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contain an attribution clause identifying the candidate or the political committee responsible for it. The content of the material in question must expressly, and quite specifically, call for election or defeat; and the candidate at which the message is directed must be plainly mentioned. This statute does not cover anonymous literature that leaves to inference the identity of the candidate at which its message is directed, or which does not clearly state that voters should cast ballots for or against that candidate. Federal Election Commission v. C.L.I.T.R.I.M., 616 F.2d 45 (2d Cir. 1980). Moreover, the Federal Election Commission, acting pursuant to its advisory opinion authority conferred by 2 U.S.C. 437f, has excluded several categories of campaign advocacy (such as bumper stickers and buttons) from the reach of this law. To be potentially prosecutable as crimes under the FECA's limited criminal penalty, 2 U.S.C. 437g(d), activity violative of this narrow statute must have been committed with specific "willful" intent, and it must have entailed the expenditure of $2,000 or more per year in connection with the publication and distribution of the offending literature. If both of these elements are satisfied, violations of Section 441d may be punishable by fines of up to the $25,000 and/or one year imprisonment.

2 U.S.C. 441h prohibits the fraudulent misrepresentation of authority to speak for a candidate running for federal office. This statute was first passed in 1976 to address the campaign "dirty tricks" in which Donald Segretti had engaged. It covers situations where a representative of one candidate is clandestinely infiltrated into the campaign of an opposing candidate for the purpose of embarrassment or campaign sabotage. As with Section 441d, violations of Section 441h are subject to the enforcement machinery contained in the Federal Election Campaign Act. However, unlike Section 441d, a violation of Section 441h may be prosecuted criminally without regard to the amount of money that was expended on the offending activity. See 2 U.S.C. 437g(d)(1)(b). This statute covers only activity directed at sabotaging the campaigns of candidates for federal office, and violations are misdemeanors subject to the same penalties as violations of Section 441d. The Criminal Division considers that Section 441h was intended by Congress to be the exclusive criminal remedy for the subject of campaign sabotage.

Alien Voting

Federal law does not require that persons be United States citizens to be eligible to vote. The qualifications which an individual must possess in order to be entitled to the franchise, and the procedures for registering voters, are matters which the Federal Constitution leaves primarily to the States. Several constitutional and statutory provisions do exist which prohibit the States from exercising this power to deprive "citizens" of the franchise on account of various factors: e.g. U.S. Constit. Amend. XV-race; U.S. Constit. Amend. XIX-sex; U.S. Constit. Amend. XXIV-payment of poll tax; U.S. Constit. Amend. XXVI—age; 42 U.S.C. §1973aa-1 et seq.—residency in excess of 30 days; 42 U.S.C. §1973bb et seq.-age; 42 U.S.C. §1973dd-1 et seq. —overseas residence.

However, neither the Federal Constitution, nor any provision of federal statutory law, affirmatively requires that prospective voters be United States citizens, prohibits the States from enfranchising noncitizens, or requires voter registrars to inquire into the citizenship status of persons desiring to register to vote.

Most of the States have chosen to require United States citizenship as a prerequisite for voter registration. Some, but not all, of the States imposing citizenship requirements implement this prerequisite through voter registration forms that clearly alert prospective registrants of the citizenship requirement, and require registrants to affirmatively assert their citizenship. In those States having clearly implemented citizenship requirements, noncitizens who illegally register and vote may be prosecuted federally under 18 U.S.C. 911. Section 911 prohibits the knowing and false assertion of United States citizenship by an alien. Violations of this law are federal felonies, punishable by imprisonment for up to three years and/or by $1,000 fines. Convictions under Section 911 require proof that the alien was actively aware of his noncitizenship status, and that possessing such knowledge he affirmatively asserted citizenship. See e.g. United States v. Anzalone, 197 F.2d 714 (3d Cir. 1952); United States v. Franklin, 188 F.2d 182 (7th Cir. 1951); Fotle v. United States, 137 F. 2d 831 (8th Cir. 1943).

In those States having citizenship requirements for voting and that allow registration by mail, the illegal registration of a noncitizen may also be prosecuted under the federal mail fraud statute, 18 U.S.C. 1341. Prosecutable mail fraud cases of this type should entail proof that the defendant was actively aware of both his noncitizenship status, and of the fact that citizenship was a prerequisite to voting in the State in question. However, it is not absolutely necessary that the registration form which the voter is required to execute call on him to clearly and affirmatively claim citizenship. It is sufficient that the alien intentionally concealed his noncitizenship status with knowledge that this information was of material significance to the registering authority.

