US Federal Prosecution of Election Offenses 2017

Federal
Prosecution of
Election Offenses
Eighth Edition
December 2017
Edited by:
Richard C. Pilger, Director

Election Crimes Branch
Public Integrity Section
TABLE OF CONTENTS
PREFACE .............................................................................. xii
CHAPTER ONE: OVERVIEW .............................................. 1
INTRODUCTION .................................................... 1
TYPES OF ELECTION CRIMES ........................... 2
1. Election Fraud .................................................... 2
2. Patronage Crimes ............................................... 3
3. Campaign Financing Crimes .............................. 4
4. Civil Rights Crimes ............................................ 5
FEDERAL JURISDICTION .................................... 5
ADVANTAGES OF FEDERAL
PROSECUTION ...................................................... 7
FEDERAL ROLE: PROSECUTION, NOT
INTERVENTION .................................................... 8
EVALUATING AN ELECTION FRAUD
ALLEGATION ...................................................... 10
INVESTIGATIVE CONSIDERATIONS IN
ELECTION FRAUD CASES ................................ 11
EVALUATING A CAMPAIGN FINANCING
ALLEGATION ...................................................... 12
CAMPAIGN FINANCING CASES ...................... 14
CONSULTATION REQUIREMENTS AND
RECOMMENDATIONS ....................................... 15
Consultation Requirements for Election Fraud
and Patronage Crimes ...................................... 16
2. Consultation Requirements for Campaign
Financing Crimes ............................................ 17
ii
CHAPTER TWO: CORRUPTION OF THE ELECTION
PROCESS ............................................................................... 19
HISTORICAL BACKGROUND ........................... 19

WHAT IS ELECTION FRAUD?........................... 22
1. In General ......................................................... 22
2. Conduct that Constitutes Federal
Election Fraud .................................................. 23
3. Conduct that Does Not Constitute
Federal Election Fraud ..................................... 26
4. Conditions Conducive to Election Fraud ......... 27
5. Voter Participation Versus Non-voter
Participation Cases ........................................... 27
(a) Election frauds not involving the
participation of voters ............................... 28
(b) Election frauds involving the participation
of voters .................................................... 29
JURISDICTIONAL SUMMARY .......................... 30
1. Statutes Applicable to Non-Federal
Elections ........................................................... 31
2. Statutes Applicable to Federal
Elections Only .................................................. 32
STATUTES ............................................................ 33
1. Conspiracy Against Rights: 18 U.S.C. § 241 ... 33
2. Deprivation of Rights under Color of Law:
18 U.S.C. § 242 ................................................ 37
3. False Information in, and
Payments for, Registering and Voting:
52 U.S.C. § 10307(c) ........................................ 38
(a) The basis for federal jurisdiction .............. 39
(b) False information to an election official ... 40
(c) Vote-Buying ............................................. 43
(d) Conspiracy to cause illegal voting ............ 45
4. Voting More than Once:
52 U.S.C. § 10307(e) ........................................ 46
iii
5. Voter Intimidation ............................................ 49
(a) Intimidation in voting and registering to
vote: 52 U.S.C. § 20511(1) ...................... 51
(b) Intimidation of voters: 18 U.S.C. § 594 ... 52
(c) Coercion of political activity: 18 U.S.C.
§ 610 ......................................................... 53
(d) Conspiracy against rights and deprivation of
constitutional rights: 18 U.S.C. §§ 241 and
242 ............................................................ 53
(e) Federally protected activities: 18 U.S.C.
§ 245(b)(1)(A) .......................................... 55
6. Voter Suppression:
18 U.S.C. §§ 241 and 242 ................................ 56
7. Fraudulent Registration or Voting: 52 U.S.C.
§ 20511(2) ........................................................ 58
(a) Fraudulent registration: § 20511(2)(A) ... 59
(b) Fraudulent voting: § 20511(2)(B) ........... 60
8. Voting by Non-citizens .................................... 60
(a) Fraudulent registration and voting:
52 U.S.C. § 20511(2) ............................... 61
(b) False claims to register or vote: 18 U.S.C.
§ 1015(f) ................................................... 62
(c) False claims of citizenship: 18 U.S.C.
§ 911 ......................................................... 63
9. Voting by Aliens: 18 U.S.C. § 611 ................. 63
10. Travel Act: 18 U.S.C. § 1952 ......................... 64
11. Mail and Wire Fraud:
18 U.S.C. §§ 1341, 1343 .................................. 67
(a) “Salary Theory” of mail and wire fraud ... 67
(b) “Cost-of-election” theory:
18 U.S.C. § 1341 ...................................... 72
12. Troops at Polls: 18 U.S.C. § 592 .................... 73
13. Campaign Dirty Tricks .................................... 73
(a) Election communications and solicitations:
52 U.S.C. § 30120 .................................... 74
iv
(b) Fraudulent misrepresentation:
52 U.S.C. § 30124 .................................... 74
14. Retention of Federal Election Records:
52 U.S.C. § 20701 ............................................ 75
(a) Legislative purpose and background ........ 76
(b) The basic requirements of
Section 20701 ........................................... 77
(c) Section 20701 requires document
preservation, not document generation .... 78
(d) Originals must be retained ........................ 78
(e) Election officials must supervise storage .. 79
15. Section 20701 versus National Voter
Registration Act ............................................... 79
POLICY AND PROCEDURAL
CONSIDERATIONS ............................................. 80
1. Consultation Requirements .............................. 80
2. Urgent Reports and Press Releases .................. 83
3. Federal Seizure of State Election Materials ..... 83
4. Non-interference with Elections ...................... 84
5. Limitations on Federal Poll Watching ............. 85
6. Selective Prosecution Issues ............................ 86
SUGGESTIONS FOR SUCCESSFUL ELECTION
FRAUD INVESTIGATIONS ................................ 86
1. Getting Started ................................................. 87
(a) Publicize your intent to prosecute election
fraud .......................................................... 87
(b) Be aware of the importance of voting
documentation .......................................... 88
(c) Consider the advantages of federal
prosecution ............................................... 90
(d) Focus on areas vulnerable to
election fraud ............................................ 91
(e) Develop your investigative
strategy early ............................................. 91
2. The Investigation ............................................. 92
v
(a) Preliminary investigation .......................... 92
(b) Grand jury and FBI full-field
investigations ............................................ 93
3. Investigating Two Types of Election Fraud ..... 93
(a) Absentee ballot frauds .............................. 93
(b) Ballot-box stuffing cases .......................... 95
4. A Few Cautions ............................................... 96
5. Conclusion ....................................................... 98
CHAPTER THREE: PATRONAGE CRIMES .................. 99
HISTORICAL BACKGROUND ........................... 99

STATUTES .......................................................... 101
1. Limitations Based on Federal Employment or
Workspace ...................................................... 101
(a) Solicitation of political contributions:
18 U.S.C. § 602 ...................................... 101
(b) Making political contributions: 18 U.S.C.
§ 603 ....................................................... 103
(c) Intimidation to secure political
contributions: 18 U.S.C. § 606 .............. 103
(d) Coercion of political activity: 18 U.S.C.
§ 610 ....................................................... 104
2. Place of solicitation: 18 U.S.C. § 607 ........... 105
3. Limitations Based on Federal Programs and
Benefits .......................................................... 107
(a) Promise or deprivation of federal
employment or other benefit for political
activity: 18 U.S.C. §§ 600 and 601 ........ 107
(b) Promise of appointment by candidate:
18 U.S.C. § 599 ...................................... 110
(c) Interference in election by employees of
federal, state, or territorial governments:
18 U.S.C. § 595 ...................................... 111
vi
(d) Coercion by means of relief appropriations:
18 U.S.C. § 598 ...................................... 111
(e) Solicitation from persons on relief:
18 U.S.C. § 604 ...................................... 111
(f) Disclosure of names of persons on relief:
18 U.S.C. § 605 ...................................... 112
4. Permissible Political Activity under the Hatch
Act, as Amended:
5 U.S.C. §§ 7323 and 7324 ........................... 112
POLICY AND PROCEDURAL
CONSIDERATIONS ........................................... 115
CHAPTER FOUR: ELECTION DAY PROCEDURES .. 116
CHAPTER FIVE: CAMPAIGN FINANCE CRIMES ..... 122
INTRODUCTION ............................................... 122

STATUTORY SCOPE ........................................ 124
1. Types of Statutes ............................................ 124
2. Basic Statutory Definitions ........................... 125
3. Statutory Presumptions .................................. 128
STATUTES .......................................................... 129
1. Introduction .................................................... 129
2. Substantive Statutes ....................................... 129
(a) 52 U.S.C. § 30116: Limitations on
contributions and expenditures ............... 129
(b) 52 U.S.C. § 30118: Prohibition on
contributions and expenditures by national
banks, corporations, or labor
organizations ........................................... 133
(c) 52 U.S.C. § 30119: Prohibition on
contributions by government contractors 136
(d) 52 U.S.C. § 30120: Attribution of sponsors
of political communications and
solicitations ............................................. 137
vii
(e) 52 U.S.C. § 30121: Prohibition on
contributions, donations, and expenditures
by foreign nationals ................................ 138
(f) 52 U.S.C. § 30122: Prohibition on
contributions through conduits ............... 141
(g) 52 U.S.C. § 30123: Limitation on
contribution of currency.......................... 143
(h) 52 U.S.C. § 30124: Fraudulent
misrepresentation of campaign
authority .................................................. 143
(i) 52 U.S.C. § 30125: Soft money of political
parties ...................................................... 144
Section 30125(a) ............................... 144
Section 30125(b) ............................... 145
Section 30125(d) ............................... 147
Section 30125(e) ............................... 147
3. 52 U.S.C. § 30114: Prohibition on Conversion
of Campaign Funds ........................................ 148
4. 52 U.S.C. §§ 30102, 30103, and 30104:
Organization, Recordkeeping, and Reporting
Requirements ................................................. 149
ENFORCEMENT ............................................... 150
1. Three Types of Enforcement ......................... 150
2. FECA’s Criminal Penalty Provision .............. 152
(a) Intent ....................................................... 152
(b) Aggregate value ...................................... 155
3. Penalties ......................................................... 156
4. Statute of Limitations for Campaign Financing
Offenses ......................................................... 157
5. Venue for FECA Offenses ............................. 157
6. Other Applicable Federal Criminal Statutes .. 158
(a) Willfully causing submission of false
information to the Federal Election
Commission:
18 U.S.C. §§ 1001 and 2 ......................... 159
viii
(b) Conspiracy to defraud the United States:
18 U.S.C. § 371 ....................................... 162
(c) Public financing crimes relating to
presidential campaigns ........................... 163
(d) Mail and wire fraud:
18 U.S.C. §§ 1341 and 1343 ................... 165
(e) False records in the administration of a
federal matter: 18 U.S.C. § 1519 ............ 167
7. Policy and Procedural Considerations ........... 167
(a) Consultation requirements and
recommendations .................................... 167
(b) Investigative jurisdiction ........................ 168
(c) Non-waiver of the Federal Election
Commission’s civil enforcement
authority .................................................. 169
(d) Dealings with the Federal Election
Commission ............................................ 169
(e) Federal Election Commission officials as
prosecution witnesses ............................. 170
CHAPTER SIX: SENTENCING OF ELECTION

CRIMES ................................................................................ 172
OVERVIEW ......................................................... 172

B. CONVICTIONS INVOLVING CORRUPTION OF
THE ELECTORAL PROCESS ........................... 173
1. § 2H2.1: Obstructing an Election or
Registration ................................................... 174
2. § 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............ 180
ix
3. Examples of Application of FECA Sentencing
Guidelines ...................................................... 185
(a) Example 1: The conduit ........................ 185
(b) Example 2: A typical FECA crime:
laundered corporate contributions .......... 187
(c) Example 3: Corporate contributor to
multiple candidates through threats and
coercion ................................................... 188
(d) Example 4: Fundraiser possessing special
skill .......................................................... 190
(e) Example 5: Major political party donor
seeking a benefit from the government ... 191
(f) Example 6: Foreign agent who gives funds
from foreign government to non-federal
candidates to obtain a specific benefit from
the government ....................................... 192
C. CONVICTIONS OF CAMPAIGN
FINANCING VIOLATIONS ADDRESSED
UNDER ALTERNATIVE THEORIES OF
PROSECUTION .................................................. 194
1. Conspiracy to Disrupt and Impede the Federal
Election Commission ..................................... 194
2. False Statements to the Federal Election
Commission and False Internal Records ......... 194
3. Embezzlement of Campaign Funds ................ 195
D. OBLIGATION TO REPORT FELONY
CONVICTIONS TO STATE ELECTION
OFFICIALS .......................................................... 196
CHAPTER SEVEN: CONCLUSION – WHY

PROSECUTING ELECTION CRIMES IS SO
IMPORTANT ....................................................................... 197
APPENDIX A: EXCERPT FROM McCONNELL v.

FEDERAL ELECTION COMMISSION ............................. 202
x
APPENDIX B: STATUTES ............................................... 216
APPENDIX C: EDITORIAL RECLASSIFICATION

TABLE FOR TITLE 52 ...................................................... 274
APPENDIX D: TABLE OF CASES ................................... 275
xi
PREFACE
This eighth edition of Federal Prosecution of Election

Offenses builds on the original work of Craig C. Donsanto, Nancy
N. Simmons, and others, in all of the prior editions. This edition
updates their work with developments in the law of election
offenses since the last edition in 2007. Trial Attorneys Amanda
R. Vaughn and Simon J. Cataldo of the Public Integrity Section
have contributed substantially to this edition.
Among other things, this edition accounts for important

changes in the law regarding independent expenditures and honest
services fraud, reflecting the Supreme Court’s holdings in Citizens
United v. Fed. Election Comm’n, 558 U.S. 310 (2010), and
Skilling v. United States, 561 U.S. 358 (2010). On a practical
level, the statutory references and appendix have been updated to
account for the recodification of many election crimes into Title
52 of the United States Code. This edition also streamlines
discussion of the history of amendments to the Federal Election
Campaign Act given the passage of time since the most recent
actions by Congress.
This monograph provides only internal Department of

Justice guidance. It is not intended to, does not, and may not be
relied upon to create any rights, substantive or procedural,
enforceable at law by any party in any matter civil or criminal.
Nor are any limitations placed on otherwise lawful litigative
prerogatives of the Department of Justice.
Richard C. Pilger
Director, Election Crimes Branch
Public Integrity Section, Criminal Division
December 2017
xii
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.
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. As the 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 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.
1
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; and 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.
TYPES OF ELECTION CRIMES
1. Election Fraud
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
2
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 is therefore 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.
3
3. Campaign Financing Crimes
The federal campaign financing laws are embodied within

the Federal Election Campaign Act of 1971 (FECA), 52 U.S.C.
§§ 30101– 30146, as amended (most significantly in 1974, 1976,
1979, and 2002).
As amended, 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. FECA 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

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. 52 U.S.C. § 30109(d).
FECA crimes 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. 5 2 U.S.C.
§ 30109(d)(1)(A), (D). Moreover, all criminal violations of FECA
are subject to U.S. Sentencing Guideline § 2C1.8, that the
United States Sentencing Commission promulgated in response to
a specific Congressional directive.
FECA violations that either: (1) do not present knowing

and willful violations, or (2) involve sums below the statutory
minimums for criminal prosecution, are handled non-criminally
by the Federal Election Commission (FEC) under the statute’s
civil enforcement provisions. 52 U.S.C. § 30109(a).
4
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), 18 U.S.C. § 1505 (obstruction of agency proceedings), or
18 U.S.C. § 1519 (creation of false records in relation to or
contemplation of federal matters).
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.
52 U.S.C. § 10308. 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

non-criminal 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.
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.
Election crime cases tend to be long-term projects focusing

on individuals with different degrees of culpability. The ultimate
5
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
establish federal jurisdiction. This generally occurs in what are
called “mixed” elections, when federal and non-federal
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.
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 non-federal elections. These generally include
election frauds that involve the necessary participation of public
officers, notably election officials acting “under color of law,”
voting by non-citizens, fraudulently registering voters, or paying
voters in violation of state law.
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 the Bipartisan Campaign Reform Act (BCRA)
address financial activities by state and local parties that are
generic in the sense that they simultaneously benefit both federal
6
and non-federal candidates, federal campaign financing law does
not apply to violations of state campaign laws. 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, mail or wire fraud, or other offenses.
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.
7
• Federal trial juries, which are drawn from a broader
geographic area than are most state juries, and thus
lessen the possibility of local bias.
• Resources to handle the labor-intensive investigations

generally required for successful prosecution of
election crime.
• Detachment from local political forces and interests.
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. 1 It is the states that have primary
authority to ensure 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
1 When election offenses are driven by animus based on race, ethnicity,

or language-minority status, the broad protections of the 1965 Voting Rights
Act and other civil rights statutes apply. 52 U.S.C. §§ 10101, 10301, 10303(f),
& 10503. Such matters are supervised by the Civil Rights Division.
2 Of course, the U.S. electoral college presents an exception.
8
awareness of the Department’s prosecutive interest in, and
prosecution of, election fraud – not through interference with the
process itself.
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.
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.
9
EVALUATING AN ELECTION FRAUD
ALLEGATION
Not all irregularities in the election process are

appropriate for criminal prosecution. It is, for example, not a
federal crime for election officials to make negligent mistakes in
the administration of an election. Many of these non-criminal
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 non-citizens, 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. §§ 201, 666, 1346, 1951,
and 1952.
10
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 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. 3 This avoids
interfering with the governmental processes affected by the
election.4
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
3 This non-interference policy assumes there is no evidence that local

election administrators seek to retain or destroy the election records for a corrupt
purpose or to further an ongoing election fraud scheme.
4 In cases in which physical custody may interfere unnecessarily 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.
11
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. 5
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.
EVALUATING A CAMPAIGN FINANCING

ALLEGATION
In general, violations of FECA become crimes when they

satisfy a monetary threshold and are committed with specific
criminal intent. Non-criminal FECA violations are subject to
the exclusive jurisdiction of the 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 (52 U.S.C. § 30116);
5 Accordingly, the Public Integrity Section must be consulted prior to

any voter interviews in the pre-election or balloting period. U.S. DEP’T OF
JUSTICE, U.S. ATTORNEYS’ MANUAL (USAM) § 9-85.210.
12
• Corporate and union contributions and coordinated
expenditures (52 U.S.C. § 30118);
• Contributions from government contractors (52 U.S.C.

§ 30119);
• Donations from foreign nationals (52 U.S.C. § 30121);
• Disguised contributions through conduits (52 U.S.C.

§ 30122);
• Cash contributions (52 U.S.C. § 30123);
• Contributions raised through fraud (52 U.S.C.

