Since the mail fraud statute rests jurisdictionally on Congress's power to regulate the mails, rather than on whatever authority Congress may have over the electoral process itself, a scheme to intentionally disrupt a purely local election may be reached under this statute, provided of course that the mails were used. Badders v. United States, 240 U.S. 391 (1916); United States v. States, supra; United States v. Clapps, supra.

The laws of most States require that the mails be used to cast, and often to apply for, absentee ballots. Thus, the mail fraud statute is particularly useful in prosecuting schemes to cast irregular absentee ballots. However, with this sort of case care should be taken to avoid, if possible, predicating substantive mail fraud counts on mailings which are both required by law, and which are not fraudulent in themselves. Parr v. United States, 363 U.S. 370 (1960); United States v. Curry, supra at 411-413. The mailing for tabulation of absentee ballots which have been manipulated, altered, obtained through vote buying, or which have otherwise been handled in violation of applicable state laws, fulfills this standard. So also does the mailing of absentee ballot applications which contain false information concerning entitlement to vote absentee, or which have been submitted as a result of voter bribery.

The Department of Justice has long followed a policy of not using the mail fraud law to prosecute allegedly erroneous or defamatory campaign literature. The mail fraud law is also not an appropriate means for asserting federal criminal jurisdiction over promises and representations made during an active political campaign which are inflated, or even those that are intentionally false. The reasons for this policy are threefold: (1) Representations and promises made by or on behalf of candidates during political campaigns are traditionally exaggerated and/or overly optimistic. Campaign rhetoric is not ordinarily imbued with the degree of reliance potential as statements made in commercial or fiduciary contexts. (2) Proof of a mail fraud case that rests on allegedly false campaign rhetoric would necessarily turn on the truth or falsity of the representations at issue. A federal felony prosecution is not an appropriate forum for the litigation or resolution of such matters. (3) The subject of campaign practices is regulated by the Federal Election Campaign Act. Violations of the FECA may be federal crimes if they are committed with the degree of specific intent required by the FECA's narrow penal sanction, 2 U.S.C. 437g(d). However, these violations are misdemeanors, not felonies; and they cover only the failure to accurately attribute political statements (2 U.S.C 441d) and intentional misrepresentation of authority to speak for a federal candidate (2 U.S.C. 441h). Accordingly, use of the mail fraud statute outside the area of tampering with the casting and tabulation of ballots is discouraged.

The mail fraud statute may also be used to prosecute schemes by purported political fundraisers to embezzle money they have solicited for stated political causes. United States v. Curry, 681 F.2d 406 (5th Cir. 1982). The Curry decision also can be read as holding that a scheme involving nothing more than falsely reporting campaign contributions pursuant to state or federal financial disclosure

laws may be prosecutable as mail frauds. However, at this time the Criminal Division does not encourage use of the mail fraud statute to address the subject of financial disclosure or reporting.

18 U.S.C. 597. Expenditures to influence voting

This statute prohibits making or offering to make an expenditure to any person to vote or withhold a vote for any candidate for federal office. It also prohibits soliciting, accepting or receiving any such expenditure. It applies to votebuys directed at all stages of the nomination and election process. The medium or exchange used to buy the votes in question may be anything of value. "Non-willful" violations of Section 597 are misdemeanors punishable by fines up to $1,000 and/or imprisonment up to one year. "Willful" violations are felonies punishable by fines up to $10,000 and/or imprisonment up to two years. The legal distinction between “willful” and “non-willful” vote-buying is not explained in the statute. The judicial authority which does exist on the subject indicates that vote-buying is a noxious, destructive and corrupt activity that clearly involves moral turpitude. See e.g. United States v. Blanton, 77 F.Supp. 812 (E.D. Mo. 1984); see also United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981); and United States v. Carmichael, 685 F.2d 903 (4th Cir. 1982). As such the Criminal Division considers all vote-buying transactions to be actionable as felonies under this law. A prosecutive decision to charge such an offense as a “non-willful" misdemeanor is therefore essentially a matter of leniency. A literal reading of Section 597 is theoretically capable of reaching anything that can be characterized as an "expenditure" which is made for the purpose of affecting the voting process at any proceeding that can be characterized as an “election." This broad, and constitutionally questionable, interpretation was not always possible. Prior to 1980, Section 597 was subject to a set of general definitions (18 U.S.C. 591) that limited its scope to payments made for the specific purpose of influencing voting decisions with respect to candidates for federal office. See United States v. Bruno, 144 F.Supp. 593 (N.D. Ill. 1942); United States v. Viola, 126 F.Supp. 718 (W.D. Pa. 1955); United States v. Foote, 42 F.Supp. 717 (1942). However, these restrictive definitions were repealed through an obscure subsection of the 1979 Federal Election Campaign Act Amendments, Public Law 96-187. The repeal of this definitional section has thus for the first time left 18 U.S.C. 597 technically unencumbered by restrictive concepts that formerly confined its scope to the narrow federal context.

