This week brought two reminders that the Federal Election Commission is not the only government entity with the ability to prosecute violations of the federal campaign finance laws. The Department of Justice, which has jurisdiction over some “knowing and willful” campaign finance violations, obtained two guilty pleas in so-called “straw donor” cases.
- On Tuesday, conservative author and filmmaker Dinesh D’Souza pleaded guilty to making $20,000 in illegal campaign contributions to a Republican candidate for U.S. Senate. On the day his trial was to begin, D’Souza admitted that he had two associates contribute to Wendy Long’s campaign with the understanding that he would reimburse them. D’Souza signed a plea agreement stating he would not challenge any sentence between 10 and 17 months.
- In another recent case that has received less press coverage, the CFO of an Ohio corporation pleaded guilty to using employees as straw contributors to funnel nearly $200,000 in political contributions to U.S. Rep. Jim Renacci and 2012 U.S. Senate candidate Josh Mandel.
Unlike the FEC, which uses its civil power to levy fines against people and organizations that violate campaign finance laws, the DOJ has the power to criminally prosecute intentional violations. But the legal barrier to criminal prosecution is high, because the prosecution must prove beyond a reasonable doubt that the defendant knew that what they were doing was against the law.
And in cases where information is scant, it can be difficult to discern which agency has jurisdiction. If it is unclear whether a violation was “knowing and willful,” how should the DOJ and FEC go about sharing information relevant to the case? This has been a major source of contention at the FEC—one that flared up before the composition of the Commission recently changed—but was never fully resolved.
Proponents of campaign finance regulation frequently criticize the FEC for failing to forcefully police the campaign finance landscape. The agency currently faces a significant backlog of unresolved enforcement cases, and Commissioners are voting on fewer enforcement matters than in previous years.
But the D’Souza and Ohio cases demonstrate that other avenues for enforcement exist besides the FEC’s administrative process.