§ 30124(b));
• The solicitation or receipt of “soft money” (funds not

raised in compliance with FECA) by national political
parties (52 U.S.C. § 30125);
• The conversion of campaign funds (52 U.S.C. § 30114);

or
• The concealment of true recipients of expenditures (52

U.S.C. § 3104(b)(5)(A)).
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
that aggregate at least $25,000 (or more than $10,000 in the case
of conduit violations) are felonies; offenses under these amounts
are misdemeanors. 52 U.S.C. § 30109(d)(1). The Department
interprets the significant enhancements to FECA’s criminal
13
penalties enacted in 2002 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 offenders who acted with
knowledge that their conduct was against the law. While this is
at times a difficult element to satisfy, examples of evidence
supporting the element include: (a) an attempt to disguise or
conceal financial activity regulated by FECA; (b) status or prior
experience as a campaign official, candidate, professional
fundraiser, or lawyer; and (c) efforts by campaigns to notify
contributors of applicable campaign finance law (e.g., donor card
warnings).
CAMPAIGN FINANCING CASES
Campaign financing cases have come to occupy an

increasingly significant portion of the investigative and
prosecutive resources that the Justice Department devotes to
election crimes. Because criminal FECA violations require proof
that defendants acted with the knowledge that their conduct was
unlawful, matters investigated as possible criminal FECA
violations generally must fall clearly within FECA’s prohibitions.
If a campaign financing offense violates one of FECA’s

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 or record under 18 U.S.C.
§ 1001 or §1519.
14
When investigating a criminal violation of FECA, care
must be taken not to compromise the FEC’s civil and
administrative jurisdiction under 52 U.S.C. § 30109(a). All plea
agreements involving activities that concern FECA violations
should therefore contain an express disclaimer regarding the
FEC’s civil enforcement authority.
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.
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 J USTICE ,
U.S. ATTORNEYS ’ M ANUAL (USAM), Section 9-85.210. In 1980,
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.
15
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 so
that the missions of both the Department and the FEC may be
fulfilled in each case. The requirements are also intended to help
ensure that investigations are 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:
Consultation Requirements for Election Fraud 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 pre-election 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;
16
• conduct interviews with individual voters during the pre-
election 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;
• 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 including 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:
17
• conduct any inquiry or preliminary investigation in a
matter involving a possible campaign financing offense
(including Title 18 offenses);
• 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.
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 may be available to provide
operational assistance in election crime investigations and trials.
18
CHAPTER TWO
CORRUPTION OF THE ELECTION

PROCESS
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 good
law. United States v. Slone, 411 F.3d 643, 647 (6th Cir. 2005); 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).
After Reconstruction, federal activism in election matters

subsided. The repeal of most of the Enforcement Acts in 1894
19
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 incorrectly held that the
Constitution directly conferred a right to vote only for federal officers,
and that conduct aimed at corrupting non-federal 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 incorrectly 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 and tribal election fraud. United States v. Wadena, 152
F.3d 831, 843–47 (8th Cir. 1998) (applying Section 241 to the
fabrication and false notarization of absentee ballots in tribal election);
United States v. Olinger, 759 F.2d 1293, 1296–98 (7th Cir. 1985)
(fabrication of absentee votes in mixed federal state election); United
States v. Stollings, 501 F.2d 954, 955 (4th Cir. 1974) (rejecting
defendant’s argument that a federal grand jury lacked authority to
20
investigate a Section 241 violation involving the contested primary
election of a state official). 6
The mail and wire fraud statutes, 18 U.S.C. §§ 1341 & 1343,
have sometimes been proposed as an alternative means to reach local
election fraud, under the theory that such schemes defrauded citizens
of their right to fair and honest elections. However, such a m a i l o r
w i r e fraud theory is not viable in light of Skilling v. United States,
561 U.S. 358 (2010) (honest services mail or wire fraud under 18
U.S.C. § 1346 limited to offenses in the nature of bribery or kickbacks).
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. 52 U.S.C.
§§ 10307(c), 10307(e), 20511. 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. C ONST. art. I,
§ 8, cl. 18) to enact laws to protect the federal election process from
potential 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 of the voter
registration process in a state where one registers to vote
simultaneously for federal as well as other offices. Slone, 411 F.3d at
647–48; United States v. McCranie, 169 F.3d 723, 727 (11th Cir.
1999).
6 As indicated in the cited cases, Section 241 has been used to prosecute
election fraud that affects the vote for federal officials, as well as vote fraud directed
at non-federal candidates that 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.”
21
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.
• 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.
22
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.
2. Conduct that Constitutes Federal Election Fraud 7
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 (52
U.S.C. § 10307(c), 18 U.S.C. § 597), or through the use of
interstate facilities (such as the mails or of telephones) in
those states in which vote-buying is a “bribery” offense (18
U.S.C. § 1952), as well as in federal elections 8 in those
states in which purchased registrations or votes are
voidable under applicable state law (52 U.S.C.
§ 20511(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 non-federal (18 U.S.C. §§ 241, 242).
• Voting in federal elections for individuals who do not

personally participate in, and assent to, the voting act
7 As used throughout this book, the terms “federal election 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.
8 For purposes of this book, the term “federal election” means 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 “non-federal
election” is one in which no federal candidate is on the ballot.
23
attributed to them, or impersonating voters, or casting
ballots in the names of voters who do not vote in federal
elections (52 U.S.C. §§ 10307(c), 10307(e), 20511(2)).
• 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 (52 U.S.C. § 20511(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 non-federal, 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 non-federal (18 U.S.C. §§ 241, 242), as well as in
elections in which federal candidates are on the ballot (52
U.S.C. §§ 10307(c), 10307(e), 20511(2)).
• Submitting fictitious names to election officers for

inclusion on voter registration rolls, thereby qualifying the
ostensible voters to vote in federal elections (52 U.S.C.
§§ 10307(c), 20511(2)). 9
• Knowingly procuring eligibility to vote for federal office

by persons who are not entitled to vote under applicable
state law, notably persons who have committed serious
crimes (approximately 40 states) (52 U.S.C. §§ 10307(c),
9
With respect to fraudulent voter registrations, election registration 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 non-federal 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. See, e., United
States v. Cianciulli, 482 F. Supp. 585, 617 (E.D. Pa. 1979).
24
20511(2)), and persons who are not United States citizens
(currently all states) (52 U.S.C. §§ 10307(c), 20511(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 (52 U.S.C. §§ 10307(c), 20511(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
(52 U.S.C. § 20511(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). Depending on the Circuit, this “salary theory” of
mail and wire fraud has potential as a prosecutive theory
that would extend federal criminal jurisdiction to election
fraud schemes, including those that occurred in non-federal
elections. 10
10 Compare United States v. Ratcliff, 488 F.3d 639, 647 (5th Cir. 2007)
(candidate lied to election ethics board about illegal campaign loans), United States
v. Turner, 459 F.3d 775, 784–90 (6th Cir. 2006) (defendant fraudulently concealed
illegal contributions and bribed voters to vote for candidate), Westchester Cnty.
Indep. Party v. Astorino, No. 13–CV–7737(KMK), 2015 WL 5883718, at *11–12
(S.D.N.Y. Oct. 8, 2015) (holding that “a person who has committed election fraud in
order to obtain the normal salary given to the person holding that elected office has
not committed money or property fraud, because the victim the government – has not
25
• Ordering, keeping, or having under one’s authority or
control any troops or armed persons at any polling place in
any election, federal or non-federal. 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 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.
been deprived either of any money or property or the choice in how to spend the
money”), and United States v. George, No. 86–CR–123, 1987 WL 48848, at *2 (W.D.
Ky. Oct. 20, 1987) (similar), with United States v. Schermerhorn, 713 F. Supp. 88,
92 (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), United States v. Webb, 689 F. Supp. 703 (W.D.
Ky. 1988) (scheme to fraudulently elect sheriff by procuring false absentee ballots held
actionable under the salary theory), and 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).
26
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. 11
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.
5. Voter Participation Versus Non-voter 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.
11 Election fraud might occur at the local level in districts 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.
27
(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. 12 All such matters are potential federal
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 materials, and thus the opportunity to misuse
them. 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.
• 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.
12 An example of a successfully prosecuted nursing home fraud is United States

v. Odom, 736 F.2d 104, 106–08 (4th Cir. 1984), which involved a scheme by local
law enforcement officials and others to vote the absentee ballots of mentally
incompetent residents.
28
(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.
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, 1379 (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, 308 (7th Cir. 1994) (finding
29
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.
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; (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 non-citizen 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.
30
For federal 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 non-federal 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
non-federal candidates, often referred to as “mixed” elections, are
“federal elections” for the purpose of the federal election crime
statutes.
1. Statutes Applicable to Non-Federal Elections
Several federal criminal statutes can apply to purely non-

federal elections, in addition to federal or mixed elections:
• 52 U.S.C. § 10307(c) and § 20511(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 – any conspiracy to interfere with federal

voting rights, and certain conspiracies involving state voting
rights;
• 18 U.S.C. § 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 person, one vote”
principle of the 14th Amendment, i.e., “public schemes;”13
• 18 U.S.C. § 245(b)(1)(A) – physical threats or reprisals

against candidates, voters, poll watchers, or election
officials;
13 If a public scheme involves bribery or kickbacks, federal prosecutors should also
evaluate whether a public scheme ma y b e c h a r g e d a s a deprivation of honest
services. 18 U.S.C. §§ 1341, 1343, 1346.
31
• 18 U.S.C. § 592 – “armed” persons 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, 1343 – schemes involving the mails

or interstate wires to corrupt elections that are predicated
on the “salary” or “pecuniary loss” theories; and
• 18 U.S.C. § 1952 – schemes to use the mails or an

interstate facility (such as a telephone) in furtherance of
vote-buying activities in states that treat vote-buying as
bribery.
2. Statutes Applicable to Federal Elections Only
The following additional statutes apply to federal (including

“mixed”) elections, but not to purely non-federal elections: 14
• 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;
14 The name of a federal candidate on the ballot is sufficient to obtain federal
jurisdiction.
32
• 18 U.S.C. § 611 – voting by aliens;
• 52 U.S.C. § 10307(c) – payments for voting and

conspiracies to encourage illegal voting;
• 52 U.S.C. § 10307(e) – multiple-voting;
• 52 U.S.C. § 20511(1) – voter intimidation; and
• 52 U.S.C. § 20511(2) – fraudulent voting.
STATUTES 15
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
15 The text of the statutes discussed below is printed in Appendix C. Each

statute carries, in addition to the prison term noted, fines applicable under 18 U.S.C.
§ 3571.
33
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 been successfully applied to
non-federal 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).
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);
• prevent the official count of ballots in primary elections,

United States v. Classic, 313 U.S. 299 (1941);
• destroy voter registration applications, United States v.

Haynes, Nos. 91-5979, 91-6076, 1992 WL 296782, at *1
(6th Cir. Oct. 15, 1992);
• destroy ballots, United States v. Townsley, 843 F.2d 1070,

1073–75 (8th Cir. 1988);
• exploit the infirmities of elderly or handicapped people by

casting absentee ballots in their names, United States v.
Morado, 454 F.2d 167, 171 (5th Cir. 1972);
34
• illegally register voters and cast absentee ballots in their
names, United States v. Weston, 417 F.2d 181, 182–85 (4th
Cir. 1969);
• injure, threaten, or intimidate a voter in the exercise of his

right to vote, Fields v. United States, 228 F.2d 544 (4th
Cir. 1955);
• impersonate qualified voters, Crolich v. United States, 196

F.2d 879, 879 (5th Cir. 1952);
• fail to count votes and to alter votes counted, Ryan v.

United States, 99 F.2d 864, 866 (8th Cir. 1938); Walker v.
United States, 93 F.2d 383, 386 (8th Cir. 1937); and
• steal votes by changing the votes cast by voters at voting

machines, United States v. Thompson, No. 6:09–16–KKC,
2013 WL 5528827, at *1 (E.D. Ky. Oct. 4, 2013).
Section 241 should be considered when addressing schemes

to thwart voting in federal elections. In 2005, 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, at *1–3 (D.N.H. Nov. 30,
2005)).
Section 241 does not require that the conspiracy be successful,

United States v. Bradberry, 517 F.2d 498, 499 n.6 (7th Cir. 1975), nor
need there be proof of an overt act. United States v. Colvin, 353 F.3d
569, 576 (7th Cir. 2003); United States v. Whitney, 229 F.3d
1296, 1301 (10th Cir. 2000). But see United States v. Brown, 49
35
F.3d 1162, 1165 (6th Cir. 1995) (stating in dicta that Section 241
requires an overt act). Section 241 reaches conduct affecting the
integrity of the federal election process as a whole, and does not
require fraudulent action with respect to any particular voter. United
States v. Nathan, 238 F.2d 401, 407 (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, 1048–49
(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 non-federal 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, 699–706 (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 non-federal contests. Anderson v. United States, 417 U.S.
211 (1974).
The use of Section 241 in election fraud cases generally falls

into two types: “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 Protection and Due Process
36
Clauses of the Fourteenth Amendment. See, e.g., Haynes, 1992 WL
296782, at *1; Townsley, 843 F.2d at 1073–75; United States v.
Howard, 774 F.2d 838 (7th Cir. 1985); United States v. Olinger, 759
F.2d 1293 (7th Cir. 1985); Anderson, 481 F.2d at 689. 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, 855 (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.
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,
37
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: 52 U.S.C. § 10307(c)
Section 10307(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,
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.
38
(a) The basis for federal jurisdiction 16
Congress added Section 10307(c) (originally codified as 42

U.S.C. § 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 10307(c) have
a broad reach. In fact, the original version of Section 10307(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 10307(c) rests on Congress’s power to regulate federal
elections and on the Necessary and Proper Clause. U.S. C ONST . art.
I, § 4; art. I, § 8, cl. 18; United States v. Slone, 411 F.3d 643, 648–
49 (6th Cir. 2005).
Section 10307(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, 307 (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 Slone, 411 F.3d at 648–49;
McCranie, 169 F.3d at 727 (jurisdiction under Section 10307(c)
satisfied by the name of unopposed federal candidate on ballot); United
States v. Douglas, No. 309-014, 2010 WL 737330, at *4 (S.D. Ga.
Mar. 2, 2010).
Section 10307(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
16 The discussion here concerning federal jurisdiction under Section 10307(c)

applies equally to its companion statute, 52 U.S.C. § 10307(e), which addresses
multiple-voting with a federal jurisdictional predicate phrased precisely the same
way.
39
Section 10307(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. Slone, 411 F.3d at 647
(collecting cases).
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 non-federal
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 Section 10307(c) satisfies this
federal jurisdictional requirement. An excellent discussion of this
issue is contained in United States v. Cianciulli, 482 F. Supp. 585, 617–
18 (E.D. Pa. 1979).
(b) False information to an election official
The “false information” provision of Section 10307(c)

prohibits any person from furnishing certain false data to an election
official to establish eligibility to register or to vote in a federal election.
The statute applies to three types of information: name, address, and
period of residence in the voting district. See, e.g., United States v.
Collins, 685 F.3d 651, 653, 657 (7th Cir. 2012) (candidate established
residency using false address in order to vote and run for public office).
False information concerning other factors (such as citizenship, felon
status, and mental competence) are not covered by this provision. 17
17 Such matters may, however, be charged as conspiracies to encourage illegal

voting under the conspiracy clause of Section 10307(c); as citizenship offenses under,
inter alia, 18 U.S.C. §§ 911 and 1015(f); or under the broad “false information”
provision of 52 U.S.C. § 20511. These statutes will be discussed below.
40
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. See United States v. Bowman, 636
F.2d 1003, 1008 (5th Cir. 1981).
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. United States v. Carmichael, 685 F.2d 903, 908–09
(4th Cir. 1982).
In United States v. Boards, 10 F.3d 587 (8th Cir. 1993), the

Eighth Circuit confirmed the broad reach of the “false information”
provision of Section 10307(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. Id. at 588. The district court
incorrectly 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 co-conspirator. Id. at 589.
The court of appeals rejected each of these narrow

interpretations of Section 10307(c). It first held that an application for a
ballot falls within the broad definition of “vote” in the statute,
41
“because an absentee voter must first apply for an absentee ballot
as a ‘prerequisite to voting.”’ Id. at 589 (quoting t h e d e f i n i t i o n
o f “ v o t e ” i n 52 U.S.C. § 10310(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 10307(c). 18 Id. Finally, the court held that one of
the defendants, 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. Id. at 589–90.
Subsequently, in United States v. Smith, the Eleventh Circuit

held that each forgery of a voter’s name on a ballot document or on
an application for a ballot constituted a separate offense under the
“false information as to name” clause of Section 10307(c). 231 F.3d
800, 815 (11th Cir. 2000).
Section 10307(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 bogus registrations immediately prior to an
18 The Eighth Circuit observed that “[b]ecause only registered 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.
42
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 10307(c).
(c) Vote-Buying
The clause of Section 10307(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. 19 Section 10307(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 10307(c), is directed at eliminating

commercial considerations from the voting process. See United States
v. Thomas, 510 F.3d 714, 717 (7th Cir. 2007); 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
19 The federal criminal code contains another vote-buying statute, 18 U.S.C.