It is the position of the Criminal Division that the repeal of this definitional section was not intended by Congress to create in 18 U.S.C. 597 a vote-buying statute of virtually unlimited scope. Rather, it seems that the reason Congress repealed 18 U.S.C. 591 was out of a belief that the definitions contained therein were redundant to the definitional section governing the Federal Election Campaign Act, 2 U.S.C. 431. The House Report accompanying what eventually became Public Law 96-187 states quite plainly that after the repeal of Section 591, the substantive criminal statutes that used to be governed by it would henceforth be subject to the FECA's definitional section. See House Report

96-422, 96th Cong., 1st sess., 25. The defined terms "candidate” and “expenditure" in 2 U.S.C. 431(2) and 431(9) respectively are clearly confined to a federal context. Accordingly, the Criminal Division continues to view 18 U.S.C. 597 as a narrow vote-buying law that applies only to expenditures made for the specific purpose of influencing electoral decisions with respect to federal candidates.

As such, Section 597 is most useful as a plea bargaining alternative to 42 U.S.C. 1973i(c), which as noted earlier also addresses vote-buying but is a fiveyear felony offense.

Although Section 597 and Section 1973i(c) deal with the same basic criminal act-vote-buying-they are technically separate crimes. The fact that an offender violates by a single transaction several regulatory controls devised by Congress does not render the several regulatory controls a single unitary offense. Gore v. United States, 357 U.S. 386, 389 (1958). The test for determining whether two similar statutes comprise separate and distinct offenses is whether each provision requires proof of an element that the other one does not. United States v. Blockburger, 284 U.S. 299 (1932); Whalen v. United States, 455 U.S. 684 (1980). In this regard, Section 597 requires proof of two elements that Section 1973i(c) does not: that the payment in question was made for the purpose of influencing a federal election, and that it in fact did influence a federal election at least indirectly. Section 1973i(c) requires proof of one element which Section 597 does not: that the defendant in question acted "knowingly and willfully," with specific intent to violate the law. However, while they be technically distinct offenses, the Criminal Division believes that both statutes should not ordinarily be pled in the same indictment.

18 U.S.C. 594. Intimidation of voters

Section 594 is a relatively narrow law which prohibits the intimidation or coercion of voters for the purpose of interfering with the right to vote for a candidate for federal office at any election held solely or in part for the purpose of selecting a federal candidate. The statute is not applicable to primaries. It is a misdemeanor, violations of which are punishable by a fine of up to $1,000 and/or up to one year in prison.

Section 594 is the only federal crime dealing specifically with nonviolent voter intimidation. The prohibition against voter intimidation contained in the Voting Rights Act, 42 U.S.C. 1973i(b), has a broader scope. However, this subsection is enforced only through civil penalties pursuant to 42 U.S.C. 1973j(d). It has no self-contained criminal penalty, nor is it covered by the Voting Rights Act's residual criminal penalty in 42 U.S.C. 1973j(c).

In appropriately aggravated situations, voter intimidation may be prosecuted under 18 U.S.C. 245(b), 18 U.S.C. 241, or possibly as multiple-voting offenses under 42 U.S.C 1973i(e).

18 U.S.C. 245(b)(1)(A). Federally protected activities

This statute prohibits interference by violence or threats of violence with the exercise of one's right to vote, to run for office, or to be a poll watcher or other election official, in any federal, state, or local election. It does not cover threats or retaliation taken against campaign workers for or because their campaignrelated activities.

