§ 441c. Contributions by government contractors

 (a) Prohibition

 It shall be unlawful for any person– 

 (1) who enters into any contract with the United States or

 any department or agency thereof either for the rendition of

 personal services or furnishing any material, supplies, or

 equipment to the United States or any department or agency

 thereof or for selling any land or building to the United States

 or any department or agency thereof, if payment for the

 performance of such contract or payment for such material,

 supplies, equipment, land, or building is to be made in whole or

 in part from funds appropriated by the Congress, at any time

 between the commencement of negotiations for and the later of

 (A) the completion of performance under; or (B) the

 termination of negotiations for, such contract or furnishing of

 material, supplies, equipment, land, or buildings, directly or
286

 indirectly to make any contribution of money or other things of

 value, or to promise expressly or impliedly to make any such

 contribution to any political party, committee, or candidate for

 public office or to any person for any political purpose or use;

 or

 (2) knowingly to solicit any such contribution from any such

 person for any such purpose during any such period.

 (b) Separate segregated funds

This section does not prohibit or make unlawful the

establishment or administration of, or the solicitation of

contributions to, any separate segregated fund by any corporation,

labor organization, membership organization, cooperative, or

corporation without capital stock for the purpose of influencing the

nomination for election, or election, of any person to Federal office,

unless the provisions of section 441b of this title prohibit or make

unlawful the establishment or administration of, or the solicitation

of contributions to, such fund. Each specific prohibition,

allowance, and duty applicable to a corporation, labor organization,

or separate segregated fund under section 441b of this title applies

to a corporation, labor organization, or separate segregated fund to

which this subsection applies.

 (c) "Labor organization" defined

 For purposes of this section, the term "labor organization"

has the meaning given it by section 441b(b)(1) of this title.

§ 441d. Publication and distribution of statements and

 solicitations; charge for newspaper or magazine space

 (a) Whenever a political committee makes a disbursement for

the purpose of financing any communication through any

broadcasting station, newspaper, magazine, outdoor advertising

facility, mailing, or any other type of general public political

advertising, or whenever any person makes a disbursement for the

purpose of financing communications expressly advocating the

election or defeat of a clearly identified candidate, or solicits any
So in original. The word "or" probably should appear at the 82

end of par. (2). 

287

contribution through any broadcasting station, newspaper,

magazine, outdoor advertising facility, mailing, or any other type of

general public political advertising or makes a disbursement for an

electioneering communication (as defined in section 434(f)(3) of

this title), such communication–

 (1) if paid for and authorized by a candidate, an authorized

political committee of a candidate, or its agents, shall clearly

state that the communication has been paid for by such

authorized political committee, or 82

 (2) if paid for by other persons but authorized by a

 candidate, an authorized political committee of a candidate, or

 its agents, shall clearly state that the communication is paid for

 by such other persons and authorized by such authorized

 political committee;

1

 (3) if not authorized by a candidate, an authorized political

 committee of a candidate, or its agents, shall clearly state the

 name and permanent street address, telephone number, or

 World Wide Web address of the person who paid for the

 communication and state that the communication is not

 authorized by any candidate or candidate's committee.

 (b) No person who sells space in a newspaper or magazine to a

candidate or to the agent of a candidate, for use in connection with

such candidate's campaign, may charge any amount for such space

which exceeds the amount charged for comparable use of such

space for other purposes.

 (c) Specification

 Any printed communication described in subsection (a) of

this section shall– 

 (1) be of sufficient type size to be clearly readable by the

recipient of the communication;
288

 (2) be contained in a printed box set apart from the other

contents of the communication; and

 (3) be printed with a reasonable degree of color contrast

between the background and the printed statement.

 (d) Additional requirements

 (1) Communications by candidates or authorized persons

 (A) By radio

Any communication described in paragraph (1) or

 (2) of subsection (a) of this section which is transmitted

 through radio shall include, in addition to the requirements

 of that paragraph, an audio statement by the candidate that

 identifies the candidate and states that the candidate has

 approved the communication.

 (B) By television

 Any communication described in paragraph (1) or

 (2) of subsection (a) of this section which is transmitted

 through television shall include, in addition to the

 requirements of that paragraph, a statement that identifies

 the candidate and states that the candidate has approved the

 communication.

 Such statement– 

 (i) shall be conveyed by– 

 (i) an unobscured, full-screen view of the

 candidate making the statement, or

 (II) the candidate in voice-over, accompanied

 by a clearly identifiable photographic or similar

 image of the candidate; and

 (ii) shall also appear in writing at the end of the

 communication in a clearly readable manner with a

 reasonable degree of color contrast between the

 background and the printed statement, for a period

 of at least 4 seconds.
289

 (2) Communications by others

 Any communication described in paragraph (3) of

 subsection (a) of this section which is transmitted through radio

 or television shall include, in addition to the requirements of

 that paragraph, in a clearly spoken manner, the following audio

 statement: "________ is responsible for the content of this

 advertising." (with the blank to be filled in with the name of the

 political committee or other person paying for the

communication and the name of any connected organization of

the payor). If transmitted through television, the statement shall

be conveyed by an unobscured, full-screen view of a

representative of the political committee or other person making

the statement, or by a representative of such political committee

or other person in voice-over, and shall also appear in a clearly

readable manner with a reasonable degree of color contrast

between the background and the printed statement, for a period

of at least 4 seconds.

§ 441e. Contributions and donations by foreign nationals

 (a) Prohibition

 It shall be unlawful for– 

 (1) a foreign national, directly or indirectly, to make– 

(A) a contribution or donation of money or other thing of

value, or to make an express or implied promise to make a

contribution or donation, in connection with a Federal,

State, or local election;

 (B) a contribution or donation to a committee of a

political party; or

 (C) an expenditure, independent expenditure, or

disbursement for an electioneering communication (within

the meaning of section 434(f)(3) of this title); or

(2) a person to solicit, accept, or receive a contribution or

donation described in subparagraph (A) or (B) of

paragraph (1) from a foreign national.
290

 (b) "Foreign national" defined

 As used in this section, the term "foreign national" means– 

 (1) a foreign principal, as such term is defined by section

 611(b) of Title 22, except that the term "foreign national" shall

 not include any individual who is a citizen of the United States;

 or

 (2) an individual who is not a citizen of the United States or

 a national of the United States (as defined in section

 1101(a)(22) of Title 8) and who is not lawfully admitted for

 permanent residence, as defined by section 1101(a)(2) of 

 Title 8.

§ 441f. Contributions in name of another prohibited

 No person shall make a contribution in the name of another

person or knowingly permit his name to be used to effect such a

contribution, and no person shall knowingly accept a contribution

made by one person in the name of another person.

§ 441g. Limitation on contribution of currency

 No person shall make contributions of currency of the United

States or currency of any foreign country to or for the benefit of any

candidate which, in the aggregate, exceed $100, with respect to any

campaign of such candidate for nomination for election, or for

election, to Federal office.

§ 441h. Fraudulent misrepresentation of campaign authority

 (a) In general

 No person who is a candidate for Federal office or an

employee or agent of such a candidate shall– 

 (1) fraudulently misrepresent himself or any committee or

 organization under his control as speaking or writing or

 otherwise acting for or on behalf of any other candidate or

 political party or employee or agent thereof on a matter which

 is damaging to such other candidate or political party or
291

 employee or agent thereof; or

 (2) willfully and knowingly participate in or conspire to

 participate in any plan, scheme, or design to violate paragraph

 (1).

 (b) Fraudulent solicitation of funds

 No person shall– 

 (1) fraudulently misrepresent the person as speaking,

 writing, or otherwise acting for or on behalf of any candidate or

political party or employee or agent thereof for the purpose of

soliciting contributions or donations; or

 (2) willfully and knowingly participate in or conspire to

 participate in any plan, scheme, or design to violate paragraph

 (1).

§ 441i. Soft money of political parties

 (a) National committees

 (1) In general

 A national committee of a political party (including a national

 congressional campaign committee of a political party) may not 

 solicit, receive, or direct to another person a contribution,

 donation, or transfer of funds or any other thing of value, or

 spend any funds, that are not subject to the limitations,

 prohibitions, and reporting requirements of this Act.

 (2) Applicability

 The prohibition established by paragraph (1) applies to

 any such national committee, any officer or agent acting on

 behalf of such a national committee, and any entity that is

 directly or indirectly established, financed, maintained, or

 controlled by such a national committee.