§ 597, which has a narrower scope and provides for lesser penalties than Section
10307(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. Non-willful
violations of Section 597 are one-year misdemeanors; willful violations are two-year
felonies. Section 597 and 5 2 U . S . C . § 10307(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). Whereas
Section 597 requires that the payment be made to influence a federal election, Section
10307(c) requires that the defendant acted “knowingly and willfully.”
43
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 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
polls or providing employees paid leave while they vote are not
prohibited. United States v. Lewin, 467 F.2d 1132, 1136 (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 10307(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 10307(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 to 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,
423 (5th Cir. 1984) (upholding conviction because jury justified in
inferring that payments were for voting, not campaign work).
Similarly, Section 10307(c) does not apply to payments made to
signature-gatherers for voter registrations such individuals may
obtain. However, such payments become actionable under Section
10307(c) if they are shared with the person being registered.
Finally, Section 10307(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. Slone,
411 F.3d at 647–48; McCranie, 169 F.3d a t 7 2 5 (payments to vote
for county commissioner); Cole, 41 F.3d a t 3 0 6 – 0 7 (unopposed
44
House and Senate candidates on ballot); United States v. Daugherty,
952 F.2d 969, 970 (8th Cir. 1991) (payments to vote for several
local candidates); United States v. Odom, 858 F.2d 664, 665–66 (11th
Cir. 1988) (payments to vote for state representative); United States v.
Campbell, 845 F.2d 782, 784 (8th Cir. 1988); (payments to benefit a
candidate for county judge); Garcia, 719 F.2d at 100 (food stamps to
vote for candidate for county judge); Malmay, 671 F.2d at 870
(payments to vote for school board member); Carmichael, 685 F.2d
at 905 (payments for sheriff).
(d) Conspiracy to cause illegal voting
The second clause of Section 10307(c) criminalizes

conspiracies to encourage “illegal voting.” 20 The phrase “illegal
voting” is not defined in the statute. On its face it encompasses
unlawful conduct in connection with voting. It has potential
application to those who undertake to cause others to 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 10307(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 10307(c) (i.e.,
those involving vote- buying or fraudulent registration) should be
charged under the general federal conspiracy statute, 18 U.S.C. § 371.
20 Violations of this provision are felonies.
21 False statements involving any fact that is material to registering or voting

under state law may also be prosecuted under 52 U.S.C. § 20511, as will be discussed
in Part D.7 of this chapter.
45
4. Voting More than Once: 52 U.S.C. § 10307(e)
Section 10307(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 52 U.S.C. § 10307(c), which is discussed in detail above.
Section 10307(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, Olinger,
759 F.2d at 1297; schemes to exploit the infirmities of the mentally
handicapped by casting ballots in their names, United States v.
Odom, 736 F.2d 1 0 4 , 106 (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, Smith, 231 F.3d at 804–05.
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
10307(e) might present difficulties. For instance, in United States v.
Salisbury, 983 F.2d 1369, 1372 (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
candidates – and even in some cases without disclosing the identity of
46
the candidates on the ballot. In a few cases the defendant also personally
marked others’ ballots. Id. The Sixth Circuit held that the concept
“votes more than once” in Section 10307(e) was unconstitutionally
vague as applied to these facts. Id. at 1379. 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. Id. 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. 22
In a similar multiple-voting opinion published one year after

the Sixth Circuit’s Salisbury decision, however, the Seventh Circuit,
with the benefit of more detailed jury instructions, took a different
approach. 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, 52 U.S.C.
§ 10310(c)(1), and that this statutory definition was supported by both
the dictionary and the commonly understood meaning of the word.
Id. at 308–09. The Seventh Circuit thus held that the facts established a
clear violation by the defendant of the multiple-voting prohibition in
Section 10307(e). 23
In addition to their conflicting holdings, the Salisbury and

Cole opinions differ in their approach to so-called voter “assistance”
22 The Salisbury court noted that in United States v. Hogue, 812 F.2d 1568 (11th
Cir. 1987), the jury was instructed that illegal voting under Section 10307(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.” Salisbury, 983 F.2d at 1377.
23 “Ordinary people can conclude that the absentee voters were not expressing
their wills or preferences, i.e., that Cole was using the absentee voters’ ballots to
vote his will and preferences.” Cole, 41 F.3d at 308.
47
cases. Salisbury focused on the issue of voter consent – t h a t i s ,
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 10307(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 10307(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 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 10307(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.” E.g., 52 U.S.C. § 10310(c)(l)
(containing an extremely broad definition of “vote”);
48
Boards, 10 F.3d at 589 (holding that this definition
encompasses applying for an absentee ballot).
Thus, while the clearest use of Section 10307(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 310–11 (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. Further, 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
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
10307(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
49
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 warrants 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 jury sessions even at the risk of creating some negative Jencks
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 52 U.S.C.
§ 10307(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
24 Federal prosecutors should be mindful of Department resources and policies

regarding the rights of victims and the concerns regarding their use as witnesses, and should
consult with the victim-witness coordinator in their Office or Division.
50
persons are often easily manipulated – without the need for
inducements, threats, or duress. In such cases, the use of Section
10307(e) as a prosecutive theory should be considered. See generally
United States v. Odom, 736 F.2d 104 (4th Cir. 1984).
The main federal criminal statutes that can apply to voter

intimidation are: 52 U.S.C. § 20511(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: 52

U.S.C. § 20511(1)
In 1993, Congress enacted the National Voter Registration

Act (NVRA), 52 U.S.C. §§ 20501 through 20511. The principal
purpose of this legislation was to require that the states provide
prospective voters with uniform and convenient means by which to
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 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. 26 52 U.S.C. § 20511(1). Violators are subject to
imprisonment for up to five years.
25 For guidance in determining what constitutes “intimidation” 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, 52 U.S.C. § 10307(b), which is enforced by the
Civil Rights Division through non-criminal remedies.
26 The jurisdictional element for Section 20511(1) is “in any election for
Federal office.” This is slightly different phraseology than used in Sections
1 0 3 0 7 (c) and (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 non-federal
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.
51
(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 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
C ONG. R EC. 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
27 The civil counterparts to Section 594, 52 U.S.C. §§ 10101(b) and 10307(b),
may also be used to combat non-violent voter intimidation. See, e.g., United States
v. North Carolina Republican Party, No. 91-161-Civ-5F (E.D.N.C., consent decree
52
(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
manipulation of federal employees in the executive branch. 28 It
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
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).
28 A similar statute addresses political intimidation within the 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.
53
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
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. Id.
at 557–59. The marchers had intended to present the Governor of
Alabama with a petition for redress of grievances, including denial of
their right to vote. Id. at 555. 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.
54
(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 of the matter is “in
the public interest and necessary to secure substantial justice.” 18
U.S.C. § 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.
55
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 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 directly

prohibits voter suppression activity. Nevertheless, the 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, Nos. 91-5979, 91-6076, 1992 WL 296782, at *1 (6th
Cir. Oct. 15, 1992), 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 suppression 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 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.”
56
This prosecutive theory was used in a case in New Hampshire.
In United States v. Tobin, No. 04-216-01 (SM), 2005 WL 3199672, at
*1 (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. Id. 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. Id. 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 specific 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 a conspiracy
with the specific intent to impede or prevent qualified
persons from exercising the right to vote is conduct
punishable under Section 241.
Id. at *3. 29
29 The defendant’s convictions on the telephone harassment charges were
reversed on appeal due to error in the jury instructions under § 223. United States v.
Tobin, 480 F.3d 53, 56–58 (1st Cir. 2007).
57
The prosecution of voter suppression schemes represents an
important law enforcement priority, and such schemes should be
aggressively investigated. Unless Congress enacts a statute
specifically criminalizing this type of conduct, 18 U.S.C. §§ 241 and
242 are the appropriate prosecutive tool by which to charge provable
offenses.
7. Fraudulent Registration or Voting: 52 U.S.C.

§ 20511(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 by mail, 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 criminal statute was enacted that
specifically addressed two common forms of electoral corruption:
intimidation of voters (52 U.S.C. § 20511(1), (discussed above), and
fraudulent registration and voting (52 U.S.C. § 20511(2)). Violations
are subject to imprisonment for up to five years.
With respect to fraudulent registration and voting, Section

20511(2) criminalizes submitting voter registrations or ballots that
contain materially false information with knowledge of the falsity.
E.g., United States v. Prude, 489 F.3d 873, 874–75 (7th Cir. 2007)
(affirming conviction of disenfranchised felon who voted after notice
of her ineligibility).
58
The use of the word “willfully” in Section 20511(2) i n d i c a t e s
t h a t federal prosecutors must be prepared to prove that the offender
was aware that he or she was doing something unlawful.
Section 20511(2) is also 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. 30
(a) Fraudulent registration: § 20511(2)(A)
Subsection 20511(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 scope of the statute
is broader than that of the “false information” provision of Section
10307(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.
As already discussed, 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 non-
federal, the jurisdictional element is automatically satisfied in schemes
to submit fraudulent registration applications.
30 The earlier statutes, 52 U.S.C. §§ 10307(c) and (e), contain 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.
59
(b) Fraudulent voting: § 20511(2)(B)
Subsection 20511(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 other 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 52 U.S.C. §§ 10307(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.
8. Voting by Non-citizens
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. 31 At the time this book
was written, however, 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
31 U.S. C ONST . art. I, § 2; id. amend. XVII (electors for 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); id. art. II, § 1, cl.
2 (presidential electors chosen as directed by state legislatures).
60
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.32
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
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 citizenship).” 52 U.S.C.
§§ 20504(c)(2)(C), 20506(a)(6)(A)(i), 20508(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. 52 U.S.C. § 21083(b)(4)(A)(i).
In addition to these federal requirements relating to voter

registration, registering to vote and voting by non-citizens may be
prosecuted under four separate federal criminal laws:
(a) Fraudulent registration and voting: 52 U.S.C.

§ 20511(2)
As already discussed, the NVRA enacted a criminal statute that

reaches the knowing and willful submission to election authorities of
false information that is material under state law. 52 U.S.C.
§ 20511(2). Because all states currently make citizenship a
prerequisite for voting, statements by prospective voters concerning
32 For example, the states are prohibited from depriving “citizens of the United
States” of the franchise on account of any of the following factors: race (amend.
XV), gender (amend. XIX), non-payment of poll tax (amend. XXIV), age of 18 or
older (amend. XXVI; 52 U.S.C. § 10701), residency after 30 days (52 U.S.C.
§ 10502), or overseas residence (52 U.S.C. § 20302).
61
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, or made so that the individual may vote, can
involve a violation of this statute.
As discussed above, the jurisdictional requirement – that the

fraud be “in any election for Federal office” – is satisfied in voter
registration cases whenever a false statement concerning citizenship
status is made on a voter registration form because registration is
unitary in every state. The jurisdictional requirement for voting cases
is likely only satisfied where the ballot included a federal candidate.
Proof of the willfulness element is relatively easy in cases

involving false claims of citizenship 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 claims to 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 non-citizens 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. C ONST . art. I, § 8, cl. 4) rather than on the
Election Clause (U.S. C ONST . 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.
62
(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 non-citizen. 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). 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 punishable by
up to three years of imprisonment.
As noted, all states (but not all local jurisdictions) require

United States citizenship as a prerequisite for voting; and, under the
NVRA, all states must 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.
9. Voting by Aliens: 18 U.S.C. § 611
Section 611 creates an additional crime for voting by persons

who are not United States citizens. It applies to voting by non-
citizens in an election when a federal candidate is on the ballot,
except when non-citizens are authorized to vote by state or local law
for non-federal candidates or issues, and the ballot is formatted in a way
that the non-citizen has the opportunity to vote solely for these non-
federal 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 non-citizens was illegal. As thus interpreted, Section 611
63
has been held to conform to constitutional standards. See United States
v. Knight, 490 F.3d 1268, 1270 (11th Cir. 2007).
Violations of Section 611 are misdemeanors, punishable by up

to one year of imprisonment.
10. Travel Act: 18 U.S.C. § 1952
The Travel Act, 18 U.S.C. § 1952, prohibits interstate travel,

the use of any other facility (such as a telephone or the internet) capable
of use interstate, 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 may be 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); United States v. Dansker, 537 F.2d
40, 47 (3d Cir. 1976). 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 n.17 (9th Cir. 1974); United States v. Karigiannis, 430 F.2d 148,
150 (7th Cir. 1970); Schwartz v. Upper Deck Co., 183 F.R.D. 672, 678
(S.D. Cal. 1999).
The first task in determining whether the Travel Act has

potential application to a vote-buying scheme, therefore, 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.
64
The analysis of whether an offense qualifies under these
criteria can involve complex questions of state law. In United States
v. Manzo, 851 F. Supp. 2d 797, 800 (D.N.J. 2012), the government
charged an unsuccessful mayoral candidate with a Travel Act violation
for accepting a campaign contribution in exchange for a promise to
assist the development of real estate interests held by the bribe payor
if the candidate prevailed in the election. The court, after extensively
reviewing New Jersey’s bribery and solicitation statutes, as well as the
common law of bribery, determined that neither specifically
proscribed the acceptance of a benefit by an unsuccessful candidate in
exchange for a promise to perform an official act once elected. Id. at
811–29. Therefore, the government had not properly alleged a Travel
Act violation, and the court granted the defendant’s motion to dismiss
the indictment. Id. at 829. The court did, however, note that “it is a
crime in New Jersey to engage in bribery as a candidate in order to
purchase or induce certain behaviors of voters specifically,” id. at 812,
indicating that a vote-buying allegation would constitute a valid charge
under the Travel Act.
Travel Act jurisdiction rests on predicate acts of interstate

travel, the use of interstate facilities, or the use of the mails (intra or
interstate). E.g., United States v. Nader, 542 F.3d 713, 722 (9th Cir.
2008) (“We hold that intrastate telephone calls made with intent to
further unlawful activity can violate the Travel Act because the
telephone is a facility in interstate commerce.”); United States v.
Halloran, 821 F.3d 321, 342 (2d Cir. 2016), cert. denied, 137 S. Ct.
1118 (2017) (citing Nader, 542 F.32 at 722) (holding purely intrastate
use of an interstate facility, “e.g., the telephone or the internet” is
sufficient to violate the Travel Act). Since election fraud is a local
crime, interstate predicate acts are rarely present. The Travel Act
m a y be considered as a vehicle to prosecute vote-buying schemes,
however, in which the mails, a telephone, or the internet 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.
65
As with the mail and wire fraud statutes, each use of the
interstate facility or mail in furtherance of the bribery scheme is a
separate offense. United States v. Jabara, 644 F.2d 574, 577–78 (6th
Cir. 1981). The defendant need not actually have used the facility or
mail, so long as it was a reasonably foreseeable consequence of his or
her activities. United States v. Kelley, 395 F.2d 727, 729 (2d Cir.
1968). Nor need the jurisdictional act have in itself constituted the
illegal activity, as long as it promoted it in some way. United States v.
Welch, 327 F.3d 1081, 1092 (10th Cir. 2003); United States v.
Bagnariol, 665 F.2d 877, 898–99 (9th Cir. 1981); United States v.
Peskin, 527 F.2d 71, 79 n.3 (7th Cir. 1975); McIntosh v. United
States, 385 F.2d 274, 276 (8th Cir. 1967).
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
long as the act facilitated the unlawful activity. See, e.g., United
States v. Davis, 780 F.2d 838, 842 (10th Cir. 1985).
The Travel Act may be particularly useful in voter bribery cases

in non-federal 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,

however, care should be taken to ensure that the voting transaction in
question was corrupted by a bribe before the mailing that is
66
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.
11. Mail and Wire Fraud: 18 U.S.C. §§ 1341 and 1343
The federal mail a n d w i r e fraud statutes prohibit use of

the United States mails, or a private or commercial interstate carrier,
or the use of interstate wire communications to further a “scheme or
artifice to defraud.” 18 U.S.C. §§ 1341 and 1343. 33 Violations are
punishable by imprisonment for up to twenty years.
Despite their prior broad application to election fraud at the state

and local level, post-McNally, 483 U.S. 350 (1987), and Skilling, 561
U.S. 358 (2010), the mail and wire fraud statutes reach only those
schemes to defraud others of property rights, and schemes to deprive
others of the intangible right to honest services through bribery or
kickbacks under 18. U.S.C. § 1346. Section 1346, therefore, likely
will not provide a basis for prosecuting most types of election fraud.
Federal prosecutors should consult with the Public Integrity Section
before using Section 1346 in the context of election fraud.
(a) “Salary Theory” of mail and wire fraud
The Court’s narrowing of the mail and wire fraud statutes does
not entirely foreclose their use in prosecuting election fraud. Schemes
to obtain salaried positions by falsely representing the applicant’s
credentials to a hiring authority remain prosecutable under the mail
a n d w i r e fraud statutes after McNally. The objective of such
“salary schemes” is to obtain pecuniary items – i.e., “money or
property” – by fraud; such schemes are therefore clearly within the
33 The mail and wire fraud statutes are essentially identical, except for their
jurisdictional requirements.
67
scope of the common law concepts of fraud to which McNally sought
to restrict the mail fraud statute. See United States v. Sorich, 523 F.3d
702, 712–13 (7th Cir. 2008) (scheme creating fraudulent hiring
bureaucracy for city employees led to “salaries fraudulently obtained”
and “job opportunities fraudulently denied,” both of which
“represent[ed] property for purposes of mail fraud”); United States v.
Granberry, 908 F.2d 278, 280 (8th Cir. 1990) (scheme to obtain
“wages paid” by falsifying application “is within the narrowest reading
of the [mail fraud] statute”); United States v. Doherty, 867 F.2d 47,
54–57 (1st Cir. 1989) (Breyer, J.) (indictment alleging scheme to rig
police promotion exam and make fraudulent appointments deemed
“sufficient to charge a valid conspiracy to defraud the Commonwealth
of ‘money or property,’ namely, a scheme ‘for obtaining’ the money
used to pay the salaries of those improperly promoted ‘by means of
false or fraudulent pretenses’”) (quoting 18 U.S.C. § 1341); United
States v. O’Brien, 994 F. Supp. 2d 167, 182–83 (D. Mass. 2014)
(scheme to hire and promote unqualified probation department
employees); United States v. Ferrara, 701 F. Supp. 39, 41–42
(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); cf.
United States v. Cooper, 677 F. Supp. 778, 781–82 (D. Del. 1988) (wire
fraud scheme to obtain pay for person not performing work).
This salary theory of post-McNally mail or wire 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. For example, schemes to
obtain salaried elected positions through procuring and tabulating
invalid ballots, or by concealing from a supervising authority the
receipt of illegal campaign funds during an election, result in the
payment of a salary to an official who would not have been elected
absent the fraud.
In addition, election fraud schemes can present related issues

concerning the quality and value of the public officer hired thereby.
68
The Supreme Court observed in McNally that deceit concerning the
quality and value of a commodity or service remains within the scope of
Section 1341:
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, or (at least in part) because it believed
the candidate did not engage in illegal fundraising activities, and
consequently received services from an individual that were thus of
lower value.
This “salary theory” of post-McNally mail or wire fraud has

been applied to election frauds in only a few cases to date, with mixed
results. The Fifth and Sixth Circuits have outright rejected the theory
in the election fraud context. United States v. Ratcliff, 488 F.3d 639,
647 (5th Cir. 2007) (candidate lied to election ethics board about
illegal campaign loans); United States v. Turner, 459 F.3d 775, 784–
90 (6th Cir. 2006) (defendant fraudulently concealed illegal
contributions and bribed voters to vote for candidate). District courts
have split on whether the theory is viable in prosecuting election fraud.
Compare United States v. Schermerhorn, 713 F. Supp. 88, 92
(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); United States
v. Webb, 689 F. Supp. 703, 707 (W.D. Ky. 1988) (scheme to
fraudulently elect sheriff by procuring false absentee ballots held
actionable under the salary theory), with Westchester Cnty. Indep.
Party v. Astorino, No. 13–CV–7737 (KMK), 2015 WL 5883718, at
69
*11–12 (S.D.N.Y. Oct. 8, 2015) (holding that “a person who has
committed election fraud in order to obtain the normal salary given to
the person holding that elected office has not committed money or
property fraud, because the victim – the government – has not been
deprived either of any money or property or the choice in how to spend
the money”); United States v. George, No. 86–CR–123, 1987 WL
48848, at *2 (W.D. Ky. Oct. 20, 1987) (similar).
Thus, the salary theory may still be viable in the election fraud
context. Schemes designed to fraudulently elect a public official are
materially indistinguishable from schemes to fraudulently obtain other
government employment for purposes of Sections 1341 and 1343. The
holdings of the Fifth and Sixth Circuits in Ratcliff and Turner,
respectively, rely on three basic rationales that appear to conflict with
case law discussing the salary theory in other contexts.
Both holdings rely on the courts’ observation that the elected