The active solicitation of aliens to register or to vote in derogation of a Stateimposed citizenship requirement may be prosecuted under the clause of 42 U.S.C. 1973i(c) which addresses conspiracies with voters to effect illegal voting. Violations of this provision are five-year felonies. However, as noted in the discussion supra, this particular statutory clause of Section 1973i(c) applies only to conspiratorial situations. As such, it is not available for use against alien voters who act alone, and it addresses only the conduct of the recruiter, not that of the alien voter.

The false registration clause of 42 U.S.C. 1973i(c) does not have easy application to alien voting transactions, since it is limited to three discrete classes of false representation: name, address, or period of residence in the voting district. Alien voters usually do not give false names or addresses when registering, and the vast majority of them have an arguably legitimate claim to "residence" within the voting district where they seek to vote.

Alien voter cases are an exception to the general rule that federal voter fraud prosecutions are not usually based on isolated illegal voting transactions. Under appropriately aggravated facts, federal prosecution of a single uncoordinated

instance of alien voting may well be justified. Such matters involve a federal interest in the integrity of the nation's citizenship laws that is separate from whatever federal interest there may be in the integrity of the balloting process.

B. PATRONAGE AND PROGRAM ABUSES

Background

Federal laws dealing with patronage find their common roots in the 1882 Pendleton Act. This landmark legislation was passed in an effort to dismantle the "spoils system" that prevailed in the country at the time. The Act created the Merit Civil Service, which initially was composed of only about 10% of the lower level clerks employed in the Executive Branch, and it established the Civil Service Commission to administer this new category of federal employment. The Pendleton Act contained four criminal provisions that addressed aggravated forms of patronage, such as political shakedowns of federal employees, political activity in federal buildings, and politically motivated threats of reprisals to federal employees. These statutes are still with us today, and they form the base of the protection afforded to the modern civil service against political abuse. In 1907, President Theodore Roosevelt promulgated an Executive Order which sought to define the scope of permissible political activity to be allowed to civil servants employed in the Executive Branch. The Order (known as Civil Service Rule No. 1) forbade almost all active campaigning and electioneering by merit civil servants. In the ensuing years, the Civil Service Commission decided approximately 2,000 cases involving disciplinary action taken against civil service employees for alleged violations of this Executive Order. In the process, the scope of what was, and what was not, permissible was substantially refined. The Hatch Act of 1939 had as one of its principal purposes the codification of the body of administrative case law that had been developed piecemeal under President Roosevelt's Executive Order. This statute, and the regulations promulgated under it, set out in specific detail the broad range of political activity that is forbidden to all but the highest federal officers. See e.g. 5 U.S.C. 7323, 7324-7327 and 5 C.F.R. 733.101 et seq. Punishment for violations of the Hatch Act consists of administrative discipline, and possible termination from federal employment. The Act is enforced by the Office of Special Counsel of the United States Merit Systems Protection Board, which under the 1978 Civil Service Reform Act replaced the Civil Service Commission in this area. See 5 U.S.C. 1206(e)(1)(A), 1206(g), and 1207(b).

The broad administrative prohibitions of the Hatch Act are supplemented today by the four original sections of the Pendleton Act that deal with aggravated forms of politicalization of the federal civil service (18 U.S.C. 602, 603, 606, and 607), as well as by several new crimes that were added by the Hatch Act to help abolish political abuses in the administration of the federal relief and public assistance programs which were an outgrowth of the New Deal era. (18 U.S.C. 598, 599, 600, 601, 604, and 605.) In 1976 Congress amended two of these statutes (18 U.S.C. 600 and 601) to substantially broaden their coverage

and increase the penalties for violations. Public Law 94-453. In 1980, Congress amended three others (18 U.S.C. 602, 603, and 607) to clarify their application to certain types of activity, and to restrict their reach to activity done in connection with federal elective contests. Public Law 96-187.

The record is clear today that, except with respect to a limited class of senior government officials who perform "policymaking" functions for elected public officials, patronage and partisan political considerations have no place either in federal employment or in the administration of federally funded programs. Indeed, in extreme cases violations of these patronage laws may overlap with federal conspiracy, fraud and extortion offenses. See e.g. United States v. Pintar, 630 F.2d 1270 (8th Cir. 1980); United States. Cerilli, 603 F.2d 415 (3rd Cir. 1979).