 (b) State, district, and local committees

 (1) In general

 Except as provided in paragraph (2), an amount that is

 expended or disbursed for Federal election activity by a State,
292

 district, or local committee of a political party (including an

 entity that is directly or indirectly established, financed,

 maintained, or controlled by a State, district, or local committee

 of a political party and an officer or agent acting on behalf of

 such committee or entity), or by an association or similar group

 of candidates for State or local office or of individuals holding

 State or local office, shall be made from funds subject to the

 limitations, prohibitions, and reporting requirements of this

 Act.

(2) Applicability

 (A) In general

Notwithstanding clause (i) or (ii) of section

 431(20)(A) of this title, and subject to subparagraph (B),

 paragraph (1) shall not apply to any amount expended or

 disbursed by a State, district, or local committee of a

 political party for an activity described in either such clause

 to the extent the amounts expended or disbursed for such

 activity are allocated (under regulations prescribed by the

 Commission) among amounts– 

 (i) which consist solely of contributions subject to

 the limitations, prohibitions, and reporting

 requirements of this Act (other than amounts described

 in subparagraph (B)(iii)); and

 (ii) other amounts which are not subject to the

 limitations, prohibitions, and reporting requirements of

 this Act (other than any requirements of this

 subsection).

 (B) Conditions

Subparagraph (A) shall only apply if– 

 (i) the activity does not refer to a clearly identified

 candidate for Federal office;

 (ii) the amounts expended or disbursed are not for

 the costs of any broadcasting, cable, or satellite

 communication, other than a communication which
293

 refers solely to a clearly identified candidate for State

 or local office;

 (iii) the amounts expended or disbursed which are

 described in subparagraph (A)(ii) are paid from

 amounts which are donated in accordance with State

 law and which meet the requirements of subparagraph

 (C), except that no person (including any person

 established, financed, maintained, or controlled by

 such person) may donate more than $10,000 to a State,

 district, or local committee of a political party in a

 calendar year for such expenditures or disbursements;

 and

(iv) the amounts expended or disbursed are made

 solely from funds raised by the State, local, or district

 committee which makes such expenditure or

 disbursement, and do not include any funds provided

 to such committee from– 

 (i) any other State, local, or district committee

 of any State party,

 (II) the national committee of a political party

 (including a national congressional campaign

 committee of a political party),

 (III) any officer or agent acting on behalf of

 any committee described in subclause (i) or (II), or

 (IV) any entity directly or indirectly

 established, financed, maintained, or controlled by

 any committee described in subclause (i) or (II).

 (C) Prohibiting involvement of National parties,

 Federal candidates and officeholders, and State

 parties acting jointly

 Notwithstanding subsection (e) of this section (other

 than subsection (e)(3) of this section), amounts specifically
294

 authorized to be spent under subparagraph (B)(iii) meet the

 requirements of this subparagraph only if the amounts– 

(i) are not solicited, received, directed, transferred,

 or spent by or in the name of any person described in

 subsection (a) or (e) of this section; and

(ii) are not solicited, received, or directed through

 fundraising activities conducted jointly by 2 or more

 State, local, or district committees of any political

 party or their agents, or by a State, local, or district

 committee of a political party on behalf of the State,

 local, or district committee of a political party or its

 agent in one or more other States.

 (c) Fundraising costs

 An amount spent by a person described in subsection (a) or

(b) of this section to raise funds that are used, in whole or in part,

for expenditures and disbursements for a Federal election activity

shall be made from funds subject to the limitations, prohibitions,

and reporting requirements of this Act.

* * * * *

 (e) Federal candidates

 (1) In general

 A candidate, individual holding Federal office, agent of a

 candidate or an individual holding Federal office, or an entity

 directly or indirectly established, financed, maintained or

 controlled by or acting on behalf of 1 or more candidates or

 individuals holding Federal office, shall not– 

 (A) solicit, receive, direct, transfer, or spend funds in

 connection with an election for Federal office, including 

funds for any Federal election activity, unless the funds are

subject to the limitations, prohibitions, and reporting

requirements of this Act; or

 (B) solicit, receive, direct, transfer, or spend funds in
295

 connection with any election other than an election for

 Federal office or disburse funds in connection with such an

 election unless the funds– 

 (i) are not in excess of the amounts permitted with

 respect to contributions to candidates and political

 committees under paragraphs (1), (2), and (3) of section

 441a(a) of this title; and

 (ii) are not from sources prohibited by this Act from

 making contributions in connection with an election for

 Federal office.

§ 455. Period of limitations

 (a) No person shall be prosecuted, tried, or punished for any

violation of subchapter I of this chapter, unless the indictment is

found or the information is instituted within 5 years after the date of

the violation.

 (b) Notwithstanding any other provision of law– 

 (1) the period of limitations referred to in subsection (a) of

 this section shall apply with respect to violations referred to in

 such subsection committed before, on, or after the effective

 date of this section; and

 (2) no criminal proceeding shall be instituted against any

 person for any act or omission which was a violation of any

 provision of subchapter I of this chapter, as in effect on

 December 31, 1974, if such act or omission does not constitute

 a violation of any such provision, as amended by the Federal

 Election Campaign Act Amendments of 1974.
296

B. EXCERPTS FROM TITLE 18, UNITED STATES CODE

§ 241. Conspiracy against rights

 If two or more persons conspire to injure, oppress, threaten, or

intimidate any person in any State, Territory, Commonwealth,

Possession, or District in the free exercise or enjoyment of any right

or privilege secured to him by the Constitution or laws of the United

States, or because of his having so exercised the same; or

 If two or more persons go in disguise on the highway, or on the

premises of another, with intent to prevent or hinder his free

exercise or enjoyment of any right or privilege so secured–

 They shall be fined under this title or imprisoned not more than

ten years, or both; and if death results from the acts committed in

violation of this section or if such acts include kidnapping or an

attempt to kidnap, aggravated sexual abuse or an attempt to commit

aggravated sexual abuse, or an attempt to kill, they shall be fined

under this title or imprisoned for any term of years or for life, or

both, or may be sentenced to death.

§ 242. Deprivation of rights under color of law

 Whoever, under color of any law, statute, ordinance, regulation,

or custom, willfully subjects any person in any State, Territory,

Commonwealth, Possession, or District to the deprivation of any

rights, privileges, or immunities secured or protected by the

Constitution or laws of the United States, or to different

punishments, pains, or penalties, on account of such person being an

alien, or by reason of his color, or race, than are prescribed for the

punishment of citizens, shall be fined under this title or imprisoned

not more than one year, or both; and if bodily injury results from

the acts committed in violation of this section or if such acts include

the use, attempted use, or threatened use of a dangerous weapon,

explosives, or fire, shall be fined under this title or imprisoned not

more than ten years, or both; and if death results from the acts

committed in violation of this section or if such acts include
297

kidnapping or an attempt to kidnap, aggravated sexual abuse, or an

attempt to commit aggravated sexual abuse, or an attempt to kill,

shall be fined under this title, or imprisoned for any term of years or

for life, or both, or may be sentenced to death.

§ 245. Federally protected activities

 (b) Whoever, whether or not acting under color of law, by force

or threat of force willfully injures, intimidates or interferes with, or

attempts to injure, intimidate or interfere with– 

 (1) any person because he is or has been, or in order to

intimidate such person or any other person or any class of persons

from– 

 (A) voting or qualifying to vote, qualifying or

campaigning as a candidate for elective office, or qualifying or

acting as a poll watcher, or any legally authorized election official,

in any primary, special, or general election;

* * * * *

shall be fined under this title, or imprisoned not more than one year,

or both; and if bodily injury results from the acts committed in

violation of this section or if such acts include the use, attempted

use, or threatened use of a dangerous weapon, explosives, or fire

shall be fined under this title, or imprisoned not more than ten years,

or both; and if death results from the acts committed in violation of

this section or if such acts include kidnapping or an attempt to

kidnap, aggravated sexual abuse or an attempt to commit aggravated

sexual abuse, or an attempt to kill, shall be fined under this title or

imprisoned for any term of years or for life, or both, or may be

sentenced to death.

* * * * *

§ 371. Conspiracy to commit offense or to defraud 

 United States

 If two or more persons conspire either to commit any offense

against the United States, or to defraud the United States, or any
298

agency thereof in any manner or for any purpose, and one or more

of such persons do any act to effect the object of the conspiracy,

each shall be fined under this title or imprisoned not more than five

years, or both.

 If, however, the offense, the commission of which is the object of

the conspiracy, is a misdemeanor only, the punishment for such

conspiracy shall not exceed the maximum punishment provided for

such misdemeanor.