officials’ fraudulently-obtained salaries did not cause the paying
localities to incur a net monetary loss, because someone would be paid
the salaries regardless of who ultimately obtained the positions.
Ratcliff, 488 F.3d at 645; Turner, 465 F.3d at 680. 34 But, as the First
Circuit has explained, “[Section] 1341 forbids schemes to defraud or
to obtain money by false pretenses; this statutory language suggests no
requirement that the scheme must be aimed at money which would not
otherwise have gone to someone who honestly obtained the victim’s
business.” Doherty, 867 F.2d at 60. Other circuit and district courts,
applying the mail fraud statute to crimes outside of the election
context, have confronted and rejected the rationale relied upon in
Ratcliff and Turner as well. See, e.g., id; Sorich, 523 F.3d at 712–13;
34 In United States v. Goodrich, the Eleventh Circuit rejected the government’s attempt
to apply the salary theory to a scheme whereby the defendant bribed county officials. 871
F.2d 1011, 1013–14 (11th Cir. 1989). The district court had reasoned that the defendant
defrauded the county of salaries paid to officials by bribing them to take certain official actions
and conduct “sham meetings.” Id. at 1013. Foreshadowing Turner and Ratcliff, the Eleventh
Circuit reasoned that “the indictment does not allege that the purported mail fraud caused the
County to incur any expenses over and above the cost of conducting regularly-scheduled
commission business.” Id. at 1013. The Second Circuit expressly declined to opine on the
theory’s application to a scheme to bribe previously-elected union officials. United States v.
Coppola, 671 F.3d 220, 237 (2d Cir. 2012).
70
Granberry, 908 F.2d at 280; United States v. Thomas, 686 F. Supp.
1078, 1085 (M.D. Pa. 1988); Webb, 689 F. Supp. at 707
(characterizing “[a] net loss in the salary expended” as “superfluous”
to a mail fraud charge). Moreover, the net expense rationale ignores
the Supreme Court’s observation in McNally, quoted above, that fraud
causing a lower-quality service to be provided can give rise to a viable
mail fraud claim. See Schermerhorn, 713 F. Supp. at 92 (explaining
that the defendant’s emphasis on overall cost “is at the expense of the
remainder of that disjunctive clause – ‘or secured better insurance’”)
(quoting McNally, 483 U.S. at 360)); Granberry, 908 F.2d at 280
(“What the school district wanted was a competent school-bus driver
who was truthful and had not been convicted of a felony, and this is
not what it got.”). Neither the statutory language nor common law
concepts of fraud require courts to “abide [or] judicially sanction the
conclusion that corrupt and non-corrupt elected officials are of equal
value.” Schermerhorn, 713 F. Supp. at 92.
The Fifth Circuit’s holding in Ratcliff also rested on its

observation that the defendant’s fraudulent misrepresentations were
aimed directly at a local ethics board, rather than the locality paying
the official’s salary. Ratcliff, 488 F.3d at 644–45. However, just three
years later, in United States v. McMillan, the circuit disavowed that
line of reasoning, acknowledging that “[n]othing in the mail and wire
fraud statutes requires that the party deprived of money or property be
the same party who is actually deceived.” 600 F.3d 434, 449 (5th Cir.
2010) (internal quotation marks omitted). The McMillan court instead
read Ratcliff’s holding to rely principally upon the first basis explained
above, i.e., the fact that the elected official’s “salary and
benefits . . . would have been paid regardless of the defendant’s
misrepresentations.” Id. at 448.
Finally, in Turner, the Sixth Circuit based its holding in part on

its view that the locality paying the official’s salary lacked “control
over the appropriation of the salary beyond ensuring payment to the
duly elected official.” Turner, 465 F.3d at 682. But there is no support
in the statutory language for such a limitation. See 18 U.S.C. §§ 1341,
1343 (making unlawful “any scheme or artifice to defraud, or for
71
obtaining money or property by means of false or fraudulent pretenses,
representations, or promises . . . .”) (emphasis added). Nothing in the
language of Sections 1341 or 1343, or McNally, for that matter,
indicates that the process of selecting the official or employee – be it
by popular election or a more traditional hiring procedure – is material
for purposes of determining liability. It would be an odd result indeed
if a bad actor who secures elected office by fraud could evade
prosecution under Sections 1341 or 1343 simply because the hiring
procedure involved delegation or otherwise involved multiple actors,
not all of whom were directly targeted by the fraudulent conduct.
(b) “Cost-of-election” theory: 18 U.S.C. § 1341
One court, the D.C. Circuit, 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.
United States v. DeFries, 43 F.3d 707, 710–11 (D.C. Cir. 1995).
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. Id. at 708. 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. Id. at 710–11.
This theory of prosecution has potential usefulness primarily

when the mail and wire fraud statutes are needed to federalize voter
frauds involving the counting of illegal ballots in non-federal
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.
72
12. 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 personnel 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
places, nor does it preempt state laws that require police officers to be
stationed in polling places. And finally, it does not prohibit armed
federal response when a polling place has ceased to function because
of, for example, a bomb threat or active shooter.
13. Campaign Dirty Tricks
Two federal statutes, both of which are part of the Federal

Election Campaign Act (FECA), specifically address campaign tactics
and practices: 52 U.S.C. §§ 30120 and 30124. As is the case with
all other FECA provisions, violations of these two statutes are subject
to both civil and criminal penalties, 52 U.S.C. §§ 30109(a) and
30109(d) respectively. These penalties will be further discussed in
Chapter Five.
73
(a) Election communications and solicitations: 52
U.S.C. § 30120
Section 30120 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 statute 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: 52 U.S.C.

§ 30124
Section 30124 prohibits fraudulently representing one’s

authority to speak for a federal candidate or political party. The
provision contains two specific prohibitions:
• Section 30124(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 30124(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 30124(b) forbids any person from fraudulently

representing his or her authority to solicit contributions
74
on behalf of a federal candidate or political party. For
example, this provision would prohibit any person from
raising money by claiming that he or she represented
federal candidate A, when, in fact, the person had no such
authority.
14. Retention of Federal Election Records: 52 U.S.C.

§ 20701
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 20701 to require that documentation generated in
connection with the voting and registration process be 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 20701 provides for criminal misdemeanor penalties for

any election officer who willfully fails to retain records covered by
the statute. Section 20702 provides similar criminal penalties for
election officers or other persons who willfully steal, destroy, or alter
covered records. 35 In addition to these criminal penalties, the reach of
this statute to specific categories of election documentation is critical
to both prosecutors and election administrators, who must often
35 Election administrators, document custodians, or other persons who willfully

violate Section 20701 or Section 20702 are subject to imprisonment for up to one year.
75
resolve election disputes and answer challenges to the fairness of
elections. 36
For this reason, a detailed discussion of Section 20701 and its

application to particular types of election documentation generated in
the current age of electronic voting follows.
(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 tally reports. 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 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; 52 U.S.C. §§ 20701–20706. 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.
36 Indeed, the federal courts have recognized that the purpose 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, 228 (5th Cir. 1962).
76
The retention requirements of Section 20701 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 20701
Section 20701 requires that election administrators preserve for

twenty-two months “all records and papers” that come into their
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 (including elections
for state and local bond issues, initiatives, referenda and the like) are
governed by state law. Section 20701 does not apply to records
generated in connection with purely local or state elections.
However, Section 20701 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, 617
(E.D. Pa. 1979). Thus, registration records must be preserved as long
as the voter registration to which they pertain is considered an
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“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 20701, 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 20701 requires document preservation,

not document generation
Section 20701 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 statute
requires that record be retained if it relates to voting in an election
covered by the statute.
(d) Originals must be retained
Section 20701 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 20701 requires
that the originals be maintained for the requisite twenty-two month
period.
78
(e) Election officials must supervise storage
Section 20701 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.
An electoral jurisdiction, however, may validly determine that

election records subject to Section 20701 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). If an electoral jurisdiction makes such a
determination, Section 20701 requires that administrative procedures
be in place giving election officers ultimate management authority
over the retention and security of those election records, including the
right to physically access and dispose of them. The terms and
conditions of storage also must conform to the retention requirements
of the statute.
15. Section 20701 versus National Voter Registration Act
The retention requirements of Section 20701 interface

significantly with somewhat similar retention requirements of the
NVRA, 52 U.S.C. § 20507(i). However, there are four major
differences between these two provisions:
• Section 20701 applies to all records generated by the

election process, while Section 20507(i) applies only to
registration records generated under the NVRA.
• Section 20701’s retention period is twenty-two months

while Section 20507(i)’s retention period is two years.
• Section 20507(i) requires that, with certain exceptions,

covered records also must be made available to the
public for inspection for two years.
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• Violations of Section 20701 are subject to criminal
sanctions, while violations of Section 20507(i) are subject
only to non-criminal remedies.
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 of the U.S. DEP’T OF J USTICE, UNITED STATES ATTORNEYS ’
M ANUAL (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 the
FBI to conduct a preliminary inquiry in the form of an “assessment.” 37
37 An “assessment” is defined in the FBI’s Domestic Operations and Field Guide

(2015) (DIOG) Section 5 to include those investigative steps necessary to flesh out the
80
Consultation with the Public Integrity Section is not required at this
initial stage, although it is always welcome.
If the results of the preliminary inquiry suggest that further

investigation is warranted, the United States Attorney’s Office should
contact the Public Integrity Section. Specifically, consultation with the
Public Integrity Section, and with higher-level Department officials
in the event agreement is not reached, is required for all grand jury and
“full” investigations 38 of election fraud. Consultation with the Public
Integrity Section 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 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
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 certain investigative leads arising from the interview.
38 In connection with election crime matters, a “full” FBI investigation is,

essentially, anything beyond an assessment, and includes the FBI terms “preliminary
investigation” and “full investigation.” DIOG §§ 6 & 7. 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.
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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 Integrity Section
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, 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 information and criminal
complaints.
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• 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.
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.39
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.
39 An exception to this rule might be warranted if the facts indicate that the
election officials are involved in an ongoing election fraud or obstruction scheme.
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4. Non-interference 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
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.
84
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
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. 40
40 In such cases, the Civil Rights Division’s Voting Section 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
85
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 personnel 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 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
useful 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, 807–13 (11th
Cir. 2000).
SUGGESTIONS FOR SUCCESSFUL ELECTION

FRAUD 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.
back through the Voting Section; they have no role in the detection of election crimes
not involving racial animus.
86
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.
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
87
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.
(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. 52 U.S.C. § 20701. The 1993
NVRA extended this period to two years for voter registration
records generated under the Act. 52 U.S.C § 20507(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
88
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 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.
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• 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.
(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.
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(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,” “bankers,” or
“politiqueras,” 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.” See United States v. Adams, 722 F.3d 788,
798–99 (6th Cir. 2013).
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.
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2. The Investigation
Election fraud investigations fall into two stages: a prelim-

inary investigation, followed by a grand jury investigation along with an
FBI full-field investigation. Preliminary investigations are usually
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
92
• identify, if possible, a few specific fraudulent voting
transactions.
After the results of the preliminary investigation are reviewed by

the United States Attorney’s Office, they are forwarded to the 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
93
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 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,
94
under what circumstances (for 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. 41 Successful prosecution 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 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.
41 These very factors, on the other hand, demonstrate to the jury the
susceptibility of these persons to manipulation, which is often important evidence
in the case.
95
• 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.42
4. A Few Cautions
Election fraud investigations raise a number of issues not

normally encountered in other criminal investigations. Federal
prosecutors and investigators should keep the following principles in
mind:
i. 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
42 Successful prosecution of those schemes may require the cooperation of a

poll official or other “insider.”
96
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.
ii. Non-interference 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.
iii. 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 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.
97
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.
98
CHAPTER THREE
PATRONAGE CRIMES
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 non-partisan 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.
In 1939, the Hatch Act codified this ban on active partisan

campaigning by executive branch employees, and incorporated those
99
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, 1273 (8th Cir. 1980); Langer
v. United States, 76 F.2d 817, 818 (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 Court recognized that partisan considerations may
constitutionally play a part in personnel decisions involving public
employees who occupy policymaking positions or positions involving
100
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.
STATUTES
The text of the criminal statutes discussed in this section is

printed in Appendix B. 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,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, 770 (D.C. Cir. 1952); United States v.
Burleson, 127 F. Supp. 400, 402 (E.D. Tenn. 1954).
101
The Criminal Division has interpreted Section 602 as not
prohibiting a federal employee’s solicitation of voluntary political
contributions from other non-subordinate 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 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 5 2
U.S.C. § 30101(8), which restricts “contributions” to financial
activities intended to influence a federal election.
102
(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. 43 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 to
threaten or promise to do so, for making or failing to make “any
contribution of money or other valuable thing for any political
43 This prohibition was also added by the 1993 law to the civil Hatch Act
provision. 5 U.S.C. § 7323(a).
103
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 an 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 to induce the victim to
engage or not engage in any political activity.
104
The statute 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. R EC. H6817
(daily ed. Sept. 21, 1993).
2. 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 by mail, as well as those made in
person. See United States v. Thayer, 209 U.S. 39 (1908). Violations
are punishable by imprisonment for up to three years.
105
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 non-federal candidates and
the non-federal activities of political parties and other organizations.
Under the revised text, 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 non-federal
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
106
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.
3. 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 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
107
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.44
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), 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.
44 Section 601 has a parallel provision in 18 U.S.C. § 665(b), which covers
programs under the Comprehensive Employment and Training Act.
108
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); Elrod v. Burns, 427 U.S. 347,
367 (1976) (patronage dismissals of non-policymaking 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.
• 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 non-pecuniary
political services from public employees. See United States
v. Cicco, 938 F.2d 441, 444–46 (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
109
employment. Id. at 443. 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. at 445. 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, 985 (3d Cir. 1993).
(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; non-willful 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 52 U.S.C. §§ 30104(b) and 30109(d).
110
(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 normal
campaign activities by federal, state, or local employees. 45 Violations
are one-year misdemeanors.
Section 595 applies to all public officials, whether elected or

appointed, federal or non-federal. 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
45 However, such political activities must be consistent with the Hatch Act
restrictions on political activity, as amended in 1993, which will be discussed later in
this chapter.
111
other benefit provided for or made possible by an Act of Congress
appropriating funds for relief purposes. Violations are one-year
misdemeanors.
(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.
4. 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 Serv. Comm’n v.
Letter Carriers, 413 U.S. 548 (1973); United Pub. 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.
112
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
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 or National
Security Divisions 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 law
permits, under certain circumstances, employees who are members
of a union or employee organization to solicit fellow members for
113
contributions to the organization’s political committee. 5 U.S.C.
§ 7323(a)(2); 5 C.F.R. § 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
Merit Systems Protection Board and by the United States Office of
Special Counsel. 5 U.S.C. §§ 1204, 1212.
Active partisan campaigning in violation of the Hatch Act can

lead to termination from federal employment, or thirty days’
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 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 Sys. Prot. Bd., 863 F.2d 1079, 1090–91
(2d Cir. 1988); Blaylock v. Merit Sys. Prot. Bd., 851 F.2d 1348,
1354 (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
114
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.
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.
115
CHAPTER FOUR
ELECTION DAY PROCEDURES

This chapter summarizes the Election Day Program that the
Department of Justice implements for the federal general elections.
This program has been in effect since 1970. 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 decades 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 non-federal 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
116
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 training conferences for the DEOs prior to the November
general elections.
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
117
allowed by 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
118
convey federal interest in 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 election-related 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 observable or
otherwise detectable illegal activities (such as vote-
119
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,
requests for authorization to use such techniques should be
addressed to the Public Integrity Section as far before the
election as is possible.
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.
120
• On its own, or in collaboration with the United States
Attorneys’ Offices, the Public Integrity Section also
investigates and prosecutes election crimes.
121
CHAPTER FIVE
CAMPAIGN FINANCING CRIMES
INTRODUCTION
The nation’s campaign financing laws are designed to regulate

the influence of money on politics, to combat actual or apparent quid
pro quo corruption. 46 The campaign finance laws 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, to candidates for
public office and political parties; and by imposing strict 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
46 As to actual quid pro quo corruption, the Supreme Court has held that campaign
contributions may constitute a violation of the Hobbs Act, 18 U.S.C. § 1951, only when they
are provided in exchange for a specific requested exercise of official authority. Evans v.
United States, 504 U.S. 255 (1992); McCormick v. United States, 500 U.S. 257 (1991). This
is in recognition of the important and necessary role that campaign contributions play in our
political system.
122
flow of money intended to influence election of candidates for federal
office, that is, the Office of President, Vice President, or Member of
Congress. 47
Criminal violations of federal campaign financing laws

require proof that the conduct was committed “knowingly and
willfully.” 48 See United States v. Danielczyk, 917 F. Supp. 2d 573, 578–
80 (E.D. Va. 2013). As discussed below, this means that the defendant
must know that his or her conduct is unlawful.
This standard creates an elevated scienter element requiring, at

the very least, that application of the law to the facts in question be
fairly clear. When there is substantial 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.
47 Violations of state campaign financing laws may, however, 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.
48 Violations of these laws that are committed with lesser intent – including all
violations committed negligently or because the offender did not understand his or her
conduct to be unlawful – are not federal crimes. They are subject to civil and
administrative enforcement by the Federal Election Commission.
123
STATUTORY SCOPE
1. Types of Statutes
There are four main types of federal campaign financing laws:
• Laws that limit the amount of contributions;
• Laws that prohibit contributions 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 of this edition,

apply federally 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). 52 U.S.C.
§§ 30101, et seq. 49 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). More
recently, decisions by the U.S. Supreme Court and some U.S. Courts
of Appeals have significantly limited what is prohibited under the
statute.
49 FECA’s provisions were housed in Title 2 of the United States Code until September
1, 2014, when it was transferred to Title 52.
124
With two exceptions described below, 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.
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. 50
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 52 U.S.C. § 30101. 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.
§ 30101(1).
• “candidate” – an individual who seeks nomination or

election to federal office and has received contributions
aggregating over $5,000 or has made expenditures
50 In recent elections, presidential candidates have increasingly foregone federal
matching funds.
125
aggregating over $5,000. or authorized such contributions
or expenditures by another. § 30101(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. § 30101(3).
• “political committee” – any committee or other group of

persons that receives contributions or makes
expenditures aggregating over $1,000 in a calendar year.
§ 30101(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. § 30101(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. § 30101(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. Fed. Election Comm’n v. Mass. Citizens for
Life, Inc., 479 U.S. 238, 247–249 (1986); Buckley v.
Valeo, 424 U.S. 1, 44 n.52 (1976).
• “Electioneering communication” – a public

communication made through the media within certain
periods before a federal election that “refers to” a clearly
126
identified federal candidate and, in the case of a candidate
for the United States House or Senate, is targeted to the
relevant electorate. 52 U.S.C § 30104(f)(3). This term
refers mostly to “issue ads,” communications that suggest
support for a federal candidate but do not contain words of
express advocacy, such as “vote for” or “elect.” 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. § 30104(f)(4).
• “federal election activity” – activity by state or local

political party committees that simultaneously benefits
federal and non-federal candidates, such as get-out-the-
vote and voter registration drives. § 30101(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. 52 U.S.C. § 30125.
With two exceptions relating to electioneering

communications, the nouns describing the payment for
“electioneering communications” and “federal election activity” is
generally “disbursement” – not “expenditure” or “contribution.”
This distinction is critical, as “disbursements” are not covered by
FECA’s criminal penalty, which is confined to violations that involve
a “contribution, donation, or expenditure.” § 30109(d)(1). Therefore
most violations of provisions involving “electioneering
communications” and “federal election activity” fall exclusively
within the civil enforcement jurisdiction of the Federal Election
Commission.
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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
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. 52 U.S.C. §
30116(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, 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.
52 U.S.C. § 30116(a)(7)(C).
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STATUTES
1. Introduction
This section will present a discussion of those substantive

provisions of FECA that are of most interest to federal prosecutors and
investigators. We do not attempt to present a thorough discussion of
the entire Act, or of all issues that might arise under it. The Justice
Department’s criminal jurisdiction is, for the most part, limited to
violations that are committed “knowingly and willfully,” that is, by
subjects who knew their conduct was unlawful, even if they are
unaware of which statute they were violating and what that statute
required. See 52 U.S.C. § 30109(d)(1).
In view of the above considerations, the discussion that

follows is confined to those substantive provisions of FECA that are
fairly clear, generally well-known, and enforceable through the Act’s
criminal penalties.
2. Substantive Statutes
(a) 52 U.S.C. § 30116: Limitations on contributions

and expenditures
Section 30116 sets quantitative limits on the amounts

individuals, political committees, and other entities may contribute to
federal candidates and political committees. 52 U.S.C. § 30116(a). It
also limits expenditures by party committees and presidential
candidates who accept federal funding. 52 U.S.C. § 30116(b) & (d).
Generally, cases prosecuted under Section 30116 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).
129
As noted above, “contribution” is generally defined as anything
of value for the purpose of influencing a federal election. § 30101(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. 52 U.S.C.
§ 30116(a)(7)(B). “Disbursements,” which do not fall within the reach
of FECA’s criminal penalties, therefore, can become “contributions”
which do fall within its reach, if they are coordinated. For example,
electioneering communications, if coordinated, will be 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. 52 U.S.C. § 30116(a)(7)(C). An “expenditure” is a
disbursement made for the purpose of influencing a federal election.
52 U.S.C. § 30101(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 30116(a) sets contribution limits for two sets of

entities: those made by “persons” (individuals, partnerships,
committees, and associations) and those made by “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). 51 The
51 A third category of limits on total contributions a person could make in a two-year

period, 52 U.S.C. § 30116(a)(3), was invalidated by the Supreme Court in 2014. See
McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434 (2014).
130
contribution limits currently in place and discussed below have
repeatedly been upheld against First Amendment challenges, and there
is no question today that they are constitutionally valid. McConnell
v. Fed. Election Comm’n, 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).
Under Subsection 30116(a)(1), contributions from “persons”