Prior to commencing any prosecution under this section, the Attorney General or Deputy Attorney General must certify in writing that in his judgment prosecution by the United States is "in the public interest and necessary to secure substantial justice." Section 245(a)(1). To satisfy this statutory criteria of federal need, a matter must ordinarily involve conduct that directly interfered with the integrity of a federal election, or that entailed an assault on a federal candidate. As a general principle, acts of violence committed in the context of election campaigns are preferably prosecuted by local authorities under applicable state laws.

Violations of Section 245(b)(1)(A) are misdemeanors, punishable by fines up to $1,000 and/or imprisonment up to one year. If injury or death results, this offense is a felony subject to fines up to $10,000 and/or imprisonment for up to 10 years.

18 U.S.C. 592. Troops at polls

This statute makes it unlawful to station troops or "armed men" at the polls in a general or special elections, except when necessary "to repel armed enemies of the United States." It is a felony statute and violations are punishable by fines up to $5,000 and/or up to five years in prison.

The statute is not applicable to primaries. It has been interpreted by the Department of Justice as prohibiting special agents of the FBI from conducting investigations within the polls on election day.

18 U.S.C. 593. Interference by armed forces

Section 593 prohibits members of the armed forces from interfering with election processes. The statute is a felony, and violations are punishable by a fine of up to $5,000 and/or imprisonment for up to five years.

18 U.S.C. 596. Polling armed forces

Section 596 prohibits any person from polling any member of the armed forces with reference to his or her choice of, or vote for, political candidates. "Polling" is defined to include questioning which implies that an answer is compulsory. It is a misdemeanor statute, and violations are punishable by fines of up to $1,000 and/or up to one year in prison.

18 U.S.C. 599. Promise of appointment by candidate

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 that specifically address campaign-related activity. Non-willful violations are misdemeanors, punishable by fines up to $1,000 and/or imprisonment for up to one year. Willful violations are felonies punishable by fines up to $10,000 and/or imprisonment for up to two years. The functional differences between "willful” and “nonwillful" offenses is not explained in the statute.

Section 599 is a class statute that applies only to the actions of candidates for federal offices.4

This statute has potential utility in situations where one candidate attempts to secure the withdrawal of an opponent by offering him a public or private job. (See also 18 U.S.C. 600, infra.) It also applies to offers of jobs to secure political endorsements. However, Section 599 is not sufficiently broad to reach offers or payments of money to secure withdrawal or endorsements. Such matters are prosecutable federally, if at all, only as reporting violations of the Federal Election Campaign Act, 2 U.S.C. §434(b) and §437g(d).

Campaign Dirty Tricks

With rare exceptions, federal prosecutions in the "vote fraud” area are confined to corrupt manipulations of the balloting process itself. Federal criminal law enforcement generally does not intervene in the tactics, deeds, or rhetoric of those representing candidates for elective office, unless those activities become so egregious that they violate specific federal criminal laws (e.g. arson, theft, bribery, etc.).

As noted above, the federal mail fraud law is not used to prosecute allegedly false campaign rhetoric; 18 U.S.C. 241 and 242 have never been asserted to criminalize incidents not directly bearing on the balloting process itself; and 18 U.S.C. 245(b)(1)(A) reaches only incidents that entail threats or use of force. The former federal statute that for many years addressed the "willful” concealment of the sponsorship of scurrilous campaign materials, 18 U.S.C. 612, was effectively repealed in the course of the 1976 Amendments to the Federal Election Campaign Act. The only criminal statutes presently in the United States Code specifically dealing with the subject of campaign tactics and practices are 18 U.S.C. 599, discussed above, and two subsections of the Federal Election Campaign Act, 2 U.S.C. 441d and 441h.

2 U.S.C. 441d requires that literature "specifically advocating the election or defeat of a clearly identified candidate" (i.e. one running for federal office)

*Like 18 U.S.C. 597, Section 599 used to be governed by the definitions in 18 U.S.C. 591, through which its scope was limited to federal races. The Criminal Division does not consider that by repealing the Section 591 definitions, Congress intended to broaden the scope of Section 599 to include nonfederal candidates. See discussion of this issue, supra at pages 19-20.