* * * * *

§ 592. Troops at polls

 Whoever, being an officer of the Army or Navy, or other person

in the civil, military, or naval service of the United States, orders,

brings, keeps, or has under his authority or control any troops or

armed men at any place where a general or special election is held,

unless such force be necessary to repel armed enemies of the United

States, shall be fined under this title or imprisoned not more than

five years, or both; and be disqualified from holding any office of

honor, profit, or trust under the United States.

 This section shall not prevent any officer or member of the armed

forces of the United States from exercising the right of suffrage in

any election district to which he may belong, if otherwise qualified

according to the laws of the State in which he offers to vote.

* * * * *

§ 593. Interference by armed forces

 Whoever, being an officer or member of the Armed Forces of the

United States, prescribes or fixes or attempts to prescribe or fix,

whether by proclamation, order or otherwise, the qualifications of

voters at any election in any State; or

 Whoever, being such officer or member, prevents or attempts to

prevent by force, threat, intimidation, advice or otherwise any
299

qualified voter of any State from fully exercising the right of

suffrage at any general or special election; or

 Whoever, being such officer or member, orders or compels or

attempts to compel any election officer in any State to receive a vote

from a person not legally qualified to vote; or

 Whoever, being such officer or member, imposes or attempts to

impose any regulations for conducting any general or special

election in a State, different from those prescribed by law; or

 Whoever, being such officer or member, interferes in any manner

with an election officer's discharge of his duties– 

 Shall be fined under this title or imprisoned not more than five

years, or both; and disqualified from holding any office of honor,

profit or trust under the United States.

 This section shall not prevent any officer or member of the

Armed Forces from exercising the right of suffrage in any district to

which he may belong, if otherwise qualified according to the laws of

the State of such district.

§ 594. Intimidation of voters

 Whoever intimidates, threatens, coerces, or attempts to

intimidate, threaten, or coerce, any other person for the purpose of

interfering with the right of such other person to vote or to vote as

he may choose, or of causing such other person to vote for, or not to

vote for, any candidate for the office of President, Vice President,

Presidential elector, Member of the Senate, Member of the House of

Representatives, Delegate from the District of Columbia, or

Resident Commissioner, at any election held solely or in part for the

purpose of electing such candidate, shall be fined under this title or

imprisoned not more than one year, or both.

§ 595. Interference by administrative employees of Federal,

 State, or Territorial Governments

 Whoever, being a person employed in any administrative position

by the United States, or by any department or agency thereof, or by
300

the District of Columbia or any agency or instrumentality thereof, or

by any State, Territory, or Possession of the United States, or any

political subdivision, municipality, or agency thereof, or agency of

such political subdivision or municipality (including any

corporation owned or controlled by any State, Territory, or

Possession of the United States or by any such political subdivision,

municipality, or agency), in connection with any activity which is

financed in whole or in part by loans or grants made by the United

States, or any department or agency thereof, uses his official

authority for the purpose of interfering with, or affecting, the

nomination or the election of any candidate for the office of

President, Vice President, Presidential elector, Member of the

Senate, Member of the House of Representatives, Delegate from the

District of Columbia, or Resident Commissioner, shall be fined

under this title or imprisoned not more than one year, or both.

 This section shall not prohibit or make unlawful any act by any

officer or employee of any educational or research institution,

establishment, agency, or system which is supported in whole or in

part by any state or political subdivision thereof, or by the District of

Columbia or by any Territory or Possession of the United States; or

by any recognized religious, philanthropic or cultural organization.

§ 596. Polling armed forces

 Whoever, within or without the Armed Forces of the United

States, polls any member of such forces, either within or without the

United States, either before or after he executes any ballot under any

Federal or State law, with reference to his choice of or his vote for

any candidate, or states, publishes, or releases any result of any

purported poll taken from or among the members of the Armed

Forces of the United States or including within it the statement of

choice for such candidate or of such votes cast by any member of

the Armed Forces of the United States, shall be fined under this title

or imprisoned for not more than one year, or both.
301

The word "poll" means any request for information, verbal or

written, which by its language or form of expression requires or

implies the necessity of an answer, where the request is made with

the intent of compiling the result of the answers obtained, either for

the personal use of the person making the request, or for the purpose

of reporting the same to any other person, persons, political party,

unincorporated association or corporation, or for the purpose of

publishing the same orally, by radio, or in written or printed form.

§ 597. Expenditures to influence voting

 Whoever makes or offers to make an expenditure to any person,

either to vote or withhold his vote, or to vote for or against any

candidate; and

 Whoever solicits, accepts, or receives any such expenditure in

consideration of his vote or the withholding of his vote– 

 Shall be fined under this title or imprisoned not more than one

year, or both; and if the violation was willful, shall be fined under

this title or imprisoned not more than two years, or both.

§ 598. Coercion by means of relief appropriations

 Whoever uses any part of any appropriation made by Congress

for work relief, relief, or for increasing employment by providing

loans and grants for public-works projects, or exercises or

administers any authority conferred by any Appropriation Act for

the purpose of interfering with, restraining, or coercing any

individual in the exercise of his right to vote at any election, shall be

fined under this title or imprisoned not more than one year, or both.

§ 599. Promise of appointment by candidate

 Whoever, being a candidate, directly or indirectly promises or

pledges the appointment, or the use of his influence or support for

the appointment of any person to any public or private position or

employment, for the purpose of procuring support in his candidacy

shall be fined under this title or imprisoned not more than one year,
302

or both; and if the violation was willful, shall be fined under this

title or imprisoned not more than two years, or both.

§ 600. Promise of employment or other benefit for political

 activity

 Whoever, directly or indirectly, promises any employment,

position, compensation, contract, appointment, or other benefit,

provided for or made possible in whole or in part by any Act of

Congress, or any special consideration in obtaining any such benefit,

to any person as consideration, favor, or reward for any political

activity or for the support of or opposition to any candidate or any

political party in connection with any general or special election to

any political office, or in connection with any primary election or

political convention or caucus held to select candidates for any

political office, shall be fined under this title or imprisoned not more

than one year, or both.

§ 601. Deprivation of employment or other benefit for political

 contribution

 (a) Whoever, directly or indirectly, knowingly causes or attempts

to cause any person to make a contribution of a thing of value

(including services) for the benefit of any candidate or any political

party, by means of the denial or deprivation, or the threat of the

denial or deprivation, of– 

 (1) any employment, position, or work in or for any agency 

 or other entity of the Government of the United States, a State,

 or a political subdivision of a State, or any compensation or

 benefit of such employment, position, or work; or

 (2) any payment or benefit of a program of the United

 States, a State, or a political subdivision of a State; if such

 employment, position, work, compensation, payment, or

 benefit is provided for or made possible in whole or in part by

 an Act of Congress, shall be fined under this title, or

 imprisoned not more than one year, or both.
303

 (b) As used in this section– 

 (1) the term "candidate" means an individual who seeks

 nomination for election, or election, to Federal, State, or local

 office, whether or not such individual is elected, and, for

 purposes of this paragraph, an individual shall be deemed to

 seek nomination for election, or election, to Federal, State, or

 local office, if he has (A) taken the action necessary under the

 law of a State to qualify himself for nomination for election, or

 election, or (B) received contributions or made expenditures, or

 has given his consent for any other person to receive

 contributions or make expenditures, with a view to bringing

 about his nomination for election, or election, to such office;

 (2) the term "election" means (A) a general, special

 primary, or runoff election, (B) a convention or caucus of a

 political party held to nominate a candidate, (C) a primary

 election held for the selection of delegates to a nominating

 convention of a political party, (D) a primary election held for

 the expression of a preference for the nomination of persons

 for election to the office of President, and (E) the election of

 delegates to a constitutional convention for proposing

 amendments to the Constitution of the United States or of any

 State; and

 (3) the term "State" means a State of the United States, the

 District of Columbia, the Commonwealth of Puerto Rico, or

 any territory or possession of the United States.

§ 602. Solicitation of political contributions

 (a) It shall be unlawful for--

 (1) a candidate for the Congress;

 (2) an individual elected to or serving in the office of

Senator or Representative in, or Delegate or Resident

Commissioner to, the Congress;

 (3) an officer or employee of the United States or any
304

department or agency thereof; or

 (4) a person receiving any salary or compensation for

services from money derived from the Treasury of the United

States; to knowingly solicit any contribution within the meaning

of section 301(8) of the Federal Election Campaign Act of 1971

[2 U.S.C.A. § 431(8)] from any other such officer, employee, or

person. Any person who violates this section shall be fined

under this title or imprisoned not more than 3 years, or both.