(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 30116);
• $25,000 in a calendar year to a national party

committee 52;
• $10,000 in a calendar year to a state party committee; or
• $5,000 in a calendar year to any other political

committee.
Under Subsection 30116(a)(2), contributions from “multi-

candidate political committees” may not exceed:
• $5,000 to a federal candidate per election;
• $15,000 in a calendar year to a national party committee;

or
52 At the time this book was written, there were six national 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).
131
• $5,000 in a calendar year to any other political
committee.
The limits on contributions by “persons” to federal candidates

and national party committees are adjusted for inflation every two
years, with the increases announced in odd-numbered years and
effective for the two-year election cycle beginning with the day after
the last general election. 52 U.S.C. § 30116(c). For the current limits,
visit the FEC’s website.
The above limits do not apply to transfers between the

national, state, district, and local committees of the same political
party. 52 U.S.C. § 30116(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. 52 U.S.C. § 30116(a)(5).
The above limits also do not apply to contributions to political

committees that engage in independent expenditures only (commonly
known as “Super PACs”), meaning the committee does not coordinate
any of its expenditures with a candidate or committee that makes
contributions to a candidate or party. See SpeechNow.org v. Fed.
Election Comm’n, 599 F.3d 686, 696 (D.C. Cir. 2010) (finding Section
30116’s limits on contributions to independent expenditure-only
political committees did not further the government’s interest in
preventing corruption or the appearance of corruption and thus were
invalid under the First Amendment).
Limitations on expenditures are far fewer than those on

contributions. 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). At present, only
presidential candidates have the option of receiving federal funds for
132
their campaigns; hence, these are the only candidates who may be
subject to expenditure limits. See 52 U.S.C. § 30116(b). FECA also
places limitations on expenditures by national and state party
committees. The limits on expenditures by presidential candidates
accepting public funding and party committees are increased to reflect
inflation as discussed above. 52 U.S.C. § 30116(c)(1)(B).
There are 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. 52 U.S.C. § 30104(g).
This reporting requirement applies even if the entity making the
independent expenditure is not required to register as a political
committee with the FEC.
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. at 52–53, this use of personal funds represents an
“expenditure” that cannot be constitutionally limited.
(b) 52 U.S.C. § 30118: Prohibition on contributions

and expenditures by national banks, corporations,
or labor organizations
Although Section 30118, when enacted, barred both corporate

and union contributions and expenditures entirely – with the exception
of those made by separate segregated funds – the Supreme Court has
since invalidated as unconstitutional any limits on independent
expenditures by corporations or labor organizations made directly from
those entities’ general treasury funds. Citizens United v. Fed. Election
Comm’n, 558 U.S. 310 (2010) (overturning part of its earlier decision
in McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003) and all of
its decision in Austin v. Michigan Chamber of Commerce, 494 U.S. 652
(1990)). In doing so, however, the Court continued to recognize the
important governmental interest in preventing corruption and the
133
appearance of corruption, it upheld FECA’s disclosure requirements,
and it did nothing to disturb the Court’s prior findings that limits on
corporate and union contributions, as opposed to expenditures,
appropriately further that interest. See id. at 356–57; see also Cort v.
Ash, 422 U.S. 66 (1975); First Nat’l Bank of Boston v. Bellotti,
435 U.S. 765, 787–88 n.26 (1978) (finding limits on contributions
address problem of corruption of elected representatives through
creation of political debts) (dictum).
Section 30118 prohibits the following:
• Contributions (which include coordinated expenditures) by

corporations and labor organizations in connection with
any federal election, unless made to a Super PAC (a
political committee engaging only in independent
expenditures). 53
• Contributions and expenditures by a national bank or a

federally chartered corporation in connection with any
election – federal, state, or local. 54
• Consent to a prohibited contribution or expenditure by

any officer of a corporation, labor organization, or national
bank; and
• Knowing acceptance of a prohibited contribution by any

candidate, political committee, or other person .
53 The ban on corporate and union contributions to independent expenditure-only

political committees was invalidated by the D.C. Circuit in SpeechNow.org v. Fed. Election
Comm’n, 599 F.3d 686 (D.C. Cir. 2010).
54 This statute is one of two FECA prohibitions that extend to non-federal elections.
The other is 52 U.S.C. § 30121, which prohibits foreign nationals from making contributions
to non-federal as well as federal elections.
134
There are a number of corporate and union political activities
that are not prohibited under FECA. After Citizens United,
corporations and labor organizations are no longer prohibited from
spending treasury funds to expressly advocate the election or defeat of
a clearly identified federal candidate or to engage in electioneering
communications,55 as long as they do so independently of any
candidates or organizations that contribute to candidates. See also Fed.
Election Comm’n v. Wis. Right to Life, 551 U.S. 449 (2007)
(invalidating limits on corporate and union electioneering
communications).
Even before Citizens United, corporations and unions were not

barred from using 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 Local Union
No. 562 v. United States, 407 U.S. 385, 409 (1972). They also always
have been allowed to use corporate or union funds to finance
communications, on any subject, between labor unions and their
membership or between corporations and their stockholders, see
United States v. Auto. Workers, 352 U.S. 567 (1957), as well as to
support non-partisan expenditures, or to co ver the costs of
publishing statements of editorial opinion in newspapers of general
public distribution that are owned by corporations or unions, see
United States v. C.I.O., 335 U.S. 106 (1948).
The statute also does not restrict contributions or expenditures
55 “Electioneering communication” includes any broadcast or 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. 52 U.S.C. § 30104(f)(3)(A)(i).
135
from the personal resources of corporate or union officials,
provided, of course, that the value of the funds given or spent are not
reimbursed or otherwise passed back to a corporate or a union fisc
such that the corporation or union would be engaging in conduct
prohibited by the statute.
As with all other FECA violations, to reach the level of a

Section 30118 criminal violation, the act had to have been committed
“willfully.” Absent direct evidence of such criminal intent (as
through a confession), a prosecution under Section 30118 will most
likely be successful when funds were diverted from a corporate
or union treasury and laundered in some fashion to a candidate or
when an entity using corporate or union funds to engage in election
activity coordinates its expenditures with a candidate.
(c) 52 U.S.C. § 30119: Prohibition on contributions by

government contractors
Section 30119 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. See 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. 56 With respect to partnerships, however, the FEC
has determined that Section 30119 does not prohibit contributions
made from the personal assets of the partners, provided of course, that
56 The D.C. Circuit reaffirmed that the ban on individual contractor contributions
furthers the government’s compelling interest in preventing quid pro quo corruption and the
appearance of corruption in an 11-0 en banc decision. See Wagner v. Fed. Election Comm’n,
793 F.3d 1 (D.C. Cir. 2015).
136
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 non-federal 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 30119, because the government
contract is usually with the corporate entity, not its officers.
However, individual corporate officers may be covered by Section
30119 if they are individually liable on the government contract.
Government contractors may make non-partisan expenditures, may
establish and administer affiliated PACs, and may communicate with
their officers and stockholders on political matters.
(d) 52 U.S.C. § 30120: Attribution of sponsors of

political communications and solicitations
Section 30120 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.
137
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 30120 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 52 U.S.C.
§ 30108, 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).
Although BCRA expanded the scope of Section 30120, only

violations involving, generally, the two communications originally
covered by the statute – communications that expressly advocate a
federal candidate’s election or defeat and communications that
solicit contributions – are subject to prosecution. Funds expended for
such communications are “expenditures” under the Act, and are
therefore subject to its criminal provision, section 30109(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) 52 U.S.C. § 30121: Prohibition on contributions,

donations, and expenditures by foreign nationals
Section 30121 prohibits contributions and “donations” by foreign

nationals to all United States elections, whether federal, state, or
138
local. It is one of the few federal campaign financing statutes that
reach activities directed at both federal and non-federal elections. 57
Specifically, the statute prohibits foreign nationals from

engaging in the following types of political activity:
• Making, directly or through any other person, a

contribution or donation in connection with any federal,
state, or local election, or knowingly soliciting or accepting
a contribution or donation from a foreign national.
• Making, directly or indirectly, an expenditure, as defined

by Section 30101.
• Making, directly or indirectly, an independent expenditure.
• Making, directly or indirectly, a disbursement for an

electioneering communication, within the meaning of 52
U.S.C. § 30104(f)(3).
BCRA added the term “donation” to Section 30121’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. 58
All types of Section 30121 violations are subject to prosecution

except those involving electioneering communications, which are
57 5 2 U.S.C. § 30118, discussed above, which bars national banks and federal
corporations from making a contribution in connection with an election to any
political office. 52 U.S.C. § 30124 bars any fraudulent solicitation of funds on behalf
of any candidate.
58 Although not defined in the Act, a “donation” is a political 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.
139
defined for purposes of Section 30121 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 of the Foreign 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. 52 U.S.C. § 30121(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
30121 to contributions by domestic subsidiaries of foreign
corporations. 59 The Commission has determined that a domestic
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
may be owned by foreign individuals or entities. The FEC has,
however, concluded that Section 30121 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
30121 to include domestic subsidiaries of foreign-owned entities.
There are significant enhancements for FECA violations

involving a foreign national or foreign government. U.S.S.G. §
2C1.8(b)(2). The Guideline is discussed in Chapter Six.
59 Persons who rely in good faith on an FEC advisory opinion may be

immune from sanctions under FECA, including criminal prosecution. 52 U.S.C.
§ 30108(c)(2).
140
(f) 52 U.S.C. § 30122: Prohibition on contributions
through conduits
Section 30122 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. It was challenged and upheld in United States v.
O’Donnell, 608 F.3d 546 (9th Cir. 2010). 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 30116, or from prohibited sources in violation of
Section 30118 or Section 30121.
Section 30122 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
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 30122 and 30118.
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.
141
Conduit crimes are subject to a separate felony penalty with a
lower monetary floor than the general felony provision 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 or fines. 52 U.S.C. § 30109(d)(1)(D). Conduit
crimes aggregating $25,000 or more are subject to FECA’s five-year
felony provision. 52 U.S.C. § 30122(d)(1)(A)(ii). Finally, conduit
crimes aggregating between $2,000 and $10,000 are one-year
misdemeanors. 52 U.S.C. § 30122(d)(1)(A)(i).
Conduit violations also may be prosecuted under the federal

conspiracy and false statement statutes, 18 U.S.C. §§ 371 and 1001.
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 to cause false information to
be conveyed to the FEC. See 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 30122 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 30122’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).
142
(g) 52 U.S.C. § 30123: Limitation on contribution of
currency
Section 30123 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 30116.
The statute does not expressly address receiving cash for

political purposes, but campaign agents who knowingly solicit or
receive cash in violation of Section 30123 may be liable as aiders and
abettors under 18 U.S.C. § 2.
(h) 52 U.S.C. § 30124: Fraudulent misrepresentation

of campaign authority
Section 30124 prohibits two discrete types of fraudulent

misrepresentations in connection with federal campaigns: certain
campaign “dirty tricks,” and fraudulent fundraising. Specifically:
• Section 30124(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 30124(b) prohibits any person from fraudulently

misrepresenting, or conspiring with another to
fraudulently misrepresent, that he or she is acting for any
143
candidate or political party for the purpose of soliciting
contributions or donations. 60
Unlike all other FECA violations, violations of Section 30124

may be prosecuted without regard to the sum of money involved. 52
U.S.C. § 30109(d)(1)(C). Violations that involve amounts under
$25,000 are one-year misdemeanors and violations involving $25,000
or more are five-year felonies. 52 U.S.C. § 30109(d)(1)(A).
(i) 52 U.S.C. § 30125: Soft money of political parties
Section 30125, the so-called “soft money ban” enacted by

BCRA in 2002, was designed to eliminate unregulated “soft money”
from the federal election campaign process. It has several clear
features that are enforceable through FECA’s criminal penalty.
Section 30125(a)
Section 30125(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. 61 Such funds would include contributions that exceed the
60 Violations of Section 30124(b) involving fraudulent fundraising 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.
61 At the time this book was written, the following six committees were subject
to 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,
144
Act’s quantitative limitations in violation of Section 30116;
contributions from prohibited sources, such as corporations, labor
organizations, banks, or government contractors in violation of
Section 30118, Section 30119, or Section 30121; and contributions
laundered through conduits or in cash in violation of Section 30122 or
Section 30123.
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 30125(a).
Of particular significance is the statute’s inclusion of the verb

“direct.” See 11 C.F.R. 300.2(n) (defining “direct” within the meaning
of the statute). It would be, for example, a violation of Section 30125(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 30125(a) if the agent suggested that a
prohibited funding source such as a corporation or a labor
organization give to a recipient not covered by FECA, such as a
candidate for non-federal office.
Section 30125(b)
Section 30125(b) prohibits state and local committees, as well

as their officers and agents, from expending or disbursing funds that
have not been raised in accord with the limitations and prohibitions
of FECA on “federal election activity.” This term was enacted by
and the Democratic Congressional Campaign Committee. See 11 C.F.R.

§ 110.1(c)(2).
145
BCRA and is defined broadly to include any activity that benefits both
federal and non-federal candidates. 52 U.S.C. § 30101(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 non-federal
candidates, such as, “vote for the Democratic [or Republican] Party.”
Prior to BCRA, the FEC permitted “generic” expenses such as

those noted above to be allocated between federal and non-federal
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 30125, Congress rejected the
FEC’s allocation rules, and plugged this loophole by statutorily
deeming all such “generic” activities around federal elections
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. Fed. Election Comm’n, 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 30125(b).
Section 30125(b) does not cover state and local political party
communications that refer entirely to non-federal 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
146
candidates and officeholders are not involved in the solicitation of
such funds. 52 U.S.C. § 30125(b)(2)(C) & (e)(3).
Section 30125(d)
Section 30125(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 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 non-federal 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
Section 30125(e)
Finally, Section 30125(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 30125(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. § 30125(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 non-
federal election campaign, provided that the transactions are
147
permitted under state law. 52 U.S.C. § 30125(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.
3. 52 U.S.C. § 30114: Prohibition on Conversion of

Campaign Funds
Section 30114 regulates the use of funds contributed to federal

candidates and officeholders and reflects Congress’s clear intent to
bar completely the conversion of campaign funds for personal
purposes. The statute is composed of two provisions and applies to all
contributions to a federal candidate:
• Section 30114(a) sets forth the permissible uses of

contributed funds, including use for “otherwise authorized
expenditures in connection with a campaign for Federal
office” and for “ordinary and necessary expenses incurred
in connection with duties of the individual as a holder of
Federal office.”
• Section 30114(b) contains the statutory prohibition: A

contribution to a federal candidate may not be “converted
by any person to personal use.” 52 U.S.C. § 30114(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.” 52 U.S.C. § 30114(b)(2).
• Finally, Section 30114(b)(2) lists nine specific examples of

prohibited personal uses of campaign funds, such as
mortgage payments, clothing expenses, vacations, and
non-campaign-related car expenses.
148
Even temporary diversion can give rise to criminal prosecution.
See, e.g., United States v. Taff, 400 F. Supp. 2d 1270 (D. Kan. 2005)
(rejecting motion to dismiss indictment charging Section 30114 (then
2 U.S.C. § 439a) based on candidate’s temporary use of campaign
funds for house closing).
Further, 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. Conduct in violation of Section 30114 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 existence or use of the funds, and the false records
statute, 18 U.S.C. § 1519.
4. 52 U.S.C. §§ 30102, 30103, and 30104: Organization,