18 U.S.C. 602. Solicitation of political contributions

Section 602 prohibits Senators, Representatives, candidates for Congress, officers and employees of the United States, and persons receiving compensation for services from money derived from the United States Treasury, from knowingly soliciting any contribution from any other such officer, employee or person. The statute applies to contributions made for the purpose of influencing federal elections only. Violations are felonies, punishable by fines up to $5,000 and/or by imprisonment for up to three years.

Section 602 was originally enacted as a part of 19th Century legislation aimed at dismantling the spoils system of political patronage. As such, its legislative history reflects that it was Congress's intention to criminalize only aggravated forms of involuntary political "shakedowns," and it is in these terms that the scope of Section 602 has been customarily described by the courts that have interpreted it. See e.g. United States v. Wurzbach, 280 U.S. 396 (1930); Ex parte Curtis, 106 U.S. 371 (1882); Brehm v. United States, 196 F.2d 769 (D.C. Cir. 1952), cert. denied, 344 U.S. 838; United States v. Burleson, 127 F.Supp. 400 (E.D. Tenn. 1954).

It is the Criminal Division's position that this statute does not reach the solicitation of voluntary political contributions between federal employees. However, it does reach any situation where factors are present in a political transaction which indicate that the contribution being solicited was less than voluntary, and that the solicited employee was consciously placed in a position where he felt obliged to make the contribution.

The scope of the class covered by Section 602 was described well in Burleson, supra, to include any person who is paid directly from the United States Treasury for services rendered to the Executive, Legislative, or Judicial Branches of the Federal Government. All officers and employees of the Executive Branch, and all Members, officers and employees of the Congress are within the class protected by this statute. However, the statute does not reach persons who are merely paid with federal funds that have lost their "federal" character, such as state

"Note that voluntary political transactions between federal personnel may be subject to disciplinary penalties imposed by the Merit Systems Protection Board under 5 U.S.C. 7323.

or local government employees or persons paid under federal grants. Such persons may be covered under activity that is reached through 18 U.S.C. 600 and 601.

The 1979 Federal Election Campaign Act Amendments, Public Law 96–187, amended Section 602 by making it clear that a person being charged under it had to have been actively aware of the status of the person solicited at the time the transaction occurred.

The 1979 FECA also made the critical term “contribution" in Section 602 subject to the definition given it in the Federal Election Campaign Act, 2 U.S.C. 431(8). This definition, in turn, is restricted to activities made for the specific purpose of influencing one or more of the federal contests incorporated in that definition. See e.g. United States v. Clifford, 409 F.Supp. 1070 (D. N.Y. 1976).

18 U.S.C. 607. Place of solicitation

Section 607 makes it unlawful for anyone to solicit or receive a political contribution in any room or building where federal employees are engaged in the conduct of official duties. It also forbids political solicitations on federal military reservations. The purpose of this statute is to protect the integrity of federal office space from politicalization, and to protect the federal workforce from being subjected to political demands while they are on duty.

The employment status of the parties to the solicitation is immaterial. It is the employment status of the person(s) who routinely occupy the area where the solicitation occurs that is important. Specifically, this statute reaches all political solicitations which are effected in any office or area where a person paid directly from the United States Treasury for services rendered to the U.S. Government is engaged in the performance of official duties. See e.g. United States v. Burleson, 127 F.Supp. 400 (E.D. Tenn. 1954). In this respect, Section 607 has the same reach as Section 602.

Section 607 reaches political solicitations that are delivered by mail, as well as those that are made in person. United States v. Thayer, 209 U.S. 39 (1908). Areas occupied by officers and employees of the Legislative Branch are covered to the same extent as areas occupied by employees of the Executive Branch. However, this statute specifically does not reach contributions that are received by congressional staffers in their offices, provided there was no request for the contribution to be delivered to such a place, and provided further that the contribution was dispatched immediately to the Congressman's political committee." When federal premises are leased or rented to candidates in accordance with GSA or military regulations, they are not considered "federal" for the purposes of this statute. The same holds true for post office boxes. Accordingly, under appropriate circumstances, political events may be held in leased or rented portions of federal premises, and political contributions may be sent to and accepted in post office boxes.

"Although Members of Congress are not specifically included in this exception, the Criminal Division believes that Congress intended that Members be permitted to personally receive unsolicited contributions in their offices to the same extent as their staffs.

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