(b) The prohibition in subsection (a) shall not apply to any

activity of an employee (as defined in section 7322(1) of title 5) or

any individual employed in or under the United States Postal

Service or the Postal Rate Commission, unless that activity is

prohibited by section 7323 or 7324 of such title.

§ 603. Making political contributions

 (a) It shall be unlawful for an officer or employee of the United

States or any department or agency thereof, or a person receiving

any salary or compensation for services from money derived from

the Treasury of the United States, to make any contribution within

the meaning of section 301(8) of the Federal Election Campaign Act

of 1971 to any other such officer, employee or person or to any

Senator or Representative in, or Delegate or Resident Commissioner

to, the Congress, if the person receiving such contribution is the

employer or employing authority of the person making the

contribution. Any person who violates this section shall be fined

under this title or imprisoned not more than three years, or both.

 (b) For purposes of this section, a contribution to an authorized

committee as defined in section 302(e) (1) of the Federal Election

Campaign Act of 1971 shall be considered a contribution to the

individual who has authorized such committee.

 (c) The prohibition in subsection (a) shall not apply to any

activity of an employee (as defined in section 7322(1) of title 5) or

any individual employed in or under the United States Postal
305

Service or the Postal Rate Commission, unless that activity is

prohibited by section 7323 or 7324 of such title.

§ 604. Solicitation from persons on relief

 Whoever solicits or receives or is in any manner concerned in

soliciting or receiving any assessment, subscription, or contribution

for any political purpose from any person known by him to be

entitled to, or receiving compensation, employment, or other benefit

provided for or made possible by any Act of Congress appropriating

funds for work relief or relief purposes, shall be fined under this title

or imprisoned not more than one year, or both.

§ 605. Disclosure of names of persons on relief

 Whoever, for political purposes, furnishes or discloses any list or

names of persons receiving compensation, employment or benefits

provided for or made possible by any Act of Congress

appropriating, or authorizing the appropriation of funds for work

relief or relief purposes, to a political candidate, committee,

campaign manager, or to any person for delivery to a political

candidate, committee, or campaign manager; and

 Whoever receives any such list or names for political purposes– 

 Shall be fined under this title or imprisoned not more than one

year, or both.

§ 606. Intimidation to secure political contributions

Whoever, being one of the officers or employees of the United

States mentioned in section 602 of this title, discharges, or

promotes, or degrades, or in any manner changes the official rank or

compensation of any other officer or employee, or promises or 

threatens so to do, for giving or withholding or neglecting to make

any contribution of money or other valuable thing for any political

purpose, shall be fined under this title or imprisoned not more than

three years, or both.
306

§ 607. Place of solicitation

(a) Prohibition.– 

 (1) In general.–It shall be unlawful for any person to solicit

 or receive a donation of money or other thing of value in

 connection with a Federal, State, or local election from a

 person who is located in a room or building occupied in the

 discharge of official duties by an officer or employee of the

 United States. It shall be unlawful for an individual who is an

 officer or employee of the Federal Government, including the

 President, Vice President, and Members of Congress, to solicit

 or receive a donation of money or other thing of value in

 connection with a Federal, State, or local election, while in any

 room or building occupied in the discharge of official duties by

 an officer or employee of the United States, from any person.

 (2) Penalty.–A person who violates this section shall be

 fined not more than $5,000, imprisoned not more than 3 years,

 or both.

 (b) The prohibition in subsection (a) shall not apply to the

receipt of contributions by persons on the staff of a Senator or

Representative in, or Delegate or Resident Commissioner to, the

Congress or Executive Office of the President, provided, that such

contributions have not been solicited in any manner which directs

the contributor to mail or deliver a contribution to any room,

building, or other facility referred to in subsection (a), and provided

that such contributions are transferred within seven days of receipt

to a political committee within the meaning of section 302(e) of the

Federal Election Campaign Act of 1971.

§ 608. Absent uniformed services voters and overseas voters

 (a) Whoever knowingly deprives or attempts to deprive any

person of a right under the Uniformed and Overseas Citizens

Absentee Voting Act shall be fined in accordance with this title or

imprisoned not more than five years, or both.
307

 (b) Whoever knowingly gives false information for the purpose

of establishing the eligibility of any person to register or vote under

the Uniformed and Overseas Citizens Absentee Voting Act, or pays

or offers to pay, or accepts payment for registering or voting under

such Act shall be fined in accordance with this title or imprisoned

not more than five years, or both.

§ 609. Use of military authority to influence vote of member 

 of Armed Forces

 Whoever, being a commissioned, noncommissioned, warrant, or

petty officer of an Armed Force, uses military authority to influence

the vote of a member of the Armed Forces or to require a member of

the Armed Forces to march to a polling place, or attempts to do so,

shall be fined in accordance with this title or imprisoned not more

than five years, or both. Nothing in this section shall prohibit free

discussion of political issues or candidates for public office.

§ 610. Coercion of political activity

 It shall be unlawful for any person to intimidate, threaten,

command, or coerce, or attempt to intimidate, threaten, command,

or coerce, any employee of the Federal Government as defined in

section 7322(1) of title 5, United States Code, to engage in, or not to

engage in, any political activity, including, but not limited to, voting

or refusing to vote for any candidate or measure in any election,

making or refusing to make any political contribution, or working or

refusing to work on behalf of any candidate. Any person who

violates this section shall be fined under this title or imprisoned not

more than three years, or both.

§ 611. Voting by aliens

(a) It shall be unlawful for any alien to vote in any election held

solely or in part for the purpose of electing a candidate for the office

of President, Vice President, Presidential elector, Member of the
308

Senate, Member of the House of Representatives, Delegate from the

District of Columbia, or Resident Commissioner, unless– 

 (1) the election is held partly for some other purpose;

 (2) aliens are authorized to vote for such other purpose

 under a State constitution or statute or a local ordinance; and

 (3) voting for such other purpose is conducted independently

 of voting for a candidate for such Federal offices, in such a

 manner that an alien has the opportunity to vote for such other

 purpose, but not an opportunity to vote for a candidate for any

 one or more of such Federal offices.

(b) Any person who violates this section shall be fined under this

title, imprisoned not more than one year, or both.

 (c) Subsection (a) does not apply to an alien if– 

 (1) each natural parent of the alien (or, in the case of an

 adopted alien, each adoptive parent of the alien) is or was a

 citizen (whether by birth or naturalization);

 (2) the alien permanently resided in the United States prior to

 attaining the age of 16; and

 (3) the alien reasonably believed at the time of voting in

 violation of such subsection that he or she was a citizen of the

 United States.

§ 911. Citizen of the United States

 Whoever falsely and willfully represents himself to be a citizen of

the United States shall be fined under this title or imprisoned not

more than three years, or both.

§ 1001. Statements or entries generally

 (a) Except as otherwise provided in this section, whoever, in any

matter within the jurisdiction of the executive, legislative, or

judicial branch of the Government of the United States, knowingly

and willfully– 

 (1) falsifies, conceals, or covers up by any trick, scheme, or
309

 device a material fact;

 (2) makes any materially false, fictitious, or fraudulent

 statement or representation; or

 (3) makes or uses any false writing or document knowing

 the same to contain any materially false, fictitious, or fraudulent

statement or entry; shall be fined under this title, imprisoned not

 more than 5 years or, if the offense involves international or

 domestic terrorism (as defined in section 2331), imprisoned not

 more than 8 years, or both.

(b) Subsection (a) does not apply to a party to a judicial

proceeding, or that party’s counsel, for statements, representations,

writings or documents submitted by such party or counsel to a judge

or magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction of the

legislative branch, subsection (a) shall apply only to– 

 (1) administrative matters, including a claim for payment, a

 matter related to the procurement of property or services,

 personnel or employment practices, or support services, or a

 document required by law, rule, or regulation to be submitted to

 the Congress or any office or officer within the legislative

 branch; or

 (2) any investigation or review, conducted pursuant to the

 authority of any committee, subcommittee, commission or

 office of the Congress, consistent with applicable rules of the

 House or Senate.

§ 1015. Naturalization, citizenship or alien registry

* * * * * 

(f) Whoever knowingly makes any false statement or claim that

he is a citizen of the United States in order to register to vote or to

vote in any Federal, State, or local election (including an initiative,

recall, or referendum)– 

 Shall be fined under this title or imprisoned not more than

five years, or both. Subsection (f) does not apply to an alien if
310

each natural parent of the alien (or, in the case of an adopted

alien, each adoptive parent of the alien) is or was a citizen

(whether by birth or naturalization), the alien permanently

 resided in the United States prior to attaining the age of 16, and

the alien reasonably believed at the time of making the false

statement or claim that he or she was a citizen of the United

States.