Recordkeeping, and Reporting Requirements
In brief, FECA requires federal candidates and political

committees to file with the FEC a statement of organization and
periodic reports of receipts and disbursements. 52 U.S.C. §§ 30103,
30104. The reports are made available to the public, and must identify,
among other things, persons contributing over $200 in a calendar year.
52 U.S.C. § 30104(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. 52 U.S.C. § 30104(c). This requirement
applies even to those persons or entities that are not required to register
as political committees under the statute.
Most campaign records must be maintained for three years,

including records reflecting the identity of all contributors giving in
excess of $50. 52 U.S.C. § 30102(c) & (d). In addition, persons who
collect, receive, or otherwise handle contributions to a political
149
committee from other persons are required to forward those
contributions to the committee’s treasurer within ten days, along with
the name and address of any person who contributed over $50 to the
candidate. 52 U.S.C. § 30102(b).
ENFORCEMENT
1. Three Types of Enforcement
Federal campaign financing violations are subject to three

types of enforcement:
i) Criminal prosecution by the Justice Department as

felonies, either under FECA; under other federal criminal
statutes addressing frauds and false statements, such as 18
U.S.C. §§ 371, 1001, 1341, 1343, and 1519; or under Title
26 statutes if the matter involves a publicly funded
presidential campaign;
ii) Criminal prosecution by the Justice Department as FECA

misdemeanors if the amount of the violation does not
reach the felony threshold; and
iii) Civil enforcement proceedings by the FEC.
FECA creates a statutory dichotomy between non-willful

violations involving any amount, and willful violations involving
$2,000 or more within a calendar year. The former are expressly
subject to the exclusive civil jurisdiction of the FEC. 52 U.S.C.
§§ 30109(a), 30107(e). The latter are subject to both civil enforcement
proceedings by the FEC and criminal prosecution by the Justice
Department. 52 U.S.C. § 30109(a)(5)(B) & (C) & (d). In addition, the
Commission has statutory authority to interpret the statute through
regulations and advisory opinions, and its opinion should be given
150
deference. 52 U.S.C. §§ 30106(b)(1), 30107(a)(7)-(8), & (e); FEC v.
Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981).
The FEC pursues FECA violations under the statutoryscheme

set forth in Section 30109(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. 52 U.S.C. § 30109(a)(5) & (a)(6). The
FEC possesses subpoena power and the power to administer oaths,
§ 30107(a)(3) & (a)(2), as well.
Criminal prosecution under FECA can be pursued before civil

and administrative remedies are exhausted. § 30109(a) & (d); see
United States v. Int’l Union of Operating Eng’rs, Local 701, 638 F.2d
1161, 1162–68 (9th Cir. 1979); see also Marcus v. Holder, 574 F.3d
1182, 1184–86 (9th Cir. 2009); Fieger v. U.S. Attorney Gen., 542 F.3d
1111, 1119 (6th Cir. 2008); Bialek v. Mukaskey, 529 F.3d 1267, 1271
(10th Cir. 2008).
The BCRA amendments to FECA in 2002 significantly

enhanced the criminal penalties for willful violations of FECA.
BCRA did so in response to identified anti-social consequences,
namely, corruption and the appearance of corruption arising from
FECA violations, and the consequent adverse effect on the proper
functioning of American democracy.
These issues are addressed comprehensively in the Supreme

Court’s decision in McConnell v. Fed. Election Comm’n, 540 U.S. 93
(2003). Accordingly, all willful FECA violations that exceed the
applicable jurisdictional floor specified in the Act’s criminal provision
151
should be considered for federal prosecution under one or more of the
prosecutive theories presented above.
2. FECA’s Criminal Penalty Provision
As noted above, FECA has an internal criminal penalty

provision, Section 30109(d). In order for a FECA violation to be a
federal crime, Section 30109(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 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 for
criminal penalties. An example would be corporate contributions in
violation of Section 30118 that are laundered through conduits in
violation of Section 30122. Prosecutions under the Act thus present
three factual issues: intent, aggregate value, and applicable penalties.
These topics are discussed below.
(a) Intent
Most FECA violations must have been done “knowingly and

willfully” to provide a basis for criminal liability. § 30109(d). The
willfulness required is defined by the Bryan standard, articulated by the
Supreme Court in Bryan v. United States, 524 U.S. 184 (1998). In that
case, the Supreme Court considered the willfulness requirement for
trading in or transporting firearms in interstate commerce without a
license. Finding that the statute at issue was not highly technical such
that it would “ensnar[e] individuals engaged in apparently innocent
conduct,” as the tax laws might, the Court found willfulness, as used in
the statute, did not require the defendant to have known of a specific
statutory duty. Bryan, 524 U.S. at 193–95. Instead, the defendant need
only know, generally, that his conduct was unlawful. Id. at 195–96.
152
Courts directly addressing the criminal intent requirement under
FECA have applied the Bryan standard. United States v. Whittemore,
944 F. Supp. 2d 1003, 1006–10 (D. Nev. 2013) (“ [T]he government
must prove that Whittemore knew his conduct violated some law, but
it need not prove which one.”), aff’d, 776 F.3d 1074 (9th Cir. 2015), cert.
denied, 136 S. Ct. 89 (2015); United States v. Danielczyk, 788 F. Supp.
2d 472, 489–93 (E.D. Va. 2011) (“[T]he Government must prove that
Defendants intended to violate the law (whatever the law was).”), rev’d
on other grounds, 683 F.3d 611 (4th Cir. 2012), cert. denied, 133 S. Ct.
1459 (2013).
Offenders may argue that a higher standard applies: the standard

articulated for willful violations of the tax code and currency structuring
by the Supreme Court in Cheek v. United States, 498 U.S. 192, 201
(1991), and Ratzlaf v. United States, 510 U.S. 135, 144–45, 149 (1994),
respectively. Finding the tax code and currency structuring laws
particularly complex and likely to ensnare innocent conduct, the Supreme
Court found “willful” as used in those cases to require knowledge of the
particular statutory requirement violated. Most courts interpreting these
cases have understood the intent standard articulated to thus be limited to
the criminal violations related to those specific schemes. One exception
is a 1994 case, United States v. Curran, 20 F.3d 560 (3d Cir. 1994), in
which the Third Circuit applied the Cheek/Ratzlaf standard to the
willfulness requirement for causing false statements in violation of 18
U.S.C. §§ 1001 & 2(b), where the defendant had caused a campaign
treasurer to file false reports with the FEC. Since Bryan, however, most
circuits have rejected such an expansion of the Cheek standard for
willfulness. E.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir.
1999). Even the Third Circuit has appeared to retreat from this
interpretation. See United States v. Starnes, 583 F.3d 196, 211–12 (3d
Cir. 2009) (noting that the Cheek/Ratzlaf standard is used in only rare
instances involving “highly technical statutes . . ., such as the federal
criminal tax and antistructuring provisions” and that the court applied the
heightened standard in Curran because of the “tandem violations of
§§ 1001 & 2(b) in the ‘federal election law context’”).
153
As of the time of this publication no court has held that the
Cheek/Ratzlaf standard applies to FECA offenses. In pre-Bryan and pre-
Cheek/Ratzlaf cases, the D.C. Circuit required a “knowing, conscious,
and deliberate flaunting” of the statute, see Nat’l Right to Work Comm.
v. FEC, 716 F.2d 1401, 1403 (D.C. Cir. 1983); AFL-CIO v. FEC,
628 F.2d 97, 101 (D.C. Cir. 1980); but, these cases do not reflect the
evolved understanding of “willful” as articulated by the Supreme
Court in Bryan, Cheek, and Ratzlaf. As the courts found in Whittemore
and Danielczyk, the core prohibitions of FECA are not complex in the
same manner as those regulatory schemes at issue in Cheek and
Ratzlaf, and thus FECA does not merit the even higher intent standard.
With the Bryan standard in mind, 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 personally well-versed in the federal campaign financing
laws (such as offenders who 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 commit-
tee); and
154
• 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 “contributor cards.”
Certain 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 (§ 30114); misrepresentation
of campaign authority to damage an opponent’s campaign (§ 30124(a));
fraudulent solicitations (§ 30124(b)); certain coerced contributions by
corporations and unions (§ 30118(b)(3)(A)); and false expenditure
reports to the FEC (§ 30104(b)(5)(A)). In such cases, the instructions
must not take the intent issue from the jury. However, evidence and
argument before the jury on the element of willfulness in these cases
may not require as much proof of concealment as in other FECA
offenses.
(b) Aggregate value
For most FECA offenses to be eligible for criminal penalties,

the contributions or expenditures at issue must “aggregate” to $2,000
or more in a calendar year. 52 U.S.C. § 30109(d)(1)(A). The
exceptions to this $2,000 requirement are violations of the
prohibition in Section 30118(b)(3) against the use by corporate or
union PACs of coerced contributions, which sets a threshold of $250,
and knowing and willful violations of the prohibition in Section
30124 against fraudulent misrepresentation of campaign authority to
damage another candidate or political party or to solicit contributions
for a candidate or political party, which sets no threshold.
In determining the aggregate value of a FECA violation, the

customary practice has been to include the overall “value” of a series of
155
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.
3. Penalties
FECA offenses carry different penalties depending on the

aggregate amount of the contributions and expenditures involved:
• 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). 52 U.S.C.
§ 30109(d)(1)(A)(i).
• Conduit violations (52 U.S.C. § 30122) that aggregate

more than $10,000 in a calendar year are felonies: those
aggregating under $25,000 are two-year felonies, and
those aggregating $25,000 or more are five-year felonies.
52 U.S.C. § 30109(d)(1)(D)(i). In addition, these offenses
can be subject to a 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. 52 U.S.C. § 30109(d)(1)(D)(ii).
• Fraudulent misrepresentations of campaign authority to

damage an opponent or to solicit funds (2 U.S.C.
§ 30124) 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
156
$200,000 for each offense by an organization). 52 U.S.C.
§ 30109(d)(1)(C).
• Violations of the prohibition against the use of coerced

contributions by corporations and unions (52 U.S.C.
§ 30118(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. 52 U.S.C.
§ 30109(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. 52 U.S.C.
§ 30109(d)(1)(A)(ii).
Of course, the actual penalties imposed for these offenses are

subject to the guidance provided in FECA sentencing guideline,
U.S.S.G. § 2C1.8.
4. Statute of Limitations for Campaign Financing

Offenses
FECA violations are subject to a five-year statute of limitations

period, 52 U.S.C. § 30145, the same as the general statute of
limitations for most federal crimes, see 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, 1001,
or 1519. 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).
5. Venue for FECA Offenses
157
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, one
c o u r t o f appeals 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 5 2 U.S.C. §§ 30116 and 30122 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 solutions regarding venue.
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.
6. Other Applicable Federal Criminal Statutes
Conduct giving rise to a FECA violation may also give rise to

violations of other federal statutes as well. The following statutes
158
provide viable charging theories for conduct in violation of FECA and
should be pursued where applicable.
(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. 52 U.S.C. §§ 30102(a), 30104(a) & (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. 52 U.S.C. § 30102(b). The treasurer’s reports
thus include information from individuals who have forwarded
contributions to the committee.
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
under the Bryan intent standard (which Department policy recognizes
as applicable to § 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, see 52 U.S.C. § 30111(a)(4), and, in situations when the
concealed fact itself constitutes a violation of FECA, to enforce the
law, see §§ 30107(a)(6) & (9), 30109(a)(5).
159
The application of Section 1001 to campaign financing
violations follows from United States v. Hansen, 772 F.2d 940 (D.C.
Cir. 1985). In that case, Congressman Hansen was 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
non-felony 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
committee to submit materially false data to the FEC has been upheld by
every court that has decided the issue.62 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 (5th Cir. 1990);
United States v. Braddock, Crim. No. 12-cr-157, 2013 WL 4441531,
at *10 (D. Conn. Aug. 14, 2013); United States v. O’Donnell, Crim.
No. 08-872, 2009 WL 9041223, at *6 (C.D. Cal.), aff’d, 608 F.3d 546
(9th Cir. 2010); see also United States v. Whittemore, 776 F.3d 1074,
1080 (9th Cir. 2015) (finding a jury’s conclusion that the defendant
caused a false report to the FEC in violation of 18 U.S.C. §§ 1001(a)(2)
62 Several significant false reporting cases were prosecuted during the early
days of FECA, before the FEC was created. E.g., United States v. Fin. Comm. to
Re-elect the President, 507 F.2d 1194, 1197–98 (D.C. Cir. 1974) (upholding
convictions for willful failure to report a $200,000 cash contribution).
160
and 2 “follow[ed] accordingly” from findings that the defendant was
the “true source” of the money used for contributions made by
conduits); United States v. Gabriel, 125 F.3d 89 (2d Cir. 1997) (dicta)
(analyzing the interrelationship between Section 1001 and FECA).
In most circuits, for a defendant to have “knowingly and

willfully” made a false statement or have caused false statements to be
made to the FEC, he or she must have known that the statement was
false and he or she must have intended to act unlawfully, even if he or
she was unaware of the specific reporting requirement. Most circuits
have adopted this interpretation of the willful requirement in Section
1001; see also Bryan, 524 U.S. 184 (1998). Some have adopted a
lesser standard. See United States v. Hsia, 176 F.3d 517, 521–22 (D.C.
Cir. 1999); United States v. Hopkins, 916 F.2d 207, 214–15 (5th Cir.
1990). The Third Circuit, alone, has required the heightened showing
that the defendant have also been aware of the specific statutory duty
to disclose. See Curran, 20 F.3d at 570; see also Starnes, 583 F.3d at
211 (limiting Curran to “tandem violations of §§ 1001 and 2(b) in the
‘federal election law context.’”). Department policy is to apply the
Bryan standard.
The elements of a Section 1001 offense, in the context of false

statements made to the FEC, 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
161
• the defendant acted knowingly and willfully; that is, the
defendant intended to cause the recipient to record false
statements and knew, generally, that making such a false
statement as unlawful. However, the government does not
have to prove that the defendant was aware of the specific
statutory requirements and prohibitions of FECA or that he
or she was aware of the federal agency’s interest in the
matter falsified.
(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. 52 U.S.C. §§ 30106 and 30107. To perform these
duties, 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.
162
As previously stated, prosecution under FECA’s criminal
provision requires proof that the defendant was aware that his or her
conduct was generally unlawful. When the conduct is charged under
Section 371, however, 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, and is arguably a greater factual
burden than is required by Section 30109(d).
The use of Section 371 in this manner has been approved by

the Third, Fifth, and D.C. Circuits. United States v. Hsia, 176 F.3d
517, 521 (D.C. Cir. 1999); United States v. Curran, 20 F.3d 560, 562
(3d Cir. 1994); United States v. Hopkins, 916 F.2d 207, 212 (5th
Cir. 1990).
(c) 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, are
five-year felonies and can be used to prosecute aggravated campaign
financing schemes involving presidential campaigns. 26 U.S.C.
§§ 9012 and 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
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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. 52 U.S.C. § 30116(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
connection with the general election phase of their campaigns. 26
U.S.C. §§ 9003 and 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 and 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 and
9007.
Each of these statutes contains its own criminal provision for,

among other things, providing false information to the FEC to obtain
164
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) and
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 also United States v. Hopkins, 916 F.2d
207 (5th Cir.1990) (same); 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.
(d) Mail and wire fraud: 18 U.S.C. §§ 1341 and 1343
The federal mail and wire fraud statutes, 18 U.S.C. §§ 1341

and 1343, which criminalize the use of the mails or interstate wires to
further a scheme or artifice to defraud, 63 can provide an additional
basis for prosecuting conduct that also violates FECA. Further,
conduct in violation of state campaign finance laws, although not
subject to FECA’s provisions, may violate other federal laws, like the
mail and wire fraud statutes. Federal prosecutors should consider
these statutes when evaluating possible charges for unlawful campaign
finance conduct.
The salary theory of mail and wire fraud, discussed at length in

Chapter 2, may also provide a basis to prosecute state and federal
campaign financial law violations by candidates and their agents. As
discussed, however, courts are split as to whether the salary theory is
63 Except for the jurisdictional element, the mail and wire fraud statutes are identical
and courts have interpreted their elements in the same manner.
165
viable and federal prosecutors should be familiar with the law in their
circuit and district before pursuing charges on this basis and consult with
the Public Integrity Section.
In addition to the penalties imposed for diverting campaign funds

in violation of Section 30114, the mail and wire fraud statutes may be
used to prosecute embezzlement or theft of campaign funds. These cases
generally fall into three factual scenarios, only the first two of which are
also covered by Section 30114:
i) Diversion by a candidate or campaign agent of incoming

contributions to the candidate or committee before the
contributions are deposited; and
ii) 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
iii) Establishment of a fictitious political organization for the

purpose of raising funds to be converted to personal use.
Examples of campaign embezzlement cases are United States v.

Thomas, Cr. No. 05-0423 (D.D.C., information filed Nov. 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). 64
64 Copies of these charges, to which the defendants pled guilty, can be obtained
from the Public Integrity Section.
166
(e) False records in the administration of a federal
matter: 18 U.S.C. § 1519
Title 18 also affords an alternative for charging false

statements that a defendant makes or causes in records of either a
federal political entity (such as a federal candidate’s authorized
campaign committee) or in reports to the FEC. Specifically, under 18
U.S.C. § 1519, “[w]hoever knowingly … conceals, covers up,
falsifies, or makes a false entry in any record [or] document … with
the intent to impede, obstruct, or influence the investigation or proper
administration of any matter within the jurisdiction of any department
or agency of the United States … or in relation to or contemplation of
any such matter or case” commits a twenty-year felony. The
Department has applied this statute, in conjunction with 18 U.S.C. § 2,
in charging defendants with causing false internal records of campaign
expenditures and false external records in the follow-on campaign
filings with the FEC by unwitting campaign personnel. The FEC’s
proper administration of the reporting and publication of expenditure
reports serve as the predicate federal matter.
7. Policy and Procedural Considerations
(a) Consultation requirements and recommendations
For decades, the Public Integrity Section has coordinated the

Department’s law enforcement efforts against 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
167
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. 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 non-criminal FECA violations, should

be brought to the attention of the Public Integrity Section, which will
forward them to the FEC.
(b) 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. 52 U.S.C. §§ 30107(a)(9) and (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.
168
(c) Non-waiver of the Federal Election Commission’s
civil enforcement authority
The FEC’s enforcement jurisdiction over non-criminal FECA

violations cannot be compromised or waived by the Department of
Justice. 52 U.S.C. § 30107(a)(6) and (e). Accordingly, plea
agreements with defendants who have possible non-criminal 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 30109(a) of Title 52, United States
Code.
(d) 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 its staff, 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
169
likelihood of a positive 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.
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). However, in light of the 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.
(e) 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 order to utilize 18 U.S.C. §§ 371, 1001,
or 1519 for FECA violations, 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. Federal prosecutors 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 at times advised that requests for FEC staff to
appear as prosecution trial witnesses should be made by subpoena. 65
65 This is a departure from the usual practice of relying on oral or written

requests for trial testimony from federal government personnel.
170
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 federal
prosecutor 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.
171
CHAPTER SIX
SENTENCING OF ELECTION CRIMES
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.
S ENTENCING GUIDELINES M ANUAL (U.S.S.G. or sentencing
guidelines).
For sentencing 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 FECA. Campaign financing

offenses that occur after January 25, 2003, are governed by
U.S.S.G. § 2C1.8, a guideline that was promulgated by the United
States Sentencing Commission in response to a congressional
mandate in the BCRA. See United States v. Rowland, Cr. No.
3:14cr79 (JBA), 2015 WL 1275655, at *3 (D. Conn. Mar. 19,
2015) (applying Section 2C1.8 to a FECA violation). 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.
(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 § 1519 (creation of false
172
internal or external records). Conspiracy and fraud offenses are
governed by U.S.S.G. § 2C1.1. Courts have held that Section
2C1.1 applies only to conspiracies to defraud that harm the
government “in a manner similar to bribery offenses,” although
such a limitation is not apparent on the face of the guideline
language. See United States v. Huizar-Velazquez, 720 F.3d 1189,
1191 (9th Cir. 2013); see also United States v. Orsburn, 525 F.3d
543, 544 (7th Cir. 2008) (Section §2C1.1 does not apply to
“simple theft by public officials”); Rowland, 2015 WL 1275655,
at *2 (holding that Section 2C1.8, rather than Section 2C1.1,
applied to defendant’s conviction for obstructing an FEC
investigation).
False statement offenses that occur after January 25,

2003, are governed by FECA guideline pursuant to the cross-
reference for fraudulent statements in U.S.S.G. § 2B1.1(c)(3).
(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 or 2X5.2.
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 of the type of scheme involved or
federal statute it violates. The guideline provides for three
173
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:
1. § 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.
174
Three circuits have approved sentencing calculations
under this guideline:
In United States v. Smith, 231 F.3d 800, 818-21 (11th Cir.