§ 1341. Frauds and swindles

 Whoever, having devised or intending to devise any scheme or

artifice to defraud, or for obtaining money or property by means of

false or fraudulent pretenses, representations, or promises, or to sell,

dispose of, loan, exchange, alter, give away, distribute, supply, or

furnish or procure for unlawful use any counterfeit or spurious coin,

obligation, security, or other article, or anything represented to be or

intimated or held out to be such counterfeit or spurious article, for

the purpose of executing such scheme or artifice or attempting so to

do, places in any post office or authorized depository for mail

matter, any matter or thing whatever to be sent or delivered by the

Postal Service, or deposits or causes to be deposited any matter or

thing whatever to be sent or delivered by any private or commercial

interstate carrier, or takes or receives therefrom, any such matter or

thing, or knowingly causes to be delivered by mail or such carrier

according to the direction thereon, or at the place at which it is

directed to be delivered by the person to whom it is addressed, any

such matter or thing, shall be fined under this title or imprisoned not

more than 20 years, or both. If the violation affects a financial

institution, such person shall be fined not more than $1,000,000 or

imprisoned not more than 30 years, or both.

§ 1343. Fraud by wire, radio, or television

 Whoever, having devised or intending to devise any scheme or

artifice to defraud, or for obtaining money or property by means of

false or fraudulent pretenses, representations, or promises, transmits
311

or causes to be transmitted by means of wire, radio, or television

communication in interstate or foreign commerce, any writings,

signs, signals, pictures, or sounds for the purpose of executing such

scheme or artifice, shall be fined under this title or imprisoned not

more than 20 years, or both. If the violation affects a financial

institution, such person shall be fined not more than $1,000,000 or

imprisoned not more than 30 years, or both.

§ 1346. Definition of "scheme or artifice to defraud"

 For the purposes of this chapter, the term "scheme or artifice to

defraud" includes a scheme or artifice to deprive another of the

intangible right of honest services.

§ 1952. Interstate and foreign travel or transportation in aid

 of racketeering enterprises

 (a) Whoever travels in interstate or foreign commerce or uses the

mail or any facility in interstate or foreign commerce, with intent

to– 

 (1) distribute the proceeds of any unlawful activity; or

 (2) commit any crime of violence to further any unlawful

 activity; or

 (3) otherwise promote, manage, establish, carry on, or

 facilitate the promotion, management, establishment, or

 carrying on, of any unlawful activity, and thereafter performs

 or attempts to perform– 

 (A) an act described in paragraph (1) or (3) shall be

 fined under this title, imprisoned not more than 5 years, or

 both; or

 (B) an act described in paragraph (2) shall be fined

 under this title, imprisoned for not more than 20 years, or

 both, and if death results shall be imprisoned for any term

 of years or for life.

 (b) As used in this section (i) "unlawful activity" means (1) any

business enterprise involving gambling, liquor on which the Federal
312

excise tax has not been paid, narcotics or controlled substances (as

defined in section 102(6) of the Controlled Substances Act), or

prostitution offenses in violation of the laws of the State in which

they are committed or of the United States, (2) extortion, bribery, or

arson in violation of the laws of the State in which committed or of

the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under

section 1956 or 1957 of this title and (ii) the term "State" includes a

State of the United States, the District of Columbia, and any

commonwealth, territory, or possession of the United States.

(c) Investigations of violations under this section involving

liquor shall be conducted under the supervision of the Attorney

General.

3. EXCERPTS FROM TITLE 26, UNITED STATES CODE

§ 9012. Criminal penalties

* * * * *

 (c) Unlawful use of payments.– 

 (1) It shall be unlawful for any person who receives any

 payment under section 9006, or to whom any portion of any

 payment received under such section is transferred, knowingly

 and willfully to use, or authorize the use of, such payment or

 such portion for any purpose other than– 

 (A) to defray the qualified campaign expenses with

 respect to which such payment was made, or

 (B) to repay loans the proceeds of which were used, or

 otherwise to restore funds (other than contributions to

 defray qualified campaign expenses which were received

 and expended) which were used, to defray such qualified

 campaign expenses.

 (2) It shall be unlawful for the national committee of a major

 party or minor party which receives any payment under section

 9008(b)(3) to use, or authorize the use of, such payment for any
313

 purpose other than a purpose authorized by section 9008(c).

 (3) Any person who violates paragraph (1) shall be fined not

 more than $10,000, or imprisoned not more than five years,

 or both.

(d) False statements, etc.– 

 (1) It shall be unlawful for any person knowingly and

willfully– 

 (A) to furnish any false, fictitious, or fraudulent

 evidence, books, or information to the Commission under

 this subtitle, or to include in any evidence, books, or

 information so furnished any misrepresentation of a

 material fact, or to falsify or conceal any evidence,

 books, or information relevant to a certification by the

 Commission or an examination and audit by the

 Commission under this chapter; or

 (B) to fail to furnish to the Commission any records,

 books, or information requested by it for purposes of this

 chapter.

 (2) Any person who violates paragraph (1) shall be fined not

 more than $10,000, or imprisoned not more than five years, or

 both.

§ 9042. Criminal penalties

* * * * *

 (b) Unlawful use of payments.– 

 (1) It is unlawful for any person who receives any payment

 under section 9037, or to whom any portion of any such

 payment is transferred, knowingly and willfully to use, or

 authorize the use of, such payment or such portion for any

 purpose other than--

 (A) to defray qualified campaign expenses, or

 (B) to repay loans the proceeds of which were used, or

 otherwise to restore funds (other than contributions to
314

 defray qualified campaign expenses which were received

 and expended) which were used, to defray qualified

 campaign expenses.

 (2) Any person who violates the provisions of paragraph (1)

 shall be fined not more than $10,000, or imprisoned not more

 than 5 years, or both.

* * * * *

(b) Unlawful use of payments.– 

 It is unlawful for any person who receives any payment under

section 9037, or to whom any portion of any such payment is

transferred, knowingly and willfully to use, or authorize the use of,

such payment or such portion for any purpose other than– 

 (A) to defray qualified campaign expenses, or

 (B) to repay loans the proceeds of which were used, or

 otherwise to restore funds (other than contributions to

 defrayqualified campaign expenses which were received and

 expended) which were used, to defray qualified campaign

 expenses.

 (c) False statements, etc.– 

 (1) It is unlawful for any person knowingly and willfully– 

 (A) to furnish any false, fictitious, or fraudulent evidence,

 books, or information to the Commission under this

 chapter, or to include in any evidence, books, or

 information so furnished any misrepresentation of a

 material fact, or to falsify or conceal any evidence, books,

 or information relevant to a certification by the Commission

 or an examination and audit by the Commission under this

 chapter, or

 (B) to fail to furnish to the Commission any records,

 books, or information requested by it for purposes of this

 chapter.
315

(2) Any person who violates the provisions of paragraph (1)

 shall be fined not more than $10,000, or imprisoned not more

 than 5 years, or both.

* * * * *

4. EXCERPTS FROM TITLE 42, UNITED STATES CODE

§ 1973i. Prohibited acts

* * * * *

(c) False information in registering or voting; penalties

 Whoever knowingly or willfully gives false information as to

his name, address or period of residence in the voting district for the

purpose of establishing his eligibility to register or vote, or

conspires with another individual for the purpose of encouraging his

false registration to vote or illegal voting, or pays or offers to pay or

accepts payment either for registration to vote or for voting shall be

fined not more than $10,000 or imprisoned not more than five years,

or both: Provided, however, That this provision shall be applicable

only to general, special, or primary elections held solely or in part

for the purpose of selecting or electing any candidate for the office

of President, Vice President, presidential elector, Member of the

United States Senate, Member of the United States House of

Representatives, Delegate from the District of Columbia, Guam, or

the Virgin Islands, or Resident Commissioner of the

Commonwealth of Puerto Rico.

* * * * *

(e) Voting more than once

 (1) Whoever votes more than once in an election referred to

 in paragraph (2) shall be fined not more than $10,000 or

 imprisoned not more than five years, or both.

 (2) The prohibition of this subsection applies with respect to

 any general, special, or primary election held solely or in part

 for the purpose of selecting or electing any candidate for the

 office of President, Vice President, presidential elector,
316

 Member of the United States Senate, Member of the United

 States House of Representatives, Delegate from the District of

 Columbia, Guam, or the Virgin Islands, or Resident

 Commissioner of the Commonwealth of Puerto Rico.

 (3) As used in this subsection, the term "votes more than

 once" does not include the casting of an additional ballot if all

 prior ballots of that voter were invalidated, nor does it include

 the voting in two jurisdictions under section 1973aa-1 of this

 title, to the extent two ballots are not cast for an election to the

 same candidacy or office.

§ 1973gg-10. Criminal penalties

 A person, including an election official, who in any election for

Federal office– 

 (1) knowingly and willfully intimidates, threatens, or coerces, or

attempts to intimidate, threaten, or coerce, any person for– 

 (A) registering to vote, or voting, or attempting to register or

 vote;

 (B) urging or aiding any person to register to vote, to vote, or

 to attempt to register or vote; or

 (C) exercising any right under this subchapter; or

 (2) knowingly and willfully deprives, defrauds, or attempts to

deprive or defraud the residents of a State of a fair and impartially

conducted election process, by– 

 (A) the procurement or submission of voter registration

 applications that are known by the person to be materially false,

 fictitious, or fraudulent under the laws of the State in which the

 election is held; or

 (B) the procurement, casting, or tabulation of ballots that are

 known by the person to be materially false, fictitious, or

 fraudulent under the laws of the State in which the election is

 held, shall be fined in accordance with Title 18 (which fines

 shall be paid into the general fund of the Treasury, 
317

 miscellaneous receipts (pursuant to section 3302 of Title 31),

 notwithstanding any other law), or imprisoned not more than 5

 years, or both.
318
319

APPENDIX D

TABLE OF CASES

AFL-CIO v. Federal Election Commission, 628 F.2d 97 

(D.C. Cir. 1980). ... ... ... ... ... ... ... ... ... 135, 151, 179, 188

Anderson v. United States, 417 U.S. 211 (1974). ... ... ... ... . . 1, 2, 39

Athens Lumber Co. v. Federal Election Commission, 

718 F.2d 363 (11th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . 160, 161

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990). ... ... ... ... ... ... ... ... ... . 142, 160, 161

Badders v. United States, 240 U.S. 391 (1916). ... ... ... ... ... ... . 73

Biller v. Merit Systems Protection Board, 

863 F.2d 1079 (2d Cir. 1988). ... ... ... ... ... ... ... ... ... . . 123

Blaylock v. Merit Systems Protection Board, 

851 F.2d 1348 (11th Cir. 1988). ... ... ... ... ... ... ... ... ... 123

Blitz v. United States, 153 U.S. 308 (1894). ... ... ... ... ... ... ... . 39

Blockburger v. United States, 284 U.S. 299 (1932). . . . . . . . . . . . . . . . 47

Branti v. Finkel, 445 U.S. 507 (1980). ... ... ... ... ... ... ... 108, 117

Brehm v. United States, 196 F.2d 769 

(D.C. Cir. 1952). ... ... ... ... ... ... ... ... ... ... ... ... ... 110

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . 138, 142, 144, 155, 158,

189, 244, 246, 247, 248, 249, 250, 252

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975). . . . . . . . . . . . . 243, 244

Burroughs v. United States, 290 U.S. 534 (1934). . . . . . . . . . . . . 134, 242

Civil Service Commission v. Letter Carriers, 

413 U.S. 548 (1973). ... ... ... ... ... ... ... ... ... ... ... ... 121

Connick v. Myers, 461 U.S. 138 (1983).... ... ... ... ... ... ... ... 117

Cort v. Ash, 422 U.S. 66 (1975).... ... ... ... ... ... ... ... ... ... 159

Crolich v. United States, 196 F.2d 879 

(5th Cir. 1952).... ... ... ... ... ... ... ... ... ... ... ... ... ... 38

Dennis v. United States, 384 U.S. 855 (1966). ... ... ... ... ... ... . 187

Duncan v. Poythress, 657 F.2d 691 

(5th Cir. 1981).... ... ... ... ... ... ... ... ... ... ... ... ... ... 39

Elrod v. Burns, 427 U.S. 347 (1976). . . . . . . . . . . . . . . . . . . 108, 109, 117

Evans v. United States, 504 U.S. 255 (1992).... ... ... ... ... ... . . 133
320

Ex parte Curtis, 106 U.S. 371 (1882). ... ... ... ... ... ... ... 109, 110

Ex parte Siebold, 100 U.S. 371 (1880). ... ... ... ... ... ... ... . 21, 39

Ex parte Yarborough, 110 U.S. 651 (1884).. . . . . . . . . . . . . . . . . . . 21, 37

Federal Election Commission v. Democratic Senatorial

Campaign Committee, 454 U.S. 27 (1981).... ... ... ... ... ... . 198

Federal Election Commission v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238 (1986). . . . . . . . . . . . . . . 138, 161

Federal Election Commission v. National Right

To Work Committee, 459 U.S. 197 (1982). ... ... ... ... ... ... . 244

Federal Election Commission v. Wisconsin Right to Life, Inc.,

551 U.S. ___, 127 S.Ct. 2652 (2007). . . . . . . . . . . . . . . . . . . . 148, 161

Fields v. United States, 228 F.2d 544 (4th Cir. 1955).. . . . . . . . . . . . . . 38

First National Bank of Boston v. Bellotti, 

435 U.S. 765 (1978). ... ... ... ... ... ... ... ... ... . 142, 159, 161

Fotie v. United States, 137 F.2d 831 

(8th Cir. 1943).... ... ... ... ... ... ... ... ... ... ... ... ... ... 68

Guinn v. United States, 238 U.S. 347 (1915). ... ... ... ... ... ... . . 22

Haas v. Henkel, 216 U.S. 462 (1910). ... ... ... ... ... ... ... ... . 187

Hammerschmidt v. United States, 

265 U.S. 182 (1924). ... ... ... ... ... ... ... ... ... ... ... ... 187

In re Coy, 127 U.S. 731 (1888). ... ... ... ... ... ... ... . 21, 39, 44, 61

Ingber v. Enzor, 664 F. Supp. 814 (S.D.N.Y. 1987). . . . . . . . . . . . . 29, 74

Ingber v. Enzor, 841 F.2d 450 (2d Cir. 1988). . . . . . . . . . . . . . . . . . . . . 77

International Association of Machinists v. Federal

Election Commission, 678 F.2d 1092 

(D.C. Cir. 1982). ... ... ... ... ... ... ... ... ... ... ... ... ... 161

Kennedy v. Lynd, 306 F.2d 222 (5th Cir. 1962).. . . . . . . . . . . . . . . . . . . 82

Langer v. United States, 76 F.2d 817 

(8th Cir. 1935).... ... ... ... ... ... ... ... ... ... ... ... ... . . 108

McConnell v. Federal Election Commission, 

540 U.S. 93 (2003). . . . . . . . . . . . . . 145, 146, 158, 172, 173, 199, 243

McCormick v. United States, 500 U.S. 257 (1991). . . . . . . . . . . . . . . . 133

McNally v. United States, 483 U.S. 350 

(1987). ... ... ... ... 6, 7, 23, 29, 35, 73, 74, 75, 76, 77, 79, 191, 192

National Right to Work Committee v. Federal Election Commission, 

716 F.2d 1401 (D.C. Cir. 1983). . . . . . . . 135, 151, 179, 188, 245, 246

Newberry v. United States, 256 U.S. 232 (1918).. . . . . . . . . . . . . . . . . . 22
321

Nixon v. Shrink Missouri PAC, 528 U.S. 377 (2000). . . . . . . . . . . . . . 158

Oregon v. Mitchell, 400 U.S. 112 (1970). ... ... ... ... ... ... ... . . 39

Perrin v. United States, 444 U.S. 37 (1979). ... ... ... ... ... ... ... 70

Pipefitters Local 562 v. United States, 

407 U.S. 385 (1972). ... ... ... ... ... ... ... ... ... . 142, 160, 246

Ratzlaf v. United States, 510 U.S. 135 (1994). ... ... ... ... ... ... . 135

Reynolds v. Sims, 377 U.S. 533 (1964). ... ... ... ... ... ... ... . 22, 39

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). . . . . . 108, 117

Ryan v. United States, 99 F.2d 864 (8th Cir. 1938).. . . . . . . . . . . . . . . . 38