2000), the Eleventh Circuit discussed the application of Section
2H2.1(a)(2) to 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 52 U.S.C.
§ 10307(e), and forging voters’ names on applications for absentee
ballots and on ballots in violation of 52 U.S.C. § 10307(c). Id. at
805-06. The Eleventh Circuit approved the following guideline
calculations made by the 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. Id. at 819-21.
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 52 U.S.C. § 10307(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. Id. at 308, 311.
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
175
obstruction of justice under Section 3C1.1 (two levels), for a
total offense level of twenty. Id. at 311. The defendant was
sentenced to forty-six months of imprisonment. Id. at 305. The
Seventh Circuit held that the district judge’s sentencing analysis
was accurate. Id. at 311.
In United States v. Haynes, Nos. 91-5979, 91-6076, 1992

WL 296782, at *1 (6th Cir. Oct. 15, 1992), 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. Id. at *3-4. The trial court imposed
sentences of thirty months of imprisonment. Id. at *2. The
Sixth Circuit upheld these sentences with the exception of a two-
level reduction for the less culpable defendant. Id.at *3.
Other election fraud convictions have resulted in similar

calculations under the sentencing guidelines. E.g., United States
v. Slone, 411 F.3d 643, 650-51 (6th Cir. 2005) (affirming
defendant’s conviction for vote-buying in violation of 52 U.S.C.
§ 10307(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, 2008 WL 2787415, at *1 (E.D. Ky. July 12, 2000)
(following conviction for vote- buying in violation of 52 U.S.C.
§ 10307(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.
176
LR-92-183 (E.D. Ark. Sept. 12, 1994) (sentencing proceeding)
(following convictions for conspiracy and providing false
information under § 10307(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 Oct. 8, 1991) (sentencing proceeding)
(conviction for multiple-voting in violation of 52 U.S.C.
§ 10307(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
177
twice), and that Subsection (a)(2), not (a)(3), governed all vote
fraud schemes that entailed the casting of several corrupt ballots:
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
178
offense levels under Section 3B1.3. U.S.S.G. § 2H2.1,
cmt. background (1998).
• 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.
For the purpose of sentencing criminal violations of

FECA, offenses are handled under FECA guidelines. The
guideline, U.S.S.G. § 2C1.8, reads as follows:
179
2. § 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
(1) If the value of the illegal transactions

exceeded $6,500, 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
180
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
made or o b t ai n e d t h ro u gh
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.
181
Commentary
Statutory Provisions: 18 U.S.C. § 607; 52 U.S.C.

§§ 30109(d), 30114, 30116, 30117, 30118, 30119, 30120,
30121, 30122, 30123, 30124(a), 30125, 30126. For
additional provision(s), see Statutory Index (Appendix A).
Application Notes:
1. Definitions.— For purposes of this guideline:
“Foreign national” has the meaning given that term in

section 319(b) of the Federal Election Campaign Act of 1971,
52 U.S.C. § 30121(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, 5 2 U.S.C. § 30101 et seq; (B) any
contribution, donation, solicitation, or expenditure of money
or anything of value made in excess of the amount of such
182
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 (52 U.S.C. § 30101(8) and (9)),
respectively.
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 non- monetary 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.
* * *
183
In addition, when creating the guideline in 2003, 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 52 U.S.C.
§ 30109(d)(1)(D) for conduit crimes that violate 52 U.S.C.
§ 30122.
Finally, in commenting on the 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 federal
prosecutor to contact the Public Integrity Section, which will
forward the defendant’s request and proposed civil settlement to
the FEC for its consideration.
184
3. Examples of Application of FECA Sentencing
Guidelines
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 conviction after trial. 66 We have also assumed that the
defendant falls under Criminal History Category I.
(a) 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 52 U.S.C. § 30122.
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 $25,000, it is a
misdemeanor under 52 U.S.C. § 30109(d)(1)(A)(ii). 67
66 As readers know, the majority of federal prosecutions result 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.
67 The offense is a Class A misdemeanor, 18 U.S.C. § 3559(a)(6), to which
the guidelines apply. U.S.S.G. § 1B1.2(a).
185
Total Offense Level: 8
Base Offense Level under § 2C1.8(a): 8
Enhancement under § 2B1.1 for value not exceeding
$6,500: 0
Enhancement for number of illegal transactions under
§ 2C1.8(b)(4) (two conduit contributions of $2,000
each): 0
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 $2,000 and a maximum of
$20,000. A fine above $20,000 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 5 2 U.S.C. § 30122, totaling $4,000.
Since the violations do not exceed $25,000,
this is a misdemeanor that is subject to the
penalty provisions of 52 U.S.C.
§ 30109(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 52 U.S.C.
§ 30109(d)(1)(D)(i) do not apply.
186
(b) Example 2: A typical FECA crime: laundered
corporate contributions
Factual Scenario: A corporate CEO contributes $50,000

in corporate funds to a federal candidate in violation of 52
U.S.C. § 30118 by laundering the money through thirteen
conduits in violation of § 30122, twelve of whom gave
$4,000, and one of whom gave $2,000. The defendant’s
motive was to fulfill a pledge. The conduct results in one
§ 30118 felony violation under § 30109(d)(1)(A)(i) with
an aggregate value of $50,000, and one § 30122 felony
violation under § 30109(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 § 30118
charged under § 30109(d)(1)(A)(i), and thirteen
violations of § 30122 aggregated together as one offense
charged under § 30109(d)(1)(D)(i).

Enhancement for value between $40,000 and
$95,000 under § 2B1.1(b)(1)(D): 6
§ 2C1.8(b)(4) (fourteen violations – one
§ 30118 corporate contribution crime and
thirteen § 30122 conduit crimes): 0
187
(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) § 30118 count (corporate contribution).
Based on an offense level of 14, the guideline
range for a fine under this count is $7,500 to
$75,000. U.S.S.G. § 5E1.2(c)(3).
(b) § 30122 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
(1,000% of aggregate violative amount). 52
U.S.C.
§ 30109(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: $7,500 + $150,000 =
$162,500
(ii) maximum: $75,000 + $500,000 =
$575,000
(c) 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
188
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 30118 charged under
§ 30109(d)(1)(A)(i), and fifty violations of Section 30122
aggregated together as one felony offense charged under
§ 30109(d)(1)(D)(i).
Total offense level: 20

Enhancements for aggregate value of offense between
$40,000 and $95,000 under § 2B1.1(b)(1)(D): 6
Enhancements for number of illegal transactions

under § 2C1.8(b)(4) (Fifty-two offenses – two
§ 30118 corporate contribution offenses and fifty
§ 30122 conduit offenses): 2
Enhancement for intimidation and threats under
§ 2C1.8(b)(5): 4
(1) Incarceration: 33 to 41 months in Zone D
(2) Fine: Because the nature of the conduct would
result in convictions under both the criminal
penalty applicable to conduit violations of
FECA (§ 30109(d)(1)(D)), and the criminal
penalty applicable to non-conduit violations of
FECA (§ 30109(d)(1)(A)), the statutory
189
minimum and maximum penalties for conduit
convictions will apply and result in enhanced
fines. See Example 2 for an illustration of such
a computation.
(d) 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 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 52 U.S.C.
§ 30116(a)(1)(A), charged under Section
30109(d)(1)(A)(i) and 18 U.S.C. § 2.

$250,000 under § 2B1.1(b)(1)(F): 10
Enhancement for number of transactions under
§ 2C1.8(b)(4) (one § 30116 violation): 0
Enhancement for use of special skill under § 3B1.3:
2
190
(1) Incarceration: 33 to 41 months in Zone D.
(2) Fine: between $15,000 and $150,000, calculated
under § 5E1.2(c)(3). 68
(e) Example 5: Major political party donor

seeking a benefit from the government
Factual Scenario: A wealthy individual wishes to

contribute to a national political party committee in
order to win political influence to obtain a pardon for
his best friend. 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).

$400,000 under § 2B1.1(b)(1)(G): 12
§ 2C1.8(b)(4) (one $225,000 excessive
contribution to a national party committee): 0
68 There were no conduit offenses involved in this example. Therefore
the mandatory minimum fine and maximum fining range under Section
30109(d)(1)(D) do not apply.
191
Enhancement for intent to obtain a specific non-
monetary federal benefit from the government
under
§ 2C1.8(b)(3): 2
(2) Fine: Between $10,000 and $100,000, pursuant
to § 5E1.2(c)(3).
(f) Example 6: Foreign agent who gives funds

from foreign government to non-federal
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 52
U.S.C. § 30121 having an aggregate value of $250,000,
192
charged together as one felony violation of Section
30109(d)(1)(A)(i).69

Base Offense Level: 8
Enhancements for aggregate value of offense between
$150,000 and $250,000 under § 2B1.1(b)(1)(G):
10
Enhancements for foreign government source: 4
Enhancements for number of illegal transactions (five
§ 30121 offenses): 0
Enhancement for intent to achieve a non-monetary
benefit from the Government: 2
(This sentence would be capped at 60 months,
the maximum term permitted under Section
30109(d)(1)(A)).
(2) Fine: $20,000 to $200,000, calculated under
Section 5E1.2(c)(3).
69 Although in BCRA Congress made clear that the prohibition in Section

30121 on contributions from foreign nationals also reached donations to
candidates for non-federal office, BCRA did not extend Section 30122 to
encompass conduit donations to non-federal candidates.
193
C. 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. § 2C1.1. This

guideline carries a base offense level of twelve or fourteen and
an enhancement if the conduct involved an elected official or a
person in a high-level decision making or sensitive position. 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. 52 U.S.C. § 2C1.1, cmt. n.7.
2. False Statements to the Federal Election

Commission and False Internal Records
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
194
offenses occurring after January 25, 2003, are governed by
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.
Additionally, both false internal campaign records and false FEC
filings may be charged as an obstruction under 18 U.S.C. § 1519,
which is governed by U.S.S.G. §2J1.2, which, with a base offense
level of 14, likely provides the highest guideline range available in
campaign finance cases.
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. 52 U.S.C. § 30114. However, if the embezzlement is
from a political committee that is not a candidate’s committee,
FECA prohibition in Section 30114 does not apply. In any event,
campaign embezzlements may be prosecuted under the mail or
wire fraud statutes, as a scheme to obtain money or property by
deceit (18 U.S.C. §§ 1341, 1343). Section 30114 crimes
aggregating $25,000 or more are felonies and for sentencing
purposes fall under 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).
195
Finally, a campaign embezzlement can be addressed under
the false statements statute, 18 U.S.C. §§ 1001 and 1519, 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. 52 U.S.C. § 30104(b).
Thus, a person who embezzles contributions from a committee
willfully causes the committee’s treasurer to create false internal
records and 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 and 1519. False
statements involving FECA violations fall under FECA
guideline, U.S.S.G. § 2C1.8.
D. 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 defendant is convicted of a felony to the chief state
election official in the state where the defendant resides. 52
U.S.C. § 20507(g). The notice must include basic information
regarding the defendant, the court, the offense, and the sentence.
52 U.S.C. § 20507(g)(2). In addition, if the conviction is
overturned, the election official must be sent written notice of the
vacation of conviction. 52 U.S.C. § 20507(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.
196
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. 70
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 Judge-Executive Donnie Newsome was the culmination
of a series of vote-buying 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 52
U.S.C. § 10307(c). The investigation 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.
70 The Big Sandy News, Eastern Kentucky’s oldest newspaper and the most
widely circulated non-daily in Kentucky, was established in 1885 in Louisa, Kentucky.
197
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.71
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 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,
71 The sentencing judge stated that had it not been for the prosecution’s
recommendation for a downward departure, he was prepared to sentence Newsome to
five years of imprisonment.
198
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.
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.
199
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 for the 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
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.
200
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.
201
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 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. Fed.
Election Comm’n, 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. Id. at 115-132. 72
* * *
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. Root, Addresses on Government and Citizenship 143 (R.
Bacon & J. Scott eds.1916))....
72
The text presented here has been edited for conciseness. For 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.
202
[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 575-76.
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.” Fed. Election Comm’n v.
Nat’l 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 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
203
the democratic process,” Automobile Workers, supra, at 577-
78, 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.” Nat’l
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 578-84. 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.” Nat’l Right to Work,
supra, at 209.
In early 1972 Congress continued its steady

improvement of the national election laws by enacting FECA.
As first 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
204
general treasury funds 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, 409-10
(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,
Vice- President and Members of Congress.” Buckley v.
Valeo, 519 F.2d 821, 831 (D.C. Cir. 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 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 831-34.
205
The Court 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 837-41.
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 840-41. This Court, however,
concluded that each set of limitations raised 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 20-22. 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
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
206
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. 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
207
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
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
208
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 “non-federal 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 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 non-
federal 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
209
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.
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.
210
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 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
211
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…
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 or individuals 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
212
to give money to non-profit 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.
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
213
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
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
214
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
restrictions on sham issue advocacy by non-party 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.
215
APPENDIX B
STATUTES
EXCERPTS FROM TITLE 18 OF

THE 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
216
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.
*****
§ 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.
*****
217
§ 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 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
218
Whoever, being such officer or member, prevents or attempts to
prevent by force, threat, intimidation, advice or otherwise any 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.
*****
219
§ 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 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
220
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.
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.
221
*****
§ 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, 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
222
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.
(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
223
(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 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
[52 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
224
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 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
225
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.
*****
§ 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.
226
(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.
(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
227
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 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.
228
(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 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.
229
(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 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.
*****
230
§ 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 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.
231
*****
§ 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.
*****
§ 1519. Destruction, alteration, or falsification of records in

Federal investigations and bankruptcy
Whoever knowingly alters, destroys, mutilates, conceals, covers up,
falsifies, or makes a false entry in any record, document, or tangible
object with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States or any
case filed under title 11, or in relation to or contemplation of any such
matter or case, shall be fined under this title, imprisoned not more
than 20 years, or both.
*****
§ 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
232
(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
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.
233
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 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
234
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.
*****

(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
defray qualified 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.
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(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.
236
EXCERPTS FROM TITLE 52, UNITED STATES
CODE
§ 10307. 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,
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
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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.
*****

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
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,
miscellaneous receipts (pursuant to section 3302 of Title 31),
notwithstanding any other law), or imprisoned not more than 5 years,
or both.
*****
238
§ 30101. 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 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
239
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 does not include the
Federal Government or any authority of the Federal Government.
240
*****
(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 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).
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(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.
*****
§ 30102. 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 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.
242
(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 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
243
(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 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–
244
(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 under paragraph (1) and shall compile and file such
designations, statements, and reports in accordance with this
Act.
*****
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§ 30104. 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;
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*****
(4) for the reporting period and the calendar year (or election
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
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;
*****
247
(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).
(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
248
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
$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.
*****
249
§ 30109. 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
year shall be fined under Title 18, 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), 30122, 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 30122 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);
250
(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).
(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, 0the 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.
*****
251
§ 30114. 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 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;
252
(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.
*****
§ 30116. 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–
253
(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
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 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
254
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
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
255
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 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
256
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.
(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
257
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.
*****
§ 30118. Contributions or expenditures by national banks,

corporations, or labor organizations
(a) In General
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 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
258
to any contribution or expenditure by the corporation, national
bank, or labor organization, as the case may be, prohibited by this
section.
(b) Definitions; Particular Activities Prohibited or
Allowed
(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
259
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 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
260
(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 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
261
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
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.
*****
262
§ 30119. 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 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
263
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.
*****
§ 30120. 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
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 73
(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
73 So in original. The word "or" probably should appear at the end of par. (2).
264
communication is paid for by such other persons and
authorized by such authorized political committee;
(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;
(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
265
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
(i) 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.
(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.
266
*****
§ 30121. 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.
(b) “Foreign National” Defined
As used in this section, the term “foreign national” means–
(3) 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
(4) 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.
*****
267
§ 30122. 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.
*****
§ 30123. 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.
*****
§ 30124. 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 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
268
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).
*****
§ 30125. 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, 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
269
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 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,
270
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 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
271
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
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
272
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.
*****
§ 30145. 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.
273
APPENDIX C
EDITORIAL RECLASSIFICATION TABLE

FOR TITLE 52
Title Former Designation Current Designation
Definitions 2 U.S.C. § 431 52 U.S.C. § 30101

Organization of political
2 U.S.C. § 432 52 U.S.C. § 30102
committees
Reporting requirements 2 U.S.C. § 434 52 U.S.C. § 30104
Enforcement 2 U.S.C. § 437g 52 U.S.C. § 30109
Use of contributed amounts for