United Public Workers v. Mitchell, 

330 U.S. 75 (1947). ... ... ... ... ... ... ... ... ... ... ... ... . 121

United States v. Anderson, 481 F.2d 685 

(4th Cir. 1973).... ... ... ... ... ... ... ... ... ... ... ... ... 22, 40

United States v. Automobile Workers, 

352 U.S. 567 (1957). ... ... ... ... ... ... . . 142, 160, 243, 244, 245

United States v. Bagnariol, 665 F.2d 877 

(9th Cir. 1981).... ... ... ... ... ... ... ... ... ... ... ... ... ... 71

United States v. Barbieri, 614 F.2d 715 

(10th Cir. 1980).... ... ... ... ... ... ... ... ... ... ... ... ... . . 71

United States v. Barker, 514 F.2d 1077 

(7th Cir. 1975).... ... ... ... ... ... ... ... ... ... ... ... ... 24, 44

United States v. Barry, 888 F.2d 1092 

(6th Cir. 1989).... ... ... ... ... ... ... ... ... ... ... ... ... ... 71

United States v. Bathgate, 246 U.S. 220 (1918). . . . . . . . . . . . . . . . 22, 39

United States v. Blanton, 77 F. Supp. 812 

(E.D. Mo. 1948). ... ... ... ... ... ... ... ... ... ... ... ... ... . 47

United States v. Bloom, 149 F.3d 649 

(7th Cir. 1998).... ... ... ... ... ... ... ... ... ... ... ... ... ... 78

United States v. Boards, Cr. No. LR-92-183 

(E.D. Ark., Sept. 12, 1994). ... ... ... ... ... ... ... ... ... ... . 211

United States v. Boards, 10 F.3d 587 (8th Cir. 1993). . . . . .

 33, 44, 45, 53

United States v. Booker, 543 U.S. 220 (2005).... ... ... ... ... ... . 216

United States v. Bowman, 636 F.2d 1003 

(5th Cir. 1981).... ... ... ... ... ... ... ... ... 21, 24, 42, 43, 44, 47

United States v. Boyle, 482 F.2d 755 

(D.C. Cir. 1973). ... ... ... ... ... ... ... ... ... ... ... ... ... 161
322

United States v. Bracewell, Cr. No. 91-57-N 

(M.D. Ala., May 9, 1991). ... ... ... ... ... ... ... ... ... ... . 197

United States v. Bradberry, 517 F.2d 498 

(7th Cir. 1975). ... ... ... ... ... ... ... ... ... ... ... ... ... . . 38

United States v. Brumley, 116 F.3d 728 

(5th Cir. 1997). ... ... ... ... ... ... ... ... ... ... ... ... . 78, 192

United States v. Bryan, 58 F.3d 933 

(4th Cir. 1995). ... ... ... ... ... ... ... ... ... ... ... ... ... . 192

United States v. Buckley, 689 F.2d 893 

(9th Cir. 1982). ... ... ... ... ... ... ... ... ... ... ... ... . 73, 192

United States v. Burleson, 127 F. Supp. 400 

(E.D. Tenn. 1954). ... ... ... ... ... ... ... ... ... ... ... ... . 110

United States v. Campbell, 845 F.2d 782 

(8th Cir. 1988). ... ... ... ... ... ... ... ... ... ... ... ... ... . . 48

United States v. Canales, 744 F.2d 413 

(5th Cir. 1984). ... ... ... ... ... ... ... ... ... ... ... ... ... . . 48

United States v. Carmichael, 685 F.2d 903 

(4th Cir. 1982). ... ... ... ... ... ... ... ... ... . . 21, 42, 43, 44, 49

United States v. Chestnut, 533 F.2d 40

(2d Cir. 1976). ... ... ... ... ... ... ... ... ... ... ... ... ... . 200

United States v. Cianciulli, 482 F. Supp. 585

(E.D. Pa. 1979). ... ... ... ... ... ... ... . 24, 27, 42, 43, 44, 49, 84

United States v. Cicco, 10 F.3d 980 

(3d Cir. 1993). ... ... ... ... ... ... ... ... ... ... ... ... ... . 118

United States v. Cicco, 938 F.2d 441

(3d Cir. 1991). ... ... ... ... ... ... ... ... ... ... ... ... ... . 118

United States v. C.I.O., 335 U.S. 106 (1948).. . . . . . . . . . . . . . . . 142, 160

United States v. Clapps, 732 F.2d 1148 

(3d Cir. 1984). ... ... ... ... ... ... ... ... ... ... ... . 23, 73, 191

United States v. Classic, 313 U.S. 299 (1941).. . . . . . . . . . . 22, 37, 38, 41

United States v. Cole, 41 F.3d 303 

(7th Cir. 1994). . . . . . . . . . . . 33, 42, 43, 48, 51, 52, 53, 210, 212, 214

United States v. Cooper, 677 F. Supp. 778 

(D. Del. 1988). ... ... ... ... ... ... ... ... ... ... ... ... ... . . 75

United States v. Curran, 20 F.3d 560 

(3d Cir. 1994). ... ... ... ... ... ... . . 135, 145, 186, 188, 190, 200
323

United States v. Curry, 681 F.2d 406 

(5th Cir. 1982). ... ... ... ... ... ... ... ... ... ... ... ... . 73, 192

United States v. Czubinski, 106 F.3d 1069 

(1st Cir. 1997). ... ... ... ... ... ... ... ... ... ... ... ... ... . 192

United States v. D'Alessio, 822 F. Supp. 1134

(D.N.J. 1993).... ... ... ... ... ... ... ... ... ... ... ... ... ... 78

United States v. Daugherty, 952 F.2d 969 

(8th Cir. 1991). ... ... ... ... ... ... ... ... ... ... ... ... ... . . 48

United States v. Davis, 780 F.2d 838 

(10th Cir. 1985). ... ... ... ... ... ... ... ... ... ... ... ... ... . 72

United States v. DeFries, 43 F.3d 707 

(D.C. Cir. 1995).... ... ... ... ... ... ... ... ... ... ... ... ... . 78

United States v. Doherty, 867 F.2d 47 

(1st Cir. 1989). ... ... ... ... ... ... ... ... ... ... ... ... ... . . 75

United States v. Ferrara, 701 F. Supp. 39 

(E.D.N.Y. 1988). ... ... ... ... ... ... ... ... ... ... ... ... ... 75

United States v. Finance Committee to Re-Elect the 

President, 507 F.2d 1194 (D.C. Cir. 1974). . . . . . . 144, 145, 179, 197

United States v. Franklin, 188 F.2d 182 

(7th Cir. 1951). ... ... ... ... ... ... ... ... ... ... ... ... ... . . 68

United States v. Gabriel, 

125 F.3d 89 (2d Cir. 1997). ... ... ... ... ... ... ... ... ... ... 186

United States v. Garcia, 719 F.2d 99 

(5th Cir. 1983). ... ... ... ... ... ... ... ... ... ... . . 24, 43, 47, 48

United States v. George, No. CR86-00123, 1987

WL 48848 (W.D. Ky. 1987)..... ... ... ... ... ... ... ... ... . . 77

United States v. Girdner, 754 F.2d 877 

(10th Cir. 1985). ... ... ... ... ... ... ... ... ... ... ... ... ... . 73

United States v. Gradwell, 243 U.S. 476 (1917). ... ... ... ... ... ... 22

United States v. Granberry, 908 F.2d 278 

(8th Cir. 1990). ... ... ... ... ... ... ... ... ... ... ... ... ... . . 75

United States v. Grubb, 11 F.3d 426 (4th Cir. 1993).. . . . . . . . . . . 78, 192

United States v. Hankin, 607 F.2d 611 (3d Cir. 1979). . . . . . . . . 168, 200

United States v. Hansen, 772 F.2d 940 (D.C. Cir. 1985). . . . . . . . . . . 185

United States v. Haynes, 977 F.2d 583 

(6th Cir. 1992). ... ... ... ... ... ... ... ... ... 38, 40, 61, 211, 212

United States v. Hogue, 812 F.2d 1568 (11th Cir. 1987). . . . . . . . . . . . 51
324

United States v. Hopkins, 916 F.2d 207 

(5th Cir. 1990). ... ... ... ... ... . 145, 168, 186, 187, 188, 190, 204

United States v. Howard, 774 F.2d 838 

(7th Cir. 1985). ... ... ... ... ... ... ... ... ... ... . . 22, 23, 24, 40

United States v. Hsia, 176 F.3d 517 

(D.C. Cir. 1999).... ... ... ... ... ... ... ... ... 145, 168, 186, 204

United States v. Ingber, Cr. No. 86-1402

(2d Cir. Feb. 4, 1987) . . ... ... ... ... ... ... ... ... ... ... . 29, 74

United States v. International Union of Operating 

Engineers, 638 F.2d 1161 (9th Cir. 1979).. . . . . . . . . . . . . . . . . . . 177

United States v. Jabara, 644 F.2d 574 (6th Cir. 1981). . . . . . . . . . . . . . 71

United States v. Jackson, 433 F. Supp. 239 (W.D. N.Y. 1977).. . . . . . 177

United States v. Johns, 742 F. Supp. 196 (E.D. Pa. 1990). . . . . . . . . . . 75

United States v. Johns, 972 F.2d 1333 (3d Cir. 1991).. . . . . . . . . . . . . . 75

United States v. Kanchanalak, 192 F.3d 1037 

(D.C. Cir. 1999).... ... ... ... ... ... ... ... ... ... . 150, 164, 186

United States v. Karigiannis, 430 F.2d 148 (7th Cir. 1970). . . . . . . . . . 70

United States v. Karlsen, Cr. No. 89-353 

(D. Az., indictment filed Oct. 18, 1989). . . . . . . . . . . . . . . . . . . . . 197

United States v. Kelley, 395 F.2d 727 (2d Cir. 1968). . . . . . . . . . . . . . . 71

United States v. Knight, ___ F.3d ___, 2007 WL 1892861 

(11th Cir. July 3, 2007). ... ... ... ... ... ... ... ... ... ... ... . 69

United States v. Lewin, 467 F.2d 1132 (7th Cir. 1972). . . . . . . . . . . . . . 48

United States v. Malmay, 671 F.2d 869 

(5th Cir. 1982). ... ... ... ... ... ... ... ... . . 21, 24, 42, 43, 48, 49

United States v. Mason, 673 F.2d 737 

(4th Cir. 1982). ... ... ... ... ... ... ... ... ... ... . . 21, 24, 43, 47

United States v. McCranie, 169 F.3d 723 

(11th Cir. 1999). ... ... ... ... ... ... ... ... ... ... . 24, 42, 43, 48

United States v. McLean, 808 F.2d 1044 (4th Cir. 1987). . . . . . . . . . . . 39

United States v. Morado, 454 F.2d 167 (5th Cir. 1972). . . . . . . . . . . . . 38

United States v. Mosley, 238 U.S. 383 (1915).... ... ... ... ... ... . . 38

United States v. Nathan, 238 F.2d 401 (7th Cir. 1956). . . . . . . . . . . . . . 39

United States v. North Carolina Republican Party, 

No. 91-161-Civ-5F (E.D.N.C.). ... ... ... ... ... ... ... ... ... . 57

United States v. Odom, 736 F.2d 104 (4th Cir. 1984). . . . . . . . . 31, 50, 55

United States v. Odom, 858 F.2d 664 (11th Cir. 1988). . . . . . . . . . . . . . 48
325

United States v. Olinger, 759 F.2d 1293 

(7th Cir. 1985). ... ... ... ... ... ... ... ... . . 23, 24, 40, 43, 49, 50

United States v. Panarella, 277 F.3d 678 (3d Cir. 2002). . . . . . . . . . . . 78

United States v. Passodelis, 615 F.2d 975 (3d Cir. 1980).. . . . . . 168, 199

United States v. Peskin, 527 F.2d 71 (7th Cir. 1975). . . . . . . . . . . . . . . 71

United States v. Pintar, 630 F.2d 1270 (8th Cir. 1980).. . . . . . . . . . . . 108

United States v. Pipefitters Local 562, 434 F.2d 1116 

(8th Cir. 1970). ... ... ... ... ... ... ... ... ... ... ... ... ... . 160

United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974). . . . . . . . . . . . . . 70

United States v. Powell, 81 F. Supp. 288 (E.D. Mo. 1948). . . . . . . . . . . 38

United States v. Price, 383 U.S. 787 (1966). ... ... ... ... ... ... ... 41

United States v. Prude, 489 F.3d (7th Cir. 2007). ... ... ... ... ... . . 64

United States v. Ratcliff, 488 F.3d 639, (5th Cir. 2007). . . . . . . . . . 29, 77

United States v. Riccardelli, 794 F.2d 829 (2d Cir. 1986). . . . . . . . . . . 70

United States v. Saenz, 747 F.2d 930 (5th Cir. 1984). . . . . . . . . . . . . . . 43

United States v. Salisbury, Cr. No. 2-90-197 

(S.D. Ohio, Oct. 8, 1991, 6th Cir. 1993). . . . . . . . . . . . . . . . . 211, 212

United States v. Salisbury, 983 F.2d 1369 

(6th Cir. 1993). ... ... ... ... ... ... ... ... ... ... . . 33, 50, 51, 52

United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996). . . . . . . . . . . . . . 192

United States v. Sawyer, 329 F.3d 31 (1st Cir. 2001). . . . . . . . . . . . . . . 78

United States v. Saylor, 322 U.S. 385 (1944). ... ... ... ... ... ... . . 38

United States v. Sayre, 522 F. Supp. 973 (W.D. Mo. 1981). . . . . . . . . . 43

United States v. Schermerhorn, 713 F. Supp. 88 

(S.D.N.Y. 1989). ... ... ... ... ... ... ... ... ... ... ... . . 76, 194

United States v. Simms, 508 F. Supp. 1179 (W.D. La. 1979). . . . . . . . . 43

United States v. Slone, 411 F.3d 643 

(6th Cir. 2005). ... ... ... ... ... ... ... . . . 24, 42, 43, 48, 211, 214

United States v. Smith, 231 F.3d 800 

(11th Cir. 2000). ... ... ... ... ... ... . 45, 50, 52, 94, 209, 212, 213

United States v. Sparkman, Cr. No. 99-30 

(E.D. Ky. 7/12/00).... ... ... ... ... ... ... ... ... ... ... ... . 211

United States v. States, 488 F.2d 761 (8th Cir. 1973). . . . . . . . 23, 73, 191

United States v. Stollings, 501 F.2d 954 (4th Cir. 1974).. . . . . . . . . 23, 40

United States v. Taff, 400 F. Supp. 2d 1270 (D. Kan., 2005). . . . . . . . 196

United States v. Thayer, 209 U.S. 39 (1908). ... ... ... ... ... ... . . 114

United States v. Thomas, 686 F. Supp. 1078 (M.D. Pa. 1988). . . . . . . . 75
326

United States v. Thomas, Cr. No. 05-0423 (D. D.C., 

information filed November 30, 2005). . . . . . . . . . . . . . . . . . . . . . 197

United States v. Tobin, No. 04-216-01 (SM), 

2005 WL 3199672 (D.N.H. Nov. 30, 2005). . . . . . . . . . . . . 38, 62, 63

United States v. Tonry, 433 F. Supp. 620 

(E.D. La. 1977). ... ... ... ... ... ... ... ... ... ... ... ... ... 177

United States v. Townsley, 843 F.2d 1070 

(8th Cir. 1988). ... ... ... ... ... ... ... ... ... ... ... . . 38, 40, 61

United States v. Turner, 

459 F.3d 775 (6th Cir. 2006).. . . . . . . . . . . . . . 7, 29, 77, 78, 193, 194

United States v. Wadena, 152 F.3d 831 (8th Cir. 1998). . . . . . . . . . 22, 40

United States v. Walker, 97 F.3d 253 (8th Cir. 1996). . . . . . . 76, 192, 194

United States v. Walters, 711 F. Supp. 1435

(N.D. Ill. 1989). ... ... ... ... ... ... ... ... ... ... ... ... ... . 75

United States v. Waymer, 55 F.3d 564 (11th Cir. 1995). . . . . . . . . . . . 192

United States v. Webb, 689 F. Supp. 703 (W.D. Ky. 1988).. . . . . . . 29, 77

United States v. Wechsler, 392 F.2d 344 (4th Cir. 1968). . . . . . . . . . . . 71

United States v. Weston, 417 F.2d 181 (4th Cir. 1969). . . . . . . . . . . . . . 38

United States v. Woodward, 469 U.S. 105 (1985).. . . . . . . . . . . . . . . . 190

United States v. Wurzbach, 280 U.S. 396 (1930). . . . . . . . . . . . . . . . . 109

Walker v. United States, 93 F.2d 383 (8th Cir. 1937). . . . . . . . . . . . . . . 38

Whalen v. United States, 445 U.S. 684 (1980). ... ... ... ... ... ... . 47

Wilkins v. United States, 376 F.2d 552 (5th Cir. 1967). . . . . . . . . . . 38, 59

Williams v. United States, 341 U.S. 97 (1951). ... ... ... ... ... ... . 37

Williams v. United States, 179 F.2d 644 (5th Cir. 1950).. . . . . . . . . 38, 41
327