2 U.S.C. § 439a 52 U.S.C. § 30114
certain purposes
Limitations on contributions and
2 U.S.C. § 441a 52 U.S.C. § 30116
expenditures
Contributions or expenditures by
national banks, corporations, or 2 U.S.C. § 441b 52 U.S.C. § 30118
labor organizations
Contributions by government
2 U.S.C. § 441c 52 U.S.C. § 30119
contractors
Publication and distribution of
statements and solicitations;
2 U.S.C. § 441d 52 U.S.C. § 30120
charge for newspaper or magazine
space
Contributions and donations by
2 U.S.C. § 441e 52 U.S.C. § 30121
foreign nationals
Contributions in name of another
2 U.S.C. § 441f 52 U.S.C. § 30122
prohibited
Limitation on contribution of
2 U.S.C. § 441g 52 U.S.C. § 30123
currency
Fraudulent misrepresentation of
2 U.S.C. § 441h 52 U.S.C. § 30124
campaign authority
Soft money of political parties 2 U.S.C. § 441i 52 U.S.C. § 30125
Period of limitations 2 U.S.C. § 455 52 U.S.C. § 30145
Prohibited Acts 42 U.S.C. § 1973i 52 U.S.C. § 10307
Criminal Penalties 42 U.S.C. § 1973gg-10 52 U.S.C. § 20511
274
APPENDIX D
TABLE OF CASES
CASES
AFL-CIO v. Fed. Election Comm'n,
628 F.2d 97 (D.C. Cir. 1980) .................................................... 154
Anderson v. United States, 417 U.S. 211 (1974).................... 1, 36
Austin v. Michigan Chamber of Commerce,
494 U.S. 652 (1990) .................................................................. 133
Bialek v. Mukaskey, 529 F.3d 1267 (10th Cir. 2008) .................... 151
Biller v. Merit Sys. Prot. Bd., 863 F.2d 1079 (2d Cir. 1988) ...... 114
Blaylock v. Merit Sys. Prot. Bd.,
851 F.2d 1348 (11th Cir. 1988) ............................................... 114
Blitz v. United States, 153 U.S. 308 (1894) .................................... 36
Blockburger v. United States, 284 U.S. 299 (1932) ................. 43
Branti v. Finkel, 445 U.S. 507 (1980) .................................. 100, 109
Brehm v. United States, 196 F.2d 769 (D.C. Cir. 1952) ................ 101
Buckley v. Valeo, 424 U.S. 1 (1976) ....................................... passim
Buckley v. Valeo,
519 F.2d 821 (D.C. Cir. 1975) (en banc) ........................... 205, 206
Burroughs v. United States, 290 U.S. 534 (1934) .............. 122, 203
Cheek v. United States, 498 U.S. 192 (1991) .......................... 153, 154
Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010) .......................................................... 133–135
Civil Serv. Comm. v. Letter Carriers,
413 U.S. 548 (1973) .................................................................. 112
Connick v. Myers, 461 U.S. 138 (1983) ........................................ 108
Cort v. Ash, 422 U.S. 66 (1975) ................................................. 134
Crolich v. United States, 196 F.2d 879 (5th Cir. 1952).................. 35
Dennis v. United States, 384 U.S. 855 (1966) .............................. 162
Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981) ...................... 36
Elrod v. Burns, 427 U.S. 347 (1976) ............................ 100, 101, 109
Evans v. United States, 504 U.S. 255 (1992) ............................... 122
Ex parte Curtis, 106 U.S. 371 (1882) ........................................... 101
Ex parte Siebold, 100 U.S. 371 (1880)...................................... 19, 36
Ex parte Yarborough, 110 U.S. 651 (1884)................................ 19, 33
275
Fed. Election Comm’n v. Wis. Right to Life,
551 U.S. 449 (2007) .................................................................. 135
Fed. Election Comm’n v. Nat'l Right to Work Comm.,
459 U.S. 197 (1982). ......................................................... 203, 204
Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S.
238 (1986)................................................................................. 126
Fieger v. U.S. Attorney General, 542 F.3d 1111 (6th Cir. 2008) .. 151
Fields v. United States, 228 F.2d 544 (4th Cir. 1955) .................... 35
First Nat'l Bank of Boston v. Bellotti,
435 U.S. 765 (1978) ................................................................. 134
Fotie v. United States, 137 F.2d 831 (8th Cir. 1943) ..................... 63
Guinn v. United States, 238 U.S. 347 (1915) ............................. 20
Haas v. Henkel, 216 U.S. 462 (1910) ........................................... 162
Hammerschmidt v. United States, 265 U.S. 182 (1924) ........... 162
In re Coy, 127 U.S. 731 (1888)........................................ 19, 36, 56
Ingber v. Enzor, 664 F. Supp. 814 (S.D.N.Y. 1987) ............ 26
Kennedy v. Lynd, 306 F.2d 222 (5th Cir. 1962) ............................. 76
Langer v. United States, 76 F.2d 817 (8th Cir. 1935)................ 100
Marcus v. Holder, 574 F.3d 1182 (9th Cir. 2009)......................... 151
McConnell v. Fed. Election Comm'n,
540 U.S. 93 (2003) ............................................................... passim
McCormick v. United States, 500 U.S. 257 (1991) ....................... 122
McCutcheon v. Fed. Election Comm'n,
134 S. Ct. 1434 (2014).............................................................. 130
McIntosh v. United States, 385 F.2d 274 (8th Cir. 1967) ................ 66
McNally v. United States, 483 U.S. 350 (1987) ...................... passim
Nat'l Right to Work Comm. v. Fed. Election Comm'n, 716 F.2d
1401 (D.C. Cir. 1983)............................................................... 154
Newberry v. United States, 256 U.S. 232 (1918) ......................... 20
Nixon v. Shrink Missouri PAC, 528 U.S. 377 (2000).................... 131
Oregon v. Mitchell, 400 U.S. 112 (1970) .................................... 36
Perrin v. United States, 444 U.S. 37 (1979) .................................. 64
Pipefitters v. United States, 407 U.S. 385 (1972).............. 135, 205
Ratzlaf v. United States, 510 U.S. 135 (1994) ......................... 153, 154
Reynolds v. Sims, 377 U.S. 533 (1964) .................................... 20, 36
Rutan v. Republican Party of Illinois,
497 U.S. 62 (1990) .................................................... 100, 101, 108
Ryan v. United States, 99 F.2d 864 (8th Cir. 1938)........................ 35
276
Schwartz v. Upper Deck Co., 183 F.R.D. 672 (S.D. Cal. 1999)..... 64
Skilling v. United States, 561 U.S. 358 (2010) .......................... 21, 67
SpeechNow.org v. Fed. Election Comm’n,
599 F.3d 686 (D.C. Cir. 2010) .......................................... 132, 134
United Public Workers v. Mitchell, 330 U.S. 75 (1947) ............. 112
United States v. Anderson, 481 F.2d 685 (4th Cir. 1973) ........ 20, 37
United States v. Auto. Workers,
352 U.S. 567 (1957) ............................................. 135, 202, 203, 204
United States v. Canales, 744 F.2d 413 (5th Cir. 1984) ........... 44
United States v. Fin. Comm. to Re-elect the President,
507 F.2d 1194 (D.C. Cir. 1974) ........................................ 160
United States v. Gradwell, 243 U.S. 476 (1917) ........................ 20
United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990) ....... passim
United States v. Howard, 774 F.2d 838 (7th Cir. 1985) ................. 37
United States v. Ingber,
Cr. No. 86-1402 (2d Cir. Feb. 4, 1987) ................................ 26
United States v. Kelley, 395 F.2d 727 (2d Cir. 1968) .................... 66
United States v. Malmay, 671 F.2d 869 (5th Cir. 1982) .......... 19, 45
United States v. Mason, 673 F.2d 737 (4th Cir. 1982) ............ 19, 43
United States v. Olinger,
759 F.2d 1293 (7th Cir. 1985)............................... 20, 37, 45, 46
United States v. Pintar, 630 F.2d 1270 (8th Cir. 1980) ............ 100
United States v. Prude, 489 F.3d 873 (7th Cir. 2007) ............. 58
United States v. Webb,
689 F. Supp. 703 (W.D. Ky. 1988) ........................ 26, 69, 71
United States v. Weston, 417 F.2d 181 (4th Cir. 1969) ................. 35
United States v. Woodward, 469 U.S. 105 (1985)....................... 165
United States v. Adams, 722 F.3d 788 (6th Cir. 2013) ..................... 91
United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981);............. 66
United States v. Bathgate, 246 U.S. 220 (1918)......................... 20, 36
United States v. Blanton, 77 F. Supp. 812 (E.D. Mo. 1948)........... 44
United States v. Boards,
10 F.3d 587 (8th Cir. 1993) ...................................... 30, 41, 42, 49
United States v. Boards,
Cr. No. LR-92-183 (E.D. Ark. Sept. 12, 1994) ....................... 177
United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981) ........ 41, 43
United States v. Bracewell,
Cr. No. 91-57-N (M.D. Ala., May 9, 1991) ........................... 166
277
United States v. Bradberry, 517 F.2d 498 (7th Cir. 1975) ............. 35
United States v. Braddock, Crim. No. 12-cr-157,
2013 WL 4441531 (D. Conn. Aug. 14, 2013) .......................... 160
United States v. Brown, 49 F.3d 1162 (6th Cir. 1995) ............. 35–36
United States v. Bryan, 524 U.S. 184 (1998) ........................... passim
United States v. Burleson, 127 F. Supp. 400 (E.D. Tenn. 1954) .. 101
United States v. C.I.O., 335 U.S. 106 (1948) ............................... 135
United States v. Campbell, 845 F.2d 782 (8th Cir. 1988) .............. 45
United States v. Carmichael, 685 F.2d 903 (4th Cir. 1982). ..... 41, 45
United States v. Chestnut, 533 F.2d 40 (2d Cir. 1976) ................. 158
United States v. Cianciulli,
482 F. Supp. 585 (E.D. Pa. 1979) ............................ 24, 40, 45, 77
United States v. Cicco, 10 F.3d 980 (3d Cir. 1993). ...................... 110
United States v. Cicco, 938 F.2d 441 (3d Cir. 1991) ............ 109, 110
United States v. Classic, 313 U.S. 299 (1941).............. 20, 33, 34, 38
United States v. Cole, 41 F.3d 303 (7th Cir. 1994) .................. passim
United States v. Collins, 685 F.3d 651 (7th Cir. 2012) .................. 40
United States v. Colvin, 353 F.3d 569 (7th Cir. 2003) .................... 35
United States v. Cooper, 677 F. Supp. 778 (D. Del. 1988) ............. 68
United States v. Coppola, 671 F.3d 220 (2d Cir. 2012) ................. 70
United States v. Danielczyk,
788 F. Supp. 2d 472 (E.D. Va. 2011).................................. 153, 154
United States v. Danielczyk,
917 F. Supp. 2d 573, 578-80 (E.D. Va. 2013) ........................... 123
United States v. Dansker, 537 F.2d 40 (3d Cir. 1976) ................... 64
United States v. Daugherty, 952 F.2d 969 (8th Cir. 1991) .......... 45
United States v. Davis, 780 F.2d 838 (10th Cir. 1985) .................. 66
United States v. DeFries, 43 F.3d 707 (D.C. Cir. 1995) .............. 72
United States v. Doherty, 867 F.2d 47 (1st Cir. 1989) ............. 68, 70
United States v. Douglas, No. 309-014,
2010 WL 737330 (S.D. Ga. Mar. 2, 2010). ................................ 39
United States v. Ferrara, 701 F. Supp. 39 (E.D.N.Y. 1988) ........... 68
United States v. Franklin, 188 F.2d 182 (7th Cir. 1951) ................ 63
United States v. Gabriel, 125 F.3d 89 (2d Cir. 1997 ..................... 161
United States v. Garcia, 719 F.2d 99 (5th Cir. 1983) ........ 43, 44, 45
United States v. George, No. 86–CR–123,
1987 WL 48848 (W.D. Ky. Oct. 20, 1987) ..................... 26, 70
United States v. Goodrich, 871 F.2d 1011 (11th Cir. 1989)........... 70
278
United States v. Granberry,
908 F.2d 278 (8th Cir. 1990) ............................................ 68, 71
United States v. Hankin, 607 F.2d 611 (3d Cir. 1979) ............... 142
United States v. Hansen, 772 F.2d 940 (D.C. Cir. 1985) .............. 160
United States v. Haynes, Nos. 91-5979, 91-6076,
1992 WL 296782 (6th Cir. Oct. 15, 1992) .......................... passim
United States v. Hogue, 812 F.2d 1568 (11th Cir. 1987) ....... 47
United States v. Hsia, 176 F.3d 517 (D.C. Cir. 1999) ............ passim
United States v. Huizar-Velazquez,
720 F.3d 1189 (9th Cir. 2013) .................................................. 173
United States v. Int’l Union of Operating Eng.,
638 F.2d 1161 (9th Cir. 1979)................................................... 151
United States v. Jabara, 644 F.2d 574 (6th Cir. 1981) .................. 66
United States v. Kanchanalak,
192 F.3d 1037 (D.C. Cir. 1999) ................................................. 160
United States v. Karigiannis, 430 F.2d 148 (7th Cir. 1970) .......... 64
United States v. Karlsen, Cr. No. 89-353
(D. Az., indictment filed Oct. 18, 1989) ................................. 166
United States v. Knight, 490 F.3d 1268 (11th Cir. 2007) ................ 64
United States v. Lewin, 467 F.2d 1132 (7th Cir. 1972) ................. 44
United States v. Manzo, 851 F. Supp. 2d 797 (D.N.J. 2012).......... 65
United States v. McCranie,
169 F.3d 723 (11th Cir. 1999). ....................................... 21, 39, 44
United States v. McLean, 808 F.2d 1044 (4th Cir. 1987).............. 36
United States v. McMillan, 600 F.3d 434 (5th Cir. 2010) .............. 71
United States v. Morado, 454 F.2d 167 (5th Cir. 1972) ................. 34
United States v. Mosley, 238 U.S. 383 (1915)................................ 34
United States v. Nader, 542 F.3d 713 (9th Cir. 2008) ..................... 65
United States v. Nathan, 238 F.2d 401 (7th Cir. 1956) .................. 36
United States v. North Carolina Republican Party,
No. 91-161-Civ-5F (E.D.N.C. Feb. 27, 1992) ................. 52–53
United States v. O’Brien, 994 F. Supp. 2d 167 (D. Mass 2014) ..... 68
United States v. O’Donnell, Crim. No. 08-872,
2009 WL 9041223 (C.D. Cal.) ......................................... 141, 160
United States v. Odom,
736 F.2d 104 (4th Cir. 1984) ............................... 28, 45, 46, 51
United States v. Orsburn, 525 F.3d 543 (7th Cir. 2008) .............. 173
279
United States v. Passodelis,
615 F.2d 975 (3d Cir. 1980) ........................................... 142, 158
United States v. Peskin, 527 F.2d 71 (7th Cir. 1975) ............... 66
United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974) ................ 64
United States v. Price, 383 U.S. 787 (1966) ................................ 38
United States v. Ratcliff,
488 F.3d 639 (5th Cir. 2007) ........................................... passim
United States v. Rowland, Cr. No. 3:14cr79 (JBA),
2015 WL 1275655 (D. Conn. Mar. 19, 2015) .................. 172, 173
United States v. Salisbury,
983 F.2d 1369 (6th Cir. 1993) ........................................... passim
United States v. Salisbury,
Cr. No. 2-90-197 (S.D. Ohio Oct. 8, 1991) ............................... 177
United States v. Saylor, 322 U.S. 385 (1944) ................................. 34
United States v. Schermerhorn,
713 F. Supp. 88 (S.D.N.Y. 1989) .............................. 26, 69, 71
United States v. Slone, 411 F.3d 643 (6th Cir. 2005) .............. passim
United States v. Smith, 231 F.3d 800 (11th Cir. 2000)............. passim
United States v. Sorich, 523 F.3d 702 (7th Cir. 2008) ............. 68, 70
United States v. Sparkman, Cr. No. 99-30,
2008 WL 2787415, (E.D. Ky. July 12, 2000) ........................... 176
United States v. Starnes, 583 F.3d 196 (3d Cir. 2009)............. 153, 161
United States v. Stollings, 501 F.2d 954 (4th Cir. 1974) ................ 20
United States v. Taff, 400 F. Supp. 2d 1270 (D. Kan. 2005) ........ 149
United States v. Thayer, 209 U.S. 39 (1908) ................................ 105
United States v. Thomas, 510 F.3d 714 (7th Cir. 2007) .................. 43
United States v. Thomas, 686 F. Supp. 1078 (M.D. Pa. 1988) .. 68, 71
United States v. Thomas, Cr. No. 05-0423
(D.D.C., information filed November 30, 2005) ...................... 166
United States v. Thompson, No. 6:09–16–KKC,
2013 WL 5528827 (E.D. Ky. Oct. 4, 2013) ............................... 35
United States v. Tobin, No. 04-216-01 (SM), 2005 WL 3199672
(D.N.H. Nov. 30, 2005) ........................................................ 35, 57
United States v. Townsley,
843 F.2d 1070 (8th Cir. 1988) ........................................ 34, 37, 56
United States v. Turner,
459 F.3d 775 (6th Cir. 2006) ................................ 25, 69, 70, 71
United States v. Wadena, 152 F.3d 831 (8th Cir. 1998) ........... 20, 37
280
United States v. Welch, 327 F.3d 1081, 1092 (10th Cir. 2003) ...... 66
United States v. Whitney,
229 F.3d 1296 (10th Cir. 2000) ........................................ 35
United States v. Whittemore,
776 F.3d 1074, 1080 (9th Cir. 2015) ......................................... 160
United States v. Whittemore,
944 F. Supp. 2d 1003 (D. Nev. 2013) ........................... 152–54, 160
United States v. Wurzbach, 280 U.S. 396 (1930)...................... 101
Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015)............................... 136
Walker v. United States, 93 F.2d 383 (8th Cir. 1937) ................... 35
Westchester Cnty. Indep. Party v. Astorino,
No. 13–CV–7737(KMK), 2015 WL 5883718
(S.D.N.Y. Oct. 8, 2015) ............................................... 25, 69–70
Whalen v. United States, 445 U.S. 684 (1980) ....................... 43
Wilkins v. United States, 376 F.2d 552 (5th Cir. 1967) (en banc) ... 54
Williams v. United States, 341 U.S. 97 (1951) ......................... 34, 38
281

US Federal Prosecution of Election Offenses 2017

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US Federal Prosecution of Election Offenses 2017

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Federal

Richard C. Pilger, Director

PREFACE .............................................................................. xii

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

HISTORICAL BACKGROUND ........................... 19

CHAPTER THREE: PATRONAGE CRIMES .................. 99

HISTORICAL BACKGROUND ........................... 99

CHAPTER FOUR: ELECTION DAY PROCEDURES .. 116

CHAPTER FIVE: CAMPAIGN FINANCE CRIMES ..... 122

INTRODUCTION ............................................... 122

CHAPTER SIX: SENTENCING OF ELECTION

OVERVIEW ......................................................... 172

CHAPTER SEVEN: CONCLUSION – WHY

APPENDIX A: EXCERPT FROM McCONNELL v.

APPENDIX C: EDITORIAL RECLASSIFICATION

APPENDIX D: TABLE OF CASES ................................... 275

This eighth edition of Federal Prosecution of Election

Among other things, this edition accounts for important

This monograph provides only internal Department of

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

Our constitutional system of representative government only

There are several reasons why election crime prosecutions

• Election crimes usually occur largely in public.

• Election crimes often involve many players. For example,

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

TYPES OF ELECTION CRIMES

Election fraud usually involves corruption of one of three

Most election fraud aims at ensuring that important elected

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

Patronage crimes are most prevalent when one political faction

The federal campaign financing laws are embodied within

As amended, FECA applies to virtually all financial

FECA contains its own criminal sanctions, which

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

4. Civil Rights Crimes

Schemes to deprive minorities of the right to vote are

In addition to civil rights crimes, federal law provides

The federal government asserts jurisdiction over an

Election crime cases tend to be long-term projects focusing

Federal jurisdiction over election fraud is easily established

The absence of a federal candidate from the ballot can

Federal jurisdiction over campaign financing offenses

ADVANTAGES OF FEDERAL PROSECUTION

The Constitution confers upon the states primary

These factors might suggest that the prosecution of

Four characteristics of the federal criminal justice

• Federal grand juries, the secrecy requirements of

• Resources to handle the labor-intensive investigations

• Detachment from local political forces and interests.

FEDERAL ROLE: PROSECUTION, NOT

The principal responsibility for overseeing the election

The federal prosecutor’s role in matters involving

1 When election offenses are driven by animus based on race, ethnicity,

Because the federal prosecutor’s function in the area of

In addition, the federal prosecutor has no authority to

Not all irregularities in the election process are

Determining whether an election fraud allegation

(1) Is criminal prosecution the appropriate remedy for

(2) Is there potential federal jurisdiction over the